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The International Journal
of Not-for-Profit Law

Volume 15, Issue 2, December 2013

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Ethics, Morality, and Aid

Ethical Responsibilities of Human Rights NGOs

Elizabeth Griffin

Charity, Reciprocity, and the Moral Law

Todd Breyfogle

Articles

Czech Republic Senate Declines the Act on Public Benefit Status

Petr Jan Pajas

Special Regulation for Third-Sector Broadcasting: Is It Necessary?

Fernando Mendez Powell

Maina Kiai's Second Thematic Report Focused on Foreign Funding Restrictions

Gabrielle Gould

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Editorial Board

The Ethical Responsibilities of Human Rights NGOs

Elizabeth Griffin1

As the power of human rights NGOs (HRNGOs) increases, legitimate questions are being raised about their responsibilities. NGOs are not bound by international law. Nevertheless, HRNGOs have ethical responsibilities that flow from their mission and in turn from international human rights law. Key principles such as respect for human dignity, non-discrimination, and universality translate into specific responsibilities for HRNGOs. These responsibilities are the focus of this article. Development NGOs have examined how to better protect human dignity by applying rights-based approaches. As the HRNGO sector professionalizes, HRNGOs should follow suit and develop an approach based on human rights to human rights work.

I. Introduction2

Human rights nongovernmental organizations (HRNGOs) play a key role in protecting and promoting human rights around the world. Recognized as an integral part of domestic, regional, and international political, social, and legal landscapes, HRNGOs have been instrumental in promoting broad acceptance of the idea that every person has inalienable rights.

The increased numbers, geographical reach, and power of HRNGOs prompts legitimate questions about the responsibilities of these organizations. The great influence that some international HRNGOs have exerted, for example, in the field of human rights standard-setting has led some practitioners and academics to ask what responsibilities arise for HRNGOs working in this area.3 Others have questioned whether the methodologies used by HRNGOs could be improved to ensure greater respect for people, in particular the survivors of human rights violations.4 As HRNGOs continue to expand their spheres of influence, further examination of their ethical responsibilities is warranted.

This article aims to identify some of the specific ethical responsibilities of HRNGOs. This article does not seek to duplicate the extensive general research that has already been carried out on NGO accountability.5 Rather, the aim is to identify and explore some of the particular responsibilities that arise for NGOs whose primary self-declared mission is the protection and promotion of international human rights.

The category of organizations that may be described as HRNGOs is of course extremely diverse and includes a large number of very different types of organizations.6 HRNGOs range from well-known, large, international HRNGOs including Human Rights First, Amnesty International and Human Rights Watch to small, grassroots, community-based associations. Academic centers or professional associations that have a self-declared human rights mission may also fall into the category of HRNGOs. HRNGOs vary significantly in their organizational structure, size, geographical reach, and substantive work. Notwithstanding these differences, this article argues that it is still possible to identify some core ethical responsibilities that are applicable to all HRNGOs.

The discussion commences with a short review of the debate surrounding NGO accountability. It then turns to examine some general principles governing responsibility. We ask, what is responsibility? To whom and for what are HRNGOs responsible? A distinction is drawn between those responsibilities related to organizational performance (performance-based responsibilities) and responsibilities that inhere from the human rights mission of an organization (mission-based responsibilities).

The final part of this article aims to identify some of the responsibilities that flow from the human rights mission of a HRNGO. Although HRNGOs are not formally bound by international law, international human rights laws and standards create a framework of principles that HRNGOs have an ethical duty to abide by. We examine some key principles, including respect for human rights, human dignity, equality, non-discrimination, and universality, and propose some specific responsibilities that these principles impose upon HRNGOPs.

This discussion acknowledges that each HRNGO has its own particular set of responsibilities, which are determined by reference to factors such as the size of the organization, its key stakeholders, its structure, its mission, the types of activities it carries out, and the political context within which it works. This should not, however, absolve HRNGOs of their duty to regularly review their responsibilities, the principles that underlie them, and how they can be put into daily practice. Development NGOs have sought to improve respect for human dignity by applying approaches based on human rights to their work; HRNGOs should follow suit.

II. The NGO responsibility debate

The NGO responsibility debate emerged in the 1990s, in response to a sharp increase in the size, funding, and power of the NGO sector.7 NGOs were accused of being mismanaged, unrepresentative, and even corrupt.8 Perceived failures within the humanitarian sector, notably during the 1994 Rwandan genocide, prompted humanitarian NGOs to take accountability more seriously than before.9 Most notably, a group of humanitarian NGOs created the Sphere Project,10 which in turn drafted the 2000 Humanitarian Charter and Minimum Standards in Disaster Response.11 The Humanitarian Charter and Minimum Standards combine general ethical principles with precise technical standards for the delivery of services such as water as well as sanitation, health, and food aid, which have been widely endorsed by humanitarian NGOs.12 The Humanitarian Accountability Project (HAP) was subsequently established as the focal point for information on good accountability practice.13

By contrast to other NGOs, HRNGOs have been far more reserved when it comes to discussing accountability and they have not proposed specific regulatory standards. Some have involved themselves in sector-wide accountability initiatives, including the HAP.14 Country-based generic NGO codes of conduct have also been endorsed by some HRNGOs, especially in countries whose governments have imposed harsh and unwarranted restrictions on NGOs.15 Generic country codes do not, however, address the specific responsibilities of NGOs engaged in human rights work. Some HRNGOs have signed the 2006 International Non-Governmental Organizations Accountability Charter (INGO Charter).16 The INGO Charter was drafted by and for a wide range of NGOs, including those that work on development, environmental protection, humanitarian response, and "other public goods."17 Many of the INGO Charter's principles are relevant to HRNGOs, but the Charter is not tailored to human rights work.18

The UN Office of the High Commissioner for Human Rights (OHCHR) was the first organization to commission codes of practice that specifically relate to human rights work. In 2008, Nottingham University (commissioned by OHCHR) published the "Statement of Ethical Commitments of Human Rights Professionals" and the "Guiding Principles for Human Rights Officers Working in Conflict and Post-conflict Environments."19 The Commitments and Guiding Principles were part of a wider project, "Consolidating the Profession: The Human Rights Field Officer." This project aims to develop and deliver high-quality training and capacity-building tools for human rights fieldwork.20 OHCHR has also published a Training Manual on Human Rights Monitoring, which provides guidance on how to investigate and report on human rights violations.21 Within the NGO community, an online discussion forum on the accountability of HRNGOs was launched by the International Council on Human Rights Policy (ICHRP), but it was taken off the internet when this NGO closed down for financial reasons in February 2012. The ICHRP work and the online initiative did not in any case lead to a focused responsibility discussion within the HRNGO community.

HRNGOs have generally tended to piggyback onto accountability initiatives launched in other NGO sectors. Unlike their humanitarian counterparts, HRNGOs have not as yet developed sector-wide guidelines that address the particular responsibilities that arise from specific forms of human rights work. There are few guidelines that aim to promote best practice in specific areas of human rights work, such as standard setting, campaigning, strategic litigation, policy advice, fact-finding, and reporting.22 There is, however, no general code of conduct for human rights NGO work, nor is there an equivalent of HAP working to elaborate standards for HRNGOs. The question is, are codes of conduct and statements of principles useful in promoting responsible action by HRNGOs? Or should we seek alternative methods?

Some human rights defenders have argued that it is best to avoid public discussion of their responsibilities altogether. They point to legal, administrative, and other forms of harassment used against HRNGOs around the world.23 It is argued that HRNGOs run specific risks in the course of their work that other types of NGOs do not face. In theory, international human rights law limits the scope of governments to interfere with, and regulate the affairs of NGOs.24 In practice, however, there is a large gap between the legal protections and the daily experience of most HRNGOs.25 The fear is that public discussion of accountability may provide excuses for governments to impose harsher regulations that silence critical HRNGO voices and restrict fundamental freedoms.26

On the other hand, there are growing calls from within the human rights community, for HRNGOs to examine their responsibilities more closely.27 Some have argued that the increased power of HRNGOs in the field of standard setting raises important questions about responsibilities.28 Others have called for more representative behavior on the part of large Western-based international HRNGOs that, it is argued, dominate the global agenda at the expense of NGOs from the South.29 Research has further highlighted that the methodologies of human rights work may have unintended negative consequences that undermine, rather than protect, the human dignity of the survivors of human rights violations and that this needs to be further examined.30 Finally, in some countries it has been argued that NGO advocates are not political activists but rather in the "business of human rights," which serves to advance the personal interests of the advocates themselves.31

The time has come to respond to criticisms such as these. Indeed, doing so represents a healthy sign of maturity in the human rights sector. Human rights work is no longer just a vocation, nor is it just a few good people doing worthy work. Human rights work is now a recognized career track. This is reflected by the large growth in undergraduate and postgraduate courses in the subject. As the profession expands, self-examination and reflection are necessary, useful, and healthy. Furthermore, it is in the strategic interests of HRNGOs to explore how they can best fulfill their mission, as it may well enhance their legitimacy, credibility, and effectiveness and help them defend themselves against malicious attacks.

III. What is responsibility?

NGOs have long talked about "accountability." For the purposes of this discussion, however, the term "responsibility" is more appropriate, for two reasons: Firstly, there is no equivalent of the word "accountability" in some languages, including French and Spanish. Accountability may be translated as "explaining one's actions," "presenting accounts to someone," or simply "responsibility." Secondly, the concept of accountability is problematic even in English because it implies a one-to-one contractual or representational relationship with another person or body, along the lines of "I hire you, so you are accountable to me" or "I elect you, so you are accountable to me." NGOs do not pretend to be directly "accountable" to the public in the way that governments are through electoral processes, or in the way that businesses are to their shareholders.32 NGOs are not "hired" by the people they protect. The concept of accountability, therefore, does not reflect the NGO experience.33 The Oxford Dictionary defines responsibility as "having an obligation to do something, or having control over, or care for someone; being morally accountable for one's behavior; being capable of being trusted; having to report and be answerable."34 This common definition of responsibility provides a useful starting point upon which a concept of HRNGO responsibility based on human rights may be constructed.

IV. To whom are HRNGOs responsible?

NGOs have a wide range of legal, ethical, and moral responsibilities towards those people who have a direct interest in their work—that is, their stakeholders or constituency. Stakeholders may be loosely defined as any individual, group, or body that can affect or be affected by the NGO. The primary stakeholders for HRNGOs are usually the people that they aim to represent, protect, or assist. Other important stakeholders include paid and voluntary staff, members of boards, councils or trustees, any supporters or members, and the wider NGO community.

Unlike many humanitarian NGOs, HRNGOs would not usually consider government as a formal stakeholder. A large number of HRNGOs retain strict independence from government as this is necessary to effectively promote state compliance with international law. Unless a HRNGO is funded by government, or works directly with governmental officials, it may not count government as a formal stakeholder. Another group that may not qualify as a full stakeholder for HRNGOs is the general public. In practical terms, public opinion and support are obviously extremely important for HRNGOs. Nevertheless, there is no obligation for NGOs to consult the public or represent widely held views. Freedom of association, expression, and speech, taken together mean that people are entitled to create NGOs and work on any issue that they like. This even applies to work on issues that are highly unpopular or offensive.35 Indeed, an HRNGO often confronts entrenched hostility, discrimination, and prejudice.36

The governing body of an NGO, whether it is a Board, Council, or Trustees, exists to provide organizational oversight. Governing bodies also have a responsibility themselves to be effective. Boards are often perceived to provide the answer to questions of NGO responsibility, but in reality they are often far less effective and engaged than they should be. In some cases this is because members lack skills, time, or expertise. In others it may be because the role of the Board has not been properly defined or explained, or because Board members are not sufficiently independent to exercise oversight. Problems may stem from the fact that the Board has been handpicked by the Director(s). The need to strengthen the capacity of governing bodies has been widely recognized; many resources address this aspect of NGO governance.37

Stakeholder mapping is not specific to HRNGOs; it is common across the NGO sector. Mapping and prioritizing stakeholders is the first step in the process of identifying the specific responsibilities of an NGO. It enables us to explore key questions, such as the following: To whom is the HRNGO primarily responsible? Which stakeholder has the most power over the organization? Which has least power? Whose voice is listened to when decisions are made? How can different views and needs be balanced and met? Who in fact "owns" or controls the organization? What, if any, are the broader political motivations for action on a particular issue or in a specific field?

V. What are HRNGOs responsible for?

HRNGOs are not formally bound by international human rights law. Nevertheless, international human rights standards create a framework of principles that guide their work. The following discussion draws a distinction between two general types of responsibilities: Firstly, we examine "performance based responsibilities"; that is those duties that relate to the practical workings of NGOs. Secondly, "mission-based responsibilities" of HRNGOs that flow from the human rights mission of the organization and in turn international human rights laws and standards.

A. Performance-based responsibilities38

Performance-based responsibilities concern the practical workings of an NGO. Finances, people, and resources should be managed properly, with safeguards against corruption and illegal behavior in place. There is a duty not to waste money on ineffective projects or staff. Thus, performance-based responsibilities imply a strong need for good governance. Performance-related responsibilities can usually be demonstrated in reports, accounts, and independent audits.

Demonstrating performance may not always be easy or possible for HRNGOs. For example, in disabling political environments, demonstrating performance may be impossible because transparency and the disclosure of information by HRNGOs may ultimately put people or the NGO in danger. To illustrate, an NGO in Mexico provided donors with a list of people it had trained in workers' rights. The list was made publicly available, and the companies concerned fired all the workers who had taken the training. By providing the donor with information, the NGO demonstrated fulfillment of performance-based responsibilities, but the effect was mission failure.39 In other circumstances, however, HRNGOs should be transparent. When NGOs operate in an appropriate contextual space, they can openly account for their performance.40 Many HRNGOs demonstrate responsible behavior in environments that are less than enabling, because they know that this enhances their legitimacy, reputation, and effectiveness.

Some discussions of NGO accountability tend to focus too heavily on performance-based responsibilities. This inevitably privileges the interests of more powerful stakeholders, in particular donors, over less powerful stakeholders, such as the people that the HRNGO represents.41 Performance discussions that seek "outputs" often overemphasize formal reporting and financial accounting, which fosters a tick-box mentality. Some forms of human rights work (e.g., awareness-raising) might not have tangible "outputs" or easily quantifiable results. It may be hard to measure performance where the overall goal of a particular action cannot realistically be achieved in the short term (e.g. the eradication of poverty). The commitment expressed to the overall goal of an action is often far more important than any tangible result. Even where a result can be shown, it may be difficult to attribute a cause to the result or to evaluate the contributions of different actors to achieving it.43 Sometimes a more appropriate measure of responsibility is in the processes used to include people in NGO work, rather than the work itself.

B. Mission-based responsibilities44

Mission-based responsibilities are ethical obligations that flow from the human rights mission and in turn from international human rights laws and standards. At the most basic level, a human rights mission requires an NGO to demonstrate respect for key principles of human rights. A human rights mission imposes a responsibility upon an HRNGO to act in a principled manner, informed first and foremost by the interests of those that they seek to protect or represent. Mission-based responsibilities are less easily measured than performance-based ones, because they are not about quantifiable outcomes. Rather, mission-based responsibilities are more closely related to the quality of the relationships that an HRNGO has with its key stakeholders and the legitimacy of the processes used in its daily work. For example, when an organization engages in campaigning, staying true to the human rights mission means not only pursuing the tangible goals of the campaign, but also conducting the campaign in a way that respects democratic principles and the people involved.45

Mission- and performance-based responsibilities obviously overlap. Mission-based ones are distinct, however, in that they do not yield to the exigencies of a situation. Even in repressive political environments where transparency and the disclosure of information is impossible, HRNGOs can stay true to their missions by constant reference to human rights principles, self-examination, and self-improvement. Mission-based responsibilities do not incur reporting obligations or mandate specific forms of conduct. Nevertheless, they do impose specific ethical responsibilities. The remainder of this article attempts to identify some of these ethical responsibilities that flow from the principles of respect for human rights and dignity, equality and non-discrimination, and universality.

1. Respect for human rights

The legal regulation of NGOs is primarily the concern of the domestic law of the state in which it is registered and/or operates. We have already noted that HRNGOs are not bound by international human rights law. Unlike states, HRNGOs do not have the international legal personality required to be held liable for breaches of international law.46 HRNGOs can, however, be reasonably expected to uphold the general public duties set out in international law.47

The origins of individual duties under international human rights law are rooted in the International Bill of Rights.48 The UN Declaration on Human Rights Defenders reaffirms the duties of everyone towards and within the community. More specifically, Article 11 of the Declaration states that "everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics." Thus, although not legally bound in the same way as states, individuals do have duties vis-à-vis human rights that are derived from international standards. Although human rights principles are relevant to many other organizations, HRNGOs occupy a unique position in that they promote principles such as participation, consultation, transparency, and fair representation in their daily work. It hardly needs saying that the self-proclaimed guardians of human rights are expected themselves to respect the principles they ask others to honor. In other words, they must practice what they preach.

2. Respect for human dignity

Respect for human dignity lies at the heart of any human rights mission. It does not always simply follow, however, that just because an NGO has a human rights mission, it will automatically respect human dignity in all its dealings. Above all, translating this principle into practice means taking positive action to prioritize the needs, views, and wishes of the people at the center of the mission. It further requires high standards of behavior towards workers, volunteers, and/or interns. The quality of an organization's relationship with its key stakeholders and its workers is usually a good indicator of how effective an NGO has been in translating mission-based principles into daily work.

            a. Respect for the people at the heart of the NGO's mission

Arguably, the primary responsibility of an HRNGO is to consciously prioritize the needs and interests of the people it aims to protect, act for, assist, or represent. Consultation with key stakeholders in the planning, implementation, and evaluation of projects is required to ensure that work responds to genuine human needs and that the NGO is effective. HRNGOs involved in advocacy, campaigning, and standard-setting often appear to represent large groups of people, such as all women in Asia or all persons with disabilities. HRNGOs that represent others know that they must take particular care to ensure that methodologies are in place to prevent misrepresentation.49 Issues of representation and respect for human dignity also arise in publicity campaigns, interviews, and dissemination work. Respect for human dignity is shown where organizations ensure that their actions do not lead to further victimization or misrepresent of the survivors of human rights violations in their dissemination and fundraising work. Fact-finding and other methodologies can include processes that ensure that work is respectful and effective and that it does not sacrifice the individual in pursuit of a broader cause.50 If an HRNGO provides services such as medical assistance, it must ensure that these services are professional and conform to relevant domestic laws.

Marginalized members of society, including those who have survived human rights violations, are usually the not powerful stakeholders. They lack power because they are usually not formally part of an HRNGO. They have no financial stake because they do not pay for NGO services. NGOs need to be aware of this power dynamic and constantly review the processes used to ensure consultation and inclusion. The responsibility to prioritize key stakeholders is often complicated, however, by the constant need to compete and secure funds. The fight to survive means that some NGOs end up inadvertently prioritizing their donor's agendas or administrative goals over the needs of the people they aim to serve.51 By earmarking funds for particular areas of work or making grants available only for their own priorities, some donors fuel this process by controlling NGO agendas. Some HRNGOs struggle to stay true to their mission and get caught up in a never-ending cycle of implementing donor-designed projects and responding to donor requests.52 The power that large donors exercise has given rise to growing calls for a deeper examination of donor responsibilities.53 Many of the responsibilities identified in this article are equally applicable to donors with a human-rights mission.

Some NGOs believe that respect for key stakeholders is important enough to warrant written guidelines. For example, the Statement of Ethical Commitments of Human Rights Professionals drafted for UN Human Rights Officers provides guidance in this area.54 The Statement affirms that "the primary commitment is to the individuals, communities and peoples they serve" and that "in cases of professional dilemma or uncertainty this principle shall be the fundamental consideration." The Statement also emphasizes the duty to respect participation of the most marginalized and vulnerable members of society in human rights work and activities.55 Commitments such as these may provide a useful model for HRNGOs that wish to draft policies, practical guides, and/or codes of conduct. Above and beyond policy-making, these commitments provide guidance on best practice for HRNGOs.

HRNGOs that carry out academic research or policy or that pursue a broad political or legal goal may not directly represent anyone. This raises complex questions. How, for example, can an HRNGO that lobbies at the political level to combat impunity but does not work directly with individual survivors ensure its work is respectful of human dignity? Does an HRNGO of this kind have a responsibility to consult society at large to see if there is support for law enforcement measures to end impunity? If the HRNGO discovers that the majority of people oppose its call for criminal sanctions, and that there is greater support for truth and reconciliation processes, would the HRNGO have a responsibility to reevaluate its goals and its work? We have already seen that NGOs are not elected and do not pretend to be answerable to the general public. NGOs cannot, therefore, be said to have a responsibility to represent the views of society at large or even to solicit public views. But as a matter of good practice, many HRNGOs do seek some form of public consultation in order to ensure that they remain relevant, effective, and credible.

Questions for HRNGOs on key stakeholders include the following:

            b. Responsibilities towards NGO staff, volunteers, and interns

"The Human Rights community enforces a sense of martyrdom in the defenders...fight others rights without caring about yours... what a contradiction."56

HRNGOs survive on the work of their staff, volunteers, members, supporters, and interns. Workers may sacrifice higher salaries, greater job security, and better benefits to work for an organization whose human rights mission they believe in. HRNGOs are in many respects no different from other types of organizations, in that they are obliged to treat their workers fairly and respect their rights. They are distinctive, however, in that their mission clearly imposes an ethical responsibility upon them to respect their workers' employment rights. HRNGOs promote nondiscrimination, equality, transparency, and accountability; they need to respect these principles vis-à-vis their own employees, volunteers, and interns. It would, for example, be a glaring contradiction for an HRNGO that works to protect labor rights in Asia to exploit, underpay, or mistreat its own workers.

Many of the specific duties to paid employees are set out in local employment laws, which govern issues such as health and safety, sick leave, minimum pay, holidays, maternity leave, and protection from discrimination and unfair dismissal. In many countries, however, local employment laws fall short of international standards, such that NGO workers lack fully enforceable employment rights. In some countries, NGO workers are denied the right to form or join unions ,which further prevents workers from claiming their rights. The human rights sector is largely supported by short-term contract workers, many of whom have little or no job security. A permanent job is often the exception rather than the norm for human rights workers. HRNGOs that issue temporary and short-term contracts often avoid paying for employee benefits such as health care, pensions, and sick leave. In a sector based upon respect for human rights, it is, therefore, common for human rights workers to lack full employment rights and job security.

Volunteers and interns may have no formal entitlement to labor rights at all. The informality of the intern and volunteer system has left the area largely unregulated and open to abuse. The engagement of some volunteers and interns may be so informal that they are working illegally, in fact, because their NGO did not get them a work visa. There sometimes seems to be an unacknowledged assumption that interns and volunteers are amply rewarded with experience, training, and contacts. In reality, however, many students, interns, and volunteers complain that they are assigned menial tasks, that they do not receive the promised training or professional development, or that they are even treated "like slaves." Surely this is not acceptable in a sector that is supposed to be based upon respect for human dignity?

The working culture of many HRNGOs is often informal and overly personalized. This sometimes means that sensitive complaints of discrimination and sexual harassment are dealt with inappropriately or ignored altogether. Although larger, professional NGOs have created systems for dealing with serious complaints, many NGOs have not implemented the necessary procedures. In many cases, for example, the female survivor of sexual harassment is pushed out of the organization while the male perpetrator retains his job. Just like any other organization, HRNGOs are vulnerable to corruption, sexual harassment, and discrimination. The real test is how they deal with such issues. Failing to do so in a fair and transparent manner can tarnish the reputation of an HRNGO and the sector as a whole and it goes without saying that it contradicts the human rights mission of an NGO.

The nature of human rights work is often distressing. Workers face physical and psychological risks, especially in conflict situations or when working with survivors of human rights violations. Yet young professionals are sometimes sent to the field with little or no training. Security guidelines and emergency evacuation procedures for those working in conflicts are often absent. Debriefings and free access to professional services to prevent and treat stress, burnout, and post-traumatic stress disorder are rare. The working culture gives little or no opportunity for workers to express their widely shared feelings of burnout and disillusionment.

Now that human rights work is a recognized career track, there is fierce competition for jobs among people leaving university with doctoral, masters, and undergraduate degrees in human rights. Many young professionals feel that they have no choice but to tolerate harsh working conditions; they may be made to feel that it is part and parcel of doing noble work for the sake of humanity.57 Workers, particularly volunteers or interns, may be reluctant to complain about conditions, for fear that they will be made to feel that they are selfishly undermining valuable work and diverting attention from the real issues.58 Some fear that they will not advance in their careers if they make waves. It may also be that those who do complain are labeled troublemakers, passed over for promotions, denied permanent contracts, subjected to harassment, or pushed out of the organization. What we need to address is whether our culture of doing good is undermining respect for workers and their human rights.

Some NGOs have adopted internal policies that guarantee staff fair treatment, in keeping with sector-wide codes. One example from the humanitarian sector is the People in Aid Code of Best Practice in the Management and Support of Aid Personnel.59 This code contains principles related to human resources, training, support, health, safety, security, and well-being. The INGO Charter also contains useful wording on the protection of NGO workers in its sections on human resources, bribery and corruption, respect for sexual integrity, and whistleblowers.60 While codes of conduct do not provide an instant solution to the range of challenges set out above, they can be useful in ensuring that NGOs implement and monitor necessary policies. Policies and codes of conduct may also encourage HRNGOs to open themselves to external evaluation and to dismiss staff who hinder efficiency or engage in misconduct.

Questions for HRNGOs on staff, volunteers, and, interns include the following:

3. Equality and nondiscrimination

Equality and nondiscrimination set demanding tests for HRNGOs in the areas of good governance, personnel management, and interactions with their key stakeholders. In addition to the responsibilities outlined above, HRNGOs have a formal duty to implement safeguards to protect staff members, volunteers, supporters, and survivors from discrimination based on such factors as race, age, color, sex, disability, sexual orientation, language, religion, political or other opinion, or national or social origin. Gender-based pay differentials that still exist in some NGOs must be eliminated.61 Corruption, patronage, and privileges for friends and family also fall afoul of the prohibition against discrimination. Policies and procedures should be in place to guard against malpractice, to protect whistleblowers, and to ensure that complaints are dealt with in a fair and transparent manner.

Many NGOs express their formal commitment to nondiscrimination by signing sector-wide codes of conducts or implementing internal policies.62 Nondiscrimination clauses in internal policies and codes of conduct usually address how an NGO treats people, in particular key stakeholders. However, questions about equality and nondiscrimination arise not only in interactions with stakeholders but also in relation to substantive human rights work, in particular issue selection by NGOs.

The principle of nondiscrimination flows from core building blocks of human rights: all individuals are entitled to enjoy a full range of civil, economic, political, social, and cultural rights; and each person's rights are equally important. The principle of nondiscrimination does not necessarily imply, however, that HRNGOs have a responsibility to carry out substantive work on each and every human right, or that they must protect every person. NGOs have limited resources and must make strategic decisions about which issues, human rights, people, cases, and countries they will focus on. Decisions will be justified by reference to various factors including the NGO's mandate, available resources and expertise, the urgency or seriousness of a given case, the interests of powerful stakeholders, donor priorities, and the potential impact of the work.

Given the nature of the work and the resource constraints, an HRNGO would not ordinarily commit discrimination by selecting and prioritizing issues or groups of people to focus on. Nevertheless, HRNGOs still can face tough ethical questions. Let us take the example of a small HRNGO that has a mission to "protect human rights at the domestic level," which works in a country where violence against women is rampant. Under pressure from donors, this HRNGO commits all of its resources to a two-year campaign to close down the American detention camp at Guantanamo Bay and secure the release of five nationals held there. How, if at all can the HRNGO justify its focus on the Guantanamo Bay detainees, given the broader human rights picture within the country? By not addressing women's rights, do issues of discrimination arise? What level of justification, if any, would this HRNGO need to provide to critics, including women stakeholders and women's HRNGOs? How could the choices made by the HRNGO be justified to advocates of women's rights?

Or consider an HRNGO that works in a country where consensual homosexual behavior is punishable by death. Given the foregoing discussion, we may presume that it is legitimate for an HRNGO to choose not to work on gay rights because, for example, it does not have enough resources. Would it, however, constitute discrimination if an HRNGO refused to work on this issue because some members of the Board do not believe that human rights extend to consensual homosexual behavior, in light of domestic law? How, if at all, could this HRNGO justify its decision in that situation? Would issues of discrimination arise if this NGO also refused to express solidarity with NGOs that do work to protect gay rights? Given the key mission-based principles, would it be legitimate for an HRNGO to refuse to support a call by a coalition of NGOs to abolish the death penalty for homosexual behavior? Does the principle of nondiscrimination imply a duty to recognize gay rights as human rights? And if it does, what does this imply in practice for HRNGOs?

Arguably, larger and wealthier international HRNGOs have increased responsibilities when it comes to issue selection, because they have more power and resources for working on a wider range of issues. This is not of course a new debate. Historically, a number of international HRNGOs have had to justify their choices under pressure from internal and external stakeholders. Both Amnesty International and Human Rights Watch have had to explain why they chose not to work on the realization of economic, social, and cultural rights.63 Though issue selection is inevitable and usually legitimate, HRNGOs have a responsibility to reflect on the choices they make and their consequences. HRNGOs need to be able to explain and justify, in particular to those who lose out, why they prioritize certain rights and groups of people over others. HRNGOs need to consciously reflect on the positions they take and the rights they defend. A human rights-based approach to HRNGO work implies that decisions should reflect the mission, the interests of key stakeholders, and above all fundamental principles of human rights.

Questions for HRNGOs on nondiscrimination and issue selection include the following:

4. Universality

HRNGOs hold, as a fundamental principle, that every human being has rights regardless of any personal factor, including status or position in society. The majority of HRNGOs also support the idea that international human rights are universal values that cut across cultures, regions, and political divides. The claim that human rights are universal has long been the subject of academic debate.64 In practice, however, a small group of Western-based international HRNGOs have been accused of setting the global human rights agenda without properly consulting with, or incorporating voices from, the South.65 This criticism has intensified recently as some international HRNGOs have managed to exert a strong influence on human rights standard-setting process.66 A number of commentators have noted that international HRNGOs with permanent offices in Geneva or New York, or those that regularly work with regional and international organizations, exert a consistent, direct, and powerful influence on processes of treaty negotiation which NGOs in the South cannot emulate.67 This is because HRNGOs in the South lack the money, communications, language skills, and networks to participate at the same level.68

Some NGOs have implemented guidelines that aim to address the inequality between international and national organizations, including formal sets of principles to improve these relationships. For example, principles drafted and agreed to by the British Overseas NGOs for Development (BOND) (a network of 340 UK-based development organizations) state that "when working with organizations in the south, [members] believe in co-operation on the basis of shared values and vision. They believe that both parties should learn from each other's values, experience and approaches, and that this should lead to increasingly close partnerships for change. They recognize that such partnership is often not based on equal degrees of power in the relationship; that usually greater power rests with the northern party; but that the partnership should be based on an equal commitment to shared goals and that inequality of power should be redressed by both parties through practical action."69

Similarly at an intergovernmental level, the 2008 Guiding Principles for Human Rights Field Officers (HRFO), produced for the UN Office of the High Commissioner for Human Rights, directly address the issue of local custom and universality.70 The Guiding Principles state that "although much of human rights is considered customary and universal, debate continues on its local application, for example in the context of some traditional practices. HRFO need to work closely with local partners to ensure the spirit of international human rights law is applied while recognizing local cultural specificity consistent with this law. Local partners help HRFOs identify how best to reconcile respect for local practices while upholding the universality of human rights regardless of culture, religion or region."71

Notwithstanding such guidelines, HRNGOs are somewhat behind the curve in expressing commitments to universality. A further issue is whether such public expressions, in the form of codes of conduct or otherwise, promote best practices in reality.

Questions for HRNGOs on universality include the following:

VI. Conclusion

HRNGOs represent an increasingly powerful force at the international, regional and national levels. As the sector continues to expand and professionalize, it is legitimate, healthy, and strategic for HRNGOs to examine their ethical and practical responsibilities. This article reviewed some of the responsibilities of HRNGOs. It focused on identifying concrete responsibilities that flow from some of the key principles of human rights that are central to the mission of HRNGOs. The discussion highlighted how the principles of respect for human rights and dignity, equality, and nondiscrimination and universality impose a range of specific responsibilities upon human rights NGOs.

The aim of this article was not to provide an exhaustive list of the responsibilities of HRNGOs, for this requires further discussion - primarily by HRNGs themselves. Nor was the purpose of this article to suggest a one-size-fits-all response to the responsibilities of HRNGOs. Rather, the aim of this article was to prompt further much needed discussion by HRNGOs about how to carry out legitimate, effective and responsible human rights work. One of the many victories of the human rights community has been to successfully highlight the benefits of a human rights-based approach to humanitarian and development work.72 Now it is time for us to discuss a human rights-based approach to our own work and to seek tangible ways to translate human rights principles that flow from our mission into daily practice.

 

1 Elizabeth Griffin is Professor and Executive Director of the Center for the Study of Human Rights, O.P. Jindal Global Law School. Professor Griffin is also Fellow, Human Rights Centre, Essex University. This article is dedicated to the memory of my dear mentor and friend, Professor Kevin Boyle.

2 Some of the research for this article was carried out by the author as part of a project of the now defunct International Council on Human Rights Policy (ICHRP) on the Rights and Responsibilities of Human Rights Organisations. The author wishes to thank William O'Neill and Prof. Joe Oloka-Onyango for their comments on previous drafts of the text and Millicent Williams for editing the text. The views expressed here are entirely the author's own.

3 Christine Chinkin & Alan Boyle, The Making of International Law, Chapter 4: NGOs and Treaty Making, (Oxford University Press, 2007): 57-74; Makau Mutua, Standard Setting: Human Rights Critique and Prognosis, Human Rights Quarterly Vol. 29 (2007): 547-630.

4 Barbara Bukovska, Perpetrating Good: The Unintended Consequences of Human Rights Advocacy, PILI Papers, No. 3. (April 2008).

5 See, for example, Michael Edwards, NGO Rights and Responsibilities: a New Deal for Global Governance (The Foreign Policy Center, 2000); Mary Kaldor, Civil Society and Accountability, Journal of Human Development, Vol. 4, No. 1 (2003), and more generally the work of the One World Trust, www.oneworldtrust.org.

6 HRNGOs are broadly defined here as nongovernmental, nonprofit organizations that embrace shared human rights values in their mission statements. It is beyond the scope of this article to examine the responsibilities of inter-governmental organizations. However, much of the discussion is equally applicable to IGOs that have a human rights mandate.

7 Lisa Jordan and Peter van Tuijl, (eds.), NGO Accountability: Politics, Principles and Innovations (Earthscan, 2006): 4.

8 See, for example, Editorial, New York Times (21 July 2003); Jeffery E. Garten, Globalization without Tears – A New Social Compact for CEOs, (Harvard Business School Press, 2002); Michael Edwards, Make the Protesters Accountable, Financial Times (19 June 2000).

9 Anges Callamard, NGO Accountability and the Humanitarian Accountability Partnership: Towards a Transformative Agenda, in Lisa Jordan and Peter van Tuijl, (eds.) (2006): 183-194.

14 To view members of HAP, see http://www.hapinternational.org/members.aspx.

15 For example: Code of Conduct for NGOs in Bangladesh, www.asianphilanthropy.org/pdfs/conference/bangladesh1.pdf; Cambodia Code of Ethics for Social Development NGOs, www.ngoforum.org.kh/Development/Docs/ngo_2002/38.htm; Ethiopia, www.gdrc.org/ngo/ codesofconduct/africa-code.html; Uganda National NGO Forum, www.ngoforum.or.ug/conduct/index.htm; South Africa Code of Ethics, www.sangoco.org.za/site/index.php?option=com_content&task=view&id=8&Itemid=30.

16 The INGO Charter was born out of an initiative by the International Advocacy Non-Governmental Organisations (IANGO) Workshop.

17 See INGO Charter, para.1.

18Altogether, twenty-six INGOs have signed the INGO Charter and have at the same time agreed to publish their compliance records. Signatories include Amnesty International, OXFAM, Greenpeace, Transparency International, and Save the Children. To view the full list of signatories, see http://www.ingoaccountabilitycharter.org/list-of-signatories.

20 "Consolidating the Profession: The Human Rights Field Officer" is a research, training, and capacity-building project in support of enhanced delivery of services by human rights field operations. The project is informed by an overarching consideration that the Human Rights Field Officer (HRFO) is deployed to develop and enhance local human rights capacities and protections. It is convened and facilitated from within the University of Nottingham Human Rights Law Centre (HRLC)." http://protectionline.org/links-2/human-rights-consultants/. For more information, see www.humanrightsprofessionals.org.

22 Some NGOs have produced their own guidelines for specific types of human rights work. See, for example, Amnesty International Fair Trial Manual, http://www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm; Norwegian Institute of Human Rights Manual on Human Rights Monitoring: For Human Rights Officers, http://www.humanrights.uio.no/nordem/manualen.html; Essex University Human Rights Centre Torture Reporting Handbook, http://www.essex.ac.uk/torturehandbook/handbook/index.htm; International Commission of Jurists Trial Observation Manual, http://www.hrea.org/erc/Library/monitoring/icj02.pdf.

23 The reports of the UN Special Rapporteur on Human Rights Defenders provide a miserable catalog of the various tactics used by authorities around the world to silence unpopular NGOs. These tactics range from slur campaigns that spread discrediting information to the imposition of restrictive NGO laws; from judicial and administrative harassment to threats, abductions, and killings. Reports of the Special Rapporteur are available at http://www2.ohchr.org/english/issues/defenders/index.htm.

24 The most relevant provisions of international human rights law are summarized here. Freedom of association is protected by Article 22(2), ICCPR; Article 11, African Charter; Article 16(2), American Convention. Freedom of assembly is protected by Article 21, ICCPR; Article 11, African Charter; Article 15, American Convention; Article 11, European Convention. Freedom of speech and expression is protected by Article 19, ICCPR; Article 9, African Charter; Article 13, American Convention. Freedom of information is protected by Article 9, African Charter; Article 13, American Convention; Article 10, European Convention. See also UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (UN Declaration on Human Rights Defenders), GA resolution 53/144 (1999).

The only permissible restrictions to these rights are those "prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." Article 22(2), ICCPR (freedom of association). The restrictions on freedom of association in regional treaties are almost identical to Article 22(2) of the ICCPR. See Article 11, African Charter; Article 16(2), American Convention; Article 28, Arab Charter. Permissible restrictions of freedom of speech and expression are almost identical and are set out in Article 19, ICCPR; Article 9, African Charter; Article 13, American Convention; Article 32, Arab Charter. For permissible restrictions on freedom of information, see Article 9, African Charter; Article 13, American Convention; Article 10, European Convention; Article 32, Arab Charter. For permissible restrictions on freedom of assembly, see Article 21, ICCPR; Article 11, African Charter; Article 15, American Convention; Article 11, European Convention; Article 28, Arab Charter.

25 A number of resources exist to assist governments and NGO regulatory bodies to assess whether regulatory measures comply with international law. See, for example, International Center for Not-for-Profit Law, Checklist for Civil Society Organization Laws, www.icnl.org/knowledge/pubs/NPOChecklist.pdf; Open Society Institute, Guidelines for Laws Affecting Civic Society Organisations, www.soros.org/resources/articles_publications/publications/lawguide_20040215. See also www.ngoregnet.org.

26 This argument was put forward at a consultation meeting organized by the ICHRP in Washington in 2008 attended by human rights defenders from around the globe. The aim of the meeting was to discuss a draft report produced by the author on the Rights and Responsibilities of Human Rights Organizations. The draft report is available at http://www.ichrp.org/files/reports/67/119_report.pdf. The report was never published as a result of strong opposition expressed by some human rights defenders to a public discussion of the responsibilities of HRNGOs coupled with an overall lack of consensus about how to proceed with responsibility discussions.

27 See, for example, Robert Charles Blitt, R, Who Will Watch the Watchdogs? International Human Rights Non-governmental Organizations and the Case for Regulation, Buffalo Human Rights Law Review 10 (2005): 261.

28 Christine Chinkin & Alan Boyle, (2007): 57-74.

29 Makau Mutua, (2007): 547-630.

30 Barbara Bukovska (2008); Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, Harvard International Law Journal, Vol. 42, Issue 1 (Winter 2001): 201–245.

31 Referring to the women's movement in Uganda. Sylvia Tamale, Law, Sexuality and Politics in Uganda in Makau Mutua, Human Rights NGOs in East Africa (Pennsylvania Studies in Human Rights Series, 2008): 66.

32 Paul Wapner, Defending Accountability in NGOs, Chicago Journal of International Law, Vol. 3, No.1, (Spring 2002): 200.

33 The author wishes to thank Lisa Jordan (Ford Foundation) for sharing her analysis and insights on this area (telephone interview with author, 22 October 2007).

34 Compact Oxford English Dictionary, www.askoxford.com.

35 For example, the European Court of Human Rights has underlined that freedom of expression is applicable not only to information and ideas that are popular or regarded as inoffensive, but also to those that "offend, shock and disturb." Vgt Verein Gegen Tierfabriken v. Switzerland, App. No. 24699/94, 66 (28 June 2001). See also HRC General Comment 10, Freedom of Expression (29 June 1983).

36 It has been pointed out that "many times (human rights work) is carried out by minor groups that must confront the hostility of both the regimes they are denouncing and of society at large. The significance of such politics rests precisely on its unrepresentative character, that is, in the refusal to abide to the predominant standards of an existing political culture that welcomed or tolerated human rights abuses." Enrique Peruzzotti, Civil Society, Representation and Accountability: Restating Current Debates on the Representativeness and Accountability of Civic Associations, in Lisa Jordan and Peter Van Tuijl, (eds.), (2006): 43-57.

37 See, for example, Rajesh Tandon, Board Games: Governance and Accountability in NGOs in Michael Edwards and David Hulme, Beyond the Magic Bullet: NGO Performance and Accountability in the Post-Cold War Era (Kumarian Press Books on International Development, 1996): 53-64; Pat Bradshaw, Vic Murray and Jacob Wolpin, Do Nonprofit Boards Make a Difference: An Exploration of the Relationship among Board Structure, Process, and Effectiveness," Nonprofit and Voluntary Sector Quarterly, Vol.21, No.3 (Fall 1992): 227-249. See also the work of Boardsource, www.boardsource.org; the Board Mentoring Handbook, www.abcgta.ca/docs/BoardMentoringHandbook.pdf; Nonprofit Governance & Management Centre, www.governance.com.au.

38 What are referred to here as performance-related responsibilities build upon definitions of "practical" accountability (Sue Cavill and M. Sohail (Khan), Increasing Strategic Accountability: a Framework for International NGOs. Development in Practice, Vol. 17, no. 2, (2007): 234); "procedural" accountability (Mary Kaldor, (2003)); and "performance accountability" (Hugo Slim, By What Authority? The Legality and Accountability of Non-governmental Organization, ICHRP (January 2002)).

39 Event notes, Making Accountability Count: Citizens, NGOs and the State (21 March 2007).

40 The Special Rapporteur on Human Rights Defenders has highlighted the importance of ensuring and maintaining a "contextual space" within which NGOs can carry out their work. This space exists when government protects freedom of association in conjunction with other important rights such as peaceful assembly, expression, speech, and the right to receive and impart information. See Report of the SRSG on Human Rights Defenders, UN.Doc. A/61/312 (2006): 92-96.

41 For an excellent analysis of the power dynamics involved, see Jem Bendell, Debating NGO Accountability, UN-NGLS Development Dossier (United Nations Non-Governmental Liaison Service, 2006).

42 For a useful discussion of the responsibility for processes, see Lisa Jordon, Political Responsibility in Transnational NGO Advocacy, World Development, Vol. 28, No. 12 (2000): 2051-2065.

43 Sue Cavill and M. Sohail (Khan), (2007): 238.

44 The category mission-related responsibilities is based upon concepts of "political" responsibility (Lisa Jordan, (2000): 251-265); "strategic" accountability (Sue Cavill and M. Sohail (Khan), (2007): 238); or "moral" responsibilities (Mary Kaldor, (2003)).

45 Lisa Jordon, (2003).

46 Menno Tjeerd Kamminga, The Evolving Status of NGOs under International Law: A Threat to the Inter-State System? in Phillip Alston, (ed.) Non-State Actors and Human Rights (Oxford University Press, 2005): 107.

47 Article 29 of the UDHR states that "everyone has duties to the community in which alone the free and full development of his personality is possible." The ICCPR and the ICESCR contain an identical sentence in para. 6 of their preambles: "the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant." For further discussion, see ICHRP, "Taking Duties Seriously: Individual Duties in International Human Rights Law, A Commentary" (1999).

48 Articles 11 and 18, UN Declaration on Human Rights Defenders.

49 For a good discussion of what has been referred to as "voice accountability," see Hugo Slim, (2002).

50 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004), 29; Makau Mutua, (2001); and Barbara Bukovska, (2008).

51 Sylvia Tamale, (2009) notes in relation to Uganda that "I personally believe that the majority of mainstream women's NGOs are in many ways beholden to either the state or to donors": 67.

52 Research from Uganda demonstrates that foreign funded human rights NGOs tend to raise issues that are not applicable to the real situation of the communities in which they operate. Susan Dicklitch and Doreen Lwanga, The Politics of being Non-Political: Human Rights Organizations and the Creation of a Positive Human Rights Culture in Uganda, Human Rights Quarterly 25 (2003): 498.

53 Jem Bendell and Phyllida Cox, The Donor Accountability Agenda, in Lisa Jordan and Peter van Tuijl, (2006): 109-126.

56 Comment from a young human rights professional in response to a post by the author on her personal Facebook page: "I find it astonishing that some human rights organisations and academic institutions teaching human rights still manage to avoid providing their employees with basic employment rights." Both comments were posted in December 2010 and are on file with the author.

57 Interview with human rights worker based in Geneva, October 2007 (notes on file with author).

58 Speaking more generally, David Kennedy has noted that time spent fleshing out critical reflections of the human rights movement is occasionally seen as "time lost to the project of using human rights for emancipation." David Kennedy, (2004): 3.

61 Syndicat interprofessionnel de travailleuses et travailleurs, Geneva Based Non-Governmental Organisations, Labour Rights (2006): 4.

62 The INGO Charter states that "we value, respect and seek to encourage diversity, and seek to be impartial and non-discriminatory in all our activities. To this end, each organization will have policies that promote diversity, gender equity and balance, impartiality and non-discrimination in all our activities, both internal and external." www.ingoaccountabilitycharter.org.

63 Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, Human Rights Quarterly 26 (2004), 63-73.

64 Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2003): Amartya Sen, Human Rights and Asian Values (Carnegie Council on Ethics and International Affairs, 1997).

65 Makau Mutua, (2007): 591.

66 Christine Chinkin and Alan Boyle, (2007).

67 ICHRP (2006): .

68 For an analysis of the dominant role played by some INGOs in the drafting of the UN Disability Convention, see Janet Lord, Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting, Seton Hall Journal of Diplomacy and International Relations, Vol. V, No.2 (2004): 93-110.

72 Peter Van Tuijl, Entering the Global Dealing Room: Reflections on a Rights Based Framework for NGOs in International Development, Third World Quarterly, Vol. 21, No. 4 (August 2000): 617-626.

 

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