12.3. THE BASIS FOR RECOMMENDATIONS Recommendations should have a firm basis in law and fact. They should be based on the evidence and information gathered by the inquiry. They should address the inquiry’s terms of reference and respond to the facts of the situation as revealed by the inquiry, measured against the requirements of international human rights law. The inquiry’s terms of reference provide an initial checklist of matters to be addressed in the recommendations. The inquiry should be sensitive to ensuring that it has done what it was asked to do, addressing each of the terms of reference adequately and, in doing so, providing such recommendations as may be necessary to ensure the performance of relevant human rights obligations. In developing recommendations, the inquiry should go back to the terms of reference regularly to check that it is addressing each of them. Second, because recommendations must be based on fact, they should flow from the evidence provided to the inquiry and from the inquiry’s own analysis and findings. On the one hand, where recommendations have no connection to what the inquiry has been told and what it has found, they will have little credibility and the integrity of the inquiry will be undermined. Recommendations should not be what the inquiry would like but what the inquiry considers is required to respond to the facts as found. On the other hand, where the inquiry receives significant evidence of actual or potential violations of human rights but does not make the recommendations necessary to respond to that evidence, then it will be justly criticised for ignoring what it has been told and what it has found. In developing recommendations, the inquiry will have regard to the evidence provided and consider whether all the key findings in relation to violations have been the subject of recommendations to address deficiencies in performance. If, in developing recommendations, the inquiry finds that some areas of evidence are incomplete, it should find ways to fill the evidentiary gap. That is one important reason for recommendations to be developed and refined progressively over the period of the inquiry, so that evidentiary gaps can be identified and filled as soon as possible. Third, the recommendations must be based on international human rights law. An NHRI has human rights expertise and is empowered to act on the basis of that expertise. The national inquiry performs that function in relation to the issue or situation it is investigating. It is a human rights inquiry, not a social welfare inquiry or an economics inquiry. Its recommendations have to address what needs to be done to comply with these human rights obligations. It must examine the obligations under those international human rights treaties that the State has ratified and, depending on its founding law, it may also be able to look at human rights obligations under other treaties, under customary international law and under human rights standards generally accepted in the UN Charter-based system, including declarations and resolutions of the UN General Assembly and the Human Rights Council. 12.4. TO WHOM SHOULD RECOMMENDATIONS BE DIRECTED? A national inquiry can direct recommendations to all relevant actors, not only to the Government. It can direct them to any body, organisation or even individual with a role in addressing the violations or improving human rights compliance. These can include: • • • • • • • • • • governments at national, provincial and local levels government departments, agencies and officials parliaments courts business organisations trade unions religious organisations academic institutions NGOs victims themselves. Chapter 12: Develop recommendations | 59