The Ombudsman, Good Governance and the International Human Rights System

Over the course of the past century, government administration has expanded greatly and complaints about bureaucratic conduct have grown in parallel. In response, the ombudsman institution has been established by the state in many countries around the world.¹ Although the ombudsman in its contemporary form dates back to the Swedish ombudsman of 1809, the institution only began to spread outside Scandinavia starting in the 1960s.²

As described in Chapter 1, there have been various adaptations of the legislative ombudsman around the world at the national and sub-national levels of government. Over the past few decades, the ombudsman concept has been expanded into other areas, in both the public and private sectors, and even into the international or supranational level of governance. In all large public and private organizations, large bureaucracies operate, often to the detriment of their employees, clients or customers. As many grievances have arisen out of organizational interactions with individuals, the ombudsman has been adopted and adapted by these organizations as a pragmatic dispute settlement mechanism to improve employee, customer and public relations. This adaptation of the ombudsman concept has been based on the need for alternative complaint processes to the courts, given the disadvantages of judicial action for many persons in both developed and developing states, because of the financial expenses involved in litigation, the delays in rendering judgment and the limited judicial remedies available given the wide variety of consumer, client and employee complaints. Public and private sector institutions have seen the ombudsman mechanism — which is free of charge, accessible, informal and relatively fast compared to the courts — as a way of resolving disputes effectively and efficiently. The ombudsman is also seen as an means to offset the inequalities of size and bargaining power between large organizations and individuals with complaints. In this respect, the many uses of the ombudsman mechanism are forms of alternative dispute resolution (ADR).

Classical and hybrid ombudsman institutions can act as mechanisms of democratic accountability, thereby promoting democratic development in a state. Accountability can be conceptualized as having horizontal and vertical aspects. This Chapter will explore the place of the ombudsman in a democratic state, the concepts of horizontal and vertical accountability and the manner in which an ombudsman can improve the operation of the administrative branch of government by serving as both a horizontal and a vertical accountability mechanism.

Both the classical and human rights ombudsman can be categorized as national human rights institutions, along with the human rights commission and specialized institutions. This Chapter will define national human rights institutions and examine the attention paid by major international organizations to the ombudsman and other national human rights institutions. In particular, the work of the UN and its Paris Principles will be explored. This Chapter will also describe how both classical and human rights ombudsmen can act as non-judicial domestic mechanisms for the protection and promotion of human rights, and how they can assist in the domestic application of the international human rights law obligations of the state. The role and approach of an institution will differ depending on whether it is a classical ombudsman or a hybrid office with both human rights complaint and ombudsman functions. The ability of each type of institution to implement or promote international human rights norms is dependent on a number of factors. Each ombudsman institution is unique in the extent of its human rights activities, based on the particular legal environment of the state in which the ombudsman office is located.¹

The western hemisphere (or the Americas) contains countries of considerable diversity. Although Latin American states have similarities based on their Iberian heritage, they are also quite different in other respects.¹ Countries in North America and the Caribbean have been influenced by their European colonizers — primarily Great Britain, France, Spain and the Netherlands.² Countries such as Canada and some Caribbean states retain loose ties through membership in the Commonwealth and La Francophonie.³ For the western hemisphere as a whole, both the Organization of American States (OAS) and the Summit of the Americas process provide fora for discussion and action on matters of common concern.⁴ In the Caribbean region, CARICOM and the Organization of Eastern Caribbean States (OECS) enhance regional cooperation.

The ombudsman was introduced in some Commonwealth countries in Africa, Asia and the Pacific, starting in New Zealand in 1962, followed by Tanzania and Mauritius during the 1960s, and in others during the 1970s and 1980s. Even at this stage, although the classical ombudsman model was predominant, adaptations began to occur, such as the executive ombudsman, use of multi-member bodies or conferral of leadership code enforcement duties on the ombudsman. Ombudsmen were established in greater numbers during the 1990s, expanding outside the Commonwealth. Several factors can been seen as contributing to this development, such as the democratization of a number of countries in these regions during the 1990s and the increased interest of the international community, especially development agencies and donor governments, in good governance and national human rights institutions. Starting in the 1990s, classical and hybrid ombudsmen, human rights commissions and specialized institutions began to proliferate in Africa and, to a lesser extent, in Asia and the Pacific. In particular, extreme examples of hybrid ombudsmen can be found in Africa, with institutions that add human rights protection, anti-corruption, leadership code enforcement and/or environmental protection mandates to the ombudsman function. In Asia and the Pacific region, while human rights ombudsmen are still the exception, anti-corruption and leadership code enforcement mandates have often been conferred on ombudsmen.

In the post Cold War period, armed conflict continues to proliferate. Inter-state conflict, however, is the exception. Civil conflict — based on ethnic, religious, political and other differences — is common.¹ War-torn societies suffer from a variety of domestic weaknesses, including state institutions that are flawed or have been destroyed, human rights abuses and breakdown in the rule of law. After the conflict ends, reconstruction of state and societal sectors needs to occur to prevent the state from slipping back into armed conflict. The concept of post-conflict peace-building developed in the 1990s, often associated with internationally-brokered peace agreements.²

The single-sector ombudsman has been used to provide a monitoring, protective and accountability device for specific categories of individuals who come into contact with the administrative arm of the state. The single-sector ombudsman model was discussed in Chapter 2. The international community has promoted the establishment of national human rights institutions for children, primarily the ombudsman for children, since the 1990s, following domestic developments in Scandinavia in the 1970s and 1980s. However, the creation of domestic institutions for children has been haphazard, with a variety of institutions established with differing degrees of independence and powers. Some ombudsmen for children do not have the same levels of independence or powers of investigation compared to the legislative ombudsman. Others have additional mandates taken from the human rights commission or human rights ombudsman models. The advocate model has been adopted in some jurisdictions for child protection.

Public international law is a system of law that governs relations between entities with international legal personality, mainly states and some international organizations which have more limited rights and duties.¹ Over more than a century and particularly since 1945, an increasing number of international organizations have been established by states to place intergovernmental cooperation on a more formal level. Today, there are numerous international organizations with purposes that range from the comprehensive and global scope of the UN to those with more specialized or regional mandates.²

The European Ombudsman was established by the European Union’s (EU) Maastricht Treaty to oversee the conduct of European Community (EC) institutions and bodies, excluding only the Courts when acting in their judicial role. As noted in Chapter 10, the European Ombudsman can be categorized generally as one of the external accountability mechanisms of the supranational EU. In particular, the European Ombudsman is the only example of a fully-fledged, classical ombudsman at the international level. It was created in an attempt to reduce the democratic deficit in the EC, by improving the channels for persons living in EU member states to voice their complaints over EC governance, and by increasing the EU’s transparency and accountability. The European Ombudsman addresses instances of Community maladministration, thereby improving good governance on the part of the Community institutions and bodies. Also, human rights matters fall within the jurisdiction of the European Ombudsman and, thus, the office can and does contribute to the EU’s observance of human rights.

The number of classical and hybrid ombudsmen in the world has increased substantially over the past twenty-five years. A hallmark of this development is the large number of hybrid and multiple mandate ombudsmen which have been established, especially in Europe, Latin America and parts of Africa, Asia and the Pacific region. These hybrid ombudsmen are mainly human rights ombudsmen, although a number have anti-corruption, leadership code enforcement, good governance and/or environmental protection functions. Even classical ombudsmen are being given extra duties, whether it be freedom of information monitoring, health services ombudsman work or child abuse protection responsibilities. As Chapter 3 has illustrated, public sector ombudsmen in all their variations can be used as mechanisms to build good governance, and the international community and states are beginning to recognize this feature of the ombudsman mechanism.