Weak institutions, rights claims and pathways to compliance: the transformative role of the Human Rights Ombudsman

Thomas PegramUniversity of Oxford27 July 2010thomas.pegram@nuffield.ox.ac.uk

Weak institutions, rights claims and pathways to compliance: the transformative role of the Human Rights Ombudsman

National human rights institutionsThey have a crucial role to play in the effective implementation of international human rights standards at the national level by promoting the development of laws and practices consistent with those standards and monitoring their implementation. National human rights institutions can thus strengthen national protection systems by translating international human rights norms in a way that reflects national contexts and specificities.

Secretary General Ban-Ki moon (August 2009)The argumentWhy does the ombudsman matter, how does it works in practice, and, crucially, under what conditions can it effectively advance human rights claims, especially of those most marginalized in society? (1) development of formal design principles is important in explaining effectiveness. However, (2) the informal dimension of ombudsmens relations with organized state and social actors and rules of access across accountability arenas is often decisive.Broader institutional settings translating international human rights norms in a way that reflects national contexts and specificities.

Brown areas in Latin America where formal rules of the game bear little resemblance to widely accepted informal practices.

Problematise the idea of weak institutions, rights claims and compliance.

Breadth and depth of political openings

Regime classification and levels of violence

The human rights ombudsman (and commission) at point of originINDEPENDENCEPeruIndonesiaPOWERSPeruIndonesiaConstitutional entrenchmentYesNoBroad and unrestricted rights mandateYesYesDesignation by the legislatureYesNoMandate to receive complaintsYesYesElection threshold of qualified majorityYesNoConstitutional reviewYesNoBudget allocated by the legislatureYesNoLegal prerogatives in matters of human rights (habeas corpus, amparo)YesYesImmunityYesNoEx officio investigationsYesYesTerm limit of five years +NoYesOversight of militaryYesYesNo dismissal without good causeYesNoEnforceable obligation to cooperateNoNoPossibility of reelectionYesYesExplicit IHRL mandateYesYesPublic legitimacy

Responsiveness: total complaints received by ombudsmen in Latin America

Obstacles to engagementwe have not yet resolved the matter of how to be the Ombudsman of the most vulnerable.Penetration of rural zonesCapability of claimantsInsertion into pre-existing frameworksLocal perceptions of the ombudsmanInflated expectations and disillusionmentPathways to complianceArenasActorsRules of accessOutcomesLegal accountabilityJudicial branchConstitutional TribunalProsecutors officeOversight agenciesHabeas corpusAmparoHabeas dataAmicus CuriaeCollective actionsLegal sanction Material reparationsUrgent remedyState accountabilityExecutive branchMinistriesLegislative branchRegional and local governmentLegislative projectsAnnual reportsSpecial reportsMonitoring and supervisionPolitical sanctionEmulationDemonstration effectsAltering behavior normsSocial accountabilityNGOsMediaCivic associationsSocial movementsPublic mobilizationMedia exposureEducation and training workshopsIndirect material consequencesReputational costsPublic censureInfluence in context: causal mechanisms(1) Expansive interpretation of mandate Play in the interpretation of formal rulesAnomalous ombudsman featuresCommitment to poverty and social exclusion

(2) Leadership of individual Ombudspersons:Internal functionings: organizational mystiqueExternal reputationAbility to navigate official and social interests

The anomalous ombudsman: conflict prevention and responseDesign: mandate expressly guaranteed during States of EmergencyInterpretation of mandate: unstable political regimes displaying persistent low-intensity violence and armed conflictActivation of mandate:Monitoring and early-warning capabilities (Colombia and Peru)Preventative constitutional actions (Peru)Intervention: bear witness (Peru and Colombia)Prosecution for victim reparations (Colombia)