In the era of globalization, international institutions are assuming increasing responsibility and wielding considerable power. Decision-making centers are moving away from the people and their historical capitals to concentrate in a few new capitals of global governance, whether financial or political, particularly in New York and Geneva. By moving, power changes in nature: it aims to be rational and global, and consequently detaches itself from the expression of the (supposedly irrational) will of particular peoples, as well as from the old distinction between public and private actors, in favor of a new distinction between local and global actors. While small states are local actors with limited resources, some foundations and private companies are global actors. Some of these private global actors have an explicit political purpose. These are large foundations and non-governmental organizations (NGOs) with not only considerable financial resources, but also high-level expertise and, even more so, a generally liberal and global worldview. These three qualities make these private actors very effective instruments of social change, which act in the political and social arena with much more agility than States, without their administrative and democratic red tape. As a result, a few private actors have acquired financial and political power far greater than that of many States. The attitude of governments towards them varies depending on whether or not they share the same vision of the world.

International organizations (IOs) generally share this same liberal and global vision of the future of humanity, and also tend to work towards its realization. The IOs and the large foundations and NGOs are similar and appear to complement each other. Indeed, these NGOs enable “above-ground” IOs to extend their action “in the field”, to make it timely and effective, and to act independently of governments; in return, the IOs translate the NGOs' messages into political and institutional terms. In essence, IOs and NGOs are supposed to share the same global vision of the world, be committed to the pursuit of the common good of humanity, and be detached from national political considerations. This common good of humanity would be more easily accessible to IOs and NGOs in that they would not think in terms of “selfish” national interests, but in the universal language of reason. This language of reason also proves to be that of international law, and in particular of human rights. This complementary relationship induces a constructive dynamic through which IOs and NGOs inform and influence each other.

However, the blurring of the boundary between public and private actors, and the depth of the relationship between IOs, foundations and NGOs, allow global private actors to exert significant influence on IOs and, through them, on the whole world. The difficulty is to determine the acceptable limit to this private influence on public institutions, because there is only a small step from complementarity to dependence, which can be crossed in particular by the financing of IOs by foundations and NGOs.

This funding is the result of another form of complementarity between IOs and NGOs or foundations: IOs have political power but want more financial resources, while NGOs and foundations have financial resources but want more political power. This funding is considered acceptable and beneficial insofar as it enables work towards a common world vision, but it nevertheless proves problematic in that it further blurs the difference between global public and private actors, and has the effect of confusing their political and financial powers. This is how IOs can become dependent on private foundations and NGOs. This confusion is an essential aspect of global governance.

The boundary between public and private actors can also be blurred at the human level, through the recruitment of foundation and NGO personnel to the roles of international experts and judges. This blurring can then give rise to multiple conflicts of interest. This phenomenon, whereby a private actor exercises significant influence on or within a public institution, has been referred to in the social sciences as “capture^[1]” and “privatization”. It was first studied in the field of financial and commercial institutions, then in the field of human rights^[2].

This is the phenomenon that we will discuss in this article, based mainly on the ECLJ report on the funding of UN experts^[3] published in 2021. This report focuses on the special procedures of the UN Human Rights Council. It was produced on the basis of a series of interviews with 28 independent UN experts and an analysis of the financial declarations published annually between 2015 and 2019 by the Office of the United Nations High Commissioner for Human Rights (OHCHR), by the Special Procedures mandate holders, as well as by the two main foundations financing the system, namely the Ford and Open Society foundations. This report reveals the scale and opacity of the support and funding granted to experts outside the United Nations system. It also exposes the methods used by certain private foundations to influence these experts. Some of the experts interviewed used the word “corruption” to describe this phenomenon.

We will see how private actors invest in these public institutions, both in their function and in their operation (1) and how experts are financed by private actors to carry out their mandate. Due to length constraints, this article is limited to a factual account of the situation, reserving for a longer publication the in-depth analysis that this data deserves.

1. The financing of the foundation and the functioning of international bodies

a. Funding of the foundation of international bodies

American foundations have been investing in the establishment of an international institutional order since the first half of the 20th century. As a reminder, the oldest and most prestigious of these foundations, Rockefeller, Ford and Carnegie, participated in the creation of the major international institutions of the 20th century. The Rockefeller Foundation financed the League of Nations (LN), then the United Nations headquarters in New York, as well as certain branches of the United Nations, such as the UNFPA. The Rockefeller Foundation defined itself very early on as an “international organization” whose “community is the world”^[4]. The Carnegie Endowment for International Peace also funded the activities of the League of Nations, while the Ford Foundation played an important role in the establishment of the International Criminal Court and funded the promoters of the European Union.

b. Funding the functioning of international bodies

International institutions, such as the United Nations, have long been funded by global private actors, on the fringes of and in addition to States. The amounts are considerable. For example, in recent years, these private actors have contributed nearly one and a half billion dollars to UNICEF in 2020, more than one billion dollars to the WHO in 2017, $540 million to the Office of the High Commissioner for Refugees in 2020, $77.5 million to the United Nations Population Fund (UNFPA) in 2019, and $69 million to UNESCO in 2020. The same is true of the Organization of American States (OAS), which received more than $410,000 from OSF between 2017 and 2019^[5], and the Council of Europe, which includes the Inter-American and European Courts of Human Rights. Even the International Criminal Court receives private funding, notably through a special fund for the benefit of victims; it received 115,000 dollars from the Open Society Foundations (OSF) in 2017. Similarly, the OSF and Microsoft fund the Extraordinary Chambers in the Courts of Cambodia (ECCC, in charge of punishing crimes committed by the Khmer Rouge)^[6], while the Open Society, Ford, MacArthur, Oak and Rockefeller foundations have supported initiatives related to the Special Court for Sierra Leone^[7].

A reading of the annual financial reports of the Council of Europe shows that George Soros' Open Society and Bill Gates' Microsoft are the organization's two biggest private donors. These two organizations have donated almost 1,400,000 euros to the Council of Europe between 2004 and 2013 and almost 690,000 euros between 2006 and 2014. The Open Society also supports Council of Europe initiatives, in particular the European Roma Institute for Culture and Arts. Since 2015, there has been no trace of this direct funding, but the Council of Europe has set up a special fund to receive such voluntary extra-budgetary contributions.

This phenomenon of private funding also greatly affects the Office of the United Nations High Commissioner for Human Rights (OHCHR), where around 63% of the overall budget in 2019 consisted of voluntary contributions (i.e. extrabudgetary donations), for a total of more than 179 million dollars, while it has an ordinary budget of 105 million^[8]. It should be noted that the vast majority of these voluntary contributions are paid by the European Union and Scandinavian and Anglo-Saxon countries (Sweden, Norway, Denmark, Finland, Germany, Switzerland, the United Kingdom, the United States^[9]). Some foundations and private companies also fund the OHCHR, in particular the Ford, Open Society, MacArthur, Call for Code (founded and chaired by Bill Clinton), Microsoft, Counterpart International and Wellspring Philanthropic Fund foundations^[10]. Almost 70% of these voluntary contributions to the OHCHR budget are pre-allocated by their donor to a specific program that they wish to support and promote^[11]. For example, the OHCHR and Microsoft entered into a five-year partnership in May 2017^[12] whereby Microsoft committed not only to donate five million dollars to the OHCHR, but also to develop and manage “cutting-edge technologies designed to better predict, analyze and respond to serious human rights situations” for the Office of the High Commissioner. Although this partnership was described as “historic” by its parties, the OHCHR rejected the request, made by NGOs, to publish its contents and to clarify its policy on private funding^[13].

This funding cannot be reduced to simple sponsorship. As the United Nations Development Program (UNDP) emphasizes: “foundations consider themselves to be full-fledged development partners, rather than donors, and expect to be able to participate closely in activities such as policy discussions, advocacy and problem analysis. They influence international development policies^[14]. In fact, it is easy to see that the major foundations and NGOs have access to a higher level of decision-making than the thousands of other organizations accredited to the United Nations and the Council of Europe. This is also explained by the fact that these major foundations are also the most able to participate competently in the work of international bodies.

It should be noted, however, that public bodies, both national and supranational, also fund global private actors. For example, the European Commission awards significant grants to NGOs and foundations active in the field of human rights, in particular to the Open Society Foundations (500,000 euros in 2018), the Helsinki Committees (2.016 million euros in 2017 and 2018), the International Commission of Jurists (4.389 million euros in 2017 and 2018) and Amnesty International (85,000 euros in 2017)^[15]. Many countries also fund NGOs, some of which have made it a specialty, such as Sweden and the Netherlands, in order to act politically beyond their borders despite their diplomatic weakness. The United States uses the National Endowment for Democracy (NED) in particular. This is an informal instrument of influence financed by Congress, foundations and large American companies which encourages and finances political initiatives beyond American borders^[16].

c. The financing of NGOs by private foundations

Through their policy of funding NGOs, a few private foundations have placed themselves at the top of a large NGO network, enabling them to act simultaneously in all international bodies where law is made, and thus implement global strategies to assert new international standards.

The Open Society Foundation (OSF) has established itself as the richest and most influential organization in this field. Between 1984, the year it was founded, and 2019, the OSF was endowed with 32 billion dollars^[17], and invested 1.2 billion dollars in 2020. The OSF does not just fund other NGOs, it also carries out its own actions to influence international bodies, for example through the Open Society Justice Initiative, which specializes in strategic litigation in international courts. The OSF states that the link established with its beneficiaries is not only financial, but aims to establish real “alliances to achieve strategic objectives of the open society program”^[18]. The OSF and the NGOs it finances thus largely share the same objectives.

According to the Ford Foundation, its objective is to achieve “social justice” through institutional and social upheaval, as well as “gender, racial and ethnic justice^[19]”. It has a long history of supporting internationalist initiatives^[20]. Each year, it donates between 500 and 700 million dollars to the causes it supports^[21]. The Ford Foundation has been funding legal action since the mid-1960s. It extended this action to Eastern Europe and the ECHR in the 1990s. Like the Open Society, the NGOs it finances engage in strategic litigation, i.e. the use of legal remedies as a means to achieve a more global political objective. The Ford Foundation's involvement in the human rights sector is increasingly important. It has become the world's leading funder in this sector, with $387 million in grants in 2017, ahead of the Open Society ($224 million) and the Bill & Melinda Gates Foundation ($173 million)^[22].

Most of the foundations that finance the Special Procedures of the Human Rights Council (OSF, Ford Foundation, Oak Foundation, Sigrid Rausig Trust, Wellspring) are also members of the Human Rights Funders Network (HRFN), a New York-based forum for cooperation and consultation that brings together foundations and private funders of human rights initiatives. The financial weight of the foundations, which is much greater than that of the international human rights institutions, is such that they are able to capture or privatize human rights, even more so if these foundations act in concert.

The fact that a significant proportion of NGOs active in the field of human rights are funded by a few private foundations greatly undermines the independence of these organizations and calls into question the very notion of “civil society.”

2. Funding of independent experts of the Human Rights Council

The United Nations “independent experts” undertake to perform their duties on a voluntary basis and to refuse all donations; their expenses are covered by the UN. However, some experts have interpreted their independence as allowing them to receive funding directly from public and private actors, bypassing the Office of the High Commissioner for Human Rights (OHCHR).

a. Significant private funding

Between 2015 and 2019, 37 of the 121 experts declared that they had also received 134 direct financial payments, totaling $10,725,328, mostly from private donors. One expert claims to have received more than two million dollars, another more than one million, six experts more than 500,000 dollars and 11 others more than 100,000 dollars. According to the experts' voluntary declarations, $5,515,523 was paid to them by private foundations and NGOs, including $2,190,000 by the Ford Foundation for the benefit of 9 mandate holders and $1,584,517 by the Open Society Foundations (OSF) for the benefit of 6 mandate holders. Four mandate holders were funded by both the Ford and Open Society Foundations. In addition, $3,844,163 was reported as having been donated by 17 States, the main ones being Norway, Australia, Germany, Sweden, the Netherlands and Switzerland. $1,142,757 was reported as having been donated by 49 universities. Thirteen official international organizations were also declared as having paid $222,886, such as the International Organization of La Francophonie, which paid $26,637.

In addition to this is support in kind. Thus, 36 out of 121 mandate holders report having received 125 donations in kind between 2015 and 2019, according to the annual reports of the Special Procedures. These mostly involve the provision of offices, staff and administrative support.

This direct funding is characterized by a lack of transparency and causes numerous problems, in addition to violating the ban on accepting any donations.

Experts have only a moral obligation to declare their extra-budgetary funding. As a result, some of them fail to declare their direct funding annually (this was the case in 2019 for 19 mandate holders in 2017). Furthermore, when experts declare support and funding, these declarations are often inconsistent and incomplete, with the amounts declared as received by a particular expert not corresponding to the amount declared as paid by a particular foundation or government, or as received by the OHCHR. Experts have also sometimes declared donations without specifying the amount (18 times between 2015 and 2019), or omitting the identity of the donor (8 times for a value of 906,944 dollars).

What is more, the purpose of more than a quarter of the funding is not made public (143 out of 439 between 2015 and 2019). Similarly, the contracts binding the experts and their funders are not communicated either to the public or even to the United Nations administration, even though these agreements can describe precisely the obligations of the beneficiary, the objectives and the terms of the funding. Finally, these funding arrangements are also characterized by a lack of transparency in terms of how payments are made, as the experts do not have an official bank account linked to their role. They therefore have to find their own solution for receiving these funds.

b. Funding arrangements call into question the independence of the experts

These extra-budgetary payments, especially when they are direct, call into question the independence, or at least the apparent independence, of the experts. Richard Falk, former Special Rapporteur between 2008 and 2014, believes that direct funding “can have a corrupting effect”.

The independence of experts can be affected in several ways. First of all, the payments received can cause a dependency that varies according to the size of the funding. The situation of an expert who has received 10,000 dollars to finance a conference differs from that of an expert who benefits from a work team, or several hundred thousand dollars from the Ford or Open Society foundations, or from a single government. This dependence can be increased when it relates to the structural costs of the mandate, such as the payment of premises and salaries of collaborators.

This funding also calls into question the confidentiality of the experts' mandate, as they have to report on their activities to their donors, which determines whether or not their grants are renewed in subsequent years. The grant agreement and these activity reports are not made public, nor are they even forwarded to the OHCHR.

There are even cases in which experts receive a salary or remuneration from an external funder, in violation of their code of conduct. For example, the Ford Foundation paid $100,000 in 2017 to the NGO that employed an expert, in order to give her time off to work within the framework of her mandate^[23]. Similarly, two experts stated that they had received per diem allowances from universities and USAID, without specifying the number (in 2015 and 2016). A former expert from an NGO also told us that she had been paid as a consultant through a wage portage company, which was itself paid by a private structure that received private and state funding for the expert.

c. This financing influencing the expert's “agenda”

Almost all the experts interviewed recognize that direct payments influence the experts' political agenda, in particular the choice of theme or country considered in the annual reports, or even the very fulfillment of the mandate.

Several experts indicate that it is common practice for a public or private funder to make its “financial support” conditional on the realization of a specific project, more or less closely related to the mandate in question. The financial statements of the Ford and Open Society Foundations present several examples of payments made for the purpose of producing a report on a particular subject. For example, according to the example used by one expert, a foundation wishing to promote gender issues may have proposed to the working group on enforced disappearances that it finance work on the topic of “gender and enforced disappearances”. This is also the case of a report entitled “Gender perspectives on the prohibition of torture^[24]” presented to the Human Rights Council in January 2016 by the Rapporteur on Torture, and another report on “The gender dimension of contemporary forms of slavery” presented in 2018 by the Rapporteur on Slavery. When such funding is pooled and offered to several experts and other actors in international law, it can help bring a topic to the international stage, opening the door to international law.

The Open Society Foundations have even openly acknowledged wanting to “influence” an expert. The OSF has stated that it paid USD 100,000 in 2017, under its women's rights program, to the Center for Women's Global Leadership (CWGL), a feminist activism center affiliated with Rutgers University^[25] (New Jersey), “to influence the United Nations Special Rapporteur on contemporary forms of slavery^[26]”. The aim was to get the Special Rapporteur to recognize domestic work as a form of slavery. This goal was achieved, because the following year, this Special Rapporteur devoted his official report to this topic^[27], in close collaboration with the CWGL, both for the drafting and the promotion of the report. The chair of the board of the Women Program of the Open Society Foundations between 2011 and 2018 became Special Rapporteur in 2017. The CWGL also funded, with the Open Society, the promotion of a report by the UN independent expert on foreign debt.

Conclusion

These few facts give an idea of the depth of financial power acquired by a few private foundations at all levels of the international human rights protection system. This picture is still incomplete and only shows the visible, objective part of this power. The whole subjective, relational and ideological dimension largely escapes analysis. The human rights protection system was established after the Second World War to protect individuals from the arbitrary power of states. Other major players have since emerged on the international scene. It would be naïve to believe that these new private players act solely out of philanthropy.

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[1] See, for example, Caroline Devaux, La fabrique du droit du commerce international, Réguler les risques de capture, Bruylant, 2019.

[2] See Gaëtan Cliquennois, European Human Rights Justice and Privatization, The Growing Influence of Foreign Private Funds, Cambridge University Press, 2020; K. De Feyter and Isa F. Gómez. Privatization and Human Rights in the Age of Globalization. Cambridge: Intersentia, 2005. H. N. Haddad, The Hidden Hands of Justice: NGOs, Human Rights, and International Courts. Cambridge: Cambridge University Press, 2018.

[3] Grégor Puppinck and Louis-Marie Bonneau, Le financement des experts de l'ONU au titre des Procédures spéciales du Conseil des droits de l'homme, ECLJ, 2021, https://eclj.org/the-financing-of-un-experts-report?lng=fr

[4] RF Activities, June 1930, RF 3/900/22/166; cited by Tournès Ludovic, in “La fondation Rockefeller et la naissance de l'universalisme philanthropique américain”, Critique internationale, 2007/2 (n° 35), p. 173-197. DOI: 10.3917/crii.035.0173. URL: https://www.cairn.info/revue-critique-internationale-2007-2-page-173.htm

[5] See details on the OSF website (link URL).

[6] See the summary tables of expenditure and contributions by donors as of March 31, 2016, https://www.eccc.gov.kh/fr/about-eccc/finances/tableau-recapitulatif-des-depenses-et-des-contributions-par-les-donateurs-au-7 .

[7] https://www.justiceinfo.net/fr/45638-philanthrocapitalisme-justice-transitionnelle-devoir-responsabilite.html

[8] United Nations Human Rights Office to the High Commissioner, Human Rights Report, 2019, p. 87.

[9] Ibid., p.90.

[10] Between 2015 and 2019, they paid USD 415,000, USD 107,000, USD 340,000, USD 130,000, USD 2,550,000, USD 748,289, and USD 425,050 respectively – OHCHR, Voluntary Contributions To OHCHR 2008-2019.

[11] OHCHR, OHCHR's Funding and Budget.

[12] ESCR-Net, Letter to Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights, 2017.

[13] Idem.

[14] UNDP, Management response to the evaluation of the UNDP partnership with global funds and philanthropic foundations, September 4-10, 2012, DP/2012/24, p. 15.

[15] See the parliamentary question “EU funding for controversial NGOs” E-003054/2020 and the answer given by European Commissioner Hahn, EuroParl, E-003054/2020(ASW).

[16] Helmut K. Anheier, Stefan Toepler, Private Funds, Public Purpose: Philanthropic Foundations in International Perspective, Springer Science & Business Media, Nov. 11, 2013.

[17] https://www.opensocietyfoundations.org/george-soros (accessed on 02/01/2020).

[18] https://www.opensocietyfoundations.org/uploads/2519658d-a95b-44bd-b9d3-edec9039de24/partners_20090720_0.pdf (free translation, accessed on 01/02/2020).

[19] Ford Foundation, About Ford Mission.

[20] Nicholas R. Micinski, The Changing Role of the Ford Foundation in International Development, 1951–2001, International Society for Third-Sector Research and The Johns Hopkins University 2017.

[21] Ford Foundation, Financial Snapshot 2018.

[22] Human Rights Funding Network, Annual Review of Global Foundation Grantmaking, Advancing Human Rights 2017 Key Findings, 2017.

[23] Facts and figures with regard to the special procedures in 2017, A/HRC/37/37/Add.1 - Annex X, p.31: “Separately, US$100,000 was received from Ford Foundation to the NGO that SR works for that provides her the release time to work in the mandate.”

[24] Juan Mendez, Gender perspectives on the prohibition of torture and cruel, inhuman and degrading treatment A/HRC/31/57.

[25] Rutgers - School of Arts and Sciences, Programs, Centers, and Institutes.

https://sas.rutgers.edu/giving/sas-departments/programs-centers-and-institutes, [Accessed 10/12/2021].

[26] Open Society Foundations, Awarded Grants, 2017. https://www.opensocietyfoundations.org/grants/past?grant_id=OR2017-39720 [Accessed 10/12/2021].

[27] Document A/HRC/39/52, July 27, 2018.