INTRODUCTION

Three bodies compose the Inter-American Human Rights System, as established by the American Convention on Human Rights (ACHR): the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (IACtHR), and the General Assembly of the Organization of American States (OAS). While the IACHR is mandated to promote the observance and defence of human rights, the IACtHR is granted both contentious and advisory, or non-contentious, jurisdiction, and the General Assembly is tasked with considering the annual report submitted to it by the IACtHR. For the exercise of these powers, the ACHR views the aforementioned bodies in a context in which, due to the period when this treaty was concluded, international society was essentially made up of sovereign states that were and are obliged to respect and ensure respect for the human rights enshrined therein. This is particularly the case concerning Articles 1.1, 2, and 35 of the ACHR, among other articles, and, in more specific relation to the IACtHR, Articles 61.1, 65, and 68. Given this context, the treaty provides that only states and the IACHR may be parties to cases in which the IACtHR exercises its contentious jurisdiction.

The Rules of Procedure of the IACtHR (Rules of the Court), however, introduced the possibility for alleged victims of human rights violations to appear before the Court, giving them the opportunity to assert their rights and opinions, and present petitions in an autonomous manner. Subsequently, NGOs began providing support to complainants, or their families, regarding their pleadings, arguments, and evidence.

INTRODUCTION

In line with the UN Paris Principles, NHRIs are established by constitution or law as permanent, accessible, and specialist human rights access points, for both rights-holders and duty-bearers at national level. They provide information to citizens, cooperate with civil society, deliver advice to government, hold state authorities to account for human rights violations, and inform the international community of the national human rights situation on the ground. Emerging in the 1990s, NHRIs remain a rather novel phenomenon in the human rights landscape, in Europe and beyond. The increasing establishment and role of European NHRIs remains understudied, and, until recently, the unique features of NHRIs were not very familiar to human rights practitioners in the region.

While a number of chapters in this book include case studies addressing the functioning of particular NHRIs, the present chapter provides a bird's eye perspective on the European NHRI landscape. It will describe typical characteristics of NHRIs in the European region, highlighting some important challenges and opportunities for NHRIs across the continent. Following the approach of this edited volume, the chapter will distinctly address characteristics of European NHRIs, across the multiple layers of the human rights system. In the first section, the focus is placed on the characteristics, opportunities, and challenges that are typical for European NHRIs at the national level.

The Paris Principles are the benchmark against which all NHRIs are generally measured in the important accreditation process managed by the international network that groups them today. These principles, as construed and applied by GANHRI's SCA, are a good example of how international law can bring the rule of law into municipal law. Because of their origin, the Paris Principles favour the human rights commission as an institutional model over the ombuds-institute and the human rights institute, and focus on the creation of NHRIs, rather than in their subsequent operation. These two aspects constitute a limitation of these principles. Even though the first of these problems has been solved in practice, the second one remains a reality that requires identifying efficiency criteria going beyond institutional design and guiding NHRIs in the effective fulfilment of their functions.

From a comparative perspective, NHRIs are a common tool of constitutional law for the promotion and protection of human rights. As this book has shown, this is particularly true for Latin American NHRIs, where the figure of the ombuds tends to take precedence over commissions or institutes. With few exceptions, the vast majority of these NHRIs enjoy a legal status that allows us to describe them as constitutional institutions, aimed at fulfilling that critical role. NHRIs’ relevance has been recently highlighted by the UN, the Council of Europe and the OAS. In 2017, the UNGA promoted the existence of independent NHRIs as an indicator for Sustainable Development Goal 16 of Agenda 2030 – that of promoting just, peaceful and inclusive societies; it reiterated the significance of NHRIs during the COVID-19 pandemic.

INTRODUCTION

Latin American constitutional systems underwent a strong metamorphosis during the final decades of the twentieth century and have continued to do so during the first part of the twenty-first. One of the main objectives driving this constitutional change has been the desire to overcome the legacies of various conservative political regimes which formerly held power across the region. These regimes fuelled social exclusion and, simultaneously, allowed normative and institutional weaknesses to give rise to a general neglect in the protection of fundamental rights.

The wave of constitutional reforms, termed ‘new Latin American constitutionalism’ by some and ‘neo-constitutionalism’ by others, has helped to bring about significant changes, including: a considerable expansion of the catalogue of legally recognised fundamental rights; the strengthening of institutions responsible for the protection of these rights; the creation of new protection mechanisms; an increased recognition of subjects of special protection (women, children, indigenous peoples, among others); the empowerment of constitutional jurisdiction; and the articulation of constitutional law in keeping with international human rights law, among other significant developments.

In this context, the so-called defensorías del pueblo have come to the fore as new institutional figures, which, imported from Europe and adjusted to meet Latin American realities, act as critical tools for the promotion and protection of fundamental rights in the region. The defensorías del pueblo were conceived as institutions with an express mandate to work closely with the general public. In performing this role, they constitute a crucial part of multilevel protection systems in which states’ national mechanisms for the protection of individuals are closely linked to international mechanisms.

National Human Rights Institutions (NHRIs) currently operate across all five continents, striving to comply with the so-called ‘Paris Principles’. As a term of art, NHRI is a widely accepted one. Under its aegis, numerous institutions promote and protect human rights following two basic models: commissions and ombudsman offices, and sometimes hybrid and specialised institutions. NHRIs have been integrated into a network of administrative agencies and judicial courts that deal with human rights at the national and international levels. They provide a valuable example of institutional dialogue and cross-fertilisation between municipal and international law. At least in Europe and Latin America, their presence is so extensive that it could be argued that NHRIs are now part of a common legal tradition, which allows for certain distinctive features in each region.

WHY THIS BOOK?

At present, there are quite a few informative monographs and edited books on NHRIs, written from a general or a specific perspective. No publication, however, has yet contextualised and analysed the similarities and differences between European and Latin American NHRIs, providing case studies on concrete commissions, ombuds offices and institutes from across these two regions. By drawing on the existing literature, this book aims to bridge the European and Latin American experiences on NHRIs, while emphasising the essential international aspect that these institutions have. Filling a gap in the legal literature, this work is aimed at studying NHRIs from an international and comparative standpoint.

INTRODUCTION

The Principles relating to the Status of National Institutions were first defined at a workshop, held in Paris in 1991, and were formally adopted by the UN General Assembly (UNGA) two years later. Their relevance cannot be overstated, for they put forward the main criteria that NHRIs have to fulfil, including principles as to their role, establishment, composition, and operation. Loosely conceptualised in doctrine, NHRIs embody state self-regulation and accountability in the area of human rights. Following the Paris Principles, the UN has defined them 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’. NHRIs typically adopt the form of a either a commission or ombudsman, the shape and size of which differs from state to state. Beyond such classic models, hybrid and specialised institutions have also been recognised as NHRIs. Since the 1990s, these permanent and independent agencies have multiplied extensively throughout the world. At present, more than 100 states have one of these administrative bodies active in their territory.

The Paris Principles have not only allowed the UN to delineate NHRIs, but have also become the benchmark used for measuring their structural design. For years, these non-binding principles have been applied as legal rules in the now all-important accreditation processes which govern these institutions. However, two questions remain: what exactly is the nature of an NHRI? And what is its main objective?

INTRODUCTION

Since the adoption of the Charter of Fundamental Rights of the European Union (the Charter) in 2000 – and even more so since the Treaty of Lisbon in 2009 elevated the Charter's legal status to a position of parity vis-à-vis the European Union's (EU or Union) founding Treaties – the EU's commitment to the promotion and protection of and respect for fundamental rights in its internal policies and action has grown exponentially. In its internal law, policy, and action the Union seeks to ensure that its institutions and Member States acting within the scope of EU law proceed in compliance with citizens’ fundamental rights, as enshrined in the Charter. EU external action tells a similar story of exponential growth in human rights activity, with the Treaty of Lisbon at the apex of strong exhortations requiring the Union to advance ‘the universality and indivisibility of human rights and fundamental freedoms’ in the wider world.1 The Union has shown itself to be a staunch defender of human rights worldwide, not least through its dealings with third countries and engagement with human rights protection mechanisms at the UN and beyond.

Given this context, it is hardly surprising that the EU has become increasingly interested in and supportive of the work of National Human Rights Institutions (NHRIs).

INTRODUCTION

Since the colonial era, Mexico has had various mechanisms and officials in charge of protecting the country's most vulnerable people. The recognition of the dignity and rights of indigenous people gave rise to the development of different institutions as well as the corresponding doctrinal apparatus for the protection of indigenous peoples. Examples include Francisco de Vitoria's (1538–1539) Relectiones de indis and Relectio de iure belli, the appointment of Bartolomé de las Casas (1484–1558) as Universal Procurator and Protector of Indians, and the Ordinances for the Good Treatment of Naturals, issued by Emperor Charles V of Spain (1500–1558) in 1528.

After the Mexican Independence War (1810–1821), small efforts, such as the establishment of the Office of the Procurator for the Poor in San Luis Potosí (1847), could not prevent the effective protection of human rights from going into oblivion, due to different social and cultural factors prompted by armed conflicts and political instability as well as the one-party dictatorship instituted after the Mexican Revolution (1910–1921). This period was marked by constant internal disputes, both violent and social, and severe human rights abuses. The most relevant examples were the Cristero War (1926–1929), an armed conflict between civilians, who were defending their religious liberties, and the military, which was enforcing anti-religious legislation that resulted in thousands of deaths; and the Dirty War (1960s–1970s), which was the name given to the military repression aimed at dissolving or suppressing political opposition movements.

INTRODUCTION

The Deutsches Institut für Menschenrechte (DIMR), or German Institute for Human Rights, is still a relatively young institution in the context of NHRIs. The DIMR (‘the Institute’) was founded in March 2001: this followed a unanimous decision, in December 2000, in which the German Federal Parliament called for the creation of an NHRI. One of the reasons for the comparatively late establishment of such an institution in Germany was the existence of a strong domestic tradition, which has seen basic constitutional rights protected through the German Federal Constitutional Court. This tribunal has the power to annul legislative, administrative, and judicial acts of all state entities, on the basis of individual complaints which successfully claim a violation of the basic constitutional rights enshrined in the German Basic Law (Grundgesetz): these rights are viewed as being equivalent to internationally protected human rights.

This chapter is organised as follows: the first substantive section (section 2) introduces the legal and institutional framework of the DIMR, including its legal basis, institutional structure, and main tasks; next, section 3 provides an overview of the DIMR's historic development, including its foundation and establishment, its struggle for a legislative basis, its path to re-accreditation, its current challenges, and future possibilities; the chapter then briefly reflects on the relationship between the DIMR and civil society (section 4); finally, it concludes with some observations on general lessons drawn from the experience of the DIMR (section 5).

INTRODUCTION

The Commission nationale consultative des droits de l’homme (CNCDH), or French National Advisory Commission for Human Rights, is one of the world's oldest NHRIs. Since its inception, the CNDCH has passed through three stages, with different legal bases and mandates.

THE ARRÊTÉ MINISTÉRIEL OF 1947

Established in 1947, by an order of the Minister of Foreign Affairs, as the ‘advisory commission for the codification of international law and the definition of the rights and duties of States and human rights’, this NHRI was originally composed of 10 eminent members, including Suzanne Bastid (1906–1995), Charles Chaumont (1913–2001), Henri Donnedieu de Vabres (1880–1952), and Georges Scelle (1878–1961), under the leadership of René Cassin (1887–1976). As an administrative commission within the Ministry of Foreign Affairs, its mission was to prepare initiatives and position papers for French diplomats acting within the International Law Commission and the Human Rights Commission of the UN. This first French Commission was particularly instrumental in the travaux préparatoires of the 1948 Universal Declaration of Human Rights and the 1966 International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights. Throughout this period, the Commission did not have monitoring functions.

THE REVISED DECRET OF 1984

The CNCDH was re-established in 1984, by a decree of the Prime Minister. This iteration was modelled as an advisory commission for human rights, with more independence from the administration. It was placed under the presidency of Nicole Questiaux, a former minister who was then a member of the Conseil d’État, (Council of State). At a time when France was faced with new legal commitments, both at the regional and universal levels, the CNCDH was entrusted with a limited external competence.

INTRODUCTION

The Defensor del Pueblo of Spain, or Spanish ombudsperson, is a body created by the 1978 Spanish Constitution. The body has subsequently developed through the Organic Act 3/1981 and the institution's own Structure and Organisation Regulations, of 1983. The first ombudsperson was elected on 28 December 1982 and, from that moment on, the Defensor del Pueblo has operated without interruption. At the time of the institution's establishment, there existed a broad consensus regarding the appropriateness of the chosen NHRI ‘model’ as well as its fit within the Spanish system; indeed, there were hardly any substantial debates on the issue. Being a novel legal concept at the time of its creation, the body's inclusion in the Spanish Constitution strengthened the Defensor del Pueblo: reform of the institution requires modification of the Constitution, which is, in itself, a complex process. There are other defensorías in Spain, including bodies in most of its Comunidades Autónomas, or Autonomous Communities. These are similar in their nature to the national Defensor, but they were not established by the Constitution. This situation is explained by the decentralised nature of the Spanish political system: whereby there is a central state, which functions as a federal entity, and territorial divisions, which enjoy political autonomy. All in all, the Defensor del Pueblo is a relevant body within the architecture of power in Spain; it has, at times, been highly influential in shaping public opinion; however, much like other state entities, it has been affected by a loss of citizen confidence in recent years.

INTRODUCTION

It is widely known that the Latin American ombudsman model is rooted in the Spanish legal tradition and carries all the core elements of the Swedish ombuds-prototype; this sees it take the form of an independent and autonomous state institution which oversees the public administration and reports to parliament. The Spanish Defensor del Pueblo has two additional characteristics: it is empowered to hold laws unconstitutional and plays a role in protecting human rights. The ombuds-institution appeared in Spain in 1978 and in most Latin American systems in the 1980s, during a period of transition from authoritarianism to democracy for these states. Because authoritarian regimes generally distinguish themselves through the systematic abuse of state power, the violation of citizens’ rights, and a general lack of mechanisms which provide checks and balances within the state structure, efforts to protect human rights only began to come to the forefront when new state structures were organised in Spain and Latin American countries. The resulting entity was the Defensoría del Pueblo, which represents a new institutional model that is able ‘to prevent human rights abuses and bureaucracy left behind by the prior regimes’. In Latin America, the authoritarian past had serious consequences. Abusive former regimes had destroyed public trust in state institutions, which placed emerging ombuds-institutions in a disadvantaged position.5 Beyond restoring public confidence, ombudsmen had to convince public authorities of the benefits their new institutions would bring, all the while waiting until the countries’ judiciaries normalised.

INTRODUCTION

Since the mid-1980s, one of the common characteristics of Latin American constitutional design has been the incorporation of autonomous bodies, generally with a parliamentary mandate, that are responsible for promoting knowledge of and respect for human rights by means other than administrative or jurisdictional powers.1 Normally, these institutions are single-person ombudsmen based on the European model. As Carlos Constenla notes, NHRIs initially followed the ‘Iberian model’ of Spain and Portugal, in line with the proposals of the Latin American Ombudsman Institute. They subsequently began to adopt their own formats, as a natural consequence of the characteristics of Latin American constitutional and administrative law. At present, it could be claimed that these ombudsmen now constitute the fourth most prevalent branch of state government in the region: ahead of the comptroller generals. Indeed, not even the constitutional courts, which are absent from the three largest countries in the region, enjoy such a widespread presence in Latin America. According to certain legal historians, the ‘negative power’ of Latin American ombudsmen can trace its roots back to non-sovereign Roman institutions, such as the Tribune of the People, which Jean-Jacques Rousseau described as a figure that although ‘unable to do anything, is able to prevent everything’. In contrast to the traditional European ombudsman model, which focuses on the submission of complaints filed against deficient state administration, Latin American defensorías are vested, from the outset, with the express mandate to protect and promote human rights. Therefore, they are entities that primarily follow the model of the human rights ombudsman.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Parental Responsibilities were published in 2007.1 They consist of 39 Principles (Principles 3:1–3:39). The Principles comprise eight chapters. Chapters I and II deal with definitions and the rights of the Child. Chapter III is devoted to the parental responsibilities of parents and third persons. Chapter IV is about the exercise of parental responsibilities: Section A by parents and Section B by third persons. Chapter V contains principles on the content of parental responsibilities. Section A thereof is devoted to the child's person and property, and Section B deals with the maintenance of personal relationships. Chapters VI and VII concern the termination, discharge and restoration of parental responsibilities. Chapter VIII deals with procedural matters.

The Parental Responsibilities Principles were drafted on the basis of 22 national reports reflecting the legal situation up to December 2004.2 Due account was also taken of International and European instruments from the United Nations (UN), the Hague Conference on Private International Law, the Council of Europe and the European Union (EU). The Principles also considered statistical information where available.

The updated national reports cover the legal developments in most of these jurisdictions until the end of 2020/beginning of 2021. No update reports were received from czechia, lithuania and switzerland.