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

In July 2021 the European Centre for Law and Justice published a report entitled The Financing of UN Experts in the Special Procedures of the Human Rights Council. It is based on anonymous interviews and anonymous quotations, said to reflect interviews with 28 past or present Special Procedures mandate-holders. It purports to expose the links that many independent experts working at the international level have 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. These are among only a handful of private foundations in the world that provide such support. The report argues that foundation funding is often aimed at guiding the actions of the mandate-holders, “or even framing and controlling it,” thus undermining their independence.

The report does not bother going into the question of causal effect, or putting the funding into its broader contextual setting. Nor does it pay any attention at all to the far larger source of funding received by individual experts, which comes from UN Member States. The report simply concludes with a quotation intended to be self-explanatory: “c’est celui qui paie qui choisit la musique”, which is probably best expressed in English through the old aphorism that he who pays the piper calls the tune.

At exactly the same time as the report was published, in July 2021, a French far-right weekly news magazine, with a circulation of 110,000 copies, ran a cover story with a full page picture of Soros accompanied by a banner headline “The Soros coup d’etat”. In twelve full pages the magazine recounted the details of the ECLJ report, and rehashing the story it had run a year earlier alleging that many judges of the European Court of Human Rights had Soros ‘connections’ and suggesting that they should not have sat in any cases involving human rights organizations with funding links to Soros. The 2021 article purported to show “how George Soros extends his influence to the United Nations”.  It also noted that Soros “campaigns in particular for the legalization of drugs, prostitution and abortion”, thus giving a fairly clear picture of the main pre-occupations of the author but not of Soros or OSF. Indeed, the primary aim of the report appears to be to undermine the system of Special Procedures because it has been highly successful in promoting values such as women’s equality and access to reproductive rights, ideas with which the authors disagree.

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.  In fact, the ECLJ was set up by and remains very closely linked to the American Center for Law and Justice which is a conservative Christian activist organization, led by Jay Sekulow, who was a strong supporter of and personal lawyer for President Trump, and whose principal charitable concerns focus on the fight against abortion. The financial arrangements behind this charity are both opaque and problematic. The Associated Press recently reviewed all available tax records for the ACLJ and other charities tied to Sekulow. They reportedly showed that more than $65 million in charitable funds raised for the ACLJ and its charitable arm, Christian Advocates Serving Evangelism (CASE), were paid to Sekulow, his immediate family, and their corporation. This led the American Institute of Philanthropy to issue a ‘Donor Alert’ about ACLJ on its CharityWatch website. This was consistent with earlier reporting by The Guardian.

The ‘dramatic’ revelations contained in the report come from OSF and the Ford Foundation and are based entirely on information that is in the public domain.  Both Ford and OSF report regularly on the recipients of their funding and the nature of the projects supported.

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. Instead, the ECLJ report simply asserts that UN Special Rapporteurs who receive such funding are then obliged to do what the funders tell them.

In making such a simplistic causal connection, the study relies heavily upon the concept of ‘capture’ to describe the relationship that exists between funders and grantees.  In doing so, it relies upon an equally sensationalist book by Gaëtan Cliquennois who uses the idea of capture to provide a flimsy conceptual framework to support a study that purports to trace “the growing capture by private foundations of the European justice system.” Their influence on the European Court of Human Rights is said to consist of “orienting and even capturing a significant portion of its jurisprudence, its execution of judgments, its evolutive structures and even its agenda-setting.” Quite a claim! It seems that all of the international human rights bodies that are generating jurisprudence that runs contrary to the beliefs of this particular group of Christian conservatives have been ‘captured’.  An alternative interpretation might be that they are applying and promoting the principles reflected in international human rights law, but this is not contemplated by either study.

The ECLJ report makes repeated use of the term ‘capture’, and treats it as a synonym for ‘privatization’ of the system. It doesn’t elaborate on what either of these concepts mean but does include two footnotes for those needing more clarification.  One of these refers to the Cliquennois book. The assumption seems to be that if the concepts of capture and privatization are repeated often enough, they will come to assume a conceptually coherent meaning even without the authors needing to provide one.

The term capture is generally used to describe a level of influence that is considered to be inappropriate or excessive. It is true that some authors use the term in a non-technical and even non-pejorative way to describe cultural or other forms of influence. But then they make clear that the type or sense of capture that they are discussing has little to do with the literature on regulatory or state capture.

Taking account of that broader literature, several observations seem pertinent. First, there is a major difference between capture and forms of influence that are considered normal and acceptable.  The judicial process, for example, especially in the context of the European Court of Human Rights, is deliberately constructed so as to accommodate various parties who wish to influence the approach taken in a case. The opportunities for third states to intervene and for other third parties to make submissions are intentionally designed to broaden the stakes in the process and to ensure that a wide net is cast for inputs into the judicial process. 

The same applies in relation to the work of Special Procedures mandate-holders. They are enjoined to seek inputs from all relevant stakeholders and NGOs have, from the very beginning of the system, been the single most important source of information in many if not most contexts.  While some of those NGOs will be funded by their members, the majority will need to raise funds from external sources, especially if their members are from disadvantaged groups. 

Similarly, the mandate-holders themselves are asked to perform a wide range of functions and tasks, but are provided by the UN with totally inadequate resources with which to live up to their responsibilities.  The system is in reality constructed around the assumption that mandate-holders will be externally supported in some ways in their work. By the same token, just as courts must operate within the bounds of the applicable laws that they are applying, so too must UN mandate-holders stay within the terms of their mandates. States represented in the Human Rights Council perform this function of policing mandate-holders very effectively by regularly pointing out instances in which they think mandate-holders might have exceeded their mandates. Whether justified or not, mandate-holders pay careful attention to such claims.

Second, capture is not an all or nothing phenomenon, but is inevitably one of degree.  At the extremes, strong capture prevents the public interest from being served in any meaningful way. Seeking to exercise influence in the public interest, and especially in support of internationally accepted human rights norms, by acknowledged stakeholders, is not just legitimate, but an essential feature of the system.

Third, when does capture become problematic. Carpenter and Moss define regulatory capture as “the result or process by which regulation, in law or application, is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry, by the intent and action of the industry itself.” Another author, Caroline Devaux, suggests three quite separate criteria. The first might be termed the degree of control and focuses on the extent to which “a law-making process [is] taken over by a private actor”.  The second focuses on the beneficiary of the intervention and requires that the capture is “designed and operated primarily” for the benefit of the private actor.  And the third focuses on the cost, or who loses. The capture must take place “at the expense of society as a whole”.

It is clear that transparent foundation funding, available on the relevant websites for all to see, transgresses none of those criteria. In short, the repeated use of the term ‘capture’ and indeed the basic premise of the ECLJ report, is unwarranted, unsubstantiated, and unjustifiable.

The literature also emphasizes the central importance of demonstrating a causal connection when capture is alleged. Even presenting plausible inferences is insufficient unless the evidence can be marshalled to show a direct link between the actions of the private party and an outcome that would not otherwise have occurred. Claims need to be subjected to particularly demanding scrutiny when they are being used as a basis for demands that drastic reforms be undertaken in order to prevent the alleged capture.

Thus the arguments put forward by the ECLJ, which are in reality much closer to insinuations, would not satisfy any of the definitional elements widely considered to be necessary before a situation of capture exists. On the other hand, broad-brush critiques based on little evidence of causality, beyond examples of how the system worked as it is supposed to, seem more likely to be designed to undermine faith in the overall system on the part of outsiders who don’t understand how it is expected to function. This concern is reinforced by the tendency to call for wholesale overhaul of the system, rather than reform of particular parts that are not working appropriately. At the end of the day, capture arises in situations in which the court or the mandate-holders have been obliged or cajoled to act against the public interest that they were established to uphold.  The ECLJ report provides no specific examples of that having happened.

The essential complaint in the ECLJ report is that mandate-holders have been successfully encouraged by interest groups (NGOs and foundations) to uphold the values enshrined in international human rights law, rather than the alternative values favored by the ECLJ, which can readily be classified as being inconsistent with the relevant laws. This is far from meeting any accepted definition of capture, although it may be grounds for disappointment and a reason for some well-, but anonymously-funded groups, to try to undermine the system as a whole.