The Role of National Human Rights Institutions In Access to Justice and Dispute Resolution

Within the literature and practice, there has been less discussion of the appropriateness of ADR for resolving disputes concerning human rights. This is despite the fact that at the international level, the European Court of Human Rights (ECtHR) promotes friendly settlements between the applicant and respondent state. The Council of Europe’s Commissioner for Human Rights, the European Union’s Agency for Fundamental Rights (FRA) and the United Nations Office for the High Commissioner for Human Rights (OHCHR) have also noted that national human rights institutions (NHRIs) can play a role in dispute resolution (as well as complaints-handling more generally which may include advice, assistance and representation).

NHRIs include a wide range of bodies with a mandate to promote and protect human rights such as human rights commissions, equality bodies and ombudspersons. For the purposes of our project, NHRIs are those bodies which have had some engagement with the accreditation process of the UN Sub-Committee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) or the Global Alliance for National Human Rights Institutions (GANHRI) as it has been recently re-named. Forms of dispute resolution relevant to NHRIs include agreement-based processes such as settlement negotiations, mediation and conciliation. They also include adjudicative forms of ADR where the NHRI issues binding or non-binding recommendations on an individual complaint, for example where ombudspersons carry out investigations and issue recommendations or where an NHRI sits as a quasi-judicial tribunal.

Some NHRIs already offer forms of dispute resolution although this practice has not been mapped comprehensively in the literature. In policy and practice, very little has been discussed about the factors that need to be taken into account when deciding on whether an NHRI should have a dispute resolution role and the form it should take. Likewise, where NHRIs offer a form of dispute resolution, common guidelines are not available on how human rights complaints should be handled and the standards of justice that should attach. This project fills a gap in the literature and practice in this area and in doing so, hope to encourage greater debate and policy discussions on whether and how NHRIs and related bodies should play a role in dispute resolution.

The aims of this project are two-fold: first, to understand the role NHRIs in Europe have already played in dispute resolution; and second, to develop a framework for how they should play such a role in the future in line with international human rights law (IHRL). The project therefore focuses on three key questions:

• what is the current dispute resolution practice of NHRIs in Europe?
• should NHRIs play a role in dispute resolution?
• where they have a dispute resolution role, what should the standards of justice that attend to that process be?

Research and interviews with many NHRIs within and outside of Europe have been undertaken including visits to Bulgaria, Croatia, Denmark, the Netherlands, Poland, Spain and the three NHRIs within the UK. These jurisdictions have been chosen because they host commissions with experience in dispute resolution.

More generally, the research has been organised around desk-based research, case studies and qualitative interviews with key stakeholders from NHRIs, policymakers and experts in dispute resolution and human rights.

An Advisory Group and key experts have advised on the design, scope and implementation of the project throughout. The Advisory Group is composed of experts from NHRIs and policy makers as well as experts on international human rights law and dispute resolution.