Table of Contents
2. Mapping Orchestration
Governance in a Multi-Actor System Enforcing Human Rights through Orchestration
The European Union (EU) is one of the main global actors in promoting human rights. Values such as freedom, democracy, dignity, equality and fundamental human rights are not only embedded in the treaties which all EU member states approved voluntarily, but a separate Charter codifying certain political, economic and social rights for all EU citizens has been adopted in 2000 and is legally binding for all EU member states since 2009. Given that all EU member states are already part of the European Convention on Human Rights (ECHR), the EU Charter offers an extra layer of protection and promotion of human rights by obliging the organs of the EU to actively engage in the fulfillment of this goal and establishes an additional mode of enforcement. Most states are bound to several mechanisms that promote and protect human rights (United Nations Charter, Universal Declaration of Human Rights, ECHR, African Charter on Human Rights, American Charter on Human Rights and many more). The existence of numerous binding and non-binding treaties and regimes that all have the same objective, namely protecting certain fundamental human rights, shows on the one hand how important the issue is and that this importance is recognized worldwide, but on the other hand it reveals that the infringement of human rights is frequent. It would not be necessary to bind states to ever more regimes if they complied to the already existing ones and perfectly respected human rights. Accordingly, states sign treaties but do not adhere to the principles of those treaties. There are two reasons for this compliance gap. First, there are states that are willing to comply, but do not have the means to do so. The solution to this first reason of non-compliance is enhanced capacity building by the EU. Solving the second case of ratification not followed by compliance is more complicated and the specific strategy applied by the EU to do so is addressed in this paper. Some states commit to treaties without having the intention to comply in the first place. In this case, the EU lacks sufficient enforcement mechanisms to regulate domestic state behavior (Moravcsik, 2000). Compliance gaps, caused by states’ unwillingness combined with a lack of enforcement mechanisms, reveal the flaws of the traditional hierarchical governance model, often conceptualized in terms of a principal-agent model, where a principal (state) delegates to an agent (international organization; in this case the EU) a clearly defined mandate (Broadbent et al., 1996). In the domain of human rights, this governance model fails with respect to its goals, namely promoting and enforcing of human rights. This led to the creation of more pluralist modes of governance, characterized by multiple actors whose relationships exceed those of delegation and execution (Pegram, 2014). In order to bypass states with the goal of closing the compliance gap in the domain of human rights, the EU created a complex multiple-actor system, that International Relations scholarship defines as orchestration.
The concept of orchestration describes a type of governance where an orchestrator enlists and supports intermediary actors that share the same goals as the orchestrator with the ultimate objective of influencing the behavior of a target actor and providing public goods. Orchestration possesses two distinct features, whose joint presence distinguishes orchestration from hierarchy, delegation and cooperation. First, governance is indirect, in that orchestrators do not try to influence the target’s behavior directly but act through intermediaries. Second, orchestration is soft, because orchestrators lack control over the intermediaries (Abbott et al., 2015). Orchestration is a frequent form of governance in the domain of human rights (Pegram, 2014). This essay seeks to map orchestration in the specific case of the European Union engaging in the protection of human rights defenders. More precisely, the O-I-T model will be applied to the strategy implied by the EU to protect human rights defenders with a twofold purpose: Above all, to demonstrate that the mode of governance applied in this field by the EU is in fact that of orchestration. Secondly, by identifying a layered system of various intermediaries (with the EU as the orchestrator), I want to show that the O-I-T model can be further subdivided, comprising additional levels of actors. The intent here is not to assess if orchestration is the best suited mode of governance to enforce the rights of human rights defenders on a national level, but only to illustrate that it can be defined in terms of orchestration and to contribute to the existing orchestration literature by further refining the O-I-T model.
2. Mapping Orchestration
In order to speak of orchestration, we need to identify a situation where an actor cannot reach its goal to influence the behavior of a target state and provide public goods by its own and therefore engages with one or several intermediaries that share the same goal. The above outlined governance problem fits perfectly into this scheme. “Support for human rights defenders (HRDs) is an integral part of the European Union's external policy on human rights” (European Commission). Despite various treaties on the matter, including the Guidelines for Human Rights Defenders adopted by the EU in 2004, HRDs are in danger worldwide and violations of their rights are frequent (Freedom House, 2017). Apparently, the EU is not able to achieve their goal by itself, which is why it established through the European Instrument for Democracy and Human Rights (EIDHR) the defense mechanism Protect Defenders. The platform provides training, support and capacity building, as well as emergency support and material assistance to HRDs, supports their temporary relocation and promotes cooperation between organizations that advocate HRDs. Even if the network is created and supported by the EU, it is led by a consortium of twelve international human rights organizations and is independent in its actions. Given that the EU failed to make states comply fully to the agreed standards by dealing directly with them, it established an intermediary actor to address this problem. This specific mode of governance which acts through an intermediary is indirect, and therefore cannot be defined as hierarchy or collaboration. It can neither be defined as delegation, because while supporting the platform financially, the EU lacks control over it, which makes it a soft form of governance. Hence, all of the factors that make the EU an orchestrator, and Protect Defenders an intermediary, are present: On the one hand we have an international organization (EU) and on the other one a network of specialized NGOs (Protect Defenders). Both actors cannot achieve their shared goals on their own, and the intermediary is supported by the orchestrator while remaining independent. Abbott, Genschel, Snidal and Zangl (2014) identify several techniques of orchestration, some of whom are applied in this specific case by the EU. Above all, the EU provides “cognitive and normative guidance as to pressing governance issues and plausible policy solutions” (Abbott et al., 2014, 17). The Guidelines for Human Rights Defenders, adopted in 2004 and revised in 2008, exemplify this type of agenda setting applied by the EU. Protect Defenders ’ strategies are clearly defined by, and adhere to, those guidelines. A second technique used is financial assistance, as funding of the project is provided by the EIDHR.
However, the target (state) is not addressed directly by this first intermediary. Instead, there is a second and even a third intermediary, or rather set of intermediaries. Protect Defenders offers ideational and financial support to various third-party actors (Reporters without borders, EHAHROP, Front Line Defenders, FIDH, OMCT, EMHRF, Forum Asia, Urgent Action Fund). Other local human rights organizations can apply for funding. Again, the relationship is that of an orchestrator-intermediary: Both the network and the various local organizations share the same goals, which they cannot achieve on their own. Protect Defenders possesses the financial means, but by itself it cannot engage sufficiently in the protection of HRDs. The promotion of human rights in general, and the protection of the defenders of these rights in particular, is not limited to a specific area, but is meant to be achieved globally. The geographical magnitude of the goal makes it necessary to have, or collaborate with, numerous actors on-site. Therefore, the first-level intermediary needs second-level intermediaries, which in turn need financial and ideational support. Only an extensive network and cooperation within this network, can guarantee a certain success of the “project” (the goal), or in other words a certain level of protection. Protect Defenders benefits from the availability of numerous existing local organizations, that possess the facilities, information and proximity to national governments and to the local public but are in need of financial means and organizational structures which allow them to cooperate with other organizations. However, the established cooperation between these two sets of intermediaries does not compromise the independency of the single actors. The local human rights organizations, that are supported by Protect Defenders, present all the characteristics of an intermediary as defined by Abbott et al. (2014). Nevertheless, the support does not come directly from the EU, but from the intermediary which is supported by the EU. Protect Defenders can therefore be conceptualized as “first-level intermediary”, and the various organizations supported by the network as “second-level intermediary”. The first-level intermediary orchestrates the second-level intermediary through convening, by “bringing them into contact with other influential actors” and coordination by “synchronizing their activities” (Abbott et al., 2014, 17-18). On their website it is stated that among other things, their mission is to support and coordinate “an exchange platform for organisations and stakeholders working on temporary relocation for Human Rights Defenders” and to promote “coordination between organisations dedicated to support for Human Rights Defenders, EU institutions and other relevant actors” (ProtectDefenders.eu). Besides that, the network provides assistance by offering “material support to intermediaries using their own financial and administrative resources” (Abbott et al., 2014, 18). Local organizations can apply for funding through Protect Defenders or directly to one of the various programs.
These three actors, that have been identified so far and classified as orchestrator (EU), first-level intermediary (Protect Defenders) and second-level intermediary (various human rights organizations supported by Protect Defenders), apply the same strategy to reach the goal of promoting human rights and democracy. The logic is, that through the strengthening of civil society and the protection of HRDs, pressure to respect human rights will be exercised on the governments and infringements of the various human rights treaties and regimes prevented. The protection and strengthening of HRDs is hence the tool, but being actors themselves, they can be considered as another element in this multi-actor system, or as a “third-level intermediary”. This conceptualization of HRDs as means to an end emerges from the statement of the EU itself that HRDs “represent natural and indispensable allies in the promotion of human rights and democratisation in their respective countries” (European Commission). Applying the O-I-T model, and considering HRDs as an intermediary, several orchestrators can be identified. First, the EU, which has established various indirect support tools such as the establishment of specialized agencies (e.g. EIDHR) and other networks of assistance (e.g. Protect Defenders). These support mechanisms can be seen as orchestrators themselves. Being independent from the EU in their actions and having as an objective to promote human rights, they support HRDs both as fulfilling this objective and as a tool to strengthen civil society. In this second role, HRDs are the intermediary, that share the same goal while remaining independent. The target (state) is addressed indirectly, through HRDs, and governance over HRDs is soft, because these assistance mechanisms such as Protect Defenders lack control over them. Hence, this type of governance can clearly not be defined as hierarchy, but neither as collaboration, because of the very fact that an intermediary is present, nor delegation, because the support is not linked to specific tasks (Abbott et al., 2014). The technique by which HRDs are orchestrated is what Abbott et al. (2014) define as “assistance”. Assistance here comes in form of preventive protection measures, material, and relocation grants.
The last part of the O-I-T model is the target, whose behavior the orchestrator seeks to influence. In the present governance problem, the EU tries to make states respect and promote human rights, and consequently to close the existing compliance gap.
Unlike other policy domains, such as global environmental governance where no multilateral deal establishing binding rules exists and is unlikely to emerge in the near future (Hale and Roger, 2013), such a “global deal” does exist in the field of human rights (Universal Declaration of Human Rights). In addition to this common standard that set out fundamental human rights for the first time, various regional rule-setting documents, that bind states and people to respect and promote human rights, exist. The problem in this policy field is thus not the creation of binding standards, but the compliance. The above analysis allows to define the way in which the EU addresses this problem as orchestration. An intergovernmental organization (the EU) acts through non-state actors (Protect Defenders, various local human rights organizations, HRDs) to reach its goals which are shared with the latter and which cannot be achieved solely by neither of them. The very fact that the EU uses orchestration, reveals that traditional modes of governance failed in this specific domain. This failure led to a compliance gap, which the EU tries to close by moving from more traditional modes of governance to a soft and indirect one, which IR scholarship defines as orchestration. This allows the EU to bypass states, in the sense that intermediaries do not interact directly with the targets to influence their behavior, but instead strengthen civil society with the goal of enhancing the protection of HRDs and thereby enforcing human rights on the one hand, and exercising pressure on governments. The public good (human rights) is provided (as far as possible), and at the same time the bypassing strategy serves to enforce human rights on the national level. The “conventional dichotomy between ‘top down’ and ‘bottom up’ to global collective action problems” takes a completely new form (Hale and Roger, 2013).
In this specific case, the multi-actor system presents a layered structure, where the different intermediaries can be classified into levels. These levels do not represent differences in importance, but rather the specific orchestrator-intermediary relationships between the actors. As long as all the elements identified by Abbott et al. (2014) that define this specific mode of governance and distinguish it from the traditional types hierarchy, delegation and collaboration, are present, a policy domain can be considered as being orchestrated. The particular structure of this multi-actor system can vary in complexity and numbers of actors involved. Modes of governance can therefore not only be a combination of two or more of these extremes when imagined as a continuum but can also take on various forms. For the analyzed system this means that the EU acts through various intermediaries which differ in “level”.
Abbott, K; Genschel, P; Snidal, D et al. (eds) (2014) Orchestration: Global Governance through Intermediaries. Cambridge: Cambridge University Press
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ProtectDefenders.eu. Our Mission, https://www.protectdefenders.eu/en/about.html (accessed January 22, 2018)
 See https://protectdefenders.eu/en/index.html
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