INSTITUTIONALIZATION OF HUMAN RIGHTS:

NATIONAL HUMAN RIGHTS INSTITUTIONS

Muharrem KILIÇ *

Abstract

The prevalence of national human rights institutions on a global scale corresponds to the
post-Cold War era. Initially being “internationalized” during the Cold War era, the human
rights norms began to be “internalized” in the post-war period, leading to the formation of
the national protection mechanisms. The internalization of these norms accounts for the
global prevalence of the national human rights institutions, which are the state institutions
designed to protect and promote human rights. Indeed, these institutions function as a
“bridge” between international norms and local practice. Therefore, the efforts to protect and
develop human rights should primarily be exerted on a national scale.

The national human rights institutions are designed so as to encourage the states to comply
with the international legal obligations. However, the discussions on the gradual establishment
and the unification of new institutional structures on a European scale in particular, have
begun to become widespread. Addressing the unification of the equality bodies and the
human rights institutions under the umbrella of a single institution, these discussions present
a general picture of the positive and negative aspects of single and multiple institutional
structuring.

Furthermore, there are some discussions about the activity area, duties, and authorities,
institutional structure, and effectiveness of the national human rights institutions that
have become widespread on a global scale. Despite the criticisms against this institutional
structure, it is quite evident that the ‘human rights institutions’ play a key role in helping the
international human rights norms gain functionality on a local scale. As a matter of fact,
the national human rights institutions can perform an institutional function that prevents
the violations of rights and promotes human rights only through embedding international
human rights norms in the public institutions.

Keywords: Human rights, institutionalization of human rights, decentralization of human

rights, national human rights institutions, equality bodies, impact analysis of national human
rights institutions.

* Prof. Dr., Human Rights and Equality Institution of Türkiye, [email protected], https://orcid.org/0000-0002-7937-3998

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Introduction

The modern idea of human rights, which is based on the idea of natural law and natural
rights in terms of its historical roots, has continued its evolutionary development through
the ruptures accompanying the tragedies in world political history. With this evolutionary
development adventure, human rights have turned into an inspiring myth of the modern
age (Kılıç, 2018: 213). Undoubtedly, this development adventure can be analyzed through a
multidisciplinary perspective in its specific historical, political, social, and economic context.
This analysis is significant in order to be able to see and make sense of the manifestations
of a conceptualized ideality on the plane of concrete reality. The existence of contradictions
and paradoxical relationships between ideality and reality or actual reality has brought along
many fundamental philosophical-conceptual inquiries.

This emerging inquiry is carried out through the critical mind of philosophically diversified
schools or paradigmatic approaches. Not only the philosophical ground but also the
institutional structure built on it should be the subject of this critical mind. It is seen that
this ideality has transformed into both regional and supranational institutional structures.
Although this transformation confronts a problem of legitimacy over the tension between
theory and practice, the course of development of the modern human rights thought towards
institutional structuring continues. It should be stated that this development process, which
enables national, regional, and supranational institutional structuring, is based on the idea of
creating a protective mechanism/s that will secure human rights.

Undoubtedly, the practice of institutional structuring, which is based on the idea of protecting
and promoting human rights, has taken shape in the shadow of global politics formed by
periodically changing geo-political and geo-strategic dynamics and more fundamentally by
ideological conditioning. At this point, especially the ideological polarizations consolidated
by the world wars and the ensuing global polarizations have created a new world order/s. This
polarizing global order has exposed the legitimacy-based inquiries of the human rights idea,
founded on democratic politics in the bipolar universe of the Cold War period, which took the
world captive after the Second World War.

The interim period after the Cold War, in which ‘waves of democratization’ and human rights-
based institutionalization have been experienced, passed into history as a dynamic period
in terms of institutional structuring. Afterward, the tragedy of September 11, 2001, created a
new transformative reverse wave that was ‘introverted’ and ‘security based’ in terms of global
human rights politics. So that with the discourse of ‘preventive war doctrine’ on a global scale,
an ‘anti-libertarian’, ‘interventionist’ and one-sided imperial struggle area has been created.

All these dynamics, which dominate the aforementioned historical breaks, ideological
orientations and real-political strategies, make a multidimensional evaluation meaningful.
One dimension of the evaluations to be made within this framework is the evaluations made
on the dominant political systems. The idea and practice of human rights are envisaged
as a requirement of ‘democratic politics’ both in the literature and in the discursive level.

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Accordingly, the integration of international human rights norms into the local-national scale
is explained by a global ‘democratization wave’ as mentioned above.1

The severe human rights crises experienced in the world wars led to the intensification of
institutional efforts to protect human rights. The United Nations (UN), which exists as the
leading institution of international human rights actors, envisaged to establish institutional
structures that function as a protection mechanism for the protection and development of
human rights within the framework of its global mission. Undoubtedly, for the realization
of sustainable human rights reform, there is a need for ‘local structuring’ that will ensure
compliance with international legal obligations on a local scale. Institutional efforts2 to
protect human rights are unlikely to be undertaken without involving national systems.

In the context of its vertical or horizontal effect, aggressive attitudes, violations and abuses
towards human rights occur primarily at the local level. In this respect, it is obvious that local
human rights protection mechanisms are necessary against violations at local-national
scale. These institutional structures, defined as “domestic non-judicial institutions” for
the implementation of human rights law, ensure the adaptation of international norms to
local legal systems. Although the purpose of the establishment of national human rights
institutions varies, it is generally to encourage and/or monitor the implementation of
international human rights rules at the local level.

The idea of institutional guaranteeing of international human rights norms through protective
mechanisms structured on a local-national scale tends to become widespread on a global
scale. These mechanisms, which are structured as national human rights institutions, act as
a ‘bridge’ between national practice and supranational dynamics within the framework of the
mission of monitoring and supervising the national implementation of the founding human
rights conventions to which it is a party. At this point, it is observed that some countries
that do not desire to register themselves with the upper normative framework stipulated by
international human rights law do not include this type of structuring in their national legal
systems. As a matter of fact, the United States of America (USA) comes first among these
countries. The political preference of the USA not to establish a human rights institution
at the federal level can be subject to a multi-faceted analysis. However, at this point, the
remarkable argument is that it did not form such an institutional structure in order not to
include international agreements that were not approved by Congress, in its legal system.

1 Huntington defined the fact that more than 50% of adult white men voted in the USA within the conditions of the 1820s, a great development
for the idea of democracy, and defined it as the beginning of the first wave. According to Hugtington, who stated that second wave emerged
after World War II, the victory of the allies defending democracy was effective in the formation of the second wave. The third wave started
with the transition from dictatorships to democracy in Greece and Portugal in 1974 and spread to many countries of the world until the end of
the 1980s. See., Huntington, Samuel P., Third Wave: Democratization in the Late Twentieth Century, (trans. Ergun Özbudun), Kilit Publications,
Ankara 2011, p. 60.

2 According to Samuel Moyn; During the 1970s, “human rights” emerged as a project of the United Nations (UN) mechanism, as well as some
regional initiatives. See., Moyn, Samuel, The Last Utopia: Human Rights in History, (trans. Firdevs Er), Koç University Press, 1. Edition, Istanbul
2017, p. 44.

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This study presents a framework for national human rights institutions, one of the actors
that play a critical role in protecting and promoting human rights. In this context, firstly, the
dynamics of the development of these institutional structures from a historical perspective
will be discussed. Then, national human rights institutions operating on a local scale will
be evaluated within the framework of the localization of human rights. A general picture
will be presented within the framework of the structural features of the single/multiple
institutionalization model, especially within the scope of the discussions on institutional
structuring carried out on a European scale. Then, an analysis of the effectiveness of national
human rights institutions will be included. Finally, the criticisms made within the framework
of ‘institutional legitimacy, structural characteristics and effectiveness’ of national human
rights institutions, especially the purpose of establishment, will be discussed.

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1. NATIONAL HUMAN RIGHTS INSTITUTIONS: HISTORICAL

PERSPECTIVE
The end of the Cold War started a new ‘democratization wave’ for totalitarian states and
created new opportunities for the protection and strengthening of human rights. It is stated
that more than sixty countries entered the democratization process from the years 1990
to 1996. This global wave has led to fundamental changes at the local level, including the
building of national parliaments and democratic institutions, as well as democratic elections.
The founding concepts of this radical political transformation have emerged as ‘democracy’
and ‘human rights’ (Kjærum, 2003: 5).

As a matter of fact, the winner of the collapse of communism and the liquidation of the
apartheid regime, which can be described as “two modern ideological battles”, has been the
“thought of human rights”. According to Costas Douzinas; even if the twentieth century was
the ‘age of human rights’ in which this victory became a reality, this victory had a paradoxical
effect (Douzinas, 2015: 16). So that, in addition to being the age of human rights, this period
also corresponds to a time of human rights crisis. In the 1990s, however, human rights emerged
as an area protected by new assurance mechanisms.

Globally, with the proliferation of national institutions, the end of the Cold War, and the
strengthening of international human rights mechanisms, Thomas Risse and Kathryn
Sikkink’s “in world time” corresponds to the period he calls a change (Risse and Sikkink, 2009:
1-38). The Cold War era; has led to the internationalization of human rights norms, and the
post-Cold War period has led to the internalization of these norms. The global prevalence
of national human rights institutions, which are public institutions designed to protect and
promote human rights, is explained by the internalization of these norms. As a matter of fact,
the prevailing thought in the early 1990s emphasized the necessity of local-national human
rights mechanisms for ‘sustainable human rights reform’. As an important component of
building democratic politics on a global scale, national human rights institutions have begun
to be seen as an institutional necessity for ‘democratizing and rights-protecting regimes’ in
the world order (Cardenas, 2009: 27).

In the literature, the rise of national human rights institutions is explained by a global ‘wave
of democratization’ that integrates international human rights norms into the local sphere
(Cardenas, 2001: 9). As a matter of fact, human rights were accepted as important building
blocks in democratic political systems in the mid-1990s.3 This development highlighted the
need for a new institutional structure that plays a catalytic role in spreading awareness of
human rights and creating a culture of human rights (Kjærum, 2003: 5).

3 Among the leading national human rights institutions created in the early 1990s, the Mexican National Human Rights Commission, the Indian
National Human Rights Commission and the South African Human Rights Commission can be mentioned. National human rights institutions in
Canada, Australia and Denmark are among the former corporate leaders. See., Cardenas, Sonia, “Sovereignty Transformed? The Role of National
Human Rights Institutions”, p. 28.

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The prevalence of national human rights institutions in the post-Cold War period also points to
a historical ‘normative shift’. Establishing such institutional structures, applying international
human rights norms or institutionalizing them in local structures is beginning to be accepted
as a measure of state legitimacy. However, it is stated that neither human rights per se nor
national human rights institutions can replace state sovereignty or serve as an alternative
focal point of authority. As a matter of fact, the idea of human rights and national human
rights institutions strengthen the sovereign legitimacy and authority of states, especially in
the post-Cold War world (Cardenas, 2009: 38).

In the post-Cold War period, the Paris Principles (1993) and the Vienna Declaration and
Program of Action (1993) played a founding role as two fundamental documents in the creation
and development of national human rights institutions. The Paris Principles, the output of
an international workshop held within the UN, function as the authoritative international
‘standards’ or ‘minimum set of requirements’ that define national human rights institutions.
These guidelines require institutions that are pluralistic and representative, adequately
funded, autonomous, and with stable mandates (Principles relating to the Status of National
Institutions (The Paris Principles), 1993). Vienna Declaration and Program of Action lists the
important and constructive role of national institutions in the protection and promotion of
human rights as “providing consultancy services to public authorities, strengthening the field
of human rights, raising awareness of human rights and human rights education” (Vienna
Declaration and Program of Action, 1993).

Despite all this development dynamic, the quantitative explosion of national human rights
institutions in the post-Cold War period will not make it possible to define it as an absolute
break from the past. This is because national human rights institutions were first conceived
as local counterparts to the UN Human Rights Commission, shortly after the UN was founded
(1945). In the 1960s, the UN began to actively promote national human rights institutions,
emphasizing their potential to protect and promote human rights at the national level.
Even countries such as the USA, which oppose further internationalization of human rights
concerns, preferred local human rights organizations (Cardenas, 2009: 29).

National human rights institutions are playing an increasingly important role in the
implementation of international human rights law. Even in regions with highly developed
human rights protection systems, such as the Council of Europe’s human rights protection
mechanism, there are intense public calls for the restructuring and/or strengthening of
national institutions (Renshaw et al., 2011: 167). In fact, the Council of Europe stands out as
the first organization to encourage the establishment of national human rights mechanisms
and their cooperation with European Union (EU) institutions in the 1990s. Over the years,
the European Union Agency for Fundamental Rights (FRA), the Council of Europe, and the
Organization for Security and Cooperation in Europe (OSCE) have aimed to develop this
institutional structure, especially on a European scale, by promoting greater integration of
national human rights institutions into local and regional efforts to implement human rights
( Lacatus, 2018: 5).

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Nearly in the last thirty years,4 national human rights institutions have started to gain
prevalence in all parts of the world and in countries with diversified political systems. Today,
there are ‘128’ national human rights institutions accredited by the Global Alliance of National
Human Rights Institutions (GANHRI, 2021: 1-13). However, the study of Sonia Cardenas in the
early 2000s reveals that there are approximately 300-500 national human rights institutions
on a global scale, excluding sub-national human rights institutions (Cardenas, 2001: 9).

According to the UN High Commissioner for Human Rights (UNHCHR), national human
rights institutions around the world are now important institutional actors, “centralized in the
national human rights protection system”. Although national human rights institutions differ
from each other in many respects, the main purpose of these institutional structures is to focus
on the protection and promotion of human rights. Within the framework of this purpose, the
promotional duties of the relevant institutional structures; appear as human rights education
and training. On the other hand, the duties of protection and promotion are; examining
human rights complaints, consulting with governmental and non-governmental actors,
and developing cooperation with international actors. Within the scope of all these fields of
duty, national human rights institutions appear as an integral part of the implementation of
international human rights norms (Wolman, 2013: 445).

National human rights institutions ensure compliance of the public authority with national
and international human rights standards.5 Although they are focused on development,
increasingly engaged in activities in the private sector in order to protect and promote human
rights. However, there is no systematic structure regarding good practice examples of national
human rights institutions operating in the field of business and human rights. This makes it
difficult to draw generalizable conclusions about the effectiveness assessment of relevant
institutional structures. The institutional powers of national human rights institutions began
to expand in the 2010s to include violations of rights by institutional actors in the private sector.
In fact, these institutional structures play an active role in the creation of new international
norms in the field of business and human rights, similar to the “Guiding Principles on Business
and Human Rights” (UNGP) approved by the UN Human Rights Council. National human
rights institutions are widely recognized as important actors in improving the implementation
of UNGPs and holding institutional actors in the private sector accountable for human rights
violations (Wolfsteller, 2021: 4.3).

As a result, the prevalence of national human rights institutions opens a new page in the
historical path of modern human rights. These institutional structures appear as an important
actor in ensuring compliance with human rights norms by applying innovative strategies,
including creating national human rights institutions, strengthening the institutional structure
of states, and thus ensuring their adaptation to their own political systems. (Cardenas, 2001: 55).

4 See., Chapter 7 for numerical data on national human rights institutions.

5 State compliance is defined as any act of the state that complies with international norms. International norms are socially shared standards
of behavior in the form of rules, laws, procedures, or informal expectations. When state actions comply with international norms, there is
compliance; When state actions deviate from international norms, nonconformity arises. See also., Wolfsteller, René, “The Unrealized Potential of
National Human Rights Institutions in Business and Human Rights Regulation: Conditions for Effective Engagement and Proposal for Reform”,
Springer, 2021, p. 3.

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2. LOCALIZATION OF HUMAN RIGHTS AND NATIONAL HUMAN

RIGHTS INSTITUTIONS
After the adoption of the Universal Declaration of Human Rights (UDHR, 1948), the international
community has tended to use the human rights discourse more and more. According to the UN
High Commissioner for Human Rights; the international human rights law acquis consists of at
least eight fundamental conventions and numerous protocols. Numerous intergovernmental,
national, and non-governmental organizations have committed to human rights as a policy
objective and have envisaged activities to protect and promote human rights. At the turn of
the millennium, heads of state and government pledged to “spare no effort” to respect all
internationally recognized human rights and “to strive for the full protection and promotion
of civil, political, economic, social and cultural rights in all countries” (De Feyter, 2011: 11).

Undoubtedly, these efforts to protect and develop human rights must be carried out on a
national scale. All allegations of violations of human rights arise from local practices. As
Costas Douzinas stated; “Both the protection and violation of human rights take place locally:
at home, on the street, at school, at work and in prison, in government offices and in the local
media.” ( Douzinas, 2007: 14). Although there is a universal and abstract discourse on human
rights, rights claims are based on events that occur in a specific geographical location. Local
elements of claims of infringement are recognized in regional and global human rights cases
on the basis of pre-exhaustion of domestic remedies. Thus, access to international sanctions
mechanisms is accepted as an “ultima ratio”. (De Feyter, 2011: 14).

The idea of “localizing human rights” conceptualized by Koen De Feyter, Stephan Parmentier,
Christiane Timmerman, and George Ulrich is based on the idea that human rights law should
be developed according to human rights needs defined by local groups. De Feyter argues
that national adjustments and “local infusion” of abstract international human rights norms
will further deepen and strengthen the local effects of global human rights law and practice.
(De Feyter, 2011: 36). The phenomenon of localization is considered as a starting point for
the dynamic interpretation of human rights norms and the development of human rights
practices, especially in parallel with the transformations due to economic globalization and
social needs. (De Feyter, 2006: 5).

Internationally structured protection mechanisms have brought human rights to be an

international regulatory regime. So that the norms drawn up within the scope of international
law are then accepted on a national scale and included in the national legal system. In this
context, while diversifying mechanisms and processes are designed, new institutional structures
are created both at the national and international levels to implement the relevant norms
(Galligan and Sandler, 2004: 26). Unlike international institutions, the local nature of national
human rights institutions makes it possible for relevant institutional structures to directly access
the socio-political environment in which rights violations take place (Welch et al., 2021: 1011).

The institutionalization of human rights on a national and international scale has gained
importance within the framework of rights-based approaches to development and

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governance. It is seen that the emergence of the institutionalization of human rights as an

effective implementation device in order to ensure the respect, protection, and promotion
of human rights at the national level plays an important role in monitoring the violations
at the local level. The basic idea behind this institutional structure is to ensure the effective
implementation of the normative field for human rights at the local level. Therefore, it is
important in terms of capacity building at the local level and implementation of relevant
norms through the establishment of autonomous national human rights institutions (Kumar,
2006: 773). Put another way, the purpose of establishing these institutional structures is to
integrate international human rights standards into local laws and administrative practices
and even education systems on a national scale and to make these standards a part of the
national legal system. (Cardenas, 2014: 3).

At this point, it is necessary to evaluate the national human rights institutions, which act as
a bridge at the point of harmony between the abstract norms of international human rights
and local factual reality, and are structured to protect and promote local human rights, within
the framework of the localization phenomenon (Yefet, 2021: 2). Since the international system
is still largely a nation-state system, serious and sustained efforts to increase respect for
human rights at the international level can only be successful if they involve governments
or state institutions (Shawki, 2009: 53). Although the inclusion of national human rights
institutions in human rights protection mechanisms is encouraged by international actors,
these institutional structures have shown a development dynamic at the national level
(Carver, 2010: 10).

National human rights institutions are characterized as a ‘bridge’ between international

norms and local practices. These institutional structures are also designed to encourage the
compliance of states with their international legal obligations. Such institutional structures
are mandated to promote and protect international human rights norms at the national level.
Even if a national human rights institution does not always ensure state compliance, it has the
potential to change the human rights profile at the national level by carrying out ‘independent
activism, cooperation with public authorities or awareness-raising activities’. (Cardenas, 2012:
29). So that these new human rights actors have positive effects on changing the profile of
human rights on a national scale (Cardenas, 2001: 14). E.g; There are studies showing that
national human rights institutions in Latin America make significant contributions to the
protection and promotion of human rights (Pegram and Rodriguez, 2018: 168).

It should be noted that national human rights institutions differ from other local institutions
in that they are established by states themselves and are explicitly mandated to protect and
promote human rights. Even before the 1978 ‘Seminar on National and Local Institutions for
the Promotion and Protection of Human Rights’, when states began to discuss the formal
creation of national human rights institutions, some countries appear to have local institutions
to protect human rights. The ombudsman, the earliest example of such structures, handled
individual complaints about the misadministration of public authorities. Another example of
the leading institution is government commissions called British Research Commissions and

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French Advisory Commissions. These institutional structures seem to focus on negotiation

and recommendations on human rights rather than receiving individual complaints, unlike
the ombudsman offices. Even the United States, which has taken an ambivalent attitude
towards national human rights institutions, established interracial commissions in several
states after the Second World War. Many of these local institutional structures focus more
broadly on civil rights (Welch et al., 2021: 1012).

As a result, national human rights institutions, which are a protection mechanism established
by institutionalization on a national scale in order to protect and promote human rights, have
the potential to identify local human rights needs and provide improvements in problematic
areas. So that most of these institutional structures focus on human rights issues at the
local scale. Therefore, it is critical to establish such protection mechanisms for human rights
at the local level. Providing direct access to the social and political environment in which
human rights violations take place puts these institutional structures in a privileged position.
In addition, these institutional structures, which function to integrate international norms
into the national human rights system, harmonize universal human rights standards with
national human rights standards.

These institutional structures dynamically interpret and apply international human rights
norms within their own legal order in the local socio-political context. The mentioned
implementation area is mostly realized within the framework of discrimination and equality
law. This interpretive practice emerges as a local exposition of the international human
rights acquis. Thus, national human rights institutions produce a field of jurisprudence
based on local legal reality. In a sense, this situation enables a ‘fusion of horizons’ (Gadamer,
2004) between locality and globality on the basis of rights, freedoms, and equality. In other
words, this situation creates a dynamic and creative tension that builds a ‘bridge’ between
glocalization and globalization.

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3. INSTITUTIONAL STRUCTURE OF NATIONAL HUMAN RIGHTS

MECHANISMS
National human rights institutions are defined as independent and autonomous local
structures established by public authorities and are liable to the protection and promotion
of human rights. Regardless of their institutional structure and organization, national human
rights institutions aim to collect information/data on the human rights practices of states
and transfer them to the public (Welch et al., 2021: 1013). However, in the 1980s, human rights
activists searched for the need to set some standards for institutional structures that could
be considered as national human rights institutions6 (Welch et al., 2021: 1012). Thusly, it can
be stated that this search at the level of activism has met with the Paris Principles on an
international scale.

The Paris Principles stipulate that the mandate of national human rights institutions regarding
the protection and promotion of human rights should be “as broad as possible”. Although the
Paris Principles do not make any predictions about the number of human rights protection
mechanisms on a national scale, it is stated that the Global Alliance of National Human Rights
Institutions (GANHRI), which accredits national human rights institutions, prefers a single
institutional structure to be accredited. So that GANHRI states that only one national human
rights institution from each state can be accredited (Carver, 2011: 4). This accreditation policy is
based on predictions regarding the prevention of multiple representations of federal states that
may have general human rights institutions at the sub-national level and the representation of
a single national representative in GANHRI’s guidelines (Carver et al., 2010: 7).

Similarly, the European Union (EU) Equal Treatment Directives (EU Equal Treatment Directives ),
sets out a ‘set of standards’ for the structuring of all equality bodies. The said directives set out
the framework of structural minimum standards for equality bodies (EQUINET, 2012: 7). In this
context, there are two approaches to the protection of equality in Europe. In some EU member
states, there are ‘specialized equality bodies’7 in line with the obligations arising from the EU
equality directives. Institutional structures of this type, which have different mandates in different
countries at the EU level, focus only on equality and non-discrimination issues. Other member
states have ‘national human rights institutions’, mostly structured within the framework of the
Paris Principles. These institutional structures, on the other hand, focus on equality issues as part
of their overall institutional mandate for human rights (Goldschmidt, 2012: 32).

6. In the broadest sense, national human rights institutions may include the following bodies:
* Ombudsman offices
* National human rights commissions
* Mixed institutions combining ombudsman and national commission elements
* Special human rights commissions dedicated to protecting the rights of vulnerable groups such as children
* Parliamentary bodies dedicated to human rights issues
* National bodies dedicated to the application of international humanitarian law.
However, there is no consensus on the classification of national human rights institutions in this way. For example, the UN classifies national human
rights institutions almost exclusively in terms of national ombudsman and commissions, while the World Bank considers parliamentary bodies as
national human rights institutions. See also., Cardenas, Sonia, “Adaptive States: The Proliferation of National Human Rights Institutions,” 2001, p. 11.

7 For detailed information on equality bodies, see., Karan, Ulaş, Principle of Equality and Non-Discrimination in the Light of International Human
Rights Law and Constitutional Law, Twelve Plates Publishing, 1. Edition, Istanbul 2017, p. 455-521.

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Many public institutions, especially legislatures, courts, law enforcement agencies, data
protection institutions, and ombudsman work to ensure equality and protect respect for
human rights in EU member states. However, the institutions that stand out here are those
of “equality and human rights” (Crowther and O’Cinneide, 2013: 5). Equality bodies in the EU
Member States, are structured to comply with the EU Equal Treatment Directives. Directives
2004/113/EC (European Commission, 2004) and 2006/54/EC (European Commission, 2006)
published by the European Commission describe the potential of equality bodies as follows:

* Improving the situation of individuals exposed to discrimination,

* Improving the quality of policy and legislation,

* Strengthening the partnership on discrimination and equality,

* Establishing a culture of harmony and rights in terms of equality and prevention of

discrimination (EQUINET, 2012: 7).

There is a tendency in Europe to integrate equality bodies dealing with certain grounds of
discrimination (especially gender, race, and disability) within a single equality body to include
all grounds of discrimination and to include equality bodies in human rights institutions
(Goldschmidt, 2012: 32). In this context, discussions on the gradual creation of new institutional
structures and their unification, especially on a European scale, have started to become
widespread. In these discussions, it is stated that the impetus to unite equality bodies and
human rights institutions under a single institutional roof is generally related to budgetary
issues. Similarly, it is argued that as a whole, human rights will be more effectively protected
by a single institutional structure (Carver, 2011: 2).

There are some concerns among equality organizations, about the inclusion of the human
rights field as a whole within the mandate of equality bodies. According to these organizations;
protecting human rights and preventing discrimination differ in many respects. In this
framework, it is suggested that a human rights commission should be formed separately
from the equality commission. However, the tendency to include the functions of equality
bodies in the functions of human rights institutions gained weight in a period (Choudhury,
2006: 321). In fact, some similarities can be mentioned in terms of the “activity, function, legal
powers and objectives” of such institutional structures. However, there is a widespread view
that equality bodies and human rights institutions play divergent roles in some European
countries (Crowther and O’Cinneide, 2013: 1).

According to these views; there are significant differences in the powers and functions of
institutional structures classified as national equality and national human rights institutions
across the EU. To illustrate, while some equality bodies focus on one of the grounds of
discrimination (such as race, gender, or disability), national human rights institutions may
have institutional mandates and activities to address more than one basis of discrimination.
However, it is seen that national equality bodies and national human rights institutions
have many intersecting structural/institutional characteristics. It can be stated that both

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institutional structures have similar aims. So that equality bodies help establishing equality
and prevent discrimination; national human rights institutions also have the task of promoting
respect for fundamental rights by focusing on the broader field of human rights. In addition,
both institutional structures should have an independent role in developing a national ‘culture
of respect’ for human dignity and equality of status. In particular, both institutional structures
have the task of monitoring and reporting the issues within their own fields of duty (Crowther
and O’Cinneide, 2013: 20).

However, some EU member states have established a single institutional model designed to
fulfill the functions of both equality bodies and national human rights institutions. Such an
integration process has taken place in many EU member states, especially Belgium, France,
Ireland, the Netherlands, and the UK. (Crowther and O’Cinneide, 2013: 1). Before establishing
its new institutional structure, it is seen that there were three separate autonomous anti-
discrimination commissions in England. With the Equality Act 2006, adopted in the UK in
2006, a single ‘Equality and Human Rights Commission’ has been established instead of three
expert commissions that carry out activities against discrimination on the basis of ‘gender,
racial or ethnic origin, and disability’. (Equality and Human Rights Commission, “Our role as
a National Human Rights Institution (NHRI),” n.d). However, pre-existing anti-discrimination
legislation was not harmonized until the Equality Act 2010, which later brought together
more than 116 separate legislation into a single law. The new Equality Act (2010) included
‘sexual orientation, age, and religion or belief’ on the grounds of discrimination. In addition,
the institutional structure established by the Equality Act of 2006 has been given the broad
human rights functions envisaged in the Human Rights Act 1998 (Carver, 2011: 6).

It is stated that the English Equality Law was developed in response to political demands
for the protection of persons exposed to discrimination. With the first equality legislation
on racial and gender discrimination in Great Britain, the Racial Equality Commission and
Equal Opportunity Commission, two separate institutional structures were established. The
two equality bodies established in the late 1970s operated in a political environment that
was opposed to the implementation of the provisions of national legislation developed to
combat discrimination by regulatory agencies (Choudhury, 2006: 311).

On the other hand, in Scotland,8 the institutional distinction between equality and human
rights still persists. However, the Scottish office of the British Equality and Human Rights
Commission operates as the ‘Scotland Equality and Human Rights Commission’ (Equality
and Human Rights Commission, “Home” n.d.). For Scotland, this division of powers has led to
the overlapping of institutional powers and thus to uncertainty regarding the determination
of the competent authority. On the other hand, Ireland has evolved into an integrated
institutional structure that includes equality and human rights under the name of the Irish
Human Rights and Equality Commission9 (Spencer and Harvey, 2014: 97).

8 The Scottish Human Rights Commission is an independent public body accountable to the people of Scotland through the Scottish Parliament.
See., https://www.scottishhumanrights.com/about/, Accessed on 01.01.2022.

9 It is an independent public body accountable to the Oireachtas created under the Irish Human Rights and Equality Commission Act 2014 (IHREC
Act 2014). The IHREC Act incorporates and further develops the functions of the former Irish Human Rights Commission and the former Equality

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Similarly10, in 2008 the Swedish Parliament passed the Discrimination Act. The law in
question established a single ‘Equality Ombudsman’ to replace four specialized ombudsman
institutions. Through this law, ‘Equal Opportunity Ombudsman, Ethnic Discrimination
Ombudsman, Disability Ombudsman, and Sexual Orientation Ombudsman’ were abolished.
The new institutional structure, structured as the Equality Ombudsman, was created within
the scope of a new Discrimination Law that harmonizes the basic safeguards against
discrimination between different groups (Carver, 2011: 6).

Hungary provides an interesting example of separate but linked specialized ombudsman

institutions. Hungary has four specialized ombudsman institutions: the Parliamentary
Commissioner for Civil Rights, the Parliamentary Commissioner for the Rights of National and
Ethnic Minorities, the Parliamentary Commissioner for Data Protection, and the Parliamentary
Commissioner for Future Generations”.11 The Ombudsman Act 2011 (Act CXI of 2011) provides
a general legal framework for all ombudsman institutions. These specialized institutions,
which were managed with a common budget until 2012, shared a common service building
and jointly housed some specialist staff. In fact, in some cases, the relevant institutions
handled the complaints together, published joint reports, and made joint applications to the
Constitutional Court (Carver, 2011: 6). These institutional structures, which were merged in
2012, were structured as the Commissioner for Fundamental Rights. As of 2021, the Equal
Treatment Authority and the Commissioner for Fundamental Rights were merged and the
Commissioner for Fundamental Rights took over all of its responsibilities and functions,
including the authorities of this institution (Office of the Commissioner for Fundamental
Rights of Hungary, n.d.).

Lithuania provides an interesting example where there are three autonomous ombudsman
structures operating almost completely independently from each other. Parliament (Seimas)
Ombudsman emerges as a multi-member institutional structure with two functions. There
is also the Office of the Equal Opportunities Ombudsperson and the Children’s Rights
Ombudsman. The budgets and service buildings of these institutional structures, which
are created by a separate legal regulation and have different powers from each other, are
independent of each other (Carver, 2011: 7).

The Australian practice is the longest-lasting example of merging disjointed autonomous

institutional structures. There appear to be separate institutional structures in Australia that
dealt with complaints on grounds of human rights, gender, and employment discrimination
prior to 1986. These institutional structures have been integrated under the name of “Australian
Human Rights and Equal Opportunity Commission”. However, the institutional structure of

Body. For detailed information, see., https://www.ihrec.ie/about/who-we-are/, Accessed on 01.01.2022.

10 The Swedish Equality Ombudsman was established on 1 January 2009 by merging four pre-existing anti-discrimination ombudsman into
a new body. See.,https://ennhri.org/our-members/sweden/; https://www.do.se/sprak-och-lattlast/om-diskriminering-lattlast, Accessed on
01.01.2022.

11 It is a national human rights institution with an accredited A status since 2014 and has become a whistleblower’s protection body. For detailed
information, see., https://equineteurope.org/author/hungary_commissioner/, Accessed on 01.01.2022.

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the Commission was restructured as the “Australian Human Rights Commission” in 2008
(Carver, 2011: 22).

Danish Institute for Human Rights was first institutionalized as the “Denmark Human Rights
Center” in 1987 by a decision of the Parliament. While the Danish Center for Human Rights
functions as an independent and autonomous national human rights institution, a separate
“Board of Ethnic Equality” has been established. At the same time, the Center was structured
as a ‘national equality body’ for the purposes of Directive 2000/78/EC (European Commission,
2000) and assumed the functions of the Ethnic Equality Board. This integration process took
place in a turbulent national political environment. So that the right-wing and anti-immigrant
Danish People’s Party, which supports the minority government in the Parliament, made
a political attempt to close the relevant Center. However, the initiative in question failed,
and then the Danish Center for Human Rights was structured as a national equality body in
accordance with the provisions of Directive 2006/54/EC (Crowther and O’Cinneide, 2013: 22).

Thus, the Danish Institute of Human Rights has undertaken the task of both equality and
the fulfillment of human rights functions. However, it is stated that the Institute, which was
established as one of the leading national human rights institutions in Europe, faced some
difficulties in terms of integrating the principle of equality into the institutional structure. It
is stated that integrating equality and the function of protecting human rights in a single
institutional structure causes the Institute to reduce the effectiveness of equality studies,
especially in terms of ‘budget expenditures, publication of expert reports and assistance to
individual victims of discrimination’. On the other hand, it is stated that the Institute’s having
an institutional structure with both equality and human rights powers provides a series of
gains. In particular, it is emphasized that the integration of human rights with the perspective
of equality enables the rights to become more concrete. At the same time, it is stated that
the integration of the human rights perspective into the institutional structure enables the
principle of equality to be established more strongly (Crowther and O’Cinneide, 2013: 23).

Human Rights and Equality Institution of Türkiye (HREIT), structured as Türkiye’s national
human rights institution, constitutes a unique typological example of integrated institutional
structuring. HREIT was structured as an ‘equality and human rights’ institution with the
Human Rights and Equality Institution of Turkey Law No. 6701 dated April 20, 2016, to replace
the Human Rights Institution of Türkiye (HRIT), which was established with Law No. 6332 in
2012 (No. 6701). Law, 2016). In addition to being equality and human rights institution, HREIT
also exercises its legal powers as an institution that has the task of ‘national prevention
mechanism’.12 Thus, HREIT has an integrated institutional structure that includes both the
equality and human rights institution and the national prevention mechanism.

12 The Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) was
signed by our country in 2005. With the decision of the Council of Ministers numbered 5711 taken in 2013, the task of ‘national prevention
mechanism’ was given to the Human Rights Institution of Türkiye. With the Human Rights and Equality Institution of Turkey Law No. 6701
enacted in 2016, the task of national prevention mechanism was directly assigned to HREIT by law. See., https://www.tihek.gov.tr/en/national-
prevention-mechanism/

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As can be seen in the examples of the countries we have cited, many countries have initiated
the integration process in their institutional structures and realized structural transformations.
All these restorative developments regarding institutional structuring have brought along
some discussions. At this point, Richard Carver argues that the overall model of a single
national human rights institution is likely to be more effective, provided it is designed in
such a way that it does not neglect the interests of certain vulnerable groups. So, according
to Carver; there are many advantages of a single corporate structure. Such an institutional
structure will engage in anti-discrimination activities within a more integrated jurisdiction
and inclusive legal framework for all vulnerable groups. A single-institution structure has the
potential to make it easier to identify the right institution to apply and to be more physically
accessible. Such institutional structures will exercise greater authority over other stakeholders
and create a clear and understandable public profile on human rights issues (Carver, 2011: 3).

In addition, it is stated that a single institutional structure will provide a more qualified public
service to the applicants and will show a more equal approach to all vulnerable groups. It is
stated that the public culture of human rights and the public legitimacy of the institution are
important factors in increasing the social weight and effectiveness of the national human
rights institution. It is emphasized that a single institutional structure has the potential to
be more effective than multiple institutional structures, both in raising awareness about the
institution and in the protection and promotion of human rights (Carver, 2011: 15, 20).

So that those who advocate the creation of a single national human rights institution; argue
that an institution with a single charter will apply a more consistent standard of the rights
of all groups and individuals. It is emphasized that this situation is especially valid when the
institutional authority focuses on the fight against discrimination. It is stated that states that
gradually add new vulnerable groups to their anti-discrimination laws are likely to exhibit
some inconsistencies in the equality-based standards applied to different groups. In addition,
it is argued that a single institutional structure will be more cost-effective than creating more
than one institution in terms of budget. As a matter of fact, in some cases, governments
pursue a policy of bringing more than one institution into an integrated structure under a
single institutional roof in order to reduce costs. For example, the motivation of the Croatian
government to ‘rationalize’ the human rights protection system stems from the desire to save
financially and the expectation that this can be achieved by combining existing institutions.
States that prefer a single institutional structure make evaluations within the framework
of cost-benefit analysis. For example, both Moldova and Georgia did not create a separate
children’s ombudsman but instead incorporated these functions into the existing national
human rights institution (Carver, 2011: 11, 15).

Advocates of the multiple institutionalization model often argue that a single institutional
structure risks less focussing on certain vulnerable groups such as ‘women, children and ethnic
minorities’. Undoubtedly, this points to a situation that needs to be taken into account. On
the other hand, it is pointed out that in an administrative system dominated by a multi-
institutional model, there may be a greater risk of ignoring certain vulnerable groups that

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do not have their own human rights institutions for specific human rights. In cases where
multiple institutional structures exist and a government tries to combine them, it is argued
that the main purpose is usually financial savings (Carver, 2011: 17, 4).

There are strong arguments regarding the positive and negative aspects of multiple
institutional structures on the basis of functionality. Undoubtedly, some measures are needed
to facilitate access to the human rights protection mechanism for certain vulnerable groups
such as children and persons with disabilities. However, in order not to erode the ‘indivisibility
principle’, which is the basic principle of human rights, a ‘holistic’ approach to human rights
problems should be developed. Therefore, it is stated that the preferred solution is not to
integrate these institutions, but to create a framework for the development of a much more
comprehensive functional cooperation. This proposed cooperation framework includes ‘the
use of a common service building, the creation of shared databases, joint reporting activities
and joint public awareness campaigns’ (Carver et al., 2010: 6).

Integrating the functions of equality and protection of human rights into a single institutional
structure presents a number of challenges. Many of these difficulties arise from the differences
between the “roles, functions, mandates and activities” of equality bodies and human rights
institutions. It is stated that integrated organizations may encounter some difficulties
in integrating their differing ways of functioning into an effective and consistent working
agenda. In addition, it is stated that integrated bodies that integrate equality and human
rights functions may encounter some difficulties in the strategic management of the use
of institutional authority and resources. Therefore, such integrated institutional structures
need to create an effective and coherent mode of operation that reflects the role, purpose,
mandate, and strategic priorities of the organization (Crowther and O’Cinneide, 2013: 38, 41).

Consequently, the principle of equality and the idea of human rights share a common
conceptual reference area. For this reason, institutionalizations structured on each basis point
to the necessity of carrying out activities that develop respect for human dignity. However,
the institutional functions performed by equality bodies differ in some important respects
from the human rights functions performed by national human rights institutions. These
differences point to the existence of a division in the legal, political and regulatory discourses
across Europe between the fields of equality and human rights. Therefore, it is necessary to
focus on the problems that can be created by integrating the functions of equality bodies
and human rights institutions in a single institutional structure (Crowther and O’Cinneide,
2013: 76, 58).

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4. IMPACT ANALYSIS OF NATIONAL HUMAN RIGHTS INSTITUTIONS

National human rights institutions, defined in General Comment No. 10 of the UN Committee
on Economic, Social and Cultural Rights (CESCR), as structures established “in states with
very different legal cultures and regardless of their economic status” (CESCR, 1998: 1), are
structured as local institutional mechanisms tasked with protecting and promoting human
rights. These institutional structures carry out activities within the framework of their
institutional mandate, primarily handling complaints, publishing recommendations, and
reporting activities. However, some human rights mechanisms have statutory powers to
impose fines and prison sentences, as well as punishments13 for human rights violations.
At this point, the Paris Principles, as the normative framework that determines international
standards, do not contain any explicit provisions regarding the penal authority of national
human rights institutions (Welch, 2019: 2).

On the other hand, it is stated that some national human rights institutions with an older
institutional history do not have specific authority in terms of the implementation of second-
generation rights. It is stated that these institutional structures consider the protection
and promotion of economic, social, and cultural rights14 only as an extension of the non-
discrimination principle. However, in order for national human rights institutions to function
as an effective protection mechanism, they need to adopt an ‘integrative’ approach in terms
of practices for the protection of human rights. So much so that General Comment No. 10
of the UN Committee on Economic, Social and Cultural Rights (CESCR) states that second-
generation rights should be included in the jurisdiction of national institutions (Carver, 2010:
24). In fact, the breadth and integrity of the scope of authority and activity are important in
the evaluations of the effectiveness of these institutional structures.

The quantitative increase of national human rights institutions on a global scale does not
mean that these institutions function as ‘an effective protection mechanism’. It is claimed
that some countries have created such institutional structures only to eliminate international
criticisms. It is stated that human rights institutions, which are structured to eliminate these
criticisms and cannot receive the necessary government support in national legal systems,
can not effectively fulfill their functions of protecting and promoting human rights. This is
particularly the case for countries with a poor track record of human rights practices. As
a matter of fact, academic studies indicate that authoritarian regimes in Asia, Africa, and
the Middle East have established national human rights institutions in order to eliminate
international criticism. However, it is also stated that establishing a national human rights

13 For example, in the relevant article of HREIT Law No. 6701 (art. 25) The Board has the authority to impose administrative fines in the decisions
of the Board regarding the violation of the prohibition of discrimination.
“In the event of a violation of the prohibition of discrimination, taking into account the severity of the impact and consequences of this violation,
the economic situation of the perpetrator and the aggravating effect of multiple discrimination, the public institutions and organizations
responsible for the violation, professional organizations in the nature of public institutions, real persons and private legal legal entities from one
thousand Turkish lira to fifteen thousand Administrative fine up to Turkish lira is applied.”

14 For a detailed analysis of the protection and development of social rights, see also., Kılıç, Muharrem, Social Rights in the Time of Pandemic:
Socio-Legal Dynamics of Social Rights, Seçkin Publishing, 1. Edition, Ankara 2021.

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institution as a low-cost strategy in order to eliminate criticisms leads to weak institutional

structures that are devoid of improving the actual implementation of human rights (Yefet,
2021: 1).

In this context, Sonia Cardenas argues that national human rights institutions emerged as
a result of “state adaptation” in order to avoid the criticism of the international community.
In other words, when structuring national human rights institutions, states observe
compliance with a set of international standards that constitute the set of requirements
for these institutional structures. Cardenas states that these institutional structures have a
“paradoxical effect”. This paradoxical effect is explained as; “many national human rights
institutions are quite incapable of minimizing human rights violations in the social arena, while
creating an unprecedented demand for such protection” (Renshaw et al., 2011: 166). According
to Cardenas; the quantitative rarity or abundance of human rights violations occurring at
the national level should not be the primary cornerstone for assessing the effectiveness of
a national institution.” According to her; in most cases, it is very difficult to determine the
causal relationships between the levels of human rights violations occurring at the national
level” (Cardenas, 2012: 51).

In order for national human rights institutions to be evaluated as an effective protection

mechanism, it is not sufficient to consider only the number of violations of human rights at
the national level, but also the activities of these institutional structures for the protection and
promotion of human rights should be evaluated. As a matter of fact, there are some academic
studies revealing that the activities of these institutional structures for the protection and
promotion of human rights have a positive effect. To illustrate, studies conducted at the
scale of Latin American countries reveal that national human rights institutions have made
significant contributions to the protection and development of human rights in Latin America
at different times (Pegram and Rodriguez, 2018: 168).

However, illusions about the harmonization of national human rights mechanisms with
international standards (illusions of compliance) their actual performance needs to be
carefully scrutinized to avoid the risk of displacing indicators of positive change (Pegram and
Rodriguez, 2018: 168). Admittedly, the sole criteria for evaluating the actual performance of
these institutional structures should not be limited to compliance with a set of international
standards (such as compliance with the Paris Principles and EU Directives). As a matter of fact,
considering compliance with international standards in a singular sense as a performance
evaluation criteria will reveal a misleading picture regarding its institutional effectiveness.

In the literature, discussions on the effectiveness of these institutional structures take place
within the framework of the structural construction, functions, and institutional legitimacy of
national human rights institutions. However, in all these discussions, the institutionalization
of human rights within the framework of these institutional structures is not considered as
the institutionalization of human rights culture and values in the social sphere (Kumar, 2006:
767).

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Although there are criticisms of the effectiveness of human rights institutions, Erika Moreno’s
work titled “The Contributions of the Ombudsman to Human Rights in Latin America, 1982–
2011” covering 16 human rights protection mechanisms in Latin America finds “significant
improvements in access to education, health, and housing rights”. The study reveals that
these are “statistically significant and positive effects”. For instance, it is seen that personal
integrity rights are positively affected by the structuring of human rights protection
mechanisms. It is emphasized that the existence of a national human rights protection
mechanism has statistically significant and positive effects on access to education, health,
and housing rights (Moreno, 2015: 99).

As stated in the study titled “The Power of the Pen: Human Rights Ombudsman and Personal
Integrity Violations in Latin America, 1982-2006” published by Erika Moreno and Richard
Witmer, it is noted that the activities of human rights protection mechanisms enabled
a dramatic reduction trend in violations of personal integrity rights in Latin America from
1982 to 2011. It is stated that especially the differences in institutional structures affect the
protection and promotion of human rights. This situation is in line with the studies that state
that the written commitments in the contractual texts emerging within the framework of
international human rights law will have a positive impact by shaping the regulations on
human rights on a global scale (Moreno and Witmer, 2016: 161).

Based on his institutional impact analysis research in Peru, Tom Pegram has determined that
national human rights institutions play a decisive role as “an important component of an
inclusive democratic political regime” by becoming widespread not only in liberal democratic
regimes but also in diversified political systems (Pegram, 2010: 729). Another study, conducted
in the context of impact analysis, found that ‘national studies’, carried out in a comprehensive
and change-oriented manner by national human rights institutions within the framework of
a holistic methodology, are one of the most effective ways in terms of enabling the mandate
of these institutional structures to make changes in human rights regulations on a local scale.
So much so that, as a result of such national research conducted by the Australian Human
Rights Commission, 85 federal laws have been amended by harmonizing them with human
rights (Brodie, 2015: 1251).

Another issue that needs to be evaluated regarding the effectiveness of national human
rights institutions is the activities carried out in cooperation with the judicial authorities.
As a matter of fact, one of the most important fields of activity of national human rights
institutions, which are institutional actors in the prevention of human rights violations,
is cooperation with the courts. There are important examples of this type of activity on a
global scale. The Inter-American Court of Human Rights (IACtHR) seems to have taken the
necessary steps to ensure cooperation with national human rights institutions. In this context,
the Court has been signing cooperation protocols since 2010 with the Federation of Ibero
American Ombudsman (Federacio´n Iberoamericana de Ombudsman, FIO) to encourage the
participation of national human rights institutions as “amicus curiae”. With these protocols,
it is possible for national human rights institutions to participate in hearings independently
of the state (Solano Carboni, 2020: 3-4).

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The Court also seeks support from national human rights institutions to monitor the national
implementation of its judicial decisions. In line with this request of the Court, in 2015, the
National Human Rights Institution of Costa Rica (Defensorı´a de Los Habitantes, DHR)
initiated the Court’s audit proceedings after the Costa Rican Ministry of Health officials did
not comply with a judicial decision requiring in vitro fertilization service to be guaranteed.
Costa Rica’s National Human Rights Institution took part in the proceedings as “amicus
curiae” and expressed the need to ensure access to fertility procedures in the public health
system. In addition, as the institution responsible for the promotion of human rights, it has
also been involved in the implementation of the education and training programs decided by
the Court (Solano Carboni, 2020: 3-4).

In some cases, the Inter-American Court of Human Rights has appointed the staff or former
officials of the national human rights institution as expert witnesses during the proceedings.
El Salvador’s National Institute of Human Rights, Inter-American Court of Human Rights15
previously played a particularly active role in this area. For example, in the Hermanas Serrano
Cruz case in 2014, the testimony of David Morales Cruz, head of the National Human Rights
Institution of El Salvador, made it possible to identify a party responsible for the enforced
disappearance of children during the country’s internal conflict. The judicial decision in
question was made on the basis of “the testimony of the national human rights institution”
(Pegram and Rodriguez, 2018: 178).

Within the context of the examples mentioned above, it is seen that national human rights
institutions carry out their functions of protecting and promoting human rights through
various activities within the scope of their duties and authorities. However, when evaluating
the effectiveness of these institutional structures, it should be stated that they can not solve
all kinds of problems in the social field. A realist approach is required in measuring institutional
success within the scope of the duties and authorities of such institutional structures. More
realistic analyzes will be achieved when the aforementioned approach is followed from
the perspective of the political, economic, and social situation conditions of the countries.
However, it is still possible to determine the steps to be taken in order for national human
rights institutions to function as an effective protection mechanism within the framework of
four main headings (Murray, 2007: 191).

First, these institutional structures need to assume a ‘semi-official role’ and engage in
activities by establishing closer relations with public authorities. Secondly, national human
rights institutions should have an ‘educational role’ in the promotion of human rights and
in this sense function as a ‘standard-bearer’ for categories of rights. In its educational
role, national human rights institutions –within the context of their quasi-jurisdictional
competence- should make the protection and promotion of human rights a primary focus.
In this context, it should determine the international and local standards necessary for the

15 In Nigeria, the National Human Rights Commission (Amendment) Act established the system of “recognition and enforcement of decisions and
recommendations of the Commission as judgments of the Supreme Court”. See., Welch, Ryan M., DeMeritt, Jacqueline HR, R. Conrad, Courtenay,
“Conceptualizing and Measuring Institutional Variation in National Human Rights Institutions (NHRIs)”, p. 1019.

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mission of protecting and promoting human rights and undertake the task of implementing
them in the national legal system. Third, a national human rights institution should have
greater political influence than Non-Governmental Organizations (NGOs) and function as
a ‘bridge’ between NGOs and public authorities. Finally, the most important role of these
institutional structures should be to ensure the harmonization of national and international
standards by encouraging the implementation of international human rights standards at
the local level (Murray, 2007: 192, 193).

However, all these evaluations should be made by taking into account the fact that national
human rights institutions cannot have unlimited duties and authorities, finance, and human
resources. This shortcoming reveals the need for a clear strategy for the most effective use of
the financial resources, duties, and powers of national human rights institutions. As a matter
of fact, the diversity and breadth of the authority and duty areas of institutional structures
make it difficult to determine the corporate strategy. For this reason, the strategy of such
institutional structures should be formed within the framework of the specification to a
specific area, defining certain human rights goals and an integrated approach (Murray, 2007:
193).

As a result, when evaluating the effectiveness of these institutional structures, it should be

taken into account that human rights protection mechanisms are not the main determinants
of the protection and development of human rights, nor are they the main protector
and implementer of rights. In fact, the main protector of rights is the state itself and the
relevant public authority. National human rights institutions fulfill the duty of monitoring
the performance of the activities of the state and/or public authorities to protect and
promote human rights. It also tries to apply a kind of soft power to ensure compliance with
human rights standards as a policy issue. The rationalization of human rights protection
mechanisms should also be understood not as an organizational problem area, but as a
means of consolidating this soft power through the increasing social and political power of
human rights institutions in national legal systems (Carver et al., 2010: 5)

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5. NATIONAL HUMAN RIGHTS INSTITUTIONS IN THEORY AND

PRACTICE: A CRITICAL LOOK
The approaches of states towards the institutionalization of human rights differ. So that
while some states institutionalize human rights in their foreign policies, others do not tend to
regulate their national human rights practices. “Regulatory state” conceptualization is actively
involved in other areas of corporate governance. However, the regulation of human rights
at the national level emerges as a new conceptual structure. Despite the global prevalence
of national human rights institutions, there are some questions regarding the creation and
effectiveness of these new institutional actors (Cardenas, 2012: 30). In fact, it is questioned
that some states create national human rights institutions in order to implement these
international norms on a national scale, even though they violate human rights in violation
of the obligations arising from international human rights conventions (Cardenas, 2001: 3).

The rise of national human rights institutions, defined as ‘local non-judicial institutions with
the role of enforcing human rights law’ and undertaking the task of adapting international
norms to local structures, has led to debates in international relations and international law.
(Lacatus, 2018: 2). In this context, it is stated that the project of establishing a national human
rights institution is also a controversial issue for the UN High Commissioner for Human
Rights. Within the scope of ‘technical cooperation’, the UN provides support to the relevant
states in the formation of national structures that have a direct impact on the protection
and development of human rights (UN High Commissioner for Human Rights, “Technical
Cooperation”, n.d.). However, some critics argue that ‘technical cooperation’, which is an
important component in the arbitration of human rights infrastructures on a national and
regional scale for the protection and promotion of human rights, is insufficient in assessing
the human rights contributions of national human rights institutions (Rosenblum, 2012: 303).

Although it is accepted that the expansion of the international role of national human rights
institutions is a positive development, it is still stated that some unforeseen problems come
to the fore in these institutional structures. In this context, the possibilities of national human
rights institutions to use international mechanisms against the relevant public authority are
questioned. For instance, the Inter-American Commission on Human Rights16 decided that
a complaint by Peruvian Defensor del Pueblo in the Espinoza Feria case was admissible.
There have been some criticisms of allowing Defensor to exhaust domestic remedies on
behalf of the complainant before taking the case to the regional mechanism. It is stated
that Defonsor’s authority to apply to international mechanisms has led to the publication
of the disputes that arise between public authorities on a national scale, on an international
scale. In addition, the risk of individual application mechanisms being ‘monopoly of national
human rights institutions’ is also subject of objection. Another subject of objection is about

16 The Inter-American Commission on Human Rights (IACHR) is the main and autonomous body of the Organization of American States whose
mission is to promote and protect human rights in the American hemisphere. For detailed information, see also.,
https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/mandate/what.asp, Accessed on 31.12.2021.

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the inability to make complaints to international mechanisms if national human rights

institutions are not sufficiently independent (Carver, 2010: 31).

Another criticism of national human rights institutions; points out that these institutional
structures might have ‘destabilizing’ effects in some cases. National human rights institutions
are recognized as the essential element of the democratization process for societies
restructured after conflict. However, it is stated that there is not a suitable legal and political
environment for the establishment of such institutional structures in the legal order where the
democratic political system is not fully fortified. As a matter of fact, even in countries with
stable democratic political systems, there is sometimes a large gap between institutional
promises and capacities for human rights institutions. This situation causes the institutional
structures that undertake the task of protecting and promoting human rights, not meeting
the expectations of the public. (Cardenas, 2012: 48).

It also points to the risk that such a political environment could undermine the institutional
legitimacy of human rights institutions. There is a risk that national structures, whose
institutional legitimacy has not been ensured, may cause instability on a national scale
with their activities within the framework of social demands. Moreover, the unconditional
encouragement of the creation of national human rights institutions may generate a critique
of ‘human rights imperialism’. So and so, democratic political regimes assume that they can
export a new concept of human rights to the relevant nations through the support of national
human rights institutions on a global scale and the implementation of international human
rights norms at the local level (Cardenas, 2012: 48).

Another criticism is that states focus on establishing a national human rights institution
itself rather than promoting the implementation of international human rights law on a
national scale. In such a case, there is a risk that national human rights institutions may
be largely inadequate in their activities or fail to realize their potential, although they meet
the requirements of international standards regarding institutional structure. It is therefore
important to acquire a ‘critical awareness’ of the national context and the social and political
impact of national human rights institutions in order for such institutional structures to
contribute to sustainable human rights reform (Cardenas, 2012: 47).

In fact, critics point to the unintended/unforeseen consequences of promoting national

human rights institutions. To illustrate; Obiora Okafor, the Independent Expert on
International Solidarity at the UN, states that meeting the requirements of the Paris Principles,
which stipulates a minimum set of standards, will lead to a minimalist assessment of the
effectiveness of national human rights institutions. He states that a greater focus on the
institutional structure may lead states to establish a national human rights institution that
fits within the basic parameters of a national institution, but is not suitable for local conditions
or is inaccessible to vulnerable segments of society (Cardenas, 2012: 47).

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Compliance assessment of national human rights institutions with international standards in

terms of institutional structuring (accreditation) process17 is extremely important. However, at
this point, the criticism that the accreditation policy regarding the evaluation of the relevant
institutional structures has a discriminatory political orientation can be brought to the
agenda. For example, the ‘A’ status of the national institutional structures of some countries
such as Afghanistan, Burundi, and Cameroon create suspicions that strengthen the criticism
towards ‘human rights imperialism’. At this point, the support of some national institutions
that carry out transnational ‘human rights activism’ to the accreditation process makes an
important contribution to the institutionalization of human rights, but it also brings some
questions about political preferences.

In this context, discussions in the literature on the review of the Paris Principles have
become widespread. There are those who liken the review of the Paris Principles to “opening
Pandora’s box”. National human rights institutions often oversee the compliance of a law
or an administrative decision with the state’s international human rights obligations. For
this reason, it is stated that some states may tend to a revision process in order to narrow
the jurisdiction of the Paris Principles and even try to prevent the independence of these
institutions (Kjærum, 2003: 10).

Another subject of criticism is the USA state policy not to create such an institution, despite
the global trend towards the creation of such institutional structures. USA does not have
a national human rights institution dedicated to protecting and promoting international
human rights norms on a national scale. Instead of these institutional structures, local human
rights commissions such as Civil Rights Commissions (Including Alaska, Illinois, and New York)
exist (Cardenas, 2001: 15).

However, these commissions mostly focus on anti-discrimination issues within the

framework of their duties and authorities. The subjects that the commissions focus on are
particularly ‘employment, housing, credit and financial practices, collective accommodation
and education’. US Civil Rights Commission (1957), acts as an independent mechanism
whose mission is to ‘ensure the development of national civil rights policy and promote the
enforcement of federal civil rights laws’. There is also the Equal Employment Opportunity
Commission (EEOC), which investigates allegations of employment discrimination that
violate federal law in the United States. (Wolman, 2013: 448).

Despite the existence of all these local human rights commissions, the UN Committee’s call
for the United States to establish an independent human rights institution gained particular
importance after police violence and increasing social protests. In the call in question, the
focus of the Committee is the “International Convention on the Elimination of All Forms of
Racial Discrimination”, ratified by the USA in 1994. The UN argues that the USA normative

17 As of 2021, the number of institutions accredited by GANHRI to protect and develop human rights is 128. It is seen that 86 of these institutions
have “A” status, 32 of them have “B” status and 10 of them have “C” status. Status C applies to organizations accredited before October 2007. It
is no longer used by GANHRI. See.,
https://ganhri.org/wp-content/uploads/2021/08/StatusAccreditationChartNHRIs.pdf

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framework for securing civil rights is insufficient to combat racism. So that while the USA’s
normative framework for securing civil rights deals with cases of individual discrimination,
it does not take into account the structural problems of racism becoming systematized.
Therefore, the UN calls on public authorities to take steps to prevent institutionalized forms
of violence or to combat social and economic inequalities (Cardenas, “Confronting Racism”,
2015).

Besides the UN, some actors of the international human rights community advocate the
establishment of a national human rights institution in the USA in order to develop and
monitor the implementation of international human rights treaties, norms, and standards.
On the other hand, according to Steven Groves; human rights activists encourage the
establishment of national human rights mechanisms to ensure the recognition of supra-
constitutional human rights norms that the United States prefers not to recognize as policy.
According to him; the main task of national human rights institutions would be to promote
“economic, social and cultural rights” that have no constitutional or legal basis and have not
been recognized by the USA Supreme Court and Congress for decades. Therefore, Congress
should neither create a USA National Human Rights Institution nor transform the USA Civil
Rights Commission into a US Civil and Human Rights Commission (Groves, 2013: 1).

Groves argues that human rights violations may be subject to judicial guarantees within the
USA’s own judicial system. In addition, according to him, the ultimate purpose of structuring
national human rights institutions in the USA is not to protect and develop human rights, but
to ratify international conventions and integrate them into the national legal system (Groves,
2013: 7). Thusly, one of the most basic functions of national human rights institutions is to
monitor the implementation of international human rights conventions to which countries
are party.

Although there are no national human rights institutions, we can mention the USA, Brazil,
and Switzerland as examples of countries with sub-human rights institutions in some states.
Of these, human rights institutions exist in 26 states in Brazil and in the Federal District of
Brasilia. These institutional structures are authorized to provide legal aid to persons who
come into contact with administrative authorities. In the state of Sao Paulo, an ombudsman
and a general human rights commission work. The commission called ‘Conselho Estadual de
Defesa dos Direitos da Pessoa Humana’ examines and decides on complaints about rights
violations in federal or Sao Paulo state constitutions (Wolman, 2013: 448).

At this point, it is seen that an important problem area in countries that have a national
human rights institution but not a sub-national human rights institution is the authority of
the national human rights institution to examine complaints about human rights violations
committed at the state level and to offer recommendations to state governments. In its
report dated 2001 Amnesty International (Amnesty International, “National Human Rights
Institutions”, 2001), made recommendations for national human rights institutions and
pointed out that some human rights institutions in federal countries have difficulties in
examining violations committed by state governments. (Wolman, 2013: 450-454).

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For example, in Australia, the federal human rights commission is tasked with enforcing only
federal anti-discrimination law, and state commissions only enforcing state human rights
law. On the other hand, due to the similarities between state anti-discrimination laws and
federal anti-discrimination laws in Australia, discrimination complaints can be made to the
South Australian Equal Opportunity Commission or the Federal Australian Human Rights
Commission. However, complaints about alleged discrimination based on social origin or
political opinion can only be made at the federal level (Wolman, 2013: 450-454).

Another criticism of national human rights institutions is made by NGOs. Some NGOs at the
national and international level reveal their critical attitudes towards the effective position
of these globally widespread institutional structures. They state that since these institutional
structures are public institutions, their autonomy may be questioned in some cases. These
criticisms are recorded within the framework of three main themes.

Firstly; NGOs point out the risk that criticism of these institutional structures may replace
criticisms of civil society if national human rights institutions assume the role of ensuring
states’ compliance with international human rights obligations. The second criticism is that
national human rights institutions have become one of the basic human rights indicators
of a democratic liberal state. In fact, it is stated that if the status symbol of a developing
country was a steel mill in the 1950s, it was a human rights commission in the 1990s. Third;
NGOs question the effectiveness of national human rights institutions established without
adequate input from non-governmental organizations (Renshaw et al., 2011: 170).

However, despite all these criticisms, national human rights institutions come to the fore as
a ‘bridge’ between public authorities and non-governmental organizations.Hence, it is this
characteristic feature that assigns these institutional structures a ‘distinctive’ role in the social
field. However, it should be noted that this area sometimes creates difficulties for national
human rights institutions. National human rights institutions have to establish working
relationships autonomously from both public authority and NGOs (Smith, 2006: 906).

Although there are criticisms against such institutional structures, national human rights
institutions are in an important position in terms of integrating rights areas into national
political discourse and practice. So much so that these institutional structures play an
important role in integrating international human rights norms of states into local structures.
In addition, these institutional structures form new intergovernmental ‘human rights
bureaucracy networks’ parallel to the transnational human rights networks of governments.
Therefore, the establishment of a national human rights institution by a state means
placing international norms in state structures. These institutional structures emphasize
the importance of political structures on a national scale, beyond social and legal structures
(Cardenas, 2001: 5). It is stated that national human rights institutions serve as a focal point
for states human rights policies and play a coordinating role at the national level. Institutional
reform of human rights at the national level is unlikely to be achieved without integrating
international human rights norms into state structures (Cardenas, 2012: 50).

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6. CONCLUSION
The new ‘democratization wave’ that emerged with the end of the Cold War contributed
to the process of establishing protection mechanisms to protect and strengthen human
rights. This process corresponds to a new era that can be defined as the institutionalization
of human rights. The relevant period was a period in which national human rights institutions
became widespread with a quantitative explosion. The prevalence of national human rights
institutions has made it possible for modern human rights discourse to display a positive
development dynamic. The main actors that enable states to adapt to the mission of
protecting human rights by integrating international norms into domestic political structures
have emerged as ‘national human rights institutions’.

National human rights institutions, which are structured to protect and promote human
rights, determine human rights needs at the local level and create a curative/developing
effect on problematic areas. As a matter of fact, these institutional structures generally focus
on ‘local human rights’ issues. It is critically important to locate the protection mechanisms
for human rights at the local level in the national legal order. Their direct penetration into
the social and political field where human rights violations and/or abuses take place puts
these institutional structures in a privileged position. On the other hand, these institutional
structures, which integrate the principles of international law into the national legal system,
harmonize universal human rights with national human rights standards.

There are some questioning debates about the structuring of such institutional models.
These discussions are held within the framework of the holistic unification or separation
of the equality institutions and human rights institutional model under a single or multiple
institutional framework. In this context, the advocates of a single institutional structure argue
that the protection and promotion of human rights as a whole will be more effectively ensured
by a single institutional structure. It is also argued that institutional structures with a single
charter will apply a consistent standard to the rights of all relevant groups and individuals.

On the other hand, the integration of equality institutions, which are structured to combat
discrimination, and national human rights institutions, which focus on the protection and
promotion of human rights in general, under a single institutional roof, creates a negative
situation, especially for the vulnerable segments of the society. So advocates of multi-
institutional structures often point to the risk that a single institutional structure will focus
less on certain vulnerable groups such as ‘women, children, and ethnic minorities’.

Undoubtedly, there are some difficulties in integrating the functions of equality and protection
of human rights in a single institutional structure. The process of integrating these institutional
structures is affected by the differences between the roles, functions, powers, and activities
of equality bodies and human rights institutions. However, the positive impact of integrating
equality and human rights institutions, which conceptually share a common ground, under a
single institutional roof should be pointed out. In fact, both institutional models emphasize
the need for institutional activities that improve respect for human rights and human dignity.

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Although equality bodies and national human rights institutions have different aspects in
terms of their duties, powers, and fields of activity, there are functional overlaps in these two
institutional models. Considering the positive and negative aspects of creating an integrated
institutional structure, it is seen that integrating human rights with an equality perspective
enables the creation of a concrete framework for rights. In addition, with the integration
of the human rights perspective into the institutional structure, there is the possibility of
establishing the principle of equality more strongly.

Another area of discussion for national human rights institutions concerns the institutional
effectiveness of these institutional structures in the protection and promotion of human
rights. In this context, it should be stated that the quantitative increase in national human
rights institutions on a global scale does not mean that these institutions function as an
‘effective protection mechanism’. Some critics argue that especially countries with low socio-
economic status and poor human rights records create such institutional structures only to
ward off international criticisms.

Despite all these critical approaches, some academic studies reveal that national human
rights institutions have positive effects on human rights and the democratization process. The
fact that these institutional structures operate in cooperation with national and international
actors makes it possible to function as an effective national protection mechanism. In this
context, activities carried out within the framework of cooperation with judicial authorities
are especially important.

While evaluating the institutional effectiveness of national human rights institutions,

it should not be forgotten that the primary structures in the protection and promotion of
human rights are the state and relevant public authorities. As a matter of fact, it should be
stated that national human rights institutions are in a secondary position in terms of ensuring
the obligation to protect and promote human rights. These institutional structures monitor
the attitudes of individuals and/or institutions towards human rights on a national scale
and apply a kind of soft power in order to ensure compliance with human rights standards.
Although there are many institutions that started to become widespread in the 1990s and
operate on a global scale, the process of creating these institutional structures by the states
is questioned. However, it is obvious that national human rights institutions are gradually
becoming one of the substantial actors of international human rights.

These institutional structures, within the scope of their duties and authorities, have the
potential to enable the ‘profile for human rights’ to exhibit positive change dynamics at the
national scale. They have the potential to create a ‘value policy’ in society with the activities
carried out within the scope of the duties and authorities of national human rights institutions
and thus to make it possible to embody human rights and equality. Indeed, the report titled
“Valuing Equality” by the Public Interest Research Center commissioned by the European
Network of Equality Bodies (EQUINET) reveals that people tend to be less discriminatory

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when they value community, social justice, and freedom. Equality bodies and national human
rights protection mechanisms can contribute to reducing violations of human rights on the
basis of discrimination by taking an active role in respecting the rights of others (Moss, 2015:
187).

As a result, national human rights institutions, which are one of the substantial institutional
actors in the protection and promotion of human rights on a global scale, constitute the
turning point of the institutionalization of human rights. For this reason, it seems unlikely that
institutional reform for human rights at the national level can be realized without integrating
international human rights norms into state structures. Described as the bridge metaphor,
these institutional structures with their unique location, accelerate the development of
human rights with the relations they have established with both public authorities and the
civil sphere.

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7. NUMERICAL DATA ON NATIONAL HUMAN RIGHTS INSTITUTIONS

Table 1: Distribution of Accredited National Human Rights Institutions by Regions

EUROPE
AFRICA

ASIA AND PACIFIC

AMERICA
CENTRAL ASIA

0 5 10 15 20 25 30 35 40 45

Number of CENTRAL ASIA AND

AMERICA AFRICA EUROPE
Accredited National ASIA PACIFIC
Human Rights
Institutions by
3 21 27 35 42
Region

Source: GANHRI, 2021: 1-13.

Table 2: Number of Accredited Institutions by Years

48
42
38

1990-2000 2001-2010 2011-2021

Number of Accredited Institutions by Years

Source: GANHRI, 2021: 1-13.

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Table 3: Distribution Of National Human Rights Institutions By Status

Status C; 10

Status A; 86

Status B; 32

Source: GANHRI, 2021: 1-13.

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 INSTITUTIONALIZATION OF HUMAN RIGHTS:
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