chapter  3
12 Pages

The preventive role of national human rights institutions

The primary responsibility for the prevention of violations of human rights lies with the national protection system of each state. The first obligation of a state is to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in a treaty such as the International Covenant on Civil and Political Rights (ICCPR).1 A state complies with its obligation to respect these rights by not violating them. The duty to ensure, however, imposes an affirmative duty on the state and calls for specific activities by the state to enable individuals to enjoy their rights. The second obligation is for the state to take the necessary steps to adopt such legislative or other measures as may be necessary to give effect to these rights and freedoms.2 The third obligation is to ensure that any person whose rights or freedoms are violated shall have an effective remedy, and that the government enforces such remedies when granted. Interpreting Article 13 of the European Convention on Human Rights,

which requires that everyone whose rights are violated “shall have an effective remedy before a national authority,” the European Court has observed that the authority referred to may not necessarily be a judicial one, but, if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. For a remedy to be “effective,” it is not sufficient that it be provided for by the constitution or by law, or that it be formally recognized-it must be able to establish whether there has been a violation of a right and to provide redress. In this chapter we shall look at the contours of the national respon-

sibility to protect with a particular eye on the role, actual or potential, of national human rights institutions in the prevention of violations of human rights. We begin with the concept of a national protection system.

The protection of human rights should take place in one’s country, where one lives and comes face to face with authority or power. The concept of a national protection system is one of the most strategic for the universal realization of human rights. It is thus significant that the summit of world leaders, meeting on the occasion of the 60th anniversary of the United Nations in 2005, highlighted the right to be protected; and that the then UN Secretary-General, Kofi Annan, in his last report on conflict prevention, emphasized the responsibility to prevent gross violations of human rights.3