The ‘scandal’ of foundation support for UN human rights Special Procedures, a response

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Editors’ Note: Upon the publication of this post, Prof. Fionnuala Ni Aolain contacted the Editors of EJIL: Talk! and advised us that, contrary to the claims made in the post, the Board of the OSI Women’s Rights Program had no financial involvement whatsoever in the award of a grant to the Center for Women’s Global Leadership. Such financial award decisions and processes were made by the Executive Director of the Program and ultimately the Global Board of OSF.

Philip Alston has found it necessary to launch an attack on the ECLJ and its report dedicated to The Financing of UN Experts in the Special Procedures of the Human Rights Council. This attack is an acknowledgment of the importance of this report, but also of its factual veracity, as he did not identify any errors. In substance, he only contested the adequation of the use of the word “capture.”

The best way to respond to this attack is to summarise the report and invite people to read it in full. Let’s first answer point by point, before going to the substance.

Mr Alston recognizes “that many independent experts working at the international level have [worked] with the Open Society Foundations (OSF), established and funded by George Soros, or have received grants from OSF or the Ford Foundation. The author of this post is one such expert.” That is true: Mr Alston received, for example, $200,000 from the OSF (through his university) in 2018, but only disclosed $5,000 to the UN (A/HRC/40/38/Add.1, p.47). He also received 400 000 $US in 2019 from OSF and declared only one “in kind” support from New York University Law School (A/HRC/43/64/Add.1, p.50). Reading the UN documents, no one would know that his mandate is paid by the OSF. It would have been interesting to have Mr. Alston comments on those facts, rather than on my supposed intentions.

Mr. Alston claims that the report “is based on anonymous interviews and anonymous quotations, said to reflect interviews with 28 past or present Special Procedures mandate-holders.” That is not true. Suffice it to notice that only four of the 28 experts interviewed refused to have their names listed at the top of the report. As explained in the report “Most of the experts interviewed, aware of the existence of a problem and the sensitive nature of the subject, asked that their comments not be attributed to them by name so that they could speak more freely. They feared the “backlash” that I’m currently facing. Some, however, agreed to be quoted and approved the quotations.” This is the reason why many quotes are not attributed in the Report, but some important are (see below). However, the interviews were recorded, unless the mandate holder refused.

Mr. Alston claims that “The report does not bother going into the question of causal effect, or putting the funding into its broader contextual setting.” That is obviously false. See for example the sections of the report dedicated to the question of the financial insecurity of the experts, to the human resources issue, to the issue of the relationship with the OHCHR, or to the lack of financial transparency of the OHCHR.

Mr. Alston says basely the following “Ironically, the ECLJ, whose report complains bitterly that the Special Procedures’ mandate-holders funding is ‘opaque’, and calls upon rapporteurs to “declare, in each report, the support and the funding given” to them, provides no information either in the report or on its website as to the source of its own funding.” This is not true: he just did not look to the proper webpage. Moreover, he should realize that there is a significant difference between an NGO (like the ECLJ) and an official “UN body” like a Special rapporteur.

Mr. Alston says that “There is no doubt that many issues need to be addressed in terms of external funding for human rights experts and institutions, including the OHCHR itself, and the regional courts, but this is a different conversation.” No, that is not a different conversation : this is precisely the point ! A point that Mr. Alston avoids by discussing the concept of capture.

Then Mr. Alston reproaches at length that “The report makes repeated use of the term ‘capture’, and treats it as a synonym for ‘privatization’ of the system.” Those notions are useful to describe a situation where a “handful of private foundations” as Mr Alston recognize, are extremely present into an institution, at various level. However, the report is not a theoretical discussion on the concept of capture: it is a collection of thousands of facts and figures, detailing the functioning and financing of the Special Procedures.  Whatever Mr. Alston considers that the concept of capture applies or not to the facts doesn’t change the reality of the facts.

And here are the facts:

This research was not only based on a series of 28 interviews with UN experts, but primarily on the analysis of financial disclosures published annually between 2015 and 2019 by the Office of the High Commissioner for Human Rights (OHCHR), the Special Procedures Mandate-holders, as well as by the main foundations funding the system, namely the Ford and Open Society foundations (between 2016 and 2019 for the latter). This research reveals the extent of support and funding granted to the experts out of the UN system. After analysis, the available financial data on the Special Procedures was found to be incomplete and often inconsistent. This is a lesson in itself, but it implies to consider the figures published in this report as giving only an indicative assessment of the situation.

This report first highlights the financial insecurity of the Special Procedures system, which has facilitated the introduction of external financial support and influences. Between 2015 and 2019, 40% of the Special Procedures budget came from additional, extra-budgetary funding from a few States, NGOs, and private foundations. Indeed, while the regular budget of the Special Procedures amounts to nearly $68 million between 2015 and 2019, almost $20 million more were voluntarily paid to the Special Procedures as a whole, mainly by the Netherlands, Germany, and the United States. Moreover, during the same period, a few States also paid an additional $14,6 Million to a selection of 51 of the 121 experts in office, through the OHCHR. Finally, during the same period, 37 of the 121 experts reported having received also 134 direct financial payments, amounting to almost $11 million; the main contributors for such direct payments are the Ford and the Open Society foundations.

The financial payments selectively allocated to a few experts – and not to the system as a whole – more than doubled between 2015 and 2019.

As explained in the report : “The experts funded in this way organize to receive and manage the money themselves. Some experts use their own NGOs, accountants, or, more frequently, university research centers. In those cases, the NGOs or universities become the operational bases from which the mandates are carried out, with research teams, administrative support, and financing.” Those “direct” fundings are therefore received and spent out of the UN System, by entities that are often directed by the expert or employing them.

At the same time, the majority of experts who do not receive this “support” must act with very little means, generously, giving much of themselves and their time. There are those who “know the system,” according to the expression used by some experts, and the others who do not know it or who want to remain truly independent.

It shall be recalled that the Code of Conduct for Special Procedures Mandate-holders, adopted by the HRC in 2007, forbids in theory experts to accept any “gift or remuneration from any Government or non-governmental source for activities carried out in pursuit of his/her mandate”. However, Mandate-holders continued to accept direct fundings from Government or NGO for activities carried out in pursuit of their mandate.

In a resolution of 2011 on the “Review of the work and functioning of the Human Rights Council” (A/HRC/RES/16/21), the Human Rights Council highlighted “the need for full transparency in the funding of the special procedures.”, and stressed that voluntary contributions by Member States, “should be, to the extent possible, unearmarked,”.No mention of private funding was made. Shortly after, the UN Board of Auditors addressed this issue in its 2011 report: it expressed concern about the existence of agreements between Mandate-holders and funders, as “the Board considers that the absence of clear disclosures could put in doubt the perceived independence of Mandate-holders.” The auditors further stressed that “earmarked donations could unduly privilege some mandates over others, potentially impacting on their perceived independence.” To address these shortcomings, recommendations were proposed, the main one being “seek ways to reduce the reliance of mandate holders on extrabudgetary funding and other forms of earmarked or un-earmarked support.”

In 2015, the HRC Mandate holders eventually adopted a text (A/HRC/31/39) in which they “agreed on the need for greater transparency of external funding received in support of their mandates, given that it might have an impact on the perception of their independence, and decided to rend disclosure of external funding received mandatory and make it publicly available through modalities to be specified further.”

However, such declaration is not compulsory, nor subjected to any control of the UN administration. Direct payments are not reflected in the financial reports of the OHCHR. Possibly, they are only declared by their beneficiaries on a voluntary basis and subsequently published in the annexes of the Special Procedures’ annual report, documents which we noted lack rigor. As a result, some experts omit to declare their direct fundings or declare it in an inconsistent manner. Between 2015 and 2019, eight direct donations were declared as “anonymous,” the amount of eighteen donations was not specified. Sometimes the indication was imprecise, and 143 donations did not have any declared purpose.

In addition, we can observe many discrepancies between the amounts declared as given by the Open Society and Ford foundations, and declared as received by the experts on the other hand. A few donations, declared by the foundations on their websites, were not declared at all by experts.

There is also an issue of opacity with donors. Fundings from foundations is generally subject to a written agreement between the donor and the recipient. Such grant agreement can be very precise, particularly when it is formed with a foundation. However, they are not given, nor notified to the OHCHR.

The report also shows that the system relies on a large number of “in-kind donations” from private actors often consisting in the provision of staff and office spaces: 36 of the 121 experts report having received 125 “in-kind donations” between 2015 and 2019. These in-kind donations are not assessed but can be substantial.

As explained in the report, extrabudgetary fundings – especially direct fundings – can affect the independence of the expert as it can, most notably, influence their agenda and create a dependency. The degree of dependence naturally varies according to the importance of the funding that can amount from $5,000 to around a million dollar by a single funder.

This issue of transparency has direct consequence on UN documents. For example, in 2015, the Ford Foundation gave $15,000 and $75,000 to Juan Méndez (Special Rapporteur from 2010 to 2016), through his Anti-Torture Initiative, for the writing of an annual thematic report on “gender and torture.” This money was used to pay for staff, travels, events, and for the publication of the report. Ultimately, an official report entitled Gender Perspectives on the Prohibition of Torture and Cruel, Inhuman and Degrading Treatment (A/HRC/31/57) was presented by the rapporteur to the Human Rights Council in January 2016 under the UN stamp. It was twenty-three pages long and did not disclose any information on its funding. In fact, no such report presented to the UN discloses the origin of its funding. This report was then referenced in judgments of the European and the Inter-American courts of human rights and in the Views adopted by the Committee on the Elimination of Discrimination against Women regarding a communication (No. 138/2018).

The experts interviewed recognized that direct payments influence the experts’ political agenda. For example, Vernor Muñoz, former Special Rapporteur (2004-2010) states that “This is the most difficult implication of having resources from external sources, that they just require you to follow certain agendas or certain interests . . . meaning that some donors want to push mandate holders to follow their own interests and their own agenda[s].” Another expert, Gabor Rona, explained that individual States’ financial contributions to individual mandates “are valuable and necessary to the health of the Special Procedures system, but they create the appearance, if not the fact, of undue influence.” Richard Falk, who served as Special Rapporteur from 2008 to 2014, declared that direct funding “can have a corrupting effect.”

Otherwise, some experts are hired by institutions with a specific agenda related to the Mandate. See, for example, the situation of Melissa Upreti, Chair of the UN Working Group on Ending Discrimination against Women (2017), who was recruited on the same year as a Senior Director in charge of Global Advocacy by the Center for Women’s Global Leadership (CWGL), after serving at the Center for Reproductive Rights. The CWGL describes itself as a center that is doing “United Nations monitoring and advocacy.” This means that Mrs Upreti position at the CWGL is intended to influence her colleagues at the UN

In order to have a larger vision of the mixed relationships between foundations, experts and NGOs, it is instructive to notice that the same year 2017, the CWGL received $100,000 from the OSF with the explicit purpose of “influencing the UN Special Rapporteur on contemporary forms of slavery” so that she writes a thematic report on domestic work. The Rapporteur published such report the following year, quoting extensively the CWGL (A/73/139). The Chair of the Board of the Open Society Foundations Women Program who made the payment was Fionnuala Ní Aoláin, who also became Special Rapporteur in 2017. I consider problematic to afford money in order “to influence” a UN official position, as well as the fact to take consequently such an official position, and moreover to do so without resigning immediately from the OSF. In fact, the Open Society and Ford foundations are not only the main private direct funders of the Mandate holders, several board members of the OSF became Mandate holders, like LM. Puras, Balso or Garcia-Sayan, in addition to Mrs Ní Aoláin. Many other Mandate holders are coming from NGOs also financed by the same foundations.

Behind the issue of the financing of the Special Procedures, it is true that there is another bigger issue that is the one of the massive influence of “a handful of private foundations,” as Mr. Alston says, over the Human Rights system.

I hope this report will contribute to expose this situation, and  that, as a result, the Governments and the OHCHR will eventually decide to enforce clear financial and ethical rules, and above all, to provide sufficient institutional, transparent and neutral support and fundings to the Special Procedures. I believe it was necessary to expose this for the good of the system.

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