As highlighted in the introduction to this roundtable, global governance institutions (GGIs) are affected by (at least) four developments: a changing distribution of state power; the rise of nationalist populism that often includes authoritarian elements; the frequent occurrence of transnational crises; and the emergence of complex cooperation problems. These challenges are particularly relevant to international institutions that were established to uphold human rights standards: with a change in the distribution of state power and the rise of nationalist populism, we can see a push for reinterpreting human rights toward traditional notions—for example, what a family is and how it works—and the contestation of basic principles such as nondiscrimination and minority rights in the United Nations Human Rights Council.
Counterideological pushback—“a specific form of backlash against the dominance of an ideology within a social sphere”Footnote 1 in the case of advocating for a return to traditional family norms—has already led to deadlock in the Human Rights Council over advancing sexual orientation and gender identity, or SOGI, rights.Footnote 2 Moreover, with every transnational crisis, human rights are at risk of becoming disregarded in the name of security. Climate change, the prime example of a complex cooperation problem, challenges human rights monitoring institutions to assess state obligations to different rights but also reevaluates the relationship between human rights and the rights of nature.
In this contribution, I analyze the institutional dynamics of global governance in hard times as they affect human rights advocacy. I argue that in the field of human rights, innovation often does not come directly from states but rather involves informal coalitions of committed human rights professionals. However, the risk of ideological capture of norm interpretation and development by actors with a regressive agenda makes new regulations for participation in GGIs imperative. To be sure, the current nonideological accreditation system, with a broad understanding of human rights defenders, nongovernmental organizations, and partnerships,Footnote 3 has enabled the progressive development of human rights protection by liberal human rights advocates. International NGOs and affected individuals and groups have advanced indigenous or LGBTQI rights through this system. Importantly, however, these techniques have provided a playbook for advocates and governments from the far right and the ultraconservative end of the political spectrum. Indeed, those types of actors now use the techniques previously employed by proponents of human rights to push back against a progressive, liberal-internationalist development of human rights.Footnote 4
In addition, GGIs have started to cooperate with private actors who promise to bring the expertise and financial resources that international organizations are lacking amid a global budgetary crisis. This development risks the capture of the global human rights regime by corporate interests. To avoid such a corporate capture, I hold that GGIs would be well advised to regulate access to their decision-making.
To illustrate my argument about the risks to human rights, I focus on informal institutions within formal intergovernmental organizations (FIGOs). An example of such a type of informal institution is a transnational lawmaking coalition (TLC). TLCs are temporary and informal collaborations between one or more professionals—such as independent experts and individual collaborators from civil society organizations and academia, or bureaucrats in international organizations—and one or more member(s) of a treaty-monitoring body. Within a TLC, all involved actors coalesce around a like-minded goal of action: to develop, apply, or interpret a legal norm. Their interactive structure is thus temporary and maintained only until the desired outcome is achieved. TLCs are transnational because they are formed by experts in international monitoring bodies with individuals working in various professions relevant to human rights across borders. Thus, they do not include state representatives. In fact, TLCs consist of a small number of individuals, one of whom—a member of the expert committee—is designated the responsibility for drafting the interpretation. If there are sufficient resources, a TLC can be so small that its drafting of the framework involves only the committee member and one external actor. The lack of resources, especially expertise, determines how many other actors become members.
Because they traditionally work toward expanding the protection of human rights, TLCs are a prime example of an innovative actor that seeks to advance human rights in hard times by interpreting existing legal instruments in an expansionary way. For example, TLCs worked to establish water as a human right in international lawFootnote 5 and to foster the adoption of an interpretation of torture that reaffirmed nonderogation of the prohibition amid counterterrorism practices.Footnote 6
Importantly, given the role of experts in treaty interpretations, the same process can be used to roll back the expansion of human rights protections and reinterpret them in a regressive manner that is compatible with the needs of authoritarian governments. Recent appointments of conservative experts to UN human rights bodies enable the formation of dark-side TLCs that are working toward reversing progressive norm developments and may thus contribute to backlash in the UN human rights system. Thus, the threat of TLCs being captured by actors with illiberal interests—be they authoritarian, populist, or capitalist—challenges the progressive potential of such coalitions for the future of human rights. Should GGIs continue to refrain from constraining access to their decision-making, those actors may therefore turn progressive TLCs into dark-side TLCs.
To be sure, actors that pursue a regressive agenda are not necessarily opposing multilateralism and GGIs, per se. Instead, they engage across world regions in what Minda Holm calls a “counter-ideological critique of global politics,”Footnote 7 targeting the liberal internationalism that became dominant in the 1990s. Today’s human rights system can to some extent be considered a product of this liberal internationalism, which, for its critics, is intrinsically connected to capitalism and the interests of the wealthier parts of the globe.Footnote 8 Counterideological critiques unite populist groups in Western democracies with non-Western governments “who seek to re-frame dominant norms in accordance with their own interests and values.”Footnote 9 These interests and values are not just an alternative, more “traditional,” and “profamily” interpretation of human rights. They stand in stark contrast to the fundamental idea of human rights, because they contest the rights of vulnerable groups and minorities like refugees, migrants, and trans people. Regulating participation in GGIs and human rights fora could then be based on an organization’s charter and its alignment with the human rights regime’s fundamental values of nondiscrimination and protection of minorities as agreed on post-1945. In philosophical terms, I follow those who argue that all participants in the international human rights system—states, civil society, businesses—have a moral duty to protect others, in particular minorities, from social cruelty.Footnote 10
The essay proceeds as follows: first, I show that during hard times the human rights regime has developed innovative-yet-informal institutions like the above-mentioned TLCs for the international protection of human rights. Yet, as these informal institutions function very much based on, first, the interpersonal relations among their members, and, second, legal instruments that require no further consent by states, the lack of regulation of access opens the door for regressive developments. Second, I turn to human rights advocacy by global law firms. Their pro bono engagements in GGIs have increased and offered much needed resources for an underfunded human rights system. However, due to their business structure and dependence on revenues coming from representing corporate clients, law firms are unreliable partners for GGIs in crisis and for the protection of human rights. Given the imminent risk of ideological capture and conflicts of interests, I reemphasize the need for regulating access to the UN human rights bodies.
Human Rights and Innovation through Informal Coalitions
GGIs play a crucial role in implementing and protecting human rights, in empowering people to claim these rights, in making their violations known, and in developing international and domestic legal norms and frameworks. For these reasons, the traditional intergovernmental composition of GGIs is mirrored by a treaty-based expert monitoring system in the UN. Through independent experts, human rights are monitored and interpreted in a less politicized and more forward-looking manner. This means that human rights treaties are seen as “living instruments” that account for change in social and political contexts and whose implementation considers the rights of future generations.
For example, a human right to water, unlike the right to food or the right to health, was not included in the text of the International Covenant on Economic, Social and Cultural Rights (ICESCR) when it was adopted in 1966, nor was it included in any of the other core human rights treaties. Yet, throughout the following decades, the need for recognizing such a right became more prevalent and resulted in the interpretation of the right to water by the expert monitoring body in 2002.Footnote 11 The adoption of General Comment No. 15 in November 2002 finally closed this gap, following a drafting process that took just a year.Footnote 12 However, this drafting process was preceded by decades of advocacy for the recognition of an individual’s right to water at the international level. While social pressure was strong, states initially did not act to recognize water as a human right. Instead, a TLC was involved in the drafting of this General Comment. The individual members of the TLC were remarkably few in number, and came together on the basis of their acquaintance through previous professional relationships. The Centre on Housing Rights and Evictions, a legal officer’s Geneva-based NGO, had already worked with the Committee on Economic, Social, and Cultural Rights, and in particular with the rapporteur and committee member, on General Comment No. 12, concerning the right to food, and was therefore known to the committee. The rapporteur and the officer jointly discussed several drafts that they had prepared based on current discussions on the scope of the right to water. The rapporteur, as the group’s operating member of the treaty body, considered the committee’s experience with states and their views as expressed in reports and during the dialogues. The NGO representative, as a legal expert on socioeconomic rights, was familiar with national court decisions on water issues. His autonomy in the drafting process was also reflected in the informal meetings held in the NGO’s offices to work on the draft. In addition, the two invited a WHO officer and a water expert with relevant experience of water and sanitation provision in development aid to join the drafting group, which was then a TLC on the right to water.Footnote 13
As this and other examples show, human rights treaty institutions can react to the challenges presented by global governance in hard times by developing influential, informal, and transient institutions, such as TLCs, that emerge from and operate through FIGOs.Footnote 14 Committed individuals and organizations have built coalitions and networks to improve implementationFootnote 15 and to develop human rights.Footnote 16 Such coalitions of diverse actors seek to overcome gridlock and open paths for innovation by turning to expert bodies in FIGOs. In the UN treaty bodies, we see expert committees adopting such interpretations without further state consent. The so-called general comments work around stagnation in formal lawmaking.
Establishing a normative framework for a human right to water, clarifying states’ obligations to prevent rape and violence as a form of torture, combatting racist hate speech, and elucidating what a right to life encompasses are just some of the outputs marking TLCs’ active and vivid contribution to the progressive development of human rights through the UN human rights treaty bodies. Other examples of TLCs’ influence can be seen in the right to life and abortion (Human Rights Committee, General Comment No. 36, 2019); state obligations during austerity measures (UN Committee on Economic, Social and Cultural Rights, General Comment No. 23, 2016); and racist hate speech (Committee on the Elimination of All Forms of Racial Discrimination, General Recommendation No. 35, 2013).
The Relationship between States and TLCs
These examples of treaty interpretations reflect the substantive influence of nonstate actors on the setting of international law’s standards, a domain traditionally regarded as exclusively intergovernmental and to which these actors have access through the collaborative channels of TLCs.Footnote 17 Indeed, in teasing beneath that practice—in figuring out how and by whom these interpretations come to pass—TLCs arise, at least occasionally, to push for and then create general comments that fill some pressing gaps in human rights law. In observing their shaping of law, it is striking that TLCs enact these contributions within the realm of a FIGO, the UN, but at the exclusion of governments. In this alternative space—the space of expert body lawmaking—states, although not entirely absent, are neither directly involved, nor are their contributions clearly visible. To be sure, the actions of TLCs may not be completely independent from the positions of states on the subject matter. States are targets of outcomes rather than actual participants in decision-making, omitted from expert bodies and therefore precluded from using their veto or voting rights regarding the final draft of the bodies’ general comments. But even from the periphery, states, as the human rights system’s founding actors, still occupy a top-level vantage from which they can press their thumb on the operations of the treaty bodies. Put differently, the space for innovation that TLCs can create is still potentially constrained by states.
The appearance of less progressive TLCs is closely connected to the changing distribution of global power, highlighted as a challenge for contemporary global governance in the introduction to this roundtable. With the strategic nomination of experts to the human rights bodies, illiberal states can contest the progressive interpretation of human rights based on the liberal internationalism that many of them criticize. In the UN human rights system, for example, this is reflected in the fact that authoritarian governments have taken on a much more active role that aims at reinterpreting fundamental human rights and state obligations.Footnote 18
China and Russia not only seek to strategically nominate and elect “independent” experts to human rights bodies but also to make sure that so-called “shadow reports” or oral testimony from civil society are supporting the government’s position. Thus, the shrinking space that traditional advocates for innovative, progressive human rights development face at the domestic level also occurs at the international level, with fewer NGOs and human rights defenders able to argue their cases freely.Footnote 19 The whole state dialogue process, designed to include civil society voices to paint a more accurate picture of the domestic human rights situation, therefore risks becoming a farce. As a result, the innovative potential of TLCs is becoming constrained. In fact, the capture of such coalitions by authoritarian regimes and other actors with retrograde intentions risks a regression, or even an erosion, of the norms TLCs have pushed for in the past. By constraining access to TLCs, in ways I will suggest in the conclusion, this risk could be mitigated.
An example of a formal attempt at counterideological capture of a human rights GGI is China’s voting and discursive behavior in the UN Human Rights Council. After decades of indifference toward the multilateral development of human rights norms, China has actively taken on a norm-shaping role in the Human Rights Council. In this role, China has promoted the view that states should be immune from criticism, although mechanisms such as the Universal Periodic Review are specifically designed to promote human rights through naming and shaming. Moreover, as shown in recent studies, China has advanced an interpretation of human rights that assumes that individual rights should not compromise state sovereignty and that “China’s policies are seen as consistent with human rights law.”Footnote 20 To pursue these interests, China actively builds coalitions with like-minded states,Footnote 21 works with close-to-government NGOs to disguise its intentions,Footnote 22 and prevents the accreditation of critical NGOs.Footnote 23 In a similar vein, Russia (with Hungary and Uganda) has mobilized transnational networks to promote anti-LGBTQI+ norms and to reframe human rights in a way that justifies discrimination as “family-friendly.”Footnote 24 Strategies for norm development by these states mirror those employed by progressive human rights networks.Footnote 25
In sum, in the field of human rights, GGIs are sites in which different types of actors contest the meaning and scope of human rights and try to trigger change in very different ideological directions. Thus, while we have observed a progressive development of international norms in specific institutional contexts that was driven by progressive TLCs, the same institutional dynamics may also shape these lawmaking coalitions in the opposite direction, contributing to the formation of authoritarian international law that prioritizes sovereignty over human rights.Footnote 26
Human Rights and Private Advocates: Hope or Risk for the Underfunded System?
GGIs can empower nonstate actors and cooperation among them, yet this empowerment is not connected to requirements for the normative aims of their cooperation.Footnote 27 While the international promotion and protection of human rights has traditionally been the sphere of civil society, together with GGIs, private actors are increasingly pushing into this space. When FIGOs face budget restrictions, sometimes the only way to get projects implemented is to work with businesses. Public-private partnerships have been around for decades,Footnote 28 and the Sustainable Development Goals (SDGs) have institutionalized this form of cooperation in SDG 17. While public-private partnerships are not themselves new, the rise of private law firms in interpreting human rights brings new risks, particularly as many of the firms involved in these projects have potential conflicts of interest through their clients, which call into question their motivation for taking on these projects. I argue that if law firms want to help out GGIs in crisis, they need to be constrained because of conflicts with their corporate clients and power imbalances vis-à-vis the bodies of NGOs and intergovermental organizations.
Law firms provide voluntary legal services for marginalized or resource-poor individuals, groups, and organizations—services collectively known as “pro bono legal services.” At its best, pro bono work allows law firms to collaborate with states, UN agencies, and NGOs to provide access to justice for individuals and organizations all over the globe. To give an example, the global law firm DLA Piper made a public commitment to putting environmental, social, and governance issues (ESG) at the center of its commercial and pro bono portfolio, and reached out to several nonlegal professionals and state and nonstate actors, from the international to the local level, for consultations. The firm was appointed as the provider of legal services for the 26th UN Climate Change Conference of the Parties (COP26) in Glasgow. As an inaugural member promoting the Net Zero Lawyers Alliance, DLA Piper has used its role to organize public panel events in support of the UN’s Race to Zero, the world’s largest coalition of nonstate actors taking immediate action to halve global emissions by 2030.Footnote 29 During a promotional video for COP26, DLA Piper partner and managing director, Jean-Pierre Douglas-Henry, justified his firm’s shift to proactive leadership on ESG issues by stating that “we need to turn from being traditional lawyers into futurists.”Footnote 30
With firms such as DLA Piper taking on active roles as human rights and environmental defenders and seeking to leverage their resources for progressive causes,Footnote 31 this could mean a real chance for innovation in the crisis-ridden UN human rights system (so long as their engagements are more than just PR for the firms). These firms’ influential networks, their clients and access, and their commitment to organizational change are powerful resources in international relations. Some law firms explicitly target global governance arrangements for their pro bono activities. One example includes Baker McKenzie assisting an NGO by issuing a report for the UN Committee on the Rights of the Child to give input on a general comment on street children.Footnote 32 Baker McKenzie frequently points to the UN Global Compact’s principles as embodied in its core culture and recently became a patron of the UNGC’s Action Platform for Peace, Justice and Strong Institutions.Footnote 33 Other pro bono projects not directly involving GGIs but with implications for their work include those where firms support the drafting of constitutions in postconflict states.Footnote 34
At first sight, cooperation between for-profit actors and NGOs is beneficial for both sides: Law firms get access to the human rights bodies and lawmaking processes and benefit from the ideational reputation of the NGO. And the NGO benefits from the legal expertise and the material resources of the firms. Further, as private actors, law firms are not as affected by the shrinking space observed for traditional human rights defenders around the globe, and so they are uniquely positioned to advocate for those who otherwise may not receive justice.Footnote 35 They are also not usually subject to the administrative crackdown on civil society through laws and regulations that either target an organization’s funding structure or its mandates. Thus, private law firms have been widely regarded as both more accustomed to and better equipped for navigating democratic backsliding and authoritarian contexts.Footnote 36 Yet, while this finding is based on their activities in some authoritarian contexts, the changing domestic conditions for the law firms in the United States have revealed some limits to the willingness of big law firms to stand up when their profession is under attack by the government.Footnote 37 Some of these firms have already started to delete pro bono projects and references from their websites and others have made deals with the Trump administration to provide pro bono hours for the government.Footnote 38
In practice, an imbalance often arises between nonprofit and for-profit actors because of the financially much stronger for-profit actor in the partnership that can often choose between several nonprofit partners. For example, in the above-mentioned case of Baker McKenzie co-drafting and co-sponsoring a report with an Indian NGO on street children, the partnership allowed the local NGO in India to gain more exposure for its work, welcome members of the UN Committee on the Rights of the Child to India, and travel to Geneva to attend the UN committee’s session and present the report in person. Since there are several NGOs working on the situation of children in the streets in India, the choice of cooperation partners then becomes strategic for the law firm. There is a general risk that conflicts of interest may arise in such a cooperation, or even co-optation of the issues at the expense of the NGO. In partnerships between for-profit and nonprofit actors, more safeguards need to be put in place to make sure the NGO is in control and the law firm is advocating at the direction of the NGO.Footnote 39 One way to limit this influence is that for human rights monitoring reports, the support of pro bono work from law firms should be kept mainly technical and the firm should respect that the NGOs are in charge; for example, by providing assistance on a report at the request of the NGO, rather than aiming to co-draft it.
Further, lawyers that contribute to GGIs bring uncertainty for social and environmental advocacy groups. For instance, a law firm’s commitment to a pro bono cause may be contingent upon its corporate clients or may not be as “pure” as it seems. Its pro bono or voluntary engagement with a GGI requires a profitable core business securing the revenues for such philanthropic endeavors. In practice, this can result in the early termination of projects if they conflict with the firm’s business operations, or in a shift of priorities in its engagement. One prominent example is the firm Weil, Gotshal & Manges, which was representing the City of New York, pro bono, in a lawsuit against the gun industry. In a dramatic move, the firm removed itself from the case on the evening before the trial, after more than two years of work. Apparently, a gun company’s lawyer approached a big corporate client of the firm, which in turn had the Weil, Gotshal & Manges lawyers withdraw from the case.Footnote 40 Other examples of conflicts of interest for for-profit actors engaged in nonprofit activities have been documented for consulting firms,Footnote 41 corporations,Footnote 42 and philanthropic organizations.Footnote 43
Through their pro bono work, private law firms have the opportunity to shape the development of international law and to close governance gaps in human rights and environmental standards.Footnote 44 But law firms that represent corporations are tasked with advancing corporate interests through legal means by definition, and so their pro bono activities are a way to set the conditions under which their clients operate. Concerningly, law firms often directly advise on pressing social and environmental issues while at the same time representing clients that score below average on precisely such issues.Footnote 45 The “Climate Scorecard,” an initiative by a group of law students in the United States, aims to orient law school graduates with an overview and ranking according to how much fossil fuels work the firms have engaged in. And what we can see in this scorecard is that many of the firms we have identified in our PROBONO databaseFootnote 46 as working with GGIs are scoring particularly low.
More broadly, the key role played by private actors in global politics has resulted in a marketization of advocacy for human rights and justice.Footnote 47 The forms, dynamics, and consequences of the dependency of FIGOs on service procurement by private actors have been highlighted by many scholars.Footnote 48 Relatedly, research on the role of consultants in global governance warns that “managerialism,” meaning the reliance on professional managers and management techniques rather than diplomacy, in GGIs creates new forms of informality, opening up avenues for hidden private influence, with strong implications for power and accountability in FIGOs.Footnote 49 For instance, Juanita Uribe showed that at a multistakeholder food summit where the organization was delegated to a consultancy, problem-solving procedures were prioritized over political discourse. While this “did not actively exclude critical voices . . . [it] value[d] those that fit the programmatic modalities of governing.”Footnote 50 Indeed, even in their most cooperative models, collaborative governance with private actors can lead to political marginalization rather than the inclusion of different stakeholders.Footnote 51
Amid a shrinking civic space in countries around the world and in GGIs, budgetary restrictions force the public sector to engage in partnerships with private actors. Thus, private law firms have the potential to transform global governance through legal tools. Equipped with private-sector resources, firms can strategically choose which actors and projects they support. At the same time, budget cuts and shrinking civic space for NGOs and international organizations create dependencies on and power asymmetries within partnerships with private law firms. Regulation of pro bono work in GGIs, in particular regarding conflicts of interest between pro bono aims and the interests of corporate clients, is needed if this partnership model is to succeed for the promotion of international human rights. In the absence of such regulation, pro bono advocacy is likely to strengthen corporate interests or those of illiberal governments.
Conclusion
GGIs invite, foster, and depend on formal and informal coalitions with nonstate actors. While the liberal-internationalist development of human rights is based on an active civil society whose advocates stand up to promote human rights, the current backlash threatens the work of those who advocate for human rights and environmental concerns in global governance institutions in many countries throughout the world. As the examples of the right to water and the interpretation of the torture prohibition show, creative and progressive policy solutions and legal developments can come from TLCs composed of committed bureaucrats, experts, and civil society advocates. Yet, advocacy for human rights norm development increasingly invites actors from the opposite end of the political spectrum. Instead of simply ignoring international human rights institutions, authoritarian leaders have started to capture these institutions and openly challenge their outputs. Indeed, a populist version of human rights advocates risks “mak[ing] a politics that is anti-human rights pass for a politics of human rights.”Footnote 52 Beyond this risk, the growing need for legal assistance from law firms that are willing to engage in pro bono services invites more opportunities for corporate interests to enter into these informal processes within GGIs, and so human rights are at risk from both authoritarian governments and corporate profits.
To avoid the further decline of the protection of international human rights, GGIs would be well advised to turn toward a stronger regulation of access and participation in their grounds and fora. So far, the UN and their agencies have not adopted any measures to prevent capture by actors that pursue a political or corporate agenda, which risks undermining the values and standards these institutions seek to uphold and protect. While cooperating with actors that are driven by authoritarian, populist, or capitalist logics is often unavoidable when it comes to the domestic implementation of human rights, including them in the development of policies and laws only risks reinterpreting the standards on their terms.
I therefore recommend developing transparent guidelines that establish which organizations qualify as nonstate actors not just in the United Nations Economic and Social Council as the central accreditation forum, but also for the human rights bodies. This could include setting up parameters based on the type of organization (such as an NGO, academic institution, private sector leader, and so on) and its area of expertise or relevance to specific UN agendas. Another recommendation is to require nonstate actors to go through a prequalification process to assess their legitimacy, expertise, and alignment with UN principles. This could involve reviewing their mission, activities, and impact before granting them access. In addition, and particularly relevant to private law firms as the new advocates in the UN system, there needs to be established transparency requirements for nonstate actors regarding their funding sources and any potential conflicts of interest. This could help mitigate concerns about undue influence from corporate or specific political interests.
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