Institutional Partnership or Critical Seepages? The Role of Human Rights NGOs in the United Nations

Chapter 17
Institutional Partnership or Critical Seepages? The Role of Human Rights NGOs in the United Nations

Dianne Otto

1. Introduction

In 1945, international human rights non-governmental organizations (NGOs) were made possible by the United Nations (UN) Charter, which recognized the universality of human rights for the first time1 and introduced the terminology of NGOs,2 and by the UDHR,3 which laid the groundwork for the normative and institutional developments that were to follow. Today, six decades after the adoption of the UDHR, the accounts of the role of human rights NGOs in the promotion and protection of universal human rights are manifold. The majority of commentators describe a considerably more expansive role than the consultative function, limited to the economic and social field, which was envisaged in the UN Charter. Many accounts celebrate human rights NGOs as indispensable to the operation of the UN systems for promoting the domestic implementation of human rights.4 They have been credited with playing a major role in critical global transformations, such as the fall of the Berlin Wall and the ending of apartheid in South Africa.5 Human rights NGOs have also been depicted as part of the vanguard of an emergent international civil society, helping to shape new forms of global governance that are more democratic and inclusive.6 In this role, NGOs have been variously described as bringing ‘the voice of the people’ or ‘the conscience of the world’ to international law and governance.7 There are also less celebratory accounts. Stalwarts of the realist tradition have always maintained that the impact of human rights NGOs is negligible, while others have suggested that they are merely a mouthpiece for ‘global elites’,8 a neo-imperial tool for the promotion of Western liberal values aimed at ‘civilizing savage cultures,’9 and themselves ‘part of the problem’.10

The following account of the role of human rights NGOs has relatively modest goals. It will focus on the proliferation of both formal and informal institutional developments in the UN that have enabled human rights NGOs to participate in increasing numbers in a very broad array of intergovernmental forums, and examine how this has shaped and challenged both the way that institutions have approached the development of international human rights law and its implementation, and the ways that NGOs have sought to influence institutional processes. After outlining many of the developments I have in mind, my discussion will focus on the challenges that increased institutional interaction presents, on the one hand, to multilateral institutions and their member states and, on the other hand, to the way that human rights NGOs conceive of their role. For the institutions, while there is much to gain, there are many unresolved problems about how to deal with those states who fear criticism by NGOs, and how to formalize NGO involvement in a way that is controllable and does not displace states from their ‘primary’ role. For NGOs, there are problems associated with the institutional privileging of Western NGOs, the extent of compromise that engagement extracts, and the dangers of institutional cooption.

Six decades after its adoption, it is clear that the UDHR has inspired thousands of diverse, creative and insistent movements for change, which organize locally and internationally, and from many in-between vantage points. Yet, there is very little agreement about how to conceptualize the role of the NGOs of these movements in the UN’s promotion and protection of human rights. There are many possible roles on the table: as providers of expert advice and technical assistance; as partners with states, multinational corporations and other international actors; as advocates for oppressed and powerless people(s); as adversaries bent on challenging the primary position of states in the international system; or as apologists for a state-based system sorely in need of the legitimacy that human rights NGOs can provide. I conclude that while human rights NGOs have become indispensable to the operation of all the UN human rights systems as we know them today, this has endangered many of their aims and the aspirations of the UDHR. I urge a revitalization of the emancipatory goals that have inspired human rights movements over the centuries and are reflected in the UDHR and, in pursuit of those goals, a critical engagement with the institutional openings that are on offer today.

2. The Expanding Institutional and Normative Participation of Human Rights NGOs

The UN Secretary-General’s Panel of Eminent Persons on UN-Civil Society Relations reported in 2004 that the participation of civil society in the UN had been ‘growing exponentially’,11 to the point that it is now ‘pivotal’ to ‘managing globalization’ so that it is inclusive and equitable.12 Building strong ‘partnerships’ between states, civil society and other global actors with vested interests is recommended as a means of enhancing the quality of intergovernmental deliberative processes, making the UN more responsive and accountable and therefore more effective.13 In opting for a ‘partnership’ model, the panel’s report (Cardoso Report)14 took a neo-corporatist approach that recognizes the significance of engagement with organized sectional interests but, in the process, ignores the general public interest.15 Although the report treats ‘international civil society’ as a single undifferentiated entity and therefore does not give human rights NGOs specific treatment,16 it nevertheless provides a useful backdrop to a discussion of their present engagement in the UN system. Like other civil society actors, human rights NGOs have proliferated in the period of post-Cold War globalization, vastly expanding the scope of their participation in UN forums, extending well beyond the consultative role envisaged by Article 71 of the UN Charter, which, as the Cardoso Report observes, implies they ‘can speak only when invited and are not participants in their own right’.17 Also in common with other civil society actors, formal accreditation arrangements have been completely outpaced by informal practices, and the influence of human rights NGOs is no longer confined to matters within the ECOSOC’s sphere.18

However, the Cardoso Report fails to identify the many distinctive features of the expanding engagement of human rights NGOs with the UN, two of which I want to highlight. First, while the panel suggests a cautious approach to removing the restrictions of Article 71,19 it is clear that human rights NGOs have already forged many new institutional practices within the UN’s human rights systems, which allow them to participate, at least to some extent, ‘in their own right’. Second, human rights NGOs have carved out an increasingly central role in normative development, something that, in the panel’s view, should remain firmly in the hands of states.20 I also question whether the concept of ‘partnership’ is accurate, or even desirable, as a description of these interactions.

2.1 Institutional Developments

Many systems for the promotion and protection of human rights have developed under the broad umbrella of the UN, including through its specialized agencies and funds. However, in this section, I will focus on the institutional practices that have developed in the two most important schemes – the charter-based system developed pursuant to the UN Charter’s recognition of the link between the universal enjoyment of human rights and international peace and security, and the treaty-based system under which states have assumed specific human rights obligations. As they have developed, both systems have gradually given human rights NGOs a much more substantial role than consultation that, at least on the surface, might be described as partnership.

In the charter-based system, the Commission on Human Rights was the major human rights body until 2006, when it was replaced by the Human Rights Council.21 Much of the work of the commission would simply not have been possible without the involvement of NGOs, many of which built significant capacity to provide it with credible information about alleged human rights violations.22 They also put pressure on the commission to establish procedures that would enable it to publicly address the concerns they were raising, hoping thereby to ‘shame’ states into changing their violative practices. Those NGOs with ECOSOC accreditation23 were able to attend the commission’s annual sessions, and large numbers of NGOs, many of whom were not officially accredited, regularly participated in the NGO forums that were held contemporaneously. While the hope that the commission’s membership of 53 states would develop procedures capable of subjecting individual states to serious scrutiny might well be dismissed as utopian, the recent establishment of the Human Rights Council to replace the commission could be seen as motivated by the same hope.

In the shadow of the often shameless political jockeying by states to avoid scrutiny of their human rights record by the commission, two types of procedures were eventually adopted in order to do just that. The first crack in the edifice of state sovereignty was the establishment by ECOSOC of two petition procedures – a public procedure in 196724 and a confidential procedure in 197025 – which would address ‘situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights’.26 Human rights NGOs have always had standing to submit communications under these procedures, and these are, in practice, their most important source of information.27 The second type of procedure developed by the commission was to appoint independent human rights experts with country-specific or thematic mandates, able to respond to individual communications, provide research and advice, and monitor and publicly report on matters within their mandates.28 These ‘special procedures’ were described by the former UN Secretary-General, Kofi Annan, as the ‘crown jewel’ of the UN’s human rights system.29 Many of them were established as the direct result of NGO lobbying,30 and they, too, rely heavily on information from NGOs:31 indeed, many of the positions are occupied by experts from the NGO sector. Of special significance for NGOs is the work of the Secretary-General’s Special Representative on Human Rights Defenders, whose position was created in 2001.32 While mandated to investigate individual human rights abuses suffered by human rights defenders, the vast majority of concerns that the special rapporteur has raised with governments have been about individuals who have been targeted in their capacity as members of human rights NGOs.33 While this work does not formally make NGOs subjects of international law, it comes close.

Another key site, where the formal prescriptions for NGO participation have been pushed beyond their limits, was the Commission’s Sub-Commission on the Promotion and Protection of Human Rights,34 also disbanded in the process of establishing the Human Rights Council. The Sub-Commission’s role included standard-setting and the preparation of working papers and studies aimed at keeping the commission abreast of current human rights issues. It was made up of 26 experts, nominated and elected by member states of the commission for 4-year terms, enabling it to adopt more creative procedures for NGO participation than the commission, and to be more outspoken in condemning human rights violations.35 A particularly far-reaching practice, developed by the Sub-Commission’s Working Group on Indigenous Populations during the 1980s and later formalized by the commission, was to allow the full participation of organizations of indigenous peoples in its drafting of the Declaration on the Rights of Indigenous Peoples.36 The process was hailed by one indigenous leader as transformational,37 and the experience led eventually to ECOSOC establishing, in 2000, a new advisory body, the Permanent Forum on Indigenous Issues, whose membership comprises equal numbers of representatives of states and indigenous peoples.38 The Cardoso Report describes the forum as an example of ‘innovation in governance’, promoting it as a model for the type of future system-wide, ‘multi-stakeholder’ advisory bodies that it supports.39

Future opportunities for NGO participation rely heavily on the approach of the new Human Rights Council, which was established to replace the commission in an attempt to ‘depoliticize’ the UN’s human rights work, in the sense of making it possible to address human rights violations more impartially.40 With the introduction of the universal periodic review procedure, under which all states must report on their human rights compliance on a rotating 4-year schedule,41 new opportunities for NGO participation have been created, described as making ‘stakeholder submissions’ by the UN Office of the High Commissioner for Human Rights (OHCHR).42 However, while the formal understanding is that NGO participation will continue to be based on the same arrangements and practices of the commission, including retention of the existing ECOSOC accreditation procedures, there are already signs that the Human Rights Council may be less amenable to NGO involvement in practice with, for example, the discontinuation of the commission’s public petition procedure, the limited ‘advisory’ role given to its Advisory Committee of 18 experts, and the emphasis on dialogue and cooperation rather than condemnation.43 Even the semblance of ‘partnership’ with human rights NGOs in the charter-based system may prove to be ephemeral.

The UN’s second main human rights system, based on monitoring states parties’ treaty obligations, is also ‘heavily reliant’ on information provided by NGOs,44 and many innovative processes for increasing the participation of NGOs have been developed. All bar one of the nine major human rights treaties establishes an expert committee which is empowered to monitor its implementation. The exception is the International Covenant on Economic, Social and Cultural Rights (ICESCR).45 To fill this gap, ECOSOC created the ICESCR Committee as a subsidiary body in 1985, modelled on the committee that monitors the International Covenant on Civil and Political Rights (ICCPR).46 It follows that the ICESCR committee is the only treaty body subject to the ECOSOC accreditation system, although this has not stopped it from establishing its own additional procedures. The treaty bodies have all developed informal practices that encourage and facilitate both national and international NGO participation.47 Many of these initiatives have later been adopted by other treaty bodies, a process that has been supported by the Meeting of the Chairpersons of the Human Rights Treaty Bodies. In 1995, the chairpersons emphasized the importance of information provided by NGOs,48 and in 1996 they encouraged NGOs to critically examine the work of the treaty bodies, as a means of enhancing their effectiveness.49 The more recent human rights treaties provide an explicit legal basis for cooperation with NGOs – the Convention on the Rights of the Child (CRC),50 the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CRMW),51 and the Convention on the Rights of Persons with Disabilities (CRPD).52

The primary monitoring method available to the treaty bodies is their mandate to review the periodic reports that states parties are required to submit every 4–5 years. All the treaty bodies have come to welcome parallel or shadow reports from national as well as international NGOs, which are then formally distributed to committee members and taken into account when reviewing states parties’ reports.53 As Nigel Rodley explains, this puts treaty body members in a better position to question the ‘usually self-serving’ claims of the official reports of states.54 The ICESCR committee has even adopted a procedure for soliciting reports from NGOs once it has received a state party’s report and, because it is a subsidiary body of ECOSOC, NGO shadow reports are issued as official UN documents and translated into the working languages of the committee.55 Many of the treaty bodies also make provision for formal discussions with NGOs. Pre-sessional working groups of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),56 ICCPR and CRC committees, for example, meet with NGOs as they prepare for dialogue with states parties about the information provided in their reports,57 while the ICESCR committee devotes the first day of each of its reporting sessions to hearing oral submissions from NGOs.58 Many additional practices have been crafted by particular treaty bodies. For example, the ICESCR committee initiated the practice of involving NGOs in days of general discussion on particular aspects of the covenant and in preparing drafts of general comments (authoritative interpretations) on specific provisions,59 and the CRC committee has requested a number of NGOs to undertake specific research for the committee.60

A second monitoring method available to some of the treaty bodies is their capacity to consider individual and, in some cases, group complaints.61 The procedures provide another avenue for NGO participation. The starting point for all of them is that complaints must be made by the victim of the alleged human rights violation(s) or, with the group procedures, by the group of individual victims,62 but not NGOs. This point was underlined during the drafting of the Optional Protocol to the ICCPR, which establishes the ICCPR procedure, when a US proposal that NGOs with ECOSOC consultative status be permitted to author communications was rejected.63 However, the practice has developed that in exceptional circumstances there may be some scope for an NGO to submit a communication on behalf of the victim if the victim is unable to submit personally, and there is also the capacity for an NGO to act as the victim’s representative.64 According to Lindblom, it is not common for NGOs to represent a victim in communications brought under the ICCPR procedure,65 but it happens more frequently with complaints made under the Convention for the Elimination of Racial Discrimination (CERD)66 and the Convention Against Torture (CAT)67 procedures.68 In practice, it is likely that NGOs are much more involved in encouraging victims to make complaints, and supporting them through the process than is formally recorded. The more recently established CEDAW, ICESCR and CRPD procedures take a broader view, formally recognizing that a complaint may be made by someone acting on the victim’s behalf, giving NGOs standing to bring a complaint, provided the victim has consented or the NGO can otherwise justify bringing the complaint. While NGOs may themselves be victims of human rights abuses – for example as a result of threats to collective associational or free speech rights – they do not have standing to bring a complaint in their own case, and, in any event, the human rights treaties only recognize individual rights, with few exceptions.69

Another feature of the treaty-based system is that it has generated dynamic NGO constituencies in each of the substantive issue areas covered by human rights treaties, creating many opportunities for international and national NGOs to network and link in their efforts to engage with the treaty bodies. I offer three examples. First, International Women’s Rights Action Watch Asia-Pacific (IWRAW-AP), based in Kuala Lumpur, Malaysia, offers training about CEDAW to local and national NGOs in the Asia-Pacific region, and coordinates a global programme that has enabled it to assist over 100 NGO delegations to prepare shadow reports and attend the CEDAW sessions when the report of their state is discussed.70 Second, the Anti Racism Information Service (ARIS) is an NGO that was founded in 1992 to keep national and regional NGOs informed about the work of the CERD committee and help them in the preparation of shadow reports or individual complaints. The ARIS maintains a substantial database pertaining to all states that have ratified CERD and more than 180 minority groups.71 Third, the NGO Group for the Convention on the Rights of the Child, established in 1983, coordinates a network of over 80 international and national nongovernmental organizations to support and assist the work of the CRC committee.72

In sum, it is clear that the information provided by human rights NGOs is indispensable to the operation of all the UN’s human rights machineries, whether charter or treaty based, and that there have been many institutional developments aimed at enhancing the availability of this information, although there are more recent signs that states may resile from some of these practices, at least in the charter-based system. In addition to strengthening their role as informants, these developments have helped NGOs to become active participants by enabling them to submit petitions and communications on behalf of or as representatives of victims alleging violations; to table and, in some forums, speak to critical reports that shadow states’ periodic reports to the treaty bodies and the Human Rights Council; to participate directly in many treaty-body processes, including the drafting of General Comments and pre-sessional preparations for the review of periodic reports; and to put pressure on intergovernmental bodies to develop better accountability mechanisms that NGOs can, in turn, utilize to draw attention to human rights violations and to bring pressure for change. Although many of these institutional developments may look like partnerships, they are controlled ultimately by states, and human rights NGOs continue to be unable to formally participate in intergovernmental forums. However, there are seepages everywhere. Using informal processes that are hard for the institution to control, NGOs have often been able to substantially influence formal decision-making and participate in their own right in many UN forums.

The participation of human rights NGOs in the UN’s human rights systems has also had a significant normative impact, perhaps more than in any other area of engagement of civil society with the UN. As Rodley describes it, ‘NGOs have been an engine, perhaps the engine … in the evolution of laws, norms and standards in the field of human rights’.73 While only states and intergovernmental organizations are formally able to ‘make’ international law, NGOs have been very influential in the shaping of international human rights law, both directly in the drafting of treaties and indirectly in their interpretation and application, and also in fostering the development of customary international law. Playing a role in normative development exceeds the limits of ‘consultation’, bringing NGOs into a relationship that can closely resemble ‘partnership’ with states but which, I argue, is of a different quality.

There are many instances of direct involvement of human rights NGOs in drafting treaty texts, to the point where today, it would be unthinkable to embark on such a project without them. Two examples will suffice for present purposes – the role that Amnesty International and other NGOs74 played in securing the adoption of CAT in 1984, which brought NGOs from the sidelines to the table of drafting negotiations, and the involvement of NGOs in drafting the CRC from 1979 to 1989, which demonstrated the power that can come from the coordination of NGO efforts. Since then, NGOs have been actively involved in all the commission’s working groups that have drafted human rights instruments.75

The first step that Amnesty International took towards having the UN take up the issue of torture was to launch an international Campaign for the Abolition of Torture in December 1972, aimed at persuading governments to establish legal mechanisms that would enforce the prohibition against torture, as set out in Article 5 of the UDHR.76 The campaign led to the adoption of a General Assembly resolution in late 1973 which condemned torture and other cruel treatment.77 At the same time, the problem of torture was highlighted by world events, with the brutality of the regime that overthrew the Allende Government in Chile in 1973 and evidence of widespread torture practised in Portugal that was uncovered by the 1974 coup.78 These events, and the sustained contributions of NGOs, led to the promulgation of a number of soft-law instruments,79 including the Declaration Against Torture which was adopted by the General Assembly in 1975.80 Increasingly concerned about the actions of the South African apartheid regime, the General Assembly called on the Commission on Human Rights in 1977 to draft a convention.81 The NGOs worked initially in the margins of the commission’s drafting sessions, but gradually assumed a more central role. Although Amnesty, unlike most other NGOs, has a policy of not proposing or supporting specific text in order to maintain its independence, it lobbied governments to include a number of key principles in the text which contributed to ‘strengthening some aspects of the final Convention’, in the rather conservative estimate of Amnesty activist Helena Cook.82 The procedural advance, which would have lasting institutional effect, was that the distinction between states and NGOs largely disappeared in the drafting process – something that would have been inconceivable in 1948 when NGOs were reliant on states’ representatives to present their proposals during the drafting of the UDHR.83