The way international law on human rights (HR) is integrated into national legislation depends on the legal traditions and system of a given country and the legal engagements it has undertaken regionally and internationally via treaties and associations. The legal system of a country includes its rules and institutions.
According to UNICEF, international human rights norms are, generally, incorporated into national legislation in four ways:[1]
- Through ratification of international treaties and agreements that oblige the signing parties to incorporate the provisions into their domestic law automatically, according to their national legal or constitutional requirements
- Through special enabling legislations, such as constitutional amendments.
- Through the incorporation of a HR legal instrument, as it is, into a single piece of new legislation.
- Through the gradual incorporation of the aspects of a HR legal instrument via a number of separate laws.
In countries that have constitutional provisions approving automatic integration of international agreements, latter become a part of the national legislation upon ratification and prevail over it in the event of conflict between the two. In other countries, specific legislative and administrative measures are necessary in order for the international human rights law to be incorporated into domestic law either in its entirety or by parts resulting in either new legislation or constitutional amendments. In order for national human rights legislation to be effective, rule of law, transparency, and accountability are presumed in addition to oversight, monitoring, and evaluation mechanisms.
KEY ACTORS
Ombudsman Institutions, Human Rights Defenders, and National Human Rights Institutions are the main actors involved in the promotion, development, oversight, monitoring, and evaluation of the national human rights legislation performance.
Human Rights Defenders
As defined by the United Nations High Commissioner for Human Rights, human rights defenders are individuals, groups, and organisations who promote and protect human rights. Human rights defenders are not only found within NGOs and intergovernmental organizations but might also, in some instances, be government officials, civil servants, or members of the private sector. Human rights monitors, ombudsmen, and human rights lawyers are all examples of human rights defenders. However, one does not necessarily need to be a part of an organisation to be a Human Rights defender. Many people act as human rights defenders outside any professional or employment context. The term “Human Rights Defender” designates a person, a group or an organisation whose work, occasionally or constantly, involves the promotion and protection of Human Rights. This description encompasses a wide range of activities, such as collecting and disseminating information on violations, supporting victims of human rights violations, securing accountability and fighting impunity, supporting good governance, education and training, etc. These activities can be undertaken on a local, national, or regional scale and often entail cooperating with international organisations and regional actors. The work of a human rights defender can be remunerated or voluntary. The principles, rights, and responsibilities of human rights defenders are outlined in the UN “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms” adopted by the General Assembly in 1998.
National Human Rights Institutions
According to the International Justice Resource Centre, National Human Rights Institutions (NHRI) can take various forms. Their main goal, same as Human Rights Defenders’, is to promote and protect human rights.
As the International Coordinating Committee of NHRIs defines them, National Human Rights Institutions are State bodies with a constitutional and/or legislative mandate to protect and promote human rights. They are part of the State apparatus and are funded by the State. However, they operate and function independently from the government. While their specific mandate may vary, the general role of NHRIs is to address discrimination in all its forms, as well as to promote the protection of civil, political, economic, social, and cultural rights. Core functions of NHRIs include complaint handling, human rights education, and making recommendations on law reform. Effective NHRIs are an important link between government and civil society. There are six models of NHRIs today:
- Human rights commissions
- Human rights Ombudsman institutions
- Hybrid institutions
- Consultative and advisory bodies
- Institutes and centres
- Multiple institutions
The activities of NHRIs encompass monitoring the status of human rights in their country, receiving human rights complaints, and raising awareness about human rights.
Key Links and resources:
- Human Rights Council Resolution A/HRC/20/L.15
- International Coordinating Committee of NHRIs
- National Human Rights Institutions Database
- Paris Principles
- Regional NHRI Networks and Forums
- The International Coordinating Committee’s Directory of National Human Rights Institutions
- Ukrainian legislation concerning NHRIs
- UN General Assembly Resolution 63/172
- UN General Assembly Resolution 65/207
- UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010)
Ombudsman Institutions
An Ombuds Institution, Commissioner, or Public Defender is a component of National Human Rights Institutions. They receive and investigate complaints concerning decisions, omissions, and actions of the public administration, including violations of human rights. An ombuds institution is defined by the International Bar Association as “an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high-level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports”.[2] According to Dean Gottehrer, the former president of the United States Ombudsman Association, an ombudsman must have the following essential characteristics:
- Independence
- Impartiality and Fairness
- Credible review process
- Confidentiality
An Ombuds Institution for the Armed Forces is an ombuds institution that focuses on receiving and investigating complaints from within, or related to, the armed forces. That is, an ombuds institution with jurisdiction over the armed forces. These institutions are essential to democratic security sector governance because they promote and contribute to transparency, accountability, participation, responsiveness, and building integrity.
Key links and resources:
[1] UNICEF (2008), Assessing Compliance of National Legislation with International Human Rights Norms and Standards.
[2] In Dean M. Gottehrer (2009), “Fundamental Elements of an Effective Ombudsman Institution.”