Melbourne Law School - Theses

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Start date: 2010 × End date: 2022 × Subject: human rights × Subject: Asia-Pacific × Subject: law × Type: PhD thesis ×

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    Law, change and socialisation: constructing an account of the role of NHRIs in addressing systemic human rights violations
    Brodie, Megan ( 2017)
    National human rights institutions (NHRIs) are domestic statutory bodies established with broad mandates to protect and promote human rights within states. Over two decades since NHRIs agreed to minimum standards for independent institutions and set them out in the Paris Principles, scholarship has moved from its initial focus on the design, form and proliferation of NHRIs to examining their effectiveness, accountability role and contribution to social change. In my thesis I set out to answer the question: what, and how, do national inquiries conducted by NHRIs contribute to the socialisation of international human rights norms? I answer this question by exploring how NHRIs in the Asia-Pacific have utilised national inquiries to address systemic human rights violations. I privilege the experiences of NHRIs in conducting national inquires and adopt a constructivist grounded theory methodological approach. I explore three thematic areas: an NHRI’s foundation in law, what (if any) change has occurred, and the socialising dynamic which facilitates it. I analyse the mandate, functions and powers granted to NHRIs in their founding legislation including their capacity to undertake a national inquiry. I develop an anatomical conceptualisation of the national inquiry process to document the common procedural approaches taken by NHRIs. I begin my examination of the change created by national inquiries with the Mongolian Commission’s national inquiry on torture. From interviews with commissioners and Commission staff, judges, lawyers, prosecutors, police, prison guards, civil society representatives and leading NGOs, academics and donors I construct an account of the national inquiry process and the change it created. I also consider the change created by national inquiries in three jurisdictions across the Asia-Pacific. Focusing on process and impact, I review the Indian Commission’s national inquiry on the right to health care, the New Zealand Commission’s national inquiry addressing transgender discrimination and the Australian Commission’s national inquiry on the forced removal of indigenous children from their parents. I then analyse the socialisation processes evidenced through the national inquiries examined in the preceding chapters. I find that there are four core characteristics of the national inquiry which contribute to socialisation: a foundation in law, a relational dynamic, its public nature and orientation towards change. This complex socialisation process is a long-term project, and a national inquiry can be an influential part of it. While there are barriers to change and uncertainty about the extent of NHRI impact, the evidence does permit cautious optimism: national inquiries conducted by NHRIs offer an avenue to foster progressive and incremental domestic socialisation of international human rights norms.