Building human rights in the region through the role of horizontal transnational networks: the role of the Asia Pacific Forum of National Human Rights Institutions

ABSTRACT

In 2007, Andrew Byrnes and Andrea Durbach received a grant from the Australian Research Council to investigate the role played by the Asia Pacific Forum of National Human Rights Institutions in promoting international human rights norms across the Asia Pacific. The project’s central question was whether, for the vast and heterogeneous Asia Pacific, a regional network of national human rights bodies might offer a more effective form of human rights governance than a supra-state regional human rights system. Fieldwork was carried out in every sub-region of the Asia Pacific: Fiji, Samoa, New Zealand, Thailand, Malaysia, Nepal, India, South Korea, Jordan and Palestine. A decade after the project’s conclusion, we analyse the project’s impact and influence. We conclude that the key intuition that drove the project forward, which was that strong and independent institutions within states are the most effective bulwarks against rights violations, remains as valid now as it was a decade ago. In a region that still lacks an overarching human rights institution, networks of national human rights institutions are an original and creative response to the challenges of human rights governance into the twenty-first century.

KEYWORDS:

• Human rights
• National Human Rights Institutions
• Asia Pacific

Introduction

In 2007, Professor Andrew Byrnes and Professor Andrea Durbach received a grant from the Australian Research Council to investigate the role played by the Asia Pacific Forum of National Human Rights Institutions (APF) in promoting international human rights norms across the Asia Pacific. The project’s central question was whether, for the vast and heterogeneous Asia Pacific, a regional network of national human rights bodies might offer a more effective form of human rights governance than the top-down regional human rights systems of Africa, the Americas and Europe. The project achieved a rare trifecta of legal scholarship. First, it was grounded in an ambitious theory of global governance drawn from Anne Marie Slaughter’s work on government networks. The theory promised ‘a more effective and potentially more just world order than either what we have today or a world government in which a set of global institutions perched above nation-states enforce global rules’ (Slaughter 2004, 6–7). Second, the project brought interdisciplinary insights into the human rights field, particularly in relation to mechanisms of change and compliance, in a field still dominated by black letter doctrine (Rice 2014). Third, the project was methodologically innovative, using qualitative research and grounded fieldwork to draw conclusions about norm diffusion through the provision and exchange of material and immaterial resources to network members. Fieldwork in the form of semi-structured interviews was carried out with human rights commissioners, government representatives, civil society actors, judges, lawyers and United Nations personnel, in every sub-region of the Asia Pacific: Fiji, Samoa, New Zealand, Thailand, Malaysia, Nepal, India, South Korea, Jordan and Palestine.

A decade after the project’s conclusion, we analyse the project’s impact and influence. We argue that the key intuition that drove the project forward, which was that strong and independent institutions within states are the most effective bulwarks against rights violations, remains as valid now as it was a decade ago. We note that the project’s careful empirical descriptions of how the APF works are still drawn upon by policy makers and activists across the world and that the APF is used as a model of bottom-up, effective networked governance. In a region that still lacks an overarching human rights institution, the work of Professor Andrew Byrnes and Professor Andrea Durbach laid the foundations for an original and creative response to the challenges of human rights governance into the twenty-first century.

Domestic human rights institutions in the Asia Pacific and the network that links them

In 2016, Australian Federal government cabinet minister Christopher Pyne told the Chair of the Australian Human Rights Commission (AHRC) to ‘stay out of politics and stick with human rights’ (Koziol 2016). The advice followed the publication of the AHRC report The Forgotten Children: National Inquiry into Children in Immigration Detention 2014 (Australian Human Rights Commission 2014). The report accused both the governing Liberal National Party (LNP) and the previous Labor government of implementing policies that led to the mistreatment of children in immigration detention. The LNP’s primary criticism concerned the timing of the Inquiry. The AHRC President admitted that she deliberately delayed the Inquiry until after the September 2013 federal election, so that it would ‘avoid becoming ensnared in election politics’ (Walker 2015a). The LNP believed that the delay advantaged the Labor government during the election campaign. The Labor Party held power from 2007 to 2013, a period during which hundreds of children were incarcerated and many asylum seekers died at sea.

Securing the realisation of human rights is the business of politics. States subscribe to international human rights treaties for political reasons (e.g. because they are convinced by their international peers that respect for human rights secures material advantages in security, trade or influence). States also comply with international human rights obligations for political reasons (for example, because they are pressured to do so by domestic constituencies who exercise political leverage). On some occasions, states commit to human rights norms and comply with human rights obligations because their self-identification is tied to the idea that they are rights-respecting nations. But even then, there is politics involved in projecting and defending a particular vision of the state.

The key question, then, for proponents of human rights, is how to insert the discourse of human rights into the political narrative in a way that maximises prospects for positive change. The National Human Rights Commissions, or National Human Rights Institutions (NHRIs) are potentially significant actors in this regard. The reports and recommendations of NHRIs—in theory at least—hold significant influence compared to the remonstrations of domestic civil society actors or the reports and recommendations of international human rights organisations. The principal advantage of NHRIs vis a vis other actors is their legitimacy. NHRIs are state institutions, embedded in national political systems, with a mandate to engage with governments on human rights issues. At the same time, NHRIs are technically independent of the state and have the authority to interrogate state practices and hold state actors to account for human rights breaches. Because they are located within the state they are attuned to local priorities and concerns and operate with an awareness of local politics, religions, customs and cultures. For these reasons, NHRIs are well placed to influence the political dialogue and encourage states to commit to human rights (via ratification of international human rights conventions) and comply with human rights obligations (by reforming domestic laws, policies and practices to ensure human rights are realised and protected).

Yet, as the Australian Human Rights Commission found in 2016, it can be difficult for NHRIs to calibrate the politics of human rights. In relation to asylum seekers, the Australian government’s view was that the government had been quietly and successfully working towards reducing the number of children in detention and that in this context, the Commission’s intervention was counterproductive and a political provocation. The Commission’s President, in contrast, held the view that she had an obligation to victims to record the truth of their situation regardless of who held power: ‘Can you imagine what might’ve been said if we had kept our heads down and done nothing. There was no possibility the Human Rights Commission could have turned a blind eye’ (Walker 2015b). The AHRC recognised the government as a key human rights stakeholder—but not the only one. The AHRC also viewed itself as accountable to the domestic and international human rights community and to victims of human rights violations and victim’s representatives. Its role was to mediate the political space between these actors to achieve positive change.

From the mid-1990s to the mid-2000s, there was a dramatic increase in the number (and variety) of NHRIs established across the world. A wave of sustained scholarly attention was directed towards exploring the role of NHRIs in advancing human rights agendas (Hossain et al. 2001; Reif 2004; Cardenas and Flibbert 2005; Smith 2006; Ramcharan 2005; Murray 2007). Initially, research focused on the definition of NHRIs and how to ensure NHRIs complied with common minimum requirements of independence and pluralism, reflected in a set of international standards for NHRIs known as the ‘Paris Principles’ (Reif 2000). Other research focused on the global diffusion of a particular model of NHRI (Pegram 2010). Some scholars studied the effectiveness of NHRIs in different contexts, examining internal characteristics (institutional structure and leadership) and external factors (whether the political system is liberal or authoritarian, whether there is civil conflict, whether the state is in political transition). The number of case studies on NHRIs increased notably in this period (Cardenas 2003; Carver 2000; Burdekin and Naum 2007). Of particular interest to scholars was the puzzle of why states with authoritarian leaders, some of whom questioned the universality of human rights, established NHRIs. Was it for limited strategic purposes to curry favour with the international community (Murray 2007)? Was it to deflect domestic attention from their poor human rights record? Was it the effect of regional diffusion—states replicating institutional structures common among their regional peers (Cardenas 2003; Pegram 2010)? Critical literature began to emerge, driven by the concern that in some circumstances NHRIs may divert energy, attention and funding from other (possibly more effective) actors: grass-roots activists; ombudsmen; constitutional courts (Human Rights Watch 2001).

The larger question underpinning these inquiries was how to achieve the normative objectives of the human rights regime. Should efforts be directed towards encouraging the creation of supra-national human rights institutions and expanding the powers of those international regimes that already exist? Or through appeal to local legal norms and local remedies that cover the same substantive ground as their international analogues? If the latter, then the establishment of NHRIs within each state to act as ‘transmitters’ of international norms to the domestic level, as local watch-dogs, and vectors for reporting issues from the state to the international levels, was vitally important (Carver 2010).

These questions and issues were of additional importance in the Asia Pacific region. Unlike Europe, Africa and the Americas, the Asia Pacific does not possess an overarching regional human rights institution. In 1993, the Vienna Declaration and Program of Action reiterated the ‘need to consider the possibility of establishing regional and subregional arrangements for the promotion and protection of human rights where they do not already exist’ (UN General Assembly 1993). But for several reasons, in the vast and heterogeneous Asia Pacific, the prospect of establishing a pan-regional human rights mechanism seemed highly unlikely. First, states within the region were politically, religiously, and geographically diverse. They did not share common interests in security and trade that could provide a framework for cooperation in relation to deeper and more contentious issues like human rights. Countries across the Asia Pacific could not describe themselves in the same way that the drafters of the European Convention on Human Rights described themselves: ‘like minded with a common heritage of political traditions, ideals, freedom and the rule of law’ (Council of Europe 1950, Preamble). Second, many states in the Asia Pacific were former colonial possessions. For leaders of these states, the idea of surrendering relatively newly won sovereignty to an uncertain supra-state human rights mechanism was deeply unappealing. Third, some states were in the throes of violent processes of democratisation. They had other priorities, such as peace and development, and little interest in forging a regional human rights mechanism with their neighbours. Finally, the region was a site where the universality of many human rights standards was still contested. Few of the region’s leaders relished being forced to accept what they viewed as an externally imposed, top-down human rights agenda driven by ‘Western values’ that gave primacy to civil and political rights and neglected economic, social and cultural rights, and collective rights (Thio 1999; Peerenboom 2000).

In the Asia Pacific, the answer to the question of how to achieve the normative objectives of the human rights regime seemed clear. Instead of lobbying for the establishment of a pan-regional human rights mechanism for the Asia Pacific, key human rights advocates prioritised the establishment of national institutions for the promotion and protection of human rights. The hope was that these institutions would begin the work of building a regional culture of human rights from the ground up—and that eventually, perhaps, there would be a sufficiently strong foundation for a regional human rights mechanism. In the meantime, in the absence of a regional mechanism, it was particularly important that NHRIs in the Asia Pacific were independent, effective and had a function to protect, as well as to promote, individual human rights.

The first NHRI in the Asia Pacific was established in New Zealand in 1977, followed by Australia in 1981. By 2021 a further 33 NHRIs had been created in every sub-region of the Asia Pacific. In West Asia, NHRIs were established in Palestine (1993), Jordan (2002), Qatar (2002), Bahrain (2014), Oman (2009), Iraq (2008), Kuwait (2015), Lebanon (2016) and the United Arab Emirates (2021). In South Asia, NHRIs were established in India (1993), Sri Lanka (1996), Nepal (2000), Afghanistan (2002), the Maldives (2003), Bangladesh (2009) and Pakistan (2012). In Southeast Asia, NHRIs were established in the Philippines (1987), Indonesia (1993), Malaysia (1999), Thailand (2001), Timor Leste (2004) and Myanmar (2011). In East Asia, NHRIs were established in South Korea (2001), Mongolia (2001) and Taiwan (2020). In the Pacific, NHRIs were established in Fiji (1999), Samoa (2013) and Tuvalu (2017). In Central Asia, NHRIs were established in Uzbekistan (1997), Kazakhstan (2002), Kyrgyz Republic (2002), Tajikistan (2009) and Turkmenistan (2017). The political context in which some of these NHRIs were formed was extremely challenging. Several NHRIs were established as part of peace agreements following periods of violent civil conflict (Afghanistan, Iraq, Timor Leste). These institutions faced a presumptive challenge to their domestic legitimacy, with the perception that they were imposed (and often funded) by foreign powers. One concern was how these institutions would negotiate the relationship with their new governments and local constituencies. Other NHRIs were formed in semi-authoritarian states or ‘demi-democracies’ (Malaysia, Thailand and Indonesia). What was the potential for these institutions to offer robust protection of individual rights and to challenge the repressive governments that created them? Would the institutions function to deflect international criticism or would they be able to transcend their origins and challenge the state to make real changes in the realisation of human rights? Some NHRIs were formed in states that constitutionally gave primacy to Sharia law (Jordan, Qatar, Bahrain, Iraq, Oman). How would these NHRIs negotiate the contested terrain between religious beliefs and universal human rights? Other NHRIs were established in new democracies in the aftermath of authoritarian rule (the Philippines, Bangladesh, Pakistan, Mongolia, South Korea). How would these institutions meet the high expectations of civil society that the institutions would be champions of the new order? How would they manage resistance from elements within the government who may view criticism as undermining their tenuous hold on power?

The establishment of NHRIs in the Asia Pacific region, compared to the situation in other regions, presented a unique and puzzling story. A very large number of NHRIs were created within a relatively short period of time. These NHRIs were all structurally similar, aspiring to Paris Principles conformity and possessing a strong mandate to promote and protect human rights. The potential significance of NHRIs in the Asia Pacific, in the absence of a regional human rights mechanism, was greater than that of similar institutions in other regions. There was also a final key factor that distinguished NHRIs in the Asia Pacific, and which provided a possible explanation for the other distinguishing features. This was the presence of a powerful regional network of NHRIs, the APF, which operated to support their establishment, ensure their independence, provide technical support to their operations and enhance their performance. The APF was formed in 1996, at a meeting between the national commissions of Australia, India, Indonesia and New Zealand. This meeting gave rise to the Larrakia Declaration, in which the nascent human rights organisation agreed on several fundamental points. Key amongst these was that regional cooperation was essential to ensure the effective promotion and protection of human rights; and that NHRIs should work in close cooperation with NGOs and, wherever possible, with governments to ensure that human rights principles are fully implemented in substance. They also agreed that ensuring the effectiveness, credibility and independence of NHRIs in the Asia Pacific region should be a key human rights goal of governments of the region.

The APF began its life as an informal regional forum of NHRIs, whose members agreed to share expertise and information on best practise, to undertake joint projects and develop joint positions on issues of common concern, and to hold periodic regional meetings. By 2002, the APF’s work was defined by three core activities: strengthening the capacity of individual APF member institutions to enable them to undertake their national mandates; assisting governments and NGOs to establish NHRIs in compliance with the Paris principles; and promoting regional cooperation on human rights. Although only NHRIs that met Paris Principles standards could be full members of the APF, the network opened its bi-annual conferences to all relevant and affected parties: governments; civil society representatives; NHRIs which were not yet fully independent from the state; and representatives of states that were yet to establish NHRIs. In 2000, one commentator described the APF as ‘one of the most sophisticated NHRI regional networks in operation. It maintains a high level of integration with international forums, and is recognised as an important source of technical assistance for regional offices, and as such is able, up to a point, to push for greater compliance with the Paris Principles’ (Murray 2007).

A major initiative of the APF’s early period was the creation in 1998 of the Advisory Council of Jurists (ACJ), a body comprising former judges, and human rights and international law academics and practitioners, who were nominated by APF member institutions. The ACJ provided advice to the APF and its member NHRIs on the interpretation and application of international human rights standards to human rights issues of common importance in the region. Each year and the APF’s governing body, the Council, selected a particular issue on which the ACJ would focus: child pornography on the Internet (1999); the death penalty (2000); trafficking of persons (2001); terrorism and the rule of law (2002); the prevention of torture (2004); the right to education (2005); the right to the environment (2006); human rights and corporate accountability (2008); sexual orientation and gender identity (2009). The ACJ produced reports on the different topics, drawing together international human rights jurisprudence, explaining its application in states within the Asia Pacific region, and creating a set of recommendations to NHRIs on how they might strengthen their work in this area. Following the publication of each ACJ report, NHRIs reported back to annual meetings of the APF—that is, to their regional peers—on steps taken to implement the ACJ recommendations in their respective countries. The APF also provided assistance and organised peer-to-peer training to NHRIs on how to advance the human rights agenda in this area. In 2006, Andrea Durbach was nominated to the ACJ as the representative of the Australian Human Rights Commission. In 2007, she was appointed as the ACJ Chair.

By 2007, the establishment of NHRIs across the Asia Pacific and the emergence of a network linking the institutions was an important but unexamined phenomenon. At around the same time, there was a shift in human rights research and scholarship, away from investigating the human rights project as a process of normative standard setting, towards sharper socio-legal inquiries that had important practical application. How do human rights norms spread across the world (Goodman and Jinks 2004; Simmons 2009)? What are the mechanisms and conditions that foster the transnational spread of norms? (Finnemore and Sikkink 1998; Goodman and Pegram 2012)? How are global norms translated into local ‘vernacular’ (Merry 1996)? How and why do states change from repressive practices to adopting policies and laws that respect international human rights (Simmons 2009)? By what means do the different NHRIs accelerate the diffusion of global norms by providing ‘domestic receptor sites’ for transmission to occur? In the Asia Pacific region, in relation to NHRIs and their potential as engines of human rights change across the region, these questions had not yet been asked.

Linkage Project LPO776639

Australian Research Council Linkage Project LPO776639 (‘the Project’), with the APF as the Project Partner, set out to measure the effectiveness of the APF (a) by identifying its impact on the formal legal characteristics of individual NHRIs (status, mandate, powers), and (b) by examining the ways in which the APF enabled NHRIs to develop the capacity to undertake their human rights agendas. The Project aimed to examine the extent to which the explicitly international agenda of the APF was reflected in the work of individual members—for example, in the use made by NHRIs of international standards in their reports, investigations, and court or political interventions, as well as the use made by members of reports of the ACJ. The hypothesis was that the APF was an important variable in determining NHRI effectiveness. The goal of the Project was to map the processes of engagement and interaction between the network and its members, to assess the depth and ambit of APF influence and to assemble the criteria that determine any limits to its reach. The central question was whether and to what extent the network’s operations contributed to achieving the goal of a regional human rights regime built from the bottom up. In relation to the ACJ’s reports, for example, did the promotion of particular issues catalyse change and increase the effectiveness of the NHRIs to improve states’ compliance with international human rights standards? Where human rights issues required cooperation between states to achieve positive change (terrorism, trafficking, child pornography) did the APF increase the scope, nature and quality of cooperation?

Two overlapping bodies of theory underpinned the Project. The first was the ‘spiral theory of human rights’ proposed by Thomas Risse and his colleagues in the 1990s. Risse, Ropp, and Sikkink (1999) were interested in an important set of questions about the international human rights project: What are the conditions under which international human rights norms become internalised into domestic practices? Why is there such variation in the degree to which human rights norms are actually implemented? The ‘spiral theory of human rights’ purported to show how states become socialised to human rights through a process that begins when states make tactical concessions and cosmetic changes (which might include signing human rights treaties), but which leads (under certain circumstances) to substantive positive changes in policy and law. This process was termed the ‘norm cycle’. The theory was that tactical concessions empower and legitimate the demands of critics. What follows is a dialogue between governments and critics, in which governments are forced to explain and justify norm-violating behaviour. In the process of justification and explanation, states become “entrapped” in their own rhetoric. The more they are drawn into arguments with their critics, the more they are forced to make further concessions and justifications (Risse 1999). In this process, the international community supplements pressure ‘from below’ (lobbying and advocacy from civil society and other domestic actors) with pressure ‘from above’ (shaming, isolation, and perhaps sanctions).

The second theory concerned networks. In A New World Order, Anne-Marie Slaughter (2004) put forward the idea that ‘horizontal government networks’ are a key feature of the new world order in the twenty-first century. Slaughter identified the globalisation paradox as the need for global institutions to solve collective problems that can only be addressed on a global scale; coupled with the understanding that world government is a dangerous and undesirable threat to individual liberty. The solution, in Slaughter’s view, was a world order of government networks, operating horizontally with institutions in different states to cooperate on different issues, share information, contain conflict, seek solutions, coordinate policy, and enforce cooperation. These networks would work alongside or even in place of more traditional international institutions. In Slaughter’s view, government networks represented an alternative to the ‘top-down’ approach of international organisations that operate over and above states. Instead, a set of horizontal networks among national government officials in their respective issue areas would create a new sort of power, authority and legitimacy.

The architects of LPO776639—Andrew Byrnes, Andrea Durbach and the APF—were interested in the extent to which the APF could be described as one of Slaughter’s governance networks. The APF seemed to be an exemplary ‘horizontal information network’—bringing together human rights commissioners, civil society activists, government representatives from across the region to exchange information and collect and distill best practices; and it provided technical assistance and training programs that sought to enhance the capacity and effectiveness of its members. They were also interested in more difficult questions. To what extent did NHRIs in the Asia Pacific influence political and social outcomes to achieve substantive human rights change? How did the APF operate to support NHRIs in this regard? What was the impact of NHRIs, and the APF, on addressing regional human rights problems? Did the ACJ function as a quasi-judicial body, issuing interpretations of international human rights law and which were then adopted and implemented by NHRIs—and by states?

The Project aimed to analyse the work of the APF as a quasi-governmental or transnational public network. One goal of the investigation was to discover whether and how the APF functioned to empower NHRIs to productively intervene in the norm cycle. Another was to discover whether and how the APF itself, as a network, operated as a forum for collaborative decision-making and norm dissemination that was informal yet powerful. The literature on NHRIs globally had established that NHRIs were not a universal good. There was a high cost to creating NHRIs, in terms of deflecting from the possibility of creating other perhaps more locally apposite institutions—and because governments could sometimes use NHRIs to defer real change (Human Rights Watch 2001; Murray 2007). In the Asia Pacific, there was an additional element of concern, because the creation of NHRIs and a network to link them was sometimes posited as a reason for avoiding the creation of a regional human rights mechanism. It was essential to find out whether the horizontal network approach to promoting human rights was an effective means of furthering the domestic implementation of universal standards.

A significant challenge of the Project concerned methodology. The Project’s initial question was about the diffusion of the NHRI model: To what extent had the APF functioned to encourage NHRIs in the Asia Pacific to establish the strong ‘commission’ model of NHRI and to ensure that NHRIs were compliant with the Paris Principles? How had APF network dynamics operated to support standards of independence and pluralism in NHRIs in the Asia Pacific region? Existing standards and methodologies for assessing the effectiveness of NHRIs (Carver 2000; 2005) recognised the importance of the formal, legal features of NHRIs for their effectiveness. But important questions about NHRI creation were not often asked. Would the absence of an NHRI have led the state to support other governmental institutions to greater degrees? Without an NHRI, would local NGOs have received greater resources from domestic and external sources? Did the NHRI crowd out more socially productive political activism?

The Project was also interested in the more challenging questions about NHRI effectiveness post-creation. Should NHRIs be judged in terms of their own agendas and goals? In that case, NHRIs with modest responsibilities may be more successful than those with an ambitious agenda. This could have a very real effect on the perceived achievements of the NHRI and hence its legitimacy. Was there in fact diffusion of human rights norms resulting from NHRI intervention in the political space and was there consequently compliance with higher standards of human rights over time? In the end, governments create change, not NHRIs. To evaluate whether and how NHRIs were effective, the Project needed to investigate the relationship between NHRIs and the governments that created them and the causal links between NHRI intervention and law or policy change. The Project needed to engage with government ministers, civil society actors, judicial officers, human rights defenders, media organisations, law reform bodies and law enforcement bodies. The Project needed to track the way the work of the NHRI overlapped with the work of other institutions—courts, ombudsmen, specialised commissions.

To address these questions, the Project needed to understand the critical human rights issues in particular countries and how each NHRI was engaging with them. If a correlation appeared between the existence of an NHRI and improvements in respect for human rights, then the NHRI’s net contribution to the advancement of human rights needed to be isolated (Rosenblum 2012). What were the benchmarks for recognising improvement in human rights? Should some human rights receive greater weight when the effectiveness of an NHRI is assessed? Should the appropriate benchmark be the national priorities within a country: the most urgent and important human rights concerns and the interests of the most vulnerable voices in society? Is the ultimate question what the human rights conditions would have been within a given country without the creation or operation of an NHRI or an APF? How does one isolate the institutional influence of discrete institutions to see whether there would have been improvements without them? Is it possible to carry out counter factual analyses and evaluations of the opportunity costs of establishing an NHRI?

An innovative qualitative methodology was adopted to meet the Project’s aims. First, the timeframe for change was set at an intermediate range in terms of the assessment of outcomes and impact. Second, a bank of open-ended questions was constructed for use in semi-structured interviews, with the aim of enabling research participants to provide thick descriptions of social change based on large amounts of complex information only available to locally engaged actors. Third, there was a systematic selection of participant groups holding different identities and interests (NHRI staff and commissioners, APF staff, government representatives and civil society actors) which enabled verification and triangulation of different accounts and reduced (to the extent possible) subjectivities and biases. Finally, quantitative evidence (such as NHRI and network outputs and activities) was correlated with participant-identified social change and used as secondary analysis to supplement interview data.

Between 2008 and 2010, Andrew Byrnes and Andrea Durbach used this methodological approach to carry out a detailed study of the APF and its operations, to determine the extent to which models of horizontal transnational networks adequately captured key aspects of the APF’s work in influencing the enjoyment of human rights at the national level. Central to their approach was wide-ranging consultation with key members of the APF secretariat, NHRIs members, NGOs, government representatives of states with NHRIs and United Nations officials. Byrnes and Durbach attended the APF annual conferences in Kuala Lumpur (2008) and Amman (2009) and carried out fieldwork for detailed case studies of NHRIs in each of the sub-regions of the Asia Pacific—Malaysia (Southeast Asia), Jordan (West Asia), Fiji (the Pacific), Nepal (South Asia) and South Korea (East Asia). In each of these places, they interviewed the chairs of NHRIs, NHRI staff, government ministers responsible for justice, law reform and human rights, civil society actors and in-country United Nations staff. Interviews were coded using NVivo. The research findings were reported in the Asian Journal of International Law, the Australian Human Rights Journal, Journal of Global Governance, Sydney Law Review, Victoria University Law Journal, New Zealand Journal of Public International Law and various book chapters. The project involved practical, empirical work well suited to the temperament and skills of the project’s Chief Investigators. Both had practiced as lawyers and were attentive to issues of legislative process and the mechanics of change. Both were familiar with the particular institutional features of NHRIs. Byrnes represented the APF in international negotiations around the drafting of the International Convention on the Rights of Persons with Disabilities in New York in 2007. In her capacity as a member of the ACJ and later its Chair, Durbach attended ACJ meetings in New Delhi, Kuala Lumpur and Palestine.

The first body of work produced by the Project concerned the network. The Project concluded that without the APF there would have been far fewer NHRIs established in the Asia Pacific and far less likelihood that NHRIs would have met the standards of independence required by the Paris Principles. The APF’s criteria for admission to the network was a concrete incentive to states to create Paris Principles compliant human rights institutions (Byrnes, Durbach, and Renshaw 2008) and the APF’s technical assistance to governments wishing to establish NHRIs—often provided via peer-to-peer support—resulted in highly positive outcomes. The Project also concluded that because Paris Principles compliance influences perceptions about the institutions’ legitimacy, there was a link between compliance and effectiveness—the extent to which governments considered themselves obligated to implement NHRI reports and recommendations (Renshaw, Byrnes, and Durbach 2011). In relation to the prospect of the APF fulfilling the role of a regional human rights organisation, the Project concluded that there were significant advantages to directing resources towards the creation of strong independent human rights institutions within the state, rather than weaker regional or subregional institutions (Durbach, Byrnes, and Renshaw 2009; Renshaw, Byrnes, and Durbach 2009).

In relation to regional cooperation on human rights issues, the project found several cases where NHRI work on thematic human rights issues would not have occurred but for the existence of the network (Renshaw 2011). Furthermore, the APF catalysed NHRI interest in domestic promotion of difficult or contentious human rights issues, which NHRIs acting individually would not have been able or willing to devote attention to—such as the rights of sexual minorities (Renshaw 2011). The Project also found that the APF network inspired the creation of other networks, such as a mirror network of regional NGOs dedicated to holding NHRIs to account (Renshaw 2012). The Project’s conclusions provided a clear answer to one of the challenges put to proponents of network governance, which is that evidence of the actual benefit of the network is rarely provided, beyond proving that government networks exist or that such networks engage in or sustain ‘bureaucratic activities’ (Anderson 2004; cf Harrington, Cullen, and Renshaw 2017). The APF successfully supported human rights implementation and good governance goals by promoting horizontal cooperation among national bodies.

The second set of studies, focusing on individual NHRIs, grappled with the more difficult question of NHRI effectiveness. The Project focused on particularly challenging situations: NHRIs operating in circumstances of repression, political crisis and civil conflict. The selection of case studies followed a ‘least likely’ case study approach. The reasoning was as follows. The prediction is that NHRIs created by authoritarian leaders (or forced to operate in extremely difficult political circumstances) will achieve very little. If the empirical evidence demonstrates that, even in these circumstances, the NHRI is successful in improving human rights conditions, this means that the primary theory—which is that NHRIs are unique engines of human rights change—is supported.

The first case studies focused on a human rights commission created by authoritarian leaders. In 1987, Malaysia’s Mahathir Mohamed created a national human rights commission, SUHAKAM, which was widely regarded at the time as being mere window dressing for Mahathir’s repressive regime. Mahathir appointed Musa Hitam, his former Attorney-General, to lead the fledgling human rights institution. While in power, Musa Hitam drafted and enforced legislation that severely restricted civil liberties. But as head of the new human rights commission, Musa Hitam argued for the repeal of this very same legislation on human rights grounds (Renshaw, Byrnes, and Durbach 2011). Indonesia represented a similar story. In 1993, Indonesian dictator Suharto created the country’s first human rights commission, Komnas Ham. Again, it was assumed that this institution was mere window dressing for an illiberal government. But Komnas Ham proceeded to develop an independent and effective agenda that ultimately helped pave the way for Suharto’s ouster. Considering these cases, Byrnes and Durbach advanced three possible theories to explain this phenomenon. One attributed positive developments to the personal attributes of specific NHRI leaders. A second looked at the influence of the APF in encouraging an orientation towards independence through processes of peer influence. The most convincing theory acknowledged a combination of these two sources of influence: personal characteristics of commission leaders were strengthened and enforced by the network influence. The Project concluded that the political circumstances in which NHRIs were created were not the sole determinants of its success. Even when they operated in the most difficult conditions, NHRIs could positively influence the political agenda.

Another one of the Project’s case studies concerned the Pacific’s first human rights commission, the Fiji Human Rights Commission. This Commission was forced to operate in circumstances of extreme political crisis, where it faced grave challenges to its independence and functioning (Renshaw, Byrnes, and Durbach 2009). On 5 December 2006, military commander Bainimarama assumed executive power in Fiji and dismissed the president, vice president and prime minister. On 4 January 2007 the commander restored executive authority to the president, who on the following day appointed the Commander Bainimarama as interim prime minister. Later that month, the Fiji Human Rights Commission released a report supporting the commander’s coup d’etat. The report concluded that the assumption of power by Bainimarama was legally justified under the doctrine of necessity. This opinion was at odds with the assessment of United Nations observers, domestic and international NGOs and Fiji’s neighbours in the Pacific Islands Forum, all of whom called upon Commander Bainimarama to relinquish power and restore Fiji to democracy. The APF made energetic efforts to try to support the independent position of the Fiji Human Rights Commission vis a vis the coup leaders, but the reputation of the Commission was badly tarnished. As a result of the Commission’s support for the coup, the APF launched an investigation into the Commission’s continued compliance with the Paris Principles and, in particular, its independence. In response to this decision the Fiji Commission resigned as a member of the APF. Following these events, some human rights advocates from the Pacific revived the idea of a creating a sub-regional human rights body specifically for the Pacific region (Jalal 2009). It was unclear whether proponents envisaged that Australia and New Zealand would be part of any future Pacific Regional Human Rights Body. The notion failed to gain traction with governments of Pacific Island states (Renshaw, Byrnes, and Durbach 2010).

The National Human Rights Commission of Nepal faced a different set of challenges. Nepal’s Human Rights Commission was established in 1997 after the end of Nepal’s civil war and following the adoption of a new democratic constitution (Durbach 2011). The Commission was charged with conducting inquiries into human rights abuses perpetrated during 16 years of the civil war; carrying out inspections of jails, police stations and prisons to ensure that contemporary abuses did not occur; studying international human rights treaties and instruments; and making appropriate recommendations to governments for their implementation. However, the budget it was allocated was insufficient to pay salaries, train staff or cover the cost of facilities. In 2006, after the signing of a Comprehensive Peace Accord, the Commission assumed a central role in peace-monitoring and peace-building. Despite the Commission’s view that tackling impunity and improving accountability were essential preconditions for managing Nepal’s fractious transition (Chalmers 2012) the Commission faced resistance by the government and its efforts to secure justice and security were frustrated (Durbach 2011).

The Project investigation into NHRI effectiveness in the Asia Pacific region led to several conclusions. First, NHRIs needed to be studied within a larger web of institutions and relationships, domestic and international, involved in the protection and promotion of human rights. Second, activists who were aware of the capabilities and limitations of NHRIs were better able to use the institutions as one of the several tools to continue the long-term struggle for human rights. Third, the outward-looking focus of NHRIs—as conduits of information to the international community and the United Nations about the human rights situation in the state—was an under-appreciated and vitally important function of NHRIs. Fourth, existing benchmarks and expectations of NHRI performance were inadequate in capturing the inherent tension between the twin premises of NHRI legitimacy: on the one hand, locality, proximity and responsiveness to violations and victims; and on the other hand, universal standards of justice that transcend national boundaries.

Epilogue: developments in the Asia Pacific 2011–2021

In 2009, the first regional human rights institution in the Asia Pacific was established by the 10 member states of the Association of Southeast Asian Nations. The ASEAN Intergovernmental Commission on Human Rights (AICHR) is composed of representatives appointed by the governments of ASEAN member states. The Terms of Reference of AICHR state that representatives are ‘accountable’ to the states that appointed them. The AICHR cannot hear individual complaints about rights violations and decisions of the body must be made by consensus. The purpose of the AICHR is to ‘promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking in to account the balance between rights and responsibilities’ (Terms of Reference ASEAN Intergovernmental Commission of Human Rights 2009). Since its inception, the AICHR has not carried out any human rights investigations or issued any statements on human rights violations in individual states in the region. AICHR’s first task was to produce the ASEAN Human Rights Declaration (2012), which includes a provision about upholding human rights in a manner that avoids confrontation, double standards and politicisation (Renshaw 2013). There have been no further developments towards the establishment of sub-regional human rights mechanisms in any other areas of the Asia Pacific, including the Pacific Islands Forum. The idea of a pan-regional human rights institution encompassing the entire Asia Pacific region has faded further into abeyance (cf Saul, Mowbray, and Baghoomians 2011).

In the meantime, the number of NHRIs across the region has continued to grow. Since 2011, new NHRIs have emerged in Central Asia (Turkmenistan), in West Asia (Bahrain, Kuwait, Lebanon and the United Arab Emirates), in Southeast Asia (Myanmar), in South Asia (Pakistan), in East Asia (Taiwan) and in the Pacific (Samoa and Tuvalu). The APF, sometimes working with the United Nations Office of the High Commissioner for Human Rights and/or the United Nations Development Program, has provided technical assistance and support for each of these new commissions. The network has also worked to provide support, both moral and tangible, to NHRIs that find themselves facing particular challenges. One of these is the Afghanistan Independent Human Rights Commission, whose staff have been subjected to abductions, killings and terrorist attacks in the period since 2015, and whose future is even more uncertain after the withdrawal of the United States and associated coalition troops in 2021.

A notable feature of network developments in the period 2011–2021 has been the evolution of smaller networks of NHRIs in sub-regions such as Southeast Asia and West Asia. The NHRIs of Thailand, Indonesia, Malaysia, the Philippines, Timor Leste and Myanmar have formed their own network within the APF to address issues of concern to their sub-region, such as trafficking in persons and the rights of migrant workers. The NHRIs of Iraq, Jordan, Palestine, Qatar and Bahrain have joined the Arab Network of National Human Rights Institutions. To support these initiatives the APF has adopted a strategic objective of establishing APF regional hubs and has opened its first sub-regional office in Qatar to service its West Asia members. In light of these developments, it would be interesting to revisit the finding that the APF network demonstrates ‘governance without government’ on human rights issues at the pan-regional level. The network dynamics might be such that at the APF evolves, member ‘nodes’ intensify connections with other similar nodes in a more confined geographic area in preference to deepening connections with the network as a whole. The organic development of sub-networks has already enabled closer cooperation around issues of particular concern to different sub-regions. At the same time, the broader network has continued its work in improving the capacities of NHRIs and facilitating collaboration, information sharing, and networking among all members. These developments appear to confirm the theory that one of the benefits of the network form of organisation is that it permits members to make varying levels of commitment in relation to different issues—to play a prominent role in relation to implementing some decisions and to withdraw from others (Renshaw 2011; Renshaw and Fitzpatrick 2012).

The NHRIs established in the Asia Pacific region since 2011 continue to exhibit an overall design preference for the ‘commission’ model of NHRI instead of other global models (such as the Ombudsman model prevalent in Europe or the Iberian human rights model dominant in Latin America). The exception to this is in the Pacific where, due to limited state capacity and funding, the preference is toward a combined NHRI/Ombudsman model. This confirms the findings of recent research on model diffusion, which holds that nation-states within particular regions tend to adopt similar institutional models, often within a fairly circumscribed period of time; and that this results in temporal and spatial clusters of policy reform (Risse 2016). The APF’s role in encouraging the creation of NHRIs in the Asia Pacific region suggests the need for further reflection on existing explanations for why this occurs. The conventional explanation is that countries respond similarly, but independently, to similar domestic conditions, without regard to the behaviour (perceived or predicted) of other states. An alternative explanation is that clustered policy making is coordinated by an influential elite or an international organisation via ‘epistemic communities’ (Haas 1992) or pressure by important donor countries and international financial institutions (Levi-Faur 2005). Recently, network scholars have suggested a third possibility, ‘acculturation’, that combines an element from each of these alternatives. Under this conception, interdependent, but uncoordinated, decision-making takes place. Governments make their own decisions without cooperation or coercion—but it is interdependent in the sense that they factor in the choices of other governments from important reference groups, determined on a geographic or cultural basis (Elkins and Simmons 2005). The global diffusion of NHRIs in the Asia Pacific suggests an acculturation mechanism, increasing in intensity. Although NHRI diffusion occurs through a range of platforms, including international institutions and transnational civil society organisations, the APF’s role as a regional network remains key to the normative precision of the particular NHRI form in the region and Paris Principles compliance. The majority of standard setting, capacity building, and network facilitating activities of NHRIs are continuing to occur within the regional NHRI peer network.

The period 2011-2021 witnessed further examples of the difficulties experienced by NHRIs operating in extreme political circumstances. In Sri Lanka, increased fighting between the Sri Lankan military and the Liberation Tigers of Tamil Elam from 2006 resulted in severe human rights abuses including the murder and disappearances of thousands of civilians. In the face of international demands that Sri Lanka’s NHRI carry out an independent inquiry into allegations of human rights violations, the Sri Lankan government undermined the Sri Lankan NHRI’s independence by directly appointing commission members who supported the government and stymieing efforts towards securing accountability. In 2007, the Sri Lankan human rights commission was downgraded from ‘A’ status compliance with the Paris Principles to ‘B’ status. Following the end of the (then) Rajapaksa government, in 2015, amendments to the Sri Lankan Constitution secured changes to the process for the appointment of human rights commissioners, enhancing perceptions of transparency and positively affecting the credibility of the commission. Between 2015 and 2020, under the leadership of an energetic chairperson, the commission revived its reputation with a program of independent investigations into government misconduct and human rights abuses carried out during the civil war. In 2018, the Global Alliance of National Human Rights Institutions reinstated the Commission’s ‘A’ status. But in elections in 2020, the former government was returned to power and Gotabaya Rajapaksa assumed the Presidency. The new president and parliament again made amendments to the Sri Lankan Constitution enabling the president to directly appoint members of the human rights commission, bypassing the previous independent appointment process. Once again, civil society actors decried the non-transparent process of appointment and called for the downgrading of the commission’s Paris Principles compliant status. The Global Alliance of National Human Rights Institutions commenced a ‘special review’ of the commission to determine whether it still complies with the Paris Principles.

The Myanmar National Human Rights Commission (MNHRC) was established in 2011— initially by decree—as part of the package of liberalising reforms undertaken by the administration of former military general Thein Sein in the period 2011–2015. The government appointed the first set of commissioners, predominantly retired diplomats and academics, without input from civil society. With the support of the APF, the MNHRC was reconstituted under an act of parliament in 2014. Since then, it has struggled to fulfill its mandate within a legal framework that shields the country’s primary rights violators—the security forces—from independent criminal investigation and prosecution. The MNHRC was the subject of widespread criticism from local media, civil society organisations and UN Independent experts for its apparent unwillingness to respond to specific incidents and controversies with independence and impartiality. On 1 February 2021, the military executed a coup d’etat and removed from power the elected government of Aung San Suu Kyi. The military imposed martial law on large parts of the country, imposed nation-wide curfews and internet black-outs, arrested and arbitrarily detained thousands of protestors, and used excessive force, including by killing, those who were opposing military rule. Although the military removed and reconstituted the country’s civilian ministers and election commission, it left the MNHRC in place. The MNHRC failed to denounce the coup or call for an end to human rights abuses. The APF issued a statement condemning the coup, calling for an end to violence and expressing deep concerns about the inability of the MNHRC to perform its mandated functions.

There have also been developments in the scholarship in the period 2011–2021. In 2013, Risse and his colleagues revisited the question of why states move from commitment to human rights, through accession to treaties, to actual compliance with human rights obligations. The Persistent Power of Human Rights (Risse, Ropp, and Sikkink 2013) addresses questions such as: Why do some states remain frozen at the stage of tactical concessions and not progress towards rule-consistent behaviour? How critical is the role of independent domestic authorities in supporting the transformation from commitment to compliance? What are the precise ways in which sources of pressure, such as social shaming and sanctions, work to move states from tactical concessions to principled action? Are external processes always complementary to domestic processes, or are there circumstances in which external processes might be counter-productive? Although Risse and his colleagues do not focus specifically on NHRIs, these questions open up promising new lines of inquiry for future NHRI research. In relation to the role of NHRIs, there has been increasing attention paid to the importance of domestic legitimacy (Linos and Pegram 2017). How do NHRIs build and maintain internal platforms of legitimacy among a variety of stakeholders? Researchers have recognised that more attention needs to be paid to the resistance NHRIs face from forces within society that wish to preserve the power and value systems that NHRIs challenge (Cardenas 2014; Yefet 2021).

There have also been advances in thinking about networks (Harrington, Cullen and Renshaw 2017). Since 2011, global satisfaction with the model of global governance centred on multilateral negotiations and formal, legalised intergovernmental organisations has declined. There are claims that international law has stagnated (Pauwelyn, Wessel, and Wouters 2014) and that global institutions are unable to meet the challenges of new realities such as climate change, insecurity, pandemics and conflict. In 2017, Slaughter published a new book, The Chessboard and the Web: Strategies of Connection in a Networked World. Slaughter’s thesis is that the old geopolitics of the metaphorical chessboard (the decisions of powerful states, strategic advantages and rival states reactions) no longer exist as the only game in town. Neither does the post-Cold War global politics of the ‘complex three-dimensional chess-game’ (military power; economic power; the diffuse realm of nonstate actors) (Slaughter 2017, 14). The most relevant contemporary landscape, in Slaughter’s view, is the web view. The web view does not map separation (boundaries and sovereign power) but instead maps connection—density and intensity of networked ties across boundaries. Slaughter maintains that the growing connectedness of the world is the most important social and economic fact of our times.

It is unsurprising that the APF, as a network that links NHRIs within the Asia Pacific region, has maintained its strength and relevance for a quarter of a century. The APF functions in a region that has not developed a regional human rights mechanism and which arguably lacks the homogeneity to do so, a region in which many states remain acutely aware of their colonial past and the parameters of their sovereignty, and a region in which a new global power, China, challenges the fundamental link between human rights and democracy. Currently, in the Asia Pacific region alone, the establishment of new NHRIs is under active consideration in Cambodia, Cook Islands, the Federated States of Micronesia, Japan, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, the Solomon Islands, Tonga, Vietnam and Vanuatu. In many of these countries, nascent state-based human rights organisations already exist. The APF is providing advice and technical support to help states develop the legal frameworks of the institutions so that they comply with international standards for independence and effectiveness. Many of these institutions, once established, will face profound challenges in fulfilling their mandate to create the conditions where human rights are realised within the state. But it is impossible to reach a conclusion other than that the APF, as a regional network dedicated to supporting and strengthening independent state-based human rights institutions, is an essential structure for realising human rights in the Asia Pacific in the 21^st century. The Australian Research Council Project LPO776639 expanded the possibilities for positive human right change by demonstrating the power and potential of alternative forms of human rights organisation—and by showing us how we can creatively investigate, measure and assess change within new theoretical frameworks.

Acknowledgements

The research on which this article is based forms part of an Australian Research Council Linkage project between the Australian Human Rights Centre and the Asia Pacific Forum of National Human Rights Institutions (LPO776639).

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Catherine Renshaw

Catherine Renshaw is a Professor in the School of Law at Western Sydney University, where she teaches Human Rights Law and International Human Rights Law. From 2008 to 2010 she was Director of the Australian Research Council Linkage Project LPO776639: “Building Human Rights in the Region through Horizontal Trans-national Networks: the role of the Asia Pacific Forum of National Human Rights Institutions.”

Kieren Fitzpatrick

Kieren Fitzpatrick is Director of the Asia Pacific Forum of National Human Rights Institutions (APF).