A Comparative Analysis of the Nature and Effectiveness of the Mobilisation of Law by Domestic Human Rights Ngos in the United States, Britain and Germany

In the Trenches:

A Comparative Analysis of the Nature and Effectiveness of the Mobilisation of Law by Domestic Human Rights NGOs in the United States, Britain and Germany.

Scott Calnan

A thesis submitted in accordance with the requirements for the award of the degree of Doctor of Juridical Science, Faculty of Law, University of New South Wales.

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Abstract

This thesis critically compares how domestic human rights NGOs (DNGOs) in the United States, Britain and Germany use (or mobilise) law to enforce human rights standards and proposes a method to measure their effectiveness in doing so. To do this it draws upon both case studies and literature from many disciplines. On the basis of the data and the literature it finds that, despite their great diversity, DNGOs in each jurisdiction show general similarities in their ‘styles’ of operation and use of the law. It also finds that their effectiveness in enforcing human rights can be ascertained with reasonable accuracy and that a DNGO’s size and access to resources does not necessarily correlate with its effectiveness. The context in which the above questions were investigated was one in which there existed very little literature that examined the work of DNGOs (as opposed to international NGOs) as well as few theoretical approaches that would allow their activities to be critically examined and compared. It was also a context in which there was a great deal of discussion in the literature about the crucial importance of DNGOs in human rights enforcement and a growing suspicion that Globalisation might be making their role even more important than it was in the past. To address these issues the author used case studies to supply the necessary detail and a method using ‘ideal types’ to assess the data. He also proposed a method to measure DNGO effectiveness so that the case studies could be more thoroughly compared and their true success in human rights enforcement revealed. Despite the incredible diversity among DNGOs the author was able to draw a few useful conclusions about how successful DNGOs operate. In response to these conclusions the author proposed that one possible route by which DNGOs could improve their effectiveness was to transplant their characteristics between jurisdictions. The author also found some evidence that Globalisation was having an effect on DNGOs and proposed some ways in which individual case studies could take advantage of this.

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Acknowledgements

My thanks go to the human rights DNGOs that consented to be case studies for this work. Without them taking the time to be interviewed, fill out questionnaires and sometimes quizzed by e-mail this study would not have been possible. I would like to especially thank Tobias Bauer at HU, Dr Wolfgang Richter at GBM and Devon Kearney at CCR who suffered more questioning than most. In addition I would like to thank J.Paul Martin of Columbia University, Laurie Wiseberg, Joan Staples of UNSW and Roger Cotterrell of Queen Mary and Westfield College of the University of London who gave me important advice. I would like to thank my supervisor and co-supervisor Justice Elizabeth Evatt and Annette Marfording at UNSW, whose comments over a long period were always very useful. I also would like to acknowledge the advice of my friends Kate Irvine, Jacqueline Svenson and Bosco Ho, who proof read drafts of chapters, and also Emily McCarron for her proof reading of the thesis as a whole. I would like to thank the UNSW Law Faculty for making available funds to allow interviews with the case studies at their offices and also for the help of Paul Rodwell and Dawesh Chand on IT matters. Lastly, I would also like to thank Professor Stephen Wasby of the State University of New York at Albany who taught me much about how American DNGOs operate. Any errors or omissions are my own.

Contents Abstract………………………………………………………………..II Acknowledgements………………………………………………....III Contents……………………………………………………………….IV Tables and Figures…………………………………………………..VIII List of Major Abbreviations………………………………………...IX Introduction...... 1 A. The Concept of the Enforcement of Human Rights Law……...2 1. Models of Human Rights Enforcement……………………… 2 2. Model C and the Enforcement of Human Rights Law………3 B. The Definition and Taxonomy of Human Rights NGOs……....5 C. The Importance of Studying Human Rights DNGOs………....11 Chapter One - Theoretical Approach and Method...... 15 A. Introduction…………………………………………………………..15 B. The Use of Comparative Law……………………………………..15 C. The Concept of the Mobilisation of Law...... 20 I. Mobilisation of Law by Individuals…………………………….20 II. Mobilisation of Law by Movements and Associations……...20 III. Mobilisation of International Law…………………………….24 IV. The Requirements of the Mobilisation of Law……………..25 V. The Importance of Organisation……………………………..26 D. The Use of Case Studies…………………………………………...26 E. Methodology Used to Collect the Data………………………….29 F. The Nationalist Path to Human Rights Enforcement...... 30 G. The Social and Political Environment in Which the Law is Mobilised...... 31 H. Outlines of the Case Studies...... 33 Chapter Two - The Tactics of Human Rights DNGOs in the United States, Britain and Germany…………………………………………………...... 37 A. A Typology of DNGO Tactics……………………………...... 37 I. First Order Tactics……………………………………………...38 II. Second Order Tactics…………………………………………39 III. Third Order Tactics……………………………………………42 B. The Comprehensive Tactical Stance……………………...... 47 v

C. The Case Studies…………………………………………………….49 I. LDF……………………………………………………………….49 II. LCCRUL………………………………………………………...55 III. CCR…………………………………………………………….60 IV. The American Case Studies – Discussion and Analysis...67 V. JUSTICE……………………………………………………….70 VI. BIRW…………………………………………………………...75 VII. CAJ………………………………………………………….....80 VIII. The British Case Studies – Discussion and Analysis……84 IX. HU……………………………………………………………....86 X. KGD……………………………………………………………..93 XI. GBM…………………………………………………………….98 XII. The German Case Studies – Discussion and Analysis…103 XIII. Conclusion…………………………...... 105 Chapter Three – The Structure of Human Rights DNGOs in the United States, Britain and Germany……………………………...... 112 A. Relevant Concepts of Organisation Theory…………………..113 I. The Mission…………………………………………………….114 II. Organisational Culture………………………………………..114 III. Organisational Design……………………………………….115 IV. The Institutional Perspective in Organisation Theory……116 V. Types of Structures…………………………………………..116 VI. The Degree of Centralisation……………………………….117 VII. Ideal Types of Human Rights DNGO Structures………...118 VIII. The “Balanced Model” of Structural Design for Human Rights DNGOs………………………………………………….119 B. The Case Studies. I. LDF………………………………………………………………121 II. LCCRUL………………………………………………………..131 III.CCR……………………………………………………………..139 IV. JUSTICE………………………………………………………146 V. BIRW…………………………………………………………...153 VI. CAJ…………………………………………………………….159 vi

VII. HU……………………………………………………………….164 VIII. KGD…………………………………………………………….171 IX. GBM……………………………………………………………...178 C. Conclusion……………………………………………………………...... 183 I. Overall Characteristics…………………………...... 184 II. Structural Adaptation to Tactics………………………………..186 III. The Effects of Organisational Culture……………………...... 187 Chapter Four – The Acquisition of Resources by Human Rights DNGOs in the United States, Britain and Germany….....188 A. Types of Resources………………………………………………….....190 B. Sources of Resources……………………………………………….....194 C. The Diversified Approach to Resource Acquisition………...... 204 D. The Case Studies – Preliminary Remarks……………………...... 205 E. Case Studies – Comparison and Analysis…………...... 206 I. LDF………………………………………………………………..206 II. LCCRUL………………………………………………………….211 III. CCR……………………………………………………………...215 IV. JUSTICE………………………………………………………..219 V.BIRW……………………………………………………………..223 VI. CAJ……………………………………………………………...226 VII. HU………………………………………………………………229 VIII. KGD……………………………………………………………235 IX. GBM……………………………………………………………..239 X.Conclusion……………………………………………...... 244 Chapter Five - The Effectiveness of Human Rights DNGOs in the United States, Britain and Germany...... 253 A. The Method Used…………………………………………………….....253 I. Previous Theories About NGO Effectiveness…………………………...... 253 II. Some Preliminary Remarks…………………………………………...... 254 III. Some Theoretical Problems That the Approach in This Work Tries to Overcome…………………...... 256

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B. Implementation of the Method……………………………………..262 I. Triangulations……………………………………………………262 II. The Dispute Centred View of Legal Effectiveness...... 265 III. Resource Use…………………………………………………..266 C. Forms of Effectiveness………………………………………………267 I. Agenda Effectiveness…………………………………………...267 II. Goal Effectiveness……………………………………………...269 III. Overall Effectiveness…………………………………………..271 D. The Case Studies……………………………………………………...272 I. LDF………………………………………………………………..272 II. LCCRUL………………………………………………………….284 III. CCR……………………………………………………………...294 IV. JUSTICE………………………………………………………...303 V. BIRW……………………………………………………………..313 VI.CAJ...... 320 VII. HU……………………………………………………………….327 VIII. KGD…………………………………………………………….337 IX. GBM……………………………………………………………...346 E. Conclusion……………………………………………………...359 Chapter Six - Conclusion………………………………...... 364 A. Important Patterns That Emerged in the Study…………...... 364 Appendix…………………………………………………………………...375 Bibliography…………………………………...... 377

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Tables: TABLE 1 : THE ORDERS OF TACTICS…………………………………………………...... 38 TABLE 2: MAIN FEATURES OF THE STRUCTURES OF EACH CASE STUDY…………………………………………………………...... 182 TABLE 3: THE APPLICATION OF THE BALANCED MODEL TO THE CASE STUDIES…………………………………………………………………...... 183 TABLE 4: THE MONEY CAPITAL OF THE NATIONAL OFFICES OF THE CASE STUDIES (ALL IN US$)...... 205 TABLE 5: TYPES AND SOURCES OF RESOURCES MOST EMPHASISED BY THE CASE STUDIES (IN DESCENDING ORDER OF IMPORTANCE)…...... 245 TABLE 6: THE NUMBER OF STAFF IN THE NATIONAL OFFICES OF THE CASE STUDIES...... 246 TABLE 7: EFFECTIVENESS RESULTS FOR THE CASE STUDIES….359 TABLE 8: THE COMPLEX OF FACTORS FROM PREVIOUS CHAPTERS EXPLAINING EFFECTIVENESS RESULTS FOR EACH CASE STUDY...... 360 TABLE 9: SUMMARY OF RESULTS FOR THE CASE STUDIES……...375

Figures: FIGURE 1: A SPECTRUM OF SECOND ORDER TACTICS……………40

Major Abbreviations: ACLU The American Civil Liberties Union AI Amnesty International BGB German Civil Code BIRW British Irish Rights Watch CAJ The Committee on the Administration of Justice CCR The Centre for Constitutional Rights CDU The Christian Democratic Union (German Political Party) CERD The UN Convention on the Elimination of all Forms of Racial Discrimination CSU The Christian Social Union (German Political Party) DNGO Domestic Non-Government Organisation EStG The German Income Tax Law GBM The Society for the Protection of Basic Rights and Human Dignity GRH The Society for Legal Aid HRW Human Rights Watch HU The Humanistic Union IAC International Action Centre (an INGO) IACHR Inter-American Commission on Human Rights IADL International Association of Democratic Lawyers ICESCR The International Covenant on Economic, Social and Cultural Rights ICJ The International Commission of Jurists ILO The International Labour Organisation. INGO International Non-Government Organisation KGD The Committee on Basic Rights and Democracy LCCRUL Lawyers’ Committee for Civil Rights Under Law LCHR Lawyers’ Committee for Human Rights LDF The NAACP Legal Defence and Education Fund Inc MALDEF The Mexican-American Legal Defence and Education Fund MSCR The Movement Support Resource Centre x

NAACP The National Association for the Advancement of Coloured People NGO Non-Government Organisation OAS Organisation of American States OKV The East German Council of Organisations OSCE The Organisation for Security and Cooperation in Europe PDS The Party of Democratic Socialism (German Political Party) SPD German Social Democratic Party UNESCO The United Nations Educational, Scientific and Cultural Organisation

Introduction This work is an interdisciplinary study, mostly using Comparative Law methodology, that investigates the nature and effectiveness of the mobilisation of law1 by domestic non-government organisations (DNGOs) to enforce human rights.2 It is based on the proposition that the mobilisation of law by human rights DNGOs is primarily determined by internal aspects of their organisational abilities, and argues that the effectiveness of such mobilisation of law can be determined with an acceptable degree of accuracy. The purpose of the study is to contribute towards the enforcement of human rights law, to create ideas that might be practically useful to human rights DNGOs, and to begin the process of filling the gap in human rights literature on human rights DNGOs. Within the realm of human rights scholarship, much discussion has occurred in recent times about the important role played by NGOs in the enforcement of human rights laws. Human rights lawyers, however, having been trained primarily in the exposition of doctrine in public and international law, have generally approached this topic as a sort of "supplement" to their discussion of human rights doctrine. Very little of the discussion has directly addressed questions concerning NGO enforcement of human rights by going beyond questions of legal doctrine and drawing upon other disciplines that might be applicable. There has also been very little literature on DNGOs, as opposed to international NGOs (INGOs). This work attempts to begin to fill this gap by using qualitative evaluations of case studies in the United States, the United Kingdom and the Federal Republic of Germany.3 The data gathered from these case studies is combined with information that exists in the literature so as to allow, firstly, an investigation of the mobilisation of law by the case studies, and secondly, the construction of an approach to measure the effectiveness of human rights DNGOs that is then applied to the case studies as examples.

1 For definition and explanation of the concept of the “mobilisation of law” see Chapter One. 2 Chapters two, three and four use Comparative Law method, while Chapter five is more interdisciplinary. 3 The author could, of course, have investigated human rights DNGOs in the developing world, but he felt that since very few studies of DNGOs are in existence, they were best investigated initially in jurisdictions where sufficient wealth existed for them to reach their full flowering and potential. The investigation of DNGOs in the conditions of the developing world is also a task of major importance that hopefully will be aided by this work. 2

In order to better understand the above topic an overview of the concepts of the enforcement of human rights law and of a human rights NGO is set out below. This is followed by a brief discussion of the importance of the topic that this work deals with. A proper discussion of the complicated concepts of the mobilisation of law, and the nature of Comparative Law, is delayed until Chapter One while a discussion of the theoretical issues surrounding the effectiveness of DNGOs will be delayed until Chapter Five. A. The Concept of the Enforcement of Human Rights Law 1. Models of Human Rights Enforcement Since the beginning of the international human rights movement, just after World War II, discussions in the literature on the enforcement of human rights have been fragmented. Some writers have addressed some aspects of the question, and others have addressed other aspects, without any discussion of how each of these aspects might fit into an overall picture. Three implicit models of human rights enforcement can be discerned in the literature on human rights enforcement. Model A is based on Idealist (or Liberal) theories of international law.4 It envisages human rights law being enforced by international institutions, with the power to override state sovereignty.5 Model B is based on Realist theories of international law.6 It envisages national states as the primary enforcers of human rights.7 This approach stresses the importance of the consent of states, and the primacy of national jurisdictions. Model C disregards the above theories of international law altogether and stresses 'informal'8 or extra-state mechanisms of direct citizen enforcement

4 For a discussion of Idealism see M.Koskenniemi “Introduction” in M.Koskenniemi International Law (Dartmouth, Aldershot, 1992) pxvii. 5 Eg J.Cooper & R.Dharvan Public Interest Law (Basil Blackwell, Oxford, 1996) pp139-140 - where litigation in the European Court of Human Rights, the archetypical idealist international institution, is described. 6 For a description of Realism see J.S.Watson “A Realistic Jurisprudence of International Law” (1980) Yearbook of International Affairs 265. 7 Eg J.Polkiewicz & V.Jacob-Folzer “The European Human Rights Convention in Domestic Law” (1991) Human Rights Law Journal 65. In this model human rights enforcement becomes primarily a public law question. 8 D. Forsythe Human Rights and World Politics (2nd ed) (University of Nebraska Press, Lincoln and London, 1981) p84. 3

within and across national borders by non-government organisations (or NGOs).9 While the above models would seem to be clear, the picture is complicated by the fact that as a result of the anarchic nature of the international system,10 ordinary international law (i.e. outside of international human rights law) is also enforced primarily by 'informal' mechanisms. Indeed, as Henkin has remarked, it is more accurate to say that states in the international system are ‘induced’ to comply with international law by informal routes rather than to speak of ‘enforcement’11 because, unlike in domestic legal systems, no centralised power exists to ‘enforce’ international law through a threat to use force. This is also the case with the ‘enforcement’ of human rights in international law. Thus, when 'enforcement' of human rights law is discussed in this work, it is the use of these sorts of informal mechanisms to induce states to comply that is being referred to. With regard to the enforcement of international human rights law, however, many of the informal mechanisms causing most states to follow international law most of the time, such as economic incentives, are generally missing.12 For this reason, a different set of 'informal mechanisms' operating between organisations in civil society (eg human rights NGOs) and states, rather than between states, has assumed much greater significance here than in other areas of international law.13 It is this different set of informal mechanisms that are at the core of Model C above. 2. Model C and the Enforcement of Human Rights Law Another important aspect of the concept of the enforcement of human rights law revolves around the proposition that its policy aims are at variance

9 Eg H. Tolley The International Commission of Jurists: Global Advocates for Human Rights (University of Pennsylvania Press, Philadelphia, 1994). 10 See T. Frank “Legitimacy in International Systems” (1988) 82 American Journal of International Law 705. 11 See L. Henkin International Law: Politics and Values (Martinus Nijhoff, Dordrecht, 1995) p45. 12 Ibid p205ff 13 NGOs have also been important in the informal mechanisms allowing international human rights institutions to operate more effectively - see generally Y.K.Tyagi “Cooperation Between the Human Rights Committee and Non-Government Organisations: Possibility and Propositions” (1983) 18 Texas International Law Journal 273 and D.Sheldon “The Participation of Non-Government Organisations in International Judicial Proceedings” (1994) 88 American Journal of International Law 611. 4

with the deep structures14 of international and public law.15 In contrast to international law, whose structure is often said to be statist, focused on the consent of states, and aimed at coexistence and cooperation,16 the aims of human rights law might be said to be anti-statist, focused on the protection of individuals and collectives from abuses of power, and aimed at a moral legal order rather than coexistence.17 Similarly, the structure of public law in general is sometimes said to aim at stability and predictability of government,18 and is thus also, in many ways, statist. Human rights law, on the other hand, can be said to focus more on moral governance than stability and predictability. The consequences of these apparent differences between the policy aims of human rights law, and the deep structures of international and public law, are profound in the realm of human rights enforcement. In Model A, enforcement generally only occurs when states or international bodies see the enforcement of international law as being in their individual or collective interests.19 Enforcement of human rights protected by international law is primarily in the interests of the individuals and collectives protected by such law. States thus often see it as not in their interests to enforce international human rights laws, unless their concept of "interest" is broad enough to encompass such matters.20 As this is often not the case the mechanisms in Model A for the

14 Thus, because of this inconsistency, Models A and B above might be said to have inherent flaws as models of human rights enforcement. 15 This seems to be why Koskenniemi argues that human rights lose their effectiveness when translated into positive law – see P.Alston Human Rights Law (Dartmouth, Aldershot, 1996) pxiv. For a similar view see P. Trimble “International Law, World Order and Critical Legal Studies” (1990) 42 Stanford Law Review 811 at 811. 16 Ibid pxiii 17 As Buergenthal remarks: “[the] emergence of international human rights law as a branch of public international law and the acceptance of the notion that individuals have rights enforceable on the international plane without the intervention of their state of nationality have played havoc with certain basic international law principles and assumptions. A legal system developed over centuries to regulate relations between states must make considerable conceptual adjustments to accommodate the extension of its normative reach to individuals.” – T.Buergenthal “The Advisory Practice of the Inter-American Human Rights Court” (1985) 79 American Journal of International Law 1 at 20. 18 M.Loughlin Public Law and Political Theory (Clarendon Press, Oxford, 1992) p60. These ideas arguably underlie both normativism and functionalism. 19 L.Beres “Genocide, State and Self” (1989) 18 Denver Journal of International Law and Policy 37 at 43. 20 In the opinion of the author this is the origin of the dispute between the UN Human Rights Committee and the International Law Commission over reservations to the International Covenant on Civil and Political Rights – see S.Joseph, J.Schultz and M.Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, Oxford, 2000) p600. 5

enforcement of international law tend to break down in the field of international protection of human rights.21 Similarly, in Model B public law systems within states, constitutional protection of human rights is premised on the idea of constitutional courts22 acting against executives when they violate constitutionally protected human rights.23 Constitutional courts, however, sometimes see it as contrary to the aims of stability and predictability in public law to take such stands against executives.24 The founders of the international human rights movement, especially Roosevelt and Cassin, appear to have been very aware of the flaws in Models A and B and to have favoured Model C as the primary mechanism for human rights enforcement. 25 They saw this model as being more likely to be effective because it was in the interests of community groups to enforce the human rights laws that protected them. Research on DNGO enforcement of human rights, being research on a form of Model C enforcement, thus investigates what has been seen by many important figures as the most important and reliable form of human rights enforcement. C. The Definition and Taxonomy of Human Rights DNGOs Having set out the nature of the topic of human rights enforcement, it remains to define what a human rights NGO, an INGO, and a DNGO, are. As Ölz has remarked, the meaning of the term "NGO" tends to vary according to who is using the term, and in what context.26 The two main usages of the term are within international law and by the international human rights movement,

21 L. Henkin “International Law: Politics, Values and Functions” in 216 Collected Courses of the Hague Academy of International Law 13 Vol IV (Academy of International Law, The Hague, 1989) p251; W.Korey NGOs and the Universal Declaration of Human Rights (St Martin’s Press, New York, 1998) p2. 22 The term "Constitutional Court" is used here to mean the highest court in any legal system that decides questions arising under the national constitution. It thus includes the US Supreme Court, the House of Lords and German Federal Constitutional Court in the three jurisdictions covered in this work. 23 See L.Henkin "Introduction" in L.Henkin & J.Rosenthal (eds) Constitutionalism and Rights: The Influence of the United States Constitution Abroad (Columbia University Press, New York, 1990) p1 at 12. He discussed this in his exposition of constitutionalism. 24 Sometimes a Constitutional Court may also identify with the state and its security. This would seem to be the reason for the US Supreme Court’s decision in Dennis v United States 341 US 494; 71 SCt 857 (1951) – which held that the banning of the US Communist Party was constitutional. 25 J.Morsink The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press, Philadelphia, 1999) p320 and Korey Op cit p2. 26 M.A.Ölz “Non-Governmental Organisations in Regional Human Rights Systems” (1997) 28 Columbia Human Rights Law Review 308 at 313. 6

although the term has some currency in social science studies of human rights also. In international law, the definition of NGO in the “Encyclopaedia of International Law” is very useful.27 According to this definition, an NGO is a private organisation, not established by a government or international agreement, which is capable of playing a role in international affairs, by virtue of its activities, and whose members enjoy independent voting rights. Similarly, article 1 of the European Convention on the Recognition of the Legal Personality of International Non-Government Organisations,28 defines NGOs as associations, foundations and other private institutions, which have a non-profit making aim of international utility; have been established by law; carry on activities in at least two states, and have their official offices in the territory of one of the parties to the Convention. The criteria of ECOSOC at the United Nations are very similar.29 Overwhelmingly the term "NGO" is thus used to include non-government entities at both international and national levels. There is a view, however, based on the tradition of the Union of International Associations (UIA) and the Institut de Droit International that the term NGO applies only to genuinely international associations.30 Human rights activists tend to use an even broader definition than the majority of sources above. In this definition, an entity is a human rights NGO as long as its 'private' character is unquestionable, and its work is guided by the same idea of human rights as set out in international human rights law.31 In more social science based human rights research, such as that of van den Berg,32 the term "NGO" is favoured for being more neutral than terms such as “action group” or “protest group”. It is defined as consisting of groups of like- minded citizens that are independent of government; which act in counterpoint

27 Ibid p317. 28 Apr 24, 1986, Eur T.S. 124 29 S.Hobe “Global Challenges to Statehood: The Increasingly Important Role of Non-Government Organisations” (1997) 5 Indiana Global Legal Studies Journal 191 at 194. 30 Ölz Op cit p314 footnote 16. 31 Ölz Op cit p320. Or, like many DNGOs, its work is guided by domestic laws having substantially the same aim and character. 32 E.M.van den Berg The Influence of Domestic Human Rights NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Intersentia and Hart, Antwerpen and Oxford, 2001). 7

to governments and international institutions; do not seek government office themselves; and are non-profit making entities.33 An important question that is relevant to the data set out below is the extent to which the political nature of an unquestionably private organisation defending human rights disqualifies it from being described as an NGO. In a famous article in 1989, Neier argued that a human rights NGO must be apolitical to be an NGO.34 Van den Berg, on the other hand, notes that in Holland DNGOs involved in human rights issues within foreign policy are often political, and yet their status as NGOs is not generally questioned.35 In the opinion of the author, Neier’s approach leads to an unduly narrow definition of the term NGO. Most organisations at the domestic level that have the defence of human rights as their main concern have a political agenda in one way or another. Furthermore, the self-identification of an organisation, while important, should not preclude grouping for the purpose of scholarly analysis.36 As will be seen below, it seems that whether an organisation is explicit about its political position or not is more a matter of the norms of the domestic political culture and tactical considerations, rather than any indicator of its true nature. Further, because DNGOs are usually enmeshed more than INGOs in domestic political debates, an exclusion of groups with political agendas would have the undesirable effect of excluding from consideration a large number of groups that mobilise law in defence of human rights.37 To the author, as for Livezy,38 the political stance of an NGO goes more to its idea of what human rights are, rather than to its identity as an NGO. For this reason, whatever the political stance of the group, for the purposes of this study an organisation is not disqualified from being an NGO for having a political agenda, if it otherwise falls into the definitions given above.

33 Ibid pp19-20. 34 A. Neier “Not All Human Rights Groups Are Equal”, Letter to the Editor, New York Times, May 27, 1989 p22. 35 What is usually questioned is the legitimacy of these groups – not their status as human rights NGOs in Holland – van den Berg Op cit p368. 36 The author thus classifies some of the case studies as DNGOs when they would identify themselves as political organisations or as "civil rights" organisations. 37 See H.J.Steiner Diverse Partners: Non-Government Organisations in the Human Rights Movement (Harvard Law School Human Rights Program, Cambridge (Mass), 1991) p70 on the debate over this issue. 38 See L.W.Livesy Nongovernment Organisations and the Ideas of Human Rights (CIS Princeton University, Princeton (NJ), 1988) pxii. 8

In order to properly understand human rights NGOs, it is also necessary to engage in a rudimentary taxonomy of them. The most rudimentary distinction between NGOs in the field of human rights is between domestic human rights NGOs (DNGOs) and international human rights NGOs (INGOs).39 Authors who use this common distinction generally do so on the basis that reliance on domestic law as opposed to international law, or working within the boundaries of one state rather than many, leads to functional and qualitative differences between NGOs. Unfortunately, most discussions do not distinguish whether an NGO is domestic or international with regard to the human rights problems it addresses, the nationality of its members, the location of its offices, where its human rights activities are conducted, or where its finance and support comes from. For the purposes of this study, an NGO is domestic, if the problems it addresses, its office, and its members all derive from a single country. This is regardless of whether it undertakes enforcement or promotion work internationally, or in other countries, and regardless of whether it receives funding from outside the country. Similarly an NGO is international if the problems it addresses, its offices, and/or the nationality of its members all derive from more than one country. This is regardless of whether it undertakes promotion or enforcement within nations and regardless of whether it receives it's funding from a single country. It is important at the outset to concede that there is no clear cut distinction that can always be drawn between DNGOs and INGOs. There is an inevitable degree of overlap between these categories when one considers real life human rights NGOs. Indeed, some human rights NGOs show such a degree of overlap that they may almost be considered DNGO/INGO hybrids. Nevertheless, individual human rights NGOs in practice most of the time show clusters of functions that are either predominantly domestic or international. The author thus felt that in most circumstances a demarcation between DNGOs and INGOs was true to the data he had obtained and analytically useful in the conclusions that it allowed to be drawn from NGOs in the field.

39 Steiner Op cit p5; A.Hegarty “Non-Government Organisations: The Key to Change” in A.Hegarty & S. Leonard Human Rights: An Agenda for the 21st Century (Cavendish, London, 1999) p267 at 268; K.Roth “Human Rights Organisations: A New Force for Social Change” in L.Henkin et al Human Rights (Foundation Press, New York, 1999) p738 at 739. 9

Some discussions of human rights NGOs also distinguish between local or regional NGOs within nation states, and DNGOs that cover the whole of a nation state. To the author, however, this is not as useful a distinction as that between DNGOs and INGOs, because each of the latter operate in distinct legal and political environments which lead to distinct tactical environments.40 Local NGOs, on the other hand, might have distinct local concerns, but still operate in similar tactical environments to the other DNGOs in that national jurisdiction. For this reason, local NGOs within nation states are designated DNGOs for the purpose of this research. Another distinction worth noting is between INGOs and regional human rights NGOs. The latter designation (not to be confused with regional NGOs within nations) concerns NGOs that deal with situations in geographical regions encompassing more than one country, regardless of whether their funding and personnel are from one nation. This designation arose because of the existence of regional organisations in international law, such as the Council of Europe and the Organisation of American States (OAS). These international institutions presented opportunities for NGOs to work within their ambit. True INGOs are distinguished from regional NGOs in international affairs by their truly global concerns and struggles, and usually by a true internationalism (rather than regionalism) among their staff41 and in their organisational design. Van den Berg distinguishes between public interest groups, which have altruistic or non-material objectives, and interest groups which strive for objectives that are predominantly derived from the economic and social position of the group.42 Within public interest groups, van den Berg distinguishes between general public interest groups with some interest in human rights, such as churches, and single-issue groups that focus only on human rights or specific human rights. This study focuses on what van den Berg calls single- issue public interest groups, but does not deny the influence of interest groups and general public interest groups on human rights standards. A further distinction among human rights NGOs is between membership organisations and non-membership NGOs. Membership NGOs have their

40 D.Weissbrodt “Strategies for the Selection and Pursuit of International Human Rights Objectives” (1981) 8 Yale Journal of World Public Order 62 at 68. 41 For example, Amnesty International’s staff – P.Paek “Amnesty International: An Evolving Mandate in a Changing World” in Hegarty Op cit p233 at 238. 10

policies decided by the vote of registered members. These policies are then usually carried out by a board, or by the staff.43 The majority of money for such organisations often also comes from members. Non-membership NGOs do not have their policies decided by the votes of members, but rather usually by an executive board, or even de facto by the executive director and staff. While the author could have focused on membership and non- membership NGOs as a category in this research in preference to the DNGO/INGO distinction, he felt that that this distinction was not as decisive in influencing an NGO’s entire functioning as whether its functions were predominately domestic or international. While membership might be one factor in determining NGO functioning, the author felt that it was not as important as the DNGO/INGO distinction. The data that the author collected seemed largely to confirm that this is the case. The last debate on the taxonomy of human rights NGOs relevant to this study is the debate as to whether a human rights NGO must draw its human rights standards explicitly from international human rights law, or whether it can draw exclusively on domestic human rights standards. As Steiner points out, human rights NGOs themselves argue that whether an NGO draws on domestic or international standards (or both) should not affect its designation as a human rights NGO. They see the question of which standards are referred to as a tactical choice for the NGO concerned.44 To the author this seems a commonsense stance and it will be adopted in this work. The differences (and connections between) between indigenous rights traditions and the tradition of human rights in the international human rights movement is an important theoretical issue that will be dealt with in the following chapter. However, for the purposes of this study it suffices to note that the U.S. Bill of Rights, the UK Human Rights Act, and the German Basic Rights in the Basic Law, all substantially reflect the aims of human rights protection

42 Van den Berg Op cit p20. 43 The American Civil Liberties Union in the US and Liberty in the UK are both such organisations. See generally– S.Walker In Defence of American Liberties: A History of the ACLU (Oxford University Press, New York, 1990) and B.Dyson Liberty in Britain 1934-1994: A Diamond Jubilee History of the National Council of Civil Liberties (Civil Liberties Trust, London, 1994). 44 Steiner Op cit p5. 11

embodied in the International Covenant on Civil and Political Rights.45 Thus, in this study, NGOs that rely exclusively on domestic human rights standards will be designated as human rights NGOs, and the reasons for their choice of international or domestic law standards will be treated as a tactical choice. C. The Importance of Studying Human Rights DNGOs Having clarified the concepts of human rights enforcement and a human rights DNGO, it is now necessary to outline why the study of DNGO enforcement of human rights is an important topic. The first reason is that since the mid-1980s the international human rights movement has been moving from an era of standard setting to an era of enforcement.46 Research on all modes of human rights enforcement has thus become more topical over time. The second reason is that, despite repeated conclusions in the literature that DNGOs are crucial to any successful enforcement of human rights, there is almost no research in existence on human rights DNGOs across the globe.47 The most consistent writer in the literature emphasising the importance of DNGOs in the enforcement of human rights has been Posner.48 He has emphasised that DNGOs have access to information on the ground through extensive contacts that INGOs could not possibly get access to on their own,49 and have access to political and legal strategies within national jurisdictions that INGOs would normally not have the knowledge or contacts to employ. Elsewhere in the literature it is also emphasised that DNGOs are more likely to face human rights violations directly (and be victims of human rights violations), rather than vicariously as INGOs do.50 Without DNGOs giving INGOs or international bodies the information they need, it would be difficult for them to

45 Adopted 16 Dec 1966, entered into force 23 Mar 1976, 999 UNTS 171. Indeed, they often reflect the principles of the international law of human rights in general, even though they usually focus on civil and political rights. 46 H.Hannum Guide to International Human Rights Practice (1st ed) (University of Pennsylvania Press, Philadelphia, 1984) pxi. 47 Tolley Op cit p15. See, however, L.J.Whelan “The Challenge of Lobbying for Civil Rights in Northern Ireland: The Committee on the Administration of Justice” (1992) 14 Human Rights Quarterly 149 and J.Boler “The Mothers' Committee of El Salvador: National Human Rights Activists” (1985) 7 Human Rights Quarterly 541 – the two major studies to date. 48 See M.H. Posner & C.Whittcome “The Status of Human Rights NGOs” (1994) 25 Columbia Human Rights Law Review 269 and M.Posner “Human Rights and Non-Government Organisations on the Eve of the Next Century” (1997) 66 Fordham Law Review 627. 49 Posner "Human Rights..." Op cit p630. 50 Steiner Op cit p69. 12

launch campaigns at the international level against governments violating human rights. Research on DNGOs is thus in practical terms very important for human rights enforcement, but until now has largely been absent. This work, through examining case studies and the existing literature, seeks to lay foundations for the long task of research in this area. The third reason for the importance of research into DNGOs is that the processes of Globalisation and state transformation appear to be improving the abilities of all NGOs, but especially DNGOs, to challenge governments and other entities on adherence to human rights standards. Globalisation is a term that has come to be used to describe the rapid economic, cultural and political processes that are currently transforming the world. Economically, Globalisation describes the fact that capital now circulates more widely, and in larger amounts, throughout the world economy than has ever been the case before.51 Culturally, Globalisation has led to the penetration of virtually all societies by common symbolic forms.52 This has led to the sense of a shared social space among communities widely dispersed around the globe, and even claims of the development of an international civil society as a result.53 The primary political effect of Globalisation has been a process of state transformation. In this process state power has flowed outwards to transnational networks and institutions, and also inwards, via a process of devolution, to sub- national institutions and social movements.54 The state, as it has been known in previous eras, has thus had its power diluted. International and domestic networks, on the other hand, appear to have been strengthened. In the literature, the relationship between Globalisation and state transformation on the one hand, and human rights and democracy on the other has been the subject of extensive debate. On the one hand, writers such as

51 See generally S. Yusef “The Changing Development Landscape” (Dec 1999) 36/4 Finance and Development 15. 52 Ibid p5. 53 See Hobe Op cit 193 and D.Otto "Non-Governmental Organisations in the United Nations System: The Emerging Role of Civil Society" (1996) 18 Human Rights Quarterly 107 at 127. Human rights are sometimes said to be an integration mechanism for this international civil society - see M.Waters “Globalisation and the Social Construction of Human Rights”(1995) 31(1) Australian and New Zealand Journal of Sociology 29 at 31. 13

Koh,55 reflecting the Neoliberal position, assert that Globalisation and state transformation inevitably lead to the spread of human rights and democratisation. Advocates of this position point to the democratisation of governments in Eastern Europe after 1989, and the democratisation and spread of constitutions on the liberal model in the developing world.56 Opponents of this position, such as Sarat and Scheingold57 however, see Globalisation as being driven by, and giving priority to, the economic rationality of corporate capitalism. The spread of human rights is seen more as an unintended by-product of Globalisation on this view. On balance, within this approach Globalisation is seen more as a threat to human rights and democracy, rather than an ally. For evidence, advocates of this view point to the growing gap in wealth between developed and underdeveloped nations, the pressure on welfare states in developed countries,58 and the pressure on civil human rights in developed countries through 'law and order' campaigns59 and campaigns against refugees. On this latter view (which is the view the author favours), the newly emergent international human rights regime forms a sort of counterweight to the economic imperatives of Globalisation,60 appealing to transnational legality to constrain the direct or indirect effects of transnational corporate capitalism.61 The founders of the international human rights movement, of course, envisaged a form of Globalisation themselves. When they moved human rights from the domestic jurisdictions of states and made it an international concern62 they envisaged human rights as creating a Globalised transnational legality that

54 A.Sarat & S.Scheingold Cause Lawyers and the State in a Global Era (Oxford University Press, New York, 2001) p4. 55 H.H.Koh “Introduction” United States State Department 1999 Country Reports on Human Rights Practices, February 5, 2000 at http://www.state.gove/g/drl/hrrpt/1999/65.htm as accessed on July 25th, 2003. 56 H.J. Steiner & P.Alston International Human Rights in Context: Law, Politics, Morals (1st ed) (Clarendon Press, Oxford, 1996) p710. 57 Sarat & Scheingold Op cit p5. 58 Ibid p10. 59 Ibid p19. 60 Ibid p11. The same conclusion was reached by Eide – see A.Eide “Universalization of Human Rights Versus Globalisation of Economic Power” in F.Coomans et al (eds) Rendering Justice to the Vulnerable: Liber Amoricum in Honour of Theo van Boven (Kluwer, The Hague, 2000) p99. 61 This is sometimes expressed as the idea of civil society using human rights as a vehicle to reaffirm social needs over Globalisation's emphasis on the world market - G.A. Christenson "World Civil Society and the International Rule of Law" (1997) 19 Human Rights Quarterly 724 at 733. 14

would regulate the world, as societies were regulated by states.63 The achievement of this vision was largely frustrated by the advent of the Cold War.64 The end of the Cold War, however, has (to a degree at least) unleashed the human rights movement from these restraints and made such a Globalisation more possible.65 As stated above, this work investigates how human rights DNGOs mobilise the law in defence of human rights in practice, and their effectiveness in doing so. In Chapter One, it will be revealed that the methodology of this study is multidisciplinary, mostly using the methodology of Comparative Law. Chapters Two, Three and Four investigate the mobilisation of law by human rights DNGOs using Comparative Law method from the point of view of tactics, structure and acquisition of resources respectively. Chapter Five proposes an interdisciplinary method for assessing the overall effectiveness of human rights DNGOs, and then applies it to the case studies as examples. Lastly, the conclusion attempts to highlight some of the patterns and conclusions obtained from the study, and to clarify the areas that still require more research.

62 P.G. Lauren The Evolution of International Human Rights: Visions Seen (University of Pennsylvania Press, Philadelphia, 1998) p205. 63 The aim at the time, however, was probably more to embody the resistance of civil society to various forms of bureaucratisation and administration, than to reaffirm social needs in the face of the rule of the world market. 64 Lauren Op cit p295. The trajectory of the development of international human rights doctrine was determined both by the attempt by the United States and the Soviet Union to legitimate the superpower hegemony of the era, and the rivalry between these two superpowers - Waters Op cit at 33. 65 Examples of this unleashing effect in recent times can be seen in the signing and coming into force of the Rome Statute of the International Criminal Court (1998) 37 ILM 999 and the decision of the UK House of Lords in the Pinochet case (R v Bow Street Stipendiary Magistrate and Others; ex parte Pinochet Ugarte [1999] 2 All ER 97). 15

Chapter 1 – Theoretical Approach and Method A. Introduction This work is written within the newly emerging interdisciplinary approach of human rights law or human rights studies. As Alston has remarked, this new discipline is very much an amalgam which draws upon the resources of other disciplines, while at the same time maintaining a rather distant and often superficial relationship with them.1 This distant and superficial relationship comes about, for the most part, because human rights law or studies, being based on human rights, contain presumptions which are counter-intuitive to those of these other disciplines.2 In short, human rights law is constantly using other disciplines to further its own agenda in a way that is often at cross purposes with the mainstream views of those in the discipline being used. Traditionally, international law has been the main discipline used in human rights studies. This work, with its interdisciplinary approach, instead focuses (except in Chapter Five) on the methodology of Comparative Law. Comparative Law has been relatively under-utilised in the field of human rights.3 Although, as mentioned above, the human rights movement has become increasingly interested in enforcement within national jurisdictions, the failure to think in a fully interdisciplinary manner has led to a rather fruitless series of approaches based on the development of international norms to more forcefully require enforcement.4 The true picture of enforcement within national jurisdictions, and the actual purchase of international human rights norms on the ground, has not hitherto been properly illuminated by research. B. The Use of Comparative Law Comparative Law may be defined as a field of study devoted to describing the content and style of legal systems, and exploring the similarities and differences between them.5 Because it has this nature, it tends to lend itself

1 P.Alston Human Rights Law (Dartmouth, Aldershot, 1996) pxi. 2 Ibid pxviii. For example, sociologists have in the past been dismissive of the validity claims of human rights to be valid in all social contexts – M. Waters “Globalisation and the Social Construction of Human Rights” (1995) 31(1) Australian and New Zealand Journal of Sociology 29 at 32. 3 L.Obiora “Towards an Auspicious Reconciliation of International and Comparative Analyses” (1998) 46 American Journal of Comparative Law 669 at 669. 4 Eg see D.Shelton “The Participation of Non-Government Organisations in International Judicial Proceedings” (1994) 88 American Journal of International Law 611 and D.Shelton Remedies in International Human Rights Law (Oxford University Press, Oxford, 1999). 5 R.Hyland “Comparative Law” in D.Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Blackwell, Oxford, 1999) p184 at 184. 16

to the task of illuminating the true state of human rights enforcement within national jurisdictions. The effect of Globalisation in enhancing the porousness of national borders to movements of capital, people and ideas, has a tendency to mean that international law questions like human rights are increasingly becoming national law questions amenable to Comparative Law studies. In previous eras, Comparative Law scholars were inclined to argue that private law (this field’s main obsession), being technical in nature, was undergoing a process of convergence between national jurisdictions, whereas moral (or human rights) questions were always unique to specific cultures.6 Such scholars are now inclined to argue that human rights, being inseparable from modernity as a phenomenon, are also part of such a process of convergence.7 Thus, both studies of Globalisation and Comparative Law scholarship suggest that the approach of Comparative Law is becoming increasingly relevant to questions of human rights enforcement. Some Comparative Law scholars have become alarmed at the possibility of a Comparative Law that ignores the erosion of sovereignty caused by Globalisation.8 They argue that there is a risk of the subject being hijacked into a process of creating model laws that would then become international treaties whose purpose would be to further the Globalisation of transnational capital and the values of transnational corporations. Comparative Law scholars, however, have been relatively unaware of the extent to which Comparative Law studies of human rights questions can further the parallel Globalisation of human rights. This form of Globalisation could construct a form of resistance to the Globalisation of the values of transnational capital through the construction of a realm of transnational legality that reaches to the regional and the local within a state. This work attempts to employ Comparative Law to further such a parallel Globalisation of human rights. Since its foundation by members of the Universalist School, Comparative Law has had a systematic bias towards focusing on the common elements of legal systems, and ignoring their differences. For the most part this was

6 See for eg K.Zweigert & H.Kötz Introduction to Comparative Law (2nd ed) (Clarendon Press, Oxford, 1992) p36. 7 L.M. Friedman “Borders: On the Emerging Sociology of Transnational Law” (1996) 32 Stanford Journal of International Law 65 at 84. 17

because the goal of the Universalist School was the establishment of a universal common law from the common elements of the major legal systems.9 Recently, an embryonic challenge to this has arisen in the form of so-called Difference Theory, whose avowed goal is the discovery of the particular vision of justice, and conception of life under law, in each individual legal system.10 Reitz has proposed that good Comparative Law scholarship lies in the tension between these two extremes,11 such that attention in every comparison should be given to both commonalities and differences. To the author, this is a common sense solution to this debate in Comparative Law theory. It is also highly adapted to dealing with questions of human rights enforcement such as in this work, as it is often not the common elements of legal systems that cause the problems in human rights enforcement, but rather the unique features of each individual legal system. It is standard in any analysis of Comparative Law method to state at the outset that Comparative Law is agnostic as to method, and that the method used needs to be adjusted to the contours of every new task that it undertakes.12 This study compares the mobilisation of law by human rights DNGOs in three jurisdictions with the aid of case studies. As such, it is a form of microcomparison that moves beyond descriptive comparison into theoretical comparison.13 It is also essentially synchronic,14 but uses diachronic15 material periodically where it sheds light on the nature of the current situation. Lastly, this study is also an exercise in applied Comparative Law, in that it is concerned with finding the best ways of mobilising legal norms to defend human rights in

8 For eg J.Kelsey “Globalisation, State and Law: Toward a Multi-Dimensional Polity” Unpublished Conference Paper, Australasian Law Teachers Conference, La Trobe University, Melbourne, September 1995 p20. 9 Ibid p188. 10 See G.Frankenberg “Critical Comparisons: Re-Thinking Comparative Law” (1985) 26 Harvard International Law Journal 411; P.Legrand “Comparative Legal Studies and Commitment to Theory” (1995) 58 Modern Law Review 262; V.Gessner “Praesumptio similtudinis? – A Critique of Comparative Law” Paper Presented at the 1995 Annual Meeting of the Research Meeting of the Research Committee on Sociology of Law and the International Sociological Association Legal Culture: Encounters and Transformations (Tokyo, Japan, August 1995); Hyland Op cit p193. 11 J.C.Reitz “How to do Comparative Law” (1998) 46 American Journal of Comparative Law 617 at 622. 12 Ibid at 618. 13 See Hyland Op cit p184. 14 ie dealing with phenomena at one point in time. 15 ie dealing with phenomena as they change over a time period. 18

different social and cultural situations, rather than simply seeking an understanding of this problem, as might be the goal in social science.16 The method that will be used in this work to compare the mobilisation of law in defence of human rights by human rights DNGOs is a modified version of the method of the Functionalist School of Comparative Law theory. The Functionalist method was first used by the German comparativist Ernst Rabel to compare private law.17 It was then generalised by the German/American comparativist Max Rheinstein to the entire range of concerns of Comparative Law,18 and reached its classic statement in the work of Zweigert and Kötz.19 Essentially, this method ignores differences in doctrinal construction and legal concepts between jurisdictions and searches for underlying similarities in legal and social function. It thus tries to compare doctrines that may be different, but do the same or a similar 'job' in different legal systems. In order to avoid the necessity of an empirical investigation of these 'jobs', the Functionalist method assumes the relevant functions in different legal systems to be similar using what is called a praesumptio similitudinis (a presumption of similarity).20 In recent times, advocates of Difference Theory have launched a sustained attack on the praesumtio as being reductionist and contrary to the reality of the legal systems concerned.21 They have suggested that the positing of a conjectura dissimilitudinis (presumption of difference) is an equally valid way of conducting a comparison. In this study, a presumption of similarity will be used, but many functions of the human rights DNGOs will also be examined with an eye to differences between the jurisdictions in the way that the conjectura dissimilitudinis suggests. In this study, what will be compared is not legal doctrine, but rather its mobilisation. This is done by positing the mobilisation of law in defence of

16 Indeed, de Cruz is of the opinion that Comparative Law and Sociology of Law differ primarily in that Comparative Law concerns itself with the question of ‘how law ought to be’ – P. de Cruz Comparative Law in a Changing World (Cavendish, London, 1999) p10. 17 See E.Rabel Das Recht des Warenkaufs: Eine rechtsvergleichende Darstellung (Walter de Gruyter & Co, Berlin and Leipzig, 1936,1958, 1964). In contrast, human rights law as a discipline mainly encompasses public and international law. 18 See M.Rheinstein “Comparative Law and Conflict of Laws in Germany” (1934) 2 University of Chicago Law Review 232. 19 Zweigert & Kötz Op cit. 20 Ibid p36. As this study includes empirical elements, it might be argued that a certain empirical testing of the above presumptions has occurred. 21 Gessner Op cit; Hyland Op cit p190. 19

human rights as a function or “job” that is done in each of the three systems to be compared. In short, this study is unusual in that, in terms of the famous distinction by Roscoe Pound, what are to be directly compared are forms of law in action, rather than law on the books.22 Although some have argued that a move in Comparative Law towards analysis of law in action would entail the dissolution of Comparative Law into Sociology of Law,23 sociologically informed method is not unusual in Comparative Law.24 Furthermore, Sociology of Law does not as a rule compare across jurisdictions in the way that Comparative Law does. Originally, among its German proponents, the Functionalist method drew on the similar ideas in German jurisprudence derived from the Interessenjurisprudenz of von Jhering, and the scholars of the Freirechtschule.25 In the common law world, the generalisation of Functionalist method is related to the theories of Sociological Jurisprudence put forward by Roscoe Pound26 and the Legal Realist School, and their view of law as an instrument for channelling human behaviour.27 For this reason, many of the theoretical critiques that have been made of Sociological Jurisprudence and Legal Realism can be made against the Functionalist method in Comparative Law. Perhaps the most damaging of these theoretical critiques is the accusation of sociological positivism.28 This accusation attacks the view of law as quantifiable social behaviour that is value free and external to the observer on the basis that it is no longer tenable in view of the theoretical impossibility of the separation of science and the world. The social scientist, it is argued, is a social being involved in the action being observed, and sees the phenomenon from his or her social point of view.

22 Hyland Op cit p184. 23 R.Cotterrell “The Concept of Legal Culture” in D.Nelken Comparing Legal Cultures (Dartmouth, Aldershot, 1997) p13 at 14. 24 Eg L.Friedman “Legal Culture and Social Development” (1969) 4 Law and Society Review 29 at 33- 34. 25 Hyland Op cit p184. 26 See generally R.Pound Introduction to the Philosophy of Law (revised ed) (Yale University Press, New Haven (Conn), 1954) 27 See generally W.Twining Karl Llewellyn and the Realist Movement (Weidenfeld & Nicolson, London, 1973). 28 R.Cotterrell The Sociology of Law: An Introduction (Butterworths, London, 1992) p11; D.J. Black “The Boundaries of Legal Sociology” (1972) 81 Yale Law Journal 1086 at 1091. 20

This ‘interpretive’ view of the social sciences, that involves being alert to value judgements and being open to changing views on the basis of new findings, seems to this author a much more theoretically defensible and practical method than sociological positivism. However, a weak Functionalist method is entirely consistent with the interpretive view. Functions in different legal systems can still be compared, as long as the values guiding the selection of functions and their interpretation are made explicit, and the functions are not conceived as facts external to the observer. In this work, the values guiding the selection of functions and their interpretation will be supplied by the international human rights movement and human rights scholarship. C. The Concept of the Mobilisation of Law I. Mobilisation of Law by Individuals Having outlined the theoretical approach within Comparative Law that will be used in this work, it is necessary to outline the concept of the mobilisation of law that is used as the function for the purposes of comparison. As McCann has remarked,29 much of the best known scholarship on the mobilisation of law focuses on the mobilisation of law by individuals seeking resolution mainly of private disputes.30 In this vein, Black defines legal mobilisation as the process by which the legal system acquires its cases.31 Similarly, Zemans remarks that law is mobilised when a desire or want is translated into a demand as an assertion of rights.32 II. Mobilisation of Law by Movements and Associations Moving from the mobilisation of law by individuals to solve private law disputes to the mobilisation of law by social movements and associations, such as human rights NGOs, the matter becomes considerably more complicated.33 In order to properly understand the theories that have been put forward in this

29 M.W.McCann Rights at Work: Pay Equity Reform and the Politics of Legal Mobilisation (University of Chicago Press, Chicago and London, 1994) p5. 30 See R.Lempert “Mobilising Private Law: An Introductory Essay” (1976) 11 Law and Society Review 173; F.K.Zemans “Framework for Analysis of Legal Mobilisation: A Decision Making Model” (1982) American Bar Foundation Research Journal 989; F.K.Zemans “Legal Mobilisation: The Neglected Role of Law in the Political System” (1983) 77 American Political Science Review 690. 31 D.J.Black “The Mobilisation of Law” (1973) 2 Journal of Legal Studies 125 at 126. 32 Quoted in McCann Op cit p6. 33 See for eg J..Handler “Postmodernism, Protest and the New Social Movements” (1993) 27 Law and Society Review 697; P.Burstein & K.Monaghan “Equal Employment Opportunity and the Mobilisation of Law” (1986) 20 Law and Society Review 355; N.Milner “The Dilemmas of Legal Mobilisation”: Ideologies and Strategies of Mental Patient Liberation” (1986) 8 Law and Policy 105. 21

regard it is necessary first to discuss the nature of law itself first. Legal positivism understands law as a body of rules that have determinate meanings and consequences. In order to properly understand the material below on the role of law in human rights struggles, it is necessary first to understand a sociological view of the indeterminate nature of law. On this view legal rules do not have determinate consequences, rather, they have a range of possible meanings and consequences. Because of this, law is best understood not in terms of rules, but rather as a series of arenas of struggle.34 Furthermore, on this view law is not simply constructed and dispersed from above by courts and legislatures, it is generally constructed from below within the general culture.35 The effect of the activity of courts, legislatures and law schools on this view is usually to make some legal interpretations arising from below privileged, and other marginalised, within the arena of struggle. The activity of groups like human rights NGOs is thus seen as being directed at challenging privileged meanings of law, and replacing them with marginalised meanings that have not yet made their way into the official canon of meaning.36 Standard meanings attached to law are ‘refashioned’ or ‘reworked’ to accord with the aims of those making the claims.37 In these struggles, movements and associations use law as a strategic resource. When their attempts to use law are successful, it universalises or legitimates the interests of the movement or association,38 and, depending on the legalization of the area of society concerned, can redistribute power in society at large. The effects of success in replacing privileged legal meanings with ones that support the goals of movements or associations exist on a number of levels. The first, and most obvious, is that victory allows movements and associations to manipulate the state and get it to use its power for the movement or association’s goals.

34 A.Bartholemew & A.Hunt “What’s Wrong With Rights?” (1990) 9 Law and Inequality 1 at 51. This is very similar to the view of law put forward by the English historian E.P.Thompson – quoted in J.Brigham The Constitution of Interests: Beyond the Politics of Rights (New York University Press, New York, 1996) Titlepage. 35 H.Silverstein Unleashing Rights: Law, Meaning and the Animal Rights Movement (University of Michigan Press, Ann Arbor(MI), 1996) p6. 36 Ibid p185. 37 A.Hunt “Rights and Social Movements: Counter-Hegemonic Strategies” (1990) 17 Journal of Law and Society 309 at 313. 38 Ibid p320 22

On the second level, court victories have what Galanter calls ‘radiating’ effects,39 and Mnookin and Kornhauser call effects in the ‘shadow’ of the law.40 In this context this means that alteration of legal meanings, or attempts to alter legal meanings, change the way in which law influences the behaviour of both people in the movement or association, and outside of it. Such advocacy alters the perceptions of such groups about what might be a viable political position at a particular point in time.41 It also alters the power balance in any negotiations that might be undertaken. By raising expectations it solidifies the morale of current members, and reaches potential constituents or supporters, activating them, and making them more receptive to further information. On the third level such legal advocacy can have the effect of constituting individual and movement identity.42 In this context, the constitutive potential of law refers to its ability as a practice to operate on an individual’s thoughts and actions.43 The constitutive power of law operates through legal advocacy to define the goals of the movement, its image, and what it means to be an activist or supporter of such a movement. Such a relationship is reciprocal. Law constitutes the movement and the image of its members as much as the movement constitutes the law. This point is especially pertinent for the international human rights movement, whose identity has almost single- handedly been defined by human rights law, and whose activities have a strong tendency to focus on legal advocacy. With regard to levels two and three in the above analysis, the effects of advocacy using law can be described as much as mobilisation through law, as mobilisation of law in the sense discussed by Black.44 The aim is not so much to activate the law, as to use the law to activate masses of people in civil

39 See generally M.Galanter “The Radiating Effects of Courts” in K.D.Boyum & L.Mather (eds) Empirical Theories About Courts (Longman, New York, 1983). 40 See generally R.H.Mnookin & L.Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale Law Journal 951. 41 McCann Op cit p280. 42 Silverstein Op cit p8. 43 Brigham Op cit p2. As van den Berg also points out, the strategic advantage the human rights movement gets from using human rights law is that it legitimates their demands – E.M. van den Berg The Influence of Domestic NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Intersentia and Hart, Antwerpen and London, 2001)(School of Human Rights Research Series, Vol 8) p47. 44 It should thus be noted that the approach of this work is different to that of van den Berg, who is concerned with “influence”. This work is concerned with success in mobilising law and mobilising through law- see van den Berg Op cit p29. 23

society. In many ways this mobilisation through law is more important than mobilisation of law, as its potential effect on public opinion can be more decisive than state power in enforcing human rights laws. Law itself can be seen as being constructed by a series of the above struggles. Rather than talking of ‘rights’ in general it is thus better to talk of specific rights discourses built up over history, like the bank of a river, by successive contests over legal meaning and their specific results.45 In this vein, Henkin has distinguished between American rights (or civil rights), and human rights, as two rights discourses that have different histories and ideologies of government and society.46 A similar view could also be taken of the relationship between German rights (Basic Rights or Grundrechte)47 and international human rights. Britain forms an interesting case in which an older declining discourse of British rights (civil liberties) has been directly replaced by the international discourse of human rights at the domestic level. The enforcement of human rights depends to a large extent on the ways that domestic and international rights discourses create a dialogue with one another, and are reconciled. In this work, although all these rights discourses are described as ‘human rights’ discourses in the wider sense, the differences between the discourses, their conflicts and overlaps, will be commented on periodically. It should not be surmised from the above description that law is infinitely malleable. On this view of law, there are absolute boundaries to the arena of struggle that limit what meanings of law can be exchanged for the current privileged meanings. The arena of struggle thus both can empower and constrain movements and associations.48 In order to maximise the empowering effect, and minimise the constraining effect of law, movements and associations engage in tactics, both within legal systems and outside of them. The term ‘strategy’ will be used in this work to denote the pre-existing possibilities of legal discourse.49 The term ‘tactics’ will be used, in contrast, to refer to those competencies that are

45 Bartholemew & Hunt Op cit p52. 46 L.Henkin “International Human Rights and Rights in the United States” in T.Meron (ed) Human Rights in International Law: Legal and Policy Issues (Clarendon Press, Oxford, 1999) p33. 47 On Grundrechte see generally - S.Michalowski & L.Woods German Constitutional Law: The Protection of Civil Liberties (Ashgate, Aldershot, 1999). 48 Silverstein Op cit p221. 49 McCann Op cit p10 note 9. 24

developed to manipulate legal resources within the terms of these pre-existing possibilities. To this point the theory of mobilisation of law and through law that will be applied to human rights DNGOs in three jurisdictions has been derived from theory analysing mobilisation of and through domestic state law. Some human rights DNGOs, however, also mobilise international law, and so such a theory must be supplemented to properly cover mobilisation of international law to defend human rights. As no Sociology of Law theory covering mobilisation of international law yet exists,50 the following will be drawn mainly from international relations literature. III. Mobilisation of International Law International law is a legal system that, unlike national law, has no centralised power to enforce law. It is also a legal system where, for the most part, legal interpretation does not occur through litigation in courts. In terms of legal mobilisation, this means that there are a much larger number of possible points in the legal system where law can be mobilised, and a much greater number of modes in which it can be done. In this environment, much of what human rights DNGOs do may be described as attempts to use legal doctrine to achieve ‘frame resonance’.51 Frame resonance may be defined as a movement’s interpretative framework, and this framework’s ability to influence broader the understandings of both the public and decisionmakers. Because international law is enforced largely by states, DNGOs in this environment try to persuade or socialise states to accept their legal interpretations. They seek to have those legal interpretations achieve such frame resonance that other states will believe it sufficiently in their interests, or will receive sufficient pressure from public opinion, to pressure the recalcitrant state into upholding the law. Thus, the aim of the mobilisation of international law appears to be to cause certain patterns of cooperation and coordination of states, such that the violating state risks what it sees as its interests in international relations if it does not comply with the legal norms in question. Even when legal interpretation is more centralised, as in international institutions, any interpretation still has to achieve enough frame resonance to

50 See Friedman “Borders…” Op cit p84. 51 M.E.Keck & K.Sikkink Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca (NY), 1998) p17. 25

attract states to enforcement activities. These enforcement activities range from confidential diplomatic approaches, to sanctions or invasion.52 Therefore, in terms of the above theory of mobilisation of law arenas of struggle occur in much more dispersed locations in the international system than in domestic systems, and the mobilisation of law and through law are more closely intertwined as a result of the systemic imperatives of the international system itself. IV. The Requirements of Mobilisation of Law Another question that must be dealt with concerns what movements and associations require to mobilise the law. In a 1991 article, Burstein argued that mobilisation of law by social movements depends not on the needs of those suffering from the violation of a law, or the extent of law violating activity, but rather the organisation and resources of the social movement in question.53 Similarly, Epp has argued that the primary reason for the successful mobilisation of law by rights advocates is the creation of support structures that accumulate information, experience, skill and resources for the purpose of the mobilisation of law.54 In the Netherlands, Everts and van den Berg have similarly seen resource mobilisation by DNGOs as important determinants of their ability to influence the policy process.55 The existence of such factors as organisation, information and resources also enable movements and associations to become what Galanter calls “repeat players”. 56 According to Galanter, this situation where the organisation accumulates experience and contacts in litigation and other work, if attained by an organisation, increases its chances of success. Because the literature suggests they determine the mobilisation of law by DNGOs, chapters two, three and four of this work concentrate on tactics, structures and resources respectively. Although they are separated for ease of

52 See J.Dugard “The Role of International Law in the Struggle for Liberation in South Africa” (1991) 18 Social Justice 83 at 84 53 P.Burstein “Legal Mobilisation as a Social Movement Tactic: The Struggle for Equal Opportunity” (1991) 96(5) American Journal of Sociology 1201 at 1209. 54 C.R.Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, Chicago, 1998) p8. 55 van den Berg Op cit p41. The author has relied on van den Berg’s account of Everts’ theory, as the author had difficulty obtaining a copy of Everts’ work at the time of writing. The book that could not be obtained at the time was D. Everts (ed) Controversies at Home: Domestic Factors in the Foreign Policy of the Netherlands (Brill, Leiden, 1985). 26

analysis it should not be thought that these aspects of DNGO operation function independently of one another. In practice, the acquisition of resources, the creation of structure and the selection of tactics form one undifferentiated whole, where each influences the other. V. The Importance of Organisation Lastly, a debate exists among writers as to whether internal or external factors are the most important in human rights NGOs ending human rights violations. Kruse57 has argued that most human rights violations are ended through contextual factors such as political, social or economic changes, and not the efforts of human rights NGOs.58 Conversely, Tushnet59 has argued that external contextual factors, such as those above, merely set the initial conditions for a human rights campaign. Once the mobilisation of law is under way, he argues, the most important factor becomes the internal organisational ability of an organisation. Clearly, which one of these is most important may depend on the situation. This study concentrates on the internal organisational power and ability of human rights NGOs. This approach is taken on the basis that even in situations where, as Kruse argues, human rights problems are ended or perpetuated by larger societal forces, the abilities or lack of abilities of human rights NGOs to impact on this situation depends almost entirely on their organisational resources and abilities, as stated by Tushnet and outlined in Chapter One. D. The Use of Case Studies Like all works using Comparative Law method, this work should be seen as qualitative in social science terms. While it is usual for qualitative works in social science to use case studies, it is relatively unusual for a piece using Comparative Law methodology. Many Comparative Law pieces investigating social science concepts such as legal culture are highly impressionistic and low

56 See M.Galanter “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law & Society Review 95. 57 S.Kruse et al Searching for Impact and Methods: NGO Evaluation Synthesis Study: A Report Prepared for the OECD/DAC Expert Group on Evaluation (May 1997) at http://www.valt.helsinki.fi/ids/ngo/covers.htm (accessed Dec 3rd, 2002). 58 These are the questions which van den Berg labels autocausation and third party causation. – that is, whether factors internal to the government caused the change in policy, or whether the effect of the action of some third party caused the change – van den Berg Op cit p32. 27

in detail.60 Case studies have the advantage of being thick in detail, and have the capacity to provide relevant empirical grounding for the comparative use of social science concepts and their further theoretical development for application in specific situations. Case studies are thus used in this work to supply the empirical detail that Comparative Law studies on similar topics often lack. Having addressed the question of why case studies were used, it is necessary to explain why the particular jurisdictions and case studies featured here were chosen. As mentioned above, human rights DNGOs have been given very little attention in the literature. To the extent that they have featured in the literature since the 1960s, the focus has been on American public interest law litigators such as the American Civil Liberties Union (ACLU) and the NAACP Legal Defence and Education Fund (LDF). These organisations have been presented as models of what human rights DNGOs around the world should look like.61 This has focused discussion on how these models could best be replicated in other legal systems. The discussion of DNGOs has thus, for the most part, focused on the classic Comparative Law problem of legal transplantation.62 This approach of transplanting the features of American DNGOs to other jurisdictions raises a host of unanswered questions. Firstly, what are the relative merits of these selected organisations compared to others? What are the assumptions underpinning their use as models? Why are all the organisations that are mentioned American? The best that the literature offers by way of methodology admits that the organisations they select for study are not representative, and then proceeds to select organisations on the basis of

59 M.Tushnet The NAACP’s Strategy Against Segregated Education 1925-1950 (University of North Carolina Press, Chapel Hill (NC), 1987) pp xi and xiii. 60 Eg “Legal Cultures Compared: The American and the French and the German” in V.Gessner, A.Hoeland & C.Varga European Legal Cultures (Dartmouth, Aldershot, 1996) p269ff. 61 See for eg J.Shestack “Sisyphus Endures: The International Human Rights NGO” (1978) 24 New York Law School Law Review 89 at 106 and D.Weissbrodt “Strategies for the Selection and Pursuit of International Human Rights Objectives” (1981) 8 Yale Journal of World Public Order 62 at 71. Exceptions to this are more recent articles by Whelan and Bolan on DNGOs in Northern Ireland and El Salvador– see L.J.Whelan “The Challenge of Lobbying for Civil Rights in Northern Ireland: The Committee on the Administration of Justice” (1992) 14 Human Rights Quarterly p149 and J.Bolan “The Mothers Committee of El Salvador: National Human Rights Activists” (1985) 7 Human Rights Quarterly 541. 62 J.Widener “Comparative Politics and Comparative Law” (1998) 46 American Journal of Comparative Law 739 at 739. 28

whether they are “significant”, without any further explanation.63 In this work, a more refined and expanded methodology of selection has been used. In order to test the idea that the selected American DNGOs were the most significant or effective, the scope of the study was expanded to include the jurisdictions of the United Kingdom and the Federal Republic of Germany. The United Kingdom was included because, like the United States, it is also a centre of INGO activity and has famous DNGOs. Also like the US, the UK is a developed country with money to create highly developed DNGOs. Germany was selected in order to investigate the significance and effectiveness of DNGOs in a developed country outside the English speaking world. Furthermore, no literature in either German or English could be found by the author on German DNGOs and it was felt that research would expand the universe of known DNGO forms of activity. It was hoped that by expanding the focus of discussion of DNGOs, some serious propositions could be put forward concerning which types of DNGOs might be most effective in what situations. In short, the author has the same sorts of doubts with regard to the transplantation of the features of US DNGOs to other jurisdictions without reference to context as those expressed by Kahn-Freund64 generally about legal transplantation. With regard to the selection of DNGOs in each of the jurisdictions, this work uses two bases to select case studies. The first refines and expands the methodology that already exists in the literature. Previous writings in international human rights literature on DNGOs have focused on what Wasby calls the “major players” amongst civil rights organisations in the United States.65 These are the organisations that litigate the most, have the most resources, and the highest media profile. There are good reasons for such a focus. The first is that such organisations, because of their longevity, can become “repeat players” in the courts and elsewhere. As Galanter has shown, this gives them advantages that make them more likely to succeed in situations where they undertake to intervene.66 In this work, therefore, one of the points of

63 See for eg H.M.Scoble & L.Wiseberg “Human Rights NGOs: Notes Towards a Comparative Analysis” (1976) 9(4) Human Rights Journal 611. 64 See generally O.Kahn-Freund “On the Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1. 65 S.L.Wasby Race Relations Litigation in an Age of Complexity (University of Virginia Press, Charlottesville (VA), 1995) p57. 66 See generally Galanter “Why the ‘Haves”…” Op cit 29

focus in each jurisdiction is on those DNGOs that are relatively large and well resourced, as the above sources suggest that they are more likely to mobilise law and be effective. The second reason for focusing on the major players, and a way of choosing among the major players, is outlined in the literature on case studies in the social sciences. Case studies in social science are selected to expand and generalise theories, and not to enumerate frequencies of a population.67 In other words, case studies do not have to be representative of NGOs in any given population, rather, they have to maximise what is learnt in terms of theoretical generalisation.68 In terms of the existing literature, therefore, it is quite valid to select organisations that are much larger and older than the DNGO population as a whole if this leads to better understanding.69 The second basis for selecting case studies for this work will be how well they illustrate the diversity of a DNGO community and improve theoretical understanding. An important question that this basis addresses is whether the selection of the ACLU and LDF, as in previous studies, is a selection that maximises what can be learnt about the diversity of successful formulas for the running a DNGO. In this work, it will be argued that these organisations are not necessarily the best US organisations to select for this purpose, and that the limitation of consideration of models to the US also limits what can be learnt and generalised from the analysis of case studies. E. Methodology Used to Collect the Data The methodology used to collect information for this study involved a combination of textual and empirical research. Most of the initial research was done on the Internet, in publications by DNGOs, and in writings in journals and books on human rights NGOs. From these, and e-mail correspondence with individuals in each of the jurisdictions, a sense was gained of the nature of the DNGO community in each jurisdiction. Particular DNGOs were then singled out as being candidates for being case studies on the basis of the criteria set out above, and were invited to participate. Those DNGOs that had the right

67 R.K. Yin Case Study Research: Design and Methods (2nd ed) (Sage, Thousand Oaks (CA), 1994) p10. 68 R.E.Stake The Art of Case Study Research (Sage, Thousand Oaks (CA), 1995) p4. 69 This appears to be why van den Berg selects the DNGOs for her study according to certain categories. She appears to believe that they can maximise what can be learnt when selected this way – van den Berg Op cit p26. 30

characteristics and agreed were then chosen as case studies.70 The case studies were then sent a qualitative questionnaire, which was filled in by a staff member/s nominated by the case study. This questionnaire was designed both to gain information that was absent from other sources, and to expand on information that was already present in the literature. Each case study was asked the same questions in a standardised questionnaire so as to make comparison between the case studies easier. The author then flew to the headquarters of each of the case studies and conducted an in depth semi-structured qualitative interview with a person or persons nominated by the case study (mostly the same person who completed the questionnaire). The interviews were not only designed to elicit certain standard information from each of the case studies, but were also adapted to expand upon some of the answers that may have been brief or incomplete in the questionnaire. Further literature published by the case studies was also collected from them, and later analysed. The following text is thus based on research in books, journals, the Internet, legal cases, treaties and statutes, case study publications (including periodical publications), the archives of some of the DNGOs that allowed the author access, media sources such as newspapers, government documents such as parliamentary and departmental papers, qualitative interviews and questionnaires, as well as e-mail correspondence with knowledgeable individuals. F. The Nationalist Path to Human Rights Enforcement In describing some of the context surrounding the case studies in the three jurisdictions this work uses the concept of the ‘nationalist path to human rights enforcement’ as a heuristic device.71 This concept, which originated in the US, is an attitude held by human rights DNGOs that originally included a belief in the superiority of the US Constitution and the view that neither NGOs nor the US polity had much to learn from an international human rights movement

70 Several DNGOs were invited to participate in this study but declined. The American Civil Liberties Union (ACLU) in New York in the United States was asked to participate through its then President, Ira Glasser, but it declined on the grounds of insufficient time and the transition in leadership that was then taking place. Liberty (formerly the National Council for Civil Liberties) of London in Britain as asked to participate in the study but declined on the grounds of insufficient time. Lastly, the Vereinigung Demokratischer Juristinnen und Juristen e.V (Union of Democratic Lawyers or VDJ) of Berlin, Germany was asked to participate in the study but the author could not elicit replies to communications that he sent to it and so he decided not to pursue VDJ as a case study. 71 H.J.Steiner Diverse Partners: Non-Government Organisations in the Human Rights Movement (Harvard Law School Human Rights Program, Cambridge(Mass), 1991) p27. 31

designed for those in a much worse human rights position. On this view international human rights bear the onus of alien ideas that are subordinate to the ‘real’ rights in the US Constitution. This concept can also be used more generally, however, to describe cultural tendencies in all three jurisdictions in this work. When used in this way it denotes a focus on domestic public law, a belief that there is little to learn from other nations on human rights enforcement and a devaluation and/or ignorance of what the international human rights movement and international human rights have to offer. G. The Social and Political Environment in which the Law is Mobilised This work for the most part assumes that the reader knows enough about the social and political cultures of the US, Britain and Germany to understand the comparisons made below. There is, however, one aspect of these contextual matters that is not widely known and that may therefore, warrant a brief mention. Many in the English speaking world know very little about the contemporary German polity. The author therefore felt that a short note on the structure of the German government and courts might aid in understanding the analysis of the German case studies below. The Basic Law (or German Constitution) divides federal constitutional power between the German Parliament, the Chancellor and the Courts.72 The German Presidency is a largely ceremonial post that acts as a symbol of national unity.73 The German Parliament is made up of the lower house or Bundestag, which is directly elected by the people through a combination of proportional representation and first past the post methods, and an upper house, or Bundesrat, which is composed of the representatives of the Länder (or constituent states of Germany). Within this system there is a partial fusion of Legislative and Executive power in that the German Chancellor (or Prime Minister) is the leader of the party or coalition which has a majority in the lower house74 and draws his ministers from Parliament.

72 Arts 38, 50, 62 and 92 of the Basic Law. 73 Arts 58 and 59 of the Basic Law. 74 Formally the Chancellor is appointed by the President when he or she has the requisite majority in the lower house – Art 63 of the Basic Law. 32

The German Judiciary consists of five different hierarchies of specialised courts, each of which has a court at its apex.75 The five federal courts that head these hierarchies are the Federal Constitutional Court; the Federal Administrative Court; the Federal Fiscal Court; the Federal Labour Court; the Federal Social Court and the Federal Supreme Court. The Federal Constitutional Court receives complaints about violations of the Basic Rights directly from citizens, and also receives cases referred by judges in the other hierarchies when an important constitutional matter is in issue.76 With few exceptions all lower courts are courts of the Länder (or states).77 The German judiciary thus comprises integrated hierarchies that contain both federal and Länder courts. Almost all cases begin in the courts of the Länder and if they are appealed end up in the Federal courts. Federal laws and court judgments are also administered or enforced by Länder Executive officers.78 The major implication of this constitutional system for German human rights DNGOs is that, when they engage in domestic litigation in this civil law system they will be active in the court hierarchy that covers the domestic human rights abuse they are trying to address. It appears that often this is the Federal Constitutional Court. However, German DNGOs that combat abuses of social rights also appear to work in the Federal Social Court hierarchy, while German DNGOs that engage in work in work on civil and political rights often also work in the hierarchies of the Federal Supreme Court and the Federal Administrative Court. Cases from these courts then are often referred to the Federal Constitutional Court when issues of Basic Rights arise. As their decisions have major human rights consequences within Germany no note on the German constitutional system is complete without a brief mention of the consequences of Germany’s membership of the European Union and the Council of Europe. Because of Germany’s involvement in these systems of European law German DNGOs (like British DNGOs) have, besides

75 The Federal Constitutional Court, however, has no courts below it in its 'hierarchy'. 76 The importance of the Federal Constitutional Court in the political system of the Federal Republic has been continuously growing since the Court’s foundation – see K. von Beyme The Legislator: The German Parliament as a Centre of Political Decision Making (Ashgate, Aldershot, 1998) p2. 77 D. Currie The Constitution of the Federal Republic of Germany (University of Chicago Press, Chicago, 1994) p150. For a more detailed description of German constitutional doctrine see D.P.Kommers The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University press, Durham(NC), 1997). 78 Art 83 of the Basic Law. 33

domestic institutions and courts, the added options not only of litigating in the European Court of Human Rights and European Court of Justice but also of lobbying in the European Parliament and the Council of Europe. These European systems supplement, and in some cases supplant, the formal constitutional organs dealing with human rights established by the Basic Law. H. Outlines of the Case Studies Below is a short introduction to each of the nine organisations featured here as case studies, with the reasons for their selection. The NAACP Legal Defence and Education Fund (hereafter LDF) is a domestic human rights organisation based in New York. It was founded in 1940 as the legal arm of the NAACP (a mass political organisation of African Americans), but became entirely separate in 1957.79 In absolute terms, LDF is the oldest and probably the largest of the DNGOs examined in this work. It is almost entirely focused on domestic litigation as a tactic for the mobilisation of law and has nearly two dozen staff lawyers and approximately a hundred cases running at any one time. It was selected as a case study because it is the locus classicus of a major player DNGO in the literature, and its actual nature and effectiveness warranted further investigation.80 The Lawyers’ Committee for Civil Rights Under Law (hereafter LCCRUL) is a domestic human rights organisation based in Washington DC. It was founded in 1963 at the request of President Kennedy for more of the nation’s large legal firms to become involved in domestic human rights work.81 LCCRUL does very similar work to LDF in that it concentrates on domestic litigation (particularly in the areas of race and sex discrimination) as its main tactic to mobilise law. It differs from LDF in the way it draws upon America’s leading law firms for support. LCCRUL was selected because it is one of the major players on the American scene, but has a resource acquisition strategy quite different to that of LDF or the ACLU.82 The Centre for Constitutional Rights (hereafter CCR) is a domestic human rights organisation based in New York. It was founded in November 1966 by civil rights lawyers who had defended civil rights activists in the South

79 See http://www.naacpldf.org (accessed Feb 20, 2004). 80 As mentioned above at footnote 70 the author also invited the national office of the ACLU in New York to participate as a case study in this work, but they declined. 81 See http://www.lawyerscomm.org (accessed Oct 10, 2000). 34

of the US in the 1960s. Especially prominent in this regard were Arthur Kinoy and William Kunstler,83 both prominent radical lawyers. As a result of this background, CCR is explicitly politically left-wing. While not one of the major players (the top three or four) in the American scene, CCR is still large compared to DNGOs elsewhere in the world, and was chosen because it evidences a quite different style of DNGO activity in the US from that made canonical in the human rights literature. It was thus felt that much could be learnt from a better understanding of its work. JUSTICE is a domestic human rights organisation based in London. It was founded in 1957 as a legal reform organisation,84 and is the local section of the INGO the International Commission of Jurists (ICJ).85 Regardless of the international connections it has through the ICJ, however, JUSTICE in practice is mainly concerned with domestic human rights matters. Apart from Liberty, JUSTICE is the oldest domestic human rights organisation in Britain,86 and, along with Liberty, one of the two major players in the British domestic human rights network.87 In its work, it uses both international litigation and domestic lobbying and education work. JUSTICE was selected because, like LDF, it is one of the major players and classic DNGOs in Britain. British Irish Rights Watch (hereafter BIRW) is based in London, and was founded in 1992. Although relatively small, it is somewhat unique in being an inter-regional DNGO devoted to the major stain on the UK domestic human rights record – the conflict in Northern Ireland. BIRW specialises in mobilising international law to fulfil its mandate. It was selected as a case study for this work because it reflects the preoccupation with Northern Ireland in the British human rights community, and because it reflects the diversity of British DNGOs through its unique culture and seeming unusual effectiveness.

82 The American Civil Liberties Union - see http://www.aclu.org (accessed Dec 25th, 2003). 83 See generally D. Langum William.M.Kunstler:The Most Hated Lawyer in America (New York University Press, New York, 1999). 84 http://www.justice.org.uk (accessed Feb 20, 2004). 85 See generally H.Tolley The International Commission of Jurists: Global Advocates for Human Rights (University of Pennsylvania Press, Philidelpia,1994). 86 See D.Weissbrodt “The Role of Non-Government Organisations in the Implementation of Human Rights” (1977) 12 Texas International Law Journal 293 at 317. 87 As mentioned in footnote 70, the author asked Liberty (formerly the National Council for Civil Liberties) to participate in this study as a case study, but they declined on the grounds of insufficient time. 35

The Committee on the Administration of Justice (hereafter CAJ) is based in Belfast, Northern Ireland, and was founded in 1981 in the wake of hunger strikes by IRA prisoners.88 CAJ focuses mainly on human rights work related to the conflict in Northern Ireland, but also has a wider agenda developing. Along with the Scottish Human Rights Centre (SHRC), it is one of the major regional players among the UK DNGOs, and because of its work in the difficult environment of Northern Ireland won the Council of Europe human rights prize. CAJ was thus selected as an example of the regional DNGOs in the UK, and because as a prize winner it was felt that much could be learnt by comparing it to classic American organisations like LDF. The Humanistische Union (Humanistic Union – hereafter HU) is based in Berlin. It was founded in 1961 in Munich, Bavaria, over the issue of the division between church and state. While it is often said that there is no German equivalent to the American Civil Liberties Union,89 HU could be argued to be such an equivalent. Like the ACLU it is a relatively old and large membership organisation that defends civil and political rights with special emphasis on freedom of expression and the division between church and state.90 HU is the oldest Bürgerrechteorganisation (civil rights organisation) in Germany, and one of the largest, and is thus a major player. It defends human rights through a variety of means, including occasionally (but unusually) domestic litigation. HU was selected because of its major player status in Germany, and because it is emblematic of classic German methods of mobilisation of law in defence of human rights. The Kommittee für Grundrechte und Demokratie (The Committee for Basic Rights and Democracy, hereafter KGD) is based in Cologne. It was founded in 1980 after the revelations at the Russell Tribunal the previous year of alleged human rights violations by the German government in its struggle against the Red Army Faction (RAF), also known as the Baader-Meinhof Gang. Although somewhat smaller than HU, KGD is still a major player in the German

88 For a useful description of this see L.Whelan “ The Challenge of Lobbying for Civil Rights in Northern Ireland: The Committee on the Administration of Justice” 14 Human Rights Quarterly p149 at 156. 89 D.Conrad The German Polity (Longman, New York, 1989) p59. 90 This is not to say that the ACLU and HU are identical. There are many differences between them, especially ACLU’s greater resort to domestic litigation. The author believes, however, that these differences are mainly a result of the different political and legal cultures in the United States and Germany. 36

DNGO scene. Unusually, it is a self-declared organisation of the political left that is closely aligned with the German green and peace movements. Its main tactic is also unusual, in that it relies mostly on mass mobilisation of the populace to defend human rights. KGD was thus selected because it is a major player, and because of what can be learnt from its unusual tactics. The Gesellschaft zum Schutz von Bürgerrecht und Menschenwürde e.V. (Society for the Protection of Civil Rights and Human Dignity or GBM) is based in Berlin. It was founded in 1991 as a consequence of the reunification of Germany. GBM is primarily a DNGO that operates in the former GDR. It fights discrimination against former GDR citizens, and focuses especially on social rights. It has an extensive programme of mobilising international and public law through litigation, but also has larger cultural and political agendas. GBM was selected for this study for three reasons. Firstly, like CAJ, it is an example of a relatively large regional DNGO in the still fragmented Germany. Secondly its internal culture and tactics, being derived from the old establishment and opposition in the GDR, hold the promise of new knowledge concerning human rights DNGOs in the former East Germany. Finally, given its focus on social rights, GBM shows a contrast to the UK and US case studies, and thus could potentially be instructive to the investigator of DNGOs.

Chapter Two – The Tactics of Human Rights DNGOs in United States, Britain and Germany This chapter is an overview and critical analysis of the tactical choices that DNGOs make from the strategies available to them. 1 In order to achieve this a typology of DNGO tactics is firstly put forward to aid the understanding of the material. Then, the tactics of each of the case studies are documented and analysed (mostly from the same points of view) to facilitate useful comparison. Some of the variables that influence the tactical decisions of the case studies are discussed within the exposition of each case study. The main analysis, however, is at the end of the discussion for each jurisdiction, and in the conclusion. Reitz has argued that true Comparative Law scholarship lies in the tension between the similarities and differences in what is being compared.2 In line with this, it is argued below that the case studies show both differences and similarities in their tactics. It is further argued that the differences between the case studies stem from different conceptions of how human rights work should be done, while the similarities are determined both by the common need for DNGOs to gain legitimacy3 in local cultures, and their need to rationally adapt to the opportunities in their environment.4 DNGOs, it is argued, are compelled to achieve a balance between these two requirements. Other factors that influence DNGOs, such as the levels and types of resources or the type of structure, are mentioned here in passing and are dealt with in more detail in Chapters Four and Five. A. A Typology of DNGO Tactics In the discussion that follows the tactical decisions made by DNGOs are loosely divided into first order, second order and third order tactics. First order tactics concern the framing of a DNGO’s mandate and agenda. They are thus

1 As mentioned in Chapter One “strategy” in this work refers to the objective possible tactical choices of a DNGO in a given environment, while “tactics” refers to the choices that DNGOs make from among these objective possibilities in order to achieve their goals. 2 J.C.Reitz “How to do Comparative Law” (1998) 46 American Journal of Comparative Law 617 at 622. 3 For a discussion of the concept of legitimacy see – J.Habermas Legitimation Crisis (Beacon Press, Boston, 1975) p95. For a more critical view of how it is used in the Sociology of Law see A.Hyde “The Concept of Legitimation in the Sociology of Law” [1983] Wisconsin Law Review 379. 4 Or, as it will be put below, the need for a DNGO to rationally adapt to the opportunity structure around it. For a good definition of opportunity structure see M.E.Keck & K.Sikkink Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca (NY), 1998) p7.

about setting goals at the most general level. Second order tactics are used to achieve the goals set out in the mandate or agenda (eg litigation or lobbying). Third order tactics concern the methods used by a DNGO to execute the second order tactics it chooses. This typology is not meant to suggest a chronological sequence: a DNGO might begin by using second and third order tactics and only later clarify its first order tactics.

Table One: The Orders of Tactics

Order of Tactics What it Encompasses First Order Broad mandate creation. Creation of a series of issues it focuses upon (an agenda). Second Order Categories of tactics used to implement the mandate and agenda (eg litigation or lobbying). Third Order Specific tactics used to execute the second order category of tactics (eg impact litigation).

I. First Order Tactics As Weissbrodt pointed out for INGOs, a DNGO needs to ask itself a number of questions when setting its mandate.5 These questions are: 1) is the DNGO to have a wide or narrow mandate? 2) should the DNGO focus on particular rights, or on groups that traditionally suffer violations? and 3) should the mandate be rigid, or allow flexibility to deal with new issues that arise?6 Each choice a DNGO makes in answering these questions creates problems. If the DNGO chooses a narrow mandate, it needs to select an issue that both reflects an objective need, and has enough resonance with the public to draw support.7 If it chooses a wide mandate, then its task of setting an

5 In this work, the mandate of a DNGO will be defined as that set of human rights violations that a DNGO states publicly that it is committed to redressing. The mandate is thus a DNGO’s reason for existence. In contrast, the agenda will be defined as those issues within the mandate that a DNGO actually focuses on addressing in its day to day work. This is a more simple approach than the use by Baehr of the concepts of object, mandate and method – see P.R. Baehr “Amnesty International and Its Self-Imposed Limited Mandate” (1994) 1 Netherlands Quarterly of Human Rights 5 at 7. 6 D.Weissbrodt “Strategies for the Selection and Pursuit of International Human Rights Objectives”(1981) 8 Yale Journal of World Public Order 62 at 64-65. Such a decision is heavily influenced by the ideology of the group, especially the ideas of the leaders who founded the DNGO. 7 Weissbrodt Op cit. There is also the question of not distorting the whole agenda of a domestic human rights movement by favouring some human rights over others. This is an almost intractable problem if an NGO chooses a limited mandate – see generally Baehr Op cit. 39

agenda is complicated by the difficulty of comparing different kinds of human rights violations.8 Focusing on particular rights has the advantage of being intellectually satisfying, but might not achieve public support. Focusing on a particular group suffering violations might appear simply to be the claim of an interest group. A completely flexible mandate might cause the DNGO to be overwhelmed by cases of small overall significance.9 A flexible mandate, coupled with criteria designed to limit the number of cases and to keep only highly significant ones,10 may merely shift the problem of first order tactics to one of second order tactics. First order tactical decisions are not necessarily made with finality. They are often open to constant review. Indeed, most DNGOs have to find ways to manage so-called “mandate-creep”, where their mandate expands as new issues arise.11 II. Second Order Tactics The means used to achieve the goals set out in the mandate can be described as part of a spectrum. On the left hand side might be tactics such as litigation (national and international); lobbying; policy work12 (international and national) and human rights education for officials (mostly national). In the middle of the spectrum might be tactics such as research; letter writing; networking; trial observation; documentation; publication; publicity work; providing aid to victims and development of new standards and institutions.13 Lastly, on the right hand might be such tactics as boycotts; peaceful demonstrations; non-violent direct action and civil disobedience.

8 Ibid. 9 Ibid. 10 Ibid. 11 H.J. Steiner Diverse Partners: Non-Government Organisations in the Human Rights Movement (Harvard Law School Human Rights Programme, Cambridge (Mass), 1991) p 10. 12 By “policy work” the author refers to work on legislation and government policy that involves creating and advocating alternative policies. This can include elements of education, lobbying and publicity when they serve the ends of policy work as described above. 13 L.Henkin et al Human Rights (Foundation Press, New York, 1999) p741. 40

Using the work of Sarat and Scheingold, one could understand this spectrum as designating the degree of interaction with the state (or international institutions).14 Those tactics on the left of the spectrum have more interaction with state institutions; those on the right have less. As suggested by Scoble and Wiseberg,15 one could also understand this spectrum as describing those who use “tree-topping” (tactics addressing elites and the state) on the left, to those who use “ground-levelling” (tactics addressing the population at large) on the right. The decision a DNGO makes from among the tactics in this spectrum also indicates where it believes the decision-making power lies for the issues it campaigns on. If it chooses tactics on the left of the spectrum, it believes that state actors are the primary decision-makers. If it chooses tactics on the right, it believes that other actors are primary decision-makers or have decisive influence on primary decision-makers. Almost all the literature on NGO tactics concerns INGOs, and in line with their focus, generally only elaborates tactics on the left of the spectrum. 16 Tactics in the centre or right of the spectrum, which are often used by DNGOs,

14 A.Sarat & S.A.Scheingold “State Transformation, Globalisation and the Possibilities of Cause Lawyering” in A.Sarat & S.Scheingold Cause Lawyering and the State in a Global Era (Oxford University Press, New York, 2001) p383. 15 H.M. Scoble & L.Wiseberg “Human Rights NGOs: Towards a Comparative Analysis” (1976) 9(4) Human Rights Journal 611 at 622. 16 For eg J.J.Shestack “Sisyphus Endures: The International Human Rights NGO” (1978) 24 New York Law School Law Review 89 and C.E.Welch Jnr (ed) NGOs and Human Rights: Promise and Performance (University of Pennsylvania Press, Philadelphia, 2001) pp1-18. This appears to be because of the different dynamics of mobilising international as opposed to domestic law. This difference was discussed in Chapter One above. 41

have in general been considered from the point of view of political science. As will be seen below, this distinction makes less sense once it is seen how actual DNGOs seamlessly combine both 'legal' and 'political' tactics.17 There is also much discussion in the literature on how to combine second order tactics. In the literature of the Ford Foundation, which funds many DNGOs in the United States, there is much discussion about a 'holistic' approach to tactics. This approach is described as one that moves away from reliance on litigation in favour of seeing it as a last resort.18 In a more sophisticated analysis of how DNGOs can and should conduct second order tactics, Wasby19 argues that DNGOs should adopt what he calls an ‘integrated’ tactical stance. In his discussion of lobbying and litigation by American DNGOs Wasby notes that many DNGOs combine multiple second order tactics and he speculates that they may already have confidential plans for coordinating these tactics. He then argues that even if DNGOs do not have such plans, they should, because his analysis suggests that such tactical coordination would be more effective than the uncoordinated tactics many of them currently use.20 The idea of a planned combination of tactics is also integral to the concept of the Comprehensive Tactical Stance outlined below. The second order tactical stances in the spectrum above usually exist in typical combinations. In interpreting these combinations, it is useful to outline what Max Weber called ‘ideal types’21 for human rights DNGO second order tactical stances.22 An ideal type, according to Weber, is a model that does not correspond exactly to any example in the real world, but helps to explain such cases. They accentuate the features of real cases, so as to pinpoint their

17 This combination of the legal and the political is also is in line with Silverstein’s thesis, described in Chapter One, of the “law-infused” nature of society. 18 See H.Herschkoff & D.Hollander “Rights Into Action: Public Interest Litigation in the United States” in M.McClymont & S.Gould (eds) Many Roads To Justice: The Law Related Work of Ford Foundation Grantees Around the World (Ford Foundation, New York, 2000) p89 at 90. 19 S.L.Wasby “Litigation and Lobbying as Complementary Strategies for Civil Rights” in B.Grofman Legacies of the 1964 Civil Rights Act (University of Virginia Press, Charlottesville (Va), 2000) p65 at 68. 20 Ibid p76. 21 A.Giddens Sociology (Polity Press, Cambridge, 1997) p287. 22 This is similar to Rodley's typologies for INGOs – N.S.Rodley “The Work of Non-Governmental Organisations in the World-Wide Promotion and Protection of Human Rights” (1991) 90/1 United Nations Bulletin of Human Rights 84 at 85. 42

essential characteristics and thus aid analysis.23 Some ideal types which help to understand the case studies in this work are: Tactical Approach A focuses on litigation, with occasional forays into lobbying when litigation dictates. Tactical Approach B consists of a near equal combination of lobbying and litigation. Tactical Approach C focuses on lobbying with occasional litigation. Tactical Approach D focuses solely on lobbying. Tactical Approach E consists of lobbying combined with publicity work. Tactical Approach F consists of a near equal combination of direct action and publicity/campaigning work. III. Third Order Tactics As stated above, third order tactics are the decisions taken as to how to carry out second order tactics. It is beyond the scope of this work to elaborate all of the third order tactics for each of the second order tactics, but to aid understanding some of the major third order tactics that are used by some of the case studies are set out below. Litigation can be conducted either as a defensive or offensive tactic.24 It can be used defensively to protect those defending human rights from having their rights violated, or it can be used offensively to challenge situations where patterns of human rights violations occur in society generally. For offensive litigation, it is important to clearly state the differences between the test case approach and the use of impact litigation. The Test Case Approach The test case approach is the main third order tactic for litigation used by DNGOs in Britain. It is used by British organisations such as Liberty, MIND and

23 As Weber himself put it: “ Such constructions make it possible to determine the typological locus of a historical phenomenon. They enable us to see if, in particular traits or their total character, the phenomena approximate one of our constructions: to determine the degree of approximation of the historical phenomena to the theoretically constructed historical type. To this extent, the construction is merely a technical aid which facilitates a more lucid arrangement and terminology”: M.Weber “Religious Rejections of the World and Their Directions” in H.B. Gerth & C.Wright Mills From Max Weber – Essays in Sociology (Oxford University Press, New York, 1958) p324. For an example of legal usage of this approach see A. Cassese International Criminal Law (Oxford University Press, Oxford, 2003) p366. 24 S.Wasby Race Relations Litigation in an Age of Complexity (University of Virginia Press, Charlottesville (Va), 1995) p155. 43

the Joint Council for the Welfare of Immigrants (JCWI).25 Because British governments have used their legislative power to cancel gains made from successful litigation in British courts, test case litigation in Britain has generally been in the European Court of Human Rights. 26 The emphasis of the test case approach is not purely legal,27 but rather combines both legal and media skills.28 In fact, British DNGOs tend to see the ultimate justification of test cases not as being victory in court but rather the political and press attention they attract.29 They thus often mobilise the law in order to mobilise through the law. Generally, DNGO lawyers identify a problem which has the potential to become the subject of a test case in the course of day-to-day casework. They then identify a prospective remedy for the problem they have detected.30 Next, they consider whether the legal rule concerned can be challenged under the European Convention on Human Rights. If it can, they then consider which case or cases from those they know would be the strongest on the facts, and whether they should pursue one or more cases.31 British DNGOs using this tactic generally follow one of two approaches. First, they might support individuals who wish to bring applications. These individuals are usually located through casework, letters, phone calls or referrals from other organisations.32 Second, they might engage in third party interventions in cases that are already under way in the courts. The difficulty with the test case approach is that to be effective DNGOs need to be involved in casework. This is necessary in order to have enough throughput of cases to obtain the small number of significant cases that could

25 See R.Smith “How Good Are Test Cases?” in J.Cooper & R.Dhavan Public Interest Law (Basil Blackwell, Oxford, 1986) p271 26 Ibid at p282. Now that the Human Rights Act 1998(UK) is in force there seems no such reason to prevent the test case tactic being used in domestic courts. 27 B.Cohen & M.Stanton “In Pursuit of a Legal Strategy: The National Council for Civil Liberties” in Cooper & Dhavan Op cit p286 at 305. 28 Ibid p 293. 29 Cooper & Dharvan Op cit p 282. This is not to say that when going to the European Court of Human Rights British DNGOs do not value precedent obtained. Rather, the culture of using this tactic tends to focus on the use of cases for publicity rather than the obtaining of precedent. 30 S.Grosz & S.Hutton “Using the European Convention on Human Rights” in Cooper & Dhavan Op cit p138 at 146. 31 Ibid. 32 Cohen & Staunton Op cit p299. 44

be the subject of a test case.33 This means, however, that to a large degree specialisation of DNGO lawyers in test cases is not possible. Impact Litigation Impact litigation is the main third order tactic for litigation used by American DNGOs such as LDF, the NAACP and the ACLU.34 This tactic seeks to use a sequence of individual cases to develop legal principles that are more effective against human rights violations in particular areas.35 The key to impact litigation is control: litigators try to control the development and sequence of cases in a targeted court, to produce cases involving the issues they want decided at the desired time and place.36 The desired cases are sometimes 'found' by networks of cooperating lawyers or branches,37 sometimes they look for already initiated cases,38 and sometimes they employ intermediaries as 'case finders'.39 Litigators then attempt through a series of cases to undermine adverse precedent and build up supporting precedent by consistently framing their cases in ways that are acceptable to the targeted court. Impact litigation thus differs from test case litigation in that it extends over a series of cases; it requires its litigators to develop expert legal skills but not media skills; it actively subordinates the dictates of individual cases to an overall goal of achieving a precedent on a particular issue and in that it involves a close monitoring of the court concerned to determine the attitudes of the judges and to control the content and sequence of cases that arrive there on particular issues. The strength of impact litigation is that it allows DNGOs in certain circumstances to determine some of the agenda of the relevant court concerned,40 so that it focuses on the weakest and least resourced of those suffering human rights violations. In the opinion of the author, the disadvantage

33 Smith Op cit p271. 34 Wasby “Race Relations..” Op cit p46. So much so that it is seen as ‘traditional’ in that jurisdiction. 35 A.Porter “Norris, Schmidt, Green, Harris, Higginbotham and Associates: The Sociological Import of Philadelphia Cause Lawyers” in A.Sarat & S.Scheingold Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press, New York, 1998) p153 at 184. 36 S.L.Wasby “How Planned is “Planned Litigation”?”(1984) 83 American Bar Foundation Research Journal 85 at 88. 37 Ibid p121. 38 Ibid p126. 39 Wasby “Race Relations..” Op cit p201. 40 On court agenda setting by litigation DNGOs see C.R.Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, Chicago, 1998) p27. 45

of impact litigation is that the requirements of planning, specialist staff lawyers and the focus on one court can create rigidity and inertia.41 Furthermore, such plans are difficult to execute given fluid environments, and can end up as devices for 'selling' an organisation to funders and supporters.42 Responsive Litigation Another third order tactic for litigation is the 'radical' or responsive tradition of 'people’s lawyers' in America. The main tenets of this tradition are: firstly, using courts as a platform to air political grievances about human rights violations; secondly, seeing human rights as identical to progressive politics; thirdly, developing a non-hierarchical relationship with clients which differs from that of mainstream lawyers43 and lastly, being responsive to clients suffering human rights violations.44 In this approach, lawyers obtain their cases from working in tandem with progressive political movements on human rights issues. More like the British test case approach, this approach seeks to mobilise the law so as to be able to mobilise through the law. Advocacy Networks and the Boomerang Effect A number of third order tactics are worth highlighting with regard to networking, especially in the international sphere. Firstly, the concept of an “advocacy network” is useful for explaining how DNGOs operate both internationally and domestically.45 The ability of these networks to reframe national and international debates by changing their terms, their sites and their participants through the acquisition and use of information is central to the tactics of many DNGOs.46 Also worth mentioning is the “boomerang” tactic whereby DNGOs, alone or in coalition with INGOs, bypass domestic institutions and directly access

41 Because the DNGO would then not be able to shift third order tactics to go to another court, or because the DNGO could not then shift second order tactics to favour another tactic on the spectrum set out above. There is no reason, for example, why impact litigation could not be used in international courts, or why a DNGO could not shift to lobbying nationally and litigating internationally if domestic courts became unreceptive. 42 Wasby “How Planned..” Op cit p85 at 85. 43 S.Scheingold “The Struggle to Politicise Legal Practice: A Case Study of Left-Activist Lawyering in Seattle” in Sarat & Scheingold Op cit p119 at 128. 44 Wasby “Race Relations” Op cit p161. 45 Keck & Sikkink Op cit p9. 46 Ibid px. 46

international allies to bring pressure on a state from the outside.47 The “boomerang” tactic is the usual approach of advocacy networks. As Risse, Ropp and Sikkink have argued, when this tactic is used there is generally a sequence of interaction between the state and international society, which continues until the state is socialised48 into complying with human rights norms.49 Some of the primary third order tactical differences between INGOs and DNGOs arise because DNGOs can collect detailed local information from better local networks. DNGOs then often use that information to activate international networks and begin the socialisation process discussed above.50 This “boomerang” tactic is thus a vital tool for DNGOs that pursue goals internationally. Civil Disobedience and Non-Violent Direct Action Civil disobedience, as a method of carrying out the second order tactic of political protest, is defined in this work as any act or process of public defiance of the law or policy enforced by established authorities insofar as the action is premeditated, understood by the actor(s) to be illegal or of contested illegality, carried out for limited public ends, and by way of carefully limited means.51 These limited means generally exclude violence. Overlapping with this is Non-Violent Direct Action (or NVA), which will be defined here as any action where individuals or groups, without violence to any person, attempt to bring about change directly themselves, rather than asking or expecting others to act

47 I.Risse,S.C.Ropp & K.Sikkink The Power of Human Rights: International Law and Domestic Change (Cambridge University Press, Cambridge, 1999) p18. 48 On the socialisation of states into compliance with international law see also – M. Finnemore “International Organisations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organisation and Science Policy” (1993) 47(4) International Organisation 565 and J.G. Ikenberry & C.A.Kaplan “Socialisation and Hegemonic Power” (1990) 44(3) International Organisation 283. 49 Risse, Ropp & Sikkink Op cit p20. 50 In this respect commentators have remarked on the crucial necessity of DNGOs feeding INGOs with information for international human rights mechanisms to function efficiently – R.Brett “The Contribution of NGOs to the Monitoring and Protection of Human Rights in Europe: An Analysis of the Role and Access of NGOs to the Intergovernmental Organisations” in A.Bloed,L.Leicht, M.Nowak & A.Rosas Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms (Martinus Nijhoff, Dordrecht, 1993) p121 at 121 and M.Posner “Human Rights and Non-Governmental Organisations on the Eve of the Next Century” (1997) 66 Fordham Law Review 627 at 630. 51 C.Bay & C.C.Walker Civil Disobedience:Theory and Practice (Black Rose Books, Montreal, 1975) p15. See also H.A.Freeman et al Civil Disobedience (Centre for the Study of Democratic Institutions, Santa Barbara (CA), 1966). 47

on their behalf.52 These tactics are quite distinct from violent demonstrations or riots, and require a DNGO to have a capacity to plan. Because they are often associated with radical politics, these tactics are often seen as less legitimate than other tactics on the spectrum above. DNGOs, however, have the potential to execute such tactics through their local networks and sometimes do so. B. The Comprehensive Tactical Stance Weissbrodt wrote in 1977 that one of the questions that needed to be asked about an NGO was how it should select its cases.53 In terms of the schema set out above, this question might be rephrased to ask how a DNGO chooses the most effective first, second and third order tactics. A useful way of assessing this, and of ordering information on tactics, is to develop a model tactical stance with which to compare the data. Similarly to Wasby's 'integrated' tactical stance, this work extrapolates inductively from data gathered from the case studies and other DNGOs in the literature to come to this model tactical stance. Like an 'ideal type', this model accentuates certain features of the process of selection of tactics in the data to pinpoint its essential characteristics. Unlike a pure Weberian ‘ideal type’, however, it is used not only as a heuristic device to interpret the data, but also as an ideal in the literal sense of being an embodiment of good DNGO practice that can be used to critically assess decisions that DNGOs make about tactics. This model is intended as a more targeted tool for the critical understanding of human rights DNGOs than the more general models for all types of organisations that might be used in disciplines such as political science. It is not intended to foreshadow or substitute for the assessment of case study effectiveness using the data undertaken in Chapter V of this work. The model tactical stance in this chapter will be designated the Comprehensive Tactical Stance (CTS). Because of their pre-eminent importance in achieving effectiveness the CTS aims to examine the rationality of a case study’s tactics in responding to the environment. It thus does not take account of a DNGO’s resource limitations, problems it has in modifying its

52 H.Clark et al Preparing for Non-Violent Direct Action (Campaign for Nuclear Disarmament, London, 1984) p8. See also V.Coover et al Resource Manual for a Living Revolution (New Society Publishers, Baltimore, 1985) p17. 53 D.Weissbrodt “The Role of Non-Government Organisations in the Implementation of Human Rights” (1977) 12 Texas International Law Journal 293 at 319. 48

internal structure or culture, or its need for legitimacy. In the real world, each of these will have some influence on tactics. In particular, a DNGO in the real world must balance the solutions advocated by the model with the amount of legitimacy it might lose if it rationally adapted to its environment. The model thus only examines part of what a DNGO needs to do to be effective overall; although the author believes that the part it examines is the most decisive in aiding understanding of how DNGOs function. In the CTS, setting the mandate as a first order tactic would not just be about presenting a good image to potential supporters. It would be based on a ‘needs analysis’ of the human rights violations occurring in the DNGO’s environment. This needs analysis would include a discussion of which violations are the most severe and require urgent intervention.54 The DNGO would then act on this analysis and address the most severe violations within its mandate. For second order tactics, the CTS would require that a DNGO retain a capacity to switch between different tactics on the above spectrum in response to changes in opportunities in the environment. It would also require that the DNGO develop principles or a rational plan to determine when different tactics are to be used, and whether they are to be used simultaneously or in specific sequences, in order to achieve the best effect.55 A response to the environment is deemed in this work to be rational when it involves this type of planning.56 The advantage of the CTS's second order tactics is that using them would make it difficult for any government or institution to undermine a DNGO’s work. Using the CTS, DNGOs could adapt to changes caused by government action aimed at undermining their work by changing tactics to prevent it being successful. When government action makes one tactic less effective, the CTS advocates that a DNGO switch to other tactics that might potentially be more

54 This would be somewhat like a triage situation in medicine, where decisions have to be made as to which patients need to be helped first. Granted that different human rights violations are difficult to compare, nevertheless some basis for decision would have to be found. 55 An NGO following the CTS should thus not fall into the trap of not self-evaluating, noticed by Wiseberg and Scoble in their writings on the International League for Human Rights – L.S.Wiseberg & H.M. Scoble “The International League for Human Rights: The Strategy of a Human Rights NGO” (1977) 7 Georgia Journal of International and Comparative Law 289 at 310. 56 Such a plan could be informal rather than formal, as long as it is used in practice. 49

effective. Under the CTS, DNGOs thus plan and rationally respond to changes in opportunities in their environments. 57 There are significant complications in following the CTS's injunction to change tactics to suit the environment. A loss of legitimacy could result from certain combinations of tactics. A DNGO's litigation, for example, could lose legitimacy if the DNGO also engaged in civil disobedience. Using the CTS to understand good DNGO practice can thus can be undermined by detrimental effects on factors that are not included within it. As a result, a close eye has been kept on these factors external to the CTS when it has been used below. C. The Case Studies - What follows are outlines and analyses of the tactical stances of the case studies. For each case study there is an identification of its first, second and third order tactics. Under each heading there is a discussion of the tactics used, from the most important to the least important. The focus is on the first and second order tactics, because of the outline of third order tactics already given above. Lastly, there is a discussion of the types of networks in which the case study participates, and the degree of planning that it undertakes. The American Case Studies - I. LDF58 - First Order Tactics LDF's first order tactical stance has a dual focus on racial discrimination as a human rights violation and the protection of the African-American community.59 LDF has a strictly defined mandate and has successfully resisted mandate creep. Dominant Second and Third Order Tactics As mentioned above, LDF’s most important second order tactic has been litigation, and the third order tactic for executing its litigation has been impact litigation. LDF has thus identified the Supreme Court as the decision-

57 It is true, as Wildavsky remarks, that planning can have more of a psychological or promotional effect than a real effect in improving performance. The aim in the CTS would not, however, be to have a ‘plan’ as a goal in itself, but to develop good judgement on how to combine tactics – see D.Kellaher & K.McLaren Grabbing the Tiger by the Tail: NGOs Learning for Social Change (Canadian Council for International Cooperation, Ottawa, 1996) p61. 58 The NAACP Legal Defence and Education Fund Inc of New York – see Chapter One. 59 LDF formally protects all minorities in the US, but most of its efforts are directed at protecting African-Americans. 50

maker that it wishes to target and that can make the changes it desires. It is thus an almost pure example of Tactical Approach A. LDF was the creator of impact litigation in the 1930s and 1940s.60 In recent times, it has been put on the defensive in the use of this tactic by a mostly hostile federal judiciary and the proliferation of Public Interest Law organisations that oppose domestic human rights.61 This has undermined its use of impact litigation, as this requires both that it control court dockets, and that it prevent the creation of adverse precedent. Organisations using impact litigation to oppose LDF’s agenda, and other domestic human rights organisations with similar agendas, have both made each of these tasks less manageable. LDF’s view of its own tactics is that its famous victory in Brown v Board of Education,62 and those that followed, resulted from a unique conjunction of circumstances and do not show the general efficacy of litigation.63 This attitude has made LDF litigate less than in the past. Paradoxically, despite litigating less, its primary focus is still on litigation and on waiting for better litigating conditions in the federal courts. Its fundamental presumption appears to be that litigating conditions there will improve.64 Any assessment of LDF's tactical stance thus depends on an assessment of the credibility of this presumption. It may be, however, that LDF has had little choice in the short term but to adopt such a stance as it does not yet have the requisite resources or expertise to switch to other second order tactics.65 LDF has a specific 'style' of conducting impact litigation that distinguishes it from other civil rights organisations. It not only files amicus curiae briefs, but also begins cases in the lower courts to take to higher courts. Rather than seeing these two tactics as inconsistent,66 it sees them as mutually reinforcing.

60 J.Greenberg Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (Basic Books, New York, 1994) p5. 61 Such as the Rocky Mountain Legal Foundation which has been litigating against affirmative action in government contracts – Questionnaire Answered by LDF 2001(original in possession of the author). 62 347 US 483 (1954). 63 LDF Interview Op cit. In addition, Tushnet's view is that the Warren Court that is associated with Brown was an historical aberration - see "Preface" in M.Tushnet (ed) The Warren Court in Historical and Political Perspective (University Press of Virginia, Charlottesville and London, 1993) pix. 64 The author does not find such an assumption highly credible. 65 It is not clear to the author that it would not be possible for LDF to acquire such resources and expertise though. 66 LDF Interview Op cit 51

It uses amicus briefs to maintain presence in the courts that its impact litigation targets. If an issue that LDF wants addressed is already before the court, it usually files amicus briefs to try to have the matter resolved in the way it prefers. If there is an issue that LDF believes should be before the court but is not, it often finds a case to use as a vehicle to raise the issue and have it litigated.67 LDF has an informal and open process of case selection, under which any of its staff lawyers can bring forward ideas for approval by the organisation.68 The reason for this appears to be a commitment to fostering the creativity of its lawyers, and an emphasis on only taking on cases for which its lawyers already have the necessary expertise. For LDF, resources thus often determine tactical decisions. In terms of subject matter, LDF still litigates in its traditional area of affirmative action in education.69 It also still pursues traditional desegregation cases in the lower schools,70 and conducts litigation in housing matters71 and employment discrimination72. Racial discrimination has also, however, recently been challenged in new spheres such as in transportation,73 access to health care and environmental protection.74 The main new areas that have evolved since the 1970s have been the increased emphasis on the voting rights of minorities,75 and, as a result of law and order and anti-drug campaigns, areas of criminal justice.76 LDF’s litigation thus largely follows the pattern outlined in the work of Bartholomew and Hunt discussed in Chapter One. Through its cases it attempts to challenge the privileged interpretations of Civil Rights Law with more

67 Ibid. 68 Often described as a laissez-faire approach – Ibid. 69 LDF 1999 Annual Report Op cit p10. See Gratz v Bollinger 122 FSupp2d 811 (2000); Wooden v Board of Regents of the University System of Georgia 32 FSupp2d 1370, 1380 (1999) and Hopwood v Texas 84 F3d 720 (1996). 70 For example, consent decree finally reached in Lee v Macon County Board of Education 589 US 25 (1967) and further litigation to implement Sheff v O’Neill 238 Conn 1, 678 A2d 1267 (1996). 71 Eg Alexander v Riga 208 F3d 419(2000) and Central Alabama Fair Housing Center Inc v Lowder Realty Co 236 F3d 629 (2000). 72 Eg Bull v AVX Corp 112 F3d 508 (1997) and Patterson v Newspaper & Mail Deliverers’ Union 820 FSupp 796 (1993) – this is one of the many stages of the case, which has been running since 1973. 73 LDF 1999 Annual Report Op cit p18. 74 Eg Tolbert v Ohio Department of Transportation 172 F3d 934 (1999). 75 Eg Shaw v Reno 113 SCt 2816, 125 Led2d 511 (1993) and Cromartie v Hunt 133 FSupp2d 407 (2000). 52

marginalised interpretations arising predominantly from the African-American community. It refashions standard meanings attached to law within the courts as arenas of struggle. In this way, it attempts to universalise and legitimise the human rights interests of the African-American community, and thereby effect a redistribution of power in its favour. The effect of a largely hostile judiciary has been to change the courts as arenas of struggle so that the power relations there favour LDF less. Supplementary Second Order Tactics LDF carries out tactics supplemental to litigation mainly in its Washington DC office.77 This office does most of its lobbying; advises members of Congress on domestic human rights legislation; does policy work;78 pressures federal administrative agencies to enforce domestic human rights laws;79 monitors judicial and administrative appointments80 and does publicity work.81 LDF has also hired a public relations firm to do its publicity, even though it possesses an in-house communications department.82 Networks With Other Organisations LDF is a member of a number of permanent and ad hoc networks. With regard to lobbying, LDF, like most major American DNGOs, is a member of the permanent advocacy network called the Leadership Conference on Civil Rights (LCCR).83 It also has permanent relations with foreign DNGOs such as the Legal Resources Centre and the Black Lawyers Organisation in South Africa, the Roma Rights Centre in Hungary and Afro-Brazilian groups in Brazil. These links exist mainly because LDF helped establish these organisations.84 In conjunction with the Open Society Institute, LDF helped create the Criminal Justice Alliance, a new advocacy group created to set a human rights agenda for criminal justice in the US.85 It is also a member of Advocates for

76 Eg amicus brief in Illinois v Wardlow 528 US 119; 145 Led 2d 570. 77 See internet site http://www.naacpldf.org as accessed on March 19th, 2003. 78 Ibid. LDF Questionnaire Op cit p8. 79 Ibid. 80 Ibid. 81 Ibid. LDF Questionnaire Op cit p8. 82 LDF Interview Op cit. 83 Based in Washington DC and founded in 1950 – see http://www.civilrights.org as accessed on March 19th, 2003. 84 LDF Interview Op cit. 85 NAACP Legal Defence and Education Fund Inc 2000 Annual Report p17. 53

Consumer Justice, an organisation working on practices such as predatory lending and consumer fraud.86 For litigation, the primary permanent network is the Civil Rights Bar, which informally facilitates information flow between most domestic human rights lawyers in America and allows informal cooperation between DNGOs.87 LDF also facilitates networking between domestic human rights lawyers through its conferences at Airlie House in Virginia.88 Besides its permanent networks, LDF is also a member of a number of ad hoc networks. These ad hoc connections include contacts with DNGOs such as the Mexican American Legal Defence and Education Fund (MALDEF), the Asian American Legal Defence Fund (AALDF) and the National Organisation of Women Legal Defence Fund (NOWLDF). 89 Links with these organisations tend to wax and wane according to the demands of the moment. In addition, LDF also has ad hoc arrangements with INGOs,90 such as Human Rights Watch (HRW); the Lawyers’ Committee for Human Rights (LCHR) and Amnesty International (AI). These international links have led LDF to attend some international human rights gatherings such as the 2001 World Conference on Racism in Durban, South Africa.91 With LCHR it has also attended some of the periodic reviews of America’s adherence to CERD before the United Nations CERD Committee. Lastly, with HRW it has worked on the impact on human rights standards of the terrorist attack on New York on September 11th, 2001 and on immigration matters, while with AI it has worked on capital punishment cases.92 This de facto international work may signal that organisational practice is overtaking LDF's stated scepticism about the use of international institutions. The small volume of this work, however, suggests that it is still marginal to LDF’s overall tactical orientation. It also suggests that, while LDF is being affected by Globalisation, it is not consciously adjusting its tactics to its new environment.

86 Ibid p18. 87 Wasby “Race Relations…”Op cit p72. 88 Ibid p74. 89 Ibid. 90 LDF Questionnaire Op cit p14. 91 LDF Interview Op cit. 92 Ibid. 54

Planning LDF does a lot of planning, not only for impact litigation, but also to coordinate its subsidiary tactics.93 It plans how to tactically combine its litigation, lobbying and media work to achieve maximum effect.94 It seems, however, that the small amount of advocacy work done outside of litigation makes such planning relatively straightforward. LDF also plans how litigation, lobbying and media work should be carried out individually.95 Interestingly, however, it does not plan how to combine its domestic litigation, lobbying and media work with its international work.96 This seems to stem from its scepticism about the utility of international law and the small volume of international work it does. LDF's plans tend not so much to be formal documents, but rather informal results of staff discussions. They also appear to vary widely in execution as unexpected events occur.97 To review its plans and suggest how they could be improved LDF hires outside consultants. Some of these consultants, however, seem to be closely connected to LDF, and this may cast some doubt on their objectivity.98 Conclusion In conclusion, LDF’s first order tactics seem to have successfully combined the defence of racial anti-discrimination with protection of the African- American community's human rights. LDF’s second order tactics favour litigation in domestic courts. This work shows an equal interest in the use of amicus curiae briefs and direct litigation. Other second order tactics are highly marginalised. In terms of the CTS, LDF deviates from it in favouring legitimacy over rational adaptation to the environment, while it seems to follow the CTS more closely in the comprehensive planning it undertakes. Arguably, the most prominent opportunities in LDF’s environment, if one looks at contemporary events in the US from the point of view of the CTS, are not in the federal courts, which have become more resistant, but in tactics such as lobbying, policy work

93 This is not too difficult for LDF, as tactics besides litigation are so peripheral in its work. 94 LDF Questionnaire Op cit p9. 95 Ibid. 96 Ibid p10. 97 See Wasby “How Planned…” Op cit p88. 55

and international work. The CTS thus throws doubt on the correctness of LDF’s assessment that the Supreme Court is the most rational part of the environment to target to achieve the goals in its mandate.99 To the author, from the point of view of the CTS Congress seems at least as attractive a target as the Courts. LDF's reasons for not pursuing alternate routes to litigation seem unconvincing to the author. They appear to be based on an unspoken assessment that LDF would suffer a large loss of legitimacy and resources if it followed these paths. To the author this view seems exaggerated, and to have been used to avoid confronting the problem of balancing legitimacy and adaptation to the environment. As a result, LDF's level of success seems well below the level that might exist. II. LCCRUL100 - First Order Tactics LCCRUL’s first order tactics, as at LDF, involve a dual focus on racial anti-discrimination and the human rights of the African-American community. Dominant Second and Third Order Tactics LCCRUL’s principal second order tactic is impact litigation. However, it has a different 'style' of conducting this litigation than LDF. LDF uses its network of cooperating lawyers, announcements asking for plaintiffs and “case finders” to obtain the plaintiffs it is looking for.101 In contrast, LCCRUL's plaintiffs are generally referred to the national office by its partner firms, by people contacting them, through local lawyers’ committees or by staff reading about an ongoing case in their research.102 Like LDF, LCCRUL plans cases in impact litigation, but the means it uses to implement such plans are different. In addition, unlike LDF, LCCRUL prefers to initiate its own cases rather than intervene in cases already underway through amicus curiae briefs.103

98 For example, in 1997 the LDF Board of Directors convened a task force headed by Roger Wilkins, chair of LDF’s Strategic Planning Committee and Board Vice-Chair, to review LDF’s legal programmes and priorities – 1999 LDF Annual Report Op cit p4. 99 The author believes that the US Supreme Court is still resistant to domestic human rights litigation despite recent pro-domestic human rights decisions such as Lawrence v Texas (2003) - see http://www.supremecourtus.gov/ as accessed on September 25th, 2003. 100 The Lawyers’ Committee for Civil Rights Under Law of Washington DC – see Chapter One. 101 Wasby “Race Relations…” Op cit pp200-201. 102 Interview with LCCRUL, Washington DC, Nov 2001 (notes in possession of the author). 103 Ibid. 56

In impact litigation as practiced by LCCRUL, once a plaintiff is found the process of case approval is a structured and written process, rather than the informal and open process as at LDF. The process requires levels of investigation and the production of a written memorandum to the Chief Counsel for approval.104 Once a case is approved, LCCRUL conducts the case with partner law firms. The case is not handed off to a partner law firm, rather the partner firm and LCCRUL act as co-partners, with LCCRUL supplying specialist legal expertise and advising the partner firm and the partner firm supplying trial lawyers and paying for the case.105 This is similar to LDF's relationship with individual cooperating lawyers. Compared to LDF, LCCRUL appears not to have taken as much heed of the current conservative approach of the US judiciary.106 Even though it faces the same problems as LDF in this respect, it still believes it can achieve successes through litigation.107 Paradoxically, LCCRUL thus appears to have a greater faith in the judiciary, despite a greater commitment to substituting other tactics for litigation. The reason for this appears to be the influence of the establishment law firms, for whom the courts have great prestige. In practice LCCRUL also appears to emphasise international work more than LDF.108 It seems, however, that the combining of litigation with monitoring administrative agency actions; participating in agency proceedings; analysing and drafting legislation; writing research reports and keeping client groups informed of their legal rights109 rather than international work has been the core of LCCRUL’s response to judicial resistance to domestic human rights. Most areas LCCRUL litigates in are the ‘traditional’ civil rights areas that LDF also litigates in. LCCRUL has opposed actions against electoral districts

104 Ibid. 105 Ibid. In 2001 32 new matters were handled by pro-bono law firms – see http://www.lawyerscomm.org as accessed on March 19th, 2003. 106 D.G.Savage Turning Right: The Making of the Rehnquist Supreme Court (John Wiley & Sons, New York, 1993) p477. See generally also T.E. Yarborough The Rehnquist Court and the Constitution (Oxford University Press, Oxford, 2000). 107 http://www.lawyerscomm.org as accessed Mar 19th, 2003. 108 It is true that LDF does go to international fora, but, as stated above, they resist expanding their work in this area on the basis of a negative assessment of both the prospects for success and the possession by LDF of the necessary resources. 109 Wasby “Race Relations…” Op cit p113. 57

designed to enhance African-American electoral participation110 and has extended the reach of the Voting Rights Act.111 It has litigated against racial discrimination in employment112; sex discrimination in hiring practices113; the dumping of toxic waste in poor African-American areas114 and against air pollution levels in these areas.115 In the area of housing and community development, it has concentrated on racial desegregation of housing116 and has also been running racial desegregation actions on other topics.117 Several important affirmative action actions have also recently been successful in which LCCRUL, unusually, lodged amicus curiae briefs as an alternative to running the cases itself.118 Supplementary Second Order Tactics In addition to litigation, LCCRUL also engages in lobbying, working with administrative agencies and policy work. In all of its work, LCCRUL’s national headquarters coordinates the pro-bono work of approximately one hundred and eighty of America’s largest law firms. LCCRUL also organises conferences in the US and has participated in the 2001 World Conference on Racism in Durban, South Africa and the pre-Durban conference in Washington DC.119 In addition, it publishes newsletters and reports and writes newspaper and journal articles.120 LCCRUL does lobbying and policy work similarly to the way it conducts impact litigation. As in its litigation, it first identifies its priorities, and then asks the partner firms for help with tasks such as research or publicity.121 This work involves not only, as in 2001, writing policy recommendations in ‘transition

110 See eg Sanders v Dooley County, Georgia 245 F3d 1289 (2001) and Sinkfield v Kelley 531 US 28; 148 Led 2d 329 (2000). 111 See eg Clark v Roemer 500 US 646; 114 Led 2d 691 (1991). 112 Eg Pigford v Glickman 206 F3d 212 (2000) – racial discrimination in the giving of loans. 113 Eg Pollard v EI.Du Pont de Nemours Company 532 US 843; 150 Led2d 62 (2001)- amicus brief. 114 Eg Washington Park Lead Committee,Inc v Environmental Protection Agency Civil Action No 298- CV-421 (1998.) 115 Eg Commonwealth of Virginia v Browner 80 F3d 869 (1996). 116 Eg Sanders v United States Department of Housing and Urban Development 872 FSupp 216 (1994). 117 Eg the final settlement of Hoots v Pennsylvania 587 F2d 1340 (1978). 118 Eg Adarand Constructors, Inc v Norman.Y.Mineta 533 US 947;150 Led 2d 748 (2001) and Page et al v Bartels et al 548 F3d 175 (2001). This is despite LCCRUL’s preference to be parties to cases. 119 See http://www.lawyerscom.org as accessed on March 20th, 2003. 120 Ibid. 121 LCCRUL Interview Op cit. 58

papers’ for the new Bush administration,122 but also meeting with officials, monitoring the Justice Department123 and monitoring the nominations and confirmations of various officials.124 In its lobbying work, LCCRUL prefers, when any sympathy is present, to focus on the President rather than Congress.125 It had amicable relations with the Clinton administration, which was sympathetic, even if not much legislation was delivered.126 Support from the Clinton Justice Department, in court and elsewhere, appears to have been an important resource for LCCRUL. However, it has a less cordial relationship with the current Bush administration, and has turned more to Congress.127 Here it works not only with Democrats, but also with moderate Republicans, in lobbying for domestic human rights.128 Networks With Other Organisations LCCRUL is a member of a number of permanent advocacy networks. Like LDF, it is a member of the Leadership Conference on Civil Rights.129 It also helped found Americans for a Fair Chance (AFC), which is a consortium of domestic human rights groups whose aim is to change public perceptions so they are more favourable to affirmative action.130 In addition, from time to time it works within a plethora of ad hoc networks with other DNGOs on various issues.131 LCCRUL has no substantial permanent contacts with human rights INGOs, although some ad hoc contacts occur.132 Planning LCCRUL has a strong commitment to tactics outside of litigation, such as lobbying. Although not greater in amount than at LDF, lobbying at LCCRUL

122 These were on voting rights, legal services, education, employment discrimination, capital punishment and environmental justice – see http://www.lawyerscomm.org as accessed on March 20th, 2003. 123 LCCRUL Interview Op cit. 124 Ibid. 125 Ibid. 126 Ibid. 127 Ibid. 128 Ibid. This is the classic civil rights lobbying tactic – for example see D.L.Watson Lion in the Lobby: Clarence Mitchell Jnr’s Struggle for the Passage of Civil Rights Laws (William Morrow & Co, New York, 1990) p550. 129 Ibid. 130 Lawyers’ Committee for Civil Rights Annual Report 1995-1996 (the last annual report issued at the time of interview) p5. 131 Questionnaire Completed by LCCRUL, 2001 (original in possession of the author) p11. 132 Ibid. 59

is much more important, because it is often integrated with litigation according to a plan.133 This plan usually coordinates other types of work with litigation sequentially. The sequence calls for beginning work on an issue through research and policy papers, and then moving to lobbying. It uses research, policy papers and lobbying in this sequence as responses of first resort and leaves litigation as an option of last resort.134 The sequence is used not only to avoid litigation, but also because LCCRUL believes that these other tactics can be more successful in their own right. It employs what Mnookin and Kornhauser call “bargaining in the shadow of the law”135 to use the law to strengthen its bargaining position. For the same reason of preventing litigation, sometimes LCCRUL will give communities information on their rights so that the community can be its own advocate.136 Because it does this type of work, it sees itself as a ground levelling and not a tree topping organisation.137 As LCCRUL appears to be involved more in lobbying, research and policy papers than community education, however, this self-belief seems questionable. LCCRUL has formal overall strategic plans that are reviewed every five to ten years.138 Like LDF, it periodically hires outside consultants to review the strategic plan's effectiveness and advise as to whether it should be changed.139 It also has plans on how litigation, lobbying and policy work should be conducted individually.140 For litigation, as mentioned above this works in tandem with a formal and structured process of case approval that stands in sharp contrast to the laissez-faire approach of LDF.141 It appears that the reason that LCCRUL has this more structured process of case approval is both that it lays even greater stress than LDF on planning impact litigation, and because the elite law firms that are its partner firms also do such formal planning and its internal processes must have legitimacy with these firms. That

133 Ibid p8. 134 LCCRUL Interview Op cit. 135 See generally R.H.Mnookin & L.Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale Law Journal 951. 136 LCCRUL Interview Op cit. 137 Ibid. See discussion of ground levelling and tree topping earlier in this chapter. 138 Ibid. 139 Ibid. It is not clear how independent these outside consultants are as compared to those used by LDF. 140 LCCRUL Questionnaire Op cit p8. 141 LCCRUL Interview Op cit. 60

is, it appears that LCCRUL uses planning not only to improve effectiveness but also to 'sell' itself to its partner firms.

Conclusion In conclusion, LCCRUL has a successful first order tactic of dual concern for the African-American community and racial non-discrimination. As at LDF its primary second order tactic focuses on litigation in domestic courts, but it has a cultural commitment to other second order tactics. Also as at LDF, the CTS seems to show that LCCRUL’s assumption that the primary power to make the decisions it is concerned with lies with the Supreme Court is questionable. In practice, however, its greater focus on work with Congress and the Presidency appears to show that it recognises that power also lies elsewhere. The CTS thus suggests that LCCRUL is a little more rationally adapted to its environment than LDF. Lastly, as a third order tactic LCCRUL uses a distinctive style of impact litigation, and this style has flowed into and influenced the way it approaches third order decisions for other second order tactics such as lobbying. Despite the CTS's conclusion that LCCRUL is somewhat more rationally adapted to its environment than LDF, it still leans overwhelmingly towards legitimacy. As at LDF, it appears that LCCRUL not only experiences strident demands for legitimacy from the local culture but also, as will be discussed in the following chapters, has a rigid structure and narrow range of resources that further hamper its ability to achieve rational adaptation to its opportunity structure. With all of the above impediments to securing balance between legitimacy and rational adaptation, it is a testament to LCCRUL’s capacity for self-evaluation that it has achieved the level of balance that it has. It would appear, however, that still greater levels of performance are possible. III. CCR142 - First Order Tactics In contrast to both LDF and LCCRUL, CCR has, in terms of rights protected, a much wider first order tactical stance. CCR's mandate enforces both the Universal Declaration of Human Rights and the US Bill of Rights.143

142 The Centre for Constitutional Rights of New York – see Chapter One. 143 With the Universal Declaration predominating in case of a conflict between the two instruments – Interview with CCR, New York, Nov 2001(notes in possession of the author). 61

There is also a sense in which it protects the ‘progressive movement’ in the same way that LDF and LCCRUL protect the African-American community.144 Because of CCR's wider mandate, much more emphasis is placed on second order tactics than the mandate to determine which issues will be focused upon. Dominant Second and Third Order Tactics CCR's second order tactical stance is focused primarily on using domestic and international law in domestic courts, but also features a cultural commitment to community organising. Its second order tactics are to engage in litigation, lobbying, education and demonstrations/ direct action. It thus combines elements of tactical stance A with elements of tactical stances B and F in that it combines a focus on litigation with an emphasis on lobbying, publicity work and community organising. As with the other American case studies, CCR appears to see domestic courts as being where the power lies to influence the decisions it is concerned with. CCR’s third order tactical stance is a combination of impact litigation and responsive litigation.145 For its activist work, it employs demonstrations and civil disobedience as third order tactics.146 With regard to the primary second order tactic of litigation, CCR sees itself as being on the ‘cutting edge’ of innovative human rights litigation both domestically and internationally.147 This self perception has some basis as some of the leading cases in American legal history were initiated by CCR.148 Litigation conducted by CCR falls into five streams.149 The first stream, covering government misconduct and political rights, is similar to traditional American civil liberties litigation. It covers issues such as police and prison

144 Although the ‘progressive movement’ seems a much more amorphous and ill-defined group than say the African-American community, the CCR Executive Director writes that progressives do share a common view of the values and principles which should constitute the foundations of a new society in America – Centre for Constitutional Rights – Fall 2000 Docket p3. CCR originally arose to provide legal defence to grassroots organisations and political activists – Questionnaire Answered by CCR 2001 (original in possession of the author) p11. 145 For a discussion of this see above. 146 The ‘lobbying’ at CCR is carried out by Ron Daniels, the Executive Director, and seems limited in the same way as at LDF to cases being litigated – CCR Interview Op cit. 147 Centre for Constitutional Rights 1998 Fall Docket p7. In 1989 CCR had eight staff lawyers that carried 60 to 75 cases at any given time – E.A. Adams “Constitutional Rights Center: 13 Years of Unpopular Causes” (1989) June 23 201(120) New York Law Journal p1 at 7. 148 Including Roe v Wade 410 US 113; 35 LEd2d 147 (1973). 149 This section is based upon the CCR website as accessed on August 1st, 2002 and March 14th, 2003 – see http://www.ccr-ny.org. 62

misconduct;150 freedom of expression;151 immigrants’ rights152 and racial discrimination.153 The second stream covers social and economic justice, and includes diverse cases on privatisation;154 abortion;155 freedom of speech156 and poverty.157 The third stream covers US responses to the terrorist attack on September 11th, 2001. These cases include challenges to the indefinite detention of persons captured during US military action in Afghanistan;158 the indefinite detention of terrorist suspects in the US159 and the indefinite detention of persons detained at Guantanamo Bay, Cuba.160 The fourth stream covers corporate accountability for human rights violations. Cases in this stream mainly involve civil actions in US courts against multi-national companies based on violations of international criminal law.161 The fifth stream covers cases involving international human rights, and includes civil cases using international criminal law in US courts,162 as well as cases against the US in the Inter-American Commission of Human Rights.163 Thus,

150 Eg Daniels v City of New York 200 FRD 205 (2001) and Lamb v City of Decatur 947 FSupp 1261 (1996). Lamb involved police brutality during a strike, and shows CCR’s continuing connection to the American labour movement. 151 Eg Humanitarian Law Project v Reno 205 F3d 1130 (2000). 152 Eg Kiareldeen v Reno 92 FSupp 2d 403 (2000) and Reno v American-Arab Anti-Discrimination Committee 525 US 471; 142 LEd 2d 940 (1999). 153 Eg Islamic Society of Fire Department Personnel v City of New York OO CV3705 (2002) – US District Court for the Eastern District of New York. Note also the litigation of foreign policy issues by CCR – eg Campbell v Clinton 203 F3d 19 (2000). 154 Eg Arsberry et al v State of Illinois, AT&T, Invision Telecom, MCI Telecommunications Corp, et al 244 F3d 588 (2001). 155 Eg National Organisation of Women of New York v Terry 886 F2d 1339(1989). 156 Eg Free Speech v Reno 200 F3d 63 (1999). 157 Eg Walls v Giuliani (1995) as described in CCR Fall 2000 Docket Op cit p57. 158 Eg Khalid Al Odah et al v United States of America No 02-5251 US Court of Appeals DC Circuit, March 11th, 2003. 159 Yasar Esam Hamdi v Rumsfeld No02-7338 USCourt of Appeals, 4th Circuit. 160 See Request by the Inter-American Commission of Human Rights for Precautionary Measures, Letter of March 13, 2002. See http://www.ccr-ny.org as accessed on March 14th , 2003. 161 Eg Wiwa v Royal Dutch Pertroleum (case in early stages in the US District Court for the Southern District of New York) and Doe v Unocal 248 F3d 915(2001). 162 Eg Doe v Karadzic 866 FSupp 734 (1994). The cases in this stream proceed under the Alien Tort Claims Act Title 28,Part IV, Ch 85 s 1350 United States Code. These cases almost always concern human rights violations not carried out by the US government and not occurring within the US. 163 There have been three cases: Salus v United States Report No 31/93 and In the Matter of the Civilian Population of Cuba and Kirkpatrick and Poor Peoples’ Economic Human Rights Campaign v United States. See CCR 2000 Fall Docket Op cit p82 and CCR 1998 Fall Docket p 23. CCR also helped the prosecution of General Pinochet in Spain – one of its first cases in a foreign court. There are also further recent cases concerning incarceration of terrorists and suspected terrorists – see http://www.ccr-ny.org as accessed on March 10th, 2003. 63

even though a DNGO, CCR acts in some ways like an INGO in using international law in US courts and occasionally resorting to international fora. Rather than doing amicus curiae briefs, CCR generally provides legal representation for people to begin cases.164 This is consistent with the principles of responsive litigation, in that CCR litigates issues raised by clients, rather than using clients or amicus briefs to further its own plan. CCR's litigation is a combination of impact and responsive litigation. It uses impact litigation in the sense that it values the precedents it achieves through litigation as a resource for advocacy;165 in that it uses litigation as a political agenda setting tactic, and in that it will occasionally look for clients to litigate a particular issue.166 CCR also practices responsive litigation in that it believes cases should arise from the concerns of activists and movements and should not be driven by lawyers;167 in that it values ad hoc tactics so as to be open to respond to events such as September 11th;168 and in that it uses cases as platforms and organising tools for activist work. As at LDF and LCCRUL, CCR is aware that because the federal judiciary is generally resistant to domestic human rights arguments this endangers gains it makes through litigation.169 Its primary answer to this problem has been to try to influence Senate confirmation hearings of judicial appointments more strongly 170 and to use community organising. It has, however, also looked at other fora for litigation, such as the Inter-American Commission on Human Rights171 and the courts of other countries.172 Subsidiary Second Order Tactics CCR's non-litigating activities can mainly be divided into community organising and lobbying, with a strong organisational bias towards community organising. Interestingly, as with LCCRUL, despite the fact that the volume of

164 CCR Interview Op cit. 165 Ibid. 166 Ibid. 167 Ibid. 168 See http://www.ccr-ny.org. Note as an example how this website changed between August 2002 and March 20th 2003 to include a whole new stream of work responding to the events of September 11th, 2001. 169 Centre for Constitutional Rights Annual Report 2001 p7. 170 Ibid. 171 See below. 172 CCR Questionnaire Op cit p8. Such as the courts of Spain and Chile. This has also spurred CCR to do more community organising – Adams Op cit p7. 64

community organising that CCR does is actually much smaller than the volume of litigation,173 it has a strong cultural commitment to community organising. Community organising is important for CCR because, despite the reality of its legal focus, it sees itself as a human rights activist organisation rather than a legal organisation.174 The Centre of CCR’s activist work is the Movement Support Resource Centre (MSCR).175 Through the MSCR, CCR attempts to develop formal and informal relations with activists and social movements.176 CCR provides its offices as a meeting place under the auspices of MSCR to grassroots organisations and movements to discuss issues, network and explore possibilities of joint action.177 The main focus of MSCR is on police brutality and misconduct, but it also pursues other national and international issues.178 In this way CCR attempts to be connected to, and work with, social movements. CCR not only facilitates activism through MSCR, it also organises demonstrations in its own right on issues raised by activists and litigation.179 CCR has problems obtaining resources for organising work and so few staff work in this area while, in comparison, it is easier for it to find resources for litigation.180 Ease of resource acquisition thus appears to play an important role in the amounts of different work that CCR does. Like LDF, CCR 'lobbies' in Congress, but only on a limited basis. It prefers not to call this work lobbying because of the penalties for combining litigating and lobbying in US tax law.181 The reason for limiting its lobbying is that it is not well connected there, and so, apart from confirmation hearings for

173 CCR Interview Op cit. 174 Ibid. Sometimes these activities complement litigation – as when voting rights victories led to African-Americans being elected. CCR hired a consultant to work with community leaders to teach them the skills needed to be elected – Ibid. 175 CCR Fall 2000 Docket Op cit p88. 176 Ibid. 177 Ibid. 178 Ibid. 179 CCR Interview Op cit. Recently, CCR has organised demonstrations in Buffalo, New York against police brutality, and at the offices of the US Immigration and Naturalization Service (INS) over various issues. 180 CCR Questionnaire Op cit p7. 181 CCR Interview Op cit. For details on this see below. 65

judicial appointments, it does not see this work as particularly effective.182 Rather, it favours media and publication work in preference to lobbying.183 Like LDF, for its media work CCR hires outside media consultants.184 Coalitions With Other Organisations Most of the connections that CCR maintains with other NGOs are ad hoc.185 It regularly attends meetings of the International Federation of Human Rights (FIDH) and several other INGOs, but this cooperation forms a small part of its overall work. Despite CCR’s long record of litigating international human rights law in US courts, its international contacts are sparse and relatively new.186 It forms networks with other American DNGOs to share the costs of cases and swap ideas,187 but it does not actively take part in a permanent domestic human rights advocacy network.188 It seems that the majority of CCR’s connections are with small groups and social movements that work on domestic human rights issues.189 Planning While CCR does long term planning, it also values being responsive to its environment and not being limited by fixed plans.190 Although it talks about having a plan for the coordination of its second order tactics, this is not a document or formula but a philosophical approach.191 This lower level of planning than at LDF or LCCRUL seems to be in line with its commitment to responsive litigation. CCR combines second order tactics both sequentially and, in some cases, simultaneously. Often it will use a sequence of organising and doing educational work in a community before launching a case.192 Conversely,

182 Ibid. Recently CCR lobbied Congress on the new anti-terrorism legislation following the terrorist attack on September 11, 2001. In 1987 it also took the lead in Congress in opposing the nomination of Robert Bork to the Supreme Court – Adams Op cit p1 at 1. 183 Ibid. 184 CCR Fall 2000 Docket Op cit p98. 185 CCR Questionnaire Op cit p11. 186 Ibid p8. 187 Ibid p11. 188 Excepting that it seems likely that some CCR lawyers are involved in the Civil Rights Bar described above in the discussion of LDF at p88. 189 For examples of this see the analysis of CCR in Chapter Five. 190 CCR Interview Op cit. 191 Ibid. 192 Ibid. 66

sometimes a case itself will lead to organising and education work.193 When tactics are used simultaneously, CCR tries to coordinate them, but it has found that a shortage of resources for organising often leads to coordination breakdowns.194 For individual tactics, CCR does not have plans, as it wants flexibility and responsiveness to the environment to be the hallmark of its third order tactics.195 Internally, it has a formal process for case approval, but it does not feel this detracts from its flexibility.196 The approach of responsive litigation, which emphasises the ability to react to events, thus infuses virtually all of CCR’s tactical approaches. Conclusion In conclusion, CCR’s first order tactic of having a wide mandate has required it to limit the issues it will take up. The second order tactic of litigation in domestic courts has been successful because it has been innovative in subject matter, fora and legal norms used. This has been combined with a cultural commitment to political activism and community organising. The third order tactic for litigation combines impact and responsive litigation. The main drawback of this impact/responsive litigation as used at CCR appears to be its rejection of the planned use of cases to create political agendas. This tends to cause CCR to simply to follow agendas already existing in social movements. For political activism the main tactic appears to be the organisation of demonstrations, although it also appears to use forms of non-violent direct action. In terms of the need for legitimacy, as opposed to rational adaptation to the environment, like the other American case studies CCR shows a bias towards legitimacy. Also like the other American case studies, CCR appears to make the questionable assumption that the domestic courts are the decision- makers which have the principal power to decide the issues it is concerned with. Unlike the other American case studies, however, CCR seems to have made serious attempts to use international law and fora, and to adopt social movement organising techniques, so as to make use of other environmental opportunities. It therefore conforms more closely to what the CTS would appear

193 Ibid. 194 CCR Questionnaire Op cit. 195 Ibid. 196 CCR Interview Op cit. 67

to recommend. It deviates from the CTS in that it has changed tactics to exploit new opportunities in its environment, but only to a limited degree. The reasons for this appear to be limiting factors such as local demands for legitimacy, structural rigidity and a narrow range of available resources. These factors appear to have restrained CCR from making effective use of its innovations in using international law and social movement organising techniques. IV. The American Case Studies – Discussion and Analysis The overwhelmingly dominant characteristic of the American case studies, which is acknowledged in the literature on American DNGOs, is a common focus on litigation in domestic courts as a second order tactic.197 The American case studies thus identify the federal judiciary as the primary decision-maker on domestic human rights issues in the American system. This is especially true of LDF, but also applies to LCCRUL and CCR. The main reason for this focus seems to be the unusual conjunction of forces that led American DNGOs to have relative success in the US Supreme Court in the period between 1940 and1980.198 This appears to have encouraged them to focus on the federal judiciary as if this conjunction of forces was permanent.199 Availability of resources; established areas of expertise and the need to gain legitimacy with funding sources and the public also seem to have played roles in causing the case studies to focus on the federal judiciary. The American case studies, because of detailed approaches such as impact and responsive litigation that are largely absent in Britain and Germany,200 in the opinion of the author have the most sophisticated third order tactics for the execution of litigation of all the case studies in this work.201 This sophistication, however, has not translated into effectiveness in litigation, but rather diminishing returns. The reasons for this have been the appointment of unsympathetic Supreme Court justices, the proliferation of litigating

197 Herschkoff and Hollander Op cit p90. 198 These include the relatively pro-human rights members of the Supreme Court (such as Warren CJ Black, Douglas, Frankfurter and Marshall JJ), progressive control of the Presidency and Congress, Cold War pressure on the US on human rights from the USSR and the Third World, the lack of effective conservative legal opposition and the relative availability of resources for litigation in that period – LDF Interview Op cit. 199 See Tushnet "The Warren Court..." Op cit p1x where he describes the Warren Court as an "historical aberration". 200 For descriptions of these see below. 201 And possibly generally also. 68

organisations, public indifference to domestic human rights and the assault on domestic human rights law by conservative litigating organisations. There is less commonality between the first and third order tactics of the case studies. For first order tactics, LDF and LCCRUL both have a dual focus on the African-American community and racial discrimination, whereas CCR has a wider mandate that covers both the US Bill of Rights and Universal Declaration of Human Rights. Similarly, in the realm of third order tactics, LDF and LCCRUL both practice varieties of impact litigation, whereas CCR seems to combine elements of impact litigation and responsive litigation. In addition, LCCRUL appears to use a form of 'impact lobbying', and CCR appears to use forms of direct action in its community organising. The CTS can be used not only to understand, but also to aid constructive critique of the tactics of the American case studies. In this regard it would seem to indicate that American DNGOs do two things to adapt to the current environment. Firstly, it would suggest that they should do a needs analysis of the type and severity of human rights violations occurring within their mandates.202 The data available to the author suggests that this does not occur in any meaningful way. CCR appears to perform best in this respect, but paradoxically does this by simply following agendas set by social movements. For LDF and LCCRUL, however, views about domestic human rights violations appear mostly to reflect situations that existed in the 1970s rather than the present. This suggests problems in these case studies that inhibit their adaptation to new patterns of human rights violations. Secondly, because the contemporary situation seems to suggest difficulties in achieving results in the federal courts, the CTS would suggest that the American case studies should place greater focus on tactics other than litigation on the spectrum above.203 As will be seen in Chapter Five, the seeming current effectiveness of LCCRUL and CCR, compared to LDF, seems to be related to their greater cultural emphasis on alternatives to litigation. The use of international courts and institutions to put pressure on the US from the outside is one obvious possible response by the case studies to their

202 Although CCR does “responsive litigation” this approach is “responsive” more on a third order tactical level rather than on a second order tactical level. 203 This would also necessitate more sophisticated plans to combine these tactics than either LDF or LCCRUL show. 69

environment that seems not as yet to have been properly explored.204 The doubts expressed about these other tactics by the American case studies205 do not seem to correlate with the opportunity structure in the United States.206 Overall, on the basis of the above data, the American case studies appear to have a marked preference for gaining legitimacy rather than seeking out new tactics to increase effectiveness in the way the CTS suggests. For domestic tactics, the CTS would suggest a shift to conducting more policy work, lobbying, publication, media work, coalition building with other DNGOs, and community organising. As the threat of resource loss, as a consequence of a DNGO shifting away from litigation, seems a major barrier to change in second order tactics for the American case studies, a new attempt to get Congress to change the Internal Revenue Code to allow more lobbying and community organising would seem an obvious initial move. If successful, the American case studies could then shift from being primarily litigating organisations to true civil rights advocacy organisations,207 building their tactical sophistication and capacities to execute these new tactics within a favourable legal structure. It could then be easier for the case studies to persuade donors to fund these other activities. The type of non-litigation tactics to which LCCRUL and CCR have a cultural commitment could then become a greater proportion of their work. According to the CTS, this in turn should make them more effective. This does not mean that all these tactics should be executed within each DNGO. Coalitions of DNGOs could support the organisation in the network which specialises in the tactic that is most useful at a particular time. This type of collaboration may be difficult to achieve in the short term, because it may require greater DNGO cooperation than seems to be generally shown by the American case studies. Nevertheless, such an arrangement may have significant resource and effectiveness advantages.

204 This would be the use of the “boomerang” tactic described by Keck and Sikkink above so as to socialise the US government to comply with human rights standards. 205 The objections are less convincing now that Globalisation is making the US more vulnerable to outside pressure and influence. The status of the US as the only superpower only gives it more room to manoeuvre in international legal relations – not the immunity many American DNGOs appear to assume. 206 That is, there seems greater potential here than US DNGOs appear to realise. The failure to grasp these opportunities seems to the author to be ideological and structural, rather than stemming from improbable success. 207 This would not mean no litigation, just less litigation. 70

The British Case Studies V. JUSTICE 208– First Order Tactics JUSTICE’s first order tactics are unique in that its mandate is janus- faced. On the one hand the mandate is to reform the law generally, and on the other to promote compliance with human rights standards. The part of the mandate dealing with human rights is very broad, and largely leaves the question of where to intervene to second order tactical decisions. In the past this mandate appears to have created the problem of JUSTICE taking on more issues than it can successfully handle. Its response has been to consciously rationalise the work it undertakes by creating specialised projects for certain issues, such as discrimination.209 This resembles CCR's creation of ‘streams’ of work to address a similar problem. Dominant Second and Third Order Tactics JUSTICE’s second order tactics focus on lobbying/policy and education work, supplemented by third-party interventions in court cases. It thus appears to see Parliament as the decision-maker that has the power to decide issues it is interested in. JUSTICE is an example of tactical approach C, in that it focuses on lobbying and only occasionally litigates. Its third order tactic is to use its expertise in international human rights law and the Human Rights Act to make itself an attractive source of legal advice and education for the government and legal profession. In the first of its two primary second order tactics, JUSTICE conducts a law related form of policy work and lobbying.210 This and education work make up the vast majority of JUSTICE’s workload. Like an Attorney-General,211 it provides expert legal advice to government for use in policy formulation and execution. Thus, JUSTICE audits legislation for human rights compliance; issues briefings; publishes reports; gives evidence to Parliament and commissions legal opinions.212 In the manner of the Functionalist School

208 JUSTICE of London – see Chapter One. 209 Interview with JUSTICE, London, Oct 2001 (notes in possession of the author). 210 For an old description of this see “The Work of Justice” (1985) July 5 New Law Journal p645. 211 The reference here is an analogy to the work of Her Majesty’s Attorney-General for England and Wales. 212 JUSTICE with Liberty also gives out a human rights prize every year – JUSTICE Annual Report 2001 p30. 71

discussed in Chapter One, the giving of expert legal advice by JUSTICE and litigation by LCCRUL appear to perform the same ‘function’, in that both are used to alter the power balance of the bargaining relationship so that it favours the DNGO. For domestic lobbying, JUSTICE does not have a full time lobbyist at Parliament.213 Consequently, it generally posts or e-mails its briefings etc to the MP or minister concerned.214 JUSTICE focuses on the House of Lords, as, despite the non-democratic nature of the House, it finds that it gets a better reception and more genuine human rights review of legislation there.215 Similarly, in its European work, JUSTICE does not have a permanent presence in Brussels or in Strasbourg; it merely presents its reports and briefings to the relevant body.216 Areas where it does policy work are: reform of the appointment procedures for English judges;217 the setting up of an English Human Rights Commission;218 options for reforms of youth justice219 and improving human rights protections within the EU.220 In addition, it also reports to the UN on Britain’s human rights compliance.221 In the second of its second order tactics, JUSTICE undertakes education to socialise the legal profession and the civil service into human rights compliance.222 This work mainly consists of organising conferences and publishing information on human rights law.223 As part of this work, JUSTICE also gives human rights education to organisations such as the Lord Chancellors’ Department, the Foreign Office and the Judicial Studies Board.224 Supplementary Second Order Tactics

213 JUSTICE Interview Op cit. 214 Ibid. 215 Ibid. This seems an environmental opportunity that JUSTICE has exploited well. 216 Such as The Schengen Information System: A Human Rights Audit (2000); EU Cooperation in Criminal Matters: A Human Rights Agenda (2000) and JUSTICE Annual Report 2001 pp22-23. 217 See JUSTICE Annual Report 2000 p29. 218 Ibid p4. 219 See http://www.justice.org.uk as accessed on March 20th, 2003. 220 Reports entitled “The Democratic Deficit” and “Judging the European Union” – see Ibid. 221 Ibid. 222 Ibid. 223 Eg The second annual JUSTICE/Sweet & Maxwell Human Rights Law Conference Oct 2000 – JUSTICE Annual Report 2001 Op cit p31. 224 Ibid generally. 72

JUSTICE’s supplemental second order tactic involves third party interventions in court cases. Until relatively recently JUSTICE was doing casework on miscarriage of justice and privacy cases. However, a decision was made that broad policy work and casework were mutually exclusive, and so casework was limited to third party interventions.225 JUSTICE favoured third party interventions because it saw them as requiring fewer resources than full court cases.226 Before JUSTICE began to conduct third party interventions, the Public Law Project,227 another British DNGO, had been trying to encourage such interventions in English courts. It was largely unsuccessful, but it had done enough work to open the procedure for later use by JUSTICE.228 JUSTICE does five or six interventions a year229 in the higher British courts and the European Court of Human Rights.230 Formally, it uses the tactic to give objective legal opinions and to clarify the law, not to 'lobby' courts in the way that amicus curiae briefs are often said to be used in the US.231 In practice, however, JUSTICE appears to use third party interventions to develop the law in a similar manner to the way amicus curiae briefs are used by LDF. Interventions are often done with the aid of barristers’ chambers that JUSTICE collaborates with, 232 or with other DNGOs. This has the benefits of sharing risks, resources and expertise, improving the chances of success and lessening the damage in the event of a loss. Amongst the areas that it has submitted third party interventions on are criminal sentencing;233 fair trial rights;234 privacy rights235 and immigration.236 The third party interventions made

225 Ibid. 226 Ibid. Here once again resource availability strongly influences tactics. 227 See http://www.publiclawproject.org.uk as assessed on October 22nd, 2003 228 JUSTICE Interview Op cit. 229 Ibid. 230 Questionnaire Completed by JUSTICE 2001 (original in possession of the author) p7. 231 JUSTICE Interview Op cit. 232 Mostly those who attend the Human Rights Law Conferences – i.e. Blackstone Chambers, Matrix Chambers, Doughty Street Chambers, Brick Court Chambers & Monckton Chambers. See JUSTICE internet site supra. 233 Eg V v United Kingdom (1999) 30 EHRR 212 (European Court of Human Rights). 234 Eg R v Lambert [2001] 3 WLR 206 (House of Lords). 235 Eg Khan v United Kingdom (2000) Apl 00035394/97 (European Court of Human Rights) see http://hudoc.echr.coe.int as assessed on October 22nd, 2003. This intervention was in collaboration with Liberty. 236 Eg Kaur v United Kingdom (1999) C-192/99 (European Court of Justice). 73

by JUSTICE appear similar to its advisory work on human rights law with the legal profession and civil service, in that it uses its expertise to influence policy development in the courts. JUSTICE’s use of third party interventions typically comes at the end of a sequence of tactics. It usually begins this sequence by researching a human rights problem and publishing materials on it. It then issues a report and follows this with a conference. This work is usually in turn followed by lobbying and policy work, third party interventions and, lastly, media work. Sometimes the sequence is varied, however, and third party interventions are made after, or during, the conference.237 This sequence suggests a global vision at JUSTICE of coordinating second order tactics to achieve rational adaptation to the environment, as suggested by the Comprehensive Tactical Stance. Networks With Other Organisations JUSTICE is a member of a number of advocacy networks. Connection to international as opposed to domestic networks is a feature of JUSTICE’s networking tactics. JUSTICE is the British section of the International Commission of Jurists (ICJ).238 The role of the ICJ, however, is mostly limited to providing JUSTICE with access to an international advocacy network. As with most sections of the ICJ, the link between JUSTICE and the ICJ is more an instance of INGO/DNGO cooperation, than of the domestic presence of an INGO. JUSTICE and the ICJ also have different foci. Although the ICJ focuses on civil and political rights, it includes a significant amount of work on social rights, while JUSTICE does less work on social rights and focuses more on civil and political rights.239 The other main contact with an INGO that JUSTICE maintains is with Amnesty International, with whom it does some work on asylum.240 Whereas JUSTICE’s connections to ICJ and AI are permanent, its connections with DNGOs are ad hoc.241 JUSTICE has these ad hoc

237 JUSTICE Interview Op cit. 238 See generally H.B.Tolley The International Commission of Jurists: Global Advocates for Human Rights (University of Pennsylvania Press, Philadelphia, 1994). 239 Ibid. 240 Ibid. 241 JUSTICE Questionnaire Op cit p9. 74

connections to Liberty;242 AIRE (Advice on Rights in Europe);243 the 1990 Trust244 and British Irish Rights Watch.245 Although its connections to these DNGOs are ad hoc, it does take them into consideration by trying not to duplicate their work. As a result, even without extensive contact with other DNGOs, JUSTICE has created a specialisation for itself in the domestic advocacy network.246 Planning JUSTICE rarely uses plans. No formal plans exist to cover individual tactics or their coordination.247 The informal practice of using tactics in sequence is the closest that JUSTICE comes to planning. This may be because planning is not seen by JUSTICE as essential to a policy dominated tactical stance. It may also be that the planning process is informal and merges with the methodology used to coordinate tactics. Conclusion In conclusion, JUSTICE’s first order tactical stance creates no limit on the human rights issues it could take up. Most of its self-imposed rationalisation of work is a result of second order tactical decisions. The mandate covers general law reform work as well as human rights advocacy. JUSTICE’s second order tactical stance exhibits a combination of educational work within the legal profession and civil service domestically, and policy work and lobbying both domestically and internationally. It appears that its assessment that Parliament and international institutions are where the power lies to influence the decisions it is interested in has been largely correct. Because its international work is largely seen as legitimate in Britain, JUSTICE has been able to escape many demands for conformity to the local legal and political culture and thereby achieve greater rational adaptation to the environment.

JUSTICE conforms to the Comprehensive Tactical Stance in its use of a sequence of tactics as a method of coordination, and in its taking advantage of

242 See http://www.liberty-human-rights.org.uk as accessed on October 22nd, 2003. 243 See http://www.airecentre.org as accessed on October 22nd, 2003. 244 See http://www.blink.org.uk as accessed on October 22nd, 2003. 245 JUSTICE Interview Op cit. For BIRW see below. 246 Ibid. This could be another explanation for the lack of litigation at JUSTICE. It could be being done by other specialist DNGOs in the DNGO network. 247 JUSTICE Questionnaire Op cit p 6. 75

international opportunities. It appears to deviate from the CTS in allowing available resources to dictate tactics, rather than adapting resource acquisition to its tactical stance, in the small amount of planning it does, and in its quest for legitimacy sometimes overriding its rational adaptation to its environment. Overall, it would seem that JUSTICE conforms more closely to the CTS than the American case studies.

VI. BIRW248 - First Order Tactics BIRW’s first order tactic is to maintain a narrow mandate of promoting human rights with reference to the conflict in Northern Ireland.249 The mandate uniquely focuses on the conflict in Northern Ireland as an event, rather than on a geographical area, types of rights or a social group. BIRW’s unofficial agenda is to protect civil and political rights, and not social rights.250 BIRW’s narrow mandate appears to have worked well, in that its work has been kept within defined limits. This mandate has also allowed it to gain the attention and support that a wider mandate may not have allowed. Dominant Second and Third Order Tactics BIRW’s second order tactical stance focuses on international lobbying and acting as an advisor to lawyers on human rights, but also includes some third party interventions in cases at the European Court of Human Rights.251 It appears to see international bodies and the legal profession as where the power lies to influence decisions it is concerned with. BIRW thus hovers between tactical approaches C and D, in that it almost exclusively lobbies except for a few third party interventions. BIRW’s third order tactic, as for JUSTICE, is to use its human rights law expertise to conduct law related lobbying. The main difference is that most of BIRW’s lobbying is international, because it has little faith in achieving results domestically.252 With regard to the first of the main second order tactics, BIRW socialises lawyers by giving them human rights legal advice. To do this, it refers callers to lawyers who have human rights expertise; advises lawyers on how to improve

248 British Irish Rights Watch of London – see Chapter One. 249 See http://www.birw.org as assessed on March 20th, 2003. 250 Interview with BIRW, London, Oct 2001 (notes in possession of the author). 251 Ibid. 252 Ibid. 76

their third order tactics in litigation and encourages lawyers to go to the European Court of Human Rights. It is legal for BIRW to give advice on human rights law because British law allows lay legal advice in certain instances.253 In the past, British lawyers have not generally seen human rights as a profitable area of practice, and so have not built up an expertise in the area. BIRW tries to fill that gap for the Northern Ireland conflict. It attempts to alter how the legal profession influences policy development on human rights and Northern Ireland. In Northern Ireland itself, this has translated into work on intimidation and assassination of human rights lawyers, and supporting their role in mobilising law in defence of human rights.254 In England, BIRW tries to catalyse the creation of a human rights bar so as to change the legal culture in favour of human rights on the issues it deals with. BIRW’s lobbying focuses on international fora. It seems that the British government's traditionally more hostile response to human rights issues concerning Northern Ireland, as opposed to more general human rights issues, has caused BIRW to adopt a more international focus than JUSTICE. Originally, the British Ministry of Defence was very hostile, the Northern Ireland Department was predominantly Unionist and hostile, and the Lord Chancellor was very conservative in matters of human rights law.255 A perception existed that because BIRW defended human rights in Northern Ireland, it was pro- Republican. It thus had few contacts with the UK government and more contacts with the Irish and United States governments.256 In recent times this has changed to a degree, and the British government recently added BIRW to the government consultation lists on Northern Ireland.257 BIRW’s third order tactic is to employ a form of law related lobbying similar to that of JUSTICE, but primarily at the international level. Part of this involves lobbying foreign governments. BIRW has testified several times before the US Congress on the conflict in Northern Ireland; it has daily contact with the Irish Department of Foreign Affairs and has influence with the Irish Prime

253 This practice is so established that citizens advice bureaux in the UK even receive contracts from the Legal Service Commission to provide legal aid - see National Association of Citizens Advice Bureaux Annual Report 2002/2003 p15. 254 Interview with BIRW Op cit. 255 Ibid. 256 Ibid. 257 Ibid. 77

Minister.258 The other part involves lobbying the United Nations. BIRW makes submissions to the United Nations Human Rights Committee259 and the United Nations Committee Against Torture when Britain’s record is considered.260 It also makes representations to various special rapporteurs and thematic reporters of the United Nations Human Rights Commission,261 as well as to the UN High Commissioner for Human Rights.262 BIRW does not have consultative status with the UN. Rather, it uses the UN consultative status of the Committee on the Administration of Justice and the International Federation on Human Rights.263 Currently it does not do much lobbying before the British Parliament or the European Parliament, but it hopes to do more in each as the need arises.264 BIRW draws heavily on international advocacy networks to mobilise international law from multiple sites and put pressure on the British state from the outside. Britain is a relatively good target for international pressure because of the extent to which its economy is dependent on international and European trade linked to adherence to human rights standards. This contrasts with the US, where international trade is less central to its economy. It thus seems more rational for BIRW to focus on international work than it is for the American case studies. The large Irish community in the US also helps BIRW put pressure on the British government through providing access to funds and to the US government. Supplementary Second Order Tactics BIRW’s supplemental tactic, as for JUSTICE, consists of third party interventions. For BIRW, however, these are exclusively before the European Court of Human Rights. Normally, as with JUSTICE, BIRW conducts such interventions in collaboration with other DNGOs.265 It is difficult to determine

258 Ibid. 259 Eg Human Rights Violations Arising Out of the Conflict in Northern Ireland (May 1995) submitted by BIRW to the UN Human Rights Committee review of a UK periodic report under the ICCPR (from the private papers of Justice Evatt, former member of the Committee). 260 BIRW Interview Op cit. 261 Such as the UN Special Rapporteur on the Independence of Lawyers and Judges and the UN Special Rapporteur on Arbitrary Killings and Disappearances – Ibid. 262 Ibid. 263 Ibid. 264 Ibid. 265 Normally these interventions are in collaboration with the Committee on the Administration of Justice, Liberty or JUSTICE – Ibid. 78

how BIRW chooses the issues to intervene on, but it is clear that there is no process of identifying issues in advance as occurs with impact litigation in America.266 Among the issues that BIRW has conducted third party interventions on are the right to life267 and the right to silence.268 Networks With Other Organisations BIRW maintains permanent contacts with INGOs.269 It acts as the eyes and ears of INGOs such as Amnesty International270 on issues in Northern Ireland,271 and catalyses other INGOs into action on issues when it feels it is necessary.272 As at JUSTICE, however, the coalitions BIRW enters into with DNGOs are more ad hoc.273 It is in daily phone contact with the Committee on the Administration of Justice, but has less contact with the Irish Council for Civil Liberties and Liberty.274 Overall, because BIRW is enmeshed in international advocacy networks, its links are closest with INGOs or the small number of DNGOs that are also part of such international networks. Planning BIRW does little planning, because it sees flexibility as an asset.275 This is firstly because the Northern Ireland peace process is unpredictable and inhibits long term planning.276 Secondly, this is because BIRW reacts to requests from others, and these cannot be predicted, 277 and thirdly, it coordinates its work with other NGOs that are larger and more rigid.278 It cannot, therefore, demand that cooperation proceed according to its own internal plans. Lastly, there is little planning because BIRW expects the peace process to succeed, and that at some point in the future it will cease to exist as an organisation.279

266 Ibid. 267 See for example McCann v United Kingdom (1996) 21 EHRR 29. 268 See for example Murray v United Kingdom (1996) 22 EHRR 29. 269 Questionnaire Answered by BIRW 2001 (original in possession of the author) p14. 270 BIRW sees networking as of crucial importance to its work – BIRW Interview Op cit. 271 Ibid. 272 BIRW Questionnaire Op cit. 273 Ibid p14. 274 BIRW Interview Op cit. 275 BIRW Questionnaire Op cit p10. 276 BIRW Interview Op cit. 277 Ibid. 278 Ibid. 279 BIRW Questionnaire Op cit. 79

One reason that larger NGOs see BIRW as an asset is that it is smaller and less rigid and can therefore react to new situations more quickly and flexibly.280 BIRW is also an asset because of its location in London, which gives it proximity to contacts and immunity to the type of intimidation and assassination that human rights lawyers in Belfast have been subject to.281 Conclusion In conclusion, in stark contrast to JUSTICE, BIRW has a very narrow mandate. In its second order tactics, it educates the legal profession domestically, and (mostly) lobbies and does policy work internationally. This approach is different to that of JUSTICE, in that BIRW does not focus on educating the civil service and has a much greater international focus. As will be seen in Chapter Five, it seems that BIRW has been largely correct in seeing international bodies as being the decision-makers with the power to change the situation on issues it is concerned with. Lastly, BIRW and JUSTICE have the similar third order tactics of making themselves centres of human rights law expertise. They use this to influence policy and lobby such that they “bargain in the shadow” of the human rights law they expound. BIRW largely conforms to the CTS, in that it appears to have identified the opportunities in its environment and adapted its tactics to exploit them. It has done this by acting more like an INGO than a DNGO and ‘escaping’ the domestic jurisdiction into the international sphere. This happened largely because of difficulties it had in gaining legitimacy in local legal and political cultures as a result of the issues it deals with. In the international sphere it has exploited environmental opportunities well and gained legitimacy from international society.

VII. CAJ282 - First Order Tactics

280 The INGOs and DNGOs working on the conflict in Northern Ireland hold formal coordination meeting periodically – BIRW Interview Op cit. 281 BIRW exposed intimidation of lawyers in the Diplock Courts in Belfast – Ibid. The Diplock Courts are criminal courts that were set up during the insurgency that use a procedure that affords lesser protections to the accused. They are named after a senior British judge involved in their creation. 282 The Committee on the Administration of Justice of Belfast – see Chapter One. 80

CAJ has a very wide mandate. This mandate, unlike at BIRW, is not focused on the conflict in Northern Ireland, but rather on making the UK government adhere to human rights standards in all of its Northern Ireland policies.283 Because it has such a wide mandate, CAJ appears to have had some problems with coordinating its work. Accordingly, as at CCR and JUSTICE, CAJ has recently rationalised its somewhat ad hoc agenda into the four specific areas of policing, criminal justice, emergency legislation and the protection of rights and equality.284 Dominant Second and Third Order Tactics As at BIRW, CAJ’s overall tactical stance is dominated by international law related lobbying work similar to that of INGOs. It differs from BIRW and JUSTICE in placing a lower emphasis on educating the legal profession in human rights law.285 CAJ’s primary second order tactic of international lobbying can be divided into a number of areas. Firstly, it makes statements to foreign governments such as to the US Congress.286 Secondly, it critiques the UK’s periodic reports under various treaties before monitoring bodies such as the United Nations Human Rights Committee.287 Thirdly, it hosts visits by INGOs. An example of this was the Lawyers’ Committee for Human Rights’ investigation into the deaths of Patrick Finucane and Rosemary Nelson.288 CAJ has hosted visits by Council of Europe organs such as the European Committee Against Torture289 as well as visits by various special rapporteurs of the UN Human Rights Commission.290 Lastly, CAJ has testified before international bodies such

283 Interview with CAJ, Belfast, Oct 2001 (notes in possession of the author). 284 CAJ Annual Report 1999-2000 p1. 285 CAJ organises conferences and seminars, but these have the much wider aim of alerting various networks to issues and information rather than educating the legal profession. 286 CAJ Annual Report 2000-2001 Op cit p9. This testimony was before the US Congress Sub- Committee on International Operations and Human Rights. CAJ has also met with the US President several times – CAJ Annual Report 1999-2000 Op cit p13. 287 Ibid p14. CAJ flew to Geneva to present its report personally in pre-sessional meetings to the Committee. 288 Ibid p13. 289 Ibid. CAJ also hosted a committee from the Council to Monitor compliance with the European Framework Convention on Minorities. 290 Specifically, the UN Special Rapporteur on Freedom of Expression, and the UN Special Rapporteur on the Independence of Judges and Lawyers – Ibid p14. 81

as the Organisation for Security and Cooperation in Europe (OSCE)291 and the UN Human Rights Commission.292 CAJ does less domestic lobbying. This more minor commitment has included lobbying the British government on the implementation of the Good Friday Agreement,293 British administrative agencies294 and the British Prime Minister.295 Like BIRW, CAJ is able to feed and activate international networks effectively with information it possesses. It thus seems to identify international bodies and foreign governments as having the power to influence the issues it is interested in. CAJ’s lobbying work has also included the brokering of agreements between the British and Irish governments, such as the agreement to appoint international judges to investigate six killings in Northern Ireland.296 Supplementary Second Order Tactics CAJ’s most important supplemental tactic is to conduct test cases. It has eschewed the use of third party interventions, as used by JUSTICE, because Northern Ireland courts have been more restrictive than English courts in allowing third party interventions.297 Traditionally CAJ has taken an unfavourable view of the British judiciary as lacking openness to human rights arguments.298 It has thus tried to avoid British courts as much as possible and has preferred the European Court of Human Rights.299 Even in the European Court of Human Rights, however, it has opted for the greater control offered by test cases compared to third party interventions.300 Because in the past litigation in domestic courts has led to violent reprisals in Northern Ireland, CAJ also has developed responses for support of staff when it is under threats of violence.301

291 Before two hearings of the Parliamentary Assembly in Budapest – Ibid p13. 292 Through the Irish representative there- Ibid p14. 293 Ibid p7. 294 Eg The complaint to the Police Ombudsman over police inaction over the death of Rosemary Nelson – CAJ Annual Report 2000-2001 Op cit p13. 295 CAJ Annual Report 1999-2000 Op cit p27. 296 CAJ Annual Report 2000-2001 Op cit p13. 297 CAJ Interview Op cit. CAJ has sometimes, however, submitted affidavits in judicial review cases in Northern Ireland on behalf of applicants. 298 In the author’s opinion CAJ’s view of the British judiciary has been justified by past experience, but may now be less justified in the light of the changes that have occurred since the passing of the Human Rights Act in Britain. 299 Ibid. In March 2001 they met in Glasgow – CAJ Annual Report Op cit p26. 300 Ibid. 301 Ibid. 82

The passing of the Human Rights Act and the recommendations of the Criminal Justice Review for a more representative judiciary have encouraged CAJ to plan to do more domestic litigation.302 Its domestic cases to date have mainly been miscarriage of justice cases concerning murder trials.303 The cases before the European Court of Human Rights have mainly concerned violations of the right to life.304 CAJ’s approach to litigation seems more similar to the American case studies than the other two British case studies, in that it focuses on the litigation of cases, rather than on third party interventions. Despite this similarity to the American case studies, however, CAJ still uses the standard British third order tactic of test case litigation outlined above. In addition to running test cases as a supplementary tactic, CAJ also responds to requests for information; appears on the media and organises lectures, seminars, conferences and events.305 Networks With Other Organisations Like BIRW, CAJ maintains permanent connections with INGOs and ad hoc connections with DNGOs.306 It has regular contacts with the International League for Human Rights, Amnesty International and the Lawyers’ Committee for Human Rights.307 The Lawyers’ Committee helps CAJ with lobbying in Washington DC, and Amnesty helps with lobbying in London and Dublin.308 It also has some contact with Human Rights Watch and the International Commission of Jurists.309 Among DNGOs, CAJ is close to Liberty and the Scottish Human Rights Centre, because they are also members of the International League for Human Rights.310 Under the umbrella of the League, these organisations and CAJ meet

302 Ibid. 303 CAJ Annual Report 1999-2000 Op cit p11. 304 Eg Shanaghan vUnited Kingdom (2001) Applic 00037715/97 decided May 4, 2001 and McShane v United Kingdom (2002) Applic 00043290/98 decided May 28, 2002 – see http://www.echr.coe.int as accessed on October 22nd 2003. CAJ also lodged Marshall v United Kingdom on reservations by the UK to the European Convention on Human Rights and recently lodged the Hamill case – CAJ Annual Report 2000-2001p 10. 305 Ibid p9. Eg the conference Fundamental Social Rights in Northern Ireland: Building Upon the Agreement and the European Social Charter: Conference Report (CAJ, Belfast, 1999). 306 Questionnaire Completed by CAJ 2001 (original in possession of the author) p14. 307 CAJ Interview Op cit. 308 Ibid. 309 CAJ Interview Op cit. 310 Ibid. 83

regularly to coordinate tactics.311 CAJ is also a member of a number of networks with other civil society organisations on specific issues. With the trade union UNISON, CAJ heads the Human Rights Consortium that campaigns for a Northern Ireland Bill of Rights312 and also co-convenes the Equality Coalition that works on combating discrimination.313 Like CCR, CAJ seems to have extensive connections with organisations in civil society, such as trade unions. Planning CAJ plans extensively. More than once a year the staff, executive and key members meet, often in retreats, to discuss strategy.314 There are also strategy meetings in each of CAJ’s four areas of work approximately once a month.315 These strategy meetings lead to the production of written plans for future work.316 It appears that CAJ has long term formal plans both to coordinate all its second order tactics and for third order tactics.317 These are regularly updated and deepened in the periodic tactical meetings.318 Unlike JUSTICE and BIRW, CAJ does not seem to value flexibility as much in the face of unpredictable events, and views lobbying and policy work with INGOs as capable of being planned. Conclusion In conclusion, CAJ’s wide mandate appears to have caused it trouble in the past and has led it to consciously rationalise the work it undertakes. When it uses second order tactic of international lobbying CAJ acts like an INGO in directly accessing international networks. It seems to have correctly identified these international institutions and foreign governments as having the power to influence decisions concerning human rights in Northern Ireland. CAJ’s litigation work focuses on test cases rather than third party interventions, because Northern Ireland law limits the opportunities for such interventions and because it prefers to more fully control cases it is involved in.

311 Ibid. 312 CAJ Annual Report 2000-2001 Op cit p21. 313 Ibid p16. 314 CAJ Interview Op cit. For a recent plan see “CAJ Plans Ahead 2002” at http://www.caj.org.uk as accessed on March 30th, 2003. 315 Ibid. 316 Ibid. 317 CAJ Questionnaire Op cit p9. 318 In this way long term planning and ad hoc adaptation to events are intricately linked in a similar way to that which Wasby describes for impact litigation supra. 84

Overall, despite differences in environmental opportunities in Northern Ireland and England, CAJ seems to have similar responses to its environment as the other British case studies. Also like these case studies it appears to largely conform to the CTS. This may be because CAJ and the other British case studies share a ‘style’ of approaching tactics. As with BIRW, CAJ has focused on the most significant violations within its mandate and has adapted its tactics to the opportunities in the environment, which in the cases of both England and Northern Ireland are international. CAJ’s extensive planning appears to have contributed to its rational response to the environment and its apparent conformity with the CTS. CAJ suggests that DNGOs in Northern Ireland, like those in England, can successfully focus on international work as a rational response to a relative lack of local opportunities. VIII. The British Case Studies – Discussion and Analysis Like the American case studies, the British case studies show evidence of a search for both rational adaptation to their environment and legitimacy in their local cultures. They seem to differ from the American ones, however, in that activities that are highly rationally adapted to their environment, such as using international advocacy networks, are also seen as legitimate in the local legal and political cultures. The origins of this different situation for tactical decision-making in Britain appear to be historical and cultural. The spectacular early success of Amnesty International in mobilising international human rights law319 seems to have had a profound effect on both the international and domestic human rights networks in Britain. It appears to have made international human rights work legitimate and thus seen as highly ‘professional’. It also seems to have led to greater network building between DNGOs and with INGOs. When coupled with the relatively weak civil liberties discourse in Britain and the slow ‘invasion’ of international human rights norms into the domestic jurisdiction, it is not hard to see how international work attracts funding and support. It appears that because of these historical factors the British case studies do not perceive themselves as human rights or civil rights law firms, as the American case studies do, but rather as policy catalysts for the civil service and

319 See E.Larsen A Flame in Barbed Wire: The Story of Amnesty International (Frederick Muller Ltd, London, 1978) p11. 85

Parliament. The British case studies’ self-identification thus appears to incline them to make different tactical decisions to those of the American case studies. The parts of the opportunity structure that seem to have influenced the decisions of the British case studies have been the doctrine of parliamentary sovereignty, a legal culture arguably resistant to ideas of legal human rights and a political culture sceptical of human rights. This combination of factors has restricted domestic opportunities for DNGOs. In contrast, internationally the United Kingdom is a signatory to both European and global human rights treaties, the former of which can be the subject of binding judgments in the European Court of Human Rights. The United Kingdom generally champions human rights internationally and sits on most human rights bodies. The overall opportunity structure for British DNGOs thus points heavily to international work or, barring international work, to lobbying Parliament. The difference between JUSTICE, with its lobbying and educational work, and BIRW and CAJ with their international work, seem to revolve around the lack of support in the British Parliament for DNGO work on Northern Ireland issues as compared to other human rights issues. In contrast, the Northern Ireland conflict has a high profile in the US because of its Irish community. It also has a higher profile in the rest of the international community. BIRW and CAJ, compared to JUSTICE, thus appear to have less incentive to lobby Parliament and more incentive to work internationally. The British case studies generally conform to the Comprehensive Tactical Stance. It seems plausible from other British DNGOs that the author is aware of that this conformity reflects the situation of British DNGOs generally.320 It also suggests that operating in this way may have increased their effectiveness and contributed to the pressure on the British government which led to the passing of the Human Rights Act and the increase in prominence of human rights in British foreign policy.321 The only major deviation from the CTS by the British case studies seems to be the limited extent that they make use of the European Court of Justice’s human rights jurisdiction. The use of EU law is a significant opportunity

320 For example, two other British DNGOs, Liberty (http://www.liberty-human-rights.org.uk accessed Oct 22, 2003) and the 1990 Trust (http://www.blink.org.uk accessed Oct 22, 2003) also appear on their face to conform to the CTS. 321 P.Mageean & M.O’Brien “From the Margins to the Mainstream: Human Rights and the Good Friday Agreement” (1999) 22 Fordham Journal of International Law 1499 at 1507. 86

in the environment that the British case studies do not regularly exploit. As EU law is directly applicable in Britain this is puzzling. To the author, the answer to this puzzle appears to lie in the success they have had in the European Court of Human Rights; the legitimacy which has accrued to using this Court; and the lack of expertise within British DNGOs for going to the European Court of Justice. The German Case Studies IX. HU322 - First Order Tactics

Compared to the above case studies, HU has an unusual first order tactical stance. Its mandate is both very abstract, using phrases such as “the free development of the personality”, and is stated in different ways such as “democratisation” and “opposition to the authoritarian state”.323 Because of this, its mandate has virtually no restraining effect on the issues it can pursue. Unlike CCR, its work is not even rationalised into streams.

It is essentially the members in HU’s branches that define the agenda of the organisation. The de facto effect of this has been to decentralise its first order tactics so that decisions are made by members and not by staff at the national headquarters.324 It appears to use this tactic because, unlike the US and British case studies,325 it is primarily a membership organisation and thus must be attentive to its members’ ideas on tactics.

Dominant Second and Third Order Tactics HU’s second order tactics focus both upon lobbying and an intellectual politics whose purpose is to influence governing elites. Its third order tactics differ extensively from those of the British and American case studies. The lobbying it does differs from that carried out by the British and American case studies in two important ways. Firstly, the lobbying uses legal rules less often

322 The Humanistic Union of Berlin – see Chapter One. 323 Dr.T.Müller-Heidelberg “Standortsbestimmung der Humanistischen Union” in (Sept 2001) 155(3) Vorgänge p1 at 1. 324 Working Groups in the branches can essentially take up any issue as long as the national meeting approves when it is convened (and the practice is to be permissive) – Interview with the HU, Berlin, Sept 2001 (notes in possession of the author). 325 It is true that CAJ and JUSTICE have members, but they are small in number and decisions are essentially taken by staff. 87

and less directly. Secondly, it often conducts lobbying as part of a large and defined network called the Human Rights Forum (Forum Menschenrechte), which is described below. For intellectual politics, the third order tactic is to educate and socialise opinion-forming elites326 in the German political system. The aim is to alter the symbolic universe of key policy making elites to make them more responsive to human rights arguments. The hope is that the socialised membership will either end up governing or influencing the government. For socialising opinion-forming and governing elites, a very detailed third order tactical stance has developed. Local groups often employ small think tanks (Denkarbeit) to do their work327 and as long as HU as a whole approves, specialise in issues and take action themselves. Sometimes special working groups are also formed on particular topics.328 Generally, this approach seems to stress flexibility and the education of members. To do this socialising HU operates like a debating club.329 Issues are debated within the organisation and positions agreed to. Press releases are issued and tracts published with the aim of engaging opinion forming elites and state institutions in debate. In contrast to the above case studies, HU’s primary method for influencing the decisions of the Federal Constitutional Court is not through litigation. Rather, it favours public criticism of Court decisions and engaging the President of the Court in public debate.330 As a result of German political history and culture, this type of intellectual politics is seen as highly legitimate. Using this approach, HU engages in a wide array of issues including gay equality; the Kosovo War; the War on Terror; democracy on the Internet; discrimination against foreigners and legal rights of due process.331

326 T.Bussemer “Ein Katalysor, aber keine Macht. Anmerkungen zur politischen Strategie der Humanistischen Union” in Vorgänge Op cit p242 at 242. 327 See http://www.humanistische-union.de as accessed August 28th, 2000 328 For example, at the 40th annual congress of the HU working groups on paedophilia, bestiality and transsexuality and internet democracy/data protection reported – see Notes on the 40th Annual Conference of the Humanistic Union, Sept, 2001, Berlin (original in possession of the author) p1. There are also working groups on genetic research, party financing by the state, education, children’s rights and separation of church and state – Anträge an die 17.Ord. Delegiertenkonferenz der Humanistischen Union e.V. am 15.16. September 2001 (original in possession of the author). 329 N.Helm “ 40 Jahre sind genug… Kritische Anmerkungen zu Gegenwart und Zukunft der Humanistischen Union” (Sept 2001) 15(3) Vorgänge 237 at 241. 330 For example HU Press Release of July 24, 2000 “No Secret Way for Parliamentary Wages” (in German) – see http://www.humanistische-union.de as accessed August 28th, 2000. 331 See Ibid. 88

Much of HU’s lobbying is done through the Human Rights Forum, which is described below. It also lobbies Parliament itself through politicians it trusts, politicians who are members or professional lobbyists.332 In addition, it advises Parliament on human rights questions333 - this advice, however, is almost exclusively on constitutional law and human rights policy rather than international human rights law. Supplementary Second Order Tactics HU’s main subsidiary second order tactic is litigation. It becomes involved in such litigation in a number of ways. Firstly, it refers people who are looking for human rights legal advice to lawyers it has connections with.334 This informal network sometimes also supplies HU with lawyers or plaintiffs.335 More often, it uses its members in these roles in cases before the Federal Constitutional Court or the Federal Supreme Court (Bundesgerichtshof ).336 Lastly, under the constitutional methods of access to the Federal Constitutional Court, HU can get members of state parliaments or Federal Parliament who are HU members or sympathisers to bring cases before the Court.337 HU thus does not use any structure similar to a network of cooperating lawyers, as used by LDF, but rather generally relies on members and sympathisers. It facilitates not only the bringing of cases before the courts, but also before the Petition Committee of Parliament. This committee can make recommendations to Parliament to change laws and to take action on particular cases.338 Overall, HU’s selection of cases and their execution seems less sophisticated than in the British or American case studies, as it does not appear to have a coordinated approach to rival planned litigation or test cases. It also appears to bring cases less frequently than they do. HU thus does not appear,

332 HU Interview Op cit. The HU is registered as an organisation with the Bundestag to give it access. 333 Ibid. 334 HU Interview Op cit. 335 E-mail correspondence with Tobias Bauer at the HU federal headquarters in Berlin, 2003 (originals in possession of the author). 336 Ibid. 337 These applications were based on the so-called organic norm control process (Art 93 of the Basic Law or GG) – Ibid. For example, for the case on equality of MPs wages two former New Forum MPs in the Thuringian Parliament brought the case to the Constitutional Court and the federal chairman of the HU, who is a lawyer, represented them – see http://www.humanistische-union.de as accessed August 28th, 2000. 338 See Gesetz über die Befugnisse des Petitionsausschusses des Deutschen Bundestages (Gesetz nach Artikel 45c des Grundgesetzes) Vom 19 Juli 1975 (BGBl III 190-3). 89

in the style of impact litigation, to attempt to change the agenda of the Federal Constitutional Court through litigation.339 For the most part, litigation by HU is defensive rather than offensive.340 Where litigation is offensive, it is generally unplanned and focused on random issues. Two of HU’s most recent and prominent victories in the Federal Constitutional Court concerned the, from the point of human rights, minor issues of crucifixes in Bavarian schools,341 and differences in payment of members of Parliament.342 In contrast to the British case studies, the overwhelming majority of litigation by HU is domestic. Only occasionally has it taken cases to the European Court of Human Rights.343 The reason for this appears to be the legitimacy that the Federal Constitutional Court generally has in German legal and political culture compared to international fora. HU has a number of other important supplementary tactics. Every year, with other German DNGOs, it publishes the Basic Rights Report (Grundrechte- Report). This is the major non-governmental source of information for German citizens on human rights observance within Germany. It is published as a paperback and is available in most large German bookshops.344 A lesser subsidiary tactic that it uses is that, in conjunction with the Human Rights Forum, it hosts seminars on various topics.345 These seminars differ from those of the British case studies in that they are not for the legal profession or civil

339 Thus, an analysis such as that of Epp, that relies on litigation and changing the agenda of courts, would completely distort the picture for German DNGOs as they work in this quite different way – see generally C.R. Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, Chicago, 1998). 340 For example, the litigation of Heinrich Hannover, a long time HU member, has been almost entirely defensive – see H. Hannover Die Republik vor Gericht: Erinnerungen eines unbequemen Rechtsanwalts 1954-1974 (Vol 1) and 1975-1995 (Vol 2) (Aufbau Taschenbuch Verlag, Berlin, 2001). 341 BVerfGE 93,1ff (1995). 342 HU Interview Op cit. HU was also involved in a case questioning the legality of Germany’s involvement in the Kosovo War (BVerfGE 100, 266 (1999)) and a case involving incitement to desert the German army to avoid serving in the Kosovo War (BVerfGE 101, 297 (1999)). 343 For example, the case of Vogt v Germany (1996) 21 EHRR 205 on the Berufsverbot. The former Chancellor, Gerhard Schröder, was Vogt’s lawyer in the Constitutional Court. 344 Eg T.Müller-Heidelberg/U.Finckh/E.Steven/B.Rogalla (HG) Grundrechte-Report 2001: Zur Lage der Bürger-und Menschenrechte in Deutschland (Rowohlt, Reinbeck bei Hamburg, 2001). 345 HU Interview Op cit. 90

service, but for the public at large. In addition, HU awards the annual Fritz Bauer Prize to those who have most furthered human rights within Germany.346 Networks With Other Organisations In contrast to the British case studies, HU forms ad hoc coalitions with INGOs,347 and permanent coalitions with DNGOs.348 It is thus heavily reliant on the domestic human rights network. The major domestic network it is a member of is the Human Rights Forum. The Forum was founded in 1994 as a result of German DNGOs meetings in preparation for the 1993 World Conference on Human Rights in Vienna.349 To implement the Vienna Programme, it was felt that the human rights lobbying effort of DNGOs needed to be continuous, and that this required a new form of organisation. The Forum has forty-one member NGOs and is a lobbyist and a consultant to the German federal government on human rights issues. It is really neither an organisation nor a network, but something in between.350 An example of this consulting work is the recent involvement of a working group of the Forum in the setting up of the German Human Rights Institute (a sort of Human Rights Commission).351 HU has been a member of the Forum Coordination Committee (which meets four or five times a year) since 1998. The Forum has not been without controversy, with two of its member NGOs leaving,352 but has generally improved the ability of German DNGOs to lobby Parliament and the Chancellor. In terms of international and regional coalition building, HU has received some criticism for not involving itself enough in the human rights questions of the European Union.353 Recently, it has moved to address this criticism by

346 In Munich the Land group also awards the “Aufrechter Gang” Prize and in Berlin the Land group awards the Ingeborg Drewitz Prize – see http://www.humanistische-union.de as accessed August 28th, 2000. 347 Questionnaire Completed by HU 2001 (original in possession of the author) p14. 348 In the Questionnaire HU answered that its coalitions with DNGOs were ad hoc, but the Human Rights Forum is clearly permanent – Ibid. 349 I.Rürup “Vom lästigen Mahner zum gefragten Partner: Das Forum Menschenrechte – eine Erfolgsgeschichte?” in Vorgänge Op cit at 233ff. 350 Ibid p234. These NGOs are both DNGOs and INGOs. 351 Ibid p235. 352 These were the Committee on Basic Rights and Democracy and the Konrad Adenauer Foundation – Ibid. 353 Helm Op cit p277 at 239. 91

working harder on connections to various networks in Europe.354 This work has as its central concern the need for an EU Bill of Rights and the necessity of presenting human rights issues to the Union.355 Overall, however, HU still has more extensive networks domestically than internationally. Planning HU does not do much planning. It has neither a global plan for coordinating second order tactics nor specific plans for third order tactics.356 The reasons for this are its commitment to decentralisation, allowing branches to take up issues and set the agenda, and its desire to remain flexible enough to deal with new issues.357 As with choice of first order tactics, it appears that it is the fact that HU is a membership organisation that dominates its attitude to planning. An important change in HU’s environment, as the oldest domestic human rights DNGO in Germany, has been the recent proliferation of human rights DNGOs in Germany.358 As with the American case studies, this has led to competition for attention, which HU blames for inhibiting the effectiveness of German DNGOs.359 Its answer to this has been to build organisational structures to further cooperation among DNGOs, creating what it calls a rational information management tactic.360 The Human Rights Forum exemplifies this sort of structure. The existence of the Forum suggests that HU’s approach to this subject may not be atypical of German DNGOs in general. Conclusion In conclusion, HU’s first order tactics are based on its members’ interests. It is thus not constrained by a formal mandate as the British and American case studies are. HU’s uniqueness in this regard, however, may be

354 UNITED for Intercultural Action (Amsterdam), Statewatch (London), Human Rights Watch (Brussels), Netz gegen Rassismus und für gleiche Rechte and the Inter-Citizens Conferences (Berlin) – T.Bauer “Mission meist possible: Die Arbeit der HU-Bundesgeschäftsstelle in der Datenflut” in Vorgänge Op cit p82 at 87. 355 HU Questionnaire Op cit p11. Much like the American case studies, HU appears to envisage the replication of German domestic human rights arrangements in its international and EU work, rather than displaying much knowledge or interest in international arrangements. 356 Ibid pp9-10. 357 Ibid p10. 358 Bauer Op cit p88. 359 Ibid. 360 Ibid p89. 92

exaggerated by the fact that the major membership human rights DNGOs in Britain and America could not be included as case studies.361 With regard to second order tactics, the tactic of socialising the German left-liberal political elite appears to perform an identical function, in the sense of the Functionalist School of Comparative Law, to human rights education of lawyers and civil servants by the British case studies. Both try to alter the symbolic universe of elites so as to make them more favourable to human rights. It seems possible to the author, however, that HU has not correctly identified the left-liberal political elite as being secondary holders of power that can influence the primary decision-makers on domestic human rights in Germany. In lobbying and policy work, both the use of the Human Rights Forum and the lesser direct use of legal rules in lobbying seem to distinguish HU from the above case studies. As in Britain, HU’s litigation is not frequent and is dominated by the policy work agenda. Unlike in Britain, however, HU does more domestic litigation than international litigation. The CTS casts doubt on the correctness of HU’s tactics. As for the American case studies, HU often appears not to target the most severe violations in its environment and to privilege legitimacy over rational adaptation to the environment. An example of the latter is HU failing largely to take advantage of the international and European opportunities in its environment. Germany seems as vulnerable as Britain to international pressure, doing a great deal of international trade and having signed many human rights treaties, yet the lack of legitimacy of international work in the local culture and a lack of expertise in international work appear to have restrained HU from taking advantage of these opportunities. The CTS thus suggests that HU’s lack of planning and its failure to exploit major opportunities in its environment means that its effectiveness could be significantly improved. X. KGD362- First Order Tactics

361 The author refers here to the American Civil Liberties Union (ACLU) in America and Liberty (NCCL) in Britain. Both of these declined to be case studies for this work for the reasons given at footnote 70 of Chapter One. 362 The Committee on Basic Rights and Democracy of Cologne – See Chapter One. 93

In its literature KGD defines its mandate as being to encourage civil society’s engagement in favour of human rights and the tracing of human rights violations to their sources in social structures.363 As at HU, this mandate is too abstract to constrain the work that can be undertaken and everyday practice hinges on the construction of the agenda. Because KGD does not have branches, its agenda is decided by the membership and staff as a whole. KGD is unique among the case studies in this work in having a mandate that focuses not on any governmental institution or elite, but on the public at large. As will be seen in Chapter Five, however, this tactical stance, despite its democratic credentials, does not seem to be very effective in addressing domestic human rights violations. Dominant Second and Third Order Tactics KGD’s primary second order tactic is an intellectual politics carried out through publicity, publication and direct action. Generally KGD’s work begins within its working groups.364 These working groups are set up on the request of two or three members and operate semi-independently, even though KGD financially supports them. In 2001 there were five or six working groups and they met two or three times a year,365 focusing on such issues as biotechnology, refugees and prisoners.366 KGD sometimes uses its second order tactics in a rough sequence. When an issue is raised by a working group or by the staff, a policy is laid down (often in conjunction with interested social movements) for the whole organisation and a press release issued.367 It then organises seminars and conferences on the issue that all interested parties can attend,368 and afterwards publishes appeals and articles in newspapers on the same subject.369

363 See http://www.grundrechtekomitee.de as accessed on August 16th, 2000. 364 Ibid. 365 Ibid. 366 Ibid. 367 Ibid. 368 Ibid. This tactic seems similar in essence to the seminars on human rights law given by JUSTICE, even though KGD’s seminars focus on the politics surrounding human rights issues. This is because they both focus on altering the symbolic universe through education so as to make human rights violations less likely. In this sense they have the same function in the manner described by the Functionalist School. 369 Ibid. 94

KGD’s publicity tactics focus on the print media, rather than television or the Internet.370 It appears that this is because the staff’s resources and expertise lie in this area. As for publication, KGD publishes a wide range of pamphlets and small books.371 It also cooperates with other DNGOs, such as HU, in publishing the Basic Rights Report mentioned above. Officially, demonstrations are not organised by KGD itself. This is because of the fear that it will lose the tax-exempt status that it has in German law if it undertakes such activities372 Instead, KGD’s members organise them as individuals.373 This approach is quite successful, despite the fact that KGD actively advocates the use of civil disobedience374 and publishes manuals on how to undertake it.375 It is not clear whether this success has been because of the sophistication of KGD’s legal approach, permissiveness by the authorities, or some combination of the two. Using demonstrations suits KGD’s goals, which are to create a humanistic socialist society and to critique capitalist, and especially Neo-Liberal, social relations as structural causes of human rights violations.376 This is because using these tactics means that it is not obliged to compromise with what it would see as capitalist laws and political institutions.377 An example of this orientation is KGD's use of civil disobedience to challenge the expulsion of asylum seekers.378 Supplementary Second Order Tactics

370 A split exists within KGD on the use of the Internet, with some in favour and some strongly opposed – Interview with KGD, Cologne, Sept 2001 (notes in possession of the author). 371 Eg the book Castor-Transport im März 2001 – Die Kontinuität undemokratischer Politik und systematischen Mißbrauchs der Polizei (KGD, Köln, July 2001). Also the pamphlet Bürger- und Bürgerinnen Information Die Neue Bundeswehr: Umrüstung zur Angriffsfähigkeit (KGD, Köln, 2000). 372 KGD Interview Op cit. For a summary of the application of German tax laws to DNGOs see Ch 4 below. 373 Ibid. 374 Eg M. Singe Ziviler Ungehorsam für Asylrecht! Für die Abschaffung der Abschiebehaft! Verteidigungsreden vor dem Bonner Amts-und Landgericht (KGD, Köln, March 1996). 375 Eg Ziviler Ungehorsam: Traditionen, Konzepte, Erfahrungen, Perspektiven (KGD, Köln, date unknown). 376 KGD Interview Op cit. 377 For this reason the KGD does not see its location in Cologne, far away from the government of the new Berlin Republic as a problem – Ibid. 378 Eg “400 Menschen protestieren gegen Abschiebepraxis” Frankfurter Allgemeine Zeitung – Rhein- Main Zeitung Mar 3, 1997. 95

Litigation is amongst KGD’s most rarely used subsidiary tactics. When it is used, it is almost always used defensively.379 An example of its use by KGD is the legal representation and fees that it gives to prisoners before the German courts. This activity is an extension of its work to protect the rights of prisoners380 and reform the criminal law.381 A rare example of KGD's offensive use of litigation was an action it brought by KGD and other DNGOs against the German government, first in the Federal Constitutional Court and then the European Court of Human Rights, arguing that the participation of Germany in the Kosovo War was a violation of international and constitutional law.382 Trial383 and demonstration384 observation and reporting are carried out in much the same way as is done by INGOs.385 KGD often leads campaigns to change laws or practices that these observations lead it to believe are threats to domestic human rights standards. KGD lobbies both domestically and internationally. Domestically, the lobbying is mainly done in Parliament.386 One example of this was KGD e- mailing members of Parliament urging restraint in response to the terrorist attack in New York on September 11th 2001.387 KGD also publishes the findings of, and occasionally lobbies, various UN Human Rights Committees.388 Overall, however, because it sees itself as an extraparliamentary organisation,

379 KGD Interview Op cit. 380 This also involves answering letters from prisoners – see “Ehe und Familie stehen unter dem besonderem Schutz des Grundgesetzes – Auch bei Gefangenen?” in KGD Informationen 1/2000 January 2000 p1. 381 Ibid. 382 KGD Interview Op cit and Kosovo Case BVerfGE 100, 266 (1999). KGD was unsuccessful in these cases. 383 Eg J. Breddemann “Der Prozeß gegen Monika Haas” in Kommittee für Grundrechte und Demokratie Jahrbuch ‘95/’96 p91. 384 eg I. Lowin “…….denn das Land gehört den Lebendigen” in Ibid p127. 385 This is historically a common tactic used by Amnesty International – see Larsen Op cit p16. 386 Like HU, KGD also to an extent tries to socialise the Federal Constitutional Court into human rights observance through public debate over issues before the court – see eg A. Jürgens “Das Benachteiligungsverbot Behinderter in der Rechtsprechung des Bundesverfassungsgerichts” in Kommittee für Grundrechte und Demokratie Jahrbuch ‘97/’98 p41. 387 KGD has also been lobbying Parliament to remove the German reservations to the UN Convention on the Rights of the Child, adopted 20 Nov 1989, entered into force 2 Sept 1990,GA Res 44/25,44 GAOR,Supp.(No49), UN Doc.A/44/49, at 166 (1989)- KGD Interview Op cit. 388 B. Riegrof/R. Schutz “UN-Ausschuß kritisiert Deutschland: Menschenrechte der Flüchtlinge werden verletzt” in Komitee für Grundrechte und Demokratie Jahrbuch ‘98/’99 p67ff. 96

KGD does not have much to do with the German state or international organisations.389 KGD sees giving direct aid to victims of human rights violations as effective and an expression of solidarity. An example of this, outside of domestic human rights work, is an international program KGD runs that takes children from the former Yugoslavia on holidays to the Adriatic coast.390 This programme also exemplifies the importance KGD places on peace as a human right.391 Networks With Other Organisations KGD has extensive relationships with DNGOs, but no relationships at all with INGOs.392 KGD was one of two organisations that left the Human Rights Forum.393 It did so because it felt that the Forum was too close to the state, and that too much work was involved for the advantage it obtained.394 It still has extensive contacts with the NGOs in the Forum,395 however, and is involved in collective projects with DNGOs that are members of the Forum such as the Basic Rights Report.396 The largest advocacy network that KGD is connected to is within the social movements, for which it is the ‘head organisation’ on human rights.397 Connections to the peace movement; environmental movement; unemployed persons' movement; refugee rights movement; social rights movement and anti- Globalisation movement398 give it an immense network to draw upon outside of

389 KGD Interview Op cit. 390 K. Vack “Ein Sonnenstrahl im lange abgedunkelten Keller” KGD Jahrbuch ‘95/’96 Op cit p441. Also Ferien vom Krieg: Dokumentation der Ferienfreizeiten für Flüchtlingskinder aus dem ehemaligen und heutigen Jugoslawien (KGD, Köln, April 2001). 391 Eg articles on conscientious objection and appeals to soldiers to desert – “Kriminalisierung Verweigerungs-Appelle” Komitee für Grundrechte und Demokratie Jahrbuch ‘99/’00 p299. See also C. Herz Totalverweigerung: Eine Streitschrift für die totale Kriegsdienstverweigerung (2 Aufl) (KGD,Sensbachtal, Jan 1996). 392 Questionnaire Completed by KGD 2001(original in possession of the author) pp13-14. 393 The other was the Adenauer Foundation. 394 KGD Interview Op cit. There has been some suggestion also that KGD was unhappy with the Realpolitik of some members of the Forum in gaining human rights observance. 395 For a list of the NGOs in the Forum see Handbook for Human Rights Work published by the Friedrich Ebert Stiftung and the Forum Menschenrechte at http://www.fes.de/handbuchmenschenrechte/ as accessed September 16th 2001. 396 See above for discussion of this with regard to the HU. 397 KGD Interview Op cit. 398 Ibid. 97

links to other DNGOs. On this basis, it is easy to see why KGD sees itself as a people’s political organisation rather than an NGO in the classic sense.399 Although KGD has no links with INGOs,400 it has links with DNGOs in France401 and Britain.402 These links, however, are more personal and ad hoc than official and permanent. KGD is interested in international networking with DNGOs like itself, but has difficulty locating such organisations.403 Planning Like HU KGD does little planning,404 and appears to place a great deal of emphasis on flexibility. The closest it comes to such planning is when the Executive, Secretary and working groups combine into a working committee that meets two or three times a year and discusses and sets tactics.405 The ultimate reason for this lack of planning appears to be the fact that KGD is a membership organisation and thus has its tactical decisions largely determined by its members’ opinions or by social movements it works with.406 Planning must also take account of the fact that the parties in Parliament are receptive to its work to varying degrees. The German Greens are far more receptive to KGD’s work than the other parties, while the SPD and PDS lend support less often.407 Conclusion KGD’s first order tactics, as at HU, are largely determined by its members' interests. For second order tactics, publicity and publication are undertaken with a distinct emphasis on the traditional intellectual medium of print, with less attention paid to newer media. The focus of second order tactics on civil society as secondary holders of power with the ability to influence the primary decision-makers in government seems questionable to the author. This

399 Ibid. KGD is thus a case study that would probably contest being studied in this work as a DNGO. KGD did in the author’s interview with them contest the idea that they were an NGO. 400 KGD does have connections to and use the European Committee on Torture, however- Ibid. 401 Such as the DNGO Sans Papier – Ibid. 402 Ibid. 403 Ibid. This problem may be circular in that, without international contacts, locating such organisations may be difficult. 404 KGD Questionnaire Op cit p9. 405 Ibid p10. 406 The reasoning with regard to social movements seems similar to BIRW’s reasoning with regard to INGOs. Both are so influenced by these organisations that they feel planning to be unrealistic, because these other organisations can call the shots. 407 KGD shows interest in expanding its contacts with these parties – KGD Interview Op cit. 98

assessment seems to be confirmed by the analysis of KGD’s effectiveness in Chapter Five. Direct action and organising are undertaken indirectly so as to avoid legal problems. The major supplementary second order tactics are undertaken rarely, and mostly to defend individuals involved in the dominant second order tactics or to support those tactics. Despite its radical ideological nature, KGD’s balance between legitimacy and rational adaptation to the environment is similar to HU’s. Like HU it thus shows significant variation from what the CTS would suggest. Even in radical circles in Germany it appears that domestic work (even if it is different domestic work) has greater legitimacy than international work. This failure to more closely conform to the CTS appears to have put KGD in a position where it is less effective than it could be, because it does not make use of new international and European opportunities within its opportunity structure, or even domestic opportunities such as litigation. This result is surprising given the extensive analysis that KGD has done of the effects of Globalisation on Germany.408 XI. GBM409 - First Order Tactics GBM’s first order tactical stance is simultaneously to protect the human rights of former citizens of East Germany as a minority,410 and generally to further social human rights within Germany.411 It thus resembles the dual focus on norms and groups shown by LDF. The main difference between the two approaches lies in the normative focus. GBM is focused on social rights whereas LDF focuses on civil and political rights. Dominant Second and Third Order Tactics GBM’s dominant second order tactics are publication and lobbying. Its third order tactics for publication and media are to work within Germany, whereas there is a distinct European and international focus in its lobbying and litigation work. GBM appears to have a wide view of where power lies to influence the domestic human rights decisions it is interested in that includes

408 See for eg “Schwerpunktthema: Globalisierung und Menschenrechte” in KGD Jahrbuch 1995/1996 Op cit p177. 409 The Society for the Protection of Civil Rights and Human Dignity of Berlin – see Chapter One. 410 “Declaration at the Press Conference for the Founding of GBM” in GBM White Book – Unrest in Germany – Discrimination in the New Länder (GBM, Berlin, 1992) (in German) p457. GBM seems to be of the opinion that German authorities discriminate against former East German citizens when making decisions concerning them, especially in the context of Reunification. 411 Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). 99

the Federal Constitutional Court, the German Parliament, intellectual opinion in Germany and European and international courts and institutions. GBM’s publication work is generally carried out in four ways. Firstly, it is carried out through the publication of White Books. These are volumes of documentation of alleged human rights violations in eastern Germany.412 Secondly, through the publication of “Icarus”- GBM’s in-house journal.413 Thirdly, through the publication of information leaflets414 and fourthly, through publication of its web site.415 GBM’s publications, unlike at KGD, focus on those intellectuals likely to read political material, and not on the general public or on decision makers. As at HU, it focuses on elites that construct public opinion and the symbolic universe in which discourse occurs. Although GBM claims to be concerned about the impact of its publications,416 its de facto focus seems to be on their intellectual quality. Within Germany GBM lobbies both through the Human Rights Forum, of which it is a member, and in its own right. This lobbying is focused on the issue of pension inequalities between east and West Germany, and prosecutions of former GDR officials. In Parliament, GBM had some success in lobbying under the previous CDU government, but has had less success with the current SPD/Greens government.417 GBM will often combine its international and national lobbying. One common method of doing this is to get sympathetic members of Parliament to ask the government questions about international criticism of Germany resulting from GBM’s international lobbying.418 Internationally and in Europe, GBM has successfully lobbied the European Parliament on the Berufsverbot;419 it has

412 Eg White Book No 2 – Dissatisfaction in Germany – Scholarship and Culture During Reunification (GBM, Berlin, 1993) (in German). 413 See volumes cited below. 414 Eg GBM Informationen 3/2000. 415 See http://www.gbmev.de as accessed on August 14th, 2000. 416 Questionnaire Completed by GBM 2001 (original in possession of the author) pp5 and 6. 417 Ibid. 418 “Letter from VHW” in (1999) 2(16) Icarus p50 (in German). 419 Ibid. As mentioned above, the Berufsverbot is a law mandating occupation bans on (usually) left wing figures joining the German public service. During reunification the Berufsverbot was extended to former GDR officials. 100

lobbied members of UNESCO;420 the ILO;421 the OSCE;422 as well as the UN Economic and Social Rights Committee during its reviews of Germany’s periodic reports.423 GBM does not employ professional lobbyists, but because its membership includes former East German academics and diplomats, it has the expertise and time to carry out this work itself. Supplementary Second Order Tactics An important supplementary tactic for GBM is litigation. It practices litigation at both the national and international (or European) level, but focuses on the latter. GBM argues that concentration on international law was a tradition in East German law schools (and not West German ones) before unification.424 It also appears to trust international or European courts to be more unbiased than domestic courts. Despite this preference GBM (or the Society for Legal and Humanitarian Aid (GRH), which is a member of GBM as an organisation425), has taken many cases to the Federal Constitutional Court. It does not litigate these cases in its own name, but rather supplies human rights lawyers and money to plaintiffs it wishes to support.426 The subjects of these cases cover most of the issues that GBM campaigns on, amongst which was a case brought against the Berufsverbot,427 and one on the constitutionality of pension laws affecting former East German citizens.428 GBM, however, has only had mixed success in this domestic litigation. More commonly, GBM supplies lawyers and money to take cases to the European Court of Human Rights. GBM claims to have been involved in more

420 “Position of the GBM on Social Security Injustice for the Federal Constitutional Court” (1997) 3(9) Icarus 39 at 40 (in German). 421 Ibid. 422 In 1998 a GBM representative took part in the October meeting of the OSCE in Warsaw – W.Richter “A Library – Not Just to Combat Forgetting” (1997) 3(9) Icarus 2 at 5 (in German). 423 Dr J. Zenker “Economic, Social and Cultural Rights in the Federal Republic in the Light of the Demands of the Second Congress of Democrats of 1848. On the Position of GBM on the Third Periodic Report of Germany on the Fulfilment of the Social Covenant” in 1998/4 (No14) Icarus p76 at 77(in German). 424 GBM Interview Op cit. 425 Sometimes also the Initiative Against the Berufsverbot, which is connected to GBM – See www.gbmev.de as assessed on August 14th 2000. 426 Ibid. GBM also refers enquirers to lawyers and to information. 427 The East German Diplomats Case BVerfGE 96, 68 (Jun 10, 1997). 428 See U. Schönfelder “Das Karlsruher Urteil” in 2/99 (No16) Icarus p37. One of the statutes that have been the subject of GBM court challenges was Art 3 of the Anspruchs – und 101

than fifty cases going to Strasbourg, having directly brought twenty of them.429 Among the prominent cases that it has been involved in at the European Court of Human Rights have been a case on the Berufsverbot,430 and the case on the prosecution of former East German leaders.431 It has also brought a small number of cases before the European Court of Justice.432 Among the other procedures that GBM periodically uses are the Resolution 1503 procedure of the United Nations Human Rights Commission;433 complaints to the International Labour Organisation (ILO);434 as well as complaints to UNESCO 435 and the UN Human Rights Committee.436 GBM's minor subsidiary tactics consist of awarding an annual human rights prize,437 organising cultural activities such as art exhibitions438; working to establish a library of East German culture;439 creating an unofficial International War Crimes Tribunal for the War Against Yugoslavia;440 running study groups on East German culture441 and creating an alternative East German history forum.442 Networks With Other Organisations

Anwartschaftsüberführungsgesetz (AAÜG) – Helen Steininger “Versorgungsunrecht und Menschenrechte” in 1996/1 (No4) Icarus p3. 429 GBM Interview Op cit. Note, however, that research discussed in Chapter Five does not provide evidence for so many cases. 430 Vogt v Germany (1996) 21 EHRR 205. 431 Streletz, Kessler and Krenz v Germany (2001) 22 EHRR 31. For GBM support see GBM Informationen 7-8/2001 p2. 432 Richter Op cit p5. There have been two cases – GBM Interview Op cit. 433 “Position of the GBM …” Op cit p39. 434 J. Zenker “The Berufsverbot in the Light of the International Human Rights Law Regime – Implications for the Furthering of the Fight Against Occupational Discrimination on Political Grounds” in Ibid p32 (in German). 435 Ibid p34. 436 Ibid p37. 437 In 1998 the prize was awarded to President Castro of Cuba for his work on social rights – (1998) 3(13) Icarus p29. 438 K. Schulmeister “Exhibition of the Works of Paul Michaelis, Willi Sitte and Walter Womulka beginning on the 7th October 1999” in 3-4/99(No17) Icarus p79 (in German). 439 Richter “A Library…” Op cit p2. The author has no opinion as to whether a distinct “East German culture” exists, but merely notes that in the opinion of GBM it does and that GBM devotes some of its efforts to its preservation. 440 In 3-4 (No17) Icarus p57. See also G. Pumphrey “Kosovo und Menschenrechte. Der Kosovo- Konflikt: Anmerkungen und Fragen” in (1998) 2(12) Icarus p79. 441 Richter “A Library..” Op cit. 442 “Berlin Alternative History Forum” GBM Informationen 9/2001 p1 (in German). 102

GBM is permanently connected to networks both domestically and internationally.443 Domestically GBM, like HU, is a member of the Human Rights Forum and uses it to aid its lobbying in Parliament.444 At the time of interview the President of GBM was also the head of the East German Council of Organisations (OKV), which is a network of twenty-three organisations with about half a million members that came together in 1992 to defend the interests of former East Germans.445 GBM’s network also includes unions, unemployed persons’ groups and groups campaigning for social rights.446 GBM’s international network is even more extensive. It includes the European Peace Forum; the International Action Centre in New York; the Race Foundation in the UK; the International Association of Democratic Lawyers; the Slavic League in Russia and the League of Anti-Fascists in the Balkans.447 It should be noted that GBM’s network covers Eastern Europe,448 and that many of the above organisations share its Neo-Marxist view of human rights. Planning GBM does a great deal of planning. It creates annual plans that govern how its second order tactics are combined and how third order tactics are conducted.449 These plans are written and, although there is some deviation from them in practice, they substantially guide activities in that year. The balance between adherence to the plan and deviation from it seems similar to that examined by Wasby with regard to impact litigation in America.450 In the future, in the light of the Kosovo War and the wars in Afghanistan and Iraq, GBM wants to focus planning for its work on the collective human right to peace.451 Conclusion

443 GBM Questionnaire Op cit p11. 444 GBM, however, has had some disputes with west German NGOs in the Forum – Ibid. 445 Richter “Eröffnung” Op cit p3. 446 W. Richter “Prosperity for Some, Despair for Many, Dignity for None. The Communist Manifesto and the Struggle for Democracy” (1998) 2/12 Icarus p32 at 36 (in German). 447 GBM Interview Op cit. Also Euromarch, the Maastricht No Movement, the Coalition Against MAI, the European Citizens Forum and the Erfurt Enlightenment Initiative – Richter “Prosperity…” Op cit at 36. 448 The Slavic League and the League of Anti-Fascists are part of this Eastern European network. 449 GBM Questionnaire Op cit pp7-8. Also GBM Interview Op cit. 450 S.L.Wasby “How Planned is “Planned Litigation”?” (1984) 83 American Bar Foundation Research Journal 85 at 88. 103

GBM’s first order tactics resemble those of the American case studies in that there is a focus on both legal norms and a social group. GBM is unusual, however, in focusing on social rights. GBM’s second order tactics concentrate on publication and lobbying, with only some attention given to litigation and cultural events etc. This pattern suggests that a combination of intellectual and technical expertise is available amongst GBM’s members. This combination of resources appears to have historical origins as GBM’s membership is composed both of members of the GDR intellectual opposition and former GDR government officials. GBM’s activities thus cover the whole spectrum set out in Chapter One from classic mobilisation of law through to the use of the ‘constitutive’ power of law. GBM conforms more closely to the CTS than the other German case studies. In terms of the balance between the need for legitimacy and rational adaptation to the environment, it appears to favour rational adaptation to the environment. The reasons for this appear to be both the greater amount of international work that it does, allowing it to ‘escape’ domestic pressures for legitimacy to a degree, and the greater legitimacy of international work among its supporters and members. It also appears to do more domestic litigation than HU or KGD. The reason for this appears to be the support it is given by former GDR law professors. Overall, GBM appears to show some similarities to the British case studies in that international work seems to have improved its adaptation to the environment. XII. The German Case Studies – Discussion and Analysis The common theme of the German case studies seems to be one of human rights advocacy as the domain of the dissident political intellectual of continental European tradition. Each case study has different intellectual and political standpoints on human rights. The intellectuals of HU are left-liberal; the intellectuals of KGD are left-libertarian and the intellectuals of GBM are Neo- Marxist. Their criticism of human rights violations thus seems to have been absorbed into traditional forms of political critique to the point that a blurring occurs between human rights criticism of a regime and advocating the change of that regime. The exception to this generalisation is GBM, as it is not just

451 GBM Interview Op cit. This appears to be part of the German Anti-Fascist tradition that intellectuals of the former GDR are especially committed to. 104

composed of intellectuals but also former GDR government officials that have technical abilities. This general pattern contrasts strongly with the American and British case studies, where lawyers or those with legal expertise typically fulfil this role. In terms of the analysis of the Functionalist School of Comparative Law, the dissident intellectuals of the German case studies and the lawyers or people with legal expertise in American and British studies appear to perform the same function of being the agents that mobilise the policy demands of human rights law in order to make them part of the internal discourse of governments. The dominant tactic of the German case studies appears to be to gain superiority in the battle of ideas.452 Superiority in this battle is achieved through debate, both internally and externally, either in person or through publications. For them the battle is both over what human rights are and what priority they should have in government policy. This is done through general intellectual debate, rather than in a targeted way through publication or the media as in Britain and the US. Due to a certain culture of intellectual disapproval of technical knowledge and money, lobbying and litigation are not seen as priorities in themselves, but rather as methods of driving home the advantage of a dominance in the world of ideas. The effect of superiority in the realm of ideas is seen indirectly to be dominance of the makers of public opinion. This is supposed to lead to socialisation of the state and other entities into human rights observance. Applying the Comprehensive Tactical Stance to this general tactical stance is revealing. It would suggest that there may be too great a reliance by the German case studies on elite intellectual opinion leading to better human rights observance. The German case studies do not appear to target the most promising opportunities in their environment for influencing decisions on domestic human rights. For the most part, other possible strategies such as litigation in the Federal Constitutional Court, which is increasingly important given the growing role that that Court has in the German governmental system,

452 As Karl Mannheim, the German philosopher, remarked on this phenomenon: “Different interpretations of the world for the most part correspond to the peculiar positions the various groups occupy in their struggle for power” - V.Meja & N.Stehr Knowledge and Politics: The Sociology of Knowledge (Routledge, London, 1990) p58. 105

453 are under-utilised. The main exception to this is GBM, which has former GDR officials in its ranks who have the expertise to execute other tactics, such as the diplomacy necessary for international lobbying or the legal expertise necessary for litigation. To gain influence in Parliament, it is generally necessary to penetrate the party machines and through them gain influence over the committees.454 Each of the case studies works through specific political parties. For HU it is the SPD and Greens; for KGD the Greens, and for GBM it is the PDS and SPD. This, along with intellectual traditions in political ideology, seems to explain the ideological nature of the German case studies compared to the British and American ones. German political culture also seems to explain the focus of the German case studies on social rights – a focus usually ascribed to third world DNGOs, rather than western DNGOs. 455 In summary, the German case studies (with the exception of GBM) seem constrained as much by aspects German political and legal tradition as the American case studies are. XIII. Conclusion – The Balance of Imperatives Model At a high conceptual level, the case studies suggest that tactics tend to be determined by the pull of two contradictory imperatives. On the one hand, the need for DNGOs to obtain sufficient legitimacy456 to function well requires DNGOs to choose tactics that are acceptable within their legal and political cultures. It appears that the local networks of DNGOs, which Posner noted as one of their strengths compared to INGOs, 457 can also, however, have a negative effect. They can lead to local cultures placing great demands for legitimacy on DNGOs, such that they feel compelled to adopt tactics seen as acceptable in that culture. This imperative, along with overwork and lack of self- evaluation, tends to cause DNGOs not to change tactics when to do so would improve effectiveness.

453 K.von Beyme The Legislator: German Parliament as a Centre of Political Decision Making (Ashgate, Aldershot, 1998) p2. 454 Ibid p5. 455 When asked, the German case studies emphasised that social rights advocacy was part of the German political tradition – see eg KGD Interview Op cit. 456 For a discussion of the concept of legitimacy see – Habermas Op cit. 457 See M.Posner “Human Rights and Non-Government Organisations on the Eve of the Next Century”(1997) 66 Fordham Law Review 627. 106

On the other hand, a human rights DNGO must also rationally adapt to the opportunity structure458 in its environment. It must abandon or alter tactics that are less successful and be on the lookout for opportunities to generate creative responses. It must then choose tactics to exploit those opportunities for the particular issues it is addressing. The Comprehensive Tactic Stance embodies this ideal of rational adaptation to the environment. This imperative, when not frustrated by resource problems, structural inhibitions or internal culture, tends to induce DNGOs to try new tactics. Overall, the case studies thus seem to exhibit similarities, not in the details of their tactical stances, but in the forces that they have to balance in deciding on their tactics. As will be seen in Chapter Five, the more successful human rights DNGOs have competently negotiated this difficult balancing exercise. To gain greater rational adaptation to the environment, they either adopt different domestic tactics like LCCRUL and CCR, or they enter the international sphere like GBM. It should also be noted that because all aspects of DNGO work are interdependent, changes in tactics inevitably lead to changes in DNGO structures and acquisition of resources. The nature of advocacy networks and their participating organisations, and whether they cooperate or compete with one another, can also complicate the more simplified picture set out above. The American case studies show a strong bias towards legitimacy as opposed to adaptation to the environment, a bias which is reinforced by their being overwhelmed by work and having few mechanisms to review their work. This bias towards legitimacy means that they strongly favour litigation as a second order tactic. This is especially so at LDF, whereas at LCCRUL and CCR greater attempts at adaptation to the environment appear to have been made. In the British case studies, a much better balance appears to have been struck between legitimacy and adaptation. This seems to be because the British case studies are more connected to the international human rights culture than the American ones are. This appears to have given them the ability to avoid some of the more strident demands for legitimacy from the local culture. BIRW and CAJ can be been seen as examples of this.

458 For a definition of opportunity structure see M.E. Keck & K.Sikkink Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca and London, 1998) p7. 107

This result is curious, as there seems to be no reason in principle why responding to international demands for legitimacy should make a DNGO more adapted to the environment than responding to domestic demands for legitimacy. As mentioned in Chapter One, the key to this phenomenon appears to be the differences involved in mobilising international law rather than domestic law. International law has a greater number of fora than exist domestically. If the costs in local legitimacy are not too high, this can encourage DNGOs to ‘escape’ a jurisdiction where there are not many opportunities, into an international situation where they are much less easily restrained. Demands for legitimacy in the international sphere appear to be more varied and diffuse. This situation appears to give greater scope to a DNGO to rationally adapt to its environment without being so constrained by demands for legitimacy. Lastly, the German case studies appear, like the American ones, to be much more focused on legitimacy compared to adaptation to the environment. For the German case studies, however, the attachment is to an intellectual politics of human rights (which has legitimacy in German culture). The main exception to this appears to be GBM, where the inclusion of former GDR officials as members, and greater connection to the international sphere, appear to have given it the same ability as the British case studies to ‘escape’ local demands for legitimacy. A Difference Theory Approach Although the above model might be illuminating there is, as mentioned by the Difference School, a possibility that such a conceptual apparatus might obliterate the important differences between the tactical choices of the case studies. From the point of view of Difference Theory, the tactical ‘styles’ typically used by DNGOs in each jurisdiction can be seen to constitute different ‘ideas of justice’ (in the sense discussed in Chapter One) of what tactics DNGOs should use to defend human rights. Using this approach is especially important in this field, as there appears to be less convergence459 between the tactics of DNGOs mobilising human rights law in these three jurisdictions than in areas such as private law. The American case studies clearly view mobilisation of law in the courts as their ‘idea of justice’ for DNGOs tactics. The British case studies have a 108

matrix of lobbying, education and international litigation as their ‘idea of justice’ for DNGOs tactics. Lastly, the German DNGOs have an intellectual politics leading to cultural influence as their ‘idea of justice’ for DNGO tactics. Each of these approaches is distinct, and this should not be obliterated by too much focus on their commonalities. Transplantation of DNGOs Tactics Between Jurisdictions As mentioned above, some theorists have stressed the ways in which Globalisation could have the effect of creating cultural imperialism in Comparative Law by insisting on stultifying sameness.460 This has led to a negative view of transplantation between jurisdictions. In the opinion of the author, this has had the unfortunate effect of obscuring the extent to which transplantation could help in the enforcement of human rights, rather than spread what are often seen as the more undesirable consequences of Globalisation. The classic debate over legal transplantation in Comparative Law occurred between Kahn-Freund461 and Watson462 in the 1970s. Kahn-Freund put forward a cautious view of legal transplantation, arguing that significant understanding of the political and cultural context was necessary for success. He argued that the most crucial variable for whether a legal transplant would be successful was the similarity of the distribution of power within the two jurisdictions.463 Watson, on the other hand, argued that successful transplantation had frequently occurred.464 He cited the reception of Roman Law in Europe and the use of European legal codes by developing nations as prime examples465 and he put forward a complicated calculus of forces

459 For a discussion of convergence see B.S. Markesinis The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century (Clarendon Press, Oxford, 1994) p21. 460 See for eg J.Kelsey “Globalisation, State and Law: Towards a Multi-Dimensional Polity”, Unpublished Conference Paper, Australasian Law Teachers Conference, La Trobe University, Melbourne, Australia, September 1995. 461 See O.Kahn Freund “On the Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1. 462 See for eg A.Watson “Legal Transplants and Law Reform” (1976) 92 Law Quarterly Review 79. 463 E.Stein “Uses, Misuses and Non-Uses of Comparative Law” (1977) 72 Northwestern University Law Review 198 at 200. 464 Watson Op cit p80. 465 For examples of the latter see M.B.Hooker Legal Pluralism: An Introduction to Colonial and Neo- Colonial Laws (Clarendon Press, Oxford, 1975) p362ff. 109

favouring and opposing transplantation to explain when transplants would be successful.466 To the author, the views of Watson seem especially applicable to comparing DNGO tactics. Many of the methods used by DNGOs are of such generality that, to paraphrase Watson, they seem to be good candidates for transplantation because they are somewhat divorced from specific cultural and political contexts.467 Like European civil codes, the tactical stances of human rights DNGOs seem capable of working in many different environments. For this reason, it seems arguable that transplantation of tactics used in other jurisdictions could be beneficial to some of the case studies if it were to help them achieve better rational adaptation to the environment in the way suggested by the Comprehensive Tactical Stance. This is not to take the impractical stance, in an environment of limited resources, expertise and legitimacy, that all of the case studies should practice all possible tactics. Rather it is to argue that if the CTS indicates that better rational adaptation to the environment can be achieved by exploiting environmental opportunities that have not been exploited before, then transplanting tactics used successfully for that purpose in other environments might be beneficial and possible for the reasons set out by Watson. Such a transplantation could be an aid to a DNGO in its process of changing tactical priorities to achieve better effectiveness. For the American case studies it will be recalled that the CTS recommended a shift to international work, lobbying/policy work and work in civil society. For this reason, transplantation of the techniques of international lobbying and litigation from the British case studies, and possibly also intellectual and cultural politics from the German case studies,468 may offer them better rational adaptation to the environment. As mentioned above, some of the American case studies have increasingly focused on Congress and civil society, and transplantation might make this work more effective. In practice, the American case studies reveal a drift towards international work, and

466 A.Watson “Comparative Law and Legal Change” (1978) 37 Cambridge Law Journal 313 at 333. The author did not use Watson's calculus for when a transplant would be successful both because there was not enough data from the case studies to support all of it and because some of the terms used (such as 'Felt Needs') are vague and thus difficult to use in concrete situations. 467 Ibid p330. 468 It may be that the Critical Legal Studies movement in the US in the 1980s was precisely an attempt to create an intellectual politics of domestic human rights in the US – see generally for eg D.Kairys The Politics of Law (Basic Books, New York, 1998). 110

transplantation of more sophisticated tactics for this work could also improve their effectiveness. For the British case studies, it will be recalled that they were largely in conformity with the CTS. It may be, however, that with the advent of the Human Rights Act they will need to focus more on domestic litigation. They could for this reason benefit by learning more sophisticated forms of domestic litigation from the American case studies. As Epp remarks,469 the phenomenon of increasing judicial involvement in human rights issues is a global trend. Importation of American litigation techniques could, therefore, achieve success and acceptance because of this trend. Factors exist that could hinder transplantation of these tactics. The power distribution in Britain, with its traditional emphasis on Parliament, may create resistance to greater emphasis on domestic litigation. In addition, the culture of the British courts, with its traditional self-restraint, could also lead to resistance to such tactics. Despite these possible obstacles, however, the adoption of such tactics seems to the author to be both within the realm of the practicable and useful. Lastly, it will be recalled that the CTS recommended that the German case studies focus more on litigation and international work. Because of this, the German case studies could benefit from adopting litigation tactics from the American case studies and international lobbying and litigation techniques from the British case studies.470 If, as it is often argued in Comparative Law, it is true that the common law and civil law systems are converging,471 transplantation of legal tactics from American and British DNGOs to German DNGOs makes sense as the human rights aspect of this trend. Transplantation of the tactics of the British case studies could also be furthered by the process of European integration, which has accelerated legal transplantations between members of the EU. As for the other jurisdictions, factors exist in Germany that could hinder the successful transplantation of such tactics. Because of its different nature, resistance could be expected from German legal culture to American litigation techniques. There may also be resistance by political intellectuals to

469 Epp Op cit. 470 A possible exception to this might be GBM, which seems already quite sophisticated in this field. 471 For a discussion of this see Markesinis Op cit p21. 111

professional lobbying because such a move would shift the focus away from their area of expertise. Yet the forces of convergence and European integration favouring such transplantation, and the gains that might be made through them, suggest to the author that transplantation is desirable here also. In short, greater transplantation of DNGO tactics could, in the circumstances indicated by the CTS, improve their rational adaptation of most of the case studies to the environment and hence their effectiveness. In conclusion, tactics may be capable of being fruitfully transplanted between jurisdictions to improve performance and rational adaptation to the environment. Each DNGO thus has the possibility, when it knows of techniques used elsewhere, of shifting the type of advocacy it can undertake in specific circumstances to increase effectiveness. Although one must always be cautious about using case studies to make general points, it seems possible to generalise from them to suggest that many of the above conclusions might be applicable to most DNGOs within the three jurisdictions. Research on the tactics of DNGOs thus offers new techniques and perspectives to people working in them on questions that are often not answered in ways that are well informed or self-reflective.

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Chapter Three: The Structure of Human Rights DNGOs in the United States, Britain and Germany This chapter establishes a conceptual framework for the analysis of the structure of human rights DNGOs, and examines the extent to which those structures might affect their ability to mobilise law in defence of human rights. It also attempts to comment on the main factors that determine which structures DNGOs adopt in practice. As mentioned above, the theories of Burstein and Wasby both posit structure as one of the most important variables in the mobilisation of law to defend human rights by organisations. That claim is investigated in this chapter through examination of the structures of the case studies for clues as to how DNGOs can best be structured to mobilise law in defence of human rights in different situations.

As mentioned above, Alston has remarked1 that human rights law draws upon many disciplines and modifies them for its purposes. In discussing the structure of human rights DNGOs this chapter mainly draws upon Organisation Theory and modifies it for the specific purpose of examining the structures of human rights DNGOs. Because Organisation Theory as a discipline has been focused on for- profit corporations rather than not-for-profit bodies, there is a certain incompatibility in using concepts from Organisation Theory to analyse the structure of human rights DNGOs. This incompatibility exists because, as Alain

Touraine has remarked, 2 social movements (and human rights DNGOs) develop an awareness that they are interrogating the basic values of their society. This contrasts with most of the organisations considered by Organisation Theory, which have much more self-interested aims such as the making of profit. To put it as Jürgen Habermas has, 3 social movements and human rights DNGOs have a civilization building and developing role, which commercial corporations generally do not. Charles Tilly remarks in his theory of revolutions that organisation is a key component which successful social movements must develop at some time

1 See introduction. 2 A.Touraine The Voice and the Eye: An Analysis of Social Movements (Cambridge University Press, Cambridge, 1981) p81. 3 See generally J. Habermas The Theory of Communicative Action Vol 2 (Polity Press, Cambridge, 1987). 113

in their life cycle to be effective.4 Assuming that Tilly's theory is accurate, the development of organisation seems as crucial a question for human rights DNGOs as for the social movements that Tilly describes. Despite the fact that social and revolutionary movements have produced highly intricate organisational forms, such as the Bolshevik vanguard party,5 no analytical language describing these organisations has developed. In the absence of such a language, it is thus useful to draw upon Organisation Theory, as it can supply both a more detailed analysis of such structures and also supply tools to evaluate how they might facilitate or hinder efficiency in mobilising law in defence of human rights. A. Relevant Concepts of Organisation Theory Organisation Theory defines organisational structure as the formal system of task and authority relationships that control how people coordinate their actions and use resources to achieve organisational goals.6 Structures have the capacity to control the way people behave, the means used to motivate them to achieve the goals of the organisation,7 and how they respond to their environment.8 The following concepts drawn from Organisation Theory are for the purpose of description and analysis of the organisational structures of the case studies. Some of these concepts, however, are also evaluative, because Organisation Theory posits that the adoption of certain structural features in certain situations should increase efficiency.9 Some of these concepts are therefore used, as set out in the Balanced Model below, to evaluate the impacts of different structures on the effectiveness of the case studies in different environments.

4 See C.Tilly From Mobilisation to Revolution (Addison-Wesley, Reading (Mass), 1978). Also A.Giddens Sociology (3rd ed) (Polity Press, Cambridge, 1997) p507. 5 See R.Service The Bolshevik Party in Revolution: A Study of Organisational Change (Macmillan, London, 1979) and R.J.Hill & P.Frank The Soviet Communist Party (Allen & Unwin, London, 1986). 6 G.R Jones Organisational Theory: Text and Cases (2nd ed) (Addison-Wesley, Reading (Mass), 1993) p11. 7 Ibid. 8 Ibid p35. 9 Ibid p11. 114

I. The Mission The overall goal of an organisation is its mission. It describes the organisation's vision, its shared values and beliefs and its reason for being.10 With human rights NGOs, the narrower question of what goals the NGO is trying to achieve is normally termed the mandate.11 The goals of an organisation may be divided into official and operative goals.12 Official goals, such as those in the mandate, communicate legitimacy to other similar organisations, employees and the public.13 For human rights DNGOs, legitimacy is crucial for acquiring resources and creating links with other organisations. Operative goals designate the actual goals of the organisation in practice, and explain what it is actually trying to do.14 II. Organisational Culture Organisational culture is the set of shared values and norms that control how members of the organisation interact with each other, those they serve and those outside of the organisation.15 These values and beliefs are so taken for granted that they are beyond the power of individual managers to change, and they reflect assumptions people make about their work.16 Organisational culture may not be obvious or fully conscious behaviour, and may run counter to statements of both official and operative goals.17 Though largely unstated, it can affect the range of choices and tactics that an organisation will consider or adopt. 18 Leadership has an important effect on both structure generally, and organisational culture in particular. Powerful and charismatic leaders of DNGOs can set the tone of, and decisively influence, organisational culture. Likewise, the events that constitute the origin of a DNGO can influence both its current

10 See J.A.Pearce II & F.David “Corporate Mission Statement: The Bottom Line” (1987) 1 Academy of Management Executive 109-16; C.K.Bart “Sex, Lies and Mission Statements” (Nov-Dec 1997) Business Horizons 23-28. 11 See generally P.R.Baehr “Amnesty International and its Self-Imposed Mandate” (1994) 1 Netherlands Quarterly of Human Rights 5. 12 R.L.Daft Organisation Theory and Design (7th ed) (South-Western College Publishing, Cincinnati (OH), 2001) p53. 13 Ibid p55. 14 Ibid p53. 15 Jones Op cit p12. 16 D.Kellaher & K.McLaren Grabbing the Tiger by the Tail: NGOs Learning for Social Change (Canadian Council for International Cooperation, Ottawa, 1996) p42. 17 Ibid. 115

structure and its organisational culture. Ideas and worldviews, commonly held at the point of the creation of a DNGO by its founders often continue to be embedded in its structure and culture. The organisational culture of human rights DNGOs includes not only managerial questions, but also general understandings of the nature of human rights and views as to whether they are political or legal. This includes, as was studied at length by Livezy,19 the general understanding of a DNGO as to what human rights are, which has an important impact on the type of unconscious assumptions and practices that DNGOs adopt. III. Organisational Design Organisational design is the process by which the people who run the organisation select and manage aspects of its structure and culture so that it can control the activities necessary to achieve its goals.20 Organisational design is about how and why various means are chosen to achieve organisational goals. One choice available for a manager engaging in organisational design is that between mechanistic and organic structures. Mechanistic structures are designed to induce people to behave in predictable, accountable ways.21 Decision-making authority is centralised, subordinates are closely supervised, and information flows mainly in a vertical direction down a clearly defined hierarchy.22 Organic structures, on the other hand, are decentralised. 23 Decision-making authority is distributed throughout the hierarchy, and people assume authority to make decisions as organisational needs dictate. Organic structures promote flexibility and quick adaptation to changed conditions through loosely defined rules, people performing various tasks and continually developing skills in new activities.24

18 Ibid p45. 19 See generally L.W.Livezy Non-Government Organisations and the Ideas of Human Rights (Princeton University Press, Princeton (NJ), 1988). 20 Jones Op cit p12. 21 Ibid p73. 22 Ibid. 23 Ibid p74. 24 Ibid. 116

IV. The Institutional Perspective in Organisation Theory One way of explaining why an organisational designer might choose one structure rather than another for a human rights DNGO is supplied by the Institutional Perspective in Organisational Theory. Organisations perform well when they are perceived by the larger environment to have a legitimate right to exist, and by their supporters to have legitimacy.25 Legitimacy is defined as the general perspective that an organisation's actions are desirable, proper and appropriate within the environment's system of norms, values and beliefs.26 The Institutional Perspective argues that organisations adopt structures and processes to please outsiders, even if they decrease organisational efficiency.27 This perspective is especially useful for explaining the phenomenon of institutional isomorphism, a phenomenon that occurs when all organisations in a fully established field become increasingly similar.28 Daft divides forces that lead to institutional isomorphism into three categories.29 Mimetic forces are driven by managerial uncertainty, which puts managers under pressure to model themselves on other organisations that appear successful, even if there is no proof that the features that are copied improved performance in the organisation they were copied from. Coercive forces are driven by pressure from governments, regulatory agencies and other important organisations in the environment. Lastly, normative forces pressure organisations to achieve standards of professionalism, and adopt techniques that are considered by the professional community to be up to date and effective. V. Types of Structures Despite claims made by the Institutional Perspective, most views in Organisation Theory as to why one structure for any organisation is chosen by managers over another are based on an analysis of how rational and efficient a design is for a specific task in a particular environment. The structures that all organisations typically adopt can be divided into a number of types.

25 Daft Op cit p182. 26 See generally M.S. Suchman “Managing Legitimacy: Strategic and Institutional Approaches” (1995) 20 Academy of Management Review 571. See also J.Meyer & B.Rowan “Institutionalised Organisations: Formal Structure as Myth and Ceremony” (1990) 83 American Journal of Sociology 340. 27 Daft Op cit p182. 28 See generally J.DiMaggio & W.W.Powell “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organisational Fields” (1983) 48 American Sociological Review 147. 29 Daft Op cit p184. 117

Functional structures group people together by their common skills or expertise, or because they use the same resource.30 All human skills and knowledge with regard to a particular activity are consolidated, providing in- depth knowledge. The Divisional Structure groups functions according to specific organisational outputs.31 Whatever it is that the organisation produces or, in the case of human rights NGOs, each type of issue the organisation concerns itself with, is made the subject of a department in an internally differentiated structure. The Divisional Structure is more decentralised than the Functional Structure, as decisions are made lower down in the organisational hierarchy. The Geographical Structure is based on the location of those who either pay an organisation for what it produces or those for whom it works.32 Each region of a country may have specific needs that need to be addressed separately within the organisational structure. The organisation, to meet this demand, therefore creates units containing all of the organisation's functions in each region. This structure emphasises coordination within a region, rather than across regions or to the national office.33 The Network Structure is a cluster of different organisations, rather than one organisation, whose actions are coordinated by agreements rather than through a formal hierarchy of authority.34 Within a Network Structure, the functions of these separate organisations are generally coordinated by a small headquarter organisation,35 often using the Internet. Organisations using a Network Structure are generally seen in Organisation Theory to be structured to respond rapidly and flexibly to changes in the environment. VI. The Degree of Centralisation Organisational design often involves a balancing of alternatives to achieve the structure with the greatest efficiency and fit to the environment. One crucial choice involves the balance between a centralised and decentralised

30Jones Op cit p129. 31 Daft Op cit p99. Most of this paragraph is derived from this reference also. 32 Jones Op cit p138. Most of this paragraph is derived from this reference also. 33 Daft Op cit p102. 34 Jones Op cit p163. 35 See generally R.E.Miles & C.C.Snow “The New Network Firm: A Spherical Structure Built on a Human Investment Philosophy” (Spring 1995) Organisational Dynamics 5 and G.G. Dess,. A.M.A Rasheed, K.J. McLaughlin & R.L.Priem “The New Corporate Architecture” (1995) (No2) Academy of Management Executive 7. 118

structure.36 Centralisation can become a problem when directors become overloaded, and so involved in decision-making about an organisation's day to day issues that they have no time for long term decision- making. As was stated at the 1993 Vienna World Conference on Human Rights, this problem is typical of human rights NGOs in general and needs to be addressed by the human rights movement as a whole.37 Decentralisation can also be problematic as it can make planning and coordination very difficult, and may cause an organisation to lose control of its decision-making processes.38 VII. Ideal Types of Human Rights DNGO Structures Before turning to the case studies, it is useful to outline three of what

Max Weber called "ideal types"39 of human rights DNGO structures.40 As mentioned above, an ideal type, according to Weber, is a model that does not correspond exactly to any example in the real world, but nevertheless helps explain examples that do exist in the real world. As with the "ideal types" of tactics set out in Chapter Two, these ideal types of structures are drawn from the data collected from the case studies and from other information on DNGOs available in the literature cited in this work. In the case studies, there appear to be three such ideal types: Type A: Type A is a DNGO with no members that mobilises law through litigation. The organisational culture of Type A is connected to the norms of behaviour of the legal culture and its structure is mechanical and hierarchical. In terms of organisational design, Type A DNGOs generally have a hybrid functional and divisional structure that is highly centralised. Type B: Type B DNGOs also mobilise law through litigation as above, but they also mobilise through the law, as described in Chapter One, by using law to alter the power balance in negotiations that occur in lobbying. Type B DNGOs also have a membership. Their organisational culture tends to combine the norms of the legal profession and the norms of the activists of social movements much more than for Type A. Their organisational design, unlike

36 Jones Op cit pp62-63 37 W.Korey NGOs and the Universal Declaration of Human Rights (St Martin’s Press, New York, 1998) p25. 38 Jones Op cit p63. 39 A.Giddens Sociology (Polity Press, Cambridge, 1997) p287. 119

Type A, is more organic than mechanical, and is a hybrid of the divisional and geographical structures, although the independence of its branches might also suggest elements of the network structure. Its organisational design is thus somewhat decentralised. Type C: Type C DNGOs have a membership and predominantly mobilise through the law by using law to alter power balances in lobbying negotiations and to operate on individuals' thoughts and actions, so as to constitute a movement identity as described in Chapter One. Their organisational culture is dominated by the norms of the activists of their social movement, and it has an organic structure. Its organisational design is mostly in the form of a network structure (although there are elements of the functional design in the small central office), such that it is highly decentralised. VIII. The "Balanced Model" of Structural Design for Human Rights DNGOs As mentioned above, some of the concepts of Organisation Theory used in this work can be used to evaluate as well as to describe DNGO structures. As in Chapter Two, a useful way of assessing how optimal the structural design of a human rights DNGO is is to compare it to a model of an optimal structure. As with the Comprehensive Tactical Stance, this model is not a pure Weberian “ideal type”, but rather it is used to both describe and evaluate the structures of the case studies. Also like the Comprehensive Tactical Stance, this model is intended as a more targeted tool for the evaluation of the structures of human rights DNGOs than the general models for that purpose that might exist in disciplines such as Organisation Theory or Political Science. In this work the model for DNGO structures is called the "Balanced Model". It is derived from the concepts of Organisation Theory set out above. Within this ideal, a DNGO must achieve a number of balances. Some of these balances overlap, but each enables the structure of the DNGO to be assessed from different angles. The ideal balance is determined both by the mission of the DNGO (the operative goals), and the configuration of the environments it works in.

40 This is similar to what Rodley has done with typologies for INGOs - N.S.Rodley “The Work of Non- Governmental Organisations in the World-Wide Promotion and Protection of Human Rights” (1991) 90/1 United Nations Bulletin of Human Rights 84 at 85. 120

The Mechanistic/Organic Balance In this model, the structure of a human rights DNGO must achieve a balance between a mechanistic structure that gives it the bureaucratic ability to organise tasks such as litigation or lobbying, and an organic structure that gives it the ability to assimilate information from the environment and adapt to environmental change. If a DNGO structure is too mechanistic, it may lose the ability to adapt to the environment, and lose effectiveness. Conversely, if the structure is too organic it may be able to adapt to the environment, but may lose the bureaucratic ability to organise complicated actions such as litigation. Kelleher and McLaren cover one aspect of the above balance, when they argue that the design of a human rights NGO needs to achieve a balance between underresponsiveness to the environment, and overresponsiveness to the environment.41 An organisation that is too mechanistic is likely to be underresponsive to the environment, and an organisation that is too organic is likely to be overresponsive to the environment. What Kellaher and McLaren appear to fail to acknowledge is that some bureaucratic rigidity is probably necessary to enable a DNGO to have sufficient organising ability to achieve certain tasks. The above balance includes this extra aspect. The Legitimacy/Rationality Balance Another aspect of the Balanced Model is the balance it advocates between structuring a DNGO to obtain legitimacy from its environment, and structuring it to be rational and efficient. If, as suggested by the Institutional View in Organisation Theory, a DNGO structures itself primarily to obtain legitimacy, this may inhibit its efficiency. On the other hand, if a DNGO is designed primarily to be rational and efficient, the consequent deficiency in legitimacy may inhibit its ability to make alliances and obtain access to government. The Centralised/Decentralised Balance The third aspect of the Balanced Model is the balance it reaches between a centralised and decentralised structure. If a DNGO is too centralised, this may overload the decision-making processes at the centre, making it less efficient. On the other hand, if it is too decentralised the coordination of actions and planning could be difficult.

41 Kellaher & McLaren Op cit p4. 121

The Inward Focus/Openness Balance Lastly, a DNGO’s organisational culture must strike a balance between a strong identity and inward focus on the one hand, and an openness to new information and ideas on the other. If an organisational culture has too fixed an identity, and is less open to outside influences, this can lead to a lack of creativity, motivation to address human rights violations and ability to think beyond paradigms. On the other hand, if an organisational culture is too open to outside information and ideas, this can lead to an inability to properly process and respond to such information. The DNGO can become overwhelmed by outside influences. The Balanced Model posits that if a DNGO achieves balance in the areas identified, then, absent any internal goals or environmental conditions that make a lack of balance efficient, it is likely to be highly effective in mobilising the law in defence of human rights. Conversely, to the extent that a DNGO fails to achieve these forms of balance, it is likely to be less effective in mobilising the law. B. The Case Studies Mirroring the order in which the concepts of Organisation Theory were presented above, these concepts will be used first to describe and analyse the structure of each case study, and then to evaluate how the structure of each of them might impact on its effectiveness. Unlike in the previous chapter, each case study will be analysed individually, rather than at the end of the case studies in each jurisdiction, with comparison between the case studies being left to the conclusion. This order reflects the more intricate nature of the Balanced Model compared to the Comprehensive Tactical Stance. I. LDF42 Description and Analysis of Structure Mandate and Mission As mentioned above, LDF’s mandate is to make equal justice before the law a reality for African Americans and all other disenfranchised individuals.43 LDF’s overall mission and mandate thus appear to be to enforce the 14th

42 The NAACP Legal Defence and Education Fund Inc of New York - see Chapter One. 43 See http://www.naacpldf.org as accessed on December 5th, 2001. 122

Amendment to the US Constitution44 so as to end discrimination on the basis of race,45 especially against African-Americans. The operative goal 46 appears to consist of being a specialist arm of the civil rights movement. Being such a specialist arm, it uses its legal skills47 to conduct impact litigation48 in the US Supreme Court, not only to affect an end to discrimination but also to defend the larger civil rights movement.49 This operative goal is highly significant, as it has largely determined LDF’s structural form because it believes that it must be highly centralised and mechanistic to successfully execute impact litigation.50 Organisational Culture LDF’s organisational culture revolves around the idea of being a Public Interest Law Firm. A Public Interest Law Firm is seen by American DNGOs as being substantially the same as an ordinary law firm, but working for those suffering domestic human rights violations. Just as ordinary law firms use the Constitution and laws to aid their clients, so LDF sees itself as using the US Bill of Rights and the Civil Rights Acts for the same purpose. Because of this self- perception, LDF places a premium upon professional skills and judgement. There exists a perception at LDF that political organising is necessary to achieve success in impact litigation, but the emphasis on this has varied with different Director-Counsels. Thurgood Marshall, the first Director-Counsel, did a great deal of political organising, networking and public speaking. 51 Jack Greenberg, the second Director-Counsel, did hardly any at all, and acted more

44 The relevant part of the 14th Amendment reads: “No State shall deny any person within its jurisdiction the equal protection of the laws.” 45 The 14th Amendment is substantially similar to Article 26 of the ICCPR - The International Covenant on Civil and Political Rights, adopted 16 Dec 1966, entered into force 23 Mar 1976, 606 UNTS 3. Article 26 reads: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 46 The use of the term "agenda" in some human rights literature is similar to this - see for eg Henkin et al Human Rights (Foundation Press, New York, 1999) p741. 47 Interview with LDF, Nov 2001, New York (Notes in possession of the author). 48 Impact litigation as a litigation tactic was explained in the previous chapter. 49 This operative goal still appears to be the same as it was when LDF was the litigation arm of the NAACP before 1957. 50 Interview LDF Op cit. 51 LDF Interview Op cit. See also M.V.Tushnet Thurgood Marshall: His Speeches, Writings, Arguments and Reminiscences (Lawrence Hill Books, Chicago, 2001). 123

like a classic lawyer.52 Julius Chambers, the third Director-Counsel, also did very little political organising, networking and speech making.53 Under Elaine Jones, the immediate past Director-Counsel, there was a return to political organising, as well as more emphasis on fundraising.54 Despite these fluctuations according to leadership, however, LDF’s tendency is generally to marginalise political organising because (amongst other reasons) it is seen as counter to the professional self-image of the organisation. LDF’s idea of human rights is largely summed up by the "nationalist path to human rights enforcement" outlined in Chapter One. Although LDF is not a stranger to the INGO community in the US,55 and recently attended the 2001 World Conference on Racism in South Africa,56 its concentration on the American civil rights discourse and the US Supreme Court strongly suggests a view of the international discourse on human rights as inferior and an aversion to multilateral human rights bodies. This is reflected in the fact that LDF virtually never refers to itself as a human rights DNGO, but always as a civil rights organisation. While tactical considerations of the legitimacy of international human rights in the American political and legal cultures and the efficacy of international law obviously also govern LDF's attitude to international human rights law,57 its actions (if not its rhetoric) suggest the predominance of the "nationalist path" in its thinking on human rights. LDF’s gap between rhetoric and actions is even larger in its attitude towards social rights.58 LDF is aware of the need to address the question of class in America if it is to make further progress on the question of racial discrimination that forms its mandate.59 It explains its lack of action on the questions of class and social rights on the basis that it does not yet have a useful legal theory in terms of American civil rights law as to how to address this

52 Ibid. See also J.Greenberg Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (Basic Books, New York, 1994). 53 Ibid. 54 Ibid. 55 Ibid. 56 Ibid. 57 See the previous chapter. 58 As mentioned above, the term “social rights” is used to designate those human rights set out in the International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec 1966, entered into force 3 Jan 1976, 999 UNTS 3. 59 LDF Interview Op cit. 124

problem.60 This opens it up to the same sort of criticism levelled by Alston at various INGOs; that they don’t act on social rights despite their rhetorical agreement with them, and that this implicitly gives these rights second class status compared to civil and political rights.61 Because of this stance, it seems unlikely that LDF will act on social rights in the near future.62 An aspect of organisational culture where LDF does seem to have begun to address outstanding issues concerns the political as opposed to legal nature of human rights. LDF is clear that it stays away from partisan party politics.63 It is also aware, however, that a political battle over public opinion (which it has been losing) has been waged over such domestic human rights issues as affirmative action for the last twenty or so years.64 For this reason it has taken initiatives such as hiring a public relations firm to publicise its views on domestic human rights matters.65 In some ways, LDF appears to view this as similar to the public relations work that ordinary lawyers are increasingly required to do in America in order to create a favourable atmosphere for their clients in court. In short, although LDF increasingly acknowledges the political aspects of human rights, it conceives of human rights instinctively as law. Lastly, LDF's origin as part of the National Association for the Advancement of Coloured People (NAACP), a membership organisation of African Americans constituted to combat racial discrimination,66 has had an enduring effect on its structure and organisational culture. LDF was originally the legal department of the NAACP, and was separated from the main organisation for tax reasons in 1939. Under the leadership of Houston it became part of a NAACP plan to use the US Bill of Rights to attack racial discrimination in the US Supreme Court. This plan reached the pinnacle of its success in the decision of the US Supreme Court in Brown v Board of

60 Ibid. 61 See for eg P.Alston “The Fortieth Anniversary of the Universal Declaration of Human Rights: A Time for More Reflection than Celebration” in J.Berting et al (eds) Human Rights in a Pluralist World: Individuals and Collectivities (Meckler, Westport (Conn), 1990) p10. 62 This is all the more interesting because INGOs have been arguing that DNGOs are generally more in favour of social rights than they are - see W.Korey Op cit p16. 63 LDF Interview Op cit. 64 Ibid. 65 Ibid. 66 S.L.Wasby Race Relations Litigation in an Age of Complexity (University of Virginia Press, Charlottesville (Va), 1995) p62. 125

Education,67 where it was ruled that racial segregation in state schools was unconstitutional. This decision became extremely influential, and created a paradigm for many American lawyers and DNGOs of using the US Supreme Court to achieve social change. This success gave LDF such prestige and resources that in 1953 it separated from the NAACP, and has been completely separate ever since. The apparent effect of this origin has been to induce LDF to persist using a structure that is designed to be the legal arm of a large membership organisation. The effect of the paradigm it created in the victory in the Brown case appears to have been to focus the structure as a whole, and the organisational culture in particular, on the capacities necessary to litigate in the US Supreme Court. The success of the organisation in Brown and subsequent cases also appears to have had the cultural effect of disinclining it to change its approach when conditions changed and its paradigm became less successful.68 Type of Structure LDF is a classic Type A human rights DNGO. It has a centralised, mechanistic and hierarchical structure that is largely functional in design. As per most classic Type A DNGOs, LDF has programme areas in which it concentrates: in its case these are education, political participation, economic justice and criminal justice.69 As with most Type A DNGOs, it also has a network of cooperating lawyers that supply it with clients and information, to whom it refers ordinary cases, and who are expected to run test cases when required with the aid of staff lawyers.70 All Public Interest Law Firms that concern themselves with domestic human rights generally have Type A structures. LDF differs from the pure Type A model in that it has branch offices in

Washington DC and Los Angeles.71 The Washington branch office is largely functional in nature, in that it mostly handles lobbying. It thus does not seem to function as a true branch office. The Los Angeles office, however, does appear to function as a true branch office, diluting the centralised control that LDF has

67 Brown v Board of Education 347 US 483 (1954). 68 It may also be that LDF’s unprecedented success in Brown was such a major victory that it has had difficulty in subsequent years in finding issues and agendas of equivalent significance that would change its paradigm. It seems that in subsequent years it has been involved in smaller scale issues concerning the implementing of Brown. 69 LDF Annual Report 2000 Op cit pp6-20. 70 Wasby Op cit p252. 126

traditionally emphasised. It also has had the effect of incorporating into LDF's structure a sensitivity to the needs of regional groups of African Americans, which it previously did not have. The national office’s location in New York appears to have been chosen in order to give LDF ease of access to its primary institutional and individual donors. This ease of access allows it to foster long term relationships with them.72 Similarly, the addition of the Los Angeles office seems to be related to the location of some of its resource donors on the west coast. Legal Framework LDF is a non-profit corporation that does not have a formal constitution, but rather Articles of Incorporation.73 These stipulate that it is to be governed by a Board of Directors.74 Although it appears from the Articles of Incorporation that it is the Board of Directors that runs LDF, it is in fact a staff driven organisation.75 While the Board sets general policy through executive meetings during the year,76 it in practice almost always ratifies tactical proposals put to it by the staff.77 As mentioned in Chapter Two, internally it operates a sort of "free market" approach to litigation proposals in which staff lawyers can on their own initiative go in and push for the development of an area of law, provided that it is within LDF's guidelines.78 In practice, a lawyer comes with a proposal for a case, backed by the law and facts, which is first discussed among the staff and then presented to the Board.79 If the litigation looks good and there is a strong need, there is almost always an agreement between staff and Board to find a way to obtain the requisite money.80

71 LDF Annual Report 2000 Op cit p26. 72 Ted Shaw, Associate-Director of LDF (now Director-Counsel), suggested this in informal conversation with the author. 73 Questionnaire Completed by LDF, New York, 2001 (original copy in possession of the author) p5. The Articles of Incorporation contain little more than what is required by law. 74 NAACP Legal Defence and Education Fund Annual Report 1999 p22. 75 LDF Questionnaire Op cit p5; Wasby Op cit p182. 76 This is the typical practice of Public Interest Law Firms - Wasby Op cit p53. 77 Ibid p182. 78 Ibid p183. 79 LDF Interview Op cit. 80 Ibid. This staff domination is identical to the situation that exists in most human rights INGOs – see for eg H.B Tolley The International Commission of Jurists: Global Advocates for Human Rights (University of Pennsylvania Press, Philadelphia, 1994) p17. 127

The Institutional View in Organisation Theory seems to explain quite well the disjuncture between LDF’s formal and informal structures. The formal structure, as set out in the Articles of Incorporation, is largely meant to project an image that creates legitimacy among other human rights DNGOs, supporters and donors. Having prominent people on the Board of Executives that make broad policy and are technically in control is a means of "selling" the organisation to the outside world. The Institutional View is also useful in explaining how LDF’s structure has caused institutional isomorphism in the field of the larger human rights DNGOs in the United States.81 In the new field of civil rights litigation the successful example of LDF using its centralised structure to engage in impact litigation82 unleashed powerful mimetic forces, such that the designers of the new DNGOs in America in the 1970s and 1980s managed the uncertainties of the new field by copying aspects of LDF's structure. These mimetic forces have also been at play in the process whereby designers of human rights DNGOs in Canada, South Africa, Brazil and Europe have been influenced by the seeming success of LDF and (with LDF's aid) have copied aspects of its structure in order to cope with the uncertainties of this field in their own jurisdictions.83 Thus, the mimetic forces that have propagated LDF's design appear to have caused many examples of what Comparative Law considers under the rubric of "legal transplantation".

LDF - Evaluation of Structure The Balanced Model The strengths and weaknesses of LDF's structural design can be illuminated through the use of the Balanced Model. LDF’s structure does not

81 Compare, for example, the structure of the Native American Rights Fund (NARF) (http://www.narf.org/ accessed Aug 11, 2004), the Mexican American Legal Defence and Education Fund (MALDEF)(http://www.maldef.org/index.cfm accessed Aug 11, 2004) or the Lambda Legal Defence and Education Fund (Lambda)(http://www.lambdalefal.org accessed Dec 17, 2003) and one sees startling similarity. 82 See Wasby Op cit p46 on the early dominance of LDF. 83 LDF Annual Report 1999 Op cit inside cover. In Canada LEAF has replicated LDF’s structure and tactics - see LEAF Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada (LEAF/Edmond Montgomery, Toronto, 1996). In South Africa the Legal Resources Centre has replicated LDF’s structure. LDF has also been giving the Roma Rights Centre in Europe aid and advice - LDF Interview Op cit. 128

achieve the first balance required by the Model because it is far more mechanistic than organic in design. Its branch office in LA and its internal 'open market' approach to ideas are its only aspects that reflect features of an organic structure. Because of this highly mechanistic structure it is overbalanced towards bureaucratic capacities and under-responsive to its environment. This can be seen in the absence of a membership and branches, and the fact that it receives most of its intelligence about conditions and trends from its network of cooperating lawyers. Despite the convincing argument that such mechanistic features are needed by LDF to practice impact litigation, to the author it seems arguable that this insensitivity to the environment is a significant problem for human rights DNGOs in America.84 LDF also does not achieve the second balance between legitimacy and rationality required by the Model, as it is predominately structured towards obtaining legitimacy. LDF is structured like a law firm and has a board consisting of many famous people. These features are intended to sell the organisation to resource donors and those with whom it works. As seen in the previous chapter, however, LDF's tactics are not rationally adapted to its environment, and the structure is also not designed in a way that would deliver the rationality and efficiency needed for it to be rationally adapted to its environment. LDF also appears not to achieve the third balance between centralisation and decentralisation, as it is highly centralised. Only the branch office in LA shows any real decentralisation in LDF's structural design. This appears to have led to an overloading of the coordinating abilities of the organisation, leading, as will be seen in Chapter Five, to a lessening of efficiency. The centralisation and bureaucratic power of LDF's structure gives it the ability to accumulate resources for litigation, to manage the huge amount of information needed for impact litigation, to plan in the long term and to create reservoirs of in-depth knowledge on human rights law. LDF's resources, in conjunction with this structure, allow it to take unprofitable cases and to handle expensive, complex litigation.85 LDF argues that these sorts of factors make

84 There does seem to be some disagreement and ferment within LDF, however, that may eventually lead to some change - LDF Questionnaire Op cit p4. For a description of aspects of the environment for NGOs in the US see Wasby Op cit p1ff 85 Ibid p52. 129

centralisation necessary in order to carry out impact litigation. While this may be true, it appears to the author, however, that LDF has gone further than necessary in this direction, leading to problems of coordination and control in responding to changes in the environment. LDF also does not achieve the last balance between a strong identity and inward focus within its organisational culture on the one hand, and an openness to new ideas and information on the other. Rather, it is biased towards a strong identity and an inward focus. Its view of itself as a Public Interest Law Firm makes it focus on issues that a law firm would focus on. This translates into an organisational culture that is not sensitive to changes in its environment, but rather is strongly attached to paradigms that exist within the culture as to how to do human rights work.86 Overall therefore, LDF does not achieve balance on any of the four balances above. The Balanced Model thus suggests that the structure of LDF is unbalanced overall, and that this should lead to a loss of efficiency as a result. Outside of the problems of organisational design illuminated by the Balanced Model, it is also worth discussing how LDF's structure seems to have made it under-responsive to the environment in general terms. Issues LDF Has Noted But Not Decisively Responded To Among the crucial environmental changes for LDF has been the change in the stance of the federal courts. For the last twenty to thirty years the federal courts, and especially the Supreme Court, have been relatively resistant to human rights arguments. While LDF is clearly aware of this,87 its structure has been a factor that has limited thinking that could have led to more creative responses. Among responses that appear not to have been properly explored are moving into areas other than litigation, litigating in international fora and litigating in the domestic courts of other nations. Similarly, the change in public opinion in America to become more conservative on domestic human rights issues such as affirmative action has been noted by LDF.88 Once again, however, it has not decisively responded.

86 When Marshall was Director-Counsel, the close relationship with the NAACP seems to have blunted this problem. The move away from this link under Greenberg seems to have exacerbated this problem - Ibid p62. 87 LDF Interview Op cit. 88 Ibid. 130

While it has hired a public relations firm,89 and has a communications department,90 no decisive accumulation of cultural capital or strategic planning similar to that which occurs for litigation seems to have resulted. Issues That LDF Does Not Seem to Discern the Existence or Importance Of Wasby has noted that American DNGOs have been affected by the advent of a hypercomplex litigating environment due to the proliferation of possible litigating avenues, the increasing subtleness of discrimination, the increasing number of civil rights issues that could be litigated, and the explosion in the number of human rights DNGOs seeking rights in court.91 The centralisation and under-responsiveness of LDF’s structure seems to have contributed to a difficulty in recognising and reacting decisively to elements of this problem of hypercomplexity. The proliferation of DNGOs in the courts seems to require much more comprehensive networking than exists with other DNGOs through organisations such as the Leadership Conference on Civil Rights.92 More extensive networking, as in the Human Rights Forum in Germany mentioned in the previous chapter, could allow agreements to be made to regain relative control of the development of litigation in the courts. LDF also appears to have been unaware of is the effect of Globalisation on its organisational efficiency. Because LDF’s structure has largely remained the same as in the 1970s, it does not seem to have reacted to the increasing mobility of persons, information and capital that is characteristic of Globalisation. It does not appear to have used the Internet to coordinate its cooperating lawyers, or to coordinate its actions with other DNGOs both within and outside of the United States.93 Furthermore, it has not coordinated with NGOs outside the United States in order to put pressure on the US government to do things such as enforce civil rights judgments, something that is a time and money-consuming exercise for it at the moment.94 The results in Chapter Five

89 Ibid. 90 LDF Annual Report 1999 Op cit p23. 91 Wasby Op cit ppxiv-xv. 92 See http://www.civilrights.org as accessed on June 10th, 2003. 93 As can be seen above, however, LDF has an Internet site at http://www.naacplf.org (as accessed Jun 10, 2003). 94 LDF Interview Op cit. In interview LDF admitted that its relationship with the international human rights movement was not close, although it has some contact with it. 131

appear to indicate that those case studies that are most effective tend to do a significant proportion of their work internationally. LDF’s adaptation to the globalising environment has the potential to improve its ability to control its environment and to litigate effectively. Its under-responsiveness to the environment, however, seems to have led it to largely forgo the improvements that such adaptation could bring. LDF's structure invests huge resources in a very specific tactic, and is designed for executing this tactic in relatively stable conditions. Although probably in the past one of the most successful structures for mobilising law in defence of human rights through domestic litigation, this success is eroding in part through a relatively closed organisational culture and an unbalanced and under-responsive structure. II. LCCRUL95 - Description and Analysis of Structure Mandate and Mission LCCRUL’s mandate is variously described as the provision of legal services to victims of racial discrimination and to secure equal justice under the law.96 As with LDF, its mandate appears to mean in practice the enforcement of the 14th Amendment of the US Constitution so as to end racial discrimination. The operative goal, which one can obtain by deduction, appears to be to end racial discrimination through the use of impact litigation in the federal courts. Organisational Culture LCCRUL’s organisational culture, like that of LDF, is heavily influenced by the culture of the American legal profession. It sees itself as a coordinator of lawyers, and its staff lawyers see themselves as elite lawyers. Just as LDF treats its donors in many ways as clients and builds up professional relationships with them, so LCCRUL appears to do the same with its law firms. It has regular contact with many of the largest and most prestigious law firms in America,97 and, as mentioned in the previous chapter, this appears to have socialised its staff to work according to many of the premises of the law firms they work with.

95 The Lawyers’ Committee for Civil Rights Under Law of Washington DC - see Chapter One. 96 Lawyers’ Committee for Civil Rights Under Law Annual Report 1995-1996 Inside Cover. This was the last annual report published by LCCRUL when it was interviewed. 97 See the list of some of the firms in the discussion of LCCRUL in the next chapter on resources. 132

Although it has contact with prominent figures in the civil rights movement, such as Jesse Jackson Jnr,98 LCCRUL does very little political organising. Small inroads have been made to change this situation through provision within the organisational structure for a Public Policy Counsel within the General Legal Project whose job it is to manage lobbying and policy issues at Congress.99 It appears, however, that this structural change has only had a limited effect. LCCRUL’s idea of human rights is very similar to that of LDF, and can be summed up as being based on the nationalist path to human rights enforcement. Generally, American civil rights laws are seen as distinct and superior to international human rights laws.100 Human rights are seen to apply to questions overseas, whereas civil rights are seen to apply to issues within the

US.101 LCCRUL attended both the 2001 World Conference on Racism in South Africa and the 1995 World Conference on Women in Beijing.102 The latter attendance occurred because the Executive Director, Barbara Arnwine, places emphasis on the rights of African-American women. Leadership thus appears to have some influence on the types of rights LCCRUL focuses on. Although LCCRUL attended these conferences, it appears that they are tentative first steps into the international arena, as it strongly identifies itself as a civil rights and not a human rights organisation. Indeed, it may be that it wishes to project American images of civil rights around the world through this participation, rather than make use of ideas of human rights prevalent in the international sphere. In short, although LCCRUL shows a greater degree of engagement with the international sphere than LDF, it manifests a degree of reticence towards international human rights. This reticence is shown in LCCRUL’s attitude towards social rights. Although it is showing increasing interest in the civil rights implications of issues

98 Call to Justice - Newsletter of the Lawyers’ Committee for Civil Rights Under Law (Summer 2001) Vol 2 No1 p8. 99 The current Public Policy Counsel at the time of interview was Diane Gross; see - http://www.lawyerscommittee.org as accessed on June 10th, 2003. Barbara Arnwine, the Executive Director, also does some of this work. 100 Ibid. 101 Ibid. 102 See http://www.lawyerscommittee.org as accessed on June 10th, 2003. 133

such as welfare reform and housing,103 it does not recognise them as "rights". In practical legal terms it is only interested in such issues to the extent they intersect with civil rights issues such as discrimination.104 In this way, it faithfully reflects even more than LDF the western position on human rights in the international sphere, which privileges civil and political rights over social rights.105 It is the only one of the case studies considered here which clearly shows this negative stance on social rights.106 More than LDF, LCCRUL seems to acknowledge civil rights as a political issue, as well as a legal one. While it is strictly non-partisan and works with whoever will aid it (often moderate Republicans), it acknowledges that the issues it addresses are connected to progressive political ideas.107 Furthermore, it acknowledges that most of its Board members are supporters of the Democratic Party, as are the firms it normally works with.108 This translated into quite a close and approving attitude by LCCRUL towards the Clinton

Democratic Presidency.109 It was often in communication with the Clinton Administration, and appears to have had some success in lobbying it on some domestic human rights issues. A balance thus appears to exist at LCCRUL between considering human rights as law and as politics. LCCRUL’s origins also appear to have had some effect on both its structure overall and its organisational culture. It was established in 1963 as a result of a request by President Kennedy in order to involve the establishment Bar in the work that the civil rights movement were doing against racial discrimination. This has had a number of enduring effects on its structure. Firstly, it appears to have given the organisational culture an affinity with, and some access to, the Democratic Party, of which President Kennedy was a member. Secondly, it originated the architecture of its connection with the establishment Bar, which continues to this day. Lastly, it seems to have created a cultural focus on doing the type of litigation that was being done by the civil

103 Interview with LCCRUL, Washington DC, Nov 2001 (notes in possession of the author). 104 Ibid. There appears to be a degree of variation in the attitudes of LCCRUL staff to international law and social rights. 105 A. Cassese International Law (Cambridge University Press, Cambridge, 2001) p354. 106 Overall DNGOs seem to more consistently advocate social rights than either INGOs or governments- Korey Op cit p16. 107 Interview with LCCRUL Op cit. 108 Ibid. 109 Ibid 134

rights movement and LDF at that time. It thus seems to have created a notion of LCCRUL being a mechanism to bring greater resources and access to bear on an already existing task, rather than one of creating an organisation which would form its own agenda. As at LDF, LCCRUL has thus been dominated by the paradigm of domestic human rights work created by the Brown case. Type of Structure While LCCRUL is basically a Type A DNGO, it incorporates the branches and departments typical of Type B and the networking typical of Type C. On the one hand, the national office is centralised, mechanistic, hierarchical and largely functional in design, creating many of the same problems as at LDF, while on the other the existence of local lawyers’ committees and networking with law firms lessens its under-responsiveness to the environment. Within the national office there are five projects: education; environmental justice; housing and community and economic development; voting rights and employment discrimination.110 Unlike at LDF, these projects are true departments in the Organisation Theory sense, in that they largely decide their own tactical and policy stances. LCCRUL also has local committees in eight American cities111 that operate almost completely autonomously, but are continuously in touch with the national office. These affiliates not only give its structural design the sensitivity to regional issues that come with a Geographical Structure, but some of the affiliates also specialise in particular areas of law,112 significantly expanding LCCRUL’s overall resources and capabilities. Lastly, LCCRUL’s relationship with its cooperating law firms is different to the relationship that LDF has with its cooperating lawyers. Whereas LDF largely dominates its cooperating lawyers, for LCCRUL it is more the case that cooperating law firms heavily influence the national office (and presumably the local committees also). The 180 law firms connected to LCCRUL have representatives on the Board of Directors, the Executive Committee and the Board of Trustees and thus fully permeate the organisation with their concerns

110 LCCRUL Annual Report 1995-96 Op cit pp40-63. 111 Ibid p75. The cities are Boston, Chicago, Denver, Los Angeles, Philadelphia, San Antonio, San Francisco and Washington DC. They are generally known as Lawyers’ Committees for Civil Rights Under Law in their cities or states, except in Los Angeles where they are known as Public Counsel and in Philadelphia where they are known as the Public Interest Law Centre of Philadelphia. 112 For eg the San Antonio committee specialises in immigration law - LCCRUL Interview Op cit. 135

and outlook.113 It would appear that this has the dual effect of making LCCRUL aware of those changes in the environment that the law firms are aware of, and also of infusing its culture to a degree with the values of those law firms. Legal Framework National LCCRUL’s constitution sets out the existence of a Board of Directors, officeholders such as the Co-Chairs, an Executive Committee of the Board of Directors and a Board of Trustees.114 As at LDF, the Board of Directors makes general policy, which is monitored by the Executive Committee in between sittings of the entire Board. The Co-Chairs and other officers largely function as those who set the procedure of the Board in motion. Rather than involving itself in decision-making the Board of Trustees mostly guarantees and monitors LCCRUL’s financial health. The Board of Directors usually meets in New York, because that is where most of LCCRUL’s donors are. The staff, however, are in Washington DC because LCCRUL believes that this location gives them more influence on the federal government.115 Both constitution and practice require that on policy some decisions must be made by the management with the Executive Director, some by the Co- Chairs, some by the Executive Committee of the Board, and some by the entire Board of Directors and Board of Trustees.116 In practice, most tactical decisions are made by the staff. They create a formal memorandum on a case or policy issue that is then decided upon by the Board of Directors.117 Although the Board of Directors does not seem to approve matters as easily as appears to occur at LDF, LCCRUL is every bit as much a staff driven organisation as LDF is. As with LDF, this disjuncture between formal constitutional rules and practice can be explained using the Institutional View in Organisation Theory. It would seem that LCCRUL’s formal structure exists to 'sell' the organisation. It is arguable that, because of its more formal procedures for taking tactical decisions, LCCRUL takes even more care than LDF to project a rational and

113 Ibid. 114 Questionnaire Completed by LCCRUL, Nov 2001, Washington DC (original in possession of the author) p3. 115 LCCRUL Interview Op cit. 116 LCCRUL Questionnaire Op cit. 117 Ibid. Some of the local Lawyers’ Committees have in the past used Steering Committees that would meet monthly to discuss policy and operational issues, as well as accept or reject requests for assistance A.H.R. Jones Jnr “The Boston Lawyers’ Committee for Civil Rights: A Profile” (1988) May-June Vol 32(3) Boston Bar Journal 4 at 5. 136

professional image. Once again, however, it is highly functional for the staff in fact to take most of the tactical decisions, as they have the most experience and expertise. In contrast to LDF, LCCRUL appears to have been the subject of Institutional Isomorphism rather than a cause of it. Its structure shows mimetic and normative pressures that have made it adopt both the internal "project" and affiliate structure of the American Civil Liberties Union, and elements of the centralised structure of LDF. LCCRUL - Evaluation of Structure As with LDF, the Balanced Model allows for the evaluation of many aspects of LCCRUL’s structure. With regard to the first balance between mechanical and organic elements of structures, its structure is predominately mechanical, but has many more organic elements than LDF. One of these organic elements is that because of the local lawyers’ committees and the input of the cooperating law firms in decision-making, LCCRUL is much more decentralised than LDF. This has allowed it to use information on the environment from these sources to adapt in the ways described in the previous chapter on tactics. Overall, however, its structure is still predominately mechanical, as it is designed primarily for the types of bureaucratic tasks necessary to maintain long term strategic litigation. To put the matter in the way it was put by Kellaher and McLaren,118 LCCRUL is more responsive to the environment than LDF, but still relatively under-responsive overall. With regard to the second balance between legitimacy and rational adaptation, LCCRUL is less structured towards legitimacy than LDF. However, it is still more structured towards legitimacy than towards rationality and efficiency. The governing structure outlined in the constitution and the legal orientation of the organisational culture all indicate that LCCRUL's organisational design is highly orientated towards obtaining legitimacy. On the other hand, its links with law firms and local lawyers’ committees and its ability to execute complicated feats of coordination with cooperating law firms, all seem to indicate that it is more orientated towards rationality and efficiency than LDF.

118 D.Kellaher & K.McLaren Grabbing the Tiger by the Tail: NGOs Learning for Social Change (Canadian Council for International Cooperation, Ottawa, 1996) p42. 137

With regard to the third balance between centralisation and decentralisation, LCCRUL is much more decentralised than LDF and seems to have struck a relatively ideal balance between centralisation and decentralisation. Its eight local lawyers’ committees and the five projects at the national Lawyer's Committee have the effect of significantly spreading decision- making power in its structural design. These features appear to have relieved it of the problem of overloading the centre that seems to have inhibited LDF from responding to its environment, without any of the corresponding problems of lack of coordination between decision-makers that can plague decentralised structures. Wasby mentions that a shortage of staff lawyers in a DNGO raises the start up cost of litigation, because the expertise of such lawyers saves money.119 LCCRUL seems to be structured to allow the resources of firms and local committees to overcome the greater litigation expenses of the national office having fewer staff lawyers than other DNGOs like LDF.120 As the national Lawyers’ Committee and the local lawyers’ committees121 and cooperating law firms are in constant communication, despite this decentralised structure they appear to have no substantial problems in coordinating litigation. With regard to the fourth balance between a closed and an open organisational culture, however, it seems to have been less successful. LCCRUL still regards itself as a Public Interest Law Firm, despite the lobbying and outreach work it does. This makes its organisational culture relatively closed to ideas of advocacy that fall outside of this self-conception. Indeed, even the lobbying and policy work it does are run in similar ways to the ways it organises litigation. As at LDF, its culture has been relatively insensitive to changes in the environment, and this appears to have lessened its effectiveness. Overall, LCCRUL thus performs better than LDF on two of the balances, but is still not fully balanced. On one of the balances it has succeeded in achieving balance and on the last balance it is as unbalanced as LDF. The picture is thus one of success in some areas and not in others.

119 Wasby Op cit p106. 120 This culture does have elements of internal dissent that may lead to change - LCCRUL Questionnaire Op cit p3. 121 LCCRUL Interview Op cit. 138

Outside of the strengths and weaknesses illuminated by the Balanced Model, there are a number of other ways in which LCCRUL’s design makes it under-responsive to the environment. The provision in the structure for lobbying and policy work has allowed it to react to a degree to the increasingly human rights resistant complexion of the American federal judiciary by putting greater emphasis on Congress. However, the recent capture of Congress several times by Republicans largely hostile to domestic human rights agendas has eroded the usefulness of Congress as a counterweight to the Supreme Court. Because of this the provisions in LCCRUL’s structure for lobbying and policy work now seem less useful as an adaptation to the environment than they were. Further, while the network aspect of its design has given it the impressive abilities described above, it has not been able to overcome the competitive behaviour of its own staff or that of the other major players. This has prevented the setting up of an inter-organisational network that could overcome the proliferation of (and coordinate) groups engaging in impact litigation before the Supreme Court. The above mentioned issues of American public opinion on domestic human rights and Globalisation require the cultivation of new ideas at LCCRUL. However, the inertia of the organisational culture seems to inhibit responses to these phenomena.122 With these issues and generally, both the secondary literature and primary data seem to support the view that, as mentioned above, LCCRUL sees itself as an implementer rather than an innovator. This aspect of the culture may derive from the cultures of the cooperating firms, or may be the result of institutional isomorphism. Whichever is the case, LCCRUL does not seem capable of cultural change to directly address the American public on domestic human rights issues or network with DNGOs that will.123 Likewise, it does not seem capable of thinking of tactics that transcend the American national scene and put pressure on the American government from the international sphere.124 Once again, the results in Chapter Five appear to indicate that this may be one avenue that could improve its effectiveness. Thus,

122 This culture does have elements of internal dissent that may lead to change - LCCRUL Questionnaire Op cit p3. 123 In short, LCCRUL is weak at creating cognitive frames (or interpretive frameworks) that might influence the public. For cognitive frames see M.E.Keck & K.Sikkink Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca (NY), 1998) p17. 139

the unspoken presumptions embedded in the organisational culture appear to have limited LCCRUL's effectiveness. LCCRUL’s structure thus appears to show many of the unbalanced and environmentally unresponsive features of LDF, but to a lesser degree. The decentralisation of its structure both through links to law firms and the local lawyers’ committees seem to give it greater abilities to access resources, information about the environment and government. It also makes it less rigid and more capable of undertaking multiple tasks at once. Overall, although LCCRUL's structure still has its problems, it appears better designed than classic Public Interest Law Firms such as LDF. III. CCR125_ - Description and Analysis of Structure Mandate and Mission CCR’s mandate is to advance and defend the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.126 This is a much broader mandate than LDF’s or LCCRUL’s, and it is thus more important for CCR to concentrate on its operative goals. CCR’s operative goals appear to be quite similar to that of LDF. These goals appears to be; firstly, to be the specialist legal arm of the civil rights and progressive movements (which CCR appears to view as the same movement); and secondly, to run impact litigation in the courts, both to cause social change and to defend the civil rights and progressive movements from violations of their human rights. Unlike LDF, however, CCR has historically been community and activist driven.127 Organisational Culture CCR’s organisational culture is heavily influenced by the tradition of radical lawyering in the United States.128 Indeed, CCR was founded in part by two of the most famous radical lawyers, Arthur Kinoy and William Kunstler.129

124 This is the so called “boomerang effect” – see Chapter Two. On using internal and external pressure together see - Ibid p12. 125 The Centre for Constitutional Rights of New York - see Chapter One. 126 Centre for Constitutional Rights Annual Report 2001 Inside Cover. The document referred to is the Universal Declaration of Human Rights, adopted 10 Dec 1948, G.A. Res 217 A (III), UN Doc A/810 at 71 (1948). 127 Interview with CCR, New York, Nov 2001 (notes in possession of the author). 128 See for eg S.Scheingold “The Struggle to Politicize Legal Practice: A Case Study of Left-Activist Lawyering in Seattle” in A.Sarat & S.Scheingold Cause Lawyering: Political Commitments and Professional Responsibility (Oxford University Press, New York, 1998) pp118ff. 129 CCR Interview Op cit. Kunstler originally belonged to the radical wing of the ACLU - S.Walker In Defence of American Liberties: A History of the ACLU (Oxford University Press, New York, 1990) p218. 140

They began their careers fighting against persecution of Leftist groups during the Cold War and then became involved in the civil rights movement. The tradition of radical lawyers in the United States privileges mobilisation through law over mobilisation of law. Emphasis is placed on being responsive to activists and communities; using litigation as an organising tool rather than looking to gain precedents alone; using courts as a platform for dissent and on siding with the most despised and hated people in the community. The radical lawyer does not conceive of him/herself as a normal lawyer, but as reflecting the radical priorities of social movements over professional values.130 CCR reflects all these values to varying degrees, but over the years also seems to have adopted more professional values. CCR’s idea of human rights is not that of the nationalist path to human rights enforcement, but rather more closely reflects the international movement’s view of human rights. It is aware of the divergences between the American discourse on civil rights and the international discourse of human rights, but essentially sees them as identical. Where they clash, it places priority on the international rather than the domestic view.131 The origin of CCR’s commitment to international human rights ultimately appears to lie in the greater respect shown by radical movements in America to international human rights, as opposed to the major DNGOs. This commitment seems to have been strengthened by CCR's litigation in American courts using international criminal law jurisprudence.132 In accordance with this idea of human rights, CCR, in sharp contrast to LCCRUL, strongly favours social rights as human rights. This is usually described as placing human rights above property rights.133 CCR has brought a case before the Inter-American Commission on Human Rights (IACHR) alleging that the slashing of welfare rights in the United States violates international law protecting social rights.134 This is by far the most creative litigation in favour of

130 For eg see Scheingold Op cit p118ff. 131 Ibid. 132 This is the jurisdiction under the Alien Tort Act 28 U.S.C. section 1350 that CCR largely created with its victory in Filartiga v Pena Irala 639 F2d 876 (2nd Cir 1980). For a description of this case law see B.Stephens & M.Ratner International Human Rights Litigation in U.S. Courts (Transnational Publishers, Irvington-on-Hudson (NY), 1996). 133 Stephens & Ratner Op cit pxiii. 134 Poor Peoples’ Economic Human Rights Campaign v United States- see Centre for Constitutional Rights Fall 2000 Docket p82. The allegation is based on social rights violations of the Universal 141

social rights that the author knows of in America. The problem for CCR, as with LDF and LCCRUL, however, is that this commitment to social rights has not translated into case theories in domestic courts. On the question of whether human rights are conceived of as law or politics, CCR’s organisational culture presents quite a different picture to that of the other American case studies. As a general rule, CCR conceives of human rights as politics. Human rights are seen to embody the alternative society that progressive movements are struggling for. As a result of this view, organising usually occurs first and a case follows thereafter.135 Litigation’s main role is seen to be one of exposing the contradictions in American society.136 In short, CCR’s legal practice stems from a politics that combines anti-racism and anti- capitalism137 and involves law and litigation playing the ancillary roles of gaining attention for issues and defending the movement. Unlike the other American case studies, leadership does not appear to have had a major effect on CCR’s operations. This may be because of the staff consensus decision-making that it has adopted at various stages, or it may be that the data is too limited to detect the influence of leadership. Similarly, its origins seem to be having less influence on it over time. CCR appears to be subject to the influences of institutional isomorphism in that the effect of normative and mimetic forces appears to have been to introduce elements of the Public Interest Law Firm idea to CCR and the paradigm of work deriving from the Brown case. This appears to have moderated, but not eliminated, those aspects of its structure and culture derived from it origins that are more politically and social movement orientated. Type of Structure CCR combines Type A and Type C structures in a curious way. Although now quite centralised138 and hierarchical, with a largely functional structure, until

Declaration of Human Rights, the OAS Charter, The American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. 135 CCR Interview Op cit. 136 See http://www.ccr-ny.org as accessed on December 6th, 2001. 137 The ideology here is very similar to that in Martin Luther King Jnr’s Poor Peoples Movement. King was leading this movement when he was assassinated in 1968. 138 Questionnaire Completed by CCR, New York, Nov 2001 (original in possession of the author) p2. 142

1994 it was run as collective using a consensus model of decision-making.139 This structural feature, which is typical of the direct action groups of both the civil rights movement and various Leftist movements, still has vestigial influence at CCR. This can be seen in the relative decentralisation of authority between four directors (with nominal authority in the Executive Director) and the practice of making all hiring decisions contingent upon the approval of the entire staff.140 Unlike LDF and LCCRUL, CCR thus has a degree of focus on internal democracy and worker satisfaction. Like LDF with its branch office in Los Angeles, until March 2001 CCR had a branch office in Mississippi. This office was forced to close due to lack of funding.141 Also like LDF, CCR has several programme areas: government misconduct and political rights; September 11; corporate accountability; Cuba travel; racial, social and economic justice; international human rights and education and outreach.142 As at LDF, these programmes seem to come about as a result of the expertise that its lawyers have built up, rather than any assessment of need. CCR is situated in New York because its donors largely reside there,143 and also because New York is the centre of progressive social movements in America. Legal Framework CCR’s constitution sets up a Board of Trustees. Ultimate authority in this structure mostly rests with the Executive Director, with certain issues requiring a decision of the Board of Trustees.144 As at LDF, although formally most decisions are taken by the Executive Director, in practice most decisions on legal tactics are made informally on a consensus basis. The lawyers with the expertise and experience on an issue largely make their own decisions on cases within their docket area.145 As with LDF and LCCRUL, CCR is thus a staff driven organisation, where real decisions are made by those at the front lines and largely ratified by the formal

139 Ibid p4. In the past all staff voted whether to take a case, and all employees from Executive Director to secretary were paid the same salary - E.A. Adams “Constitutional Rights Center: 13 Years of Unpopular Causes” (1989) June 23 Vol 201 No 120 New York Law Journal p1 at 1. 140 Ibid. 141 CCR Interview Op cit. See CCR Fall 2000 Docket Op cit p44. 142 Centre for Constitutional Rights Annual Report 2001 pp8ff. 143 CCR Interview Op cit. 144 CCR Questionnaire Op cit p4. 145 Ibid. 143

mechanisms. In this sense, its Constitution once again plays the legitimating role of convincing donors and collaborators of CCR’s expertise and professionalism. Even more than LCCRUL, CCR appears to have been affected more by institutional isomorphism than having caused it. In this case, however, mimetic and normative pressures also appear to come from the social movements it has contact with. On the one hand CCR appears to reflect mimetic, normative and coercive forces requiring it to conform to the Public Interest Law Firm model, and on the other hand it experiences pressure to be structured more like a social movement. The data appears to suggest that the pressures to conform to the Public Interest Law Firm model have been prevailing in recent years.146 CCR - Evaluation of Structure The use of the Balanced Model to analyse CCR’s structural design yields some interesting results. With regard to the first balance between mechanical and organic structural features, CCR is more mechanical than organic, even though it has organic features. Practices such as consensus decision-making, the choice of new staff by the whole staff, and the free market in ideas for staff lawyers, all spread decision-making power away from the top of the hierarchy and make CCR's structure more organic. The fact that it has no branch offices, that it does not have a well developed network of cooperating lawyers and that it is structured to run impact litigation like a Public Interest Law Firm, however, are all highly mechanical features, and they appear to be dominant. In terms of the language of Kellaher and McLaren,147 CCR's structure is more responsive to the environment than LDF's, but, like LCCRUL's, is still heavily biased towards bureaucratic capacity and mechanical structural features. With regard to the second balance, like the other American case studies CCR appears to be predominantly structured for legitimacy, rather than rationality and efficiency. Unlike these other case studies, however, it seems to be partly structured for legitimacy among donors and lawyers, and partly structured for legitimacy among the social movements with which it works. As with the other American case studies, CCR's legal structure and its Public

146 This may be due to the relative weakness of progressive and civil rights movements in America in the last twenty years, or it may be that the bureaucratic rationality provided by the LDF model is more functional for litigation, while the Non-Violent Direct Action model is more functional for direct action. 147 Kellaher & McLaren Op cit p42. 144

Interest Law Firm aspects show an attempt to be structured for legitimacy with donors. The use of consensus decision-making, and the payment of all staff equally, however, also show attempts by CCR to be legitimate with social movements. Some of these latter practices have proven to be detrimental to efficiency and rationality, and have had to be discontinued.148 With regard to the third balance, even though CCR shows aspects of both centralisation and decentralisation it has not entirely achieved this balance. As it does not have branches or affiliates, and just one office in New York, it would seem, prima facie, to be highly centralised. Within the organisation, however, many attempts appear to have been made to decentralise decision- making. Most of these, such as the method of choosing staff, have been described above. The data would thus appear to suggest that CCR is more balanced towards centralisation than decentralisation, but less so than LDF. With regard to the fourth balance between identity and cohesiveness of organisational culture on the one hand, and openness to new ideas on the other, CCR seems to have struck an almost ideal balance. The work that it has done using the Alien Tort Claims Act and in the Inter-American Commission for Human Rights, as described above, is evidence of an organisational culture that is innovative and able to think beyond paradigms. On the other hand, there is a degree of cohesiveness of identity around the idea of being progressive lawyers, and also a certain regularity in the issues that it undertakes and how it deals with them. The Balanced Model thus seems to suggest that CCR has struck a near ideal balance here within its organisational culture. Outside of the Balanced Model, there are a number of factors that appear to have inhibited CCR from being effective and responsive to its environment. Firstly, although CCR's openly political culture has given it the boldness needed to be innovative, it also appears to have delegitimised it in a context where all the "major players" among the DNGO network officially perceive human rights questions as non-political legal questions. In the context of a political culture that is largely conservative a lack of legitimacy might be an inevitable problem for a progressive organisation such as CCR. Even if this is so, however, this problem remains a significant barrier to it improving its effectiveness.

148 See Adams Op cit p1. 145

Secondly, CCR's culture has in some ways made it over-responsive to the environment. This appears to have led to a tactical stance which is characterised by opportunistic decision-making.149 Instead of setting the agenda, CCR seems to have concentrated on reacting ad hoc to various situations, such as the problems surrounding the 2000 presidential elections.150 The largely negative attitude of its organisational culture to long term planning thus may have undermined its ability to set political and legal agendas. Lastly, even with this responsiveness to its environment, the problems of hypercomplexity, public opinion, conservative judges and Globalisation appear to have been only partially addressed. In terms of hypercomplexity, CCR's structure and culture do not seem to have enabled it to form networks with other DNGOs that could allow it to gain the type of control of the sequence and types of cases necessary for effective impact litigation. As for the conservative political atmosphere in the US and a conservative judiciary, CCR's main answer seems to be increased organising and outreach work. The problem appears to be, however, that its structure is not well adapted to produce interpretive frames151 that would be useful for such organising, as it is geared almost exclusively for litigation.

As for Globalisation, CCR's litigation in US courts152 using international human rights law does provide some response to this. What seems to be really required, however, is large scale impact litigation in international fora, and CCR is some way from doing this. Furthermore, the rapidly changing environment coming with Globalisation would seem to require greater networking outside of the US, not only with other human rights DNGOs, but also progressive social movements, and this seems conspicuously absent. In short, CCR appears to be overresponsive to outside media and political agendas, but not as responsive to the larger underlying issues. Overall, therefore, it appears that it is CCR's organisational culture and its ability to coordinate multiple tactics that have been the most effective features of its structural design. It is the mechanical, legitimacy orientated and

149 For a description of this phenomenon see Kelleher & McLaren Op cit p4. 150 See Pro-Democracy Report, September 2001, Pro-Democracy Convention Jun 29-Jul 1 2001, Pennsylvania Convention Centre, Philadelphia. Summary Report of Proceedings. Sponsored by the Centre for Constitutional Rights. 151 Keck & Sikkink Op cit p17. 152 See generally Stephens & Ratner Op cit. 146

centralised aspects of its structure that appear to have acted as an impediment to it efficiently mobilising the law and as a barrier to it achieving a balanced rather than a near balanced structure. IV. JUSTICE153 - Description and Analysis of Structure Mandate and Mission JUSTICE's mandate is to develop the law, influence public policy and promote human rights standards.154 This goal is also sometimes expressed as one of improving the system of justice, influencing law and practice and promoting human rights.155 The operative goal is to prepare briefings and interventions and conduct independent research, both to gain adherence to international human rights standards, and, more widely, to develop and reform the law.156 Organisational Culture JUSTICE's organisational culture is highly influenced by the culture of the

British legal profession.157 This cultural influence led other British human rights DNGOs such as Liberty and the Child Poverty Action Group to begin litigating in the 1960s.158 JUSTICE, on the other hand, experienced this influence differently and has moved away from even the criminal litigation on miscarriages of justice that it used to do towards a focus exclusively on lobbying, policy submissions, research159 and third-party interventions in court cases.160 Because of this approach JUSTICE tends to see itself more as a lobbyist or quasi-public servant organisation where human rights norms are used to put pressure on governments and courts to adopt specific policies, rather than as a

153 JUSTICE of London – see Chapter One. 154 See http://www.justice.org.uk as accessed November 29th 2001. 155 Ibid. 156 Ibid. 157 JUSTICE was founded in 1956 by Peter Benenson (who also founded Amnesty International) and several lawyers. The British ICJ section was founded at the same time so JUSTICE became the British section - Tolley Op cit p61. Legal Culture refers to the shared set of assumptions, worldviews, styles and approaches within a legal profession in particular legal system. For a definition see V. Gessner European Legal Cultures (Dartmouth, Aldershot, 1996) pxvii. For a classic account of British legal culture see R.L. Abel “England and Wales: A Comparison of the Professional Projects of Barristers and Solicitors” in R. Abel & P.Lewis Lawyers in Society (University of California Press, Berkeley(CA), 1988)Vol 1 p25. 158 C.R.Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, Chicago, 1998) p140. 159 For an example of the type of research paper produced see J.Cooper “The Human Rights Act 1998: Pitfalls, Possibilities and Opportunities” (2001) 33 Bracton Law Journal 38. 160 Interview with JUSTICE, London, Oct 2001 (notes in possession of the author). 147

classic litigating organisation.161 Its self-perception thus places a premium on mobilising through the law in the specific realms (or elites) of the government, the Parliament, the courts and the legal profession.162 JUSTICE’s idea of human rights is identical to that in international law, although its practice until recently exclusively focused on the civil and political rights embodied in documents such as the European Convention on Human

Rights.163 Although this practice is not in accordance with the principle of the interdependence and equal value of all human rights,164 it is in accordance with the view of human rights generally held by western governments.165 In Britain as a whole the traditional absence of a British domestic human rights discourse seems to have led to the adoption of the international discourse. This also occurred at JUSTICE, but in its case this process seems to have been furthered by it being the British section of the International Commission of Jurists (an INGO).166 This formal connection is deceptive, however, as although JUSTICE may have been influenced by the Commission in using international law as the basis of its human rights work, it operates almost completely independently of it in almost all cases and has a different culture that (as in the area of social rights discussed above and below) is much more influenced by the human rights debate in Britain than by that at the international level. As mentioned above, JUSTICE exhibits a rhetorical commitment but lack of concrete action on social rights. As a result of the success of its lobbying efforts (and that of other DNGOs) in contributing to the Blair Labour government's decision to pass the Human Rights Act 1998 (UK), however, some of JUSTICE's attention has shifted to social rights implementation. In 2000 JUSTICE and Oxfam jointly conducted a scoping study to determine where the UK was not adhering to international social rights standards, and to suggest an agenda for the improvement of its record.167 In 2001 JUSTICE also

161 Ibid. 162 Ibid. 163 The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 Nov. 1950, entered into force 3 Sept 1953, 312 U.N.T.S. 222. 164 See Vienna Declaration and Programme of Action July 1993 A/CONF.157/23. 165 Cassese Op cit p354 166 See generally Tolley Op cit 167 JUSTICE Annual Report 2000 p13. 148

conducted a feasibility study with the Moscow based NGO, the Foundation for

Civil Society, to determine how best to promote social rights in Russia.168 Overall, however, JUSTICE’s organisational culture on social rights seems to be more influenced by the example of the International Commission of Jurists169 than any internal commitment to their enforcement. JUSTICE's organisational culture tends to adopt a compromise position on whether human rights are to be seen as primarily legal or political. It seems to see human rights as primarily political (in a non-partisan way), but its role in the political debate as a legal one of supplying expertise in human rights law and policy.170 It also sees its role as legal in that in its policy work, lobbying and third party interventions it is able to say authoritatively, because of its legal expertise, that certain courses of action are required by human rights law.171 The success that JUSTICE has had using law in this way seems to call into question Epp's American-centred view that litigation must be central to the creation of a culture of respect for domestic human rights.172 In recent times leadership does not appear to have any effect on JUSTICE, except in the areas of the architecture of its structure and its acquisition of resources. An example of these exceptions is the effect that the leadership of Anne Owers appears to have had upon the organisation. Under her tenure as director the data appears to indicate that she significantly increased JUSTICE’s resource base, the internal differentiation of the structure and the scope of work undertaken.173 Ms Owers, however, does not appear to be a good example in this regard as she appears to have been more successful in these tasks than previous directors.174

168 JUSTICE Annual Report 2001 p13. Interestingly, this was funded by the UK Department of Foreign International Development. 169 JUSTICE has a loose relationship with the ICJ and does not focus on social rights as much as the ICJ does. Despite this, however, there are occasional traces of the ICJ’s influence and this kind of work seems to be one of them- JUSTICE Interview Op cit. 170 Ibid. 171 Ibid. 172 Epp Op cit p3. JUSTICE does, however, seem to confirm Epp’s hypothesis that human rights progress generally comes from pressure from below from human rights DNGOs, not from leadership within states. 173 In the interview with the author JUSTICE especially mentioned Ms Ower's expansion of the resource base of the organisation. 174 JUSTICE Annual Report 2001 Op cit Forward. 149

JUSTICE also appears to be influenced by its origin in 1957 as a legal reform organisation.175 The close relationship it has with the legal profession, its focus upon lobbying and policy work and its reticence to litigate are all typical features of a law reform organisation that have persisted. This self-perception inherited from its origins appears to have steered JUSTICE away from connections to social movements, communities suffering human rights violations, and (along with factors mentioned in the previous chapter), away from litigation campaigns. Type of Structure JUSTICE's structure is a variant of the Type A structure. Like other Type A DNGOs, it is centralised, mechanistic and hierarchical, with a largely functional design. Unlike other classic Type A designs, such as that of LDF, however, it is designed for lobbying, policy work and research. JUSTICE differs from most Type A DNGOs in that it has a number of areas or projects that each have their own budgets and freedom of decision.176 These projects are Human Rights; Criminal Justice and Asylum Law and Discrimination Law.177 It also differs in that it has a small membership consisting entirely of members of the legal profession.178 Although JUSTICE does not have the network of cooperating lawyers typical of the Public Interest Law Firm model, it does have symbiotic relationships with barristers chambers, such as Matrix and Doughty Street

Chambers.179 JUSTICE supplies expertise to these chambers, and they supply it with members, resources and often access to policy makers. The centralisation of most legal institutions and practitioners in London has encouraged JUSTICE to be located in London. The only work it does outside of London is to occasionally hold training seminars in regional areas.180 Legal Framework

175 E. Larsen A Flame in Barbed Wire: The Story of Amnesty International (Frederick Muller Ltd, London, 1978) p10. 176 JUSTICE Interview Op cit. 177 JUSTICE Annual Report 2001 Op cit p7ff. 178 JUSTICE Interview Op cit. 179 Ibid. 180 Ibid. 150

JUSTICE is legally structured as a charitable company limited by guarantee.181 It is governed by a Council which has an Executive Board.182 As with the American case studies, the Executive Board and Council make broad policy while decisions are mostly taken in practice by the staff.183 Before JUSTICE does any work in an area it does extensive research.184 This then leads to requests to the governing organs for a conference on a particular issue. This conference is then followed by lobbying, submissions and related activities. In this sense, while some decisions are taken by the Executive Board and Council, they largely play the legitimising role envisaged by the institutional perspective in Organisation Theory.185 Interestingly, JUSTICE does not seem to have been affected by pressures of isomorphism to be more like organisations such as Liberty. It also does not seem to have influenced new human rights DNGOs such as the 1990

Trust.186 The reason for this, as allowed for in the theory of institutional isomorphism, seems to be that the field of human rights DNGOs in Britain is too young (having only been in existence in its current form since the late 1980s or early 1990s) for the mimetic, coercive and normative forces to have had any decisive effect. JUSTICE - Evaluation of Structure The application of the Balanced Model to JUSTICE gives a different picture to that of the American case studies. With regard to the first balance, JUSTICE is overwhelmingly designed to be a mechanical rather than organic structure. Very little of the design spreads decision-making ability, or allows for unusual responses to new environmental conditions. Instead, the design has a hierarchical emphasis, with a great deal of power being placed in the hands of directors. It thus emphasises steady routine work and is unbalanced. With regard to the second balance, JUSTICE appears to have struck a good balance between being structured for legitimacy and being structured for

181 It was incorporated in 1996 - JUSTICE Financial Statement 2001 p1. 182 JUSTICE Annual Report 2001 Op cit Inside Cover. 183 Questionnaire Completed by JUSTICE, Oct 2001, London (original in possession of the author) p4. 184 JUSTICE Interview Op cit. 185 Having figures such as Lord Alexander of Weedon QC as Chairman of the Council has been extraordinarily useful for JUSTICE in 'selling' itself to donors, to members and to people whom it wants to influence. 186 For the 1990 Trust see http://www.blink.org.uk as accessed on November 29th, 2001.

151

rationality and efficiency. As mentioned above, this may be in part because in the British political and legal cultures the obtaining of legitimacy and efficiency appear not to be as mutually exclusive as they are in the corresponding American cultures. In terms of legitimacy, JUSTICE is structured very similarly to other iconic human rights organisations founded in Britain such as Amnesty International187 and Liberty, as well as other legal reform organisations. This has given it credibility with donors and the legal profession. It differs from these other organisations mainly in not having a large membership and in relying on funding from Foundations and other donors. Features such as its ability to organise large scale contact with the legal profession and civil service, and to conduct in-depth research to influence policy, however, all speak of a structural design that is equally constructed for the purpose of efficiency as it is for legitimacy. JUSTICE thus appears to have achieved this balance. In terms of the third balance between centralisation and decentralisation, JUSTICE’s design is highly centralised. This is so both geographically, in terms of its centralisation in London, and internally in terms of the concentration of decision-making power in the hands of the director and the directors of the projects. Interestingly, however, this does not appear to have led to an overloading of the decision-making apparatus. One possible reason for this may be that the British environment for DNGOs is relatively stable and uncomplicated compared to that in the other two jurisdictions examined. With regard to the fourth balance between inward focus and openness in organisational culture, JUSTICE appears to have achieved an almost ideal balance. Although its organisational culture self identifies as a policy catalyst on human rights, it has also been relatively open to new ideas such as work on asylum, discrimination and social rights. This openness appears to be because the organisational culture has connections to the organisational cultures of INGOs and international institutions that work on these issues. This openness appears to balance well the more closed understanding of JUSTICE’s role that exists in the organisational culture, making the culture overall contribute strongly to JUSTICE’s effectiveness.

187 Amnesty International is clearly an INGO, rather than a DNGO. Nevertheless, the author is intending to note that Amnesty’s structure shows signs of its British origin in the similarity of its structure to that of some British DNGOs. 152

Looking at the use of the Balanced Model overall, JUSTICE appears to have a more balanced and responsive structure than the American case studies. On the data JUSTICE appears to have attained two of the above balances and not to have attained the other two. Its failure to attain two of the balances, however, does not seem to have seriously lessened its effectiveness. Currently JUSTICE thus appears responsive to its environment. There are a number of possible dangers, however, in addition to those illuminated by the Balanced Model above that could affect its effectiveness in the future. JUSTICE’s cultural self-identification as a catalyst of governmental policy change makes it inclined to adopt cooperative stances with government. This is an asset when governments will be catalysed or cooperated with, and a liability when they will not. In the past JUSTICE has not adapted well to situations where governments have been uncooperative and in the future its rigid structure could once again make it difficult for it to adapt to a situation created by a more recalcitrant government should it need to do so. Many of the problems that beset the American case studies are not so serious for British DNGOs because of their different environment. In recent times British public opinion has been relatively in favour of domestic human rights, and human rights violators have not yet resorted to techniques of violation as subtle as those in the United States.188 The lower number of DNGOs (and the different approaches they use) means that coordination of action is still feasible, and the number of issues is still relatively manageable. Lastly, because JUSTICE does work with international institutions this seems to have given it an advantage in dealing with human rights issues that transcend borders. Because the Human Rights Act is directly drawn from international law, this experience has also allowed it to come to grips with the new law relatively quickly. This honeymoon of being relatively adapted to its environment may, however, be short lived as it seems certain that the environment in Britain will become more complex and fluid as the human rights

188 With regard to subtle domestic human rights violations in the US, an example can be found in the field of racial discrimination. Since the decision of the US Supreme Court in Washington v Davis 426 US 229 (1976) US constitutional and statutory civil rights decisions have generally used an intent rather than an effects standard. In addition, the US Supreme Court has generally ruled that the First Amendment protects racist speech. This means that discriminatory action where an intent is not obvious and where speech rather than action is involved (often involving hints rather than direct statements or actions) can in many instances avoid illegality under US law. Such legal distinctions do not exist in Britain and analogous techniques of violation appear to be rare there also. 153

movement grows.189 Because of its international focus, its rigid structure and its lack of a well developed network with other British DNGOs, JUSTICE could find this new environment difficult to adapt to. Overall, therefore, it appears that it is both the balance that JUSTICE has achieved between the need to obtain legitimacy and to be efficient in its structural design, and the nature of its organisational culture's connections to the legal profession, that have been the crucial factors in favouring its overall balance and effectiveness. It is only the relatively rigid, mechanical and centralised nature of its structure (and thus some consequential constraints on its responsiveness to the environment) that appear to have limited its effectiveness. V. BIRW190 - Description and Analysis of Structure Mandate and Mission BIRW’s mandate is to monitor the human rights dimensions of the conflict, and latterly the peace process, in Northern Ireland.191 The unofficial goal, which can be gleaned from BIRW's campaigns, seems to be to lobby and educate at the international level, so as to socialise192 the British state into adhering to international human rights standards in Northern Ireland. In practice, for BIRW this means operating through international institutions such as the United Nations, supplying information to INGOs such as Amnesty International, and appearing before and briefing foreign governments such as those of the United States and the Irish Republic.193 As with LDF, BIRW’s operative goal is crucial to understanding it, because it has been the main factor that has made its structure resemble that of an INGO more than that of a DNGO. Although BIRW’s operational goal makes its structure resemble that of an INGO rather than a DNGO, this is only one aspect of its overall functioning. As mentioned in the introduction, the classification of BIRW overall as a

189 It seems that JUSTICE was relatively less successful in its early years for the same reason of the existence of an adverse environment. 190 British Irish Rights Watch of London - see Chapter One. 191 Pamphlet - British Irish Rights Watch 1998 p1. See also http://www.birw.org as accessed on October 13th, 2000. 192 For the argument that the process of gaining adherence of states to international norms is usually one of socialisation see - T.Risse & K.Sikkink "The Socialisation of International Human Rights Norms Into Domestic Practice: Introduction " in T.Risse, S.C.Ropp & K.Sikkink The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, Cambridge, 1999) p1 at 5. 154

domestic rather than an international NGO flows from the fact that the problems it addresses, its office and members are all in a single country. This is not affected by the fact that it undertakes work in the international realm. BIRW thus seems to be an illustration of the statement made above that there is a degree of overlap between DNGOs and INGOs. It also seems to be one of the few case studies in this work that truly exhibits a hybrid nature. Organisational Culture BIRW’s organisational culture revolves around its self-identification with what Keck & Sikkink call information politics. Keck and Sikkink define this as the ability to quickly and credibly generate useable information and move it to where it will have the most impact in the political environment.194 In BIRW’s practice this is combined with symbolic politics. Symbolic politics is defined as the ability to call upon symbols, actions or stories that make sense of an issue for an audience far away.195 As with JUSTICE, BIRW's culture is geared to use law to lobby effectively. Unlike all of the other case studies above, BIRW was not founded by lawyers but rather arose directly out of the British "Time to Go" peace movement of the 1980s. Its founders became interested in human rights as a vehicle for effective intervention in the conflict after a lecture by Professor Kadar Asmal at LSE in December 1989.196 After much discussion, the members of the peace movement agreed that there was room for a DNGO that would concentrate on the conflict in Northern Ireland alone, but would be situated in London. It was felt that London was a much safer venue for this work, and had more contacts than Belfast.197 On advice from CAJ198 and ICCL,199 BIRW began holding seminars to construct a network of interested lawyers200 and to show lawyers how to use the European Court of Human Rights. It became legally incorporated in May 1992.201

193 Interview with BIRW, London, Oct 2001 (notes in possession of the author). 194 Keck & Sikkink Op cit p16. 195 Ibid. 196 BIRW Interview Op cit. 197 Ibid. 198 The Committee on the Administration of Justice of Belfast - see below. 199 The Irish Council of Civil Liberties of Dublin. 200 BIRW Interview Op cit. 201 Ibid. 155

These origins still appear to affect BIRW's practice to this day. Firstly, the initial aid from the above DNGOs appears to have encouraged it to engage in the type of international work that CAJ, was undertaking. Secondly, these origins appear to be reflected in BIRW’s unique mandate, that concentrates only on the issues of the conflict and peace process. Thirdly, BIRW’s origins in the lecture by Prof Asmal appear to have influenced it to adopt the tactic of accumulating expertise on human rights law. This is a tactic it still heavily relies on. BIRW’s conception of human rights is that they are closely related to peace. It sees the discourse of human rights as an objective measure that allows issues connected to the conflict in Northern Ireland to be seen in ways that are not sectarian.202 Because human rights cover all persons, regardless of their religion or political views, it sees the discourse of human rights as having the capacity to create sympathy for all victims in Northern Ireland. It feels they have the ability to create a frame of reference that promotes tolerance and understanding.203 Thus, while BIRW does not think that human rights can end conflicts, it does see them as having a connection to peace and this informs all its work. BIRW generally focuses on civil and political rather than social rights. Despite the growing emphasis on social rights at the UN, and CAJ’s social rights advocacy, BIRW sees social rights as expensive for governments and therefore harder to 'sell'.204 In this way, it has adopted the classic western human rights view described above, 205 and has projected it into its work on the Northern Ireland conflict. When discussing the conflict in Northern Ireland, the usual discussion of whether a DNGO sees human rights as progressive politics or law generally gets overshadowed by accusations that a DNGO is pro-Republican or pro- Unionist. BIRW does not identify with left politics at all, which it sees as having failed in Northern Ireland, but rather with civil society.206 The image BIRW has is

202 Ibid. This is so much so that BIRW foresees that it should no longer exist when the peace process is complete. 203 Ibid. 204 Ibid. 205 See Cassese Op cit p354. 206 BIRW Interview Op cit. 156

of civil society using the authority of law to restrain warring sides, rather than any idea of human rights as politics. Leadership has an enormously important influence on BIRW. Jane Winter has been director since its foundation and holds virtually all power in the organisation, making BIRW in some ways a 'one woman show'. Her influence is magnified by the absence of a membership and a small staff.207 Type of Structure BIRW’s structure is that of a Type A DNGO that also has elements of Type C. It is thus centralised, hierarchical and mechanistic, but also does a great deal of networking with other DNGOs, with INGOs, with international institutions, with foreign governments and with individual lawyers.208 This networking is even more organic and flexible than networks of cooperating lawyers or law chambers. BIRW is too small to have programme areas or projects. Legal Framework

BIRW is legally incorporated as a company limited by guarantee209 whose structure is set out in articles of association.210 It is managed by a Management Committee, which is made up of four people.211 The only other officer is the Director, Jane Winter, who in practice does virtually all of the management.212 In BIRW’s case the actual practice does not differ a great deal from the articles of association,213 because they give most power to the Director. It would seem that the legitimation that could be accumulated from a board of notables with which BIRW could 'sell' itself has been sacrificed (as was a membership)214 to concerns that lines of command be clear, and conflict be kept to a minimum. In terms of institutional isomorphism, BIRW seems to have been subject to mimetic and normative forces both from INGOs such as Amnesty

207 Luckily, as will be argued in Chapter Five below, because of her skill and vision this situation appears to have been to BIRW’s benefit as it seems to have obtained a high overall level of effectiveness. 208 Ibid. 209 Memorandum of Association of British Irish Rights Watch p1. 210 Articles of Association for British Irish Rights Watch p1. 211 See http://www.birw.org as accessed on October 13th, 2000. 212 Ibid. 213 Questionnaire Completed by BIRW 2001(original copy in possession of the author) p5. 214 BIRW Interview Op cit.

157

International and Human Rights Watch, who do the type of international work that it does, and from DNGOs such as JUSTICE, who do educational and networking work within the legal profession. Its structure thus appears to reflect the sum of the influences from two different environments. BIRW - Evaluation of Structure As with the above case studies, the use of the Balanced Model to analyse BIRW’s structure yields some interesting results. With regard to the first balance, as outlined above, it has an ideal balance between mechanical and organic structural features. On the one hand, the structure places a premium on rigidity, regularity and hierarchy in the production of research and advocacy material. On the other hand, the extensive advocacy network that BIRW is a part of appears de facto to spread the decision-making power for its work to other members of the network, and allows for novel reactions to new environmental situations. Indeed, this is so much so that BIRW almost appears to exhibit a form of the network structure described above. With regard to the second balance, BIRW appears to possess an ideal balance between being structured for legitimacy and being structured for efficiency. As described in the previous chapter, the majority of BIRW's work is in the international sphere, and this appears to have lessened many of the demands for legitimacy that might have been placed on it if it worked predominantly in the domestic jurisdiction. It has thus been able to concentrate on efficiency in international advocacy work through its capacities to produce policy documents and networking, rather than on legitimacy. As will be seen in the next chapter, this focus on international work is also partly because BIRW is predominantly funded by international human rights funds rather than by domestic sources. With regard to the third balance, BIRW is highly centralised. This is so both in terms of being geographically centralised in London and in terms of the structure placing most power in hands of the director, Jane Winter. One would expect on the basis of the Balanced Model that this should lead to an overloading of the coordinating capacities of the director as the main decisionmaker. The reason that this appears not to have occurred seems to be BIRW’s narrowly constructed mandate. Overall, this mandate appears to carefully limit the issues that the organisation undertakes, so as to allow the small number of staff to be able to handle the workload. Furthermore, the Northern Ireland 158

issues that BIRW deals with seem to have a sufficiently small number of players that the small staff can sufficiently deal with them. Finally, with regard to the last balance, BIRW seems to have an ideal balance in its organisational culture between identity and openness to new ideas. While small, it has a similar organisational culture of staff produced research and policy work as JUSTICE. Also like JUSTICE, its organisational culture is such that it has been able to benefit from contact with the international community through absorbing new ideas and approaches from abroad. BIRW’s organisational culture thus shows abilities for both sustained work over time and new responses to environmental challenges. Looking at the application of the Balanced Model overall, BIRW succeeds in achieving three of the four balances. The one that it does not succeed in does not appear to be a problem in the circumstances that the organisation is in.215 Outside of the issues illuminated by the Balanced Model, a few other issues also appear to influence the assessment of BIRW's structure. Firstly, its fate is very closely tied to the skills and ability of the Director, Jane Winter. It is thus heavily dependent on leadership in ways that the other case studies are not. Should Ms Winter no longer be present for any reason this could impact upon the viability of BIRW's structure. Secondly, BIRW in some senses sees its work as temporary as it expects the conflict in Northern Ireland to end and for it to cease work in the near future. This expectation could in itself discourage it from the long term planning necessary to keep the structure well adapted to its task. Overall then, mostly as a result of a creative organisational culture BIRW’s structure appears balanced and adapted to its environments in most respects. Even its centralisation and heavy reliance on leadership appears to have increased its efficiency. VI. CAJ 216- Description and Analysis of Structure Mandate and Mission CAJ’s mandate is to ensure the highest standards in the administration of justice in Northern Ireland by ensuring the government complies with its

215 As will be seen below, BIRW’s impressive design appears to correlate well with the assessment of hight effectiveness made for it in Chapter Five. 216 The Committee on the Administration of Justice of Belfast - see Chapter One. 159

responsibilities under international human rights law.217 "Administration of justice" is a woolly phrase that in reality allows CAJ to intervene in any area of public policy on Northern Ireland.218 Its operative goal, as with BIRW, seems to be to lobby, educate and litigate (mainly at the international level), so as to socialise the British state into adhering to international human rights norms. As with LDF and BIRW, CAJ’s operative goal appears to have determined its form. Its structure is adapted to the operative goals of undertaking international "information politics" and "symbolic politics" and creating an increasing capacity for international litigation. Organisational Culture CAJ’s organisational culture derives both from the peace movement in Northern Ireland, members of which founded it, and the civil liberties ideology of the Northern Ireland Council of Civil Liberties, which it superseded.219 It was founded in 1981, the year of the hunger strikes by Republican prisoners, and was established mainly because there was no human rights DNGO on the ground in Northern Ireland to provide a non-sectarian view of the events that were then occurring.220 Like BIRW, CAJ thus arose out of a social movement. This origin in the peace movement appears, however, to have had less influence over time. CAJ does not generally engage in typical social movement tactics, such as demonstrations or mass publication. Rather, it appears that the ideology of the former Northern Ireland Council of Civil Liberties has had more long term effect on it. Even today, CAJ states that were it not for the civil conflict in Northern Ireland it would probably operate like Liberty in Britain. This move away from some of its origins could also be as a result of its socialisation through contact with DNGOs such as Liberty, and INGOs such as the Lawyers' Committee for Human Rights. CAJ’s organisational culture thus places a premium on knowledge of how to access international institutions (such as the UN) and governments. Emphasis is placed upon mobilisation through law, even though it litigates.221

217 See http://www.caj.org.uk as accessed on October 13th, 2000. 218 Interview with CAJ, Belfast, Oct 2001 (notes in possession of the author). 219 Ibid 220 Ibid. 221 Ibid. 160

CAJ’s conception of human rights, as at BIRW, is summed up largely by the idea that human rights promote peace. CAJ believes that the denial of the civil rights of the Catholic section of the population alienated them from the state, and was instrumental in beginning the conflict.222 With the absence of the Rule of Law, CAJ believes that the Catholic population had no incentive to seek non-violent solutions to problems. It believes that if human rights were sufficiently respected, the populace would accept the state and the violence would stop.223 In short, it takes the classic view, as can be read in the preamble to the Universal Declaration of Human Rights, that human rights are the preconditions to peace and democracy. Unlike BIRW, CAJ is also in favour of social rights as human rights, and has devoted increasing attention to them.224 It believes that economic deprivation has been a major cause of the conflict in Northern Ireland, not only among Catholics, but also among working class Protestants.225 Poverty causes alienation, and its removal, CAJ believes, is necessary for peace building. International institutions and INGOs have increasingly been emphasizing social rights, and this appears to have influenced CAJ’s views on the importance of social rights in Northern Ireland. In its practice on social rights CAJ thus seems to follow its general tendency to transfer solutions and views common at the international level to the domestic level.226 Leadership does not, on the basis of the information available to the author, appear to have played as decisive a role at CAJ as it has in the other case studies discussed above. CAJ’s organisational culture appears to emphasise collective decision-making. This appears to make the calibre of leadership less crucial to the organisation, and less important to how it functions. Type of Structure Like BIRW, CAJ basically has a Type A structure that is centralised, mechanistic, hierarchical and functional. It also contains some elements of a

222 Ibid. 223 Ibid. 224 Once again, this may be because BIRW sees itself as a temporary organisation that will disappear when the conflict ends, whereas CAJ sees itself as a permanent organisation. 225 CAJ Interview Op cit. 161

Type C structure in terms of networking. As opposed to a pure Type A DNGO, CAJ has a vestigial membership of three or four hundred people that supply volunteers it can draw upon.227 Unlike a Type B DNGO, however, this membership is not very important in the governance of the organisation. Like most Type A DNGOs, CAJ has defined areas of work: these are policing, criminal justice, equality and the bill of rights.228 Unlike LDF, it does not have a network of cooperating lawyers, but more like JUSTICE has symbiotic relationships with a number of law firms.229 Legal Framework

According to its constitution, CAJ is run by an Executive.230 Certain matters are reserved for the decision of CAJ’s Annual General Meeting, and cannot be decided on by the Executive.231 As with most of the case studies discussed above, however, most of the decisions are actually taken by the Director and staff, with the Executive only taking decisions that deviate from

CAJ's public position.232 CAJ’s constitution thus performs the legitimating function discussed above with regard to the other case studies. Like BIRW, CAJ has been affected by pressures of institutional isomorphism from INGOs through the International Federation of Human Rights, 233 Amnesty International, Human Rights Watch and the Lawyers' Committee for Human Rights. It has also felt mimetic and normative pressures from British DNGOs such as Liberty and the Scottish Human Rights Centre.234 Like BIRW, CAJ is thus an organization that illustrates the lack of a clear cut distinction between DNGOs and INGOs in the practice of a minority of human rights NGOs. As was mentioned above, it also suggests that some DNGOs exhibit a kind of ‘hybrid’ nature in certain aspects of their operation. Because it does the majority of its work on the threshold of the domestic and international

226 Another example of this is the lobbying that CAJ did for a general duty on the government to adhere to the principle of equality, which became section 75 of the Northern Ireland Act. This directly reflects the ideas of the UN in its own work on human rights. See CAJ Annual Report 1999-2000 p19. 227 This membership is not very important in the working of CAJ though. It is mainly a hangover from CAJ’s past - CAJ Interview Op cit. 228 See Director’s Report in CAJ Annual Report 2000-2001 pp9 at 15ff. 229 Such as Madden & Finucane - CAJ Interview Op cit. 230 Art 7.1 of the CAJ Constitution - CAJ Annual Report 2000-2001 Op cit p41. 231 Art 5.1 of the CAJ Constitution Ibid. 232 Questionnaire Completed by CAJ 2001 (original in possession of the author) p5. 233 CAJ is a member of the Federation - see http://www.caj.org.uk as accessed October 13th, 2000. 234 Ibid. 162

environments (reflecting a hybrid nature), CAJ’s structure thus reflects the isomorphic pressures coming from both environments. It appears to be too young and small, however, to have exerted isomorphic pressures on other DNGOs. CAJ - Evaluation of Structure As with the other case studies, CAJ’s structure can be usefully analysed using the Balanced Model. With regard to the first balance, CAJ is slightly more mechanical than it is organic. Compared to BIRW, it has a larger bureaucratic capacity and is more structured towards the type of regularity and hierarchical information flows that are characteristic of mechanical forms. On the other hand, it is also connected to international networks, including that of the International League for Human Rights. This gives it some ability to react to new events and delegate decision-making authority that is characteristic of organic forms. As the volume of its contacts seems not be enough to make up for the drawbacks of its mechanical structure CAJ has not quite succeeded in achieving this balance. In terms of the language used by Kellaher and McLaren,235 it appears to be slightly underresponsive to the environment. With regard to the second balance, CAJ has achieved an ideal balance between being structured for legitimacy and being structured for efficiency. As with BIRW, because it does most of its work internationally, and because of the nature of the local human rights culture, it has been able to be structured primarily for efficiency without suffering significant losses of legitimacy. Indeed, the fact that it won the Council of Europe Human Rights Prize in 1998 would seem to suggest that its legitimacy in some groups has increased at some points in time.236 CAJ thus appears to have succeeded in achieving this balance. Looking at the third balance, CAJ, like BIRW, is highly centralised. Both in terms of its location in Belfast and its hierarchical structure, it is not designed to obtain information from the regions of Northern Ireland, or from people lower in the hierarchy of the organisation. This interestingly does not appear to have caused an overloading of its coordinating abilities. It seems, nevertheless, that such centralisation has created a milder form of inhibition of CAJ's

235 Kellaher & McLaren Op cit p42 236 http://www.caj.org.uk as assessed on October 13th, 2000. 163

effectiveness. CAJ thus cannot be said not to have properly achieved this balance. Lastly, CAJ’s organisational culture is well balanced between identity and cohesion on the one hand, and openness to new ideas and ability to change on the other. From both the primary and the secondary material it seems clear that there is a well defined identity within CAJ’s organisational culture. This culture is focused upon the organisation being an international human rights lobbyist, litigator and policy catalyst. Nevertheless, this identity appears not to be so fixed that it inhibits it from adopting new ideas or entering new areas, such as litigation. Thus, CAJ appears to have succeeded in achieving this balance. Looking at the application of the Balanced Model to CAJ overall, on the basis of the data used it has succeeded in achieving two of the four balances, with one of those not achieved having no adverse consequences, and another only being slightly unbalanced. These structural deficiencies seem to support the result of CAJ having a slightly lower effectiveness than BIRW, as set out in Chapter Five below. A number of other issues are also important for the assessment of CAJ’s structural design besides those brought out by the Balanced Model. CAJ has a useful design for a human rights DNGO working within a civil conflict. The bias of the structure towards international work has safety advantages in an unsafe environment. Although it is based in Belfast, and thus potentially subject to sectarian violence, its work is in the international sphere, which is beyond the ability of sectarian groups to interfere with. Furthermore, CAJ’s international reputation gives it the legitimacy to be listened when it lobbies the British government. This international legitimacy can also protect it from violence in Belfast, as the INGOs and international institutions it is in touch with it could potentially publicise any attacks on it and pressure the government to provide protection. Overall, therefore, CAJ’s organisation design contains a good balance between mechanical and organic elements, and legitimacy and efficiency. Its organisational culture is dynamic and innovative, and also provides the organisation with identity and cohesiveness. CAJ’s centralisation, as at BIRW, also seems to provide advantages. In contrast, it appears that generally it is CAJ's centralised and mechanical elements, making it less responsive to the 164

environment, that have inhibited its effectiveness in mobilising law in defence of human rights.

VII. HU237 - Description and Analysis of Structure Mandate and Mission HU’s official goal and mandate is very wide, and has been stated in a number of ways. In some instances it is stated as the upholding of article two of the German Basic Law ("the free development of the personality").238 In others, it is stated that HU exists so that people can uphold the Basic Rights recognised by the Basic Law,239 and thereby ensure those rights are guaranteed to others.240 Sometimes, this mandate is also stated as "the democratic development of a still not democratic people".241 Basically, all these views appear to describe work in favour of the Basic Rights in the Basic Law across a wide range of issues. HU’s operative goal is to mobilise the majority of the “Left- liberal” establishment elites in Germany to address issues of adherence to the Basic Rights.242 Organisational Culture HU’s organisational culture was originally that of an elite circle of Left intellectuals243 that fought for a more liberal political and cultural atmosphere in Germany.244 It struggled against what it perceived as the authoritarian politics of the Adenauer era.245 Famous “Left-liberal” figures such as Fritz Bauer246 and Gustav Heinemann247 helped found and influence HU. In effect, it acted as a

237 The Humanistic Union (Humanistische Union) of Berlin - see Chapter One. 238 Dr T.Müller-Heidelberg “Standortsbestimmung der Humanistischen Union” in (Sept 2001) 155(3) Vorgänge p1 at 2. 239 In the Constitution it is stated as “defence of the free democratic order” - See heading “Satzung” at http://www.humanistische-Union.de as accessed on August 23rd, 2000. 240 See heading “Wir über uns” at http://www.humanistische-union.de (accessed Aug 23rd, 2000). 241 Ibid. 242 T.Bussemer “Ein Katalysor, aber keine Macht. Anmerkungen zur politischen Strategie der Humanistischen Union” in Vorgänge Op cit p242 at 242. In Germany the term “Left liberal” is generally used to denote a Centre-Left political culture linked to moderate Left parties like the SPD and Greens, but also to more radical political cultures. 243 Members of the HU must be fairly wealthy in order to be able to travel and attend HU events - Interview with the HU, Berlin, Sept 2001 (notes in possession of the author). 244 Ibid. 245 See http://www.humanistische-union.de as accessed on August 23rd, 2000 246 Generalstaatsanwalt (Chief Prosecutor of Hesse) from 1956 - see J.Perels “Ein Jurist aus Freiheitssinn: Fritz Bauer” Vorgänge Op cit p219ff. 247 Former Federal President of Germany - see D.Posser Erinnerungen an Gustav.W.Heinemann: Gesprächkreis Geschichte Heft 24 (Forschungsinstitut der Friedrich-Ebert-Stiftung-Historisches Forschungszentrum, Bonn, 1999). 165

conduit between the “Left-liberal” establishment and new social movements, such as the student movement, for demands for the enforcement of Basic

Rights.248 In the late 1960s, HU tried to move to become a formally organised DNGO with staff.249 It is still, however, largely structured as an intellectual society, and champions a programme by intellectuals largely for intellectuals engaged in the “Left-liberal” sub-culture.250 It essentially exists to socialise and mobilise the “Left-liberal” political culture on domestic human rights issues. Because it operates at such a high intellectual level, HU is very little known to the public, and it does not take public positions.251 Even if it wished to take public positions, it could not do so as it lacks sufficient resources or capacity.

Because of this lack of bureaucratic capacity it is largely run by volunteers.252 In short, HU’s organisational culture resembles that of an intellectual debating club that sometimes also lobbies and litigates. HU’s conception of human rights revolves almost entirely around the Basic Rights in the Basic Law. In this way, it exhibits a German version of the nationalist path to human rights observance discussed above with regard to the American case studies. HU’s idea of human rights is largely limited to the

German state and the Basic Law.253 It does some work on human rights in the European Union, but it has not really adopted the international discourse of human rights which is prevalent at the European level. Rather, it appears to have 'projected' German domestic arrangements into the European sphere, in the hope that the EU will replicate them. As with CAJ, HU places emphasis on the relationship between human rights and peace. This seems to be based on the German experience of two world wars, and has led to positions such as its strong opposition to German

248 Ibid. 249 V.Braunbehrens “Aus den Anfängen der HU: Persönliche Erfahrungen” in Vorgänge Op cit p62 at 65. 250 Bussemer Op cit p242. 251 N.Helm “40 Jahre sind genug: Kritische Anmerkungen zu Gegenwart und Zukunft der Humanistischen Union” in Vorwärts Op cit p 237 at 240. 252 Ibid. 253 Ibid. 166

participation in the NATO action in Kosovo.254 For HU, therefore, human rights include collective rights such as the right to peace.255 HU’s attitude to social rights, in line with the German case studies generally compared to the English speaking case studies, is quite positive.

However, social rights do not form a centrepiece of its thinking.256 In practice, it seems to have an attitude similar to LDF in America - it is rhetorically in favour of social rights, but rarely works on them. This may be because it was founded in 1961 in Bavaria in order to fight for the separation of church and state, and has continued this focus on civil rights.257 It may also be that its mainly west German membership pays more attention to civil rights than an east German membership might. In its work with

Forum Menschenrechte (discussed above),258 however, it has cooperated with work on social rights and thus seems open to some work in the area. In terms of the question of whether human rights are law or politics, HU sees human rights as politics.259 While it refers people that contact it concerning human rights problems to sympathetic lawyers,260 and occasionally takes on legal cases (mostly through the Chairman, who is a lawyer),261 this work is seen as a minor addition to its core activities of lobbying, socialising and publishing. It primarily conceives of the Basic Law not as a legal document to be enforced by the Federal Constitutional Court, but rather as a document that allows citizens to determine when the government oversteps its bounds. It is seen as a series of prohibitions that have to be enforced by mobilised citizens in a form of politics.262 Thus, it engages in a public critique of the Constitutional Court as a

254 See http://www.humanistische-union.de as accessed on August 23rd, 2000. 255 Probably also the right to a clean environment, a right which exists in the constitutions of several of the Länder as well as being a goal of state policy in the Basic Law (Art 20a) - see Verfassungen der deutschen Bundesländer (Deutscher Taschenbuch Verlag, München, 1999). 256 See for eg T.Müller-Heidelberg et al Grundrechte- Report 2001: Zur Lage der Bürger- und Menschenrechte in Deutschland (Rowohlt Taschenbuch Verlag, Reinbek bei Hamburg, 2001) p143. 257 T.Müller-Heidelberg “Die Humanistische Union als älteste deutsche Bürgerrechtsorganisation” in Vorwärts Op cit p13 at 13. 258 For further details see the previous chapter on tactics. 259 HU’s Constitution, however, lists the HU as “politically independent” – see http://www.humanistische-union.de as accessed on August 23rd 2000. It would seem that HU is thus not party political even though it has close connections to the SPD. 260 HU Interview Op cit. 261 Mentioned in passing concerning a case on parliamentary salaries - Ibid. 262 The HU thus engages in Rechtspolitik (legal politics). 167

citizen guardian of the Basic Law, rather than litigating. In response, the Court sometimes replies to these critiques through its President.263 HU does not appear to be influenced by its leadership. This may be because it is a membership organisation, where the membership is active and makes most of the major decisions. It appears from the data that the leadership are mostly appointed because they have some special legal or cultural skill that enables the organisation to better litigate or execute some other tactic. Thus, leadership appears to be a reward that HU bestows to gain resources. It does appear, however, that HU is influenced by its origins. HU was founded by Gerhard Szczesny (who worked at Bavarian Radio264), as a cultural and 'legal politics' society devoted to challenging the dominance of the Church over Bavarian society and politics. This origin appears to have had a number of continuing effects. Firstly, it has given it a continuing focus on civil and political rights, and especially the division between church and state. Secondly, its origins continue to influence its structure as a cultural/intellectual/political society that still functions somewhat like a debating club. Lastly, because Szczesny and the circle around him were all intellectuals interested in culture and politics, this has had the effect of giving HU’s organisational culture a distinct intellectual air to the present day.

Type of Structure HU’s structure is a classic and virtually pure Type B design. HU is organic with a geographic and divisional structure. It is a membership organisation with sixteen Land (or state) groups, each consisting of local groups. Each of these groups has their own finances and decides on their own which issues they wish to pursue. Groups generally set up within themselves smaller groups to raise consciousness on an issue.265 These working groups (which are similar to "projects") range from groups working on the implementation of the UN Convention on the Rights of the Child, to a group

263 Speeches given at the Fortieth Anniversarary Celebrations of the HU, Humbolt University, Berlin, Sept 14th, 2001 (notes in possession of the author – in German). Dr Limbach, then the President of the Constitutional Court, replied to HU criticisms at this meeting. 264 Müller – Heidelberg Op cit p13. 168

working on the human rights implications of genetic research.266 Although HU has received much support from the intellectual community,267 almost all its activities are done by its members. Legal Framework Under its constitution (Satzung) HU is run by an Executive (Vorstand), which has a Chairman (Vorsitzenden) as its officer.268 The Executive is elected either by an Ordinary Delegates Conference called every two years, or an Extraordinary Delegates Conference, which occurs when ten percent of the membership calls for it. In the years when there is no Delegates Conference there is a Groups Meeting (Verbandstag), which consists mainly of the executives and speakers of the local and Land groups. To advise the Executive there is also an Advisory Council (Beirat) of leading figures in various fields. There is only one member of staff, and he currently does administration for the National Office (Bundesgeschäftsstelle) in Berlin. The National Office appears to be situated in Berlin because of the presence there of the government269 and Left-liberal elites. Unlike the above case studies, there is not a great deal of difference between HU’s practice and its Constitution.270 This appears to be because it is not staff driven but member driven, and this membership activity is actually regulated by the Constitution. While the institutional view in Organisation Theory seems not to apply to HU’s legal framework in the way it does for the above case studies, in fact HU takes care to recruit famous and well respected people as members of its Executive. In this way it 'sells' itself to prospective members by getting them to want to associate with such company. In terms of institutional isomorphism, HU seems to have been more subject to it, rather than having been the cause of it. The membership largely forced HU to adopt the current structure in the late 1960s to democratise it, and drew on the model of other associations.

265 The Land groups are Baden-Württemberg; Bayern, Berlin; Brandenburg; Sachsen; Hamburg; Hessen; Thüringen; Niedersachsen; Bremen; Sachsen-Anhalt; Nordrhein-Westfalen; Rheinland-Pfalz; Saarland; Schleswig-Holstein and Mecklenburg-Vorpommern. 266 Reports given at the 17th Delegates Conference of the HU in the Robert Havemann Room of the House of Democracy and Human Rights, Berlin, 15-16 September 2001 (notes in possession of the author – in German). 267 Helm Op cit p240. 268 See http://www.humanistische-union.de as accessed on August 23rd, 2000 under “Satzung”. The rest of the paragraph is from there also. 269 Questionnaire Completed by the HU, 2001(original in possession of the author) Op cit p3. 270 Ibid p5. 169

HU - Evaluation of Structure The application of the Balanced Model to HU gives a different picture to that of the other case studies above. With regard to the first balance it is not balanced, as it has a structure that is more organic rather than mechanical. It has almost no staff, and thus little bureaucratic capacity. Its decision-making power is spread very widely, and its local groups thus have the capacity to respond to events very quickly. As a result, HU’s problem is that it basically lacks the ability to plan campaigns in the long term and run large legal cases or campaigns. With regard to the second balance, HU is structured for legitimacy with its membership, rather than efficiency and rationality. The decentralised structure is intended to accommodate ideas of participation and democracy common in the membership, and the interests of local groups. Were it structured more directly for efficiency, more of its resources would probably have to be centred in Berlin to influence the Left-liberal elite that resides there and the federal government. HU thus appears to be overbalanced towards legitimacy. In terms of the third balance, HU is balanced in a special way between centralisation and decentralisation. It appears decentralised because of the large number of local groups it has. The national headquarters in Berlin, however, coordinates the groups using e-mail. In some ways, a form of network structure thus operates between the local groups and the national headquarters. Consequently, HU manages to achieve this balance using the Internet as a centralising force. Lastly, HU’s organisational culture is overbalanced towards identity, and underbalanced towards openness to new ideas. In some ways it is open to new ideas, like the new European Bill of Rights that it has been working on. In contrast, however, there is also a tendency to reject new or opposing positions and to concentrate on the development of its own position. The concentration on equality of politicians' salaries might be cited as one example of this. This issue seems to have gained great attention within HU, but appears not to have been considered important outside of the organisation. One might expect that a membership organisation might have the tendency to bring in new ideas through new members. In the case of HU, however, the fact that one needs to 170

be reasonably independently wealthy to participate271 seems to limit the diversity of those that become members. Overall, in terms of the Balanced Model HU succeeds in only one of the four balances. This suggests less effectiveness than is suggested in other chapters. It would thus seem that structure is a problem for HU, and that other aspects of its performance have compensated for these structural problems. Outside of what is revealed by the Balanced Model some further comments are useful in analysing HU’s structure. The exclusivity of HU's membership seems to give it problems in fulfilling its traditional role as the conveyer of human rights demands from social movements to the State. Specifically, HU’s membership is not wide enough to give it connection to the new anti-Globalisation movement, or to the demands of east Germans in the post-Unification world.272 This seems to be connected to HU’s lack of a 'profile' with the public. This lack of public recognition prevents it from drawing on a wide enough spectrum of different people for its membership, or to accumulate enough capital to have a substantial permanent staff. Furthermore, its culture is only slightly different from that which it must have had in the 1970s or early 1980s. As mentioned above, this suggests a culture that, although ostensibly open, in practice is resistant to change.273 HU also has problems with a hypercomplex environment. Since the 1960s the issues that it was once alone in championing in Germany have been taken up by other DNGOs.274 As with LDF in America, this has made it more difficult to coordinate campaigns and attract members and donors. Its main answer to this has been to increase its networking so as to lower competition among DNGOs. This is supposed to increase its ability to simplify the organisational field, and thus be more effective.275 The turn of the political tide to the Right has affected HU in that social movements are smaller and less numerous than before, intellectuals are less

271 HU Interview Op cit. 272 Helm Op cit p238. 273 It has been remarked that once HU adopts a position it has difficulty accepting opposition - Ibid. 274 Ibid. 275 The Human Rights Forum is one result of this networking - T.Bauer “Mission meist possible: Die Arbeit der HU-Bundesgeschäftsstelle in der Datenflut” in Vorgänge Op cit p82 at 88. 171

influential, and there is less support from students.276 Despite some international networking in Europe and internationally,277 HU has not reacted to Globalisation in any meaningful way except through some work on a European Bill of Rights. It has thus surrendered to a large degree any possibility of pressuring the German state from outside. Overall, therefore HU’s structure has the capacity to influence and socialise governments through its cultural activities as a legal and political club. While sensitivity to the environment through a decentralised and organic structure and cultural capacities in the membership appear to be its greatest strengths, its weaknesses appear to be too much focus on obtaining legitimacy among the membership, a lack of bureaucratic capacity to carry out long term litigation or lobbying, and a somewhat closed organisational culture. As a result HU's structure is unbalanced overall. VIII. KGD278 - Description and Analysis of Structure Mandate and Mission KGD’s mandate is both to further human rights in Germany through citizen political activity, and to trace human rights violations to their source in social structures.279 Its mandate thus encompasses a human rights mandate to be enforced through extra-parliamentary politics in civil society, as well as a commitment to research to uncover the causes of such human rights violations. Its operative goal appears to be to work on human rights issues of interest to various social movements in Germany.280 Organisational Culture KGD’s organisational culture combines that of a research based NGO, like Amnesty International, with that of a protest movement that engages in

276 S.Hamler “Wie die 68er Revolte eines ihrer liberalen Kinder fraß. Eine kurze Geschichte der Humanistischen Studenten Union, erzählt am Beispiel München” in Vorgänge Op cit p49ff. There has been a relative decline of the radical political cultures of the 1960s and 1970s in German civil society and the Left leaning governments of the 1960s and 1970s were succeeded by the more conservative CDU government of Helmut Kohl. 277 Bauer Op cit p87. 278 The Committee for Basic Rights and Democracy (Kommittee für Grundrechte und Demokratie) of Cologne (Köln). See Chapter One. 279 The heading “Was will das Kommittee?” at http://www.grundrechtekomittee.de as accessed on August 16th, 2000. 280 These include freedom of assembly; refugees and migration; social rights; criminal justice; aid for prisoners; new technologies; peace and conflict prevention - see Ibid. Also Globalisation, childrens’ and womens’ rights and conscientious objection to military service. For the last see C.Herz 172

direct action and demonstrations. Its work is exclusively within Germany, and it has few contacts abroad. It does not see itself as a mass organisation, but rather as a 'head' or 'peak' organisation for human rights for all the social movements in Germany.281 Ostensibly, it is a group of intellectuals who publish and hold congresses, only speaking for themselves. In truth it guides, informs and even sometimes leads actions on human rights issues from within German social movements.282 KGD was founded in 1981 as a result of the findings of the Russell Peace Tribunal that the German state had seriously violated human rights in its pursuit of the Red Army Faction (RAF) terrorist group.283 As a result, it came to see itself in its early phases as a protector of social movements from human rights violations by the state, and this self-perception has continued.284 KGD’s origins thus exert a powerful influence on its present attitudes and work. KGD it appears so much sees itself as part of social movements and responding to their initiatives, that it does not see itself as an "NGO". It understands this term as applying to a more autonomous and a-political organisation than itself. Rather, it sees itself as a political organisation connected to the people.285 Given the definition of a DNGO in Chapter One, KGD is analysed in this work as an NGO despite this self-perception. KGD’s conception of human rights is that they should be developed as a political process from below amongst the people.286 Compared to the case studies above, it conceives of human rights as having greater anti-statist and anti-capitalist implications. KGD is critical of organisations like Amnesty

International for being too close to the state.287 It also sees human rights structurally. Human rights violations are seen to emanate from social structures such as capitalism. Thus, it not only criticises violations of social rights, but also criticises capitalism and the international

Totalverweigerung: Ein Streitschrift für die totale Kriegsdienstverweigerung (2. Auflage) (KGD, Sensbachtal, Jan 1996). 281 Interview with KGD, Cologne, Sept 2001 (notes in possession of the author). 282 Ibid. 283 Ibid. 284 Ibid. 285 Ibid. 286 Ibid. 287 Ibid. 173

Neo-Liberal system, which it argues give rise to such violations.288 Human rights literature currently attributes such views of human rights primarily to Third World human rights DNGOs.289 KGD shows that such dichotomies, when speaking of Germany, are too simplistic. KGD takes social rights seriously, and often campaigns on social rights issues. It understands the German tradition as placing emphasis on social rights, and it sees social rights and civil rights as interconnected.290 In its view contemporary poverty and social injustice have their root in the ideology of Neo- Liberalism. KGD thus sees itself as involved in a campaign against the "poverty politics" of Neo-Liberalism. Social rights are thus not litigated, but seen as a branch of "legal politics". Its approach thus stands in stark contrast to the western position on social rights.291 In terms of the question of whether human rights are to be seen as law or politics, KGD sees human rights not only as politics, but partisan politics.292 It sees human rights as explicitly opposed to capitalism, not only in the way this is understood in the newer anti-capitalist/ anti-Globalisation movement, but also in terms of the older socialist movement (some whose members are also members of the organisation).293 KGD sees human rights as aiming towards a humanistic socialist society that has not as yet existed and as containing a critique of capitalist social relations.294 Leadership appears to have had some influence on KGD in the past through one of its prominent founders, Klaus Vack.295 He appears to have influenced the structure and work of KGD in its formative stages. Currently, however, its leadership appears to be more collective, and it is thus hard to point to any figure or group of figures whose leadership decisively influences the organisation. Type of Structure

288 Ibid. 289 H.J.Steiner Diverse Partners: Non-Government Organisations in the Human Rights Movement (Harvard Law School Human Rights Programme, Cambridge(Mass), 1991) p30. 290 KGD Interview Op cit. 291 Cassese Op cit. p354. 292 KGD Interview Op cit. 293 Ibid. 294 Ibid. 174

In terms of structure, KGD is a Type C DNGO. Typically for such a

DNGO it has a membership of about one thousand,296 and a culture dominated by the norms of the social movements it is connected to. Also typically for a Type C DNGO, it is defined by an intricate and wide ranging network of contacts to movements across Germany. Among these movements are the peace movement; the refugee movement; the social rights movement; the movement of the unemployed and the anti-Globalisation movement.297 Not only the network, but also the central office is partly organic in form. This is because in practice the structure is non-hierarchical and major decisions are made by consensus.298 There are also non-organic elements in the central office in Cologne. These elements involve some voting and, as in the functional design, allow for the establishment of working groups when two or three members wish to work on an issue.299 This internal differentiation and KGD’s relatively small use of the Internet thus make it less organic than the types of groups involved in the newer anti-Globalisation movement.300

Legal Framework KGD’s constitution has an Executive (Vorstand) that runs it as required by law.301 There is also a larger Work Committee that is coordinated by two members of the Executive.302 The Secretariat is constituted as the link between the members and the Executive. The Executive delegates power to the Secretariat, which in practice makes decisions for the organisation and does most of the work. The three members of the Secretariat are paid to do this work

295 For an article by him see K.Vack “Ein Sonnenstrahl im lange abgedunkelten Keller” KGD Jahrbuch ‘95/’96 p441. Klaus and Hanne Vack received the Fritz Bauer Prize from HU for their services to human rights in 1996. 296 Ibid. 297 Ibid. 298 Ibid. 299 Ibid. There are currently five or six working groups that meet two or three times a year 300 As in the protests at Seattle where 'Internet swarms' were used by many small groups to coordinate themselves – P.Alston & H.Steiner International Human Rights in Context: Law, Politics, Morals (2nd ed) (Oxford University Press, Oxford, 2001) p942. 301 KGD Interview Op cit. 302 See http://www.grundrechtekomitee.de as accessed on August 16th 2000. This Work Committee is basically an extended Executive. 175

and thus constitute the de facto staff of the organisation.303 In the period when the full Secretariat does not meet, individual members of it make decisions.304 KGD has three levels of member involvement: it has members, contributors and sympathisers.305 Members work on human rights issues and influence KGD policy. Contributors financially support KGD and do nothing more.306 Sympathisers are active in social movements and receive information from KGD.307 KGD appears to be situated in Cologne, rather than Berlin, because its work is focused on civil society and not on government, and it therefore does not need to be situated near the government.308 There is a sense that there is no gap between KGD’s constitution and the practice. This is because the staff are legally empowered to run it,309 with input from the membership at members' assemblies held every two years.310 But there is also a sense in which the constitution is a "mask", in the way suggested by the Institutional View. KGD’s decisions are in fact taken in a process of collective decision-making (largely through consensus311) in a way similar to that which CCR employed in the past. The author sees the relationship between KGD’s legal form and practice as not dissimilar in practice to that of the British and American DNGOs above. In terms of institutional isomorphism, KGD seems unique. It does not appear to be similar to other DNGOs, or to have been copied by other DNGOs. KGD - Evaluation of Structure Because of KGD’s unique features, the application of the Balanced Model yields some interesting results. With regard to the first balance, KGD has a good balance between organic and mechanical elements. The fact that decisions are made by consensus in a non-hierarchical way in the central office, and that it makes its decisions with the social movements it is connected to, all

303 Ibid. Until relatively recently (Jan 1999) there were two Secretariats, one in Cologne and one in Sensbachtal (a town in the Rhineland). Sensbachtal was the home town of the founders of KGD. 304 Ibid. 305 See http://www.grundrechtekomitee.de as accessed on August 16th 2000. 306 Ibid. They receive publications of the KGD in return. 307 Ibid. Sympathisers are thus in effect contacts of the KGD 308 Ibid. 309 Questionnaire Completed by KGD, Cologne, Sept 2001 (original in possession of the author) p5. 310 See http://www.grundrechtekomitee.de as accessed on August 16th, 2000. 311 KGD Interview Op cit.

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show organic features. On the other hand, its greater bureaucratic capacity compared to HU, its centralised office and voting procedures all speak of a more mechanical form. Overall, therefore, its structure must be said to be well balanced in this regard. With regard to the second balance, KGD’s structure is overbalanced towards being structured for legitimacy, rather than efficiency. It appears to be important for KGD to be seen as legitimate among the social movements it works with. This seems to require that it maintain a certain ideological "purity". This purity, however, tends to cause it to become trapped within paradigms of how to do its work. This, in turn, hinders it taking actions that, even though they might not be considered as legitimate in terms of its ideology, might be more effective. Thus, for example, the bias towards legitimacy appears to hinder resort to litigation and international work. KGD thus does not appear to have achieved this balance. With regard to the third balance, KGD is well balanced between a centralised and decentralised structure. On the one hand it might prima facie be seen as centralised, because it only has one office, and most decisions are made by the three members of the Secretariat. On the other hand, most of its decisions are made by consensus. Members have regular control of the process, and decision-making is often shared with the social movements it works with. KGD’s structure thus appears well balanced in this regard. Lastly, with regard to the fourth balance KGD is overbalanced towards coherence and identity in its organisational culture. Not enough emphasis is placed on openness to new ideas. The ideological nature of its organisational culture tends to lead KGD to reject ideas that fall outside of what its ideology sees as legitimate. This is not to say that there is not creativity in the work that it does. Rather, that many ideas that would be useful to improve the effectiveness of its work appear not to be considered on the grounds of the organisation's ideological/ human rights worldview. KGD thus appears not to have achieved this balance. Looking at the picture for KGD overall, the Balanced Model shows that it appears to have succeeded in achieving two of the four balances. This result is better than the analysis of other aspects of KGD in other parts of this work. Especially in terms of the assessment of effectiveness in Chapter Five, it 177

appears that KGD's structure is not as great a hindrance to its effectiveness as other aspects of its practice, such as its tactics. Outside of the issues raised by the Balanced Model, other factors are useful to consider in analysing KGD's structure. The KGD design emphasises a democratic and 'moral' aspect, in that it is focused on the weak and the masses, rather than elites or institutions. It also emphasises flexibility in being able to respond to human rights demands from social movements or from the people. The three tiers of involvement seem to be a successful structural innovation designed to maintain participation at levels that ordinary people can manage. KGD, however, also appears to have a number of faults in its design that seem to impede its ability to mobilise through law. Its cultural self-identification as part of a partisan political movement appears to deter the majority of the populace (who are probably currently centrist or right of centre) from participating. This to some extent undermines KGD's claim to be "from below". Some way for allowing participation for those whose political views are different, but who wish to defend human rights, is clearly lacking. Once again, protecting social movements alone probably cannot gain KGD enough political mobilisation of the populace to achieve its goals. Some way of reaching out to civil society outside of the social movements seems to be required. KGD is also not well designed to deal with Globalisation and hypercomplexity. It makes little use of the Internet,312 has almost no international contacts313 and rarely coordinates its actions with other German DNGOs.314 In the future these problems could be increasingly decisive in hindering KGD’s effectiveness. Overall, it thus appears that KGD’s structure is one of the aspects of its mobilisation through law that works best. The structure is well balanced between organic and mechanical features, and between being centralised and decentralised. It seems that the main drawbacks of the structure are an overemphasis on ideological legitimacy, and a somewhat closed organisational culture. These appear to have caused it difficulties in responding to new environmental features such as Globalisation and the Internet.

312 KGD Interview Op cit. 313 Ibid. 314 It may be that this is not so necessary, however, as KGD is somewhat unusual compared to other DNGOs in appealing directly to the populace. 178

IX. GBM315 - Description and Analysis of Structure Mandate and Mission GBM’s mandate has been described in a number of ways. It is sometimes stated as the documentation and active protection of Basic Rights through national and international work and the promotion of international understanding.316 It is also sometimes stated as the creation of a dignified existence and social protection for the elderly, campaigns against discrimination and support for those whose rights may be threatened by criminal prosecutions. This mandate is said to be achieved through research, publication and work with national and international organisations.317 GBM’s operative goal seems to be to combat the adverse social consequences and resulting human rights violations of the capitalist 'shock therapy' given to east Germany during the Reunification process. Organisational Culture Although GBM argues that it is not just an east German organisation, its organisational culture is a mixture of influence from the culture of the former

East German regime and of the opposition to it.318 Like the former East German regime, it is somewhat defensive about the actions of that regime. It also shares many of that regime's principles, although it does not believe that the GDR upheld them. Like the former East German opposition, it believes in participatory forms of social organisation such as NGOs, and stands against injustice using the language of socialism and human rights. GBM was founded in 1991 by a group of academics, artists and theologians in Berlin319 in reaction to what they saw as discrimination against former East Germans. They believed that a witch-hunt against people connected to the former East German regime320 was occurring and a form of 'revenge' was being practiced against the former East German populace. GBM

315 The Society for Civil Rights and Human Dignity (Gesellschaft zum Schutz von Bürgerrecht und Menschenwürde e.V) of Berlin - see Chapter One. 316 Satzung der GBM (Constitution of GBM) Art 2(1). 317 Ibid Art 2(2). 318 Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). Interestingly, the staff at KGD appeared to think that GBM was still totally Stalinist in its outlook, and appeared not to take deviations from this ideology on human rights seriously - KGD Interview Op cit. Note – the author uses a small ‘e’ for east to denote a region of the united Germany rather than East Germany as a nation. 319 See http://www.gbmev.de as accessed on August 14th 2000. See also S.Prokop “Erinnerungen an die Vor- und Frühgeschichte der GBM” in (1996/2) 5 Icarus p7. 320 GBM Interview Op cit. 179

is still highly influenced by its origins both in terms of its membership and its view of its mission. GBM’s membership consists mostly of highly educated people such as academics, diplomats and artists. Its culture is thus highly intellectual and cultural. It views itself as a cultural and intellectual centre for former East

Germans.321 It also claims to be the largest Left-wing human rights DNGO in Germany.322 GBM’s conception of human rights is not that dissimilar to that of KGD. It sees Left-wing politics and human rights as being connected.323 For it, human rights point the way to the transcendence of current social arrangements in the way posited by socialism.324 At GBM human rights are seen to contain what the Neo-Marxist Frankfurt School called "real utopias", or utopian images of how the real world could be.325 Like socialism, human rights are seen to posit alternatives to the world as it is.326 GBM thus has a political/philosophical view of human rights. GBM’s view of social rights is almost identical to the eastern bloc view of human rights during the Cold War.327 Its view is that economic, social and cultural rights, the right to equality and certain collective rights, such as the rights to self-determination and peace, are the principal human rights. These rights form almost all GBM’s mandate.328 In its view, this understanding of social rights is almost uncontested among its east German membership. For it, this different understanding of human rights is an important difference between east and west German people.329 GBM is thus the only one of the case studies whose work focuses principally on social rights. In terms of the question as to whether human rights are viewed as law or politics, GBM sees human rights work as a form of Left wing politics.330 Despite

321 Ibid 322 See http://www.gbmev.de as accessed on August 14th 2000. 323 GBM Interview Op cit. 324 Ibid. 325 Ibid. 326 Ibid. 327 Cassese Op cit p354. 328 GBM differs from the East German state in that it accepts the role of NGOs and international intervention in defence of human rights in ways that the East German state did not - see GBM Interview Op cit. 329 Ibid 330 Ibid. 180

seeing human rights as a transformative political process, and not primarily as law, it uses international law standards heavily in its work and litigation.331 Leadership does not appear to influence the way GBM does its work. Decisions appear in practice to be made collectively by the Executive. Dr Richter, the President, appears to have some influence on it as its spokesperson, but his statements appear mainly to reflect the will of the Executive. The situation at GBM thus appears to be the antithesis of that at BIRW, where leadership is so crucial. Type of Structure In terms of structure, GBM is a Type B DNGO. It is decentralised and organic, with over forty local groups in the former East Germany.332 It has an almost a pure geographical structure, without even the working groups that suggest a divisional structure as at HU. GBM’s culture, like most Type B DNGOs is a mixture, this time of the values of east German social movements with which it is connected,333 and the values of the intellectuals it works with.

Legal Framework Under its Constitution (Satzung) GBM’s major organs are an Executive (Vorstand), a Council (Kuratorium) and a Finance Committee.334 These organs are elected by a Delegates’ Conference that must be held once a year.335 The Delegates’ Conference consists of the Executive, the President and Vice- President of the Council, the elected delegates of the local groups and the

Central Working Group (a version of the local groups at the central office).336 The Executive is elected for two years, while the Council, which is made up of persons that advise and support GBM, has no such limit. The Council, however, must have the President and Vice-President of the Executive as

331 Ibid. GBM claims that use of international law for human rights work was an East German tradition and not a West German one. 332 Local groups are in Brandenburg, Mecklenburg-Vorpommern, Sachsen, Sachsen-Anhalt and Thüringen - GBM 2002 Calender . 333 Dr Richter, the President of the GBM Executive, is also the President of the East German Council of Associations - GBM Interview Op cit. 334 Art 9(1) of the GBM Constitution. 335 Art 10(7) of the GBM Constitution. 336 Art 10(2) of the GBM Constitution. 181

Members.337 As at HU, GBM’s practice does not vary much from the Constitution, because there is no full-time permanent staff and all the work is done by its members.338 GBM - Evaluation of Structure The application of the Balanced Model to GBM yields some interesting insights into its structure. With regard to the first balance, as at HU GBM’s structure is more organic than mechanistic. Decision-making power within the structure is delegated to local groups, with the central office having little bureaucratic capacity. Because the local groups have such power, they have the ability to respond to events quickly. The availability of former GDR functionaries to do this work may make up for a lack of staff and bureaucratic capacity. However, overall the absence of such capacity seems to give a picture of a structure that is unbalanced in this respect. With regard to the second balance, GBM is more balanced towards legitimacy than efficiency. As at KGD, it appears that ideologies of participation and accountability have created a need for legitimacy with its members. This appears to have led to its decentralised geographical structure. Because this structure is not adapted to litigation or international work, it appears to have hindered the achievement of GBM's goals. With regard to the third balance, GBM is overbalanced towards decentralisation. Furthermore, it does not have any obvious coordination mechanisms, such as the Internet, that gives it some element of centralisation and coordination. As the regional groups have their own money and agenda, and are mostly regionally orientated,339 it appears that GBM suffers from a problem of coordinating local groups with the central office that deprives it of the full benefit of all of its resources and members. GBM thus appears not to have achieved this balance. Lastly, GBM’s organisational culture appears well balanced between coherence on the one hand and openness to new ideas on the other. This appears to be the real strength of GBM's structural design. The culture has a strong identity through the majority of members being former GDR citizens and

337 Art 12(1) of the GBM Constitution. 338 Questionnaire Completed by GBM, Berlin, 2001 (original in possession of the author) p4. 339 Ibid.

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sharing in the neo-Marxist ideology at the core of the organisation's thinking. On the other hand, because of the skills of the former GDR functionaries that are its members, it has seems able successfully to think outside of paradigms and to resort new ideas and tactics. In this sense, GBM has achieved this balance in an exemplary fashion. Looking at the application of the Balanced Model overall, GBM achieves only one of the four balances completely. This suggests that it is less than ideally designed in some areas. It appears, however, that it is the organisational culture that makes up for the deficiencies in the other areas and gives it the types of effectiveness described in Chapter Five of this work. Besides the factors illuminated by the Balanced Model, a number of other comments are useful in analysing GBM's structure. Firstly, it has achieved a remarkable amount in a relatively hostile political environment with very few resources. Even more remarkably, it has achieved successes primarily in the area of social rights - a largely neglected area of human rights. As set out above, the reason for this appears to be its educated and well connected membership and the culture they have created. Elements of GBM's structure, however, do not, compared to a DNGO like CAJ, seem well adapted to the tasks it has undertaken. Like CAJ, GBM is in a situation where building a membership base is very difficult and it has, therefore, turned to the international sphere. Unlike CAJ, however, GBM's structure is designed to acquire a membership and to be involved in local politics and law. There thus seems to be a disjuncture between its structure (besides the organisational culture) and the work it does. These features of the structure may hinder its activities. As GBM focuses on international work, it would seem logical to allow its branches and membership to dwindle in favour of building a knowledgeable staff at the national office. Overall, therefore, apart from its organisational culture, GBM's structure is unbalanced and not well adapted to its environment or the tactics it uses. Its structure thus appears to be a factor that inhibits its effectiveness. Its strengths appear to be that its organic nature makes it adaptable, and that includes members who are highly skilled in areas it needs. C. Conclusion - The following tables set out the main features of what was discussed above in order to facilitate comparison between the case studies. The first table 183

summarises what was said above about the structure of each case study, while the second table summarises the results of applying the four balances of the Balanced Model to the case studies.

Table Two: Main Features of the Structures of Each Case Study.

Case Studies Description of Structure LDF Centralised. Determined by tactics. Closed organisational culture. Underresponsive to the environment. Unbalanced. LCCRUL Decentralised. Capable of undertaking multiple tactics. Innovative organisational culture. More responsive to the environment than LDF. Less rigid than LDF. Unbalanced. CCR Centralised. Adventurous organisational culture. Engages in a wide range of tactics. Mechanical. Legitimacy orientated. More balanced than LDF. JUSTICE Centralised. Rigid. Well adapted to the environment. Organisational culture connected to the legal profession. Mechanical. Balanced. BIRW Centralised. Creative organisational culture. Sensitive to the environment. Leadership dependent. Balanced. CAJ Centralised. Less sensitive to the environment than BIRW but greater bureaucratic capacities. Innovative organisational culture. Mechanical. Balanced. HU Decentralised. Organic. Membership driven. Closed organisational culture. Sensitive to the environment. Focused on legitimacy with members. Lack of bureaucratic capacity. Unbalanced. KGD Balanced between being centralised and decentralised. Well adapted to its tactics. Not sensitive to the environment. Emphasis on ideological legitimacy. Closed organisational culture. Well balanced. GBM Decentralised. Unsuited to tactics. Organic. Skilled membership gives similar capacities as a staff. Unbalanced.

Table Three: The Application of the Balanced Model to the Case Studies

Case Studies Balance One: Balance Two: Balance Three: Balance Four: Application of the Organic or Legitimacy or Centralisation or Closedness or Balanced Model Mechanical Efficiency Decentralisation Openness of Overall Organisational Culture LDF mechanical legitimacy centralised closed unbalanced. unbalanced. unbalanced. unbalanced. unbalanced. LCCRUL more mechanical more legitimacy- balanced. closed unbalanced. near balanced. near balanced. unbalanced. CCR more legitimacy more centralised- balanced. near balanced. mechanical- near unbalanced. near balanced. balanced. JUSTICE mechanical balanced. centralised balanced. balanced. unbalanced. unbalanced. BIRW balanced. balanced. centralised balanced. balanced. unbalanced. CAJ more balanced. centralised balanced. balanced. mechanical. unbalanced. 184

HU organic legitimacy balanced. closed unbalanced. unbalanced. unbalanced. unbalanced. KGD balanced. legitimacy balanced. closed near balanced. unbalanced. unbalanced. GBM organic legitimacy decentralised balanced. unbalanced. unbalanced. unbalanced. unbalanced.

I. Overall Characteristics In this chapter, the structural data from the case studies was examined both in order to describe their structures and to analyse their effectiveness. This revealed, first, that the data appears to show that, with exceptions, case studies in the same jurisdiction tend to resemble each other more than those in other jurisdictions. The American case studies tend to be centralised and mechanical, as required by the Public Interest Law Firm model, and yet LCCRUL is decentralised and less mechanical. Similarly, the British case studies tend to be centralised and mechanical with extensive advocacy networks, whereas JUSTICE has less extensive networks. Lastly, the German case studies tend to be decentralised and organic with a membership, whereas KGD is more centralised, has less of a membership and is more mechanical. Patterns thus exist, but they have a significant number of exceptions. This appears to suggest that a weak amount of institutional isomorphism operates in all three jurisdictions. It also tends to suggest, in the way advocated by Difference Theory in Comparative Law, that the structure of the case studies reflect different "ideas of justice" in the realm of human rights in the three jurisdictions. Secondly, there appears to be an overall bias among the English speaking case studies towards mechanical forms, and among the German case studies towards organic forms. This is interesting because DNGOs are usually seen as more flexible and organic than INGOs, whereas this is clearly not universally the case. This result may be due to the method of selecting the case studies for this work, which, as set out above, predominantly includes the most well known and largest. It may, however, also be reflective of hitherto unknown features of the world DNGO population. Lastly, the data also appears to suggest that the different aspects of DNGO structure interact together in order to help or hinder a case study's effectiveness. Only a few general propositions from the case studies can therefore be offered about effectiveness. An organisation's internal culture appears to be the most decisive aspect of a DNGOs structure for effectiveness. 185

The case studies whose cultures have a distinct espit de corps, as well as an openness to new ideas, such as BIRW or GBM, appear to show the best performance on the basis of the method set out in Chapter Five. An overemphasis on structuring a DNGO for legitimacy appears to be the most common feature of the case studies that hinders their effectiveness. The diversity of structures among the case studies, even in the same environment, reveals few clues as to how a DNGO can generally best be structured for effectiveness. As mentioned above, it seems crucial that the organisational culture be balanced and dynamic. It also seems important that the pitfall of an overemphasis on legitimacy be avoided. Beyond that, the data appears to suggest that the structures of the case studies are more mechanical and centralised than Organisation Theory might advise and that this may be beneficial for them. The reason for this appears to be that a certain amount of bureaucratic capability is necessary to conduct lobbying and litigation (in order to accumulate the requisite information and contacts) that may not be so necessary for companies that sell steel or oil. An alternative reading of the data may be that all the case studies are simply unbalanced in this respect, and could improve their effectiveness if they were more organic. The author feels that this reading lacks credibility, however, because even some of those with the highest effectiveness in Chapter Five appear to have this bias towards mechanical features. II. Structural Adaptation to Tactics Outside of the analysis using the Balanced Model, the structures of the case studies can also be assessed according to how they are adapted to their tactics. Some structures appear to be better adapted to certain tactics. The structures of the American case studies seem unsurpassed in their ability to mobilise law through litigation in domestic courts. They appear to have the most intricate and sophisticated structures for domestic litigation, even though US courts are currently resistant to domestic human rights litigation. In this limited sense the literature seems correct in using them as a model. JUSTICE seems to have the structure that is best designed to mobilise through law to lobby the national government and socialise the bureaucracy. Its structure has research and educational capacities that seem to have helped it in working with the British civil service. In contrast, LCCRUL and CCR seem to 186

have their lobbying dominated by their litigation. This appears to have inhibited their lobbying from effectively socialising governments. HU, because of its lack of staff and focus on political elites, does not seem well adapted to socialising the bureaucracy or carrying out long term plans in the way JUSTICE seems to have done successfully in lobbying for the Human Rights Act. Because of its reliance on volunteers and lack of staff it also does not have the structural capacity to run the type of long term education or research programmes that JUSTICE does. CAJ and BIRW seem well adapted to mobilising through law in international institutions and mobilising law in international courts. Despite the unique conditions of the civil conflict in Northern Ireland, they seem to have structural and cultural capacities to network and produce policy influencing documents that could influence governments and international organisations. Except in the case of the German case studies the legal framework of the case studies does not appear to have a large effect on their performance. For the German case studies this exception appears to be because they are membership organisations, where the legal framework regulates the members. Lastly, as mentioned above in the results of using the Balanced Model, organisational culture appears to be very important in how well a DNGO mobilises the law. An important aspect of this culture appears to be leadership. In the case of Jane Winter at BIRW and Elaine Jones at LDF, leadership appeared to set the tone of the culture, and thus partly determine how the organisation mobilised the law. III. The Effects of Organisational Culture Although, as mentioned above, organisational culture seems to be the most important variable as to whether a structure aids effectiveness or not, it does not appear to be the main factor that has determined what the case studies’ structural designs will be. In real life, DNGOs' structural designs seem to be mostly determined by the political and professional beliefs of those that founded them, the type of tactics they practice and the forces of institutional isomorphism. Interestingly, none of the case studies appear mainly structured for maximum effectiveness rather than these other considerations. In this study the data indicates that all of the case studies appear to be affected by the political or professional beliefs of their founders. Thus, CCR’s structure with its ideas of consensus decision-making, is inexplicable without 187

understanding what was in the mind of its radical founders. With all the case studies these historical origins continue to determine their structural forms. As a whole, the case studies seem to be more adapted to their tasks than they are to their environments. For example, organisations such as LDF do not seem well adapted to the rapidly changing environment that currently exists in the US. This appears to be because they are designed to carry out impact litigation and are thus mechanical and rigid. A structure like that of the KGD, because of its networks and less hierarchical design, is capable of rapid adaptation to its environment, but exists in the relatively stable environment of Germany. The case studies thus suggest that few DNGOs concentrate on creating structures adapted to their environments as a way to improve performance. In conclusion, much of the organisational design of the case studies seems haphazard and unplanned. Often it is historically or culturally derived, rather than consciously designed to achieve certain tasks, or adapt to specific environments. Overall, the analysis in this chapter suggests that more self- conscious design by the case studies of their structures (and perhaps by DNGOs in general) should improve their performance over that which currently exists. 188

Chapter 4 – The Acquisition of Resources by Human Rights DNGOs in the United States, Britain and Germany The writers Wasby1 and Ovsiovich2 have remarked that understanding the ways in which human rights DNGOs acquire resources is important because it is a key to understanding other aspects of their activities. Similarly, Burstein3 and Epp4 have argued that a DNGO’s successful acquisition of resources is important because it often leads to it successfully mobilising law in defence of human rights. Because of such findings any credible investigation of human rights DNGOs needs to include an investigation of how they acquire resources.5 In this chapter this subject is investigated by comparing and critically analysing the types of resources DNGOs typically acquire and where they acquire them from using data from the case studies and the literature. There are a number of ways in which resource acquisition affects the overall functioning of human rights DNGOs. Firstly, as will be seen below in the case studies, the level and types of resources a DNGO acquires are the main determinants of its range of tactical choices. Thus the factors determining tactics discussed in Chapter Two (such as legitimacy) can in practice have their effect limited, enhanced, or overridden by the consequences of the levels and types6 of resources a DNGO acquires. Resource levels and types can not only influence the broad areas in which a DNGO might operate (such as litigation, lobbying or training), but also the precise tactical choices made in those areas, such as decisions to litigate in particular areas of the law, or even decisions to litigate particular cases.7 Not only the types and volumes of resources can constrain a DNGO’s tactical choices, but also the origin of the funds. As Ovsiovich has argued,8

1 S.Wasby Race Relations Litigation in an Age of Complexity (University of Virginia Press, Charlottesville (Va), 1995) p76. 2 J.S.Ovsiovich “Feeding the Watchdogs: Philanthropic Support for Human Rights NGOs” (1998) 4 Buffalo Human Rights Law Review 341 at p341 3 P.Burstein "Legal Mobilisation as a Social Movement Tactic: The Struggle for Equal Opportunity" (1991) 96(5) American Journal of Sociology 1201 at 1215. 4 C.R.Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, Chicago University Press, 1998) p3. 5 The term “resource" in this chapter is used in a wide sense to mean anything required by the case studies to operate. For detail of what it includes see below. 6 Wasby Op cit p77. 7 Ibid p76. 8 Ovsiovich Op cit p355. 189

large philanthropic foundations, such as the Ford Foundation in the United States, indirectly have a significant effect on both the mandate and tactics of the DNGOs they fund. Just as in Chapter One it was argued that law both empowers and constrains social movements,9 so the way a DNGO accesses flows of resources in a society appears to both empower and constrain its structure, tactics and effectiveness. A key puzzle for the researcher into DNGO acquisition of resources is how they accumulate resources when they generally neither produce nor sell any product or service. One answer to this question, as argued by Sarat & Scheingold,10 is that pro-social (or altruistic) behaviour (although usually existing in forms mixed with self interest) exists more widely than is often thought and is used by DNGOs as a tool to accumulate resources. Another answer to this riddle is that self interest also sometimes induces persons and groups to donate to human rights DNGOs in order to try to create a social environment more in their interests.11 As a result of these motivations, most societies have what is called (usually in an ill defined way12) a Third Sector of the economy that sustains a whole series of non-profit enterprises, NGOs, advocacy groups and social movements. Human rights DNGOs form part of this Third Sector. The nature of the Third Sectors in America, Britain and Germany will also be an element of what is examined in this chapter. The following examination of the case studies begins with an overview of the types and sources of resources DNGOs acquire. It is these two aspects of the accumulation of resources by DNGOs that appear to most decisively influence their operations. The account below is drawn from secondary literature and publicly available information on most of the DNGOs in the three jurisdictions. It is intended to give the reader an idea of the range of resources that a DNGO might select from and to briefly mention their strengths and weaknesses where appropriate. In the second half of the chapter each of the

9 H.Silverstein Unleashing Rights: Law, Meaning and the Animal Rights Movement (University of Michigan Press, Ann Arbor (MI), 1996) p221. 10 A.Sarat & S.Scheingold Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press, New York, 1998) p38. 11 Ovsiovich Op cit at 346. Or, at least, more in their interests as they perceive them. 12 See generally L.M.Salomon & H.K. Anheir Defining the Non-Profit Sector (Manchester University Press, Manchester, 1997). As seen below, the Third Sector is usually defined as all parts of a national economy outside those occupied by for-profit businesses and the government. 190

case studies is examined using information taken from the overview and the data collected. Because of the greater range of issues covered in this chapter, it is intended to be more of an outline than was the case in previous chapters. A. Types of Resources. Although the above statement concerning the key role resources play in determining DNGO activities may appear to have Marxian overtones, it should not be thought that this work relies on a realist epistemology that ignores symbolic resources. Rather, an attempt is made throughout the chapter to focus on both material and symbolic resources simultaneously. Below is a list of categories of both symbolic and material resources that different DNGOs often attempt to acquire for their operations. a) Money Capital – This can be acquired in many ways, and has a large number of possible uses. Although, as will be seen below, it is not necessary for DNGOs to have large amounts of money capital if other resources are available, without a minimum amount a DNGO can simply cease to function. b) Cultural Capital – This refers to the types of general scholastic, speaking and writing abilities that are typically possessed by intellectuals and academics.13 In many societies, there is an expectation that persons with such cultural capital have a moral duty to speak out on political matters with moral implications. For some DNGOs, cultural capital may be more important than money capital. Though not a technical expertise as such, cultural capital can be supplied by persons with technical knowledge such as lawyers, diplomats, professors and journalists. c) Professionals With Technical Expertise – This resource is essential in order for a DNGO to pursue certain types of tactics. A classic example is the need of American DNGOs, because of their focus on litigation, for lawyers with expertise in Civil Rights Law.14 American DNGOs prefer employing full time lawyers, because this allows them not only to litigate, but also to monitor potential and continuing cases and construct long term tactics.

13 The concept referred to here is the one coined by the French sociologist Pierre Bourdieu. His concept compares the accumulation of education by intellectuals and the upper classes to the description of the accumulation of capital by capitalists described by Marx in Das Kapital – see P.Bourdieu “ Forms of Capital” in J.G. Richardson Handbook of Theory and Research for the Sociology of Education (Greenwood, Westport (CT), 1986) and P.Bourdieu Outline of a Theory of Practice (Cambridge University Press, Cambridge, 1977). The argument here is that just as philanthropy exists for money capital given to human rights DNGOs, so it also exists for cultural capital given to DNGOs by intellectuals and others – especially in certain societies. 191

d) Law – Existing human rights law is also a crucial resource.15 A body of relevant law significantly aids a DNGO in effectively mobilising law in defence of human rights. If domestic or international law suitable for a DNGO’s purpose does not exist, then it often becomes involved in creating such law through litigation or lobbying/policy work. The absence of human rights laws in a particular jurisdiction is thus often not only an absence of an important resource, but also a sign of NGO absence or lack of effectiveness. Besides laws covering human rights issues, laws favouring the operation of DNGOs, such as laws allowing tax deductibility for DNGO activity, and laws allowing easy incorporation and existence as a legal entity are also crucial resources. If a DNGO is heavily taxed, or laws make its existence in an advantageous legal form complicated and expensive, this in turn could affect its ability to obtain other resources. e) Volunteers – An advantage that a human rights DNGO has over a for- profit firm is that it can appeal to pro-social behaviour and as a result acquire a range of resources with comparatively little cost. Volunteers may be able to supply special resources such as cultural capital or technical knowledge. Even members of the general public with no special skills can be used for ordinary office tasks, or in tactics such as civil disobedience. f) Information – One of the most common views of information is the Foucauldian view that it is a form of power,16 but for human rights DNGOs information is better seen as a resource. Like other resources it enhances a DNGO’s capacity or power to act. The accumulation of information about government activities, and the correct timing in the use of such information are of critical importance in creating successful DNGO tactics.17 Information derived from experience is also important. The directors of a human rights DNGO gain an enormous amount of information simply from having done their work over a long period. Such experience is infinitely valuable

14 Wasby Op cit p83. 15 Ibid p88. Law can be part of the environment of a DNGO, as well as resource. 16 See generally M.Foucault Power/Knowledge: Selected Interviews and Other Writings (Harvester Press, Brighton, 1980). 17 It is often argued that use of information is THE function of a human rights NGO. As was seen in earlier chapters, however, this oversimplifies the position somewhat. For an example of this see N.S.Rodley "The Work of Non-Government Organisations in the World-Wide Promotion and Protection of Human Rights" (1991) 90/1 United Nations Bulletin of Human Rights 84 at 86 . 192

for a DNGO in carrying out its tactics.18 Lastly, the Information Revolution has created important new kinds of information resources for DNGOs. DNGOs with an Internet site can influence events in ways that were never possible before. Conversely, DNGOs can also obtain information from the Internet on government or other groups that was difficult or impossible to obtain previously. g) Access – Another resource closely connected to information is access to government or those with decision-making power. Access is necessary not only to obtain information, but also to enable a DNGO to approach government directly or indirectly through intermediaries so it can put forward its views.19 While Vincent might trenchantly criticise human rights NGOs as being from the same elites as governments,20 often DNGOs are connected to such elites in order to obtain the information they require and to advance their views. Such access however, is not always beneficial. As Baehr points out, if a DNGO gains access to a government too easily, it runs the risk of 'capture' – a loss of independence, policy options and legitimacy.21 h) Legitimacy – As a resource, legitimacy is the respectability and representativeness of a DNGO, as well as its perceived moral authority.22 It includes the legitimacy of the DNGO itself, the legitimacy of its demands, the reliability of the information it disseminates, and the support it receives from those whose rights are being violated.23 With regard to legitimacy in the eyes of governments, Everts argues that the more the demands of a DNGO deviate from the main policy principles of a government, the less legitimacy it tends to enjoy from the point of view of that government.24 g) Links to Other Organisations – A DNGO's links to other human rights NGOs, or even other organisations, can lead to the transfer of resources of all

18 LDF especially is very clear on the value it places on experience as a resource – Interview LDF, New York, Nov 2001 (notes in possession of the author). 19 E.M. van den Berg The Influence of Domestic NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Intersentia and Hart, Antwerpen and London, 2001) p42. 20 R.J.Vincent Human Rights and International Relations (Cambridge University Press, Cambridge, 1986) p102. 21 van den Berg Op cit p43. The author has relied on van den Berg's account of Baehr's argument, as the original of Baehr's work was unobtainable by the author. 22 Ibid p41. See also Jürgen Habermas Legitimation Crisis (Beacon Press, Boston, 1975). 23 Ibid p42. 24 Ibid. Once again, the author relies on van den Berg's account of Everts' argument as Everts book was unobtainable to the author at the time. The book that could not be obtained at the time was D. Everts (ed) Controversies at Home: Domestic Factors in the Foreign Policy of the Netherlands (Brill, Leiden, 1985). 193

kinds between them. In this way a human rights advocacy network can act, in some circumstances, like a single NGO with a much bigger pool of resources. Keck and Sikkink emphasise the increased effectiveness that this linking of NGOs in 'advocacy networks' can achieve.25 Arts, on the other hand, argues that they may not increase effectiveness in some circumstances,26 and Baneke argues that such coalitions can even lead to a loss of vigour and creativity.27 To the author it seems probable that if the latter occurs it is not because these coalitions do not supply resources, but rather because other factors besides resources intervene to inhibit their effectiveness. h) Support by government – Support by government for the position of a DNGO can be crucial.28 Governments can litigate and change the legal position, they can pass laws and thereby supply law as a resource, or they can produce information at an inquiry that can be used as a resource. In some ways, support from government can have a similar effect to support from other DNGOs. The crucial difference is that governments have vastly more resources and power, and thus their aid correspondingly raises the probabilities of success. i) Organisation – Organisation itself is a resource, because of the need to organise people and resources to complete the chosen goals.29 As was seen in Chapter Three, a lack of bureaucratic and organisational capability can lead to loss of effectiveness. As was also mentioned in Chapter Three, organisation not only affects how people in a DNGO will behave, it also allows for the storing of information; the utilization of advance intelligence; the development of expertise; the adoption of long term strategies and the coordination of activities in different fora. A DNGO with organisation is thus able to carry out tactics that would be beyond the capabilities of a less well organised DNGO or individual advocates. j) Public Recognition – Public recognition is a resource for DNGOs because it improves their ability to raise funds, get access to government and

25 M.E.Keck & K.Sikkink Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca (NY), 1998) p1. 26 van den Berg Op cit. As for the account of Everts above, the author could not obtain a copy of Arts and Baneke and so the author has relied on van den Berg’s account of their arguments. Art’s book that could not be obtained at the time was B. Arts The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions (International Books, Utrecht, 1998). 27 Ibid. 28 Wasby Op cit p88. 29 Ibid p87. As seen above, organisation can also include location of premises as well as their structure. 194

cooperate with other NGOs. Like a brand name, it attracts cases and victims to a DNGO and commands attention from the government and the media. Unlike legitimacy, public recognition is not necessarily the resource of being positively regarded, but rather of being able to gain attention and of being known in civil society. B. Sources of Resources Although the types of resources that DNGOs use are analytically and practically important, most laypeople are more interested in, and surprised by, the sources from which DNGOs gain resources. These sources usually fall within the Third Sector of an economy, which may be defined as all parts of any economy outside those occupied by for-profit businesses and governments. As will be seen below, however, human rights DNGOs typically only draw their resources from a small part of this Third Sector. In the United States the government prefers to deliver social programs through non-profit organisations in the Third Sector rather than through its own bureaucracy and, therefore, funds the majority of the non-profit sector through grants.30 About two-thirds of the resources in the US Third Sector come from government grants, and one-third from private sources.31 The US Third Sector is also influenced by a powerful ideology of voluntarism.32 This ideology views the Third Sector as an alternative to social action by the State.33 The results of this have been both government funding of the sector as an alternative to direct social action, and human rights DNGOs that have adopted the ideology of voluntarism34 and see themselves as an alternative to the State. Because they see themselves as alternatives to the state US human rights DNGOs draw resources exclusively from the one third of the Third Sector that is privately funded, and not from government grants or other non-profits that receive government grants, such as legal aid organisations. However, as voluntarism encourages private donations to the Third Sector so it can be an

30 L.M.Salomon “The Non-Profit Sector and the Government: The American Experience in Theory and Practice” in H.K.Anheir & W.Seibel The Third Sector: Comparative Studies of Non-Profit Organisations (Walter de Gruyter, Berlin, 1990) p222 at 225. 31 Ibid. 32 L.M.Salomon “The United States” in Salomon & Anheir Op cit p281 at 287. 33 Ibid. 195

alternative to social action by the state, US DNGOs, unlike those in Britain and Germany, have been able to use this ideology as an extra tool in accumulating resources. The Third Sector in Britain was relatively marginal during the heyday of the Welfare State from the 1940s to the1970s.35 It was not until the crisis of the Welfare State in the 1970s, that it became influential.36 At that time British non- profit organisations began to successfully advocate policy changes,37 and to develop a symbiotic relationship with the public sector where they supplemented it by providing it with feedback and innovative ideas.38 The main source of public sector funding came from Labour party controlled local government bodies, which used Third Sector organisations to promote decentralisation and public sector responsiveness.39 Human rights DNGOs in Britain thus reflect this general symbiotic relationship between the Third Sector and the public sector. In Northern Ireland, the Third Sector is relatively large because it has partially filled the vacuum left by the absence of local government and normal political discourse and institutions.40 It can fulfil this role because it is largely neutral with regard to the civil conflict at the heart of the political process and, although the suspension of civil rights has been an issue for it, is not politically progressive.41 Despite its onerous role, the Third Sector has very few sources of indigenous funding. Because the State dominates the Northern Ireland economy this has led to the public sector setting up the Northern Ireland Voluntary Trust (NIVT) to finance Third Sector activities with public money.42 Human rights DNGOs in Northern Ireland reflect these features of the Third

34 This became apparent from all three interviews that the author conducted with the American case studies as well as writings such as those of Ovsiovich - see generally Ovsiovich Op cit. 35 M.Taylor “The Changing Role of the Non-Profit Sector in Britain” in B.Gidron, R.M. Kramer & M.Salomon (eds) Government and the Third Sector: Emerging Relationships in Welfare States (Jossey- Bass, San Francisco, 1992) p147 at 149. 36 Ibid p151. 37 J.Kendall & M.Knapp “The United Kingdom” in Salomon & Anheir Op cit p252 at 252. 38 Taylor Op cit p153. 39 Ibid p152. 40 Q.Oliver “The Role of Non-Profit Organisations in a Divided Society: The Case of Northern Ireland” in K.D.McCarthy The Non-Profit Sector in the Global Community (Jossey-Bass, San Francisco, 1992) p176 at 177. 41 Ibid p182. 42 A.P.Williamson “The Voluntary Sector’s Central Role in Managing Societal Instability in Northern Ireland” in Gidron et al Op cit p121 at pp134-135. 196

Sector, in that they are generally neutral with regard to the conflict, are generally not politically left wing, and tend to experience resource scarcity unless they bypass the Third Sector altogether and obtain international (mainly American) funding. Lastly, the German Third Sector reflects a situation where a highly developed non-profit sector and a highly developed Welfare State coexist.43 This coexistence is largely governed by the principle of subsidiarity, a principle derived from Catholic doctrine and which advocates the primacy of private over public, and local over national, provision of public services.44 Large amounts of public money thus go to private (especially church) organisations, such as Diakonisches Werk and CARITAS, to provide welfare services. Two-thirds of the German Third Sector is financed by such public grants.45 The Third Sector in Germany has a tendency to reflect past historical experiences, rather than present political realities. The repeated failure of democratic forces to gain state power in previous eras of authoritarian government has led to an idealisation of the Third Sector as the 'true' locus of politics and democracy,46 and to it becoming a centre of activity by the political Left.47 Examples of this phenomenon are the new social movements48 of the 1970s, which have established themselves as a permanent alternative to the State. They have their own sources of funds, and even their own political representation in the Greens Party.49 Also because of such historical factors, the interest associations of pre-modern times have persisted to the present day, and continue to enjoy privileged access to Parliament.50 This phenomenon of historical influence also exists in eastern Germany, where the Third Sector still largely reflects the characteristics it had during the GDR regime.51 German human rights DNGOs tend to be secular, and thus to avoid

43 H.K.Anheir “An Elaborate Network: Profiling the Third Sector in Germany” in Gidron et al Op cit p31 at 31. 44 Ibid p32. 45 Ibid p45. 46 H.K. Anheir & W.Seibel “Germany” in Salomon & Anheir Op cit p128 at 133. 47 W.Seibel “Government-Non-Profit Relationships in a Comparative Perspective: The Cases of France and Germany” in McCarthy Op cit p207at 213. 48 An example of such a movement in Germany is the environmental movement. 49 Anheir & Seibel “Germany”Op cit p138. 50 H.K.Anheir “A Profile of the Third Sector in West Germany” in Anheir & Seibel Op cit p313 at 326. 51 G.Stokes The Walls Came Tumbling Down: The Collapse of Communism in Eastern Europe (Oxford University Press, New York, 1993) p139. 197

those parts of the Third Sector dominated by churches and funded through subsidiarity. As a consequence, they often draw upon social movements for resources. German human rights DNGOs also exist as interest associations, in the form of lawyers' organisations. Having explored the terrain from which human rights DNGOs can draw resources, it remains to outline the main sources from which this is done. The main sources for DNGO resources in the three jurisdictions are set out below in no particular order. a) Membership Dues – This is a common source of money capital for those NGOs with members. Wasby argues that, even along with donations, membership dues rarely provide enough money capital to execute any of the major strategies that DNGOs might decide on. Thus, even membership organisations, such as the American Civil Liberties Union, rely heavily on sources other than membership dues for money capital.52 b) Donations – Donations by individuals and households, be they of money capital, time or of technical skills, such as those of a lawyer, are normally not enough to execute most of the major tactics used by DNGOs. A partial exception to this can be found in organisations with public recognition and famous 'brand names'. They have the capacity to gain larger amounts of resources by drawing upon their recognisability in the community. Another partial exception occurs when those who volunteer their time have technical knowledge in an area that a DNGO focuses upon. Such skills can supply the crucial elements that a DNGO may need to execute important tactics. c) Stocks, Shares and Investments – Stocks and shares can come into the possession of DNGOs in two ways. Either they can be donated to DNGOs to provide a continuing income, rather than a one-off donation, or they can be bought by DNGOs from money obtained in some other way. Either way, if a DNGO establishes a sensible investment portfolio, it can benefit consistently from the investment returns, and thus improve its inflow of money capital resources. d) Mass mailings – Direct mail fundraising operates on the basis of lists of potential donors. These lists are generally compiled by buying or renting lists

52 Wasby Op cit p90. 198

from other organisations.53 Computers are then used to 'merge and purge' lists from within and outside the organisation so as to create a 'house list'. This list allows organisations to accurately target persons who approach the profile of a likely donor, and to easily obtain their contact details.54 The use of such a list often leads to the creation of a relationship between DNGOs and regular donors that resembles that between lawyer and client, and requires regular upkeep.55 Because DNGOs in the US receive postal subsidies, and because they generally spend less money on soliciting donations than they gain, direct mail fundraising has made up an increasing proportion of their budgets.56 The major problem with this fundraising system is that, while altruism certainly drives it in part, it can also target the middle classes by promising to address their human rights concerns. The system could thus potentially divert litigation and advocacy away from sectors of the community that may have less money, but suffer more severe human rights violations.57 e) Foundation Grants – Businesses in many jurisdictions set up Foundations to carry out charitable and social change work. The ability of directors and executive members of DNGOs to get access to Foundations, and the cultivation of personal relationships with those who run them, is often an essential part of how DNGOs acquire resources. In the US, the Ford, Carnegie and Rockefeller Foundations are prominent examples of such Foundations, while in the UK the Joseph Rowntree Charitable Trust, the Barrow Cadbury Trust and the Nuffield Foundation are prominent examples. Germany differs from the US and UK, in that most of its Foundations do not appear to donate money capital to charitable and social change work. Instead, they appear to be concerned with research alone, and prefer to donate cultural capital and public recognition by publishing a DNGO's views.58

53 Ibid p220. 54 R.A.Stone “The Mass Plaintiff: Public Interest Law, Direct Mail Fundraising and the Donor/Client” (1992) 25 Columbia Journal of Law and Social Problems 197 at 219. 55 DNGOs will often spend more time on this relationship maintenance than on mailouts to new potential donors – Ibid p223. 56 Ibid p213. 57 This has been a concern expressed with regard to Public Interest Law Firms using direct mail fundraising in America - Ibid p209. 58 For example, the author noticed that the Humanistic Union distributed some of the publications of the Friedrich Ebert Stiftung (Friedrich Ebert Foundation) and that, in turn, the Foundation published on many topics related to HU's human rights work within Germany. See for example D. Posser Erinnerungen an 199

A problem with DNGOs seeking Foundation funding is that a potential dependence might develop on those Foundations, with the result that they might have influence on DNGO tactical decisions.59 f) Government – Virtually no DNGOs rely on government as their main source of resources. This is because of the near fatal effect that this can have on their independence. DNGOs do, however, accept government support for their positions in cases, and government money capital for specific projects. Similarly, indirect government money through legal aid, legal centres60 and through local government have proven important to DNGOs in the UK. Government support for human rights through creation of law and policy can be very important to DNGOs, and can lead to DNGOs and governments developing cooperative relationships. g) Academic Institution Support – Support by Universities, especially Law Schools, has been common in the history of DNGOs in the United States.61 Typically, this support has been through making the DNGO's director or staff lawyers Law School academic staff and giving them time to run the DNGO. Universities typically provide DNGOs with premises and supplies, and enables DNGOs to use students as volunteers by giving them academic credit for working for the DNGO in both skilled and unskilled tasks.62 h) Direct Business Sponsorship – Some American DNGOs are directly sponsored by businesses. The acknowledgment of this sponsorship can act as a form of advertising for the business involved. An example of this is the Lambda Legal Defence and Education Fund in the United States, which is directly sponsored by IBM and United Airlines.63

Gustav Heinemann (Friedrich Ebert Stiftung, Bonn, 1999)(obtained from HU national headquarters in Berlin). 59 Wasby Op cit p95. This is a similar problem to that of capture as a result of ease of access to government, as described above. 60 Epp Op cit pp141-142. 61 For example, between 1986 and 1987 a Harvard Fellowship in Public Law provided the Boston Lawyers’ Committee for Civil Rights Under Law with a full time staff attorney – H.R.Jones Jnr “The Boston Lawyers’ Committee for Civil Rights: A Profile” (1988) May-June 32(3) Boston Bar Journal 4 at 6. 62 An example of this was the payment by Columbia University Law School of the director of the Womens' Rights Project of the ACLU– see R.B.Cowan “Womens’ Rights Through Litigation: An Examination of the American Civil Liberties Union Women's Rights Project 1971-1976” (1976) 8 Columbia Human Rights Law Review 373 at 384. Note that the ACLU also made donations to Columbia in this arrangement. 63 See http://www.lambdalegal.org as accessed on Dec 17, 2003. 200

i) Court Costs – Whether from national or international litigation, if court costs can be obtained they can make up an important part of the budgets of organisations that litigate regularly. The problem with the use of court costs as a source of DNGO resources, however, is that it can incline them to pursue cases on the basis that court costs could be obtained for a victory, and not on the basis of the needs of victims or the tactical value of a case.64 The fact that lawyers take cases in areas outside of those in which court costs can be obtained, like death penalty cases in the US, suggests, however, that the lure of court costs does not always determine which cases DNGO lawyers will take. j) Lawyers’ Firms and Chambers Support – In both the United States and Britain support from lawyers (and the firms and chambers they belong to) are significant sources of resources for DNGOs. Individual lawyers, firms and chambers can supply professionals with technical expertise, money capital, information on human rights questions, access to government, organisation and the legitimacy of backing from the legal profession. In the United States, this support usually comes through networks of individual cooperating lawyers. Sometimes these lawyers have cases where clients pay them fees referred on to them by DNGOs, but generally they are simply volunteers that take up cases pro bono when the DNGO concerned assigns them a case. Such DNGOs usually give expert and logistical support to cooperating lawyers when they call upon them to run the cases they have assigned them.65 In Britain, this support generally comes through symbiotic relationships between DNGOs and barristers’ chambers. In this arrangement DNGOs receive support from these chambers for litigation, and in return supply them with information and expertise on human rights law.66 k) Labour Union Support – Although not very common, some DNGOs have received funding from the labour movement in their jurisdictions. This is both on the basis of altruism and that the labour movement perceives benefits to itself from the protection of human rights standards. Labour movements

64 Wasby Op cit p98. 65 Ibid pp252ff. 66 For example, the relationship between JUSTICE and Doughty Street Chambers which the author observed in literature present when he visited Doughty Street Chambers in Oct 2001. 201

typically supply money capital alone, but sometimes also supply volunteers, organisation and links to other organisations. The most prominent example of this known to the author is the National Council of Civil Liberties (Liberty) in Britain in the 1980s, which was heavily dependent on labour unions for funding.67 Interestingly, as with the case of Foundation support of DNGOs, allegations arose during this arrangement that union funding was influencing Liberty's tactical decisions. l) Social Movement Support – In the same way that labour unions support human rights DNGOs on the basis of both altruism and the perception that protection of human rights benefits them, so social movements usually support DNGOs for the same reasons. They typically supply DNGOs with the same sorts of resources as labour movements. m) International Support – Support from foreign governments, international organisations such as the United Nations and the Council of Europe, and Foundations or wealthy individuals located in other countries, are a significant source of resources for some DNGOs. INGOs such as the Lawyers’ Committee for Human Rights can also supply information and support in a myriad of ways. Obtaining resources from foreign sources is often assumed in the literature to mostly occur in the Third World,68 but as will be seen below in the discussion of the case studies, it also appears to occur relatively frequently in First World DNGOs. n) Support from Religious Institutions – Support from religious institutions such as churches, synagogues and mosques have been important for some DNGOs. An example of a DNGO resourced in this way was the Committee on Cooperation for Peace (which was funded by the World Council of Churches), which operated as a human rights DNGO69 in Chile under the Pinochet dictatorship. o) Provision of a Service for Money – Holding fee paying seminars and educational forums for public servants and lawyers and the provision of expert human rights advice to governments and lawyers for payment, are common

67 B.Dyson Liberty in Britain 1934-1994: A Diamond Jubilee History of the National Council for Civil Liberties (Civil Liberty Trust, London, 1994) p54. 68 Harvard Law School Human Rights Programme International Aspects of the Arab Human Rights Movement (Harvard Law School Human Rights Programme, Cambridge (Mass), 2000) p59. 202

methods, especially in Britain, of DNGOs acquiring resources. Such activities are an exception to the rule that DNGOs do not generally engage in for-profit activities. Using such a method of obtaining resources has the added benefit of simultaneously providing an opportunity for networking and for gaining access to government at the same time. p) Ad Hoc Funding of Cases and Issues – This method has been common in left wing human rights circles in the United States. Typically, a defence committee is formed around a particular court case and money capital is channelled to the case through the committee. The funds reaching the committee normally come from fund raising parties or events and paid speaking tours, where speeches are made about the case.70 An advantage of this method is that it can simultaneously supply money capital, professionals with legal expertise, public recognition and links to other organisations. Its weakness is that usually the money capital raised is sporadic, and thus not conducive to maintaining organisation or long term activity.71 q) Tax Concessions - One source of money capital for DNGOs that is often overlooked is the tax exemptions they may enjoy in their jurisdictions. In this regard, the situation is different for DNGOs in each of the three jurisdictions examined here. In the United States, section 501(c)(3) of the US Internal Revenue Code72 provides that not-for-profit organisations (such as human rights DNGOs) that engage in charitable, educational, religious activities or activities in the public interest are exempt from paying taxes. Section 170 of the Internal Revenue Code also makes donations to such organisations tax deductible to the donor. Organisations that have lobbying as their primary purpose fall under Section 501(c)(4) and are tax exempt, although donations to them are not tax deductible to the donor.

69 H.Fruhling “Nonprofit Organisations as Opposition to Authoritarian Rule: The Case of Human Rights Organisations in Chile” in E. James (ed) The Non-Profit Sector in International Perspective: Studies in Comparative Culture and Policy (Oxford University Press, New York, 1989) p359 at 362. 70 For eg D.J.Langum William.M.Kunstler: The Most Hated Lawyer in America (New York University Press, New York, 1999) p133. 71 Curiously, the author could find no case of media funding of DNGOs - a source seemingly as obvious as unions or ad hoc campaigns as a source of resources. 72 Title 26, Subtitle A, Chapter 1, Subchapter F, Part 1 United States Code 203

In England, human rights DNGOs must qualify as charities73 under the restrictive common law definition.74 Legislation creates the Charity Commission to regulate those that fall under the definition75 and are tax exempt.76 The Charity Commission is not strict, and allows human rights DNGOs charitable status even though they may not fall under the common law definition.77 To induce the Charity Commission to adopt such a tolerant position, Liberty and Amnesty International successfully litigated to prevent it excluding human rights NGOs as a group from charitable status.78 The British courts ruled that an organisation can campaign on human rights as long as that is not its sole object and is ancillary to another charitable object falling under the common law definition.79 The situation regarding tax exemption in Germany is more complicated than in America and Britain. The German Civil Code (Bürgerliches Gesetzbuch or BGB) classifies what in the common law world would be described as non- profit organisations or charitable organisations, not according to their profit motive, but according to their underlying purpose. A range of different legal forms for DNGOs thus exist. One of these legal forms dependent on underlying purpose that is important for German DNGOs is “Gemeinnützigkeit” or “in the public interest” status under §57-68 of the German Fiscal Code (Abgabenordnung or AO). To achieve this status a DNGO must pursue a community good such as “furthering political culture”.80 Organisations that have legal personality under the BGB and Gemeinnützigkeit under the AO are then

73 There is no statutory definition of “charity” under English Law. Rather, the definition has evolved in the case law using the list enumerated in the Charitable Uses Act 1601 as its guide. The most influential classification of charitable purposes was set out by Lord MacNaughton in Income Tax Special Purposes Commissioners v Pemsel [1891] A.C. 531. These headings are trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion and trusts beneficial to the community not falling under the above heads. Amnesty International has managed to fall under the educational heading, because some of its work is educational – see E.Cairns Charities: Law and Practice (2nd ed) (Sweet & Maxwell, London, 1993) p11. 74 The tax exemptions that can be received are set out in the Income and Corporations Taxes Act 1988 (UK). This Act applies across the UK, whereas the Charity Commission only has jurisdiction for England and Wales. The position in Northern Ireland will be discussed below. 75 Under the Charities Act (8&9 Eliz2, c58) 1960 (UK), especially s4. 76 S.Saxon – Harrold “The Voluntary Sector in Britain 1975-1989: A Statistical Overview” in Mc Carthy Op cit p149 at 152. 77 I am indebted to the staff of Liberty in London explaining this to me in a conversation on Oct 9, 2001. 78 Ibid 79 Interview with BIRW, Sept 2001 (notes in possession of the author). 80 Ibid. 204

eligible for tax exemption under §10(b) of the Income Tax Law (Einkommensteuergesetz or EStG).81 This legal framework is similar to the American legal framework in that it possesses legal concepts of non-profits “in the public interest”. It differs, however, in the range of forms non-profits can take in German law and in the different tests for "public interest" in the US and Gemeinnützigkeit in Germany. C. The Diversified Approach to Resource Acquisition The question that naturally arises from the above descriptions of the types and sources of resources that a DNGO might acquire is how a DNGO should in general go about accessing and accumulating resources. As in the previous chapters, in order to address this question, it is useful to construct a model that is partly an 'ideal type' as described by Weber,82 and partly a true 'ideal' of how DNGOs should approach the task.83 The ideal in this chapter is derived from, and is an extension of, the concepts that Ovsiovich has used to critique DNGO acquisition of resources from Foundations in America.84 As with the models in previous chapters, it is intended both as a device to further description and understanding of the case studies, and as a more targeted tool for evaluation of human rights DNGOs than the general tools that might exist in a discipline such as political science. The ideal in this chapter will be called the Diversified Approach to Resource Acquisition. The Diversified Approach contains two major recommendations for DNGOs on accumulating resources. Firstly, as its name implies, the Diversified Approach advocates that DNGOs should concentrate on having a diverse enough range of donors that they do not experience any decisive donor influence or control over their tactics. This should be balanced with DNGOs having access to donors that will donate the resources they require in the necessary amounts. Secondly, the Diversified Approach also advocates seeing tactics and resource acquisition as a unity. If the political opportunity structure is such that some tactics are clearly potentially more successful than others then the DNGO should search for resources to execute that tactic. If, however, some types of

81 See H.Anheir & W.Seibel “Germany” in Salomon & Anheir Op cit p128 at 142. 82 See A.Giddens Sociology (3rd ed) (Polity Press, Cambridge, 1997) p287. 83 For further detail on the use of 'ideal types' see chapter two above. 205

resources are easily available and the set of potential successful tactics is large, then the DNGO should choose tactics within that set which allows it to use the easily available resources. D. The Case Studies – Preliminary Remarks In discussing the types of resources acquired by the case studies, it is useful to compare the size of their money capital incomes of their national offices so as to get an initial idea of the size of each DNGOs available resources. In order to give as complete a picture of case study finances as possible, figures for assets are also supplied when they were available to the author. Table Four: The Money Capital of the National Offices of the Case Studies (all in US$85). Case Study Income Assets LDF86 US$12 million US$44 million. LCCRUL*87 US$3 million US$5 million CCR88 US$1.5 million US$470, 000 JUSTICE89 US$ 660,00090 US$1,690,000 BIRW91 US$160,000 US$80,000 CAJ92 US$ 340,00093 US$44,000 HU*94 US$ 110,000 ------95

84 See generally J.S.Ovsiovich "Feeding the Watchdogs: Philanthropic Support for Human Rights NGOs" (1998) 4 Buffalo Human Rights Law Review 341. 85 The author has not updated the exchange rate from that which existed when he collated the data for two reasons. Firstly, the Deutschmark has ceased to be the German currency in the intervening period (being replaced by the Euro) and the German case studies quoted their assets in Deutschmarks. It thus not possible currently to get a true exchange rate. Secondly, the date the author used is closer to the dates for which the case studies quoted their money capital assets and thus should provide a truer comparison. 86 NAACP Legal Defence and Education Fund, Inc 2000 Annual Report p24. 87 Lawyers’ Committee for Civil Rights Under Law Annual Report 1995-1996 p64. These figures, although 6 years old, were the latest figures publicly available for LCCRUL at the time of interview. LCCRUL confirmed, however, that the level is still about the same – see Interview with LCCRUL, Washington DC, Nov 2001 (notes in possession of the author). 88 Centre for Constitutional Rights Fall 2000 Docket p106. 89 JUSTICE Financial Statement 31 March 2001 p7. 90 Interview with JUSTICE, London, Oct 2001 (notes in possession of the author). 91 British Irish Rights Watch Management Committee Report and Financial Statements For the Year Ended 31 March 2000 p4. 92 Committee on the Administration of Justice Annual Report 2000-2001 p35. The figure here is CAJ Ltd – which is the entity that pays the staff and most bills. 93 It is useful to compare these figures for the British case studies with Liberty (which is not the subject of a case study here), whose annual income is approximately US$1,240,000 – making it roughly the same 206

KGD96 US$ 315,000 ------GBM*97 US$ 176,000 ------While this comparison of the money capital income of the nine case studies can be used as a rough guide to the relative amounts of resources that each DNGO can command, as is often the case in Comparative Law it can be deceptive. This is firstly because the money capital income of national offices is an inaccurate measure of money capital income for the decentralised case studies (which are marked with an asterix on the table above), where some additional income will be in the branches. Secondly, this is because not every DNGO relies principally on money capital (as opposed to other resources) to execute its tactics. E. Case Studies – Comparison and Analysis I. LDF98 Types of Resources The main resources that LDF accumulates are money capital; lawyers with technical expertise (volunteer lawyers); legitimacy and organisation. These in turn have the capability of producing law and support from government as further resources. Of the above mentioned resources it favours accumulation of lawyers with technical expertise in civil rights law and money capital. LDF has nearly two dozen staff lawyers and hundreds of cooperating lawyers all over the country.99 It also runs scholarship programmes, through which it hopes to create a pool of African-American lawyers it can later draw upon.100 With regard to accumulation of money capital, LDF has one of the most recognised DNGO 'brand names' in the world. This public recognition makes it easier for it to accumulate the money capital and lawyers necessary to litigate

size as CCR in the US (note - it also claims to be the largest human rights DNGO in Europe) - See Liberty/Civil Liberties Trust Annual Reviews 2000 p8. 94 Bericht der Geschäftsführung zur 17. Ordentlichen Delegiertenkonferenz der Humanistischen Union e.V 15. bis 16. September 2001 in Berlin p19. 95 None of the German case studies supplied figures for their assets to the author. The interviews with the German case studies, however, gave the author the impression that they had very few assets. 96 Interview with KGD, Cologne, Sept 2001 (notes in possession of the author). 97 Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). E-mail correspondence with Dr W. Richter, GBM, Jan 2003. 98 The NAACP Legal Defence and Education Fund Inc of New York – See Chapter One above. 99 See website at http://www.naacpldf.org as accessed on December 12th, 2001. 100 LDF 2000 Annual Report p20. 207

than it is for many other DNGOs.101 In addition, it benefits from the American ideology of voluntarism directed to the problem of discrimination against African-Americans. As shown above, the combination of these factors has allowed it to accumulate a very large pool of money capital. LDF also concentrates on creating and maintaining organisation. It has about 50 staff, giving it powerful organising and long term planning capabilities.102 Sources of Resources LDF's primary source of money capital consists of individual donations from direct mail fundraising.103 It appears that this approach is successful because LDF has a very valuable house list. This list allows it to use its famous 'brand name' to draw tens of millions of dollars from the liberal white middle and upper classes and the African-American middle class. Foundations, especially the Ford Foundation, but also the Carnegie Corporation, the Scheide Fund, the Open Society Institute and the Rockefeller Foundation are LDF's next most important sources of funding.104 After this, the next most important source of resources are costs awarded in litigation. This reflects LDF's focus on litigation as a tactic, and the high costs that can be awarded when litigation is successful. LDF’s fourth most important source of money capital is sponsorship by businesses, and the last is donation of time by volunteers. Primary among these volunteers are the hundreds of cooperating lawyers who give their time and run cases for LDF when it requests them to. LDF also has a portfolio of investments from which it received US$544,622 in dividends in 2000.105 This is not one of its most significant sources of money capital, but it is significant for the extra tactical freedom that it can give.106

101 Interview with LDF, New York, Nov 2001 (notes in possession of the author). 102 LDF 2000 Annual Report Op cit p23. 103 Questionnaire Completed by LDF, Nov 2001, p2 (original in possession of the author). 104 LDF 2000 Annual Report Op cit p25. 105 Ibid p24. One must remember that LDF may reinvest some of this money. 106 Epp appears to suggest that LDF is primarily funded by Foundations, but this has not been the case for at least 20 years - Epp Op cit p58. As Stone remarks, American Foundations have been cutting back on operating grants since the late 1970s, and are now mainly funding seed grants - Stone Op cit p213. 208

LDF's primary source of technical legal skills is its formal network of cooperating lawyers, with staff lawyers mainly involved in initiating cases and advising on points of domestic human rights law. Comparisons With Other Case Studies As will be seen below, the types and sources of LDF's resources are very similar to those of the other American and British case studies. This appears to be because LDF was a 'pioneer' in the 1930s and 1940s in accumulating funds for domestic human rights work and its example has been widely emulated. It mainly differs from the other British and American case studies in the very large amounts of money capital it is able to accumulate because of its good reputation and in its focus on links with individual cooperating lawyers that donate their time and legal skills. Influence of Sources of Resources on Structure and Tactics A number of points can be made about the effect of US taxation laws on LDF's acquisition of resources. Firstly, Public Interest Law Firms like LDF originally fell outside the protection of taxation laws. LDF and the National Association of Coloured People (NAACP)(LDF's parent organisation) were partly responsible for making section 501 of the Internal Revenue Code assume its current form. LDF thus in effect helped create the tax law it needed. Secondly, tax exemption laws like section 501 are an important resource for LDF, because they can be used to increase the pool of money capital that it can amass. Thirdly, just as Wasby107 and others argue that Foundations can influence a DNGO's tactics, so reliance on tax exemption can alter a DNGO’s tactics. The lesser tax exemption for lobbying, as opposed to litigation, is a factor that inclines American DNGOs like LDF to choose litigation as a tactic over lobbying or some combination of the two. Tax laws, thus seem to constrain LDF's tactics. The shape of the taxation laws has had a major effect on LDF's structure as well as its tactics. US taxation law's discouragement of DNGOs both lobbying and litigating was the major factor that originally led LDF to split off from the NAACP and become independent. The split occurred so that LDF

107 Wasby Op cit p59 209

could litigate and the NAACP could lobby without either suffering loss of tax exemption.108 Historically, it would seem, LDF became involved in litigation before its major sources of resources (i.e. mass mailings and Foundations) were created.109 Originally, resources were thus found to match tactics. Currently, however, the existence of funding from mass mailings and Foundations seems an important factor in encouraging it to continue to concentrate on litigation.110 Thus, LDF’s current tactics appear to be selected to match its resources. This in turn seems to have influenced LDF's structure to be designed to use these resources. LDF openly acknowledges the influence of sources of money and other resources on its tactics and structure.111 However, it seeks to manage relationships with its donors so as to minimise the constraints they put on its tactics. It does this primarily by trying to persuade donors not to make decisions that will limit its tactical options. LDF and the Diversified Approach LDF's creative tactical ideas are a testament to the fact that its effort to manage donor restraints on tactics has had some success.112 The Diversified Approach, however, illustrates the drawbacks that nevertheless exist within LDF's approach to resource acquisition. Although LDF has enough relationships with major donors to give it the resources it needs for litigation, they also appear to have a great deal of influence on its tactical stance.113 An example of how a relationship between LDF and a donor functions can be seen in the uncanny resemblance between the policy positions of LDF

108 M.V.Tushnet The NAACP’s Legal Strategy Against Segregated Education 1925-1950 (University of North Carolina Press, Chapel Hill and London, 1987) p101. 109 This would seem to be the upshot of Epp’s argument as applied to both the ACLU and LDF - see generally Epp Op cit. 110 LDF Questionnaire Op cit p2. 111 Interview LDF Op cit. 112 Ted Shaw, Associate-Director (now Director – Counsel) of LDF, discussed a very detailed evaluation of the tactical options of LDF with the author and flagged a number of ways in which LDF could change its approach – Ibid. 113 The detrimental effects of too easy access to funds on independence seems to be a qualification of Burstein’s thesis that the more resources the better the mobilisation of law - see P.Burstein "Legal Mobilisation as a Social Movement Tactic: The Struggle for Equal Opportunity" (1991) 96(5) American Journal of Sociology 1201 at 1209. 210

and those of the Ford Foundation (a major Foundation source of resources).114 LDF and the Ford Foundation appear to share a common culture or way of viewing tactical questions. Such a common culture seems to be a more important feature of such relationships than the more overt pressures that each may bring to bear such as threats to withdraw funds or to leave. Such a common culture also seems to exist in the relationship between LDF and individual donors contacted through mass mailing. What the Diversified Approach suggests with regard to LDF is that its influence over resource donors does not compensate for a loss of vitality and dynamism resulting from those relationships. It suggests that LDF either needs to have a greater number of donors to give it more tactical freedom or, if it is going to have a small number of donors, that it needs ones with which it could build a common culture that is more adventurous and sensitive to environmental changes. One solution may be to return to something akin to the position enjoyed by Thurgood Marshall (LDF’s first Director-Counsel). At that time, a more substantial portion of LDF’s budget came from those in the African-American community who stood to directly benefit from its victories.115 A return to this position could create a different type of common culture between LDF and its donors that might encourage it to innovate and be more successful. Overall, LDF draws a small number of types of resources from a small number of sources, and these choices have in turn influenced its structure and tactics. Currently, despite some ability to manage relationships with its sources of resources, it appears that LDF's need to obtain resources is dominant over its tactics. The Diversified Approach suggests that a greater number of sources of resources, and the type of sources of resources that more strongly encourage action on human rights issues, are what is needed to improve its effectiveness. It also suggests that LDF needs to find a way to overcome the dominance that its desire to maintain existing resource acquisition patterns appears to currently have over its tactics.

114 H.Herschkoff & D.Hollander “Rights into Action: Public Interest Litigation in the United States” in M.McClymont & S.Golub Many Roads to Justice: The Law Related Work of Ford Foundation Grantees Around the World (Ford Foundation, New York, 2000) p89 at 89. 115 Tushnet Op cit p53. 211

II. LCCRUL 116 Types of Resources Although LCCRUL accumulates a small number of types of resources, the range of the types of resources it accumulates are unique. It generally favours accumulating links to law firms, volunteers (lawyers volunteered by law firms) and legitimacy with government.117 It is through its links with law firms it obtains most of its money capital and technical expertise (from volunteer lawyers). These lawyers then create law and government support as further resources. LCCRUL generally favours links to the legal profession over organisation. It only has fifteen to seventeen staff lawyers, and only thirty eight staff in total.118 In contrast, as it was established by the Bar it has relatively easy access to both law firms and legal resources. It has close links to one hundred and eighty of the biggest law firms in the United States, as well as local Lawyers’ Committees in eight American cities.119 Because national LCCRUL can get these firms and local committees to donate money capital and technical expertise for its litigation it has an immense de facto reservoir of lawyers and money capital that it can draw upon. The figures given above for LCCRUL's money capital are thus somewhat deceptive. Because of the above links, and because it has many more resources than staff or annual income figures might indicate, LCCRUL has been able to mount large cases that continue for long periods of time. In addition, as mentioned above, it has a cultural focus on lobbying and policy work and as a result has also accumulated access to and legitimacy with the US government. Sources of Resources Overwhelmingly LCCRUL's largest sources of both money capital and lawyers are the one hundred and eighty law firms that support it.120 These firms, such as Cleary, Gottlieb, Steen & Hamilton and Goodkind, Labaton, Rudoff &

116 The Lawyers’ Committee for Civil Rights Under Law of Washington DC – see Chapter One. 117 In the past some of the local Lawyers’ Committees, however, have also received significant money capital donations from firms. 1973-1983 the Boston Lawyers’ Committee for Civil Rights received US$1.5 million from local firms – see H.R.Jones Jnr “The Boston Lawyers’ Committee for Civil Rights: A Profile” (1988) May-June Vol 32(3) Boston Bar Journal 4 at 4. 118 Interview with LCCRUL, Washington DC, Nov 2001 (original in possession of the author) 119 LCCRUL Annual Report 1995-1996 p75. An idea of the value of this link can be gained by the fact that in 1983 the Boston Lawyers’ Committee for Civil Rights received US$1 million per year in donated professional time from law firms – Jones Jnr Op cit. 212

Sucharow in New York, and Arent, Fox, Kintner, Plotkin & Kahn in Washington DC,121 are mainly white, Democratic voting, corporate law firms of the establishment Bar.122 LCCRUL distributes domestic human rights cases to these firms and then conducts the cases with them as a team. It also obtains resources from (in descending order of importance) direct mail fundraising, Foundation grants, sponsorship from business and costs awarded in litigation. However, these sources are of relatively minor importance in comparison to support from law firms.123 Comparisons With Other Case Studies Compared to LDF, LCCRUL accumulates a different range of types of resources. Whereas LDF focuses on accumulating money capital, organisation and legal expertise, LCCRUL focuses on close links to law firms, that in turn not only supply it with legal expertise, but also with money capital and expertise in areas such as lobbying and policy formation. Because of this focus, unlike LDF LCCRUL does not focus on creating a large organisation at the national office and is able to accumulate access and legitimacy with the federal government through its policy work. LCCRUL also gets its resources from different sources than LDF. While LDF focuses on accumulating money capital from mail donors and Foundations and legal expertise from individual cooperating lawyers whereas LCCRUL focuses more on links with law firms to supply these resources. Consequently, it focuses less on accumulating money capital from mail donors and Foundations. Despite these differences, LDF and LCCRUL seem similar in having in- depth relationships with a small number of donors that supply money capital and legal expertise. This similarity suggests that there might be a distinct 'style' of resource acquisition among the 'major players' in the US. Influence of Sources of Resources on Structure and Tactics LCCRUL receives much of its support not through operating grants or postal donations, but through lawyers and expertise supplied by partner law firms. This means that generally Foundations and mail donors have influenced

120 Interview LCCRUL Op cit 121 Annual Report LCCRUL Op cit p69. 122 All three of these firms specialise in corporate matters and have a wide practice with international links – see http://www.cgsh.com ; http://www.glrs.com and http://www.arentfox.com/home.html, (all as accessed on December 15, 2003) where the practice area of each is set out. 123 LCCRUL Questionnaire Op cit. 213

its tactics less. It still concerns itself with tax exemptions under Section 501(c)(3), but this does not seem to be as important an issue for it as taxation matters appear to be dealt with by the law firms. Taxation law thus seems to have had less influence on LCCRUL's tactics and structure than for LDF.124 Despite its relative freedom from Foundation influence LCCRUL still experiences constraints on its tactics from its resource donors. These constraints, however, are different to those experienced by LDF. LCCRUL denied to the author that the law firms which supply it with lawyers, expert knowledge and money for cases have influenced its tactical stance in any way.125 It seems more likely, however, that in a similar way to that suggested by Wasby126 with regard to the solvency of DNGOs, LCCRUL publicly denies influence from its partner firms in order to maintain its image with present and future donor firms. It thus seems more likely that its in-depth relationship with donor firms is similar to that which LDF has with its Foundations and mail donors and that the partner firms do in fact influence its tactics to some degree. As with LDF and Foundations, the common approach of LCCRUL and its donor firms to domestic human rights issues suggests a common culture as a result of longstanding interaction. It thus suggests an ability on the part of the firms to influence LCCRUL's tactics, as well as an ability on the part of LCCRUL to influence what types of cases and issues donor firms will donate time and resources to. The kernel of truth in what appears to be LCCRUL's public position seems to be that this common culture restrains it less than in the case of LDF. This lesser restraint may have been a factor leading to the creativity and dynamism that has been a feature of its international work on racial and sexual discrimination.127 LCCRUL’s structure also appears to have been influenced by it obtaining most of its resources from law firms. As mentioned above, the relatively small number of staff lawyers and the relatively small national office

124 This is probably because LCCRUL is not the entity legally taxed for much of the resources used – rather the supporting firms are the ones that have to deal with tax consequences. It may also be that a motivation for some of the firms to support LCCRUL is that such support may have some positive tax consequences for them. 125 Interview LCCRUL Op cit. 126 See Wasby Op cit p79 where Wasby argues that DNGOs with unstable finances will try to appear in a better position than they are. 127 See for eg World Conference on Racism Update at http://www.lawyerscommittee.org. as accessed on October 31st, 2000. 214

can be explained by the fact that accumulation of resources at the national office is not as necessary, as resources can be drawn from the donor firms. A larger national office, as at LDF, would have been necessary for resource accumulation if the donor firms and local committees were not present. Similarly, the local lawyers' committees in eight cities appear to exist (and thus to have given LCCRUL its decentralised structure) because of the involvement of the establishment Bar in those cities in supplying resources for LCCRUL's work. The question of whether tactics or resources came first is a more difficult question for LCCRUL than with LDF. This is because the two were born simultaneously as a result of President Kennedy's call for the Bar to be involved in civil rights work. The tactics for the nascent LCCRUL were borrowed from the civil rights work then occurring, and resources came to it from birth from the Bar. Therefore, unlike other American DNGOs the influence of resource and tactics on its work was determined at its birth and has persisted largely in this form to the present day. LCCRUL and the Diversified Approach The Diversified Approach suggests that LCCRUL has developed sufficient in-depth relationships with donors to ensure resources, but that this has led to a loss of creativity and dynamism through the influence of its resource donors. With regard to the unity of resources and tactics LCCRUL appears to have in its partner law firms a source of resources for most of the potentially successful tactics in the American environment. In response to new challenges in its opportunity structure, LCCRUL suggested that it might enter into partnership arrangements with international firms similar to those it already has with national law firms in order to do more international work. One possible solution to the current problem of the establishment Bar restraining tactics could be to extend the above idea and include more African-American and minority law firms as LCCRUL partner firms. This new input from non-establishment Bar firms connected to communities suffering human rights violations could create a greater incentive for it to be more creative and daring in reacting to domestic human rights challenges. Overall, therefore, LCCRUL accumulates (primarily from its partner law firms) a unique mixture of types of resources. This affects its tactics and structures in numerous ways, despite its statements to the contrary. The 215

Diversified Approach suggests that the donor restraints on LCCRUL's tactics need to be lessened to increase its effectiveness. III. CCR128 Types of Resources CCR primarily seeks money capital and lawyers with technical expertise, but has had some difficulty in accumulating them. This would appear to be because the major money capital donors in the US have been Foundations and postal donors (whose money can then be used to hire staff), and in recent times CCR’s left-wing politics have given it a legitimacy problem with these sources of resources. This is reflected in the fact that CCR only has five staff lawyers129 and about one hundred and sixty cooperating lawyers.130 CCR often collaborates with small civil rights firms to run cases, giving it a slightly greater pool of lawyers than staff numbers alone might indicate.131 It seems that CCR accumulates resources for litigation because they are needed for what it considers a successful tactical approach, not because they are easy for it to obtain.132 Paradoxically, despite its efforts to accumulate resources for litigation, tactically CCR emphasises organising and outreach work rather than litigation.133 CCR, however, accumulates few resources for such work, except for a limited number of volunteers. It seems that the primary reason for this is that US taxation law discourages DNGOs from engaging in tactics other than litigation. As a result, CCR appears to accumulate the wrong types of resources for the tactics it favours. Sources of Resources

128 The Center for Constitutional Rights of New York - see Chapter One above. 129 Center for Constitutional Rights Annual Report 2001 p39. 130 Interview with CCR, New York, Nov 2001 (notes in possession of the author). 131 For example, in 1989 Peter Weiss, a senior volunteer counsel at CCR, donated the time of the firm Weiss, Dawid, Fross, Zelnick & Lehrman when he worked for CCR – E.A.Adams “Constitutional Rights Center: 13 Years of Unpopular Causes” (1989) June 23 201(120) New York Law Journal p1 at 1. 132 Questionnaire Completed by CCR 2001 (original in possession of the author) p2. The lesser size of CCR's resource pool tends to confirm this. 133 CCR stated in its questionnaire and interview that it received most of its money capital from individual donations by mail, but its annual reports stated that it received most of its money capital from Foundations (eg 2001 Annual Report CCR Op cit p38). Devon Kearney, who accumulates resources for CCR, clarified the position in an e-mail to the author in Feb 2004 by stating that CCR receives almost equal amounts of money capital from mail donations by individuals and from Foundations. Which one is the most important thus varies from year to year. 216

CCR’s most important source of money capital consists equally of individual donations by mail and Foundations grants.134 It engages in (and emphasises) direct mail fundraising, but doesn’t buy lists or have a house list. Traditionally, individuals who were members of the old American Left have acted as an important source of money capital for CCR.135 Indeed, this group of five thousand one hundred members of the old pre-1960s left make up most of its individual donors.136 In the past this source has given it both independence from Foundation funding, and incentive to address human rights issues important to the American Left.137 As the members of this group are ageing or dying and not being replaced by younger members, however, this independence from other sources of funds is slowly eroding. Of equal importance are Foundation grants from Foundations such as the Ford Foundation and the Boehm Foundation.138 The next most important source of resources for CCR is from volunteers. The majority of these are the one hundred and sixty cooperating lawyers and the small civil rights law firms that CCR cooperates with in litigation.139 Lastly, CCR's third most important source of resources are from costs awarded in its litigation. Comparisons With Other Case Studies In resource accumulation CCR shows greater similarities to LDF than LCCRUL. In terms of types of resource, like LDF it focuses on accumulating money capital from mail donors and Foundations, and does not foster links to law firms like LCCRUL. Unlike LDF, however, CCR focuses less on gaining legal expertise from cooperating lawyers and relies more on its staff lawyers. In terms of sources of resources, CCR's sources are similar to those of LDF. The main differences are that CCR does not buy lists or have a house list for soliciting mail donations, but rather relies on a group of core supporters from the American Old Left. This group of supporters is declining, and so unlike LDF

134 CCR Questionnaire Op cit. 135 By the term “Old American Left” the author refers to the Left wing movements in the US associated with the labour movement, the US Communist Party and the New Deal in the 1930s, 1940s and 1950s. This contrasts with the New Left of the 1960s that was associated with students, intellectuals, new constituencies such as women and gays and cultural change movements such as the Beatniks and Hippies. 136 CCR Questionnaire Op cit. 137 CCR Interview Op cit. 138 CCR 2001 Annual Report Op cit p40. 139 Interview CCR Op cit. 217

CCR appears to have the added problem of one of its sources of funds being unable to supply sufficient resources. Looking at CCR in conjunction with LDF and LCCRUL, it seems that CCR exhibits a similar 'style' of resource accumulation. Like these case studies, it mostly tries to accumulate money capital and lawyers from foundations, mail donors and lawyers/law firms. This appears to suggest that this 'style' extends to US DNGOs well beyond the 'major players'. Influence of Sources of Resources on Structures and Tactics CCR admits that Foundation grants can restrict its tactical options, but argues that the terms of grants are fungible to a much greater degree than is generally understood. It also argues that accounting to Foundations for grants can improve the tactical focus of a DNGO like CCR.140 It would seem that, as with the case studies above, the relationship between CCR and the Foundations both allows it to influence Foundations in important ways and allows Foundations to partly direct its priorities. The individual donations received by CCR seem crucial in giving it tactical room to manoeuvre with regard to the Foundations. With CCR, however, individual donations also seem to have had the added beneficial effect of encouraging it to live up to the Left-wing civil rights ideals of its donors. CCR's tactics and structure do not appear to have been influenced much by the Internal Revenue Code. While the tax laws seem to have influenced CCR to focus on litigation, they have not deterred it as much from using other tactics. The reasons for this appear to be both a greater commitment in CCR's organisational culture to work other than litigation, and its apparent greater success in convincing authorities not to be strict in their enforcement of the relevant law. One of these other tactics that CCR uses is a species of lobbying. Although it maintains it does not lobby, CCR has found the definition of lobbying in the Code somewhat flexible. Its Director has contacts in Congress, which he uses in ways similar to lobbying on various issues such as the recent anti- terrorism legislation.141 It only does limited amounts of this work it seems, not because of the Code, but more because it does not have much legitimacy in Congress.

140 Ibid. 218

CCR’s location in New York seems to be the main way in which sources of resources have influenced its structural design. Because New York is both the centre of the American progressive community and the usual address of the Foundations that fund human rights work, CCR has needed to be in New York to develop long term relationships with these donors and supporters. CCR and the Diversified Approach With CCR, the problems of narrowness of sources of resources and lack of resources are combined. In terms of the Diversified Approach, it has the problems both of possible constriction of tactics as a result of a narrow range of sources, and the problem of a lack of sufficient in-depth relationships with sources of resources to allow it to replace declining resources from its ageing Old Left donors. As mentioned above, the Diversified Approach would also seem to suggest that CCR does not acquire the right types of resources to match its tactics. It appears to acquire resources mainly for litigation, and not for the organising work that its tactical stance calls for. CCR appears to urgently need to find a replacement source of income as its Old Left donors die out. From among the potential sources of resources outlined above it would seem that the most logical source for CCR to turn to would be American social movements. This source of resources could potentially solve both its problems of lack resources and lack of diversity of sources of resources. The environmental, peace and anti-Globalisation movements could all be areas in which CCR could cultivate contacts and draw resources. Similar improvements to CCR's resource position might also be obtained by it expanding the resources it obtains from the American labour movement, either through the AFL-CIO (the major trade union body), or individual unions with a commitment to Left wing politics.. As a self-identifying Left DNGO, CCR suffers a declining base of individual donors as a result of the world-wide decline of the Left.142 Nevertheless, labour union and social movement resources could conceivably replace or expand the money it currently gets from individual donors. Such resources would give it greater tactical independence and could also add to the

141 CCR admits, however, that it is not that well connected politically – Ibid. 142 It is common in political literature to speak of the chaos and demoralization of Left political traditions and movements worldwide – see for eg Carl Boggs The Socialist Tradition: From Crisis to Decline (Routledge, New York, 1995) p217. 219

drive in its organisational culture to address human rights issues important to the American Left. To accumulate more relevant types of resources CCR may need to consider creating a separate arm to engage in community organising that could look full time for resources for this work without interfering with its litigation. Overall, therefore, CCR accumulates the same types of resources as LDF, even though its tactical stance is different. It also has similar sources of resources, except for a declining group of Old Left donors. The Diversified Approach suggests that it urgently needs to find ways to replace these Old Left donors so as to maintain or improve its current degree of tactical capabilities and independence. IV. JUSTICE143 Types of Resources The main types of resources that JUSTICE acquires are money capital grants from Foundations and professionals with legal expertise (either staff or volunteer lawyers). While JUSTICE might appear to have a small pool of resources because of its small money capital income, and because it has only five legal officers and three legal researchers,144 this is deceptive. In practice, it has many links to the legal profession, especially barristers’ chambers that give it access to a sizeable reservoir of many types of resources.145 When JUSTICE wishes to do a third party intervention or a legal submission, because of its links with the legal profession it can call on barristers’ chambers for resources and information. Furthermore, most of its members are lawyers, and so the legal community also supplies a large proportion of its money capital by way of membership fees.146 Sources of Resources JUSTICE receives its money capital primarily from Foundations.147 Its next largest source money capital are membership dues. JUSTICE's

143 JUSTICE of London - see Chapter One. 144 This includes the Assistant Director (Legal), Legal Policy Consultant and Legal Research Director and Editor – JUSTICE Annual Report 2001 inside cover. 145 This cache of resources, however, is almost certainly not as large a pool as that of LCCRUL. 146 Interview with JUSTICE, London, Sept 2001 (notes in possession of the author) 147 Questionnaire Completed by JUSTICE 2001 (original in possession of the author). 220

membership consists almost entirely of lawyers, reflecting the large amount of support it receives from the legal profession. JUSTICE’s third most important source of money capital is donations by individuals and solicitation by mail. Donations from the legal profession of time and legal skills are also a significant source of technical legal ability for JUSTICE. JUSTICE’s fourth source of money capital is sponsorship by businesses, and the fifth and last source is donation of time by volunteers. As mentioned above, within this category must also fall the volunteer aid that it receives from barristers’ chambers. Lastly, JUSTICE also receives significant amounts of money capital from the educational seminars on human rights it provides to lawyers and civil servants and from publications on human rights.148 JUSTICE generally raises its money capital in time limited endowments, rather than through a continuous search for resources. It then uses the resources accumulated in these campaigns in succeeding years. Its last campaign raised one and a quarter million pounds, and this endowment keeps its budget bigger than it would otherwise be.149 JUSTICE also occasionally receives government money for specific projects. Comparisons With Other Case Studies Despite employing very different tactics, JUSTICE shows surprising similarity to the American case studies in its resource acquisition. Like LDF and CCR it focuses on accumulating money capital. It also fosters links to barristers' chambers that are similar to LCCRUL's links to law firms. The difference between these relationships and those of LCCRUL is that JUSTICE's relationships to barristers' chambers appears to be more genuinely reciprocal, in that they supply the chambers with expertise in human rights law that the chambers then use in their general practice. In terms of sources of resources, unlike LDF and LCCRUL, JUSTICE gets most of its money capital from Foundations rather than mail donors. It also differs in getting some resources from its membership. In relying so much on Foundations, JUSTICE resembles American DNGOs in the1960s and 1970s, before American Foundations cut back on operating grants and forced them to

148 This sort of work by JUSTICE is thus a significant exception to the general proposition that DNGOs do not produce services. 149 JUSTICE Interview Op cit. 221

rely more on other sources of resources. Another reason for this difference is the different economics of direct mail fundraising in the US and the UK. In the US DNGOs receive a mail subsidy for using mail to appeal for resources, whereas in the UK it appears that such a subsidy does not exist. It is thus not difficult to see why JUSTICE favours Foundations over mail donors as sources of resources. Influence of Sources of Resources on Structures and Tactics The structure of British taxation laws as they relate to human rights DNGOs have influenced JUSTICE's tactics similarly to the way that US taxation laws have influenced LDF's tactics. In JUSTICE’s case, it avoids doing work raising public awareness of human rights in the belief that this would threaten its charitable status, and thus its tax exemption under English law.150 British taxation laws thus influence its tactics away from mobilising the general public, and toward mobilising the legal profession and other elites. One might expect that reliance on Foundations such as the Joseph Rowntree Charitable Trust, the Baring Foundation and the Barrow Cadbury Trust151 would limit JUSTICE’s tactical freedom. However, to address this JUSTICE's recently resigned Director, Anne Owers, seems to have built up a long term relationship with the Foundations that has allowed JUSTICE to influence them into giving it considerable tactical freedom.152 In general, JUSTICE appears to have had more success in gaining tactical freedom in this type of relationship than the American case studies have had. This may be because the major British Foundations are less skilled in using their influence because of their relative newness to this type of work in Britain. It may also be because JUSTICE has contact with the Foundations only when it does fundraising drives. JUSTICE's similarity to the American case studies can be seen in its relationships to barristers’ chambers. As with the American case studies, JUSTICE's culture seems to reflect the worldview of the legal profession as well as the Foundations. It thus seems to show a variation on the phenomenon of a common culture between DNGOs and resource donors.

150 Ibid. 151 JUSTICE 2001 Annual Report Op cit p35. 152 From the phenomenon of funds drives at JUSTICE, it would seem that JUSTICE set its tactics first, and then set out in campaigns to raise funds to realise those tactics. 222

JUSTICE and the Diversified Approach While JUSTICE appears to embody the prescriptions of the Diversified Approach, a number of shortfalls in its approach to accumulating resources are revealed by the model. Firstly, while it has in-depth relationships with Foundations and the legal profession, these have not been sufficiently large pools of resources to enable it to execute all the tactics it might find necessary. Secondly, JUSTICE’s donors of resources are not those that would motivate it to aggressively address the concerns of those suffering human rights violations. Like the Foundations in America, they are not motivated by factors such as connections to the communities suffering human rights violations. The Diversified Approach suggests that in the future JUSTICE may need to create relationships with larger pools of resources, and seek resources from sectors of society more motivated to address human rights problems. One way the latter could be achieved would be by creating more connections to the Black and Asian communities in Britain, and especially associations of lawyers from those backgrounds. Otherwise, JUSTICE appears generally to follow the Diversified Approach in that it employs the potentially most successful tactics even though they require it to search for the requisite resources. V. BIRW153 Types of Resources BIRW acquires a small number of types of resources. Its main focus is on acquiring technical knowledge on human rights law from non-lawyers, links to other organisations and money capital. While BIRW has some connections to the legal community, links to law firms, barristers' chambers or even cooperating lawyers are not a major resource for it. This does not mean, however, that it does not have any legal connections. BIRW is part of the long tradition of citizen legal advice in Britain that is outside the legal profession. In this tradition, BIRW’s director, Jane Winter, is an immense reservoir of knowledge on human rights law, even though she is not a lawyer. This is so much the case that she advises enquiring lawyers on both human rights law and legal tactics.154 In a sense then, BIRW emphasises the acquisition of technical expertise about law without acquiring lawyers. A major advantage of this approach is that it lowers costs.

153 British Irish Rights Watch of London - see Chapter One. 223

BIRW also makes third party interventions. These third party interventions are exclusively at the European Court of Human Rights, and are made jointly with CAJ, Liberty or JUSTICE155 so as to lower the need for money capital and lawyers. Links to other DNGOs are thus an important resource for BIRW, as is the European law created. Organisation, on the other hand, does not appear to be so important for it as it only has three full time personnel and one volunteer.156 Sources of Resources BIRW obtains its money capital from a small number of sources. Its greatest source of money capital is international (American)157 Foundation money.158 BIRW also receives lesser amounts of money from British Foundations, such as the Joseph Rowntree Charitable Trust, the John Merck Fund, the Hilda Mullen Foundation and the Polden-Puckham Charitable Foundation.159 The fact that BIRW obtains the majority of its money capital from American foundations may be one explanation for it reflecting the American case studies' resource acquisition pattern of acquiring a small number of types of resources from a small number of sources. BIRW’s second greatest source of money capital is from solicitation by mail.160 BIRW has a house list that it has built up through contacts, and which it uses to mail out requests for donations every Human Rights Day (December 10th).161 Among the organisations who make donations in this way are barristers’ chambers and the Northern Ireland Trade Union UNISON.162 Like JUSTICE, BIRW thus appears to gather resources in time limited 'campaigns', rather than continuously as the American case studies do. BIRW obtains most of its links to other organisations and legal skills from its director - Jane Winter. Also important are volunteers, which consist both of

154 Interview with BIRW, London, Oct 2001 (notes in possession of the author). 155 Ibid. 156 Ibid. The total pool of resources of BIRW is certainly much smaller than that of JUSTICE. 157 BIRW Interview Op cit. 158 Questionnaire Completed by BIRW 2001 (original in possession of the author). 159 Pamphlet entitled British Irish Rights Watch 1999 (BIRW, London, 1999) p19. 160 BIRW Questionnaire Op cit. 161 BIRW Interview Op cit. 162 British Irish Rights Watch 1999 Op cit. 224

volunteers who work in the office and lawyers who volunteer to conduct cases.163 In the past BIRW has found that obtaining resources for its work has been extremely difficult. At one point, it had only one month’s money left and was saved from insolvency by the pledge of a lawyer to donate ten thousand pounds (his fees for a case) to it. BIRW was then able to borrow money on the basis of this pledge, and this enabled it to remain solvent.164 It was not until 1995, when BIRW was introduced to a secret Foundation in the US 165 through the American-Ireland Fund, that it was able to find a stable and satisfactory source of money.166 The origin of the difficulty that BIRW had in obtaining resources would seem to lie both in the relative scarcity of resources for human rights work in Britain compared to America, and in the politicised nature of human rights problems in Northern Ireland. BIRW has also had problems obtaining charitable status and taxation exemption. The Charity Commission was initially of the opinion that BIRW was a political campaigning body.167 What eventually convinced the Charity Commission to give it charitable status was that BIRW referred people to the free services of lawyers doing pro-bono work.168 BIRW has not been particularly concerned by the restriction in English charity law on DNGOs campaigning or doing work to raise public awareness of human rights as it does not think that this work is tactically very effective.169 Instead of such work, it concentrates on international work – mostly before the UN and the Council of Europe. The problems that BIRW had before the Charity Commission indicates once again the extent to which taxation laws can be a forum where attempts are made to 'direct' human rights work in particular ways. Its success in resisting such direction points to an ability on the part of British

163 It would seem that BIRW accumulated the above types of resources to suit tactics it had previously found successful. 164 BIRW Interview Op cit. 165 This Foundation was secret in the sense that BIRW could not reveal the Foundation’s name. This Foundation is no longer secret and is currently called Atlantic Philanthropies. Interestingly this created problems as people presumed that secret funding for a DNGO working in Northern Ireland must be from Republican sources. 166 BIRW Interview Op cit. 167 Ibid. 168 Ibid. 169 Ibid. 225

DNGOs to influence authorities, such as the Charities Commission, in much the same way that they influence Foundations. Comparisons With Other Case Studies With regard to types of resources, BIRW, like JUSTICE, makes third party interventions in court cases. Unlike JUSTICE, however, these interventions are exclusively at the European Court of Human Rights and only proceed jointly with other DNGOs. BIRW thus places an emphasis on links to other organisations that JUSTICE does not. BIRW also differs from JUSTICE and the American case studies in focusing on the use of non-lawyers with legal expertise rather than the use of lawyers. With regard to sources of resources, BIRW, like JUSTICE relies principally on money capital from Foundations. Unlike JUSTICE, however, this Foundation money is predominantly American and not British. With regard to solicitation of donations by mail BIRW, like JUSTICE, appears to gather money capital in time limited campaigns, rather than continuously as the American case studies do.

BIRW and the Diversified Approach Comparing BIRW's accumulation of resources to the Diversified Approach, its access to international sources of resources appears to have given it a larger degree of tactical freedom than might be expected if it had domestic sources of resources. BIRW thus suggests that geographical distance from donors, at least in developed nations like the UK (and on some politicised issues) can have the same effect of lessening the effect of a small number of resource donors on tactics as diversification of sources of resources. BIRW's sources of resources, being Irish-American, also seem to have had the effect of encouraging it to succeed because they have an active interest in the success of the work. BIRW thus illustrates an important caveat to the emphasis that the Diversified Approach normally places on a diversity of donors to achieve tactical independence. The normal unity of resources and tactics advocated by the Diversified Approach also appears to have been superseded in BIRW's case by its need to obtain resources overseas to compensate for a lack of local donors for human rights work in Northern Ireland. 226

VI. CAJ-170 Types of Resources Although CAJ, like BIRW, acquires a narrow range of resources, it also acquires them in a unique combination. Firstly, it has a large pool of money capital. This appears to indicate that it concentrates on accumulating money capital.171 Secondly, it has reasonably high public profile as a result of winning the Council of Europe human rights prize in 1998. Organisation, on the other hand, is not a major resource for it. It only has about five or six full time staff and one legal officer, with the rest of the work being done by volunteers and interns.172 Thirdly, CAJ’s links with the legal community, especially with law firms and individual lawyers are an important resource for it.173 It uses these legal links to mount cases before the European Court of Human Rights, in a similar way to the way that LCCRUL uses its cooperating law firms to mount cases before US courts. The passing of the Northern Ireland Act 1998(UK), which has human rights provisions and establishes human rights institutions, has also given CAJ more law and support from government as resources that can be used in litigation.174 CAJ thus has a much larger pool of resources than might appear to be the case at first blush. Sources of Resources CAJ, like BIRW, is predominantly funded by international Foundations.175 Originally, most of its donor Foundations were British, but over time they have been replaced by American Foundations.176 It seems that the politicisation of human rights issues in Northern Ireland has encouraged it to look for resources offshore. Because CAJ obtains most of its money capital from overseas Foundations, its sources of resources appear to have had less effect on its organisational culture and not to have constricted its tactical choices as much as if had they been domestic Foundations. In addition to

170 The Committee on the Administration of Justice of Belfast - see Chapter One. 171 The majority of this comes from American Foundations - Interview with CAJ, Belfast, Oct 2001 (notes in possession of the author). 172 CAJ Annual Report 2000-2001 p30. 173 CAJ Interview Op cit. 174 This is in addition to the Human Rights Act 1998(UK) which also extends to Northern Ireland. 175 Questionnaire Completed by CAJ 2001 (original in possession of the author). 176 Interview CAJ Op cit. 227

money capital from Foundations, non-legal volunteers are also important in running CAJ's office. CAJ's second most important source of money capital is from costs awarded in litigation,177 although the only costs that it appears to have received thus far are those recently awarded by the European Court of Human Rights in two cases in which it was successful.178 The third most important source of resources are membership fees from its three to four hundred members.179 The fourth most important source of resources is solicitation of individual donations by mail, and the fifth is work done by volunteers. This latter category involves both persons who come in and help at the CAJ office, and legal firms and individual lawyers that help its legal officer run test cases.180 Even though the legal regime governing charitable bodies in Northern Ireland is different to that in England and Wales,181 CAJ has received charitable status through the same avenue that other British DNGOs have. Supervision through the Department of Finance and Personnel182 (instead of the Charities Commission) of charities in Northern Ireland exists, but the powers of the Department are less extensive and its supervision less strict than in England. CAJ has thus not experienced the problems that BIRW had in obtaining charitable status. CAJ has not found that taxation laws in Northern Ireland have influenced its choice of tactics. It seems that the relative laxness of the regulation of charitable status in Northern Ireland is mostly responsible for this tactical freedom. Another reason is that those tactics which the English legal regime has deterred DNGOs from pursuing, such as consciousness raising with the general public, have not been tactics which CAJ has favoured in any case. Comparisons With Other Case Studies In terms of types of resources, CAJ, like LDF and CCR, focuses on accumulating money capital. This similarity may be no coincidence as most of CAJ's money capital comes from American Foundations who may have

177 CAJ Questionnaire Op cit. 178 Interview CAJ Op cit. 179 Ibid. 180 As mentioned above, CAJ also has a high public profile as a result of winning the 1998 Council of Europe human rights prize. 181 It is governed by the Charities Act (Northern Ireland) (UK) 1964 – see J.Kendall & M.Knapp “The United Kingdom” in Salomon & Anheir Op cit p 252 at 259. 228

influenced its approach to resource accumulation. Unlike LDF and CCR, however, CAJ focuses less on having a large central organisation and acquiring staff and more on the use of volunteers. Like LCCRUL, CAJ has strong links to the legal community and law firms and uses them to mount court cases (in CAJ's case before the European Court of Human Rights). In terms of sources of resources, CAJ is like BIRW in being predominantly American funded and focusing on international networking. Also like BIRW, international Foundation funding appears to have given it greater tactical freedom than it might have had if it was funded by domestic Foundations. Unlike BIRW, however, it has not had major difficulties in obtaining charitable status. CAJ and the Diversified Approach CAJ appears to have avoided the injunction of the Diversified Approach not to have a small number of sources of resources by getting most of its resources internationally. As a result, CAJ’s sources of resources do not appear to have significantly influenced its tactics. It seems that originally CAJ’s decision to obtain money capital offshore was dictated by the relative paucity of funds in the Northern Ireland Third sector, and not by any move to obtain more tactical independence from sources of resources. This tactical independence from donors thus appears to have come about by accident rather than by design. This scarcity of local resources and search for international funds has also tended to supersede the balance between resources and tactics advocated by the Diversified Approach. Rather than foreign Foundations restricting tactics, if anything they seem to have enriched CAJ’s thinking with ideas derived from international law. An example of this is the idea of mainstreaming equality rights which is popular in international bodies such as the United Nations.183 As a result of the lobbying of DNGOs such as CAJ, this idea, which advocates that equality provisions be explicitly included in all areas of policy and law rather than just in human rights instruments, became embodied in Section 75 of the Northern Ireland Act

182 Ibid. 183 For a discussion of the use of this concept in the peace negotiations and by human rights DNGOs see C. McCrudden "Equality" in C.J. Harvey Human Rights, Equality and Democratic Renewal in Northern Ireland (Hart, Oxford, 2001) pp75ff. 229

1998(UK).184 Even more than for BIRW, therefore, the application of the Diversified Approach to CAJ reveals that DNGO resources can be supplied in the necessary amounts internationally with the bonus that the international nature of the donors can induce creative tactical approaches.185 VII. HU-186 Types of Resources As prefigured in previous chapters, HU places its greatest priority when accumulating resources on access to and legitimacy with political elites and government, and on the accumulation of cultural capital. As a result it appears to exhibit a form of 'embeddedness' within the German ruling elites. Important members of the political elite have been members of, and socialised into, HU's human rights culture. The current German Chancellor, Gerhard Schröder, was a member of HU until he was elected, the Federal Home Affairs Minister, Otto Schily, was a member of the HU Executive187 and a retired judge of the Federal Constitutional Court is currently on the HU Executive.188 This socialisation and access is intended to influence the stance of members (and those HU engages in debate with) when they achieve government to be more favourable to human rights.189 When members achieve government this in turn appears to give HU further access to government and official information.190 In terms of the accumulation of cultural capital, HU identifies itself as an intellectual organisation and is made up largely of professionals such as

184 Section 75(1) of the Northern Ireland Act 1998 (UK) reads: "A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity: (a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; (b) between men and women generally; (c) between persons with a disability and those without; and (d) between persons with dependents and persons without." 185 It appears that British and American Foundations consider Ireland to be on the border of their respective geographical areas of funding, and so American as well as British Foundations seem to be readily available for work in Northern Ireland. This may be due to the effect of the Irish community in the United States, but may also reflect the current greater mobility of capital under Globalisation. 186 The Humanistic Union of Berlin - see Chapter One. 187 Interview with HU, Berlin, Sept 2001 (notes in possession of the author). 188 Ibid. 189 Note, however, that Otto Schily as Home Affairs Minister substantially turned against the position of HU, and got involved in a shrill debate with the HU leadership. Socialisation clearly then does not always work. 190 It may be that those who join HU have a pro-human rights stance anyway, but it seems that HU tries to intensify this and to use members' contacts to spread such commitment among political elites. 230

journalists, academics, ambassadors and lawyers.191 As mentioned above, it resembles a debating society in that intellectual work is carried out in small groups in order to create analyses that are then deployed through publication, the media or protests that HU initiates or joins.192 This approach resembles the traditional method of influence that intellectuals and writers have had on German politics, where political and philosophical analyses are deployed to support those they favour in a political struggle.193 HU shows some similarity to the British case studies, however, in that its publication and lobbying often focus on the Basic Law, and thus make political use of legal expertise. It appears that HU accumulates cultural capital because this is more easily available in the German context than other resources like money capital or technical expertise.194 HU also places some emphasis on the accumulation of money capital, however, despite the difficulty in accumulating it. Although it appears to have a small annual income, it actually has a larger money capital income than the figure set out above would indicate, because each of its branches has its own sources of finance.195 HU's overall pool of money capital is thus sizeable. As HU is a member of the Human Rights Forum, networks are thus also a resource for it. HU draws from the Forum what it seeks to draw from the political elites, namely information, access to government through better lobbying as a group, and support from government. Information is also a resource for HU. It not only obtains information as a resource through linkages with other NGOs, but also through the Internet. It also uses the Internet to coordinate its branches and its Federal Headquarters. HU thus makes much more extensive use of the Internet than just having an Internet site,196 as is the case for many DNGOs in Britain and America. As can be seen from the above, HU, like all the German case studies, shows a different pattern of resource accumulation than that of the British and American case studies. The most striking differences are that it places virtually

191 HU Interview Op cit. 192 T. Bauer “Mission meist possible: Die Arbeit der HU-Bundesgeschäftsstelle in der Datenflut” in Vol 155(3) Vorgänge Sept 2001 at 82. As was seen above, this method is also used to challenge privileged interpretations of legal norms. 193 This is not to say that HU does not run cases. It does do so, as was seen in Chapter Two. 194 Questionnaire completed by HU 2001 (original in possession of the author) p2. 195 Ibid. 231

no emphasis on the accumulation of organisation, legal expertise or public profile. It has no staff lawyers, only one paid member of staff,197 and appears to be largely unknown among the general public, making it unable to draw on its 'brand name' as a resource. Sources of Resources HU's major source of money capital income is from membership fees. Its only other sources of resources are donation of time by members and interns, donations of money (mainly through wills), and from tax exemptions.198 HU's members need to be reasonably wealthy to pay its high fees and to travel to meetings, and this limits the size of its membership’s.199 HU's cultural capital and access to political elites and government also mostly comes from members. Curiously, there appears to be no plan for the acquisition of members with the necessary cultural capital or contacts to carry out the types of tactics that HU favours. Rather, HU's accumulation of cultural capital and contacts appears to be random, depending on who happens to become a member. Volunteers (mostly non-lawyers) are also important in supplying HU with a whole range of resources, including cultural capital, legal expertise and administrative help in the national headquarters and local branches. HU appears to have benefited significantly from tax exemptions in its accumulation of money capital. It is registered as a Verein (or registered association) under the BGB at the Amtsgericht (Local Court) in Munich,200 where its aims are listed as “the furtherance of political culture”. On the basis of these aims it obtained Gemeinnütizigkeit under the AO as described above, and became tax exempt under German law.201 German taxation laws seem to have had less effect on HU's tactics or structure than comparable laws in Britain or the United States. This appears to be because German laws are less constraining of the types of activities they will allow without financial penalty.

196 Bauer Op cit at 85. 197 Interview, with HU, Berlin, Sept 2001 (notes in possession of the author). The paid member of staff is situated at the Federal Headquarters in Berlin. 198 Ibid. 199 Interview HU Op cit. 200 Ibid. 201 Ibid. 232

As with the types of resources accumulated, HU and the other German case studies also show a different pattern in their sources of resources. The British and American case studies focus on accumulating money capital from Foundations and mass mailing and legal expertise from staff lawyers, volunteer lawyers and law firms or barristers' chambers. The German case studies like HU, on the other hand, mainly get their resources from their members and occasional donations from individuals or social movements. Comparisons With Other Case Studies In terms of types of resources, unlike LDF in America HU appears to place little emphasis on centralised organisation, having a much smaller number of staff. Also unlike LDF, HU does not appear to use its 'brand name' to draw resources from civil society. HU also places an emphasis on cultural capital that none of the American and British case studies do. Although it appears to have as small an annual money capital income as BIRW, as with LCCRUL this is not actually the case as this income does not include the money capital collected by the local branches. The actual figure is thus much larger. In terms of sources of resources, HU contrasts with all of the above case studies in getting most of its resources from its members. It shows some similarity to non-case studies such as the American Civil Liberties Union and Liberty in drawing upon members for resources, but unlike these DNGOs it doesn’t also draw resources from Foundations or have a mass membership. Lastly, HU appears to have been less tactically influenced by domestic taxation laws than the other case studies in America and Britain. This appears to be because German taxation law is more permissive of the activities of human rights DNGOs. HU and the Diversified Approach In terms of the Diversified Approach, HU raises both the question of dependence, and the question of adequacy of resources. The relatively high income and often elite status necessary to become a member of HU raises the question of whether this type of membership hinders it from engaging in new or creative tactics. This question is similar to that raised above with regard to the influence of Foundations on tactics. The raising of this question is especially 233

pertinent since HU admits that its members and volunteers largely determine its tactics.202 This question also raises a variation on the age-old question of the role of public intellectuals: namely, can intellectuals203 adequately campaign for the solving of human rights problems they have not experienced themselves?204 An assessment of the nature of the effect of HU’s accumulation of resources thus depends to a large degree on an assessment of the nature of intellectuals generally.205 To the author, HU's history suggests that public intellectuals can have some effectiveness in leading human rights work because in some societies they are traditionally a locus of pro-social behaviour, but that there are limitations to this effectiveness. In response to the above, the Diversified Approach would seem to suggest that connections to many different types of political and intellectual elites could give HU greater resource access and more creative approaches to problems. If the nature of HU's membership has created a rigidity of tactics, it would seem that expanding the number and diversity of its membership to include intellectuals from groups subject to human rights violations might be a possible response. In this way it could both gain extra information on violations and create an incentive for itself to move decisively to address them. It may also be that larger numbers of members (perhaps achieved by lowering fees) could give it access to networks beyond political elites from which it might draw resources. As for adequacy of resources, HU receives a larger overall annual income than might be expected from mainly membership dues. However, the overall level of resources accumulated is much lower than that of the British and American studies, even if access to government and cultural capital are included. HU thus appears to have failed to follow the recommendation of the

202 Questionnaire HU Op cit p1. 203 For a useful discussion of the definition of an intellectual see – E.W. Said Representations of the Intellectual (Vintage, London, 1994) p3ff. 204 Or even more broadly, can membership organisations adequately address human rights issues when the membership is from sections of society that do not generally experience human rights violations? The author is of the opinion that it is possible where such organisations embody pro-social behaviour to a high degree. 205 There is a sense in which it may also be argued that the assessment of LDF’s resource acquisition strategy also depends on an assessment of the nature of lawyers generally. The German case studies appear, however, to present this question more starkly, because intellectuals supply most of the money capital to these DNGOs, as well their skills and cultural capital. 234

Diversified Approach to find resource donors with sufficient resources to allow it to execute its tactics. This seems to raise the additional question of whether HU's approach to accumulating resources could ever deliver enough resources for it to expand and improve its work. To the author, HU's approach to accumulating resources could probably never deliver enough resources for it to improve its effectiveness because it could never charge high enough fees or have enough members. The Diversified Approach suggests a number of alternatives that could address this problem. The development of Foundations that fund domestic human rights work (rather than merely research or publish as appears common in Germany) similar to those that exist in Britain and America is one avenue that HU could explore for increasing its resource base. As in Britain, this may entail lobbying Parliament or litigating to create a legal regime that is favourable to such Foundations.206 Another avenue would be for HU to raise its profile with the general public, so that it could obtain donations and volunteers through the pro- social behaviour of civil society. Overall, HU mainly accumulates cultural capital and access to government through members and has few staff and few sources of money capital. In terms of the Diversified Approach, it suffers both from problems of dependence on its membership for resources, and a lack of relationships to large enough pools of resources to enable it to carry out a large range of tactics. VIII. KGD 207 Types of Resources As mentioned above, KGD aspires to be the head or peak organisation for social movements in Germany on the question of domestic human rights, and so it concentrates on the mobilisation of the populace, rather than any elite.208 These different tactics have required different resources to those sought by HU.

206 The author has no knowledge of the legal position of Foundations in Germany. It may be that such Foundations are not legally possible, but the author feels it is more likely that they are either already legally possible or could become so if DNGOs lobbied for favourable legal changes. 207 The Committee on Basic Rights and Democracy of Cologne - see Chapter One. 208 In this way, KGD is closer to being a mass human rights DNGO like the ACLU in America than the other two German case studies. 235

KGD focuses on linkages to social movements and the accumulation of cultural capital as resources.209 It has links with the peace, environmental, anti- nuclear and other social movements.210 As mentioned above, these movements, because of traditions of associational life in Germany, have more permanence than in Britain or America. As a result, KGD is able to draw upon them as an immense reservoir of volunteers for political actions, money capital, public awareness work, and for a whole series of other needs. KGD was originally a member of the Human Rights Forum, but left, arguing that ease of access to government was compromising members’ independence211 and that the Forum was not achieving results that would justify the resources contributed to it.212 Its actions seem to have been based on an analysis similar to the analysis of Arts and Baneke213 to the effect that coalitions can sap the creativity and vigour of individual members. With regard to the accumulation of cultural capital, KGD views itself as an intellectual organisation that produces publications, position papers and holds congresses.214 It has a large number of academics, doctors and lawyers as members,215 and directs its analyses and publications to the cause of mobilising the general public, rather than elites.216 KGD not only builds up cultural capital, but also accumulates a form of technical expertise. This is not legal expertise, but rather expertise in civil disobedience and non-violent direct action.217 While legally KGD cannot

209 This is not to say that KGD does not run cases periodically. The fact that it does was outlined in Chapter Two. 210 Also the refugee movement, social rights movement, unemployment movement and the anti- Globalisation movement - Interview with KGD, Sept 2001, Cologne (notes in possession of the author). 211 The suggestion is not that membership of the Human Rights Forum did have this effect, but rather that KGD saw it as having that effect. 212 Ibid. 213 van den Berg Op cit p44. As mentioned above, the analysis of Arts and Baneke were unobtainable to the author at the time of the writing of this work and so the author has relied on van den Berg's description of their analysis. Art’s book that could not be obtained at the time was B. Arts The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions (International Books, Utrecht, 1998). 214 There are five or six groups that meet two or three times a year – KGD Interview Op cit. 215 Ibid. 216 KGD thus focuses on publishing in forms accessible by the public - eg the public information pamphlet -Bürger- und Bürgerinnen Information: Ein Deutschland für Einwanderer. Oder: Die Schein- Politik der Selbsttäuschungen und Lügen hat kein Ende (KGD, May 2000). 217 See for eg Ziviler Ungehorsam: Traditionen, Konzepte, Erfahrungen, Perspektiven (KGD, Cologne, Undated) and M. Singe Ziviler Ungehorsam für Asylrecht! Für die Abschaffung der Abschiebehaft! Verteidigungsreden vor dem Bonner Amts - und Landgericht (KGD, Cologne, March 1996). 236

organise demonstrations and civil disobedience without loosing its tax exempt status, it can accumulate expertise on how to run them. Organisations in the social movements formally organise such protest actions, and KGD members join them as individuals rather than as an organisation.218 Among the resources that KGD acquires to a lesser degree are organisation and money capital. It retains a paid staff of three and a national headquarters219 and has extensive access to money capital, but appears to put priority on other resources. KGD, like the other German case studies, does not acquire people with legal expertise or a public profile. It does not acquire people with legal expertise (even though it litigates) because it draws upon members and sympathisers. Similarly, it does not seek a public profile as a resource because it gets most of its resources from its members.

Sources of Resources Because KGD is a group of public intellectuals it obtains a large proportion of its cultural capital from its members. It also, however, obtains cultural capital from social movements. In practice, these two sources are intertwined, as the Executive often makes joint decisions with social movements, and many of KGD's members also work within them.220 KGD's status as a head organisation for human rights among German social movements gives it extensive opportunities to create linkages with them as a resource. The immense size of KGD's access to social movements as a resource and the cultural capital evidenced within its publications, suggest that it has a very large overall pool of resources. Indeed, as will be seen from reading above and below, it probably has the largest pool of resources among the German case studies. In terms of money capital, KGD's most important source of resources is membership fees.221 It is also able to take advantage of the immense money capital resources that the social movements obtain from their members.222 Its

218 KGD Interview Op cit. 219 Ibid. 220 Ibid. It is thus hard to distinguish when KGD ends and the social movements begin. 221 Questionnaire Completed by KGD 2001 (original in possession of the author) p2. 222 Interview KGD Op cit. 237

second most important source of money capital is from individual donations through solicitation by mail. It has a formally constituted circle of sympathisers, consisting of about eight thousand people,223 who contribute a significant part of this money. In terms of taxation exemption, KGD is registered as having Gemeinnützigkeit under the AO, is registered as an organisation under the BGB, and has tax exemption under the Income Tax Law. This seems to be an important source of resources for it but does not appear generally to restrict its tactics. The main area where it does have some influence on tactics is in relation to direct action. As mentioned above, in order not to endanger its Gemeinnützigkeit status, KGD participates in direct actions as individuals, and not as an organisation. This approach to the requirements of German law works well, and has never been seriously questioned by German authorities.

Comparisons With Other Case Studies KGD accumulates similar types of resources as HU, although it has more extensive contacts with social movements. Like HU it has no staff lawyers, but unlike HU retains a staff of three. Also like HU KGD builds up cultural capital, although unlike HU it also accumulates expertise in non-violent direct action and civil disobedience. In building up such knowledge KGD shows some resemblance to CCR, but CCR does not emphasise such knowledge to the same degree. With regard to sources of resources, KGD resembles HU in getting most of its resources from its members. It differs from HU, however, in the extent to which it also draws resources from social movements it has links with. Also like HU, KGD seems tactically relatively unaffected by the provisions of German taxation law. KGD and the Diversified Approach The application of the Diversified Approach to KGD reveals a DNGO with a well designed resource acquisition arrangement. KGD's members have links to, or participate in, social movements that suffer human rights violations or are linked to communities that suffer such violations. This gives it a degree of

223 Ibid. 238

accountability to victims of violations that encourages vigorous defence of human rights. Because of KGD’s status as the 'peak organisation' for human rights of all German social movements, 224 it also has little problem with a lack of resources constraining tactical choices.225 KGD's in-depth reciprocal relationship with social movements mirrors the relationships that British and American DNGOs tend to have with Foundations – both in providing adequate resources and creating a degree of shared culture. In the case of KGD, however, the degree to which social movements influence its tactics through shared culture seems more to empower and encourage it, rather than to restrain it in ways that have to be managed. As seen above, KGD's well designed resource acquisition approach contrasts with a less than optimal tactical stance.226 In terms of the unity of resources and tactics advocated by the Diversified Approach, KGD seems quite successful in matching resources and tactics but appears to have difficulty in selecting effective tactics. Overall, therefore, KGD favours the accumulation of links to social movements and cultural capital rather than access to government. Using the Diversified Approach, KGD’s approach to resource acquisition appears almost ideal. It is clear, however, that the advantages it may have gained from this have been more than cancelled out by other factors, such as its tactical stance and organisational culture as described above. IX. GBM- 227 Types of Resources Although derived more from the history, 'style' and human rights understanding of social movements in the former East Germany than from the experiences of the former West Germany, GBM shows some of the same patterns of resource acquisition as the other German case studies. GBM mostly accumulates cultural capital, technical expertise and links to social movements and is able to obtain most of its cultural capital internally because its members are mainly public intellectuals. It also accumulates

224 Ibid. 225 KGD has direct contacts all over Germany with social movements- Ibid. 226 As will be agued in Chapter Five below, it also contrasts with a low effectiveness. 227 The Society for the Protection of Civil Rights and Human Dignity of Berlin - see Chapter One. 239

technical expertise in relevant fields such as law and international relations because former GDR experts in these fields are members. In addition, GBM has extensive contacts with social movements in eastern Germany from which it is able to get all manner of resources, including cultural capital. It also accumulates access to government, which includes not only access to the German government, but also to foreign governments and international bodies. This access aids it in its international work. GBM also accumulates significant amounts of money capital. While the above figures might suggest that it has a low money capital income they are deceptive because, in addition to national GBM, each of the forty local groups has their own individual income.228 GBM does not accumulate certain types of resources. As it employs only one half-time secretary as staff it clearly accumulates organisation as a resource even less than the other German case studies229. It also does not accumulate lawyers as a resource. It did retain a lawyer in London to conduct the Krenz case230 before the European Court of Human Rights, but this lawyer was in no sense a staff lawyer.231 Lastly, it has such a low public profile in the former East Germany that it cannot use its 'brand name' as a significant resource. Sources of Resources GBM's main source of resources has been the group of East German intellectuals who found themselves out of a job after reunification and became members or sympathisers. It was founded by these theologians, academics, scientists and artists, and from the beginning was able to draw upon this discontented and highly educated section of society for cultural capital, links to social movements and access to governments.232 The above occurred both through such people becoming members, and through them giving time and

228 Interview with GBM, Berlin, Sept 2001 (original in possession of the author). 229 Ibid. 230 Case of Streletz, Kessler & Krenz v Germany decided by the ECHR on Mar 22, 2001 - see http://hudoc.echr.coe.int accessed Dec 17, 2003. This case involved prosecution of the last leadership of the GDR by the new united Germany. 231 GBM Interview Op cit. 232 “Geschichte der GBM” in 1996/2-3 Icarus 11. GBM does have some west German (ie from the western region of the united Germany) members and supporters, chiefly those associated with the SPD (German Social Democratic Party), but is overwhelmingly composed of former GDR citizens. 240

expertise as volunteers.233 This has made it possible for GBM to draw upon a wide variety of cultural capital as resources. This includes an expertise in art that enables it to hold art exhibitions and other cultural events both to foster ‘East German culture’ and to raise the profile of the issues it campaigns on.234 In terms of networking, GBM mainly has connections with social movements in the former East Germany, international organisations and human rights INGOs. GBM's links to social movements are mainly through links to organisations such as the East German Council of Organisations (OKV).235 As mentioned above, it has also cultivated strong contacts with the United Nations, the Council of Europe and the Organisation for Security and Cooperation in Europe.236 In terms of other NGOs it also has contacts with DNGOs in Eastern Europe, such as the Slavic League in Russia and the Anti-Fascist League in the Balkans, as well as INGOs in the West, such as the International Action Centre in New York and the European Peace Network.237 The reservoir of former professors of international law and international relations, as well as former diplomats who are GBM members or sympathisers has meant that from its foundation it has had the sources of resources necessary to cultivate international networking as a resource. At the time of reunification these types of resources appear to have been more available in eastern Germany than western Germany and this appears to have been a crucial factor in shaping GBM's tactics.238 As with the other German case studies, tax concessions are a significant source of money capital for GBM. It is registered under the BGB as an association, has Gemeinnützigkeit under the AO and tax exemption under the Income Tax Law.239 Overall, GBM’s tactics and structure do not seem to have been significantly influenced by taxation law.

233 GBM thus has some ability to draw upon pro-social behaviour in the professional and intellectual strata of society in the eastern Länder. 234 Eg U. Beier “Sitte und die seinen” Die Welt Dec 12, 2001 – an article that details an art exhibition by GBM. 235 On the OKV see Prof Dr W.Richter "Eröffnung" 1998/4 (No 14) Icarus - Journal for Social Theory and Human Rights p2 236 GBM Interview Op cit. 237 Ibid. 238 GBM thus appears to be one of the clearest cases among the case studies of resource availability being a prime determinant of tactics. The availability of these resources seems clearly related to GBM building up of these resources, and the FRG not acquiring them when unification occurred. 239 Questionnaire completed by GBM 2001 (original in possession of the author) p1. 241

The primary source of GBM’s money capital is from membership fees.240 One of its major problems in resource acquisition is that its membership is not wealthy, and the amount of money collected is correspondingly lower than it would otherwise be.241 Similarly, money from legacies are not an important source of money capital for GBM because of the relative poverty of former East German citizens.242 GBM’s second most important source of money capital is from donations by individuals through solicitation by mail.243 It is this source which raises GBM's overall money income above that of HU. Interestingly, although it accumulates significant amounts of money, GBM’s ambitious tactical stance requires more money capital than it actually possesses. This has led it to a situation where it regularly overspends its annual budgets and suffers from an overall money capital scarcity.244 A significant problem for GBM in terms of donors of resources is that its members and donors are ageing. This means both that its sources of resources are in danger of disappearing, and that the issues that its members want it to address are mainly those of concern to senior citizens of the former East Germany.245 Younger people in the eastern Länder generally prefer to join social movements that originate in the western Länder rather than join GBM.246 One reason for this appears to be that GBM emphasises discrimination against former GDR citizens in old age pensions and prosecutions for human rights violations247 and these do not seem to be issues of concern to younger east Germans. The second reason appears to be that GBM still has not overcome the isolation that opposition intellectuals had during the GDR regime. A major reason for this isolation was their opposition to capitalism (as well as the East German system), when the bulk of the East German citizenry was pro-

240 Ibid. 241 The fee is four to ten German marks (approx two to five Euro) per month. With only 4000 members this means that as little as 16,000 marks (approx 8,180 Euro) can be raised in a year, whereas 200,000 marks (approx 102, 260 Euro) are spent a year – GBM Interview Op cit. 242 Ibid. 243 GBM Questionnaire Op cit. 244 Ibid. 245 GBM Interview Op cit. 246 Ibid. 247 See H. Steininger “Versorgungsunrecht und Menschenrechte” in 1996/1 No 4 Icarus 3. 242

capitalist.248 GBM has not found a way to bridge this ideological divide and this in turn has made its task of finding resources more difficult. The third reason seems to be that, despite the fact that GBM's President, Professor Dr Richter, is also the President of the East German Council of Associations,249 GBM is relatively isolated from social movements and civil society.250 This isolation narrows its range of possible sources of resources. Comparisons With Other Case Studies In terms of types of resources, GBM accumulates similar types of resources as HU and KGD. Like them it does not focus on acquiring staff or lawyers. The main difference between them and GBM is that GBM through former GDR officials who are members is able to acquire technical expertise in areas such as law and international relations. Like LCCRUL and HU, GBM has a larger money capital income than the above figure indicates because local affiliates acquire their own money in addition to that accumulated by the national office. With regard to sources of resources, GBM is similar to the other German case studies in focusing on obtaining cultural capital from its members. Unlike the other German case studies, however, GBM is also able to draw on the above mentioned social strata of unemployed former GDR officials and intellectuals for various forms of technical knowledge. Also unlike KGD (but more like CAJ), most of GBM's networking is with international NGOs and organisations and not social movements. Lastly, like CCR GBM has the problem of accumulating money capital from aging Left wing individual donors and shares in the resource problems caused by the worldwide decline of the Left. GBM and the Diversified Approach The application of the Diversified Approach to GBM's style of acquiring resources reveals some problems. The biggest problem is that it does not seem to have relationships with large enough pools of money capital to enable it to remain solvent. In terms of the unity of resources and tactics advocated by the Diversified Approach, GBM appears to have successfully identified the effective

248 Stokes Op cit p65. 249 Interview GBM Op cit. 250 This concentration suggests the possibility of international financing for GBM from socialist countries and other regions concerned about social rights, such as Scandinavia. 243

tactics in its environment but has not successfully found sources of money resources to execute them. Because GBM's tactical stance is so ambitious that it appears to have outstripped the money resources that its resource acquisition strategy can deliver, it might need to widen the diversity of its donors by increasing its connections with east German civil society. Alternatively, it could endeavour to obtain international funding by drawing on its international expertise. In terms of creating a diversity of donors, a combination of the two would seem ideal. Were GBM to adopt the first course, the widespread perception in the former East German populace that they have been manipulated by Westerners and their fears of poverty251 would seem to indicate that civil society in the eastern Länder could potentially be a large source of resources for it. To take advantage of this, however, GBM would need to succeed in doing what both the former East German government and opposition failed to do – inspire support and create perceptions of legitimacy in civil society. The Diversified Approach also seems to indicate a problem with GBM's diversity of resource donors. As with all of the membership organisations above, there is the question of whether the membership is sufficiently diverse to keep it in touch with communities in eastern Germany that might be experiencing violations of social rights. As with the other German case studies, there is also the question of whether the pro-social behaviour of intellectuals in the German tradition can compensate for this lack of diversity. Overall, GBM acquires similar types of resources as the other German case studies from the same source (mainly its members). The main differences lie in the wider range of cultural and technical resources and international networks that it can draw upon. The Diversified Approach suggests that it does not have links to large enough pools of money capital in to enable it to obtain other resources like organisation, or even maintain its current networks. Thus, GBM is rich in technical and cultural resources through its membership, but appears to need to reform the way it accumulates money capital. X. Conclusion: Even more than in the previous two chapters the case studies show considerable variation in their approach to acquiring resources. The main types

251 Stokes Op cit p194. 244

of resources that the case studies acquire range from money capital and legal expertise at LDF to cultural capital and access to government at HU. All the case studies appear to accumulate money capital, but the proportion of a case study’s overall resources made up by money capital appears to vary considerably. The case studies’ main sources of resources range from mail campaigns and Foundations at LDF to members and social movements at KGD. Most of the case studies appear to receive donations from individuals, either as a result of mail-outs or otherwise, but once again resources from this source make up varying proportions of their overall resources. The following table shows the most important of the above contrasts between the case studies so as to aid comparison.

Table Five: Types and Sources of Resources Most Emphasised by the Case Studies and Their Main Sources (in Descending Order of Importance).

Case Types of Resources Sources of These Resources Study LDF money capital direct mail fundraising; foundation grants; court costs; business sponsorship. professionals with technical expertise legal staff. volunteer lawyers formal networks of cooperating lawyers (that are not LDF staff). LCCRUL links with law firms cooperating elite law firms. money capital donations from cooperating law firms; direct mail fundraising; foundation grants. volunteer lawyers cooperating elite law firms. CCR money capital foundation grants; membership dues; individual donations. professionals with technical expertise legal staff. JUSTICE money capital foundation grants; membership dues; individual donations. professionals with technical expertise legal staff. BIRW non-lawyers with legal expertise non-legal staff. links to other organisations international organisations; national governments; human rights INGOs. money capital international foundation grants; domestic foundation grants; individual mail donations. CAJ money capital international foundation grants. volunteers members of the public interested in the issues. public profile the receipt of a human rights prize and the mass media. HU cultural capital intellectuals who become members. access to political elites and government personal connections between the membership and political 245

elites and government. money capital membership fees; individual donations. KGD cultural capital intellectuals who become members. links with social movement organisations social movements that KGD is associated with. technical expertise in direct action KGD staff and membership. GBM cultural capital intellectuals who become members; intellectuals who are former East German citizens. access to international bodies personal and professional links with international bodies and foreign governments by GBM members and sympathisers. technical expertise in domestic law, former East German professors and government international law and international functionaries who are members or sympathisers of GBM. relations

Table Six: Number of Full Time Staff in the National Offices of the Case Studies (* indicates that case study has branches and affiliates that may also have staff).252

Case Study Number of Full Time Staff LDF approximately 30 LCCRUL* 38 CCR 14 JUSTICE 18 BIRW 3 CAJ 7 HU* 1 KGD 3 GBM* 0 (one half time secretary).

Because of the diversity among the case studies the patterns and recommendations outlined below require more study in the future to confirm their findings. They are suggestive but need to be treated with caution. The Almost Universal Problem of Ad Hoc Approaches to Resource Acquisition All of the case studies do not appear to have properly designed resource acquisition approaches. Rather, their practice has tended to evolve ad hoc 246

without consideration being given to diversifying their resource donors. While some of the case studies, such as LCCRUL and GBM, claim to plan their activities, the data on their resource acquisition practices tends to suggest either that planning does not actually extend to resource acquisition or that such plans are not extensive.253 As researchers and the Vienna World Conference on Human Rights have remarked with regard to NGOs generally,254 the data on resource acquisition by DNGOs tends to indicate that they are not highly self- reflexive. One consequence of this lack of self-reflexivity among the case studies is that it often results in the creation of close relationships between them and small numbers of donors. In the case of the American and British case studies these are usually mail donors and Foundations. With the German case studies the relationship is generally with members. As discussed above, the Diversified Approach suggests that, absent clever management of these relationships or geographically distant donors, this may lead to an undue influence by resource donors on tactics. Another consequence of the case studies' lack of self-reflexivity with regard to resource acquisition is that it may lead to a lack of resources. Case studies such as GBM, CCR and HU appear not to have relationships with donors that could give them sufficient resources to enable them to carry out the type of tactics that they believe would be successful. Not only do they not have relationships with such donors of resources, but the data also suggests that they are neither aware that such new relationships are needed nor aware of what donors of resources in their environment could be their partners in such new resource acquisition relationships. Such a lack of planning and self- reflexivity not only causes problems in resource acquisition, but also aggravates other tactical and structural problems that a case study might have. Styles of Resource Acquisition

252 Note, the figure given for CCR excludes volunteer lawyers and the Columbia Human Rights Fellow and the figure for JUSTICE excludes temporary staff and long term volunteers. 253 In the questionnaires GBM and LCCRUL were asked about planning of tactics and not resource acquisition. Nevertheless, the author got the impression from interviews with them that they claimed to plan all their activities. 254 See W.Korey NGOs and the Universal Declaration of Human Rights (St Martins’ Press, New York, 1998) p24. This problem is similar to the lack of planning with regard to tactics discussed in Chapter Two. 247

There are a number of ways in which patterns can be discerned in the apparently limitless diversity of the case studies. Firstly, the case studies can be understood in terms of styles of resource acquisition. The concept of 'styles' in legal cultures is a common concept in Comparative Law255 and seems easily adaptable to the acquisition of resources for the mobilisation of law by human rights DNGOs. Although a significant number of exceptions exist, the case studies in each jurisdiction appear to exhibit variations on a 'style' of acquiring resources. The American and British case studies appear to favour the accumulation of lawyers or legal expertise, organisation and especially money capital. The American case studies, except for CCR, seem to generally have either direct mail fundraising or aid from the legal profession as their most important source of money capital and Foundations as their second most important source. The British case studies appear to have the same sources of money capital, but in reverse order. Foundations appear as their most important source of funding, especially for those working on issues in Northern Ireland, with direct mail fundraising and aid from the legal profession being the second most important source. The exception to this is perhaps JUSTICE, where aid from lawyers could be more important than Foundation money. In contrast to the British and American case studies, the German case studies favour the accumulation of cultural capital and links to other organisations. Their main sources of resources are generally their membership or their links to other organisations such as social movements. This apparent contrast between the patterns of resource acquisition in Britain and America, and in Germany, may be exaggerated by the fact that the major membership human rights DNGOs in Britain and America, such as Liberty and the American Civil Liberties Union (ACLU), declined to become part of this study. They also appear to get most of their resources from their membership; however, they mainly acquire money capital, rather than cultural capital or links to other organisations. The reason for the existence of such styles of resource acquisition among the case studies appears to be the different nature of the Third Sectors in the three jurisdictions. The style of resource acquisition among the American

255 For eg see V.Gessner “Introduction” in V. Gessner, A.Hoeland et al European Legal Cultures 248

case studies seems closely related to two special features of the American Third Sector. First, America has a stronger tradition of philanthropy because it has never fully adopted the welfare state.256 Second, the subsidy for mailing by DNGOs available in the US alters the economics in favour of direct mail fundraising. This subsidy does not exist in most other jurisdictions. Despite what appears to be American exceptionalism, it is interesting to note that the British case studies seem to exhibit a similar pattern of sources of resources to those of the American case studies. This may be as a result of Globalisation making the British and American economies more similar, both in terms of the gap between the rich and the poor and the rate of philanthropy. It may also be a consequence of the erosion of the British welfare state that has occurred (partly as a consequence of Globalisation) in the last thirty years. The pattern of the German case studies shows little impact from Globalisation, and few signs of convergence with the American and British patterns. Medieval patterns and patterns derived from eras of authoritarian government, have created a rich and permanent associational life outside of the State that German DNGOs draw resources from. In addition, they also draw upon a rich intellectual tradition as a crucial resource in their human rights campaigns. The main problem with the German case studies' style of accumulating money capital resources appears to be that it tends to create a resource deficiency and consequently limits their tactical choices. Nevertheless, if the American and British case studies show the benefits of Foundation funding and links to the legal profession, the German case studies show that cultural capital and links to civil society can be equally valuable resources for DNGOs. The Relationship Between Resource Acquisition and Tactics Another way of understanding the diversity of approaches to resource acquisition among the case studies is to look at the relationship between tactics and approaches to resource acquisition. When the African-American leader Booker.T. Washington remarked to those fighting racial discrimination “Cast

(Dartmouth, Aldershot, 1996) p245 at 256. 256 I am indebted to Diane Hortsch of the NYU Law School for this insight as a result of a conversation we had in November 2001. 249

your bucket down where you are and pick up the resources that are there”257 he appeared to favour adapting tactics to available resources. It is also the case, however, that (in line with the recommendations of the Diversified Approach) some of the case studies alter their resource acquisition approaches so as to supply resources to the tactical stance that they have adopted. Which of these two approaches a DNGO takes (or whether it takes both approaches at different times258) is dependent both on contextual factors, such as which resources are available in a particular environment and which tactics are most likely to be successful, and internal factors such as organisational culture and expertise in resource acquisition. As with styles of resource acquisition, patterns in the relationship between resource acquisition and tactics tend to differ between case studies in different jurisdictions. American DNGOs, like LDF, seem initially to have begun reliance on litigation as a tactic both because it seemed likely to be effective, and because supplies of money and lawyers were present in the American Third Sector. When tactical success was achieved, American DNGOs appear to have helped stimulate the availability of larger pools of resources from Foundations. This allowed them to pursue this tactic further. British DNGOs, like JUSTICE, seem to have more straightforwardly tried to build pools of resources, similar to those in America (or look for money internationally), to make up for a scarcity of resources from a smaller Third Sector. For them, therefore, an emphasis on tactics has tended to lead them to find or create resources to execute those tactics. German DNGOs, like KGD, seem to have adopted intellectual and political tactics, both because they seemed to offer better hope of success in the German environment, and because the resources needed for such tactics were already present. It appears that litigation and other tactics requiring large amounts of money capital were not as attractive to the German case studies. They, did not, therefore, follow the British case studies in creating pools of money capital. Originally, therefore, the American and German case studies seem to have been in a position where effective tactics and the resources

257 A.Porter “Norris, Schmidt, Green, Harris, Higginbotham and Associates: The Sociolegal Import of Philadelphia Cause Lawyers” in A.Sarat & S.Scheingold Cause Lawyers: Political Commitments and Professional Responsibilities (Oxford University Press, New York, 1998) p 153 at 162. 258 GBM claimed in its questionnaire to take both approaches at different times – GBM Questionnaire 2001 (original in possession of the author) p2. 250

needed to execute them were present simultaneously whereas in Britain this was not the case. Patterns in Resource Acquisition that Cut Across Jurisdictions It appears that there are also other patterns in the data on resource acquisition that cut across the three jurisdictions. First, DNGOs that are linked with the political Left, such as CCR and GBM, seem to suffer from the general malaise of the Left around the globe. This in turn appears to have inhibited their ability to accumulate some resources. The exception is KGD, which seems to benefit in its resource acquisition from the institutionalisation in Germany of the new social movements of the1970s. Second, comparing LDF and GBM, there may be a tendency among DNGOs whose mandate focuses on civil rights to accumulate resources more easily than DNGOs that focus on social rights. This appears to be because donors favour the former.259 Third, the case studies suggest that almost universally DNGOs in all three jurisdictions get their resources from a narrow range of the possible sources of resources. The reasons for this appear to be both because it is felt that taking government money would destroy a DNGO's credibility and because DNGOs seem to have little knowledge of the full opportunities offered by the Third Sector. What Can be Learnt From the Case Studies About Successful Resource Acquisition by DNGOs? In a Comparative Law analysis it is common not only to set out patterns in the data so that comparisons can be made, but also to draw conclusions and make recommendations. In the present chapter this involves setting out what can be learnt from the case study data about successful DNGO resource acquisition approaches. In the manner of the Universalist School, it is useful to draw inductively from the above study in an attempt to set out the elements of a ‘model’ approach260 to DNGO resource acquisition. Although somewhat vague because of the weakness of patterns in the data, three elements seem crucial to such an approach. First, there is a need to identify pools of resources that are large enough to allow the DNGO tactical success. The donor's view of human rights work

259 It should be noted, as was mentioned above, that virtually all of the case studies support social rights and feel greater effort should be taken to enforce them. 260 In the sense of a desirable approach, not in the sense of a Weberian ideal type. 251

should be positive and motivating for the DNGO. Tactics and resources need to be matched using a balance of convenience between the economies of using resources that are already present or easily available in the environment, and the potential increase in effectiveness that might come from using tactics for which requisite resources are not already present or easily available in the environment. If the DNGO follows the latter course then ways need to be found to more easily access such resources or to find ways of introducing them into the environment. Second, DNGOs need to form close relationships with donors that are trusting and result in sufficient resources flowing to the DNGO. Ideally the donors should be reasonably numerous, though in practice there are often small numbers, and their influence needs to be managed as described above. Third, DNGOs need donors of resources willing to maintain donations over time. Long term relationships with donors are necessary to ensure that most of the tactics mentioned in Chapter Two have sufficient resources to be executed. Donors of resources, like lawyers’ clients, need to be cultivated and brought into a close professional relationship. Close relationships to donors, however, should not restrain a DNGO from changing donors or tactics if its current donors run out of resources or die. The common culture often formed between donors and DNGOs can induce DNGOs to continue to draw resources from donors who no longer have sufficient resources to maintain its work. This can be a trap, and a successful approach to resource acquisition appears to require a hard-headedness in such situations, that allows resource donors to be changed. It appears from the data above that maintaining the coordinated approach recommended above is difficult in practice while managing other aspects of DNGO work. On the basis of the same data, however, it seems arguable that something resembling such a coordinated resource acquisition approach should be adopted by human rights DNGOs because of the potentially beneficial role that it could play in this crucial area of their overall operations.

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Chapter Five The Effectiveness of Domestic Human Rights DNGOs in the United States, Britain and Germany This chapter applies an approach developed by the author to the case studies to determine their effectiveness in mobilising law in defence of human rights. In doing so it uses case study data from previous chapters as well as information obtained specifically for this chapter. The aim of the chapter is to demonstrate, through the use of the case studies as examples, that the method outlined below, while not without its flaws, can produce results that are accurate enough that they could be used (and refined) in further research and by DNGOs themselves. This method is thus intended as a 'working model' of how to assess DNGO effectiveness that could be improved over time. Where the method used below does not produce an accurate result in a particular instance, it is intended to demonstrate that it is sufficiently sound that with further information or development it could produce a reasonably accurate result. A. The Method Used I. Previous Theories About NGO Effectiveness This work is concerned not only with the mobilisation of law by human rights DNGOs, but also with coming to a reasonably convincing analysis of the effectiveness of this mobilisation of law. For the last thirty years in which human rights scholars have considered the question of the effectiveness of human rights NGOs, the general consensus has been that the task is virtually impossible. In his recent article on the effectiveness of human rights NGOs, Baehr has continued this scholarly tradition by remarking that all inferences on the impact of organisations, such as Amnesty International, are speculation.1 Van den Berg echoed Baehr`s conclusion in a recent work by abandoning any attempt to determine the "influence" of DNGOs on policymakers on the basis that this task required too much subjective bias in the weighting of the relative importance of issues.2

1 P. Baehr “Mobilisation of the Conscience of Mankind: Conditions of the Effectiveness of Human Rights NGOs” in E.Denters & N.Schrijver Reflections on International Law from The Low Countries in Honour of Paul de Waart (Martinus Nijhoff, The Hague, 1998) p135 at 135. 2 E. van den Berg The Influence of Domestic NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Intersentia and Hart, Antwerpen and London, 2001)(School of Human Rights Research Series, Vol 8) pp33-34. 253

Wiseberg in her two pioneering articles written with Scoble3 in the 1970s, set the tone for future writings on this topic by proclaiming that the impact of human rights NGOs was impossible to assess, but that preconditions to impact could be examined and enumerated. A recent article by the director of a British human rights DNGO came to the same conclusion.4 The clear analytical difficulty with their approach concerns the question of how it is possible to enumerate the preconditions for effectiveness of human rights NGOs when one cannot assess that effectiveness, or even define it. If one does not know that A causes B, what is the use of enumerating the factors that strengthen A, as if one knew they caused B? Below an attempt will be made first of all to come to some acceptable concept of effectiveness, and then to uncover and critique the methodological assumptions that previous writers in this field have made that have led them to the assertion that the effectiveness of human rights NGOs cannot be evaluated. The argument put forward is that the effectiveness of human rights NGOs can, in fact, be evaluated with a sufficient degree of precision to be useful to scholars and NGOs themselves. II. Some Preliminary Remarks A few preliminary remarks are necessary about the concept of effectiveness. Firstly, this work is a comparative study of the mobilisation of law by human rights DNGOs in three jurisdictions. The success of a human rights DNGO in mobilising law is not necessarily the same as effectiveness. The link between the mobilisation of law and effectiveness in this work, as stated by Tushnet,5 is that it is argued (and to an extent demonstrated by the data) that the primary determinant of effectiveness for a human rights DNGO is its organisational abilities to do tasks such as the mobilisation of law, and not contextual factors. Thus, all other things being equal, it is argued that when a DNGO successfully mobilises law in defence of human rights, it should also be effective. Secondly, effectiveness as a concept in this work overlaps extensively with what van den Berg calls “influence”.6 The main differences between these

3 H.M. Scoble & L.S.Wiseberg “Amnesty International: Evaluating Effectiveness in the Human Rights Arena” (1976) 105 Intellect 79 and H.M.Scoble & L.M. Wiseberg “Human Rights NGOs: Notes Towards a Comparative Analysis” (1976) 9(4) Human Rights Journal 611. 4 J.Winter “Small NGOs and Strategic Management” in Hegarty & Leonard Human Rights:an Agenda for the 21st Century (Cavendish, London, 1999) p311. 5 M.V.Tushnet The NAACP’s Legal Strategy Against Segregated Education 1925-1950 (University of North Carolina Press, Chapel Hill and London, 1987) ppxi and xiii. 6 van den Berg Op cit p31. 254

concepts are, firstly, the lesser stress placed on the environmental effects in the approach in this work. Secondly, effectiveness as used here concerns effectiveness in mobilising law to pressure (or socialise) governments, it does not necessarily concern the end result of changing policy in the way that van den Berg`s concept of influence requires (although these two are obviously linked). Effectiveness can conceptually be defined in a number of ways. It is useful to distinguish between “goal effectiveness”, which measures the extent to which an NGO is able to achieve the goals it sets for itself, and “agenda effectiveness” which looks at the effectiveness of a human rights NGO in choosing human rights goals of continuing relevance. The consideration of goal and agenda effectiveness together essentially reveals whether the human rights DNGO in question chooses goals that lead to human rights improvements, and then whether it succeeds in achieving those goals.

Because goal effectiveness is what is normally meant in discussions of effectiveness it may logically be thought that goal effectiveness is more important than agenda effectiveness. Even if the goal effectiveness approach is emphasised, however, some element of the assessment of agenda effectiveness is essential to any convincing approach to the effectiveness of human rights NGOs. This is firstly because the use of agenda effectiveness accords with the principle of the universal application of human rights law. Because all NGOs are being ultimately measured against human rights norms, no claim can be made that different standards are being applied to different NGOs. Secondly, this is because an assessment of whether an NGO achieves its goals ultimately says little about whether an NGO has furthered human rights, unless it can be determined that the goals it has achieved (in its agenda) address the most serious human rights violations within its mandate.

The problem with using agenda effectiveness is that it raises extra theoretical problems. The norms which make up the international law of human rights (and indeed the domestic bills of rights that human rights DNGOs often draw upon) are framed using very general language. Some authoritative interpretation is usually required to see how a human rights norm might apply in a particular context, and therefore to determine what agenda effectiveness might require. Organs such as the United Nations Human Rights Committee 255

and the European, Inter-American and African Commissions and Courts of Human Rights perform this work at the international level.7 As these organs do not even partially cover all human rights situations that require clarification, especially at the domestic level, INGOs such as Human Rights Watch and Amnesty International also de facto perform this function for the domestic situations faced by DNGOs.

The comments of these and other international organs upon the periodic reports of nations, and the judgments and views made on individual complaints should, therefore, be sufficient to determine if human rights NGOs are effective in the sense of addressing the issues where conduct deviates from what human rights standards require. With INGOs, this raises the question of whether they might be seen as assessing themselves and so resort to the writings of eminent commentators might be used when this arises as a problem. Another problem with using agenda effectiveness is that it might conflate or confuse a government’s human rights record with the effectiveness of a human rights NGO. An NGO does not need to actually solve all human rights problems within its mandate to be considered agenda effective. What it does need to do, however, is consistently address the major human rights problems. III. Theoretical Problems That The Approach in this Work Tries to Overcome Returning to assessment of the impact of human rights NGOs, there are two sets of presumptions in the existing literature that lead it to the conclusion that the impact of human rights NGOs cannot be sensibly placed in an analytical framework. The first set is of a practical nature. Welch has argued that as governments never admit that policy changes are due to NGO pressure, and because NGOs must claim that diminished human rights abuses have resulted from their actions in order to justify their value to members and supporters, the truth of their effectiveness can never properly be established.8

7 The Human Rights Committee has authority to perform these functions under the International Covenant on Civil and Political Rights, adopted 16 Dec 1966, entered into force 23 Mar 1976, 999 UNTS 171 and its First Optional Protocol. The European Court of Human Rights operates under the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 Nov 1950, entered into force 3 Sept 1953, 312 UNTS 222. The African Commission of Human Rights performs these functions under the African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 Oct 1986, O.A.U Doc CAB/LEG/67/3 Rev 5. 8 C.Welch Jnr (ed) NGOs and Human Rights: Promise and Performance (University of Pennsylvania Press, Philadelphia, 2001) pp2-3. 256

As will be seen below, this problem is addressed in this work using the triangulation of indirect measures of effectiveness. The second set of premises are more theoretical, and can be neatly divided into assumptions about firstly, evidence and secondly, causation. Wiseberg and Scoble, and even more recent writers,9 write as if the impact of NGOs had to be assessed primarily in a quantitative way. Writing as political scientists before the critique of positivism and the interpretive turn in the social sciences had really taken off, Wiseberg and Scoble opted for a decidedly positivist theoretical approach and realist epistemology.10 Despite the critique of positivism in the intervening years, however, many writers still follow this path in addressing the effectiveness of human rights NGOs. These views not only led to assumptions about evidence, but also coloured their views about causation. It seems that these writers viewed causation in a linear unidirectional fashion similar to that of the physical sciences, and that the extreme complexity of the causal chains needed to determine DNGO effectiveness deterred them from even beginning to assess impact in this realm. Both of the above assumptions can now be questioned, and the assessment of the impact of human rights NGOs looks a lot less daunting when it is put in the context of a sounder analytical framework. In order to address the questions of evidence, it is useful to borrow from the social sciences in general, but especially the social science of Program Evaluation. This discipline was established to assess the effectiveness of government programs in the community. Its concepts are here adapted to describe the effectiveness of a human rights NGO on a government (i.e. the focus is now on civil society acting upon the government, rather than the other way around). When program evaluators find that quantitative evidence of effectiveness is hard to discover, they often resort to the use of qualitative evidence to perform an evaluation, especially in settings that are complex.11 Qualitative evaluations in Program Evaluation involve the use of interviews, non-participant observation, archival material and other evaluators’ opinions. The aim of qualitative evaluation is to compile and assess evidence

9 D.L.Cingranelli & D.L.Richards “Measuring the Impact of Human Rights Organisations” in Ibid p225. 10 For defences of the objectivity and scientific validity of qualitative as opposed to quantitative research see – J.A.Hughes The Philosophy of Social Research (Longman, London, 1990) p140 and A.Schutz The Phenomonology of the Social World (Heinemann, London, 1972) p223. 257

from as many multiple, independent sources as possible.12 For program evaluators qualitative evidence is said to be more objective when:1) the evidence is interpreted the same way by multiple researchers; 2) where the evidence forms an interlocking pattern of meaning according to an underlying rationale; 3) where the evaluator has observed for a prolonged period; 4) when a variety of sources of information have been used ; 5) by checking one’s interpretation with other evaluators and participants and 6) by combining qualitative and quantitative data.13 Qualitative data in program evaluation is often collected by way of case study.14 Studies of the mobilisation of law by social movements, rather than the effectiveness of that mobilisation, have used a similar methodology and analytical framework. Because of the difficulty in obtaining direct measures of legal mobilisation, McCann15 and Silverstein16 have used the qualitative method of “triangulating” data.17 As in Program Evaluation, the triangulation method uses indirect measures of a phenomenon to corroborate one another. These studies use evidence such as on-site case study data collection; in-depth interviews; formal questionnaires; participant observation; content analysis of media coverage, secondary academic research and analysis of legal writings. In this study, evidence will be triangulated looking for objective evidence in the ways suggested by Program Evaluation and McCann and Silverstein. The manner in which this has been done is described below in this chapter. The focus of the research is on qualitative data for the reasons that follow in the discussion on causation. The second set of assumptions put forward by articles written following the lead of Wiseberg and Scoble concern the question of causation. The problem of the view of causation that they followed in the case of human rights NGOs is that it sees causality primarily in terms of unidirectional, instrumental effects emanating from discrete agents. The intentions of the NGO leadership

11 E.J.Posavac & R.G.Carey Program Evaluation (Prentice-Hall, Englewood Cliffs(NJ), 1992) p211. 12 Ibid p213. 13 Ibid p222. 14 Eg R.E. Stake The Art of Case Study Research (Sage, Thousand Oaks (CA), 1995) p15. 15 M.W.McCann Rights at Work: Pay Equity Reform and the Politics of Legal Mobilisation (University of Chicago Press, Chicago, 1994) p17. 16 H. Silverstein Unleashing Rights: Law, Meaning and the Animal Rights Movement (University of Michigan Press, Ann Arbor (MI), 1996) p21. 17 R.K.Yin Case Study Research: Design and Methods (2nd ed) (Sage, Thousand Oaks (CA), 1994) p13. 258

are seen as the standard for measuring discernable causal impacts. In terms of the great 'methodological divide' in the social sciences between traditional positivism and the newer 'interpretive turn', Wiseberg and Scoble thus clearly fall into the former. In this work, it will be argued that a more sophisticated interpretive view of causation has the potential to solve many of the problems plaguing assessments of NGO effectiveness. It is useful, in order to conceptualise a more sophisticated interpretive view of causation, to borrow from the work of the “dispute centred” view of the impact of court decisions on society put forward by scholars in the Sociology of Law that is based on such an interpretive turn. When writing of the impact of court decisions upon society, these scholars use interpretive modes of decentred analysis that emphasises the intersubjective, interactive, relational aspects of power that both constrain and express the designs of parties locked in dispute. As with the view of law stated above, these scholars see many of the most important effects of court action as not being intended by judges, and as varying widely among different actors in different contexts.18 The “dispute centred” view sees courts as relatively peripheral to most forms of legal action. Actual judicial intervention in any social situation is seen to be the exception, rather than the rule.19 Scholars using this approach emphasise that court decisions primarily work through the reception and transmission of information, rather than the imposition of control through force.20 When such information enters into a political environment, it joins with a configuration of defined interests and values operating around institutions, doctrines and perceptions of what is possible. By refining the language of politics, this information contributes to the association of what is possible with the authority of the state.21

18 M.W.McCann “Reform Litigation on Trial” (1992) 17 Law and Social Inquiry 715 at 741. Thus, unlike van den Berg`s concept of influence, the concept of effectiveness in this work also covers unintended effects – van den Berg Op cit p31. 19 On this see generally R.E.Miller & A.Sarat “Grievances, Claims and Disputes: Assessing the Adversarary Culture”(1981) 15 Law and Society Review 525. 20 M. Galanter “The Radiating Effects of Courts” in K.D.Boyum & L.Mather (eds) Empirical Theories About Courts (Longman, New York, 1983) p126. 21 J.Brigham The Cult of the Court (Temple University Press, Philadelphia, 1987) p196. This has an interesting similarity to the 'unofficial' means of enforcement of international law discussed above, and suggests that the domestic and international legal systems are more alike than might first be apparent. 259

Most importantly, in this tradition the messages disseminated by courts do not produce effects except as they are received, interpreted and used by potential actors.22 Differently situated actors are likely to respond quite differently to judicially authorised norms as they negotiate power relations in sites throughout society. Dispossessed groups might use legal rights as resources in ways quite unintended by judges. Other such groups might try to circumvent, defy or change the court ruling.23 To summarise, the decentred view emphasises that judicially articulated norms take on a life of their own as they are deployed in social action. As Galanter has remarked, courts not only solve disputes, they prevent them, displace them, mobilise them and transform them.24 As was the case with Program Evaluation, adapting the theory to use for the measurement of human rights NGO effectiveness involves changing the direction of the analysis from government to society to a direction of civil society (through NGOs) to government (and other entities like corporations). Adapting the dispute centred theory this way reveals that it was not so much Wiseberg and Scoble's analysis of causation that was at fault, but rather they posed the wrong question. The question should not have been one of causation, but how the dialogic interaction of information between NGO and government proceeds. What is crucial is the qualitative question of how the state receives, interprets and uses human rights norms and criticisms.25 Intervention by a human rights NGO against a government on a human rights question is rare, in the same way that intervention by a court is said to be above. Like courts, NGOs work by transmitting various types of information into a configuration of defined interests and values surrounding governmental or corporate institutions, doctrines and perceptions of what is possible. Also like courts, NGO action, once completed, has a social life of its own divorced from the intentions of the NGO itself. It can alter the configuration of a whole series of government/civil society relationships in terms of bargaining chips, predictions of what might happen if legal norms were mobilised, the very formation of demands themselves, the willingness to act on demands and escalate disputes,

22 Galanter “The Radiating Effects…”Op cit p136. 23 McCann “Reform Litigation…” Op cit p733. 24 Galanter “The Radiating Effects..” Op cit p125. 260

and even to negotiate at all. When successful, NGO action changes the configuration of the possible by putting the authority of the international state system, of other states, or even the judicial authority of the state itself behind a new perception of possible political action. There are a number of reasons why information transmission has this effect. One is the fact that big organisations, such as governments and corporations, achieve the level of legitimacy they require to maintain power through control of information about themselves.26 NGO reports and legal action have the potential to undermine the ability of such organisations to control information about themselves properly. The second, and probably most important effect of NGO intervention, is that of socialising the state to internalise the norms that the NGO puts forward.27 In the case of states, with their immense power, in many ways this internalisation of norms is a much more effective consequence of NGO mobilisation of law than the instrumental effects of either international or national law. In the theory above, when governments and corporations are socialised and have internalised norms, their expectations of whether they can get away with human rights violations begin to change, and eventually leaders internalise the belief that violating human rights is wrong.28 In investigating the effectiveness of human rights DNGOs, this study will look for evidence of socialisation, and whether government expectations concerning its actions in the realm of human rights have been changed. Especially focused upon will be any evidence, direct or indirect, of the way that the target governments receive and interpret discourses from the DNGO in question. In trying to disentangle the work of one DNGO from another, or from other forces, when many DNGOs or forces are at work (what van den Berg calls

25 In this regard see also S.Cohen “Governmental Responses to Human Rights Reports: Claims, Denials and Counterclaims” (1996) 18 Human Rights Quarterly 517. 26 T.G.Poveda “The Effects of Scandal on Organisational Deviance: The Case of the FBI” (1985) 2 Justice Quarterly 237 at 238; G.Cavender, N.C.Jurick & A.K. Cohen “The Baffling Case of the Smoking Gun: The Social Ecology of Political Accounts in the Iran-Contra Affair”(1993) 40 Social Problems 152 at 158. 27 J.Risse, S.C Ropp & K.Sikkink The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, Cambridge, 1999) p11. See also H.Müller “The Internalization of Principles, Norms and Rules by Governments: The Case of Security Regimes” in V. Rittberger Regime Theory and International Relations (Clarendon Press, Oxford, 1993) p361. 28 Ibid p21ff. 261

the problem of third party causation29), evidence will be sought of government or societal reproduction of the specific signature (i.e. the precise human rights discourse) of the human rights DNGO in question. As with the solution posed above to the problem of governmental secrecy when causation was discussed, this evidence will be used as an indirect tool to determine or exclude third party causation. Overall, this methodology is a 'snap shot' method that looks, as much as possible, at effectiveness at one point in time (the time at which the study was done) rather than the evolution of a case study's effectiveness over a time period. It does this so as to obtain a current evaluation of effectiveness, rather than an evaluation of how effective DNGOs may have been historically or by reputation (especially its reputation among its supporters). The author believes that such an evaluation is both practically and in scholarly terms more relevant. The author does not deny the benefits of seeing the evolution of a DNGO's effectiveness over time, but believes that this perspective can be obtained using this method through the carrying out of multiple assessments at different points of time so as to give sequential 'snap shots' of effectiveness. There are also benefits in investigating a DNGO's legitimacy among its supporters (especially in terms of its ability to use this to acquire other resources), but the author believes that these are less than the potential benefits of an assessment of how well a DNGO has enforced human rights norms. B. Implementation of the Method I. Triangulations In this chapter, the above methodology is implemented in a particular way. With regard to triangulation, the information in the previous chapters such as questionnaires; interviews; NGO literature and websites; some participant observation; content analysis of media coverage and analysis of legal texts is combined with a vast array of other material drawn mainly from the Internet. Little of this material consists of academic writing because very little has been written on the case studies, and the self-evaluation documents of each case study have not been used because they keep them confidential. The material drawn from the Internet, such as texts published by government bodies, legal decisions and texts from other bodies such as

29 van den Berg Op cit p32. 262

lawyers' associations or publishers, is used in this chapter in two different ways. Firstly, as in Program Evaluation, some of this material expresses opinions about the subject under investigation. These opinions are triangulated in a similar way to the methods of Program Evaluation and Sociology of Law. This mainly occurs in the evaluation of agenda effectiveness for each case study, which is further discussed below. Secondly, some of this material is investigated merely in terms of its proportional frequency on a website, Internet publication or the Internet generally. This is recorded as the number of ‘hits’ on particular search engines. In other instances, it is not so much documents on the Internet that are triangulated, but rather the results of multiple search engines searches, expressed as triangulated numbers, in order to determine what exists on one site or on the Internet as a whole concerning a particular question. The information used for triangulation in this chapter was collated at a variety of dates (all of them between 2000 and 2004) as stated below. Most of the qualitative material from previous chapters was collected between September and October 2001. Most of the information from the Internet sites, however, was collected between November 2002 and February 2003. A smaller amount of information from the Internet was also collected in late 2000 and early 2004. The numbers of ‘hits’ on search engines that are given below are not intended to be understood as quantitative data. Rather, as in the Heyns and Viljoen study of the effectiveness of the UN Human Rights Committees in enforcing human rights treaties, 30 and the practice of the UN Committee on Economic, Social and Cultural Rights in assessing the adherence of state parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR),31 these numbers are meant to act as indicators of effectiveness. Such numbers are, of course, meaningless on their own, and only take on significance when compared to other results from the same source, and when combined with other data that puts them in proper context. More specifically, whether a case study is said to have a high, medium or low

30 See generally C.Heyns & F.Viljoen The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International, The Hague, 2002). 31 See generally C.Krause, A.Eide & A.Rosas Social, Economic and Cultural Rights: A Textbook (2nd revised ed) (Martinus Nijhoff, Dordrecht, 2001). 263

effectiveness in this chapter when looking at information on a website or the Internet as a whole is determined by comparing the number of ‘hits’ or mentions of a case study with the number of hits for the other case studies from the same source (and sometimes other prominent DNGOs as mentioned). This type of triangulation is mainly used in the assessment of goal effectiveness as discussed below. Instead of expressing the results of these triangulations as numbers, in this chapter they will generally be expressed discursively, that is, as indicating either low, medium or high effectiveness. The use of discursive assessments of effectiveness is obviously not as exact as the numbers used in quantitative research. Nevertheless, the process of triangulation, carried out properly should make the assessment more objective and exact than the subjective impressions of individual assessors. Because of the large volume of data gathered for this chapter not all of it could be set out to support the discursive assessments that are put forward. Instead, examples of the data used are regularly given throughout the text as well as the full Internet addresses of the sites used, so that the reader can either verify the supporting data in the text or access the websites used to repeat the investigations undertaken by the author for the time at which this text is read (or in some cases both). Important criticisms can be made of the use of data gathered from the Internet. It is, of course, true that not all documents relating to DNGOs are available on the Internet. However, it seems reasonable to argue that the volume of documentation that is available on the Internet is sufficient to properly establish indicators of DNGO performance. Furthermore, the convenience and speed of Internet access has made the collation of the vast volumes of documentation needed to evaluate NGO effectiveness possible, whereas before it was beyond the realms of practical possibility. In any one of the triangulations below it might be argued that further triangulation of other sources may have been desirable. An example of this is that, because of limitations of time and access, the author has only used two prominent national newspapers from each jurisdiction to do media content analysis.32

32 In the case of the use of newspapers, an attempt was made to compensate for these limitations by selecting major national newspapers and by attempting to balance conservative and Left-leaning newspapers. 264

The above mentioned material from previous chapters is combined with the material drawn from the Internet in a specific way. The former describes the method of mobilisation of law by a case study and does not directly assess effectiveness or even provide indicators. For this reason, as mentioned above, the material is used in this chapter on the basis both of how well the underlying rational pattern of the data confirms or does not confirm the result from the other data, and how well it explains the result drawn from other data. This use of this data is thus a triangulation in a much less direct or rigorous way. While the author included all the documentation he could find within time and money constraints, it is inevitable that further documentation could have been useful. Use of further interviews, more questionnaires, greater participant observation, archive material and more extensive analysis of media sources would have all either proved more fully or disproved the validity of the conclusions in this chapter. Further and more comprehensive research in this area thus has the potential to improve both the method used and the results obtained. II. The Dispute Centred View of Legal Effectiveness The dispute centred view of legal effectiveness is implemented in this chapter by looking for various types of communications in the publications of the institutions that each of the case studies is targeting (for all of the case studies here this is mainly the national government). In this way it is intended to ascertain both whether information from the case study is being noticed and considered, and the ways it is being interpreted and used by actors in the institution. Three types of information are sought from publications on the Internet from the institution. The Internet publications of the institution/s in question are searched, firstly, for mentions of the case studies by name, secondly, for the prominence of the issues that each case study campaigns on, and thirdly, to determine if the institution uses the same language and phraseology to describe the same issues as the case study in question. While these three indicators together are likely to show the degree to which a DNGO has influenced the discourse and socialisation of an institution, the matter is not that simple. Firstly, most DNGOs in the US do not litigate in their own name. Rather, it is the staff lawyers, local affiliates or cooperating lawyers or law firms that litigate. Because the author does not have access to the names of cooperating lawyers or law firms, this causes a degree of 265

inaccuracy in application of the method to the case studies. Such inaccuracy could be cured in future assessments through access to information such as the names of cooperating lawyers. In order to lessen this in-built inaccuracy in this work the author, in addition to the three indicators above, has triangulated the names of staff lawyers and local affiliates for all of the case studies who have staff who litigate. A second complicating factor is that many DNGOs broadcast their name and profile widely primarily in order to attract members and funds, rather than influence institutions. It is necessary to keep this in mind along with contextual factors in assessing what the frequency of these indicators might mean in terms of conclusions. III. Resource Use One important qualifying factor for the results obtained using the dispute centred view of effectiveness concerns resources. It seems to the author that a hidden premise of comparing effectiveness using this method is that the resources of each case study are at comparable levels. This is not always the case. Effectiveness in this chapter is generally a measure only of the degree to which a case study chooses effective goals and implements them. Despite this, however, it is also useful to assess how well a case study uses the resources it has to do these tasks. Thus, in this chapter, where a case study has a low level of resources but has achieved significant levels of relevant goal selection and achievement it will be mentioned that the assessment of effectiveness on its own underestimates the true effectiveness. In those cases, low levels of resources will be used in discussion to comment on the result of triangulations and, where circumstances appear to justify it, may be used to raise the discursive assessment of the case studies' effectiveness to a slightly higher level.

C. Forms of Effectiveness I. Agenda Effectiveness As explained above this work addresses two forms of NGO effectiveness. The first is agenda effectiveness. This category of effectiveness essentially focuses on whether a DNGO builds into its internal processes the ability to choose goals within its mandate of ongoing relevance to human rights 266

observance. Put another way, this category of effectiveness attempts to determine whether the internal processes of a DNGO are sufficiently self- reflexive (in the way called for by the Vienna World Conference on Human Rights33) to determine whether the pursuit of particular goals are the best course of action to achieve observance of the human rights in its mandate. An example of a DNGO choosing an issue that has a low agenda effectiveness can be seen in one of the issues that HU has chosen to litigate. In 2001 HU’s two most important recent cases before the German Federal Constitutional Court were cases concerning the issues of equal pay for all German parliamentarians regardless of their duties and the issue of crucifixes in classrooms.34 While both of these might be admirable goals generally, they were somewhat incidental to the human rights issues that are generally considered by commentators to be important within HU’s mandate. One methodological problem with investigating agenda effectiveness is the degree to which a DNGO’s official agenda goals are the goals that it actually pursues. There may in fact be an unofficial agenda that varies from that officially acknowledged. In this work agenda effectiveness is measured using the agenda for each case study as published. The information from the previous chapters as well as that acquired on the Internet is checked against the official goals to determine if such an unofficial agenda is being pursued. As will be seen below, for the case studies examined in this work no unofficial agendas were detected. It will be recalled from Chapter Three that a DNGO’s mandate is defined in this work as the set of human rights issues that a DNGO is committed to addressing and which form its reason for existence. A DNGO’s agenda, on the other hand, is defined as those issues within the mandate that a DNGO states it is addressing in its day to day work. Agenda effectiveness compares a case study’s agenda with those issues seen by commentators as important within its mandate. The purpose is to determine if the most relevant agenda has been selected within the area of the its mandate. The author could have compared the mandates of the case studies with all the issues seen as important by commentators within their jurisdictions. This was rejected, however, as really

33 See Vienna Declaration and Programme of Action A/Conf.157/23, 12 July 1993. 34 See Interview with HU, Berlin, Sept 2001 (notes in possession of the author). For the latter see BVerfGE 93, 1 (May 16, 1995) and BVerfGE 85, 94 (Nov 5, 1991). 267

investigating the establishment of DNGOs and their mandates and not the effectiveness of DNGOs already in operation. In this chapter, the question of each case study’s agenda effectiveness is investigated by triangulating all available information from the previous chapters and the Internet on what commentators consider important goals within the mandate of the case study, and then comparing this with each case study’s official agenda. If there is a high degree of overlap between these sets of information, the indication is one of a high level of agenda effectiveness, and conversely, if the overlap between the two sets of information is low, this indicates low agenda effectiveness. Therefore, in the analysis of agenda effectiveness of the case studies below a list of the human rights issues that commentators have argued are important within the case study's mandate (in no particular order) is set out and compared to a list of the case study's agenda (also in no particular order). For the first three case studies a list of the issues that the case studies do not address from the list of issues identified by commentators above is also set out in order to illustrate the types of issues that the case studies have failed to identify as important within their mandates. An investigation of agenda effectiveness may have been more accurate if the agendas of case studies had been compared not with all the issues raised by commentators within its mandate, but only the most important of those issues (each issue being ranked by frequency of mention). Due to the limits of the data on the views of commentators, however, the author could not differentiate the most important from the least important issues and has thus relied on the comparison of the all the issues raised by commentators with the agendas of the case studies. The comparison of the above lists to come to a discursive assessment of agenda effectiveness is carried out through the use of an approximate range of percentages of overlap between the two sets of data. For the case studies below these ranges are: 0 to 50%/55%= low; 50%/55% to 65%/70%=medium; 65%-70% to 100%=high. As mentioned above, these percentages are not used as quantitative data, but only as indicators. Where a result falls within the overlap between the ranges additional qualitative data (which is described) is used to make the determination as to what assessment they will be given. 268

A number of things complicate the interpretation of the comparison of those issues raised by commentators and those of the case study’s agenda. Firstly, these results need to be considered in the light of contextual material to determine the true significance of this overlap. The degree of overlap can be misleading if it is not considered in context. Secondly, DNGOs are often agenda setters for INGOs, governments and international institutions. It is thus necessary to consider very carefully whether a low degree of overlap between the above two sets of information might be because the goals of the DNGO are more relevant than those of commentators. As will be seen below, this is generally not the case for the case studies examined here but always needs to be borne in mind. Thirdly, commentators often get their information on human rights violations from DNGOs, and so the assessment of agenda effectiveness can contain an element of circularity. The author believes, however, that enough information from sources other than DNGOs is used by the commentators in this work to achieve an objective result that avoids the pitfall of circularity. II. Goal Effectiveness The second form of NGO effectiveness addressed in this chapter is goal effectiveness, which is the question of whether a DNGO is effective in achieving the goals it has chosen from the point of view of the dispute centred view of effectiveness outlined above. Here the search is for the indicators of the use of the DNGO’s name (or of affiliates and/or staff lawyers) and reproduction of its goals and language within the target institution as discussed above. This category of effectiveness is investigated by triangulations of information from either documents published on an institution's website, or from the Internet generally. The aim is to come to a reliable result in order to verify or cast doubt on commonly held ideas of whether a DNGO achieves what it sets out to do. Because each DNGO generally has different goals, different triangulations are carried out for each of the case studies. In the discussion of the case studies below a distinction is also drawn between what will be called primary goal effectiveness and secondary goal effectiveness. These terminological distinctions are useful in discussions of goal effectiveness because they allow the reader to discern which institutions the DNGO is attempting to influence in pursuing its goals. 269

Primary goal effectiveness is defined as the success or otherwise of the DNGO in question in influencing primary powerholders and decisionmakers. Secondary effectiveness is defined as the success or otherwise of the DNGO in question in influencing the actions and decisions of actors other than the primary decisionmaker which it believes influence or determine the decisions of the primary decisionmaker/s. Primary goal effectiveness can thus be achieved in two ways. What is here termed direct primary effectiveness occurs where a DNGO directly addresses primary decisionmakers and is effective in socialising them not to engage in violating the human rights in question. In contrast, what is termed indirect primary effectiveness occurs when a DNGO is successful in socialising actors other than the primary decisionmaker/s (i.e. achieves secondary effectiveness) and these actors in turn are successful in socialising the primary decisionmaker to comply with the human rights standard in question.35 In the everyday work of DNGOs the two types of primary effectiveness are often hard to distinguish. In situations where primary and secondary effectiveness results differ in situations of indirect primary effectiveness it is primary effectiveness that is focused on, rather than secondary effectiveness. This is because it is primary effectiveness by definition that case study is undertaking to achieve and secondary effectiveness is merely used by some case studies as a stepping stone to that goal. The aim of using this overall approach to goal effectiveness is to use a framework that shows the different approaches of case studies that use direct and indirect primary effectiveness without the results favouring one approach or the other. As a result of this approach, where a case study achieves secondary effectiveness but does not achieve primary effectiveness, this will be treated as a failed attempt to achieve indirect primary effectiveness and will be judged on the result for primary effectiveness alone. Conversely, where a case study achieves a high primary effectiveness but generally low secondary effectiveness it will be assumed that the case study achieved the high primary effectiveness either through direct primary effectiveness or through high

35 This is similar to ideas used in Human Rights Policy – eg Deserving Trust: Issues of Accountability for Human Rights NGOs (draft) (International Council for Human Rights Policy, Geneva, 2003) p34. 270

secondary effectiveness with actors that the author is not aware of, and it will also be judged on primary effectiveness alone. Overall Effectiveness A number of possible solutions seem possible for coming to an overall idea of effectiveness. One would be simply to state agenda and goal effectiveness separately. Another might be to take the average of the two measurements as the overall assessment. In this work, however, the method used is to concentrate on goal effectiveness as the primary measure, and to use agenda effectiveness as a way to qualify the assessment by lowering the result when there is significant disparity between the two. Goal effectiveness assessments are thus capable of being limited or qualified by agenda effectiveness assessments. This method has the commonsense advantage of concentrating on goal effectiveness, which is what is normally meant when effectiveness is considered, while allowing agenda effectiveness a significant role where this is appropriate. The question that then arises is how to reconcile goal effectiveness and agenda effectiveness where the latter limits the former. Two methods seem to recommend themselves. The agenda effectiveness could discount the goal effectiveness reading so that the overall assessment would be no greater than the agenda effectiveness. One could also proceed, however, by averaging the two assessments where agenda effectiveness is low, so that the overall assessment is in between the levels of goal and agenda effectiveness. The latter method seems to the author to be superior, because it does not place such an emphasis on agenda effectiveness that the overall effectiveness cannot be higher than it, but nevertheless manages to use agenda effectiveness to adjust the result where there is some question of whether the case study selects relevant goals.

D. The Case Studies In the discussion below the agenda for each case study will be taken to be as set out in previous chapters. The analysis of each of the case studies will consist of an examination, firstly, of its agenda effectiveness and, secondly, of its goal effectiveness. The discussion of each case study will then conclude with 271

an attempt at a summary and global conclusion as to the effectiveness of each case study in mobilising law in defence of human rights. I. LDF Agenda Effectiveness It will be recalled from above that in order to test agenda effectiveness all of the sources that the author could find on important domestic human rights issues within the relevant jurisdiction and within the case study's mandate were to be triangulated and set out in a list. This list is then compared with the list of the issues that the case study actually deals with within its agenda according to its own publications. Most of the material used to assess agenda effectiveness on questions of civil and political rights in this assessment derives from international human rights bodies and INGOs. This is mainly because of the accessibility of such information. Other smaller amounts of material drawn from the US have also been used, however, and this material largely confirms the picture drawn from the international material. Thus, while further triangulations of US material may improve the reliability of this result, the data already used suggests that this is unlikely. Human Rights Issues in the US Seen as Important by Commentators and Within LDF's Mandate Within the realm of civil and political rights the data suggests that the following issues are the most important current domestic human rights issues in the US which fall within LDF's mandate: • the death penalty and how this adversely impacts upon the African-American population;36 • ill treatment of minority persons by the police forces;37

36 United Nations Human Rights Committee Concluding Observations: United States of America Oct 3, 1995 CCPR/C/79/Add.50:A/50/40, paras 266-304 at paras 279 and 281. Human Rights Watch – Human Rights in the US p1 at http://hrw.org/us/usdom.php. (accessed approximately December 3rd, 2002); Amnesty International Report 2002 - United States of America p1 at http:web.amnesty.org/web/ar2002nsf/amr/usa/Open (accessed approx Dec 7th, 2002); Concluding Observations of the United Nations Committee on the Elimination of Racial Discrimination: United States of America Aug 14, 2001 A/56/18, paras 380-407 at para 396. Please note that the dates of access for internet sites in this chapter are more approximate than in previous chapters. Where dates are approximate they will be marked as such. Except for the sites of the case studies and other DNGOs, and a small amount of work done on August 25th, 2002, internet work for this chapter was done between Oct 15 2002 and Feb 1 2003. 37 Human Rights Committee Op cit para 282; AI Report 2002 Op cit p1; CERD Report Op cit para 394. 272

• the conditions of persons deprived of liberty in prisons (who are disproportionately of minority background);38 • the financial costs of getting elected to Congress (which disproportionately affects minority candidates);39 • political disenfranchisement on the basis of race as a result of criminal conviction;40 • the disproportionate impact of drug laws on minority communities;41 • the arbitrary imprisonment of persons of Arab descent as a result of the terrorist attack of September 11th, 2001;42 • the disproportionate imprisonment of ethnic and national minorities (especially African-Americans);43 • attacks on affirmative action programs on the basis of race.44 Because the United States is not a party to the International Covenant on Economic, Social and Cultural Rights45 information on these rights within LDF’s mandate must be gleaned indirectly from other treaty bodies, and from academic commentators and media analysis. This necessarily makes the assessment of the issues usually raised for these rights less accurate than that for civil and political rights. The issues usually raised with respect to social rights are;46 • racial discrimination in the enjoyment of the right to adequate

38 Human Rights Committee Op cit para 285; Human Rights Watch Op cit p4; CERD Report Op cit. 39 Human Rights Committee Op cit Para 289. 40 Ibid para 397; United States Civil Rights Commission Election Reform: An Analysis of Proposals and the Commission Recommendations for Improving America’s Electoral System at http://www.usccr.gov/ (accessed approx December 15th, 2002). 41 Human Rights Watch Op cit p1. 42 AI Report 2002 Op cit. 43 CERD Report Op cit para 395. 44 Ibid para 399; United States Civil Rights Commission Towards an Understanding of Percentage Plans in Higher Education: Are They Effective Substitutes for Affirmative Action? at http://www.usccr.gov/ (accessed approx December 15th, 2002). 45 Adopted 16 Dec 1966, entered into force 3 Jan 1976, 999 UNTS 3. 46 As mentioned in previous chapters the author uses the phrase "social rights" as a convenient abbreviation in this chapter for what in UN documents are usually referred to as "economic, social and cultural rights". For an example of the use of this shorthand see generally C.Krause & A. Rosas Social Rights as Human Rights: A European Challenge (Institute for Human Rights Abo Akademi University, Abo (Finland), 1994) and C.Scott & P.Maclem "Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in the New South African Constitution" (1992) 141 University of Pennsylvania Law Review 1 at 45. 273

housing;47 • equal opportunities for education and employment and access to public and private heath care;48 • disproportionate numbers of Native Americans, African-Americans and Hispanics living below the poverty line amounting to racial discrimination in the right to an adequate standard of living;49 • racial discrimination in access to food;50 and • disproportionately high death rates and short life expectancy for African Americans and other minority groups.51 Issues from the Above Lists that LDF Addresses and Does Not Address LDF addresses the following issues from both of the above lists: • the question of use of the death penalty;52 • ill treatment of minority persons by the police forces;53 • the disparate impact of drug laws;54 • the treatment of persons in prisons; 55 • the attempts to end affirmative action programs; • the question of racial discrimination in educational opportunity;56 • political disenfranchisement, mainly in the areas of redistricting and intimidation and fraud;57 • racial discrimination in the right to adequate housing; 58 and

47 B.Stark “Urban Despair and Nietzsche’s “Eternal Return”: From the Municipal Rhetoric of Economic Justice to the International Law of Economic Rights (1995) 28(2) Vanderbilt Journal of Transnational Law 185 at 186; D.R.James “The Racial Ghetto as a Race-Making Situation: The Effects of Residential Segregation on Racial Equalities and Racial Identity” (1994) 19 Law and Social Inquiry 407 at 408; N.Dale “Croatia’s Casualties, Bosnia’s and Ours” New York Times Jan 16, 1994 at 17. 48 CERD Report Op cit para 398; Stark Op cit p188. 49 Human Rights Committee Op cit para 291; R.Pear “Poverty 1993: Bigger, Deeper, Younger, Getting Worse New York Times, Oct 10, 1993 at D5; M.E. O’Connell “On the Fringe: Rethinking the Link Between Wages and Benefits”(1993) 67 Tulane Law Review 1421 at 1423; “Report on Black-White Disparities Is Mixed” Washington Post July 22, 2002 pA3. 50 Stark Op cit p189; “Hunger in the Nation’s Capital” Washington Post July 17, 2002 Page A22; J.Blum “District Lags in Distributing Extra Meals” Washington Post July 15, 2002 pB3. 51 Ibid p198. 52 LDF 2000 Annual Report Op cit p14. 53 Ibid. 54 Ibid p15. 55 Ibid p14. 56 Ibid pp7-10. 57 Ibid p11ff 58 Ibid p19. 274

• racial discrimination in the right to work through employment discrimination litigation.59 The areas internationally identified as problems that fall within LDF's mandate and that it does not address are: • the question of campaign finance reform, in so far as it impacts on the ability of minority candidates to run for office; • the effect of criminal conviction leading to the loss of voting rights in various states; • the discriminatory arrests of persons of Arab descent in the name of national security; • the disproportionate imprisonment of minority persons; • discrimination in enjoyment of an adequate standard of living; • the right to food (as result of welfare law inadequacy); • unfair wage laws; and • discrimination in the adequacy of preventative health care that could alleviate minority short life expectancy. LDF declared an intention to the author to expand its activities into the realm of the disproportionate imprisonment of African-Americans and the higher incidence of minority poverty,60 but has not as yet done so. Comparing the issues seen by the consensus of commentators as being of importance within LDF’s mandate and the issues that LDF addresses according to available information, LDF addresses nine out of sixteen issues and has evinced an intention to address two more.61 It may be that LDF does not address one or two of the issues above because of specialisation within the American advocacy network causing other DNGOs taking these issues up. However, evidence in the literature on other American DNGOs does not support this and so this explanation seems unlikely.62 On the basis of the ranges gives above LDF’s agenda effectiveness thus appears to be medium, but also to be very close to the range for low. The

59 Ibid p18. 60 LDF Interview Op cit.. 61 Thus, at present (that is excluding the two areas LDF intends to expand into) there is currently only a 56.25% overlap between issues LDF addresses and the issues generally seen to be the most in need of addressing within its mandate. 62 One might think, for example, of the ACLU addressing the imprisonment of persons of Arab descent but this still leaves the figure at 64.28%. The ACLU, however, does not seem to be pursuing such actions – see http://www.aclu.org . (accessed Dec 25, 2003). 275

author has decided the maintain LDF’s agenda effectiveness as medium, as it was clear in interview that LDF was aware of the need to move away from the approach exemplified by the Brown case63 and to deal with new issues such as those raised by the commentators.64 Material from Previous Chapters The information set out in the previous chapters on LDF both seems to correlate with the above result and to explain it by putting it into an interlocking pattern of meaning that shows an underlying rationale. As mentioned in Chapter Two, LDF's tactics focus overwhelmingly upon the use of impact litigation in the federal courts on the issue of racial discrimination against African-Americans. One of the consequences of this tactical stance is that, as the US Bill of Rights does not include social human rights, LDF does not have constitutional norms (apart from general non-discrimination provisions) available to address these human rights violations in the courts. It is thus not at all surprising that LDF does not address violations of the right to an adequate standard of living, the right to food and the right to health. This tactical stance also has the effect of focusing LDF's attention upon the African-American community. This may explain why LDF has not addressed the alleged discriminatory deprivation of freedom from arbitrary deprivation of liberty of Arab Americans. What is more surprising is that LDF has not yet attempted to create a similar organisation to its own to address discrimination against Arab or Muslim Americans as it did with MALDEF for discrimination against the Hispanic community. This may, however, be due to the relative novelty of the political atmosphere after September 11th 2001 and does not exclude the possibility that LDF could not take such a course in the future. It was also argued in Chapter Two that in its tactical stance LDF prefers the need for legitimacy over the need for rational adaptation to its environment. This bias towards legitimacy gives LDF the tendency to follow the domestic human rights agenda that already exists in the local legal and political culture, rather than create a new one to fit new needs. As the domestic human rights agenda of those from whom it seeks legitimacy tends to be those of the past and not always focused on the most relevant goals, this has inhibited LDF’s agenda effectiveness. The conclusion for LDF in Chapter Two that its tactical

63 Brown v Board of Education 347 US 483 (1954). 276

stance has inhibited its effectiveness thus applies as much for agenda effectiveness as for goal effectiveness. The results in the triangulation above also correlate with the conclusions on LDF’s structure and internal culture in Chapter Three. As discussed in Chapter Three, LDF has a centralised, mechanistic and hierarchical structure that is underresponsive to the environment. That kind of structure is likely to produce a lower agenda effectiveness, because a DNGO must have a degree of information exchange with, and responsiveness to, the environment to be able to effectively review the human rights relevance of its goals. Such a centralised structure also tends to swamp the leadership with work and inhibit their ability to be self-reflexive enough to constantly review the relevance of the goals in the agenda. It was also mentioned in Chapter Three that LDF's internal culture has a view of domestic human rights that strongly draws upon the nationalist path to human rights enforcement in the US. This is another explanation for why LDF does not address human rights such as the right to an adequate standard of living or the right to health. On the other hand, this culture, having a laissez faire aspect to it, also seems to a degree to encourage and support creative ideas. It appears that it is this aspect of LDF's organisational culture that is mainly responsible for having raised its agenda effectiveness from low to medium. The above conclusions on agenda effectiveness also correlate with the data and conclusions about LDF's resources. It will be recalled from Chapter Four, that LDF's resource base has a small number of both types and sources of resources. This results in a loss of tactical freedom as a result of the influence of its donors. LDF tries to manage the relationship with its donors to give it more tactical freedom, but is inhibited from going beyond the culture it shares with them. This shared culture does not include many of the issues that commentators consistently say are important within LDF's mandate. These influences may thus be another explanation as to why LDF has only a moderate level of agenda effectiveness. The influence of US taxation laws on LDF is an additional explanation as to why it has the level of effectiveness it does. In order to maximise the amount of money capital it can amass for the purpose of sustaining litigation, LDF must

64 Interview with LDF, New York, Sept 2001 (notes in possession of the author). 277

follow the injunction of US tax law not to combine litigation with other forms of advocacy work. This in turn has the effect of focusing it on litigation, and especially those matters that it believes it can litigate reasonably successfully under the US Constitution and US civil rights statutes. US tax laws thus ultimately steer LDF away from advocacy in favour of social rights, and towards litigation of civil and political rights. This inhibits LDF once again from focusing on all the relevant human rights goals within its mandate. Looking at this material overall, it can thus be said that the qualitative material in the rest of this work correlates well with the conclusion drawn mostly from electronic material above, both in terms of pattern and conclusion. The logical consistency of conclusions is especially telling, as it points to an underlying rationale for all of the correlated data. The conclusion that LDF has an effectiveness that is in the low part of the medium range thus seems to be a quite reliable conclusion. The result of the triangulations above could perhaps have been made more reliable if they had included texts concerning the views of the African-American community itself as to what the major human rights violations against it currently are. Goal Effectiveness As can be seen from Chapter Two on tactics, LDF primarily litigates in the federal courts and (informally and to a lesser extent) lobbies the Executive and Legislature. The analysis of secondary goal effectiveness thus revolves around the extent to which LDF is able to achieve its goals by using the federal courts as institutions, while its primary goal efficiency revolves around the extent of its influence through these institutions on the actions of the federal Executive.

Secondary Goal Effectiveness Concentrating first on the federal courts as institutions, a process of triangulation of seven databases for the US Supreme Court and the US Courts of Appeal on the mention of LDF by name suggests that in the last ten years LDF has not played a significant part in setting the domestic human rights agenda of these courts (either compared to other civil rights organisations or 278

absolutely).65 In a triangulation of four of these databases for the names of LDF staff lawyers in New York, Washington and Los Angeles three of the databases confirm this result of low effectiveness and one does not.66 This suggests that there is some doubt about this conclusion. This uncertainty could only be solved by triangulating a larger number of sources of data. The common factor that can be obtained from all these databases when triangulated is that among the major players in US domestic human rights 67 LDF is generally the DNGO that has the fewest hits in the documentation of the US Supreme Court and US Courts of Appeal. Furthermore, the closer to the present the database material is, the less prominence LDF has. Of course, the author was not able to triangulate the names of cases taken by cooperating lawyers and this weakens the result. Nevertheless, the above electronic documents generally suggest that LDF is not having a significant effect on the agendas of the federal courts and has not altered their perceptions about domestic human rights issues. This conclusion is reinforced by triangulating databases on the types of cases that are being dealt with by the US federal courts, and then comparing the agenda of these courts with LDF’s agenda. When looking at LEXIS it becomes abundantly clear that the agenda of the Supreme Court is currently predictably dominated by economic disputes, with property, contract, tort and internal revenue all leading to over one thousand hits. It is also clear that the issues that LDF litigates generally have a slightly lower profile than other civil rights issues the Supreme Court considers. Interestingly, however, the Court uses similar phraseology to that which LDF uses. This similarity, however, can be explained on the basis of LDF's past success in influencing the Court

65 These seven databases are: the US Supreme Court site, once for Supreme Court decisions and one for briefs (http://www.supremecourtus.gov/); LEXIS under All Federal Courts (http://www.lexisnexis.com.au); Findlaw under both the Supreme Court and All Circuit Courts (http://www.findlaw.com); Infosynthesis and the Cornell Legal Information Institute for Supreme Court Decisions (http://www.supct.law.cornell.edu/supct). All of these databases accessed on approx Dec 2, 2002. 66 The names of staff lawyers at LDF offices were drawn from the LDF's 2000 Annual Report. The four databases were the US Supreme Court site, Findlaw for the Supreme Court and Circuit Courts and Lexis. These databases were accessed on September 2nd 2003. These were the only databases from among those seven databases in the last footnote that contained the names of counsel in court cases. All of these showed LDF as having a low mention of its staff lawyers in these courts, except Lexis, which showed a proportionately very high number of mentions. 67 It will be recalled that the major civil rights players in the US are the ACLU, NAACP, LDF and LCCRUL - see S.L.Wasby Race Relations in an Age of Complexity (University of Virginia Press, Charlottesville (VA), 1995) p57. 279

agenda and may not signal current effectiveness. The overall picture this appears to give is that LDF’s issues have only a medium level of prominence compared to other civil rights issues. With regard to all other federal courts, on LEXIS a similar pattern emerges. The data tends to suggest a marginally greater focus on LDF’s agenda issues in the lower federal court, but the existence of a similar pattern. The Legal Information Institute database at Cornell, by way of contrast, tends to suggest that LDF's agenda issues are at about the same level as other civil rights issues on the court’s agenda. The reason for this discrepancy might be that the Cornell database contains more historic cases than LEXIS does. Looking at other forms of secondary effectiveness, it becomes apparent that currently LDF has a very low media profile. In the "New York Times" from January 1st 1996 to August 25th 2002 there were no articles specifically on LDF or discussing it by name.68 Similarly, in the "Washington Post" from August 2000 to August 25th 2002 there also were no articles either on LDF or discussing it by name.69 In contrast, the civil rights issues in LDF’s agenda feature prominently among the civil rights treated by these two newspapers. It thus seems that LDF is not currently in the public eye very much, even though the major American newspapers reflect its agenda and to some degree its language. Once again it seems arguable that these agenda and language similarities stem from LDF's success in the past. In contrast to these major newspapers, LDF is prominent in databases of law review articles. This is especially shown by a search for LDF by name in LEXIS under Law Reviews Combined70 and in the Index to Legal Periodicals.71 There thus still appears to be a great deal of interest within legal academia in LDF's work both current and historical. Primary Goal Effectiveness The above triangulations of court documents tend to suggest that LDF does not currently significantly affect the agenda of either the Supreme Court or

68 See http://www.nytimes.com/ (accessed Aug 25, 2002). Different time periods have been used for each newspaper because the search engines on the archives of the Internet sites for each publication only allow searches for some previous years. To improve the accuracy of results, the author has attempted to search as many previous years as the Internet site of the publication will allow. 69 See http://www.washingtonpost.com/ (accessed Aug 25, 2002). 70 See http://www.lexisnexis.com.au (accessed approx Nov 19, 2002). 71 Taken from the paid databases at http://www.library.unsw.edu.au (accessed approx Nov 10, 2002). 280

lower federal courts. As a result, it currently does not significantly change the expectations of these institutions about domestic human rights issues. One would anticipate that as a result, LDF would have little current effect on the expectations of either the Legislature or Executive, and an examination of US government sites tends to confirm this impression. The results of triangulations for the Legislature appear to be mixed. At the site of the US House of Representatives, LDF appears to be mentioned by name less than the other American case studies.72 In contrast, LDF's main agenda issues seem to be prominent in the US House of Representatives' agenda, and are discussed using phraseology similar to that of LDF.73 The same is true for both measures in the Senate.74 Once again, however, LDF's phraseology may be due to previous successes and may not indicate present influence. Similarly, at the site covering the Federal Executive, LDF gets fewer hits than the other American case studies75 In this case, however, the Executive’s agenda also seems to be at variance with that of LDF.76 LDF has been able to lobby the legislature to achieve legislation such as amendments to the Voting Rights Act in 1983 and the passing of the Civil Rights Restoration Act in1991.77 As its name appears very infrequently, it appears, however, that Congress is favourable to these issues without any major recent input from LDF. Much of the similarity of phraseology between LDF and Congress can be attributed to the historic effect that LDF has had on these issues in the past. LDF thus does not appear to currently be using the law successfully to alter the perceptions of the US Legislature or Executive about what can be achieved in the field of domestic human rights and its effectiveness on these institutions is thus low. Material in the Previous Chapters

72 See http://www.house.gov (as accessed approx Nov 15, 2002). 73 The same issues as with regard to the federal courts above were put into the search engine of the US House of Representatives site. 74 See http://thomas.loc.gov/home/ (as accessed approx Nov 22nd, 2002). 75 See http://www.firstgov.gov/ (as accessed approx Nov 20, 2002) It is difficult to determine the agenda of the Executive using this method as the search engine at this site generally only returns 1000 documents and this is the same for virtually all civil rights issues. 76 See http://www.whitehouse.gov. (as accessed approx Nov 24, 2002). The number of documents containing the main LDF issues are much lower in number than for other major issues. 77 Questionnaire Completed by LDF, 2001 (original in possession of the author) p17. 281

As with the discussion on agenda effectiveness above, the material drawn from the Internet and databases needs to be triangulated with the data and conclusions in the previous chapters in order to come to more reliable results. If one looks at the discussion of LDF in Chapter Two on tactics, it appears that the data there correlates with the triangulations above. It will be recalled from that data that LDF was avoiding all litigation save that which was necessary to keep the courts open to litigation in a tactic of waiting for better litigating conditions. This suggests that it is the courts and Executive that have changed LDF’s expectations, and not the other way around. It will also be recalled from Chapter Two that LDF favours the gaining of legitimacy over rational adaptation to the environment, and it was conjectured that this would lower its goal effectiveness. This appears to be borne out by the above data. LDF's concentration, due to its need for legitimacy, on the federal judiciary in a period when that forum is often hostile explains the low goal effectiveness results above. As mentioned for the assessment of LDF's agenda effectiveness, the existence of a centralised, mechanistic and hierarchical structure makes LDF bureaucratic and underresponsive to its environment. This assessment in Chapter Three explains why LDF does not focus more on, and do better in, Congress, the Presidency and the media. The institutional view in Organisation Theory also helps explain why LDF has a less than perfect goal efficiency. Because LDF uses aspects of its structure to 'sell' itself to the outside world, this creates a reluctance to change structure in order to increase effectiveness, because this might have the result of making LDF less marketable to the outside world. LDF's internal culture, as discussed in Chapter Three, also has the effect of explaining this lack of goal effectiveness. LDF’s self identification as a "civil rights law firm", and that of its lawyers as "civil rights lawyers", when combined with a view that sees human rights as law and not politics, has the effect of focusing LDF culturally on the federal courts regardless of how ineffective it might be to litigate there. LDF's resource acquisition approach, relying as it does on a small number of sources of resources and a small number of types of resources, also seems to explain the limitations on LDF’s effectiveness. The reciprocal 282

relationship that LDF has with its individual and institutional donors, as described in Chapter Four, limits its tactical freedom and creativity. This is a powerful force that restrains it from making tactical decisions which might be creative enough to raise its goal effectiveness. The types of resources that are available in the Third Sector also play a role. Because of the provisions of US taxation law it is easier to fund litigation than other tactics such as lobbying or policy work from donor funds. This has the natural tendency to make LDF favour litigation, even if it is less effective, because it is a tactic for which resources can be more easily found. With regard to Chapter Four, it is also important to note that LDF has accumulated a very large pool of resources. The argument that LDF might be restrained from achieving the goals it has set for itself by an absolute lack of resources is thus particularly unconvincing in this case. The data and conclusions from the previous chapters thus are consistent with the conclusion reached from the data taken from the Internet and databases. As with agenda effectiveness they show an underlying pattern of meaning that explains this data. LDF's results for goal effectiveness thus seem to be reasonably reliable. This result could have been more reliable by the triangulation of more court, Congressional and Executive documents than the author could locate and also more media sources. While LDF's agenda is present at all levels of government and within civil society as a result of past success, it does not appear to be able to further its agenda.78 The result has been that LDF currently has little influence on the expectations and agendas of all branches of the federal government and is mostly known in civil society for its historical role. A complicated matrix of mainly internal factors seems responsible for this result. LDF’s secondary goal effectiveness thus appears to be quite low and this in turn has led to a low primary goal effectiveness. LDF’s overall current goal effectiveness on the data above thus would seem to be quite low Overall Effectiveness and Conclusion As mentioned above, coming to some overall picture of LDF’s effectiveness is complicated by the relative incommensurability of agenda effectiveness and goal effectiveness results. It will be recalled from above that 283

the method used in this work to reconcile these results concentrates on goal effectiveness results and uses agenda effectiveness results to qualify them when agenda effectiveness results are low. Thus, goal effectiveness results are qualified when the goals selected are found not to be relevant using the method employed in this work. Using this method, LDF appears to have mixed effectiveness in selecting the right goals to enforce human rights within its agenda but is often not effective in achieving the goals it sets itself. As a result, the measurement of LDF's overall effectiveness on the basis of the above method is quite simple as it can be read from the goal effectiveness alone. Because this is low, LDF's overall effectiveness must be assessed as low. Given, as mentioned in the introduction, that LDF is one of the iconic models for a DNGO around the world, this result is both somewhat surprising and enlightening. What it tends to suggest is that such models have a more historical than contemporary basis. It also tends to suggest that the transplantation of such models to other jurisdictions may have been promoted on the basis of incorrect presumptions about how they operate and how effective they can be. II. LCCRUL Agenda Effectiveness Since LCCRUL's agenda is virtually identical to that of LDF, the issues said by commentators to be important in its agenda include all of the issues set out for LDF's agenda effectiveness above. They will thus not be repeated here. The main difference between the agenda goals of the two is a concern at LCCRUL for the rights of African American women.

Human Rights Issues in the US Seen as Important by Commentators and Within LCCRUL's Mandate (Excluding those in Common With LDF) Among the issues raised by commentators with regard to women’s human rights in the United States, in addition to the issues raised for LDF above, are (in no particular order):

78 LDF admits that the ideological battle in American society has not been going its way – LDF Interview Op cit. 284

• disproportionate poverty among women;79 • attacks on affirmative action programs for women;80 • disproportionately low rates of access to health care;81 • attacks on reproductive rights;82 • violence against women;83 • the generally low wages paid to women;84 • lack of inclusion of women in positions in public life;85 • the adverse affect of asylum and immigration laws on women;86 • levels of sexual assault against women;87 • mistreatment of women prisoners;88 and • lack of policies directed to the girl-child.89 Issues that LCCRUL Addresses and Does Not Address from the Above Lists LCCRUL addresses the following from both the list in common with LDF and the list above: • attacks on affirmative action programs; • racial discrimination in access to education;90 • partly the question of the disproportionately high death rates among minority persons and low life expectancy;91 • racial discrimination in the provision of housing;92 • issues of racial discrimination in the right to work; and

79 U.S. Women Connect Report Card on US Federal Government Action for Women’s and Girl’s Rights and Empowerment at http:www.uswc.org/reportcards.html (accessed approx Dec10, 2002); Women’s Rights Project Annual Report 2001 (American Civil Liberties Union, New York, 2001) p15. 80 Ibid; Website of the National Organisation for Women (NOW) at http://www.now.org/issues/ (accessed approx Dec15, 2002). 81 Ibid. NOW Op cit; US Response to UN Questionnaire on the Implementation of the Beijing Platform for Action at http://secretary.state.gov/www/picw/beijing/questionnaire.html. p3. (accessed approx Dec18, 2002). 82 Ibid. NOW Op cit; ACLU Op cit p35. 83 Ibid; NOW Op cit; ACLU Op cit p11; US Op cit p4. 84 Ibid. 85 Ibi; US Op cit p7. 86 Ibid; ACLU Op cit p42. 87 Ibid. 88 Ibid; ACLU Op cit p21; US Op cit p6. 89 Ibid; US Op cit p7. 90 LCCRUL Annual Report Op cit p12. 91 Ibid p17. 92 Ibid p21. 285

• the right to an adequate standard of living.93 The issues raised by commentators that LCCRUL does not generally address are: • the discriminatory consequences and the existence of the death penalty; • ill treatment of minority persons by police forces94; • ill treatment of minority persons in prison; • the costs of being elected to Congress; • the impact of drug laws on minority communities; • the arrest of persons of Arab descent after the September 11th attack; • disproportionate imprisonment of minorities; • loss of the vote by convicted persons and its effects on minority communities; • discrimination in access to health care; • some discrimination in enjoyment of the right to an adequate standard of living (eg social security and fair wages); • discrimination in access to food; and • part of disproportionate death rates and lower life expectancy (eg preventative medicine issues). LCCRUL dealt with all the women’s rights issues set out above except two.95 It thus addresses approximately fourteen out of twenty seven issues96 identified above as matters of concern within its mandate, and has evinced an intention to address two more.97 This rough guideline suggests when compared to the ranges above LCCRUL's agenda effectiveness is low, even though it is close to that of LDF. As LCCRUL’s result is close to the cut off point between

93 Ibid p31. 94 Some of the local Lawyers’ Committees seem to addressed this issue in the past. In 1983 the Boston Lawyers’ Committee for Civil Rights Under Law was addressing this issue – H.R.Jones “The Boston Lawyers’ Committee for Civil Rights: A Profile” (1988) May 32(3) Boston Bar Journal 4 at 4. 95 These are the issues of violence against women and policies for the girl-child - See Voices of African American Women in the United States of America: The Unkept Promises of the Platform for Action (LCCRUL, Washington DC, May 2000). 96 The author counted the environmental work of LCCRUL as a half coverage of an issue so the true tally is five and one half. This still means that LCCRUL has only a 51.85% overlap between the issues it addresses and the issues as set out above. 97 These are criminal justice issues and poverty issues – LCCRUL Interview Op cit. Addressing these issues would greatly improve the degree of overlap between LCCRUL’s agenda and the issues set out above. 286

low and medium effectiveness the author examined qualitative materials. The author felt, however, that the low consciousness of new issues that LCCRUL displayed in interview and in the questionnaire confirmed the above result.98 LCCRUL may not address some of the criminal justice issues because other major players such as the ACLU and LDF are concerned with them. To the author this seems unlikely, however, as the websites of other US DNGOs showed no sign of this.99 It may be that the list of issues generally considered important with regard to women’s rights in the US are too general and do not address the issues important to African-American women. This is a problem with the categorisation of human rights information and makes the result less reliable. Nevertheless, this triangulation suggests that LCCRUL appears to have a low agenda effectiveness. Information from Previous Chapters The information in the previous chapters on LCCRUL appears largely to correlate with the above assessment, and to explain it by placing it in an interlocking pattern of meaning. In Chapter Two on tactics it was remarked that LCCRUL's tactics show great similarity to those of LDF, and that they share a marked preference for gaining legitimacy over rational adaptation to the environment. As with LDF, this preference for legitimacy appears to have the effect of making LCCRUL favour agendas already in existence in the domestic human rights culture, rather than creating a new agenda with more relevant human rights goals. Unlike LDF, LCCRUL is also culturally influenced by its elite partner law firms. This appears to have the effect of encouraging it to adopt human rights goals that would be acceptable to the culture within these elite law firms (which appears to largely be a nationalist view of human rights enforcement), and to restrain it from positing more relevant human rights goals. The surprising aspect of the results for agenda effectiveness above, when compared to the material in Chapter Two, is that LCCRUL's greater cultural commitment to forms of advocacy other than litigation, has not had the effect of inducing it to revise its procedure for selecting an agenda so that more relevant goals are selected. This may cast some doubt upon the accuracy of the

98 Interview with LCCRUL, Washington DC, Nov 2001 (notes in possession of the author); Questionnaire Completed by LCCRUL 2001 (original in possession of the author). 99 Such as the website of the national organisation of Women (NOW) – see http://www.now.org (accessed approx Nov 24, 2002). 287

above result. To the author, however, it seems likely that it is the conservative internal culture of LCCRUL, as described in Chapter Three, may have overridden the positive effects that its more creative tactics might have given it. When understood in this light it is not at all surprising that LCCRUL's agenda effectiveness might be even lower than that of LDF. When the above results on agenda effectiveness are compared to the material in Chapter Three on structure they also appear to show some ambiguity. LCCRUL's national office has a centralised, mechanistic hierarchical structure, but it also has affiliates and networks with law firms that lessen the underresponsiveness of this design to the environment. One would expect from this that the process for choosing human rights goals should show greater responsiveness to the environment and lead to the selection of more relevant human rights goals. The materials in Chapter Three seem to supply two possible explanations as to why this may not have occurred. Firstly, LCCRUL's organisational culture is highly influenced by the culture of elite lawyers in the US and their views on domestic human rights. This appears to have the effect of inhibiting LCCRUL from selecting relevant human rights goals that are not part of the worldview of this common culture. Secondly, and to some degree a variation on the same theme, LCCRUL uses its agenda goals to sell itself to potential supporters and partner firms in the way described by the institutional view in Organisational Theory. This means that it is likely to choose its goals according to whether these groups would approve of them, rather than whether they are highly relevant or less relevant goals to pursue. The cumulative effect of these two factors may explain why LCCRUL's structure alone has not led to the selection of more relevant human rights goals, but the picture is still somewhat ambiguous. The material in Chapter Four on resources seems to present a less ambiguous picture. It may thus be the controlling variable in determining why LCCRUL has a low agenda effectiveness, if that is indeed the case. Like LDF, LCCRUL accumulates a small number of types of resources from a small number of sources. As with LDF, this has inhibited its freedom of movement and creativity in tactics. The difference compared to LDF, however, is that LCCRUL manages relations with partner firms rather than Foundations or individual donors. This reciprocal relation between LCCRUL and its suppliers of 288

lawyers and capital seems the most convincing explanation to the author as to why LCCRUL’s agenda effectiveness may be low. If this is correct, it is LCCRUL's resource acquisition approach and its internal culture that appear to have been the crucial variables in determining its agenda effectiveness. Looking at this material overall, there seems a substantial, but not strong, correlation between the materials in the rest of this work and the triangulation above. While the material can be used to explain the results, this is not the only construction that could be put on them. It may be that the material from the previous chapters suggests that LCCRUL’s agenda effectiveness results should have shown a higher effectiveness. It may also be that the results demonstrate a phenomenon where internal culture and resource acquisition sources are the primary determinants of agenda effectiveness. These problems with logical consistency seem to show that this result is less reliable than that for LDF. The result could have been made more reliable by a greater number of triangulations of data and by the inclusion of material from the African American community on human rights violations against them as mentioned above for LDF. In the case of LCCRUL, the material on women’s rights is hampered somewhat by the fact that the US has not ratified CEDAW,100 and that there is little other commentary from international human rights institutions on observance of women’s rights in the US. Inclusion of this sort of material would have improved the reliability of the result.

Goal Effectiveness An analysis of LCCRUL's goal effectiveness presents quite a different picture than that above. Apart from a commitment at the international level to the rights of minority women, LCCRUL's agenda is almost identical to that of LDF. In order to address the goal effectiveness of LCCRUL, therefore, the question of the effectiveness of LCCRUL's women’s rights work will be addressed first. The rest of the agenda will then be addressed using some of the information set out above for the assessment of LDF. For LCCRUL's domestic work, the organisation not only litigates, but also emphasises lobbying in Congress and the Executive more than LDF. This is, therefore, reflected in the assessment below.

100 Is has signed CEDAW, but has not ratified it. 289

Secondary Goal Effectiveness With regard to LCCRUL's work at the Fourth World Conference on Women and its follow up (which has been its main focus with regard to international women’s human rights to date) large amounts of information do not seem to exist. LCCRUL was officially accredited as an NGO at Beijing.101 It was thus mentioned by name. It addressed three workshops at the NGO Forum at Beijing in its own right.102 It did not, however, give a statement in its own right to the plenary of the Conference. It may, however, have fed information to an INGO that did make such a statement.103 While LCCRUL's input seems to have been presented to other DNGOs, it does not seem to have had a high profile in the deliberations of the Conference.104 It also seems to have had a small influence on the agenda and language of the Conference on this topic. Looking at the Conference as an institution, these results suggest that the LCCRUL had a medium effectiveness in its work there. This would suggest, given that this is LCCRUL’s major intervention into this area of work, that it currently has a medium level of success in its international work on women’s rights overall. As LCCRUL has only made one major intervention in this area of work, however, and as information is sparse on the progress of this work, the above data seems not very reliable. The main factor suggesting that the data may be reliable despite the dearth of data is that this result is roughly the same as that of the triangulations below. With regard to LCCRUL's domestic work, the same database triangulations for the US Supreme Court and other federal courts as were done for LDF by name suggest that the civil rights agenda within the courts mirrors that of LCCRUL. It has the highest profile in terms of mention by name amongst the American case studies and its profile approaches that of the ACLU (which, although not a case study, is useful as a comparison). LCCRUL thus seems to

101 See http://www.undp.org/fwcw/dawngo.html (accessed approx Jan 5, 2003). 102 See http://www.iisd.ca/linkages/4ww/ngoevent.pdf. (accessed Jan 5, 2003). These seminars were on peace and human security, human/legal rights and health. 103 http://www.undp.org/fwcw/dawfwcw.html (accessed approx Jan 7, 2003). 104 A search of one major site on the Beijing Conference gives 0 hits for LCCRUL (this is the only site on the subject that can be searched) – see http://www.iisd.ca/linkages/women.html (accessed approx Jan 7, 2003). 290

have a high effectiveness here, and the courts appear to consider and react to its views regularly. A triangulation of the names of all of the city-based Lawyers' Committees in addition to the national name strongly confirms this result.105 A further triangulation of the names of staff lawyers in both the national office and the city-based Lawyers' Committees, however, throws some doubt on the matter. In these triangulations it proportionately appears less often.106 In addition, as was remarked above with regard to LDF and its cooperating lawyers, those cases run by LCCRUL's cooperating law firms to whom cases are 'farmed-out' could not be included in this triangulation and thus probably make it less reliable. It thus may be that this triangulation overall is not highly reliable. However, the language used in these courts on certain issues is similar to the language LCCRUL uses for the same issues. This suggests that the triangulations above showing effectiveness within the courts may be correct. The indirect effects of LCCRUL’s work, as viewed through major newspapers and legal journals are also interesting. LCCRUL had a higher media profile than LDF, but gets less attention from legal academia for its work. Whilst in the "New York Times", like LDF, there was not an article mentioning LCCRUL between 1995 and 2002,107 it had the highest profile of all the case studies in terms of mention by name in the "Washington Post".108 With regard to mention of issues, LCCRUL had the same low profile in the media as LDF does on the issues that they share. With regard to the women’s rights issues that LCCRUL pursues, however, it had a much higher profile in the "New York Times", and a slightly higher profile in the "Washington Post" than for the issues it shares with LDF. These mixed results suggest to the author that LCCRUL has

105 The following names were triangulated using the seven databases: The Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association Inc; The Chicago Lawyers' Committee for Civil Rights Under Law Inc; The Colorado Lawyers Committee for Civil Rights Under Law; Public Counsel (Los Angeles); Public Interest Law Center of Philadelphia; The Lawyers' Committee for Civil Rights of Texas; The Lawyers' Committee for Civil Rights of the San Francisco Bay Area and The Washington Lawyers' Committee for Civil Rights and Urban Affairs. 106 The author took the names of the staff lawyers from the websites of the city-based lawyers' committees that can be accessed via the website of the national LCCRUL on September 2nd 2003 - see http://www.lawyerscomm.org. Not all of the websites, however, contained the names of staff lawyers. The Colorado, Philadelphia and Washington lawyers committees in the list in the previous footnote did not have staff lawyers on their sites except for their directors. For this reason, no staff lawyers for these committees, except their directors, were included in these triangulations. This is thus a significant source of inaccuracy for this triangulation. 107 Jan 1st, 1996 to Aug 25th, 2002 – see http://www.nytimes.com/ (accessed Aug 25, 2002). 108 See http://www.washingtonpost.com (accessed Aug 25, 2002). 291

a higher media profile than LDF, but that its effectiveness with the media overall might be characterised as medium. A search of law review articles using LEXIS and INDEX to Legal Periodicals for mention of LCCRUL by name revealed that it is mentioned much less than LDF.109 Although a small number of databases were triangulated, there seems to be less academic interest in LCCRUL than in LDF. This result may be explained by the fact that LCCRUL's agenda and methods are less of a legal innovation than those of LDF.110 As a result, academics would find it harder to distinguish LCCRUL from other organisations and might be less attracted to writing about it. Primary Goal Effectiveness The triangulations of the databases used for LDF for assessing Congress also suggests that the agenda within Congress reflects that of LCCRUL, and that it is often mentioned by name there. As LCCRUL’s effectiveness in the Legislature is thus high it would seem that it has a greater effect on the Legislature than the other American case studies. LCCRUL is mentioned by name within the Executive even more frequently and thus appears to have a high effectiveness there also.111 A plausible hypothesis explaining this result would seem to be that it attempts to gain influence with administrative agencies in order to gain better enforcement of existing laws as an alternative course to fighting resistance within the administration to a furthering of its agenda. Overall, LCCRUL’s agenda appears to be prominent at most levels of government. This high level of overall goal effectiveness appears to be mainly due to its high secondary effectiveness in the courts and its primary effectiveness in lobbying Congress and the Presidency. Information From Previous Chapters Triangulating the above data with the material in the previous chapters, a consistent pattern emerges. With regard to the material in Chapter Two on tactics, LCCRUL’s greater cultural commitment to lobbying, policy and international work is consistent with the high estimations for effectiveness in

109 And also less than CCR. See below. 110 Or, indeed, that of CCR as well. See below. 111 This would seem to be confirmed by the search of White House policies done above for LDF’s agenda. 292

these areas in the triangulations above. One would expect that a greater commitment to rational adaptation to the environment should lead to better effectiveness. The one surprise, perhaps, is that the data in Chapter Two suggests that while LCCRUL focuses more on these other tactics, it does not actually do more of this work than LDF. One would expect that a greater amount of this type of work would have to occur in order to get the results above. Thus, it may be that the triangulations above suggest that LCCRUL actually does do more of this work than the data in Chapter Two would suggest, or that a greater volume of this type of work is not necessary for it to be effective. The results above are also consistent with the data and conclusions in Chapter Three on structure. The greater responsiveness of LCCRUL's structure to the environment should give it the information it needs to become more effective, and this appears to be what has occurred. It is interesting to note that LCCRUL's internal culture seems to have had a significant effect on its agenda effectiveness and very little on its goal effectiveness. This may be due to the values of this culture, which appears to be conservative in the definition of human rights, but more adventurous in terms of ways of enforcing them. Lastly, the materials in Chapter Four on resources might suggest that LCCRUL's goal effectiveness is poorer because of the restraining effect of the common culture that it shares with its partner firms. As mentioned in Chapter Four, however, this culture appears to restrain LCCRUL less than the analogous relationship at LDF does. This may have given LCCRUL sufficient leeway to be able to obtain a much higher goal effectiveness. This material thus seems capable as being understood as consistent with the triangulations for goal effectiveness above. For the above reasons, LCCRUL seems to have considerably altered the perceptions of the courts and public institutions in the US about what actions they can take contrary to domestic human rights standards. The data correlates reasonably well and shows an underlying rational pattern that explains the results. The conclusion is thus quite reliable. Overall Effectiveness and Conclusion Unlike for LDF, the data above points strongly to LCCRUL having a high goal effectiveness. This strongly contrasts with a low (or perhaps a slightly higher than low) agenda effectiveness. 293

In order to reconcile these two assessments to come to an overall assessment, the method outlined above will be repeated here. On its face, LCCRUL would seem to have a high effectiveness because of the high assessment made of its goal effectiveness. However, using the method outlined above this needs to be averaged with the low results for agenda effectiveness. That method leads to a medium level of effectiveness for LCCRUL overall. The above analysis thus suggests that an American DNGO that is not an iconic model for a DNGO, such as LCCRUL, may actually be more effective than iconic models like LDF. III. CCR Agenda Effectiveness Human Rights Issues Within CCR's Mandate (in addition to those set out above for LDF and LCCRUL) and Said to be Important by Commentators The issues that are said to be important within the area of CCR’s mandate, in addition to those set out for LDF and LCCRUL above are: • the indefinite detention of asylum seekers and refugees, and the lowers standards of due process of law they are given;112 • research on minors and the mentally ill;113 • violations of the indigenous and social rights of Native Americans;114 • the detention of combatants at Guantanamo Bay, Cuba in violation of international law;115 • the designation of persons as “enemy combatants” leading to the overriding of their right to due process of law;116 • the violations of the rights to an adequate standard of living,117 food,118 education, housing119 and

112 Human Rights Committee Op cit para 283. 113 Ibid para 286. 114 Ibid para 290. CERD Op cit para 400. 115 Human Rights Watch Op cit p2. 116 Ibid. 117 Dale Op cit; Pear Op cit; O’Connell Op cit; Stark Op cit. 118 “Hunger in the Nation’s Capital…” Op cit; Blum Op cit. 119 James Op cit; Stark Op cit. 294

health120 among the general non-minority population. Issues that CCR Addresses and Does Not Address from the Above Lists With regard to the issues set out above CCR addresses the following: • ill treatment of minority persons by the police forces;121 • due process rights for refugees and migrants;122 • the conditions of persons deprived of liberty;123 • discrimination in employment;124 • violation of the aboriginal rights of native Americans;125 • racial discrimination in education;126 • the right to housing;127 • the right to education;128 • the right to social security as a component of the right to an adequate standard of living;129 • the issues of those detained after September 11th and the new terrorism legislation.130 From the issues raised by commentators CCR has not been addressing: • the use of the death penalty; • electoral finance reform;

120 Stark Op cit. 121 Center for Constitutional Rights Fall 2000 Docket p10. 122 Ibid p14. 123 Ibid p20. 124 Ibid p32. 125 Ibid p32. 126 Ibid p43. 127 Ibid p61. 128 Ibid p62. 129 Ibid p 82. As to the question of womens' human rights, CCR addresses only the issue of attacks on abortion clinics. The author has thus taken this as part of a general civil rights agenda, rather than womens' rights in general being part of CCR's agenda. 130 CCR Interview Op cit. See also B.Olshansky and the Center for Constitutional Rights Secret Trials and Executions: Military Tribunals and the Threat to Democracy (Open Media Pamphlet Series/ Seven Stories Press, New York, 2002). 295

• political disenfranchisement as a result of criminal conviction; • discrimination in access to health care and the right to health; • research on minors and the mentally ill; • criminalization of homosexual relationships.131 CCR thus addresses eighteen out of twenty seven issues identified as important above.132 This suggests it covers about two thirds of the relevant human rights goals within its mandate. Using this figure, the above triangulations suggest that CCR has a medium level of agenda effectiveness.133 This means it has a slightly higher agenda effectiveness than LDF or LCCRUL do. Information from Other Chapters This assessment is confirmed and placed into an interlocking pattern of meaning that explains the results by the material in the previous chapters. As outlined in Chapter Two on tactics, CCR focuses on domestic litigation but has strong cultural commitment to international work and community organising. Thus, although focused on legitimacy like the other American case studies, CCR shows greater rational adaptation to the environment than they do. One would expect that a greater commitment to international and community organising might raise CCR's agenda effectiveness slightly above that of LDF and LCCRUL. Likewise, CCR's greater rational adaptation to its environment should also lead to a higher agenda effectiveness. The small increase in agenda effectiveness over the case studies can in turn also be explained by the two factors of CCR being overloaded with work, and the local demands for legitimacy among supporters and donors. This material thus explains and shows a pattern of rational consistency with the above results. The material in Chapter Three on structure is also consistent with the results above. CCR's centralised, hierarchical and functional structural design, which generally has the effect of inhibiting the selection of relevant agenda goals, appears to be modified internally by a form of consensus decision-

131 Note, the US Supreme Court declared criminalization of homosexual sex unconstitutional in Lawrence v Texas 539 US 558 (2003). 132 The figure is thus 66.67% overlap between CCR’s priorities and those of the other texts. 296

making and an organisational culture deriving from the American tradition of radical lawyering. The latter especially appears to give it a bias towards the selection of more relevant agenda goals. The relatively small increase in CCR’s agenda effectiveness, compared to the above two case studies, can be explained here on the basis of a continuing underresponsiveness to the environment as a result of the rigid aspects of its structure. This material thus forms a rational pattern consistent with the above triangulations. Lastly, the material in Chapter Four on resources is also consistent with the above result. CCR suffers from the dual difficulties of accumulating its resources from a narrow range of sources and having diminishing sources of resources. The important role that individual donors from Old Left political groups have had in resourcing CCR seems to have been one inducement for it to choose human rights goals acceptable to this group. In turn, the goals acceptable to this group have always been reasonably close to those that the majority of commentators regard as important human rights goals. Conversely, the funding of CCR by Foundations, no matter how fungible the limits might be, seems to restrain its selection of agenda goals because of the common culture that develops. This explains the fact that CCR's agenda effectiveness is only slightly higher than that of the other American case studies. In short, this material forms a rational pattern which explains the results reasonably convincingly. All of the above data shows a relatively consistent pattern that correlates well. It thus seems that a medium agenda effectiveness (although closer to the low end of that range) for CCR is a fairly reliable result. The result could have been improved not only by a greater number of triangulations, but also by the use of more material from inside the US in the triangulation process. One suspects, however, given the fairly clear picture, that this other material probably would not alter the result a great deal. Goal Effectiveness In contrast to LCCRUL and LDF, CCR's primary and secondary goal effectiveness are split in two different ways. Firstly, CCR attempts to gain influence over the courts in order to socialise the Executive and Congress. Secondly, CCR attempts to gain influence over social movements in civil society

133 This is thus the highest of the American case studies by about 7%. To the author this appears to be 297

through publicity gained as a result of cases and networking, so that these movements can in turn pressure public institutions from the outside. CCR also occasionally informally lobbies Congress, presenting a situation of direct primary goal effectiveness, but this situation is comparatively rare. Secondary Goal Effectiveness The same databases used for the previous two case studies show that CCR has a relatively high profile in terms of mention by name in the US Supreme Court. The profile is consistently higher than that of LDF, but lower than that of LCCRUL or the ACLU (which, although not a case study, is a useful comparison). As with LDF and LCCRUL, the names of staff lawyers were also triangulated from four databases.134 These results were very mixed, with CCR being the highest of the American case studies in two databases and lowest in two databases.135 The author interpreted this as weakly supporting the profile of CCR being somewhere in between that of LDF and LCCRUL. When the agenda of the Supreme Court and other federal courts is analysed, however, quite a different picture emerges. Looking at the Supreme Court, many of the key issues on CCR’s agenda that differ from those of the other case studies get a low number of hits.136 Where CCR's agenda overlaps with that of other large DNGOs, however, there are a large number of hits.137 With the recent Supreme Court cases on the Cornell Legal Information Institute website the difference between the issues is the same, although not as pronounced. Thus it would appear that despite a high rate of mention by name in the Supreme Court, that court has been resistant to CCR’s agenda. On the LEXIS database for All Federal Courts a similar pattern emerges of presence in these courts, but a lack of success in influencing their agendas. As this lack of effect on agenda is more prominent in the data than CCR’s mention by name this

only just enough to be a significant difference between CCR and LDF. 134 The names of the staff lawyers were taken from the CCR website as accessed on September 2nd 2003 - see http://www.ccr-ny.org. 135 CCR came out highest among the US case studies on Findlaw for the Supreme Court and also on Findlaw for the Circuit Courts of Appeal. It came out lowest on Lexis and the US Supreme Court website. For addresses and dates of access see above. 136 At the Supreme Court website privatisation got four hits, immigrant rights twelve hits, migrant workers five hits, hate crimes got five hits, educational equity got zero hits and international human rights (apart from in the name of INGOs) 0 hits. 137 At the Supreme Court website police misconduct got 67 hits, freedom of speech 577 hits and prison conditions 111 hits. 298

suggests a low level of effectiveness in these institutions. The small degree to which these courts use CCR's phraseology (which is reasonably distinctive) for these issues also suggests a low level of effectiveness. In terms of media profile, CCR had a higher media profile in terms of mention by name than either of the other two case studies, although it is lower than ACLU (to use it once again as a comparison).138 In the "Washington Post", CCR came second to LCCRUL among the three case studies in terms of mention by name, with the ACLU way out ahead.139 While CCR obviously scored highly in the "New York Times" because it is based in New York, and LCCRUL scored highly in the "Washington Post" because it is based in the capital, the triangulation of these databases nevertheless suggests that CCR has a high public profile. This is contradicted by the fact that the major issues that CCR deals with in its work did not dominate the coverage of both these papers, either absolutely or compared to other civil rights issues.140 In addition, these papers did not reflect CCR's language when describing issues that it campaigns on. The data thus seems to present a situation where any conclusion on CCR’s effectiveness in the print media is unreliable. The process of triangulating major search engines141 on the Internet in a search for documents on CCR shows the enormous circulation that CCR’s views have within social movements in American civil society. CCR's message is discussed within the African-American community;142 the peace movement143; the anti-nuclear movement;144 anti-racist groups145; the anti-Globalisation movement;146 the environmental movement147; the labour movement;148 by groups opposing US foreign policy;149 native American rights groups150 as well

138 See http://www.nytimes.com/ (accessed Aug 25, 2002). 139 See http://www.washingtonpost.com (accessed Aug 25, 2002). 140 The same issues were put into the archives of the "New York Times" and "Washington Post" as were checked on the court databases above. 141 These were Google, Alta Vista and Yahoo. 142 Eg see http://www.harlemlive.org. All of the Internet sites from here until footnote 151 accessed on approx Nov 22nd 2002. 143 Eg see http://www.acs.ohio-state.edu/students/sit/activist.html. 144 Eg see http://www.tni.org/nukes/docs/news.htm. 145 Eg see http://www.multiracial.com/letters/2001-11-27.html 146 Eg see http://www.anotherworldispossible.com/sept.htm 147 Eg see http://www.earthrights.org/unocal. 148 Eg see http://www.laborrights.org/about/board 149 Eg see http://www.rdrop.com/~ vit wpdx/newsrelease0706.html 299

as the alternative media.151 The language and agenda of these groups also show similarities to that of CCR. The range and number of the contacts that CCR has suggest that its aim of working closely with social movements is realised and that the result is reliable. It seems, therefore, that CCR has a very high secondary goal effectiveness with social movements. Primary Goal Effectiveness The question, of course, is how much this affects the policies of the Executive and/or the Congress. A search of the Internet site of the US House of Representatives yields almost as many hits by name as for LCCRUL. This suggests a high effectiveness.152 A search of the Congressional Record in the Senate between 1992 and 2002 yields nine hits for CCR, sixteen hits for LCCRUL and three hits for LDF.153 The pattern thus seems broadly similar for the Senate and the House of Representatives. With regard to agenda goals, a search of the site of the House of Representatives shows less direct correspondence between the agenda and discourse of CCR and that of the House of Representatives than is the case for LCCRUL or LDF. The same is true of a search of the agenda of the Senate in the 108th Congress.154 Putting all the data together it would thus seem safe to say that CCR has a medium level of control over the agenda of the Congress. Recent more conservative Presidents would suggest that CCR should have less control over the agenda of the Executive than of Congress, and this seems to be confirmed by an Internet search of White House documents. A search of the US government site yields a presence by name much lower than LCCRUL, but much higher than that of LDF. By way of contrast, ACLU has over one thousand hits.155 These searches thus show a low priority overall for the issues of CCR’s agenda. As the data on CCR's lack of effect on agenda is so much more prominent than that for CCR’s mention by name it seems on the

150 Eg see http://www.honorearth.org/buffalo/babbit-retuses.org 151 Eg see http://www.dfn.org/news/indonesia/corporate.htm 152 See http://www.house.gov 153 See http://thomas.loc.gov/home/. There are many more hits for the ACLU. Interestingly, none of the three case studies feature in reports of committees of either house of Congress in the last four Congresses according to the search engine. 154 The Internet sites for the Senate and House of Representatives allow searches in different ways. Hence the results are for slightly different periods of time. The 108th Congress material is for the first session of 2003. 155 See http://www.firstgov.gov/ (accessed August 22nd, 2002). 300

basis of fairly reliable data to have a low effectiveness with the Executive as an institution. It should be noted, however, that the Executive places a low priority on the issues of all of the American case studies. CCR's goal effectiveness thus appears ambiguous from the above triangulations as a range of results occur. Looking at the material overall, CCR’s goal effectiveness would seem to be medium. This result, however, does not seem particularly reliable on its own. Information from Previous Chapters The underlying rational pattern of the data in the previous chapters tends to suggest that this result may be more reliable than might at first be thought. The material in Chapter Two on tactics suggests that a medium assessment of CCR’s goal effectiveness is plausible. Although CCR is strongly focused on litigation and the obtaining of legitimacy, its innovative litigation, community organising and international work all suggest that the result should be greater rational adaptation to the environment than for the other US case studies. The assessment above is consistent with this underlying logic. The material in Chapter Three on structure also presents a balance of factors that should lead to a medium result for goal effectiveness. One would expect that CCR's centralised and hierarchical structure, even with its modifications using consensus decision-making, should lead to a relatively low responsiveness to the environment and, therefore, make it less creative and effective. On the other hand, CCR’s radical legal culture seems to have given it the impetus to do creative litigation and campaigning, despite its public interest firm structure. As these two factors contradict one another, an assessment of a medium goal effectiveness seems plausible on the basis of the logic of the data. The material in Chapter Four on resources also has an underlying logic that appears to support the above result. On the one hand, CCR obtains a narrow range of resources from a narrow range of sources. One might expect from this a low goal effectiveness as a result of restraint of creativity in tactics by foundations and other sources of funds. CCR's diminishing supply of resources also points to a lower effectiveness. However, a significant source of CCR's funds comes from individual donations from members of the Old Left. This can be expected to have the opposite result, as the donor itself would expect creativity in tactics so that CCR can realise the values that they hold. 301

Thus, as with the other chapters, a balance of factors occurs in this material that suggests that the above result is a credible one. Putting all the data on goal effectiveness together, CCR seems to have significantly altered the perception of some institutions and not others, and to have altered the perceptions of single institutions in some ways and not in others. The rational pattern of the material in the previous chapters thus appears to confirm this picture of medium goal effectiveness. Unfortunately, however, some of the triangulations above suggest that the assessment might be unreliable. The assessment here thus needs to be treated with some caution. A greater number of triangulations could improve its reliability. Overall Effectiveness and Conclusion As was discussed above, it appears that CCR has a medium level of agenda effectiveness. It would thus seem that CCR’s attempt to remain close to the community has allowed it to effectively identify domestic human rights issues of seriousness within its mandate. CCR's goal effectiveness was also stated on the basis of the data above to be medium. Using the same method to reconcile these assessments as stated above, the research in this work suggests that overall CCR has a medium level of effectiveness. It thus appears that CCR sometimes chooses the right goals, but has difficulty socialising institutions to address those goals. As mentioned in Chapter Four, compared to the other two American case studies (but not those in other jurisdictions) CCR commands a much lower pool of resources.156 This seems to suggest that CCR’s true effectiveness is higher than the medium assessment the triangulations would suggest. However, as it still has significant resources compared to other jurisdictions, this did not seem to the author to justify altering its assessment. Despite this, CCR’s level of resources should to be kept in mind when comparing its effectiveness to that of the other case studies. IV. JUSTICE Agenda Effectiveness Human Rights Issues in the UK Currently Seen as Important by Commentators and Within JUSTICE's Mandate

156 The pool of money capital at CCR is approximately one eighth that of LDF according to the figures in Chapter Three. 302

Within the JUSTICE’s mandate international institutions, INGOs, commentators and the press have emphasised the following as important issues: • the nature of the new terrorism legislation introduced after the attack of September 11th, 2001 on New York;157 • the denial of the right to vote of convicted prisoners;158 • repeated outbreaks of serious race and ethnicity based rioting;159 • racist actions of police and prison staff;160 • substandard prison conditions;161 • lack of members of minority groups in the government and civil service;162 • detention of asylum seekers for administrative convenience and in prisons;163 • the overriding of the right to silence in British courts;164 • non-disclosure to criminal defendants of evidence used against them on public interest/immunity grounds;165 • use of the Official Secrets Act to silence employees of the Crown from disclosing information of genuine

157 Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland Dec 6, 2001 CCPR/CO/73/UKOT para 6. Human Rights Watch: United Kingdom and Northern Ireland at http://www.hrw.org at p2 (accessed approx Dec 18, 2002). The issue also features in leading newspapers –eg “Human Rights on Trial” The Guardian Nov 12, 2002. 158 Ibid para 10. 159 Ibid para 11. 160 Ibid para 12; Amnesty International Report 2002: United Kingdom p1. 161 Report to the Government of the United Kingdom on the Visit to the United Kingdom Carried Out by the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 4 to 16 Feb 2001 p44 at http://www.cpt.coe.int/en/reports/int2002-o6en.pdf. (accessed approx Jan 10, 2003). This issue has also been prominent in the media – eg “Prison Discipline and Human Rights: Letter” The Times 31 July 2002. 162 Human Rights Committee: UK Op cit para 13. 163 Ibid para 16; Amnesty International Op cit p5; this issue is also widely reported in the press – eg “Asylum Bill ‘may breach rights law’” The Times 31 July 2002. 164 Ibid para 17. 165 Ibid para 20. 303

public concern;166 • the disproportionate number of deaths in custody of minority persons;167 • racial harassment of asylum seekers;168 • the backlog in processing asylum seekers;169 • racial discrimination in the rights to employment and education;170 • lack of affirmative action programmes on the basis of race;171 • inadequate safeguards against suicides in prisons;172 • discrimination against sexual minorities173; and • treatment of prisoners in the conflict in Afghanistan.174 With regard to social rights, among the issues that have been raised are: • the national minimum wage being below the level of an adequate standard of living;175 • the right to strike being not incorporated into UK law and not being guaranteed in practice;176 • the existence of interferences in workers’ freedom of association;177

166 Ibid para 21; Amnesty International Op cit p5; also features in the press – eg R.Norton-Taylor “Secrets Act Defies Human Rights Treaty” The Guardian 2 Feb 2002. 167 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland May 1, 2001 CERD/C/304/Add.102. para 14. 168 Ibid para 15. 169 Ibid para 17. 170 Ibid para 19; an issue with prominence in the press – eg “No One is Sitting in Judgment on Our Failed Institutions” The Guardian 16 Jan 2002. 171 Ibid para 20. 172 Amnesty International Op cit p6. 173 Mainly highlighted in the press – eg “Court Rules Gay Ban ‘Breaches Human Rights’” The Guardian 27 Sept, 1999. 174 Amnesty International Op cit p2. 175 Concluding Comments of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland May 17, 2002 E/C.12/1/Add 79 para 15. Conclusions XIV Vol 2 European Committee on Social Rights at http://www.coe.int/T/E/Human_Rights/Esc/ (accessed approx Dec 18, 2002). 176 Ibid para 16. Conclusions XVI Vol 2 European Committee on Social Rights at European Committee on Social Rights Op cit. 177 Conclusions XVI Vol 2 European Committee on Social Rights Op cit. 304

• the increasing incidence of poverty;178 • the persistence of homelessness and the low quality of housing used to house the homeless;179 and • the violation of the right to education through the introduction of student fees and loans.180 Because JUSTICE works towards statute law or case law that will impact on various human rights problems rather than on any particular problem itself, the assessment of agenda effectiveness for it needs to be approached differently. In this chapter, JUSTICE will be said to 'cover' an issue set out above to the extent that a statute or court decision it works towards should logically encompass the human rights problem in question. Inevitably, this leads to less precision in comparing the agendas of the other case studies that focus on issues with that of JUSTICE. The loss of precision, however, should not be so large as to make comparison with other case studies problematic. The scoping study on economic and social rights undertaken by JUSTICE should cover all of the social rights issues set out above.181 JUSTICE's work on Protocol 12 of the European Convention on Human Rights,182 and its other work covering discrimination should cover the issues of; • race riots; • racism by police and in prisons; • deaths in prison; • lack of affirmative action programmes; • and the lack of minority persons in public life. In its asylum work, JUSTICE has addressed the question of the detention of asylum seekers; the backlog in processing them and their harassment.183 JUSTICE’s work on implementation of the Human Rights Act should cover: • the overriding of the right to silence; • non-disclosure of evidence to defendants;

178 Ibid para 18. 179 Ibid paras 19 and 20. 180 Ibid para 22. 181 JUSTICE Annual Report 2000 p13. 182 Ibid p27. Also the shadow report to the latest review of the UK under the ICESCR – Interview with JUSTICE, London, Oct 2001 (notes in possession of the author). 183 Ibid p26. 305

• inadequate safeguards against suicides in prison; and substandard prison conditions. JUSTICE thus addresses twenty-one out of the twenty three issues set out above.184 Using this assessment method, it thus appears to have a very high agenda effectiveness. It could be that this assessment is exaggerated by the generality of the statutes and court decisions that JUSTICE works towards. Given the amount of material in the triangulation and its quality, however, the result appears to be quite reliable. Information from Previous Chapters This impression of reliability, however, is not as strongly reflected in the underlying logic and explanatory ability of all the material in the previous chapters. The material in Chapter Two on tactics correlates well with the above result and shows that JUSTICE mostly does educational and lobbying/policy work that shows greater rational adaptation to the environment than is characteristic of the American case studies. It seems logical that JUSTICE's greater rational adaptation to the environment should lead to it choosing more relevant human rights goals because it will be less subject to the demands of local culture to select goals that are seen by it to be legitimate, and more sensitive to information from the environment. The data in Chapter Two thus seems to follow an underlying pattern that explains the above results. The material on JUSTICE in Chapter Three on structure does not correlate so well with the result above. It will be recalled that JUSTICE has a centralised, mechanistic and hierarchical design that has only a few modifications, such as a network of connections to barristers' chambers. This structure would be expected to lead to a low agenda effectiveness, because of its relative under-responsiveness to environmental influences. The result above, however, shows a high agenda effectiveness. It may be that JUSTICE’s connection to the legal profession, civil service and international networks gives it more information from the environment that allows it to choose relevant goals. This is highly speculative, however, and the logical structure of the data in this chapter on its face does not support the result above. The materials in Chapter Four on resources, however, do appear to point to the reliability of the above result. JUSTICE obtains its resources from a much 306

wider range of sources than the American case studies. Thus, even though JUSTICE shares some of the culture of the Foundations and legal profession that supply it with resources, the restraining effect of this culture in terms of goals pursued is much less. This should have the effect of allowing JUSTICE to more freely determine its goals according to its assessments of relevance and practicability. This material is thus consistent with and explains the assessment of high agenda effectiveness. Looking at this assessment overall, there is quite a strong indication that JUSTICE's agenda effectiveness is high. The main exception is the pattern of the data on structure. This may be an anomaly or may indicate that the overall result is not completely reliable, and that agenda effectiveness may not be quite as high as the overlap indicates. In the opinion of the author it is probably an anomaly. The result of the triangulation could have been made more reliable if more material from the UK had been included in the triangulation. Such material, however, was difficult for the author to obtain. Goal Effectiveness JUSTICE presents two different situations with regard to goal effectiveness. Firstly, for secondary effectiveness it engages in third party interventions before the British courts and the European Court of Human Rights and educational work within the legal profession on human rights questions. Secondly, the lobbying, policy and educational work conducted by JUSTICE within the Parliament and Executive constitute situations of primary goal effectiveness. Secondary Goal Effectiveness With regard to profile within the courts, the Internet site of the European Court of Human Rights suggests that JUSTICE has a relatively high profile in terms of mention by name185 before the Court.186 Interestingly, LEXIS for Combined British Courts suggests that JUSTICE's profile is low before the British courts.187 That of Liberty (which, though not a case study, is a useful

184 This thus comes to a 91.3% overlap between the issues JUSTICE addresses and those most often identified as important within its mandate. 185 From among the case studies only CAJ equals it in this respect. See http://hudoc.edhr.coe.int (accessed approximately Nov 15, 2002). On the database of the ECHR JUSTICE and CAJ receive three hits and BIRW one hit. 186 The staff lawyers at JUSTICE, as stated in the 2000 Annual Report of the organisation, were also searched for at the site of the European Court of Human Rights, but yielded no hits. 187 See www.lexisnexis.com.au (accessed approx Jan 17, 2003). 307

comparison) on this triangulation is quite high.188 This is confirmed by a check of the agenda of the British courts on the same database, which shows that the Human Rights Act and privacy have a high profile in the courts, but all of the other issues JUSTICE concerns itself with have a very low profile. This, along with differences in the phraseology used by JUSTICE and the British courts, suggests a low effectiveness in the domestic courts. A similarly low effectiveness emerges when one searches British law journals on LEXIS. Here JUSTICE and Liberty have a low profile in terms of mention by name.189 The Index to Legal Periodicals does not show any hits for JUSTICE by name. This suggests that both British and international legal scholars have not been alert to the extent to which the British human rights DNGOs have had a creative role in developing the law to protect domestic human rights. To the extent that they have noticed such a role they appear to notice Liberty rather than the case studies. With regard to its educational work for lawyers, JUSTICE mentions Cloisters, Doughty Street Chambers, Herbert Smith, Matrix Chambers, One Crown Office Row, Peters & Peters, Queen Elizabeth Building, Two Garden Court and Withers as its training course partners.190 A search of Internet sites of various Barristers' chambers confirms that JUSTICE's educational work has had considerable influence at places such as Doughty Street Chambers and Blackstone Chambers.191 Despite all this influence with some Barristers' chambers and some solicitors' firms, JUSTICE does not seem to be highly effective with regard to the Law Society or Bar Council, as no trace of its work can be seen in the documents of these organisations on the Internet.192 These results suggest that even though JUSTICE has had some success in human rights education for lawyers, the more official and conservative sections of the profession still show some resistance to, or are ignorant of, its educational work. The relatively small amount of documentation available from these professional

188 Liberty got forty nine hits. None of the other databases for British cases registered any of the case studies and so problems of triangulation arise here. 189 Note, however, the older article “British Irish Rights Watch” Public Law, Summer 1995 p244. This is also the case for BIRW and CAJ. See below. 190 JUSTICE Annual Report 2000 p9. 191 See http://www.doughtystreet.co.uk (accessed approx Jan 10, 2003) (JUSTICE listed as associated organisation) and http://www.blackstonechambers.com/ (accessed approx Jan 10, 2003)(JUSTICE listed as running seminar). 192 See http://www.lawsoc.org.uk/ and http://www.barcouncil.org.uk/. (accessed approx Jan 12, 2003). 308

organisations, however, may indicate that this assessment is unreliable without triangulation of further documents. Because of JUSTICE's concentration on lobbying and education work and not media work, the predictable result is a low media profile in terms of mention by name. A search of the archives of “The Guardian” newspaper revealed a low profile in terms of mention by name.193 A search of the archives of “The Times” revealed an even lower such profile.194 In terms of the similarity of the agenda of these newspapers to that of JUSTICE, there was a high correspondence in “The Times” and a medium one in “The Guardian”. An analysis of the language used also suggested a medium result. The data on JUSTICE's effectiveness with the press is thus ambiguous. The low figure for JUSTICE being mentioned by name suggests that other factors may have changed the agenda and language of these newspapers. For this reason, the triangulations tend to suggest that JUSTICE has a low effectiveness in the print media.

Primary Goal Effectiveness JUSTICE has a relatively high profile in the British Parliament, showing roughly forty hits in a search of Parliamentary documents.195 While one might expect that JUSTICE and Liberty (which, though not a case study is a useful comparison) might have an equal profile in Parliament, because of the focus by JUSTICE on lobbying and policy work, Parliamentary documents suggest that JUSTICE is less effective than Liberty. In terms of agenda, JUSTICE appears to have only partly influenced the issues that Parliament is considering. It thus appears to have a medium effectiveness there overall. The human rights issues that dominate the agenda of Parliament appear to be those that a large number of DNGOs in addition to JUSTICE have been working on.196 Those issues which JUSTICE itself or in smaller coalitions advocates, such as Protocol 12 to the European Convention

193 See http://www.guardian.co.uk/Archive (accessed Aug 25, 2002). 194 See http://www.newsint-archive.co.uk (accessed Aug 25, 2002). 195 A score only CAJ equals. See http://www.parliament.uk. (accessed approx Jan 7, 2003). These numbers of hits are rough as the search engine of the Internet site of Parliament delivers many false positives. The ratio appears, nevertheless, to be correct. 196 They got 16 028 and 3429 hits respectively at the Parliament Internet site. 309

on Human Rights on discrimination or European Union cooperation on criminal matters, score considerably lower.197 This suggests that JUSTICE has been most successful when it has been in coalitions with other DNGOs such as Liberty, but has less influence on those issues on which it is trying to set the agenda alone. The question, of course, is the degree to which this activity is noticed by, and influences, the Executive. An investigation of electronic documents concerning the British civil service reveals that JUSTICE has a very high effectiveness.198 Both the nature and volume (in terms of mention by name, similarity of issues and phraseology) of documentation referring to JUSTICE in the British bureaucracy indicate that it has a high effectiveness.199 This may be the effect of the government use of JUSTICE to train civil servants on the implementation of the Human Rights Act. It appears, however, that this effect on the civil service has not translated unambiguously into an alteration of governmental expectations on human rights issues. A search of the number ten Downing Street site shows that, as in Parliament, only those issues on which most British DNGOs have been lobbying (such as the Human Rights Act and privacy) have any priority in terms of government attention. The issues on which JUSTICE has been attempting to change the agenda and focus attention on receive virtually no government attention.200 This suggests that some specific areas in which JUSTICE has advised have had an effect on government expectations, but that in general the government has only occasionally been taking notice of JUSTICE or altering its expectations because of its work. For these reasons it would seem that JUSTICE's secondary goal effectiveness is mixed, with greatest influence over the legal profession. Primary goal effectiveness also seems mixed, with high effectiveness in Parliament and a strong focus on the Human Rights Act and privacy in the government (which JUSTICE has advocated for years), but little other focus on

197 They received 471 and 18 hits respectively on the Parliament Internet site. 198 See http://www.ukonline.gov.uk (accessed approx Jan 7, 2003). 199 It has greater influence than any of the other British case studies and even greater than that of Liberty. 200 See http://www.number-10.gov.uk. (accessed approx Jan 7, 2003). This pattern seems much starker for the government than the pattern for the parliament discussed above. 310

the human rights issues that JUSTICE concentrates on. From the above data JUSTICE thus appears to have a medium goal effectiveness overall. Information from Previous Chapters The material in the previous chapters also suggests that JUSTICE has a medium goal effectiveness. The underlying logic of the material, however, seems not as strong as for some of the case studies above. The material in Chapter Two on tactics suggests a higher goal effectiveness than the result above. Because of its international work and the nature of British human rights culture, JUSTICE favours rational adaptation to the environment over the gaining of legitimacy. This should lead to more effectiveness, because the tactics should be more creative and suited to the situation it finds itself in. In addition, JUSTICE’s tactical focus on Parliament, the legal profession and international institutions should lead to a high effectiveness because of the relative receptiveness of these to domestic human rights work. The material here thus shows that the underlying rational pattern for JUSTICE is not entirely clear or explanatory. The material in Chapter Three on structure, however, is more consistent with the above result. JUSTICE's centralised, mechanical and hierarchical design suggests that it should be underresponsive to the environment and less effective. The culture of the British legal profession and the relatively favourable environment for DNGOs in Britain, however, suggest that effectiveness and responsiveness to the environment are possible to a sufficient degree to cancel out some of the features of JUSTICE’s design. The logic of the material in this chapter thus supports the result above. The logic of the material in Chapter Four on resources also tends to support the result above. Although JUSTICE receives most of its resources from Foundations and the legal profession, whose cultures and influence should have the same effect of inhibiting effectiveness as with the American case studies, this is tempered by a wider range of sources of resources. Thus, the logical pattern underlying this material suggests a balance of factors that should lead to a result of medium goal effectiveness. Looking at this material overall, therefore, JUSTICE seems to have changed the expectations and perceptions of some institutions and areas and not others. Because some of the material does not correlate with other material, and the underlying rational pattern is not very clear, some doubt may be cast on 311

the reliability of this result. The most convincing interpretation of the data, however, is that the areas of high effectiveness and those of low effectiveness balance each other so as to create a medium effectiveness overall. Overall Effectiveness and Conclusion As stated above, JUSTICE was assessed to have a high agenda effectiveness, but only a medium goal effectiveness. As with CCR, JUSTICE thus seems to set the right goals but finds it difficult to pressure institutions so as to achieve them. Because of its high agenda effectiveness no question arises as to any discounting of the results for goal effectiveness. As a result, JUSTICE on this method is assessed here as having a medium effectiveness overall. The primary factors that appear to have improved JUSTICE's effectiveness overall are a tactical stance that is highly rationally adapted to the environment, an innovative organisational culture and an approach to the accumulation of resources that has a wide range of sources and thus limits the control of resource donors over operations. Conversely, the factor that appears to have limited its effectiveness is its rigid and centralised structure, which inhibits it from types of work that would be necessary to be successful in some fora. This medium result for overall effectiveness is interesting given that it is quite similar to that of LCCRUL and CCR, even though JUSTICE employs quite a different set of tactics. Compared to other case studies JUSTICE's resources form a pool that is about average or in the middle range. No question of adjustment of the assessment for effectiveness on the basis of resources thus arises in this case. V. BIRW Agenda Effectiveness Human Rights Issues in the UK Thought Important by Commentators and Within BIRW's Mandate The issues that have been identified by commentators as important with regard to civil and political rights protection in Northern Ireland have been: • murders of persons (including human rights defenders) in 312

Northern Ireland that remain uninvestigated;201 • allegations of collusion in murders by the Northern Ireland police;202 • attack and harassment on the basis of religious belief;203 • the existence of the “Diplock Courts”;204 • shootings and beatings by sectarian groups;205 • ill treatment of prisoners;206 and • the issue of a Northern Ireland Bill of Rights.207 Issues That BIRW Focuses On in its Work The agenda of BIRW in its daily work involves a focus on: • killings and the use of violence by security forces; • the intimidation and killing of defence lawyers; • policing in Northern Ireland; • killings and beatings by paramilitary groups; • the torture and mistreatment of prisoners; • the issue of sectarian parades; • discrimination on the grounds of religion; • emergency and terrorism laws; and • the Good Friday peace agreement.208 Comparing these two lists, BIRW deals with six of the seven issues that have been raised as serious issues, and thus appears to have a very high agenda effectiveness.209 The small number of issues that BIRW deals with compared to the other case studies might have influenced this result. Like a triangulation of insufficient amounts of material, the comparison of such small lists might be deceptive. As the list of issues raised by commentators is well

201 Human Rights Committee on the UK Op cit para 8; is also an issue in the press – eg “Families win IRA Human Rights Ruling” The Guardian May 5, 2001. 202 Ibid; The issue of police in Northern Ireland has also featured in the press – A.Gillan “Renamed Force Must Abandon Old Loyalties” The Guardian Sept 10, 1999. 203 Ibid para 14. 204 Ibid para 18. For an explanation of the phrase "Diplock Court" see chapter two, footnote 281. 205 AI 2002 Report UK Op cit p1. 206 Ibid p3. 207 Ibid p5. 208 See generally British Irish Rights Watch 1998 and British Irish Rights Watch 1999 (BIRW, London, 1998 and 1999). 209 This comes to the high figure of 85.71% overlap between issues often raised about Northern Ireland and the issues that BIRW covers. 313

triangulated, however, and the number of issues is low because of the nature of BIRW’s agenda, the author believes that this result is reasonably reliable. Information from Previous Chapters The above result also seems credible because the underlying logic of the data in the previous chapters points strongly to, and explains the reasons for, BIRW's high agenda effectiveness. The material in Chapter Two on tactics shows that, like an INGO, BIRW has ‘escaped’ the local jurisdiction into the international sphere. This has given it an ability to rationally adapt to the environments it works in and to avoid, to a large degree, local demands for legitimacy. BIRW thus has space to choose relevant goals rather than goals dictated by people who fund or support it. The material in Chapter Three on tactics also points to a high agenda effectiveness. It will be recalled that BIRW's structure combines organic and mechanical elements. This gives it both the ability to research and lobby in an organised fashion, and react swiftly to events and draw on a vast array of outside resources. The responsiveness of BIRW to the environment thus makes it open to the types of outside information that would encourage it to choose relevant goals. The material in Chapter Four once again points to a high agenda effectiveness. Since BIRW obtains most of its resources from overseas foundations, this gives it greater autonomy over the choice of relevant goals than would seem to be the case if the resources were obtained from local foundations. Looking at this material overall, both the triangulations from electronic texts above and the underlying logical pattern of the material in the previous chapters strongly point to the above result of a high agenda effectiveness as being very reliable. BIRW thus appears to be good at choosing highly relevant goals. Even the relatively small number of issues that BIRW pursues does not seem to throw the result into question, as the commentators on the issues within its agenda also concentrate on an equally small number of issues. Goal Effectiveness Because of the different issues that it works on, and its different tactics compared to the above case studies, BIRW presents quite different situations with regard to primary and secondary effectiveness. It attempts to achieve secondary effectiveness on the legal profession through its work in education 314

about human rights, advising lawyers on human rights matters and acting as a clearinghouse for lawyers on human rights matters in Northern Ireland. It also attempts to achieve secondary effectiveness on the European Court of Human Rights through third party interventions. In addition, it attempts to achieve secondary effectiveness on the US Congress, US President, Irish Government and the United Nations through lobbying using law. BIRW attempts to achieve a situation of direct primary effectiveness in the work it has done trying to lobby UK government departments such as the Ministry of Defence, the Lord Chancellor and the Northern Ireland Office.210 Primary effectiveness for it in general is on the British Parliament and Executive. Secondary Effectiveness Despite the fact that BIRW does a great deal of its work in educating and advising lawyers, there is very little evidence that it has had a significant effect on the legal profession as a whole. The Law Society, the Bar Council and all of the Chambers typically involved in human rights legal work with other British DNGOs, such as JUSTICE or Liberty, do not show any awareness of BIRW's work.211 Because BIRW tries to raise the consciousness of human rights for lawyers, it may be that it works with firms and barristers' chambers that do not otherwise have profiles in human rights work. Even so, it seems from the data above that this work has a low effectiveness within the profession as a whole. As BIRW shows three hits under LEXIS for All British Courts and two hits under BAILII for Northern Ireland Courts, however, it appears that it has lawyers that it is in contact with who use its material in court.212 These results tend to suggest that BIRW has had an effect on individual lawyers, which allows it to access courts. However, it also shows that it has to been too small, and the lawyers it works with not influential enough, to have a high effectiveness in the legal profession as a whole.

210 BIRW Interview Op cit. 211 Doughty Street Chambers, Matrix Chambers, Blackstone Chambers, Cloisters, Herbert Smith, One Crown Row, Peters & Peters, Queen Elizabeth Building, Two Garden Court, Withers and Brick Court Chambers all had their internet sites examined with no references to BIRW found whatsoever. These are all firms and chambers known to the author through discussions with the case studies to cooperate with British human rights DNGOs. 212 As with all the British case studies BIRW shows a low number of hits with both LEXIS UK Journals and the Index to Legal Periodicals. 315

With regard to the European Court of Human Rights, BIRW does have some profile in terms of mention by name.213 As would be expected with BIRW not focusing on British courts, LEXIS reveals that its profile there in terms of mention by name, agenda and language is low. In contrast, BIRW has a high effectiveness with the Irish Government.214 Confirming BIRW’s effectiveness with the Irish government is a high profile for such issues as the murder of defence lawyers, Bloody Sunday, intimidation of defence lawyers and policing in Northern Ireland in the agenda of both the Taoiseach (Prime Minister) and the government as a whole.215 Direct mention of BIRW suggests that it also has considerable profile within the US Congress.216 When the agenda of Congress is examined, however, the 'signature' issues of BIRW have a high profile. This would seem to suggest that although BIRW might rarely appear directly, its effect within Congress is extensive.217 Within international institutions, BIRW seems to also have virtually no effectiveness in the Council of Europe, if this is measured by direct mention in documents.218 This, however, is consistent with BIRW’s stated practice of working through CAJ when it wants intervention in the Council of Europe.219 The United Nations shows an interesting picture. BIRW has a medium profile within UN documents when direct mention is considered.220 It appears from mention in the documents that BIRW favours the charter based over the treaty based mechanisms.221 When the issues that BIRW focuses on are looked at, however, it is clear that they are very high on the agenda of the UN human rights treaty bodies also. This suggests to the author that BIRW is working through INGOs

213 See http://hudoc.echr.coe.int (accessed approx Jan 7, 2003). However, it has less profile than JUSTICE or CAJ. 214 For example BIRW gets six hits and CAJ four in the Irish government site – see http://www.irlgov.ie (accessed approx Jan 10, 2003). 215 Especially the Department of Foreign Affairs – in addition to general government site see http://www.taoiseach.gov.ie (accessed approx Jan 10, 2003). 216 It is useful to note, however, that this profile is less than that of CAJ. CAJ gets eight hits and BIRW three – see http://www.house.gov (accessed Jan 10, 2003). 217 The largest number of hits for any CAJ issue is one, whereas the use of plastic bullets in Northern Ireland gets 15 hits and the bloody Sunday massacre gets eleven hits. These are issues that BIRW specialises in. 218 CAJ gets 37 hits, and BIRW zero – see http://www.coe..int (accessed approx Jan 7, 2003). 219 Interview BIRW Op cit. 220 This profile is the same as that for CAJ. Four hits for BIRW and five hits for CAJ. The UN human rights site (www.unhchr.ch) was searched all at once using the University of Minnesota Human Rights Library site (www.umn.edu ). Both accessed approx Jan 10, 2003. 316

such as the International Federation of Human Rights by feeding them information, and is thereby having a high effectiveness in altering the overall UN human rights agenda on Northern Ireland.222 Even though BIRW specifically does not do public campaigning on the ground that it does not believe it is effective,223 it nevertheless has quite a high media profile. Of all the three British case studies it had the highest number of mentions by name in both “The Times” and “The Guardian”.224 In terms of the similarity between BIRW's agenda and these newspapers, it had a high profile in “The Guardian” and a low profile in “The Times”. Overall, BIRW thus appears to have a significant degree of effectiveness in the print media. In view of the fact that BIRW does not try directly to influence the media and public opinion this suggests to the author another 'spillover' effect. Just as the American case studies get publicity through domestic court cases largely without directly working on the media, so BIRW appears to gain such publicity through foreign governments and international institutions. Primary Effectiveness What is interesting is that even though BIRW does not actively lobby the British Parliament, it appears, as set out above, to have a profile (even though it is low) in parliamentary documents. This would seem to suggest that there is some ‘spillover’ effect from BIRW's work with foreign governments and international institutions into Parliament. It may also be that BIRW, although it does not consistently lobby the British Parliament, can be drawn into testimony before committees in some circumstances. This could also explain its parliamentary profile. Interestingly, given BIRW’s influence on the British Parliament through sporadic intervention, it has a very low profile by name in the Northern Ireland Assembly.225 The profile of the issues that BIRW focuses on such as the Bloody Sunday Inquiry and the intimidation of defence lawyers,

221 Only 1 hit for BIRW and three for CAJ – http://unhchr.ch (accessed approx Jan 9, 2003). The site was searched separately for treaty body documents. 222 This is especially so for the murder and intimidation of defence lawyers and the treatment of prisoners in Northern Ireland. 223 Interview with BIRW Op cit. 224 Nineteen hits in “The Guardian” and six hits in the “The Times”. 225 0 hits at http://www.ni-assembly.gov.uk (accessed approx Jan 10, 2003). 317

also have a low priority with the Assembly.226 Lastly, there is also little similarity between BIRW’s language and that of the Assembly. With regard to the British civil service, certain issues such as the murder of Rosemary Nelson and the treatment of prisoners in Northern Ireland have a quite high profile, while others such as the intimidation of defence lawyers have a relatively low profile.227 As with all the British case studies, all the issues BIRW typically champions have a low profile with the Executive itself. Unusually, however, BIRW’s issues of the inquiry into Bloody Sunday and of policing in Northern Ireland have some profile within government documentation, suggesting a medium level of effectiveness.228 BIRW thus has high secondary effectiveness with regard to the Irish Government, US Congress, the United Nations and the British Press. With regard to primary effectiveness, a few important issues that BIRW campaigns on have high profile within the civil service and government. This result is not as bad as it might appear, however, as all the British case studies seem to have little effect on the government agenda, and the profile that BIRW has is impressive given its size. Raising BIRW’s score slightly to take account of its low level of resources in the manner discussed above, it appears to have a high effectiveness overall on the basis of the sources investigated. Information in Previous Chapters The materials in the previous chapters support this result. The material in Chapter Two on tactics shows that BIRW focuses on working through international institutions and foreign governments as if it was an INGO. Because Britain is relatively sensitive to international pressure on human rights, it is to be expected that this would lead to a high goal effectiveness. The data in this chapter thus shows a pattern that suggests that a high goal effectiveness is plausible. The material in Chapter Three on structure shows that BIRW has both organic and mechanical elements in its structure. Because this makes it both highly responsive to the environment and capable of research and lobbying, one would expect that it would give BIRW a high goal effectiveness.

226 This is especially so when compared to CAJ below. Issues that CAJ and BIRW both concentrate on such as policing in Northern Ireland get quite a high score. The only issue that BIRW pursues largely on its own that has some profile is freedom of expression. 227 See http://www.ukonline.gov.uk (accessed approx Jan 10, 2003). 318

Lastly, the material in Chapter Four on resources also suggests the reliability of an assessment of high goal effectiveness. Because BIRW obtains its resources from offshore foundations, its tactics are not constrained so much by the demands of donors. This in turn should lead to tactics that are more adapted to the environment, which enhances goal effectiveness. Overall therefore BIRW has high secondary effectiveness with some international institutions and foreign governments. This in turn has given it a high profile in the civil service and Executive on some of the issues it campaigns on. BIRW thus appears to have significantly influenced the expectations of the government. The materials from the previous chapters appear to support and explain the data from the electronic documents. This result thus seems highly reliable. The result could have been improved by the use of extra material from the institutions investigated. Overall Effectiveness and Conclusion From the above data it can be seen that BIRW has a very high agenda effectiveness, but in contrast to JUSTICE also has a high goal effectiveness. BIRW thus appears on the basis of the evidence here to both identify the relevant issues well and socialise institutions well to address them. Putting these two together, overall BIRW has a high effectiveness on this analysis. The major factors that appear to have contributed to this result are a high profile of the Northern Ireland conflict in the international community; tactics that focus on international institutions and foreign governments that Britain is vulnerable to; a structure that is responsive to the environment and has capacity for organisation and an approach to resource acquisition that relies on offshore foundations. While this formula seems to have been highly successful for BIRW, one may question whether its features can be used elsewhere because of the uniqueness of the Northern Ireland conflict. This result of high overall effectiveness is doubly impressive for BIRW given the relatively low level of resources that it has compared to other DNGOs and the fact that it is so small. The result thus suggests that the presumption that larger DNGOs are necessarily the most effective can be mistaken. VI. CAJ Agenda Effectiveness

228 See http://www.number-10.gov.uk (accessed approx Jan 10, 2003). 319

Social Rights Issues in the UK Seen as Important by Commentators As CAJ’s agenda is virtually identical to that of BIRW except for a concentration on social rights, it effectiveness in enforcing social rights will be investigated below and other issues taken from the lists for BIRW above. The social rights issues normally raised by commentators with regard to Northern Ireland are: the lower level of enjoyment of most economic and social rights (adequate standard of living, work, housing etc) in Northern Ireland compared to the rest of the UK,229 and the segregation of education on the basis of religion.230 Under the rubric of its Equality Project and the Equality Coalition231 CAJ deals with both of these social rights issues. The other issues raised by commentators within CAJ's mandate were set out above for BIRW. CAJ covers all of the issues raised for BIRW as well as the social rights issues, and thus seems to have the highest possible level of agenda effectiveness measured in this manner.232

Information in Previous Chapters The materials in the previous chapters tend to confirm the above result. The material in Chapter Two on tactics shows that CAJ focuses on international lobbying using law supplemented by a small amount of litigation. Because CAJ, like BIRW, has ‘escaped’ local demands for legitimacy because of its concentration on international work, it is highly rationally adapted to its environment. The consequence of this is greater autonomy for CAJ to choose relevant goals. Another consequence of CAJ's extensive contacts with international human rights networks is a rich supply of information from INGOs and international institutions that also tend to help it choose highly relevant goals. The material in Chapter Three on structure also points in this direction. Like BIRW, CAJ exhibits a mixture of a centralised, mechanistic and hierarchical structure that gives it the ability to plan and organise, with organic

229 Committee on Economic, Social and Cultural Rights on the UK Op cit para 18. 230 Ibid para 23. 231 CAJ Annual Report Op cit p16. 232 i.e. there is a 100% overlap between issues raised in Northern Ireland and issues that CAJ covers. 320

networks that feed it with information and give its significant adaptability. Unlike BIRW, however, CAJ is a little more biased towards the former than the latter. Nevertheless, it still has a very significant responsiveness to the environment, which supplies it with the input of information necessary to choose relevant goals. The material in Chapter Four on resources also supports and explains the above assessment. Like BIRW, CAJ obtains most of its resources from American foundations. This gives it significant autonomy over the demands of donors for what they consider legitimate goals. This should tend to allow CAJ to judge in relative freedom what relevant goals are and to pursue those that it decides upon. Looking at the material for agenda effectiveness overall, there is a strong indication that CAJ's agenda effectiveness is high. Not only does the documentary triangulation strongly indicate this, but the underlying logic of the material in the previous chapters also strongly suggests and explains it. This result thus seems very reliable. Goal Effectiveness CAJ's secondary effectiveness mostly occurs through foreign governments and international institutions. Only CAJ's work on Parliament and the civil service present a picture of primary effectiveness.

Secondary Effectiveness CAJ has different levels of effectiveness in different courts. Although somewhat of a novice in international litigation outside of third party interventions, it has a high profile at the European Court of Human Rights.233 Like the other British case studies this is accompanied by a generally low profile in the courts of Northern Ireland and Britain.234 However, the agenda of the courts of Northern Ireland appear (using LEXIS) to have some interest in the issues that CAJ campaigns on.235 This may suggest that CAJ's presence is

233 Its profile there is as hight as JUSTICE and Liberty. Liberty (a non case study used for comparison) has four hits compared to three for CAJ and JUSTICE – see http://hudoc.echr.coe.int (accessed approx Jan 14, 2003). The author also searched for the name of Paul Mageean, the CAJ legal officer, on this site but got no hits. 234 On LEXIS CAJ gained eight hits on the Combined British Courts database and two on the Northern Ireland Reported and Unreported Judgments database. BIRW gained three hits on the first database and two in the second. 235 Especially in comparison with other human rights issues such as privacy or asylum laws. 321

inducing law firms and individuals to litigate on issues CAJ campaigns on, without CAJ being directly involved. Overall, CAJ’s effectiveness in the courts thus appears to be medium. As discussed above, a search of British Law Journals on LEXIS236 reveals that CAJ like all British DNGOs has inspired little interest or support from legal scholars and thus has had little effectiveness in socialising them on human rights matters. In the British Parliament CAJ has a high effectiveness with forty four hits.237 Despite this apparent effectiveness coming from issues which might suggest autocausation, comparison with Liberty appears to confirm CAJ’s high effectiveness in Parliament. CAJ's profile is not high in the publications of the Department of the Taoiseach (or Irish Prime Minister)238 with only one hit, and the same pattern can be seen in the Irish Ministry of Foreign Affairs (one hit) and the Dail Eirann (Irish Parliament).239 With regard to agenda, the Department of the Taoiseach seems to not focus on any of the issues that CAJ focuses on, except policing in Northern Ireland.240 A survey of the language used also suggests this. There is, however, a strong agenda focus on the Northern Ireland peace process generally. This suggests that CAJ does not generally influence government opinion in Dublin, but does occasionally intervene successfully and so must have contacts that it does not use often. This suggests a medium effectiveness. In contrast to this, CAJ has a high profile in the Northern Ireland Assembly with six hits.241 The main issues that CAJ is concerned with dominate the agenda of the Assembly, even eclipsing normal political issues such as the economy. One suspects, however, that what one is observing here is autocausation in that the issues that the Assembly is focused on concern the same peace process that CAJ is focused on. CAJ's high profile in Assembly documents thus suggest that even if originally the result of autocausation, as in

236 It gets as many hits as JUSTICE and one fewer than Liberty. 237 There were seventeen hits for BIRW and five for JUSTICE. See http://www.parliament.uk (accessed approx Jan 7, 2003). 238 See http:// www.taoiseach.gov.ie (accessed approx Jan 14, 2003). 239 See http:// www.irlgov.ie (accessed approx Jan 14, 2003). 240 None of CAJ’s issues get hits except policing – which gets four hits. 241 Compared to zero hits for BIRW. See http:// www.ni-assembly.gov.uk. (accessed approx Jan 10, 2003). Liberty also appears to get zero hits. 322

the British Parliament this agenda has given CAJ influence and allowed its submissions to be widely considered. Internationally, CAJ appears to have considerable influence in the US Congress. Not only does it have a high profile in the House of Representatives,242 but certain issues that CAJ focuses on, such as policing in Northern Ireland and a Northern Ireland Bill of Rights, have a degree of profile in the agenda of the House of Representatives. While there may be an element of autocausation within the House for this focus also, the fact that the main focus is on an issue that CAJ especially focuses on suggests strongly that CAJ has had a hand in altering the agenda of Congress and that its effectiveness there is thus high. With regard to the United Nations, a search of the human rights treaty bodies' documentation through the UN High Commissioner of Human Rights website suggests that CAJ has a high profile in terms of mention by name in the treaty bodies, although a lower profile in UN sites overall.243 A search of the treaty bodies for the issues that CAJ focuses on reveals that while there is a strong focus on Northern Ireland, the only issue that has gained attention among those that CAJ focuses on is that of a Northern Ireland Bill of Rights.244 These results suggest that most of the focus on Northern Ireland in the UN treaty bodies once again comes from sources other than CAJ. Its high effectiveness, however, suggests that CAJ has been able to take advantage of this focus and have UN organs consider its submissions as a matter of priority. An even larger influence is revealed by a consideration of electronic documents at the Council of Europe. CAJ has by far the highest effectiveness of any of the British DNGOs at the Council of Europe.245 This may in part be because it won the Council of Europe Human Rights Prize in 1998, or it may be one of the reasons why it won the prize.

242 This profile is higher than that for BIRW. There are six hits for CAJ and three hits for BIRW. The pattern was broadly similar in the Senate – see http;//thomas.loc.gov/home/ (as accessed approx Nov 22nd 2002). 243 This profile is even higher than for BIRW. See http://www.unhchr.ch. (accessed approx Jan 9, 2003). The search engine for the charter based bodies is not very accurate and so has been omitted. One suspects, though, that it would yield similar results. 244 Northern Ireland gets 250 hits but there were no hits for any CAJ issues except the Bill of Rights – which gets one hit. 245 See http://www.coe.int. (accessed approx Jan 16, 2003). There are thirty seven hits for CAJ, zero for BIRW and one for Liberty. 323

In terms of print media, CAJ has a low profile in terms of mention by name in both “The Guardian” and “The Times”.246 These results suggesting low effectiveness might be deceptive in the case of CAJ, however, as neither of these papers, and no other national newspapers, are published in Northern Ireland. National newspapers in Britain tend to concentrate on concerns within England. Because of this counterveiling factor CAJ could be seen as having a high media profile for a DNGO in Northern Ireland and thus, despite the fact that its tactics do not require it, some (perhaps medium) sway with the media. Primary Effectiveness With regard to domestic lobbying CAJ has, as mentioned above, a profile in Parliament roughly as high as that of JUSTICE. This is surprising given CAJ’s small size and distance from London. It is less surprising when it becomes apparent from a search of Parliamentary documents that the issues that CAJ campaigns on have a very high profile in Parliament.247 It seems possible that these issues achieved prominence in the British Parliament completely independently of the work of CAJ. The fact that they fit into its agenda so closely, however, and are even phrased in the same way as they are in CAJ publications, leads to a strong inference that CAJ has somehow magnified this already existing focus. The obvious question once again, however, is the extent to which the above translates into primary effectiveness on the British Executive. As set out above, CAJ is mentioned in more documents at the site of the British civil service than BIRW, but less than Liberty or JUSTICE. The issues that CAJ focuses upon, as with JUSTICE, have a high focus in the British civil service.248 Nevertheless, as above, these issues do not translate into a strong presence within the documentation published by the Executive. While there is ample evidence of Executive concentration on Northern Ireland issues, there is little evidence of concentration on the issues that CAJ focuses on. There is also some evidence of Executive awareness of the work of the United Nations and the Council of Europe within the documents, but little evidence of US influence

246 In terms of agenda similarity, it shows much less similarity to the issues covered in “The Guardian” within its agenda than the other case studies, and roughly the same as BIRW in “The Times”. 247 See http://www.parliament.uk (accessed approx Jan 9, 2003). 248 All of the major issues described above receive the maximum possible number of hits (i.e. 100) at http://www.ukonline.gov.uk (accessed approx Jan 9, 2003). 324

on Northern Ireland policy.249 While on the face of it this may point to greater international influence on the Executive than from the US government, it may be that US influence on the British Executive is not public because of the close nature of that alliance. From the above it would seem that CAJ has significant secondary effectiveness in the European Court of Human Rights, the British Parliament, the US Congress, the UN treaty bodies, the print media and the Council of Europe. The documentation of the Executive suggests that primary effectiveness is medium in that the Executive has not been strongly socialised into responding to CAJ’s issues in the way it frames them. Overall, CAJ would thus appear to have a medium level of goal effectiveness. Information from Previous Chapters The material on CAJ’s mobilisation of law in the previous chapters tends to suggest a higher assessment of goal effectiveness than this. The material in Chapter Two on tactics indicates that CAJ's focus on a form of lobbying using law in international institutions and foreign governments plus international litigation would result in a high goal effectiveness. A DNGO in that situation is likely to be highly adapted to the environment and be able, with the help of international resources, to create effective tactics. The material in Chapter Three on structure gives some explanation for the above result. CAJ's centralised and mechanical structure gives it a tendency towards under-responsiveness to the environment that is only tempered by its networks with INGOs and DNGOs. It may be that these networks do not neutralise the under-responsiveness of the structure sufficiently to lead to high goal effectiveness. If so, this would explain an assessment of medium goal effectiveness. Lastly, the material in Chapter Four on resources also shows the characteristic pattern of a DNGO with high goal effectiveness. Because CAJ’s resources come primarily from offshore foundations, it has a weaker reciprocal culture with them than exists for instance between LDF and its local donor foundations. This in turn allows it to be more highly adapted to the environment and to achieve high goal effectiveness.

249 Northern Ireland gets 240 hits, while the European Court of Human Rights gets four hits, the Council of Europe gets eleven hits and United States on Northern Ireland gets zero hits at http://www.number-10.gov.uk (accessed approx Jan 18, 2003). 325

Looking at the data for goal effectiveness overall, with regard to secondary effectiveness CAJ seems to have changed the discourses of only some institutions and not others. Similarly, with regard to primary effectiveness CAJ seems to have altered the expectations of the Executive only on a small number of specific issues that already had a high profile and thus to have a medium effectiveness. This assessment may not be reliable, as the logic of the rest of the data in this work suggests a higher agenda effectiveness is to be expected. If an assessment of medium goal effectiveness is reliable, then there appears to be some problem in the Executive picking up messages from the institutions where CAJ is effective. If the assessment is not reliable, this may be due to there not being enough Executive documentation triangulated to give an accurate result. The author is of the opinion that the former is more likely, and that there are difficulties stemming from the practices of INGOs that CAJ is connected to in transmitting CAJ’s priorities to the British Executive. Overall Effectiveness and Conclusion CAJ has a higher level of agenda effectiveness than BIRW on the basis of the data here but, in contrast to BIRW, only a medium level of goal effectiveness. Using the method stated above, CAJ on this data thus has a medium level of effectiveness. As CAJ's resource base is neither particularly high nor low compared to the other case studies it does not particularly influence this assessment. While it clearly identifies the important issues within its mandate, it is not universally successful in pressuring the important institutions into addressing them. This is a surprising result as CAJ won the Council of Europe Human Rights Prize, and it suggests the possible difficulties involved in assuming levels of effectiveness from the receipt of such prizes. VII. HU Agenda Effectiveness Human Rights Issues in Germany Seen as Important by Commentators and Within HU's Mandate The human rights issues within HU’s mandate that have been raised by commentators with regard to Germany have been: 326

• ill treatment of members of ethnic minorities and asylum seekers by the police; 250 • the persistence of racism, xenophobia and anti- semitism among segments of the population; 251 • the use of solitary confinement in prisons; 252 • inhumane conditions in airport refugee detention centres; 253 • discrimination against certain religious sects in obtaining employment in the public service; 254 • dismissal of former GDR public servants on grounds of political opinion; 255 • the existence of an absolute ban on strikes by public servants; 256 • an increase in the incidence of racist violence; 257 • an increase of racist propaganda on the Internet relating to Germany; 258 • threats to the right of freedom of assembly; 259 • Globalisation as a general threat to human rights standards; 260 • the potential of anti-terrorism laws to lead to human rights

250 Concluding Observations of the UN Human Rights Committee: Germany Nov 18, 1996 CCPR/C/79/Add.73. para 11; Amnesty International Report 2002: Germany p1. 251 Ibid para 12; an issue in the press also – eg “Rechtsextremisten behalten” Die Welt July 31, 1996. 252 Ibid para 15. 253 See Report to the German Government on the Visit to Frankfurt am Main Airport Carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT) from 25 to 27 May 1999 at http:// www.cpt.coe.int/en/report/inf1999-10en1.html. (accessed approx Jan 18, 2003).Treatment of asylum seekers is also an issue in the press – eg “Wenn ‘Mehmet’ heimkehrt, droht der nächste Prozeß” Frankfurter Allgemeine Zeitung July 14 2002. 254 UN Human Rights Committee: Germany Op cit para 16; such discrimination is an issue generally in the press – eg “Senat bleibt bei Ablehnung der Zeugen Jehovas” Die Welt Dec 20, 2002. 255 Ibid para 17. 256 Ibid para 18. 257 Concluding Observations of the UN Committee on the Elimination of Racial Discrimination: Germany Apr 27 2001 CERD/C/304/Add.115 para 10. Human Rights Watch: Germany at http://www.hrw.org/europe/germany.php at p3 (accessed approx Jan 16, 2003). 258 Ibid para 12; an issue also in the press – eg “Jugend kämpft gegen Rechtsextreme im Internet” Die Welt Jan 18, 2001. 259 An issue mainly in the press – eg “Grüne wollen gegen Demonstrationsverbot klagen” Frankfurter Allgemeine Zeitung Feb 12, 2002. 260 Once again an issue mainly raised by the press- “Aus den Wahlprogrammen der Partein:Außen-, Sicherheits- und Verteidigungspolitik” Frankfurter Allgemeine Zeitung Aug 9, 2002. 327

violations;261 • government surveillance of telecommunications; 262 • the human rights implications of genetic technology;263 • insufficient incorporation of the Convention of the Rights of the Child into German Law; 264 • insufficient involvement of children in decisions affecting their lives; 265 • inequality of children’s conditions in different Länder; 266 • the treatment of child asylum seekers; 267 and • the right to fair trial in juvenile justice systems.268 Issues that HU Concentrates on Within its Mandate HU's agenda consists not only of a general concern for civil rights, but also a specific concern with: • gay rights; 269 • the prevention of aggression and upholding of the right to peace in international law; 270 • opposition to drug related criminal laws; 271 • opposition to harsh anti-terrorism laws; 272 • advocacy in favour of a secular state; 273 • opposition to discrimination on the grounds of political opinion; 274

261 Also mainly raised in the press – eg “FDP: Schily bei Antiterror 'Nicht seriös'” Frankfurter Allgemeine Zeitung 9 Jan, 2001. 262 Once again, an issue mainly in the press – eg G.Heinen “Ein brisantes Gesetz kommt fast unbemerkt daher” Die Welt 25 Oct, 2001. 263 An issue mostly in the press – “Mensch ohne Makel” Frankfurter Allgemeine Zeitung 25 Feb 2002. 264 Concluding Observations of the UN Committee on the Rights of the Child: Germany Nov 27 1993 CRC/C/15/Add.43 p3. 265 Ibid. 266 Ibid. 267 Ibid. 268 Ibid. 269 See http://www.humanistische-union.de (accessed Aug 28, 2000). 270 Ibid. 271 Ibid. 272 Ibid. 273 Ibid. 274 Ibid. 328

• a concern with human rights and genetic research; 275 • party financing; 276 • children’s rights; 277 • the Berufsverbot; 278 • anti-discrimination law; 279 • policing; and • discrimination against Muslim people.280 Comparing these two lists, HU's agenda covers eleven out of the twenty issues described above.281 This means that in general terms it is just within the range of medium agenda effectiveness. On the basis of the interview conducted with HU, the author felt that HU’s work on issues such as the new EU constitution pointed toward it having a medium rather than a low level of agenda effectiveness and this confirmed the above result.282 This level is comparable to that of the American case studies.

Information from Previous Chapters The materials in the previous chapters both support the above assessment and explain it. The material in Chapter Two on tactics shows that HU concentrates on an intellectual politics of human rights focused on left- liberal political elites, along with domestic lobbying. This tactical stance means that it to some extent favours the accumulation of legitimacy over rational adaptation to the environment. HU faces a loss of legitimacy from this elite group and in its lobbying targets if it were to adapt more to its opportunity structure. This is consistent with a medium effectiveness because the connection between the Left-liberal elite and decision-makers on human rights

275 Anträge an die Delegiertenkonferenz der HU 2001 (copy in possession of the author). 276 Ibid. 277 Ibid. 278 T. Müller-Heidelberg “Die Humanistische Union als älteste deutsche Bürgerrechtsorganisation” in 155(3) Vorgänge (Sept 2001) p13 at 17. For a definition of Berufsverbot see note 419 at p100 above. 279 Ibid p16. 280 40th Delegates Congress of the HU, Berlin, Sept 2001 (Notes in possession of the author). The author has deliberately left out some of the issues dealt with in the Grundrechte Report 2001 (Rowohlt, Reinbeck bei Hamburg, 2001) as this is a joint project of the HU and three other organisations. The same is true of issues dealt with by the Human Rights Forum of which the HU is a member. 281 There is thus a 55% overlap between the issues HU addresses and the human rights issues most often raised about Germany that are within the HU agenda. 329

seems sporadic, even in left of centre governments. Furthermore, HU's need for legitimacy could be expected to lead to it choose some goals that are less relevant. The material in Chapter Three on structure also supports this assessment. Although HU's structure is to some extent decentralised, its membership is unrepresentative of groups suffering human rights violations. There is also some question as to whether the traditional pro-social bias of some intellectuals in German history and culture can act to counter these problems within its organisational culture. In the context of these factors an assessment of medium agenda effectiveness makes sense. One would expect some balance between pro-social behaviour and access to information by intellectuals, that would make them somewhat responsive to the environment and able to choose relevant goals, and the insularity of the culture among the members, which might induce it to choose goals relevant to the membership, but not to Germany as a whole. The material in Chapter Four on resources also tends to support this assessment. The vast majority of HU's resources come from membership fees and volunteer work by members and supporters. Just as the culture formed between Foundations and the American case studies could induce them to choose goals legitimate with the culture they share rather than goals relevant to society as a whole, so HU’s culture has the possibility of having the same effect of causing the selection of less relevant goals because they are legitimate according to the membership and volunteers. One would expect some counterbalancing of this due to the high level of access to information at HU as result of its highly educated membership. This data thus supports the assessment from electronic documents above. Looking at this material overall, both the triangulations of electronic documents and the underlying logic of the data in the previous chapters points to a result of a medium agenda effectiveness. This conclusion thus seems reasonably reliable. HU on this data appears to choose relevant goals only some of the time. The reasons for this appear to lie mostly in the nature of its tactics and its organisational culture. Goal Effectiveness

282 Interview with HU, Berlin, Sept 2001 (notes in possession of the author). 330

With regard to primary and secondary goal effectiveness, HU exhibits situations of secondary effectiveness on the German progressive political elites, the Federal Constitutional Court and public opinion. It exhibits a situation of primary effectiveness in its lobbying work in the German Parliament, the federal bureaucracy and the Executive. Secondary Goal Effectiveness In order to examine HU's effectiveness on the progressive political elites two methods were followed. Firstly, a triangulation of search engines for the whole Internet was done, in the same way as for CCR, to look for documentation to evaluate HU's effectiveness in influencing these elites.283 Secondly, the documentation of the German Social Democratic Party and the Greens Party were examined for influence from their members who had also been members of HU. The triangulation of electronic information from the search engines reveals very extensive discussion of HU and its views. Not only is HU discussed on sites directly connected with parties that have power in the German Parliament,284 but also online magazines on progressive politics.285 The sites on which the HU typically features are connected with the issues it focuses on, such as secularism and the division between church and state; 286 human rights on the Internet; 287 policing 288 and gay rights.289 In addition, the echoing of HU's message by many German foundations suggests (as mentioned above) that they tend to aid human rights DNGOs not by increasing their money capital

283 Thus, Google, Yahoo and Alta Vista results were triangulated to get an idea of German sites that mention or discuss HU or its views. 284 Eg Green Youth Munich (http://www.gjm.de/links.html) and Green Newspaper (http://www.gruenezeitung.de/popo/krieg-terror/) (all footnotes between n284 and n290 accessed approx Jan 18, 2003). 285 Eg X-Berg Portal on Social Criticism (http://x-berg.de/urban/02/04/21/1010246.shtml); Ossietsky– Periodical for Politics, Culture and Economics. (http://www.spos.org/aufsaetze/3db05e5c35160/1.phtml ) and Stress Factor – Berlin Site for Left Subcultures and Politics (http://www.stressfaktor.squat.net/2002/mai_161.php). 286 Eg The Humanist (http://www.humanist.de/veranstaltungen/); Church Tax (http://www.kirchensteuern.de/links.htm); School Subject: Humanistic Life Knowledge (http://www.lebenskunde.de/brandenburg/documentation.htm). 287 Eg Save Privacy (http://www.saveprivacy.org/mbindex.php?act = displayTopic&topicld=43); Forum of Information Technologists for Peace and Social Responsibility (http://www.almeprom.de/fiff/material/lauschangriff.htm); FoeBuDev (http://www. Foebud.org/texte/action/videoueberwachung/). 288 Eg Critical Police (http://www.kritische-polizistinnen.de). 331

through grants, but by increasing their symbolic capital through publishing their views.290 The number and diversity of the recognition and discussion of HU by organisations and groups in German civil society is so much more voluminous than for CCR291 (which unlike HU aims to influence civil society generally), that it suggests a number of interesting questions. Could it be that HU actually aims to influence civil society generally in Germany (and the documents suggest largely succeeds) but does not wish to publicise this aim? If so, why is this so? If not, could this extensive penetration of civil society be a spillover effect from HU's tactics of networking and the goal of influencing progressive elites? Is the extent of HU’s influence exaggerated on the Internet because, of all the case studies, it focuses the most on dissemination of information through the Internet? For the author, the most likely explanation for the apparent high effectiveness of HU's work in German civil society according to this data is that it is a spillover effect from its attempts to influence progressive political elites, rather than some silent goal. It may be that HU's influence is magnified on the net compared to other media. However, to the author this seems unlikely as HU also has a higher media profile both in terms of mention by name and the profile of the issues it campaigns on (as well as phraseology) in the newspapers “Frankfurter Allgemeine Zeitung”292 and “Frankfurter Rundschau”293 than any of the other German case studies. This suggests to the author that the pattern of documentation on the net is indicative of HU's influence on the media and civil society in Germany generally. This evidence of widespread effectiveness in influencing civil society contrasts with HU's low effectiveness in the Greens Party and the German Social Democratic Party. These are the two major parties that HU members

289 Eg Progressive Homosexual Groups (http://www.beepworld.de/members/regenbogenliste- progressive/) and Homosexual, Bisexual and Transgender Students at the Free University Berlin (Http://userpage.fu-berlin.de/~schwule/linx.html). 290 See the Heinrich Böll Foundation (http://www.boell.de/de/04_thema/1105.htm/); the Fritz Bauer Institute (http://www.fritz-bauer-institute.de/infotek_nl-21.htm) and the Hofort Foundation (http://www.ahues.de/hosti/ggaufru3.htm). 291 On Google there are approximately 50 pages of documents containing the name of the HU. 292 HU gets 41 hits, KGD 16 and GBM five – see http://www.faz.net (accessed Aug 25, 2002) 293 HU gets 88 hits, KGD 40 and GBM two – see http://www.fr-aktuell.de/fr/ (accessed Aug 25, 2003). 332

join.294 Among the electronic documents at the Greens Party site there is only one mention of HU, and the agenda of the party does not focus on the issues that HU campaigns on.295 Similarly, among the documents of the German Social Democratic Party on the net only one mentions HU, and the agenda of the party once again does not focus on the issues that HU campaigns on.296 The question is how this discussion of HU in civil society and the progressive political elites does not appear to translate into effectiveness inside the major progressive parties in the way HU envisages. One reason might be that people who join these parties do not read or absorb the material described above. To the author this seems unlikely. A more likely explanation of these results would seem to be that the political parties in Germany have a much more powerful socialising effect than HU itself on these political elites. In terms of influence on the German Federal Constitutional Court, the evidence appears to point to a much lower level of effectiveness. The official site for the Court reveals only one mention of HU by name in a press release concerning the award by HU of the Fritz-Bauer Prize.297 Similarly, the University of Würzburg site reveals only one mention of HU by name, and Lexxion reveals no mention of HU in the case law.298 When the issues that HU campaigns on are compared to the issues that are high on the Court’s agenda a similar picture emerges. The evidence appears to indicate that the issues HU campaigns on have a low profile before the court, although they all appear in the Court’s recent case law.299 An analysis of the language used shows the same. It would thus appear from the data that HU’s strategy of changing the Court’s agenda through public debate rather than litigation is having limited success. Primary Effectiveness

294 Interview with HU, Berlin, Sept 2001 (notes in possession of author) along with noted interests of members of the Bundestag listed on http://www.bundestag.de (accessed Aug 25th, 2003).The site of the upper house of the German Parliament (the Bundesrat) was not searched because documents were difficult to obtain and because the Bundestag is the where most human rights issues are decided in the German Parliament. 295 The only exception to this is discussion of a European Bill of Rights, which gets 10 hits. See http://www.gruene-partei.de. (accessed approx Jan 19, 2003). 296 Once again the only exception to this is discussion of the European Bill of Rights, which gets 24 hits. See http://www.spd.de. (accessed approx Jan 19, 2003). 297 See http://www.bverfg.de (accessed approx Jan 19, 2003). 298 See http://www.uni-wuerzburg.de and http://www.lexxion.de. (both accessed approx Jan 20, 2003). 299 The main exception is data security/privacy on the Internet, which has a more considerable place on the Court’s agenda. 333

With regard to the German Parliament, HU appears to have a significant profile, both in terms of direct mention and in terms of the place that the issues it campaigns on have on the parliamentary agenda. A search of Bundestag documents reveals six direct mentions of HU.300 This seems a significant number, as the Human Rights Forum is only mentioned thirteen times and Human Rights Watch (to use a non-case study as a comparison) only eight times.301 In addition to this, certain issues that HU has campaigned on have a high position in the agenda of the German Parliament as whole. While autocausation of these results by forces within the Parliament itself is possible, the mention of HU by name in a number of party sites for Bundestag members302 (parties being a important force in the Parliament) would seem to suggest that discussion of HU and its issues is a general phenomenon. When this material is put together with the mention of the Human Rights Forum, which also lobbies on HU’s issues, an even more impressive picture emerges. For these reasons, HU would seem to have a medium to high effectiveness within Parliament. The interesting question, of course, is what effect these various forms of primary effectiveness have on the German bureaucracy and Executive. In terms of profile within the German bureaucracy, HU appears to get more mention by name in documents on the two Internet sites of the German bureaucracy than the other German case studies, although much less often than some INGOs.303 This seems to point to a low effectiveness. As to the relative size of the profile of the issues that HU campaigns on within the German bureaucracy, the two sites covering the matter appear to give different answers. Within one site the issues that HU campaigns on appear to have a high profile, while in the other the profile of these issues seems relatively low.304 The site on which the profile of HU issues is low appears to

300 There were no mentions of the other German case studies. See http://www.bundestag.de (accessed approx Jan 19, 2003). 301 Amnesty International is mentioned 159 times. Amnesty, however, would seem to be in a different league to the other NGOs mentioned above. 302 See the site for the PDS (http://www.pds-im-bundestag.de/), SPD (http://www.spdfraktion.de) and the Greens (http://www.gruene-fraktion.de) (all these sites accessed approx Jan 18, 2003). 303 At http://www.bundesregierung.de HU gets two mentions, while at http://www.bund.de HU gets four mentions with Amnesty International getting 166 mentions by name (all sites accessed on approx Jan 18, 2003). 304 The profile seems low in the Bund site mentioned in the last footnote and high in the Bundesregierung site. 334

cover more exclusively bureaucratic matters, whereas the site where HU issues have a high profile contains more directly political matters. This suggests that HU’s relatively high profile within the German Parliament probably affects the site with more political material in it, whereas the more purely bureaucratic site is less affected. If this reading is correct, then HU’s influence on the bureaucracy exists but takes the form of a low profile, whereas its work in the Parliament is overflowing into Executive political discussions. This reading seems confirmed by an investigation of the site of the German Chancellor. In the documents on this site HU is not mentioned by name, but neither are the names of virtually all NGOs, including Amnesty International.305 This suggests that the place of the issues that HU campaigns on in the agenda of the Executive are a much more significant reflection of effectiveness. In this regard, the issues HU campaigns on have a high profile. This is so even when compared to issues such as the environment or the relation of Germany to the European Union.306 When examined in this way, HU's profile in the Executive seems high to medium and thus similar to that which it enjoys in Parliament. Given that this result is based only on agenda similarity and language, however, it may not be as reliable as that for Parliament. As HU's strategy is to socialise political figures before they achieve political power, as well as to lobby, it is much more difficult to rule out autocausation in HU's case than for many of the other case studies. In addition, there is a degree of contradiction between various collections of documents on the Internet, which further complicates the matter. Despite these caveats, however, seeing as though the current Chancellor is a former member of HU (as is at least one of his cabinet members), and seeing as though the sites with political documents in the Executive seem to reflect the prominence of HU’s issues in the German Parliament, the data seems to point to HU having a medium primary goal effectiveness on the Executive and overall. Interestingly, the pattern of this effectiveness seems to be a mirror reflection of that of many of the American and British DNGOs above, with low effectiveness on the

305 See http://www.bundeskanzler.de (accessed approx Jan 18, 2003). 306 For example democracy on the Internet, an issue HU campaigns on, gets 549 hits in a search of this site whereas the economy only gets 117 hits. 335

bureaucracy and higher effectiveness on the political section of the Executive rather than the other way around. Information from Previous Chapters The materials in the previous chapters also seem to confirm and explain this assessment of goal effectiveness, especially Chapter Two. As mentioned in that chapter, HU, like the American case studies, favours legitimacy over rational adaptation to the environment. Essentially this means that the demands of its members (and of the government and elites) require it to act in certain ways that do not lead to maximum exploitation of opportunities or creative approaches. Despite this, HU is privy to a great deal of information and has access to government because of the nature and high level of education of its members. For these reasons, a medium level of goal effectiveness seems a plausible result. The material in Chapter Three on structure also supports this conclusion. Despite a decentralised and largely organic structure, HU's organisational culture is made up of a relatively isolated elite that has a tendency to be resistant to change. A degree of under-responsiveness to the environment thus exists. One would thus expect that this balance of factors would lead to a medium result for goal effectiveness similar to that set out above. Lastly, the material in Chapter Four on resources can also be understood as supporting and explaining the above result. HU obtains most of its monetary and intellectual capital from its members. These members demand certain tactics that they regard as legitimate, rather than necessarily tactics that are well adapted to the opportunity structure. On the other hand, HU’s members are well educated, and as a result it has access to considerable amounts of information that could lead to greater adaptation to the environment. Because of this balance of forces the result of a medium goal effectiveness seems to be a plausible result. Overall, HU appears to have changed the expectations of some institutions, such as the German Parliament, and not others such as the Greens and the Social Democratic Party. This result appears to reveal significant difficulties in both HU's tactic of influencing political elites and in its organisational culture. As the underlying logic of the previous chapters appears largely to support this result, it seems quite reliable. The triangulations could have been more reliable if more documentation had been available to the 336

author from the German federal Executive, as this may have further clarified the issue of effectiveness in that institution. Overall Effectiveness and Conclusion HU presents a picture of medium success for both agenda effectiveness and goal effectiveness. Using the method to reconcile these figures set out above, it thus presents a picture of medium effectiveness overall. As with LDF and LCCRUL, it is in the area of selecting the correct issues for its agenda that the data would seem to suggest that HU is less than perfectly effective. In contrast to the other case studies the problems for HU seem to stem from its character as a membership organisation. The fact that HU, as a German DNGO, achieves as high a level of effectiveness as many of the American case studies once again points to the fact that many effective models of DNGO work exist outside of the American examples usually emphasised in the literature. VIII. KGD Agenda Effectiveness Social Rights Issues in Germany Seen as Important by Commentators KGD's agenda covers the same civil rights issues set out above for HU except for the childrens' rights issues, and so these issues will not be listed again. In addition it works on a number of social rights issues. The social human rights issues in Germany that have been raised and that fall within KGD's mandate have been: • a lack of training of legal officials and judges on the law concerning social rights; 307 • the violation of the social rights of refugees; 308 • lower levels of social rights in the new Länder compared to the older ones; 309 • high levels of youth unemployment; 310 • violation of the social rights of illegal workers; • levels of some pensions and social security benefits violate the right to an adequate standard of living;

307 Concluding Observations of the UN Committee on Economic, Social and Cultural Rights: Germany Sept 24, 2001 E/C.12/1/Add.68 para 13. 308 Ibid para 16. 309 Ibid para 17. 337

• a lack of day care centres for children;311 • unacceptably high levels of homelessness; • the requirement of education fees in some Länder violating the right to education; 312 • unacceptable prison labour practices; and • undue restrictions on the right to strike.313 The Issues KGD Normally Works On Among the issues that KGD has concentrated on in recent times have been: • defending the right to peace domestically and internationally; 314 • upholding the right to demonstrate; • defending the rights of refugees; • upholding human rights in the criminal justice system; • the treatment of prisoners; • new technologies such as the Internet and • biomedicine and human rights; • defence of social human rights; • the right to a good environment; • the right to a fair trial; • questions of human rights within the EU; 315 • anti-terrorism laws; 316 • discrimination against the Kurdish minority; 317 • the banning of political parties; 318 • Globalisation and violations of human rights; 319 and

310 Ibid para 18. 311 The right to access to day care centres by children is not considered here as a children’s right, because it is not listed in the Convention on the Rights of the Child, adopted 20 Nov, 1989, entered into force 2 Sept 1990, G.A. Res 44/25, 44 UN GAOR, Supp (No 49), UN Doc. A/44/49, at 166 (1989), reprinted in 28 ILM 1448 (1989). 312 All of these below from Concluding Observations of the UN Committee on Economic, Social and Cultural Rights: Germany Op cit pp3-4. 313 For both of the last two see European Committee on Social Rights Conclusions XVI at http://www.coe.int/T/E/Human-Rights/Esc/ (accessed approx Jan 20, 2003). 314 See http://www.grundrechtekomitee.de (accessed Aug 16, 2000). 315 All of these issues are drawn from Ibid. 316 KGD Jahrbuch ‘95/’96 p91. 317 Ibid p105. 338

• the right to education. 320 From the issues raised by commentators KGD covers seventeen out of twenty four issues.321 Its results are thus marginally higher than the cut-off point between medium and high according to the ranges above. On the basis of KGD’s work in areas such as political prisoners, opposing the watering down of the welfare state and its focus on the unemployed as revealed in interview and the questionnaire it completed, the author felt that it was justifiable to assess KGD’s agenda effectiveness as high rather than medium.322 Information from Previous Chapters The material on KGD’s mobilisation of law in the previous chapters, however, does not clearly correlate with this result. The materials in Chapter Two on tactics show that KGD focuses upon domestic publicity, publication and direct action and heavily favours ideological legitimacy with social movements rather than rational adaptation to its environment. One would expect from this material that KGD would have a much lower agenda effectiveness, on the basis that it would feel compelled to choose less relevant human rights goals in order to maintain its ideological legitimacy. The materials in Chapter Three on structure also point in this direction. The relatively organic nature of KGD’s structure in terms of its networks with social movements is balanced by an organisational culture that is highly ideological and somewhat inflexible. The ideological nature of KGD’s culture would suggest that it is to some degree underresponsive to the environment. This in turn means that KGD would not structurally be open to the type of information inputs that would be conducive to the selection of highly relevant goals. This material also thus suggests a lower assessment for agenda effectiveness. Lastly, the material in Chapter Four on resources also implies a result that is somewhat more mixed than the above result tends to suggest. KGD gets most of its resources from members and from the social movements that it has

318 Ibid p398. 319 KGD Jahrbuch ‘98/’99 p35. 320 Ibid p350. 321 This comes to a 70.83% overlap between the issues KGD covers and the issues often raised in Germany that fall within its mandate. 322 Interview with KGD, Cologne, Sept 2001 (notes in possession of the author); Questionnaire Completed by KGD 2001 (original in possession of the author) p11. 339

close connections to. Although, as mentioned above, this has the effect of motivating it to address human rights violations of concern to social movements, it is likely that it also has a restraining effect. The common culture of KGD and the social movements could have the effect of restraining KGD from choosing relevant goals that are outside of what this common culture focuses on. On this material a mixed result thus seems more plausible. Overall, the qualitative material from the previous chapters does not correlate well with the triangulation of the electronic documents set out above. This might suggest that the assessment made here that KGD has high agenda effectiveness because it nearly always chooses relevant goals is not very reliable. Whether the triangulations of electronic documents (and some qualitative material) are the more accurate indicator of KGD’s agenda effectiveness, rather than the logic of the material on mobilisation of law, may only be resolved by the triangulation of a larger volume of material. If the contradiction could not be resolved in this way then it might point to the need for a redesign of the method used in this chapter Goal Effectiveness The secondary goals that KGD pursues, as can be gathered from the chapter on tactics, focus upon influencing public opinion through networking with social movements, publicity, direct action and publication. KGD also lobbies and litigates, but not as actively. Through attempting to create secondary effectiveness in these areas it appears to try to achieve high primary effectiveness on the German Parliament and Executive.323 Secondary Goal Effectiveness In order to test the effectiveness of KGD's publication goal, it is useful to take into account the criticism levelled by Korey of the publication practices of Amnesty International. He criticised Amnesty for not attempting to direct its publications to where they would be most read and have the most impact.324 This criticism was applied in the method used here to assess the effectiveness of KGD's publication programme.

323 Or, another way at looking at the goals of KGD is that it intends primary effectiveness to be on opinion in civil society and not the state. The opinion stated above, however, seems more plausible as KGD clearly targets and wants to change state policies in Germany. 324 W.Korey NGOs and the Universal Declaration of Human Rights (St Martin’s Press, New York, 1998) p340. 340

In order to determine whether KGD publications are widely circulated and read, it was decided to investigate the availability of KGD publications in German bookshops and major public libraries. The availability of KGD publications in German bookshops was investigated through a triangulation of the catalogues of thirty German bookstores from all over Germany (covering many millions of volumes) in the order that they were presented by one of the search engines.325 This triangulation of catalogues revealed that eleven out of thirty bookshops (or roughly one third) carried KGD publications. This was mainly due to the fact that two of the major databanks of German books used by most German bookstores featured KGD publications.326 In investigating the circulation of KGD publications within major German public libraries, the German National Library was investigated first, and then the catalogues of twenty further state libraries were triangulated.327 The German Library holds KGD publications in all its major branches.328 In addition, twelve of the twenty catalogues of major German public libraries also hold KGD publications.329 The majority of state and city libraries thus hold KGD publications. What this data appears to indicate is that KGD has substantial recognition and intercourse with a large minority of German booksellers, and a majority of major German public libraries. KGD's works are thus distributed through the normal channels that ordinary German citizens would obtain books through in order to be informed on human rights issues. For these reasons, KGD appears to have a high effectiveness in achieving its goal of publication on the human rights issues it campaigns on.330 In order to test the effectiveness of KGD's work in networking and publicity, a search of the entire Internet was done for references to KGD (as

325 The search engine used was Google. 326 These were buchhandel.de and VLB. 327 In addition to the German Library the following libraries were investigated: the libraries of Berlin and Bavaria and the state libraries of Baden, Württemberg, Berlin, Düsseldorf, Rhineland, Lower Saxony, Saxony, Thuringia, Pfalz, Bonn, Saxon-Anhalt, Mecklenburg-Vorpommern, Dortmund, Oldenburg, Saarland, Schleswig-Holstein, Potsdam and Wiesbaden. 328 Namely, the Leipziger Bücherei, Deutsche Bibliothek Frankfurt am Main and the Periodicals Databank – see http://www.ddb.de. (accessed approx Jan 21, 2003). 329 i.e. 60% of the libraries held KGD publications. Note, however, that the holdings were usually of less than half a dozen publications compared to the 86 volumes held by the German library. 330 Some of the publications may be distributed by the social movements that KGD has links to as described below. 341

was done above for CCR and HU) through triangulating search engines. The results suggest that KGD has an even more extensive network and penetration of civil society and social movements than HU.331 Given that KGD essentially arose from the German peace movement, unsurprisingly the most frequent type of documents on the net mentioning KGD come from peace organisations.332 There are also extensive links with the environmental movement,333 socialist and Left parties and newspapers,334 churches335 and a plethora of citizen’s initiatives (especially on the right to demonstrate336 and the rights of refugees337). While these results suggest extensive links between KGD and social movements and extensive discussion of KGD and the issues it campaigns on in civil society generally, other results present a different pattern. While KGD features regularly on Left wing newspapers and magazines338 on the net, it features less often in the liberal newspaper "Frankfurter Rundschau"339 and even less in the conservative "Frankfurter Allgemeine Zeitung" newspaper, both in terms of mention by name and in terms of the issues that it campaigns on. This medium to low profile in "Frankfurter Allgemeine Zeitung" may be because all of the German case studies (and maybe all German DNGOs) have

331 In fact there were 100 pages plus hits for KGD on Google compared to 50 for HU. This suggests a substantially larger size for KGD’s network compared to HU. 332 Eg Info Service of the Reutlinger Peace Group (http://heller-juergen.de/reutlinger- friedensgruppe/Bellipazifismus%20komitee_fuer_grundrechte_und_demo.htm); the Institute for Peace Education, Tübingen (http://www.friedenspaedogogik.de/service/literatur/lithtml/kdV1.htm); Wittner Peace Forum (http://www.orforum.de/afgvk/wfforum.htm) and the Gorleben International Peace Team ( http://wwwgipt.de/o-brief.htm)(all the sites from here until footnote 339 accessed approx Jan 22nd, 2003). 333 Eg The Green University Group, Constance (http://www.asta-uni- konstanz.de/hsg/gruene/hecker/volk150.htm) and the Environment Centre (http://www.muenster.org/uwz/mattext.htm). 334 Eg Grassroots Revolution – Left Newspaper (http://www.grasworzel.net/227/11.shtml); Anti-Fascist News (http://www.antifasciste-nachrichten.de/2002/09/jelpe.php) and the Party of Democratic Socialism (PDS) (http://www.geocities.com/pds-bagi/offbrief-goteborg.htm). 335 Eg Evangelical Academies in Germany (http://www.ekd.de/akademien/gs.htm). 336 Eg May 1st Demonstration (http://erstermai2001.tripod.com/text1.html); Robin Wood (http://www.umwelt.org/robin-wood/german/prozess/Komitee.htm). 337 Eg Active Against Expulsion – No Human Being is Illegal! (http://aktivegegenabschiebung.de/011205Komitee.htm) and Net Against Expulsion (http://www.abschiebhaff.de/aktion/K280.htm). 338 Eg Lira (http://www.uni-duisburg.de/AL/lira/archiv/platf01.htm) and Geheim (http://www.infolinks.de/medien/gehiem/1999/04/010.htm). 339 Eg Tageszeitung (Ruhr) (http://www.taz-ruhr.de/21.1.99/1html) and Frankfurter Rundschau (http://www.fr-aktuell.de/fr/). 342

a low effectiveness in the mainstream print media. 340 This suggests to the author that it has engendered a great deal of discussion of itself within social movements and the left wing politicised areas of German society, but is much less noticed and discussed within mainstream German society. If this is a correct reading of the data, then it suggests that KGD has a high effectiveness in its goals of networking and direct action, but only a medium to low effectiveness in publicity and discussion within civil society as a whole. Looking at the German courts, KGD is not mentioned by name in any of the documents of the German Federal Constitutional Court or the Federal Supreme Court on the Internet. Triangulating the three sites for German case law as used for HU, however, shows that the issues that KGD campaigns on have a significantly higher profile in the Constitutional Court than HU's issues do. KGD also appears to have some profile in other courts such as the Federal Supreme Court, the Federal Administrative Court and the Federal Social Court. From this data it would appear that KGD has a medium effectiveness before the German courts. The above is a surprising result given KGD’s stated distain for working with state institutions341 and lack of litigation resources. It would seem that the main logical explanations for the result would either be autocausation on the part of factors internal to the German courts, other DNGOs going before those courts and altering the court agenda or that KGD has had the effect of inducing individuals through its work to seek redress before the courts through reducing the factors that deter litigants from seeking redress (or some combination of the three). Primary Effectiveness With regard to the German Parliament, there is no mention of KGD by name in Bundestag documents on the Internet.342 In order to check if the Bundestag was nevertheless discussing the issues that KGD campaigns on, Bundestag documents on the Internet were triangulated and they showed a low

340 However, KGD does not even have a high profile compared to the other German case studies. 341 Interview with KGD, Cologne, Sept 2001 (notes in possession of the author). 342 See http://www.bundestag.de (accessed approx Jan 16, 2003). 343

profile for KGD's issues and phraseology.343 Overall, KGD thus appears to have a low effectiveness in the German Parliament. KGD’s name does not appear on the site of the Federal Chancellor. None of the German case studies is mentioned by name in the documents on this site. However, when the profile of the issues that KGD campaigns on in this site is compared to the profile of issues HU campaigns on, the KGD issues have a much lower profile. KGD thus appears also to have a low effectiveness with the German Chancellor. With regard to KGD's primary effectiveness on the German federal bureaucracy, on both of the sites that contain documents from the German federal government departments KGD is mentioned less than HU by name. The issues that it campaigns on also have a lower profile than the issues HU campaigns on. In short, the data suggests that the bureaucracy rarely discusses KGD or what it sees as important issues. Searches of the two bureaucratic sites used above for HU and the Chancellor’s site together thus indicate (surprisingly given KGD’s high secondary effectiveness in many areas) that KGD has a low primary effectiveness, and that the German Executive thus has not been socialised or had its expectations altered by KGD's activities.344 Information from Previous Chapters This result is consistent with and explained by the materials in the previous chapters. The materials in Chapter Two on tactics suggest that KGD has misidentified the public in general as the secondary holder of power (compared, for example, to political elites) that has the most influence on the government on domestic human rights issues. Furthermore, KGD's ideological nature means that it favours ideological legitimacy with the social movements it is connected to over rational adaptation to the opportunity structure, and this could be expected to lead to a low goal effectiveness. Similarly, the materials in Chapter Three on structure reveal the same problem from the point of view of organisational culture. The ideological nature of KGD’s culture appears to have the effect of making the entire structure

343 The only issue with a reasonable profile in the Bundestag which KGD campaigns on was the violation of human rights as a result of Globalisation. 344 This may perhaps confirm the view expressed by Jane Winter of BIRW to the author that public awareness work with civil society in general is not very effective in human rights work – Interview BIRW, London, Oct 2001 (notes in possession of the author). 344

underresponsive to the German opportunity structure and thus lowering its effectiveness. Lastly, the materials in Chapter Four on resources indicate that KGD is reliant upon its members and social movements for resources. This means that it has a narrow range of sources of resources and that these sources of resources have the capability of restricting its adaptation to the environment through their demands and cultural influence. While it is true that social movements could also spur KGD on to defend human rights through their influence, one suspects that restrictions imposed by social movements would also have an effect. This material thus also points to a low goal effectiveness as being plausible. Looking at this material overall, KGD does not seem to have changed the expectations or discourse of the primary decisionmakers on domestic human rights in Germany. Its overall goal effectiveness thus appears from this data to be low. This result appears quite reliable if the methods used to investigate publication and civil society effectiveness give an accurate picture. A very stark contrast exists in the material for KGD between a relatively high secondary effectiveness and low primary effectiveness. This apparently failed attempt to achieve indirect primary effectiveness seems to be mainly as a result of the historical division between the German Third Sector and mainstream politics and society mentioned in Chapter Four. Overall Effectiveness and Conclusion KGD shows the greatest contrast amongst the case studies between agenda and goal effectiveness in seeming to have a high agenda effectiveness and low goal effectiveness. Overall, on the basis on the available data and the method for reconciling these assessments described above, KGD thus appears to have a low effectiveness overall. The data appears to indicate that the assessment for agenda effectiveness may not be totally reliable, while the assessment for goal effectiveness is reliable. If this result is accurate, it contrasts with the image presented by the many prizes KGD has won, and throws its unique tactical stance into serious question as a viable choice for DNGOs (at least in the German context). IX. GBM Agenda Effectiveness - The areas of activity that GBM covers are not only the areas of civil and social rights (whose currently prominent issues are 345

outlined above for the assessment of HU and KGD and will thus not be repeated), but also the area of women’s rights in Germany. Womens' Rights Issues in Germany Often Raised by Commentators The main issues normally raised with regard to women’s rights in Germany are: • lower levels for the enjoyment of all the rights of women in the newer Länder; 345 • continuing wage gaps between men and women; • the persistence of stereotypical and traditional attitudes about gender roles; • a lack of programs targeting men to change their attitudes and behaviours; • the precarious situation of foreign women living in Germany; • the continuing gap in protections against violence against women; • the lack of legal protection of prostitutes; • the lack of legal protection of women asylum seekers.346 Issues GBM Focuses on Within its Mandate The issues that make up GBM's current agenda are: • pension and social security laws violating the right to an adequate standard of living; 347 • long term unemployment as a violation of the right to work; • homelessness as a violation of the right to housing; • persecution of foreigners as a violation of the right to equal protection of the laws; • violation of the rights to a fair trial in political prosecutions; • the Berufsverbot; • violation of the right to academic freedom;

345 Concluding Observations of the UN Committee on the Elimination of Discrimination Against Women: Germany Feb 2, 2000 A/55/38 para 307. 346 All of these from Ibid pp5 and 6. 347 See http://www..gbmev.de (accessed Aug 14, 2000). 346

• protection of the right to peace both domestically and internationally; • women’s freedom from discrimination348; • the rise of neo-fascist groups as incitements to racist hatred; 349 • discrimination on the basis of political opinion; 350 • discrimination against former East German citizens; 351 • freedom of expression; 352 • the rights of asylum seekers; 353 • Globalisation and human rights; 354 • opposition to racial discrimination; 355 • the enforcement of international criminal law; 356 • violations of the right to health; 357 and • violation of the right to enjoy east German culture. 358 As the information on civil rights in Germany does not normally disaggregate the data on the eastern part of the country from the rest of the country and GBM’s mandate does not focus on civil rights, GBM will be assessed for agenda effectiveness only on the basis of its coverage of social and women’s rights issues. Assessing GBM in this way it has a high agenda effectiveness, in that it covers fourteen of the nineteen issues above - which is just within the range of high effectiveness.359 The author felt that GBM’s unusually comprehensive and successful focus on social rights as revealed in interview merited a high rather than a medium agenda effectiveness, even though its score was only 3% within the high range.360

348 All of the above from Ibid. 349 (1998) 12 (No2) Icarus p38. 350 (1998) 14 (No4) Icarus p4. 351 Ibid p5. 352 Ibid p55. 353 Ibid p85. 354 Ibid. 355 (1991) 15 (No1) Icarus p49. 356 (1999) 16 (No2) Icarus p2. 357 GBM White Book 1992 p142. 358 Ibid. 359 This means that there is a 73.68% overlap between the issues GBM covers generally and the issues that other sources usually raise as being important. 360 Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). 347

Information from Previous Chapters The materials on the mobilisation of law in the previous chapters appear to support and explain this result only in part. The material in Chapter Two on tactics suggests that a high agenda effectiveness is a plausible result. GBM's concentration on international work because of the relative hostility to the issues it campaigns on in the German government, has allowed it to a large degree to escape local demands for legitimacy and to become rationally adapted to the environment. This could be expected to mean that GBM would not be constrained to choose goals important to those from whom it requires legitimacy, but rather that it would have the information and freedom to choose goals relevant to the achievement of its mandate. The materials in Chapter Three on structure, however, are ambiguous. While GBM's structure is somewhat rigid and mechanical, it is also decentralised into many local branches that give it organic elements. As with the other German case studies its organisational culture is somewhat insular and elite, but also contains former GDR officials who seem to have been very successful in networking and accumulating relevant information. The logic of the material in this chapter is thus not clear. It may suggest a lower agenda effectiveness because of elements of lack of responsiveness to the environment. It may also be that this material is no aid in the assessment because there is no clear pattern. The materials in Chapter Four on resources tend to suggest that a lower agenda effectiveness could be expected. GBM obtains its resources almost entirely from members and donations. This suggests that the culture and influence of these sources of resources would be expected to create restraints on GBM choosing relevant goals. This would point to a low agenda effectiveness. It may be that because GBM obtains some of its legal and symbolic resources internationally, this creates a de facto diversity of resource acquisition sources that allows it to better adapt to the opportunity structure and choose relevant goals. If this is the case, it is not unambiguously clear on the face of the data gathered for this work. Overall, the qualitative material from the previous chapters only partly correlates with and explains the strong result on the basis of the triangulation of the electronic documents. This may be because the focus of assessment of agenda effectiveness for GBM on social and women’s rights is too restricted. It 348

may also be because human rights data on Germany is never disaggregated so as to show the situation for the newer Länder. Better data on either of these should make the result more reliable. As it stands, however, GBM’s result for agenda effectiveness does not seem entirely reliable or explicable on the basis of data available to the author. Goal Effectiveness GBM's major secondary goals, as can be seen from the previous chapter, differ somewhat from those of HU and KGD. In terms of secondary effectiveness, in much the same way as KGD GBM principally pursues the goal of influencing public opinion on the issues it campaigns upon through publication. Supplementary to this is litigation (both in the Federal Constitutional Court and in international fora i.e. primarily the European Court of Human Rights); lobbying (both internationally and domestically); media work within Germany and networking both with other groups in eastern Germany and with human rights INGOs. GBM's primary effectiveness, of course, once again focuses upon influencing the German Parliament and federal Executive. Secondary Goal Effectiveness In order to test the effectiveness of GBM's publication work a similar strategy was adopted as that used with regard to KGD, except that the bookshops and libraries investigated were all within the territory of the former East Germany in order to reflect the audience that GBM largely appeals to. Of the thirty bookshops investigated for GBM publications on the basis of a search engine search, five out of the thirty (or roughly seventeen percent) carried GBM publications. This is about half the rate at which bookshops carried KGD publications nationally. Looking at the State and city libraries within the former East Germany, it was found that four out of the ten major libraries carry GBM publications, and that GBM publications were also carried by all of the major branches of the German Library nationally.361 Less than a majority of libraries within the territory of the former East Germany thus carried GBM publications. On the face of it these results would seem to suggest that GBM is much less effective than KGD in its publication programme. It may be, however, that these results support GBM's allegation that east German culture and politics have been 349

systematically purged in the reunification process. If this was so, its publications would also have been a victim of this process. On this view, GBM has been relatively successful given the odds against it. On the other hand, if GBM materials are part of such a purge its publication efforts must still be assessed on the basis of the success of its efforts in overcoming the effects of such a phenomenon. Taking this latter view, GBM must be seen to have a medium to low effectiveness in its publication efforts. With regard to the Federal Constitutional Court, the same three databases used for HU and KGD were triangulated for GBM (as well as for GRH362 and the Initiative Against the Berufsverbot which are members of it).363 What they showed was a relatively consistent pattern of GBM having less influence over the agenda of the court than the other two German case studies, and a low effectiveness when the issues it campaigns on were compared to the major issues the Court considers. There were two relatively minor exceptions to this pattern. Firstly, GBM is mentioned by name five times on the official site of the Constitutional Court, but is not mentioned on the other two sites. This could indicate that GBM directly litigates in its own right (rather than in the name of another) in the Constitutional Court more than the other German case studies, or it may simply be a peculiarity of the documents at that site. Secondly, on the lexxion site the issues that GBM campaigns on show a much higher number of mentions in the other German federal superior courts such as the Federal Administrative Court, the Federal Supreme Court and the Federal Social Court than either of the other two case studies.364 This may suggest that, contrary to what appears in GBM literature and its interview with the author, the bulk of its litigation efforts are outside the Constitutional Court.365 Taking the Constitutional Court as the goal

361 The German National Library only holds four to six volumes, however, of GBM publications in its branches. 362 The GRH (Gesellschaft zur Rechtlichen und Humanitären Unterstützung e.V.), is a member as an organization of GBM that does litigation . See http://www.grh-er.org (as accessed Apr 29, 2004). 363 They were once again the Official Site of the Constitutional Court (http://www.bverfg.de/ ), the University of Würzburg site (http://www.uni-wuerzburg.de/) (searched using Google) and the Lexxion site (http://www.lexxion.de ) (all accessed approx Jan 16, 2003). 364 This is especially so concerning property relations after reunification in the former East Germany (58 hits). 365 Or perhaps that German judges in other courts resist referring cases from GBM to the Constitutional Court. 350

that GBM wishes to focus on, however, its effectiveness in litigating in this court must on the basis of this data be considered low. Turning to the European Court of Human Rights as a target of GBM in litigation, a surprising picture emerges. Whereas in its interview GBM stated that it had been involved in over fifty cases before the European Court of Human Rights, twenty of them directly,366 the author was not able to detect a mention of GBM (or GRH or the Initiative Against the Berufsverbot) in any case against Germany before the Court.367 This may be because GBM does not take cases itself but supports plaintiffs. However, a search of the cases against Germany in the Court, Commission and Committee of Ministers in Strasbourg confirms the above, as it reveals only four cases which deal with the issues that GBM campaigns on, with two of them clearly being directly brought by GBM.368 The reconciliation of these two sources of data is difficult. It could be that GBM is right about the numbers of cases, if part of its work includes aiding litigation outside of the former East Germany on issues it does not normally campaign on. It may also be that a large percentage of its work does not ever even get to the admissibility stage in Strasbourg, which would mean it would not show up in documentation. It seems much more likely to the author, however, that the number of cases that GBM takes to Strasbourg is lower than stated above. Taking four cases as the number of cases that deal with GBM issues before the Court, and no direct mentions of GBM, its profile before the court would seem to be lower than that of CAJ and JUSTICE above. It would thus seem that GBM has a medium effectiveness in its work in the European Court of Human Rights. Among the institutions which GBM lobbies internationally are the United Nations Human Rights treaty committees, and especially the UN Committee on Economic, Social and Cultural Rights. An examination of UN documentation on the Internet reveals that GBM is named twice in the documents of the UN treaty committees,369 whereas CAJ and BIRW (the other case studies targeting these

366 Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). 367 See http://www.echr.coe.int. (accessed approx Jan 16, 2003). 368 These are Vogt v Germany Sept 9, 1996, KHW v Germany Mar 22, 2001, Streletz, Kessler and Krenz v Germany Apr 22, 2001 and Gast & Popp v Germany Feb 20, 2000. It is clear that the KHW and Streletz cases were bought by GBM because their lawyer, a Mr Gardiner of the London bar, appears on the report. 369 See UN documents CERD/C/SR.1197 and E/C.12/4/Add3. 351

committees) are mentioned seven and three times respectively.370 With regard to the issues that GBM campaigns on, these are discussed in the documentation of the human rights committees roughly half as frequently as the issues that CAJ and BIRW campaign on. Some issues, however, such as unemployment in the former East Germany and the protection of human rights within the reunification process, do seem to be discussed relatively often. Altogether this data would seem to suggest that GBM has a medium effectiveness within the UN human rights treaty committees. Unfortunately, it is not possible to confirm or deny the work that GBM says it does at UNESCO (the United Nations Educational, Scientific and Cultural Organisation), or assess its effectiveness. This is because GBM has mostly been involved in the lodging of human rights complaints with UNESCO under the 104 EX/Decision 3.3 of the Executive Board, which is a confidential procedure that does not result in published documents.371 The remaining documents of UNESCO on the Internet do not show evidence of consideration of the issues GBM campaigns on. An only slightly clearer picture emerges when an attempt is made to determine GBM's effectiveness in the ILO (International Labour Organisation). When searching ILO documents on the Internet with two separate search engines372 there is no mention of GBM in either German or English. When ILO documents are searched for the issues that GBM campaigns on, however, there are a very large number of hits on about half of the issues.373 To the author, the lack of mention of GBM by name suggests a lack of profile, while the issues that are prominent at the ILO that GBM campaigns on could be prominent not specifically through its efforts, but as result of autocausation within the ILO. The fact that the phraseology of these issues at the ILO does not clearly reflect that of GBM seems to confirm this. In contrast, the fact that most issues that GBM campaigns on are discussed at the ILO374 suggests that GBM may be enlarging discussions already present, rather than raising issues for the first time. For this

370 See http://www.unhchr.ch/ (accessed approx Jan 9, 2003). 371 See http://www.unesco.org/ (accessed approx Jan 20, 2003). 372 Google and Alkaline. 373 Especially the issues of unemployment in eastern Germany and violation of human rights caused by Globalisation. 374 Six of the nine issues that the author chose as prominent GBM issues. 352

reason, the data appears to suggest that GBM has a medium effectiveness at the ILO. A considerably clearer picture emerges with regard to the effectiveness of GBM within the European Parliament. As with the ILO, GBM’s name is not mentioned in any document of the European Parliament published at the Parliamentary Internet site.375 Unlike with the ILO, however, most of the issues that GBM campaigns on are also not discussed in the documents of the European Parliament, suggesting that neither GBM nor its campaigns are the subject of discussion or action. For these reasons the data reasonably clearly suggests that GBM has a low effectiveness within the European Parliament. In spite of the fact that GBM remarked in interview that it had two representatives in Warsaw at the Office for Democratic Institutions and Human Rights of the OSCE (Organisation for Security and Cooperation in Europe),376 the author could find very little evidence of GBM effectiveness in either the Office or the OSCE. GBM is not mentioned by name in either German or English in any document published by the OSCE through its Internet site.377 Furthermore, only three of the issues that GBM campaigns on are mentioned in OSCE documents, and even then the number of hits is small.378 This data suggests to the author that the work of GBM at the OSCE has had a low effectiveness, despite what appears to be an impressive commitment of resources. GBM’s influence on the two organisations that it normally networks through domestically is quite extensive. The OKV (Council of East German Associations) does not have a website, but is mentioned on other websites, the majority of the time in association with GBM or the PDS party. In addition, Dr Wolfgang Richter, who has been GBM’s Director, has also been the Chairman of the OKV. It thus seems that GBM has a large effectiveness with OKV. The Human Rights Forum has a website, which mentions GBM as a member NGO,

375 See http://www.europarl.eu.int/ (accessed approx Jan 20, 2003). 376 GBM Interview Op cit. 377 Both the given search engine and Google were used to search the site – see http://www.osce.org/ (accessed approx Jan 23, 2003). 378 The issues that scored were economic, social and cultural rights; Globalisation and human rights and the Kosovo conflict. All searches were in German. 353

and as participating in its activities.379 Compared to the other case study that is a member of the Forum (HU), GBM’s profile seems quite high in Forum documents on the Internet and so it seems that it has a high effectiveness in the Human Rights Forum. Determining the effectiveness of GBM in the organisations it mentions as working with internationally is a great deal more difficult. In interview GBM mentioned that it worked with the European Peace Forum, the International Action Centre in the US, the Race Foundation in the UK, the International Association of Democratic Lawyers (IADC), the Slavic League and the League of Anti-Fascists in the Balkans. The Slavic League, the League of Anti-Fascists and the Race Foundation do not have websites, are not mentioned regularly on other websites, and do not appear in at least one important list of human rights NGOs.380 The effectiveness of GBM in networking with these organisations cannot, therefore, be tested. The European Peace Forum does not have a website but is widely discussed on the Internet.381 A large number of the mentions of the European Peace Forum in these documents are either in conjunction with GBM or mention Dr Richter, the GBM director, as President of the Forum. It thus seems likely that GBM has been highly effective in the European Peace Forum. Such cooperation seems also to have been effective with the International Action Centre (IAC) - an INGO based in New York. There are four mentions of GBM on the IAC website, and the major issues that IAC campaigns on overlap considerably with those that GBM campaigns on internationally. For these reasons, on the basis of the available documents, it seems that GBM has had a high effectiveness in working with IAC. Lastly, with regard to the International Association of Democratic Lawyers (IADL), no references to GBM were found on the IADL website. The IADL website, however, contains so little documentation overall that it would seem to the author that the result is

379 See http://www.forum-menschenrechte.de. (accessed approx Jan 23, 2003). There were three hits for GBM in a search of this site. The Human Rights Forum comprises most of Germany's human rights DNGOs and some INGOs, such as Amnesty International. 380 This list is Human Rights Internet Reporter The Masterlist: A List of Organisations Concerned with Human Rights and Social Justice Worldwide (Human Rights Internet, Ottawa, 1994). This list is not the latest edition, but in interview GBM appeared to imply that these DNGOs had been around for some time. 381 There are 84 hits for the European Peace Forum in English in a search using Google. 354

inconclusive and cannot lead to any assessment of effectiveness. Overall, therefore, no result can be obtained for the majority of INGOs that GBM networks with internationally. Those that a result can be obtained for show that GBM has a high level of effectiveness. Turning to the question of GBM's effectiveness with regard to the media an interesting pattern emerges. A smaller number of Left-wing sites and journals on the Internet cover GBM activities than for either HU or KGD. Furthermore, the overall volume of documentation on the net for GBM also appears to be smaller than for either of the other two German case studies.382 GBM has appeared to influence the local print newspapers in the former East Germany to some degree. The level of effectiveness here, however, is not easy to determine.383 In the German conservative newspaper the “Frankfurter Allgemeine Zeitung”, GBM has a lower mention by name than the other German case studies, but a higher profile of the issues it campaigns on than KGD (but not HU). In the left/liberal newspaper “Frankfurter Rundschau” GBM also has a very low number of mentions by name, but also has the lowest amount of discussion of the issues that it campaigns on of all the German case studies. The data may thus suggests the paradoxical conclusion that the strongly left-wing GBM has greater effectiveness in conservative newspapers in Germany than in major left/liberal ones. In its interview GBM mentioned the paradox that it had more effectiveness in the German Parliament under the previous Kohl CDU/CSU384 conservative government than the current Schröder SPD385/Green centre-left government. It would seem from the data that this is also true of the German press, and may reflect aspects of the politics of the new unified Germany that have had important influences on GBM’s effectiveness. The data overall would thus seem to suggest a medium effectiveness in the media. Primary Goal Effectiveness

382 Searching using Google there are 284 hits or 28 pages of references to GBM. 383 Articles have appeared in the Märkische Allgemeine Zeitung, La Pensee, Berliner Linke, Junge Welt, Berliner Morgenpost, Berliner Zeitung, Vorwärts, Neues Deutschland and Büchermarkt – see Icarus No9 1997/3 p30. 384 The Christian Democratic Union (the main conservative party) and its junior coalition partner. 385 The German Social Democratic Party (the main left of centre party). 355

With regard to lobbying in the German Parliament, despite the fact that GBM claims that it had more influence when the CDU was in power than under the current SPD/Alliance90-Green government,386 a survey of Bundestag documents reveals a higher focus on the issues that GBM campaigns on than for either HU or KGD. Interestingly, GBM is not directly mentioned in Bundestag documents, while the Human Rights Forum, of which GBM is a member, is mentioned relatively frequently.387 This seems to suggest that GBM lobbies through the Human Rights Forum in the Bundestag, and that the other members of the Forum are relatively supportive of the profile that GBM’s issues obtain in debates and discussions there. In addition to the Human Rights Forum, GBM’s concerns could also have been raised by PDS388 and SPD389 members of the Bundestag, because GBM has connections to each of these parties. If this reading of the data is correct, then GBM has a high effectiveness within the Bundestag. With regard to GBM's primary effectiveness on the German federal Executive and bureaucracy, a pattern of significant effectiveness emerges. With regard to the bureaucracy, a triangulation of German bureaucratic documents on the net reveals that GBM has been highly effective in influencing the German federal bureaucracy. On one site it is not frequently mentioned by name compared the other German case studies, but the issues it campaigns on have a very high profile.390 On the other site it is mentioned more often by name than the other German case studies, but the profile of the issues it campaigns on are lower than the profile of the issues HU campaigns on.391 To a degree the difference between the two sites is reminiscent of the data for HU. However, the difference is less pronounced in GBM's case and both triangulations show a high effectiveness. With regard to the Chancellor and the federal Executive, as was remarked above, none of the German case studies is mentioned by name on any of the documents on this Internet site. A check of the relative prominence of

386 GBM Interview Op cit. 387 The Forum is mentioned 13 times – see http://www.bundestag.de. (accessed approx Jan 21, 2003). This is less likely to happen in court cases as the Forum focuses on lobbying and policy work. 388 The Party of Democratic Socialism - the successor to the East German communist party. 389 The German Social Democratic Party.

390 This is the Bund site (http://www.bund.de) mentioned above. 356

the issues that GBM campaigns on in the documents of this site reveals, however, that they have the highest prominence of all the German case studies. This seems to reflect the prominence of GBM’s issues in the deliberations of the Bundestag and federal bureaucracy, and indicates that it has a high primary goal effectiveness. Thus, although GBM generally has a medium secondary effectiveness, its primary effectiveness is much higher. This would seem to indicate that the German government is much more sensitive to GBM's message than any one of the secondary institutions that GBM works through. As per the method outlined above, on this method GBM must be held to have a high goal effectiveness overall despite the lower results for secondary effectiveness. Information in Previous Chapters The material on mobilisation of law in the previous chapters tends mostly to explain and support this assessment of goal effectiveness. The material in Chapter Two on tactics shows that GBM mostly publishes domestically and lobbies internationally. As this international work has had the effect of making GBM highly adapted to the environment and as Germany is relatively vulnerable to international pressure because of strong European connections, a high goal effectiveness seems a plausible result. Similarly, the material in Chapter Three on structure tends to show that, as with BIRW, GBM has an ideal balance of organic and mechanical elements in its structure that allow it both to plan and to be responsive to the environment. Because of this responsiveness, a high goal effectiveness seems plausible. The material in Chapter Four on resources seems a bit more ambiguous. One would expect that because GBM gets most of its capital and cultural resources from members and supporters that this might have the effect of limiting its autonomy in carrying out tactics and lower its goal effectiveness. The only reason that the author can think of why this might not be an inhibiting factor, in the manner of discussed above with regard to the Diversified Approach, is if the use of the cultural capital obtained from former GDR officials has added a flexible and creative element to GBM's culture because it includes international connections. The best interpretation, however, appears to be that the matter is unclear.

391 This is the Bundesregierung (http://www.bundesregierung.de) site mentioned above. 357

Overall, GBM appears to have had a very significant effect on the expectations of the German federal Executive on domestic human rights. It thus has a high goal effectiveness overall. A high secondary effectiveness on some (especially international) institutions appears to have led to a high primary effectiveness. Given the high number of triangulations used this assessment also appears to be quite reliable. It could have been made even more reliable if a greater number of documents from the German Parliament and Executive had been triangulated to confirm the result. Overall Effectiveness and Conclusion GBM has been the case study that has most surprised the author. The result of the analysis above shows that GBM has a high agenda effectiveness and a high goal effectiveness. Using the method for reconciling these assessments set out above, GBM thus has a high effectiveness overall. This result is surprising given that GBM clearly has problems in obtaining and keeping its membership and has a fairly traditional design. It seems that it is the combination of cultural capital from intellectuals and technical expertise from former professionals employed by the GDR on the one hand, and the existence of an organic element in an otherwise mechanical and rigid structure on the other, that has led to this result. GBM thus appears to illustrate the vital importance of networking and reservoirs of technical knowledge (and/or political connections) rather than money capital in DNGO operations. E. Conclusion

Table Seven: Effectiveness Results for the Case Studies

Case Study LDF LCCRUL CCR JUSTICE BIRW CAJ HU KGD GBM Agenda Medium Low Medium High High High Medium High High Effectiveness Goal Low High Medium Medium High Medium Medium Low High Effectiveness Overall Low Medium Medium Medium High Medium Medium Low High Effectiveness

The table above summarises the results of the analysis carried out in this chapter. It shows an interesting spectrum of degrees of effectiveness across the nine case studies. Although some of the data is difficult to interpret, as one would expect from an assessment of real DNGOs using real information, the 358

results generally support the arguments put in the previous chapters. Even where the results are ambiguous, they clearly demonstrate the potential for this method to reach a clearer result with refinement or further information. Despite the myriad of factors that make a DNGO effective, the case studies which are effective appear to follow to a greater degree the recommendations of the Comprehensive Tactical Stance. As mentioned above, this means in general that they deliberately exploit the opportunity structure through planning, that their structure is responsive to the environment and gives them some capacity for long term work, and that their resource acquisition approach follows the objective of the Diversified Approach in that it delivers them from donor control over their work. Interestingly, and contrary to what the Sociology of Law literature discussed in Chapter One might suggest, the complexion of the organisational culture, the type of leadership and the types of networks formed all seem to be factors that are equally decisive for DNGO effectiveness as tactics, structure and resource acquisition strategies in specific contexts. The table below summarises the factors drawn from previous chapters that both make the case studies effective and inhibit their effectiveness.

Table Eight: Summary of the Complex of Factors From Previous Chapters Explaining Effectiveness Results for Each Case Study. Case Study Overall Effectiveness Main Factors Improving Main Factors detracting from Agenda and Goal Effectiveness Agenda and Goal Effectiveness (in no particular order). (in no particular order). LDF Low None significant A Focus on Legitimacy Over Rational Adaptation to the Environment. A Centralised, Mechanistic, Hierarchical Structure. A Focus on Litigation While Mostly Avoiding Litigation. A Loss of Tactical Freedom as a Result of the Influence of Resource Donors. The Nationalist View of Human Rights Enforcement in its Organisational Culture. The Effect of US Taxation Laws in Restricting Tactics. LCCRUL Medium A Decentralised, A Partly Centralised, 359

Partly Organic Structure. Mechanical, Hierarchical A Cultural Structure. Commitment to Lobbying, The Cultural Policy and International Work Influence of Law Firms Over Less Restraint on Agenda Creation. Tactics as Result of Resource A Focus on Donors. Legitimacy Over Rational An Organisational Adaptation to the Environment. Culture Adventurous in Goal Achievement. CCR Medium Greater Rational Local Demands for Adaptation to the Environment Legitimacy. than Above Case Studies. Centralised, Favourable Aspects Mechanical Design. of its Organisational Culture. Experiences Motivation to Resource Scarcity and Narrow Address Issues from Old Left Range of Donors. Donors. A Focus on Innovative Litigation, Litigation. Community Organising and International Work. JUSTICE Medium Favours Rational Centralised, Adaptation to the Environment Mechanistic, Hierarchical Over Legitimacy. Design. Less restraint From Resource Donors Than the American Case Studies. A Focus on Parliament, Legal Profession and International Institutions. BIRW High Structure Combines None Significant. Mechanical and Organic Elements/Responsive to the Environment. ‘Escape’ from Local Jurisdiction to International Sphere/ Resources from Foreign Donors. Use of INGO Tactics. CAJ Medium Structure Combines A Little More Mechanical and Organic Mechanical in its Structure Elements. Than BIRW. HU Medium Decentralised and Favours Legitimacy Partly Organic Structure. Over Rational Adaptation to the Access to Environment. Information and Government by Organisational Members. Culture Not Connected to Those Suffering Human Rights Violations. Culture of Membership Restricts Tactical 360

Options. KGD Low Relatively Organic Favours Legitimacy Nature of its Structure. Over Rational Adaptation to the Motivation From Environment. Social Movements to Address Ideological and Violations. Inflexible Organisational Culture. Common Culture With Social Movements Can Restrict Tactics. Tactical Focus on the General Public. GBM High Organic, Insularity and Elitism Decentralised Structure. of its Organisational Culture. “Escape’ from the Local Jurisdiction into the International Sphere. Organisational Culture Contains Technical Expertise of Former GDR Experts.

The most effective case studies are creative in their approaches. They appear to be less likely to become stuck within paradigms of how to do human rights work. Instead, they appear to have a capacity to overcome demands for legitimacy and thereby transcend paradigms to come to more honest assessments of what a rational approach to their environment requires. They thus appear to suggest that resources alone do not lead to effectiveness, but rather the right types of resources needs to be balanced with a culture of commitment to human rights work. They also appear to suggest that a large reservoir of resources can actually become an impediment to a human rights DNGO if it leads to its thinking and structure becoming ossified and to it no longer maintaining a fresh approach to issues. More specifically, the two case studies that are the most effective on this assessment, GBM and BIRW, both escaped into the international sphere because of a lack of opportunities in the domestic environment. The fact that their invocation of the international human rights networks has been more effective than the use of domestic Bills of Rights by other case studies suggests a number of interesting conclusions. Firstly, it suggests that the process of Globalisation discussed in the introduction may be having the effect of magnifying the pressure that a DNGO can bring on a vulnerable state using 361

international advocacy networks. Secondly, it also suggests that the existence of a Bill of Rights in the age of Globalisation may be a double edged sword for a human rights DNGO. While it might supply legal norms as an important resource, it might also act more as a device for legitimating governments than maintaining human rights standards. When this is so a Bill of Rights can act as another paradigm or demand for legitimate tactics that can limit a DNGO's thinking as to other possible approaches. The two above case studies are also not the largest, most well known or resourced DNGOs in their jurisdiction. The results thus tend to suggest that the criteria used by the author to choose case studies, such as resource base, may have been too simplistic. It may also suggest that smaller DNGOs that are not major players may sometimes be more flexible or adaptable to human rights environments in ways that enhance their effectiveness. Further studies in this field will have to take account of this greater complexity in selecting case studies. Another result of this study is that it suggests that Galanter's “repeat player” thesis is not so true of totality of approaches to human rights work as it is for litigation. Both of the case studies that came out as highly effective did not have large amounts of money capital or large numbers of lawyers, and yet they achieved a degree of effectiveness using methods besides litigation that Galanter's theory suggests that they should not. In essence, the analysis above confirms the argument stated by the author in the Introduction. On the method used here the American case studies usually put forward in the literature as DNGO models for transplantation to other jurisdictions do not currently appear to be the most effective. Thus, besides demonstrating a method for evaluating DNGO effectiveness, the results of this work suggest that a rethink in human rights literature about what DNGO models are worth emulating is long overdue.

362

363

Conclusion

This work has been a comparison, and measurement of the effectiveness of, how human rights DNGOs in different jurisdictions mobilise law in defence of human rights. Its purpose has been to further research into the enforcement of human rights, to create approaches that might be practically useful to human rights DNGOs, and to begin to fill the gap that currently exists in the literature on the work of human rights DNGOs.1 This conclusion sets out the patterns that the author could discern in the information in the previous chapters, draws out some of the implications of this for the work of human rights DNGOs in the field, and points out some of the areas in which further research could be fruitful. It should be noted, however, that the conclusions outlined below are tentative because of the limited number of case studies examined in this work, the relatively limited time period over which this was done,2 and because some of the patterns in the work show numerous exceptions A. Important Patterns That Emerged in the Study The following are the conclusions that add most to what is known about DNGOs in the literature: • The degree to which DNGOs are not self-reflexive. • That the primary determinants of their effectiveness are organisational abilities and not environmental factors. • That success by a case study in various areas of its organisational abilities are cumulative. • That good design in some areas of organisational abilities can 'cancel out' bad design in other areas. • That a DNGO's organisational culture is more important for its effectiveness than whether its structure is mechanical or organic. • That the method used to assess effectiveness in this work appears to give reasonably accurate results.

1 For an overview of the results of this work see the table in the appendix. 2 The work for this study was all done between 2000 and 2004. This was due to time and money constraints that the author was working under. 364

• That the 'major players' are not always the most effective DNGOs. • That DNGOs show greater resemblance to each other inside, rather than across, jurisdictions. • That DNGOs that litigate and write legal opinions universally have mechanical structures. • That DNGOs composed of public intellectuals have organic structures. • That the structure and organisational culture of a DNGO are strongly affected by the political and professional beliefs of its founder/s. • That DNGO tactics are generally determined by the relative pull of legitimacy on the one hand and rational adaptation to the environment on the other. • That sources of money capital for a DNGO can be either constraining or liberating in terms of their effects on tactics. The Non-Reflexivity of the Case Studies The clearest pattern that emerged in this research was the extent to which the case studies in all three jurisdictions were not self-reflexive. Few of the case studies appear to have even attempted to assess their own effectiveness. Those that had done such assessments had them done by figures that were close to the organisation, and kept the reports confidential. Indeed, the case studies appeared in general to have had an unspoken concern about the impact that assessments of effectiveness might have on their ability to acquire resources and to maintain sufficient legitimacy to gain access to public or international institutions.3 This concern, along with a lack of time and resources, have inhibited them from doing the types of analysis that were undertaken in this work. The data from the case studies thus suggests that human rights DNGOs working on the ground have not as yet heeded the call of

3 There may also be a concern among some of the case studies that rival DNGOs, or opponents in campaigns on human rights issues, might find out information from studies of effectiveness which would advantage them and disadvantage the case studies. 365

the Vienna World Conference on Human Rights in 1993 to become more self- reflexive.4 While the above concerns that DNGOs might have had were legitimate, the results of this work clearly indicate to the author that the case studies, and thus probably human rights DNGOs in general, have underestimated the extent to which research could improve their effectiveness. An important avenue for the improved enforcement of human rights law thus appears to have been largely overlooked. The cooperation shown by the case studies for this work appears to indicate that human rights DNGOs might be in a process of becoming more receptive to critical investigations of their operations. The author hopes that this is the case, as such a development would open up the field to the further research that needs to be done. Organisational Abilities Determine Effectiveness Another pattern that emerged from this study was a broad confirmation of the theory put forward by Tushnet, as discussed in Chapter One, that the primary determinants of effectiveness for human rights DNGOs are aspects of their organisational abilities to do tasks such as the mobilisation of law, and not environmental factors.5 The information gathered in researching the organisational abilities of the case studies appeared almost always to convincingly explain why they were effective. Conversely, there were very few situations where the author felt that environmental factors had primarily determined whether a DNGO had been effective or not. This is good news for human rights DNGOs. If confirmed by later research it suggests that DNGOs can make an impact on human rights situations in almost any environment if they work successfully on improving aspects of their organisational abilities such as tactics, structure and resource acquisition. Human rights DNGOs could thus be sure that success or failure in their human rights work would primarily be a result of their efforts and not environmental factors. For researchers, a great deal of future work needs to be done to confirm that the above is so, both in qualitative research with more case studies, and in more quantitative studies. If further research confirmed this

4 See Vienna Declaration and Programme of Action A/Conf157/23 12 July, 1993. 5 See comments Tushnet made in M.V.Tushnet The NAACP's Legal Strategy Against Segregated Education 1925-1950 (University of North Carolina Press, Chapel Hill and London, 1987) pp xi and xiii. 366

result, then future researchers that wished to investigate effectiveness would need to focus on the internal organisational abilities of human rights DNGOs. Success in Areas of Organisational Ability are Cumulative Another important pattern that appears from the research in this work is that success in various aspects of organisational abilities appears to be cumulative. Those DNGOs that have success in a greater number of the aspects of their organisational abilities are more effective overall on the basis of the method used here. The two case studies that showed the greatest effectiveness on the basis of the method used in this work, BIRW and GBM, illustrate this point. Both of these case studies have well designed structures, tactical stances and resources acquisition approaches, and as a result, a high effectiveness level. In comparison, LCCRUL, which has a medium overall effectiveness on the basis of the method used in this work, has a well designed tactical stance and some merit to its structure, but a deficient resource acquisition approach. It thus appears from the case studies that the greater number of successfully designed aspects of organisational ability, the better will be its effectiveness. This is also a finding that could be of use to human rights DNGOs. If conformed by later research, it indicates that most human rights DNGOs can improve their effectiveness from current levels by putting effort into improving their organisational abilities. For further research, this result suggests that a greater number of human rights DNGOs in different jurisdictions need to be investigated in order to determine if this is indeed a general pattern. It also suggests that it might be fruitful to investigate human rights DNGOs in jurisdictions other than those in this work in order to determine how widespread such a pattern might be. Good Design in Some Areas of Organisational Ability Can Cancel Out Bad Design in Others Another pattern, that is to some degree a corollary of the last point, is that good design in some aspects of a DNGO's organisational abilities appears in some instances to be able to overcome the 'drag' on effectiveness caused by bad design in other aspects of its organisational abilities. An example of this is CCR. Its organisational culture and tactics, which are well designed, seem to balance out its structural design and resources acquisition approaches, which tend to lessen effectiveness. Similarly, with CAJ, its less than optimal structural 367

design seems to be balanced by its more optimal tactical stances and resources acquisition approaches. For DNGOs the implication of this result appears to be that success in one aspect of their organisational abilities should improve their effectiveness to some degree, even if there are serious deficiencies elsewhere in the design of the organisation. A DNGO thus appears not to have to have an optimal design in all aspects of its organisational abilities in order to obtain some improvement in its effectiveness. For researchers the implication of this result appears to be both that further research on case studies needs to be done to determine the validity of this result, and that future research needs to carefully differentiate between different aspects of the organisational abilities of DNGOs in order to get an accurate picture of its effectiveness. The Importance of Organisational Culture on Effectiveness Another important pattern worth observing is that it appears that it is not so much whether a structure is mechanical or organic that is decisive for a DNGO's effectiveness, but rather the nature of its organisational culture. Human rights DNGOs that strike a balance between a strong identity and an inward focus on the one hand, and an openness to new information and ideas on the other, appear to be the most effective. If this is indeed the case, the lesson for DNGOs would appear to be that, just as with profit making enterprises, they need to carefully monitor their organisational culture. DNGOs need to ensure that their organisational cultures do not gain too fixed an identity, such that they are no longer open to outside influences. They also need to ensure that they do not have too little identity, such that it cannot work in a coordinated fashion. For researchers, this pattern would suggest that some of the future research on DNGOs should focus on in depth investigations of organisational culture. The Method Used in this Work to Assess Effectiveness is Capable of Giving Accurate Results Another result emerging from this work is that the method used to measure the effectiveness of human rights DNGOs appears capable of giving reasonably accurate results. It will be recalled that writers such as Scoble and 368

Wiseberg6 and Cingranelli and Richards7 appear to rule out the possibility of such a method. All of the information available to the author indicates that the method employed in this work, while not without faults, gives qualitative results for effectiveness that are accurate enough to be of practical use. The fact that the results of this method contradict some assumptions held by human rights workers about the effectiveness of some DNGOs could be said from the point of view of a discipline like Program Evaluation to throw the method into doubt. However, it seems to the writer that the purpose of this method was to go 'deeper' and use evidence to evaluate such opinions. If the evidence shows that such an opinion is questionable, then it seems to the author that the method has done what was intended and shown its value. For DNGOs, the use of this method provides another, possibly more accurate, method by which to assess their own effectiveness and that of other DNGOs in their network within the types of time and budgetary constraints that they are likely to be under. In addition, for future researchers it seems clear that the triangulations used would become much more accurate than those in this work if they were able to draw upon the internal records of the DNGOs themselves,8 as well as other outside information. For future work, the method offered here could begin a debate about methods of assessment that moves beyond blanket denials that any reasonably useful method is possible. If this was to occur, the model offered here would have served its purpose. The 'Major Players' Among DNGOs are not Always the Most Effective Another pattern that emerged from the research for this work that contradicted the methodology that the author used to select the case studies was that the 'major players' were not always the most effective. It will be recalled from Chapter One that it was mostly what Wasby called the 'major players' that were selected for research. These 'major players' were identified by the larger volume of domestic human rights work they do, their greater pool

6 Eg H.M.Scoble & L.M. Wiseberg "Human Rights NGOs: Notes Towards a Comparative Analysis" (1976) 9(4) Human Rights Journal 611. 7 D.L.Cingranelli & D.L.Richards "Measuring the Impact of Human Rights Organisations" in C.E.Welch Jnr NGOs and Human Rights: Promise and Performance (University of Pennsylvania Press, Philadelphia, 2001) p225. 8 Among the case studies, only CCR offered the author access to some archival documents. These were documents that it could easily retrieve. The other case studies either did not have formal archives and offered the author copies of past publications, or felt that their archival documents were too sensitive for public access. The author was of the view that the interviews would reveal the most information about the organizations and did not press them to release documents. 369

of resources and their higher public and media profile. Although the case studies were partly selected for the alternate reason of their ability to aid understanding and to expand and generalise theories, they were not, as was expected, always the most effective. As mentioned above, a possible explanation for this is that non-major players may sometimes be more flexible or adaptable to environments in ways that enhance effectiveness. A good illustration of this is BIRW. Even though it was not a "major player" it was selected because it was intended to maximise what was learnt about the diversity of successful formulas for the running of a human rights DNGO. On the method used in this work, however, it appears to have been more effective in mobilising the law in defence of human rights than the "major players". This is so even though it does a lesser volume of work, has a smaller pool of resources and a lower public and media profile. Conversely, LDF, which is the epitome of the "major player" in the American domestic human rights scene appears to have a low effectiveness. This has important implications for case study selection in future research, in that some other criterion of selection needs to be found if research is to move beyond simply proving or disproving commonly held presumptions about the effectiveness of DNGOs. Such selection methodology development may become more possible as more information on human rights DNGOs around the world becomes available. The Case Studies Show Greater Resemblance to Each Other Within, Rather Than Across, Jurisdictions Another pattern observed in this work was that the case studies tended to show greater resemblance to each other in terms of organisational culture, styles of carrying out tactics, styles of creating structures and acquiring resources within, rather than across, jurisdictions. CCR thus tends to resemble LCCRUL and LDF more than HU or BIRW. Similarly, HU tends to resemble KGD and even GBM more than LDF or LCCRUL. The reason for this pattern, as argued in Chapter Three, appears to be the phenomenon of institutional isomorphism. The managers of human rights DNGOs, like the managers of for-profit enterprises tend to be affected by mimetic forces, coercive forces and normative forces. With regard to mimetic forces, human rights DNGOs tend to copy other human rights DNGOs that they know have a reputation for effectiveness in order to overcome the uncertainties of management. Because DNGOs generally only know of other DNGOs within 370

their jurisdictions, they tend to copy them rather than those in other jurisdictions. Similarly, all DNGOs in a jurisdiction are affected by the same pressures from governments and other important institutions, and this tends to create similar adaptations. Lastly, ideas and standards of professionalism also influence the culture and styles of DNGOs. Because they tend to be influenced by the same sorts of standards of professionalism, all DNGOs within a jurisdiction tend to resemble each other more closely over time. The implication of this for human rights DNGOs appears to be that important decisions they make about their organisational abilities are constantly in danger of a certain parochialism. The pressures of institutional isomorphism appear to have an inherent tendency to blind human rights DNGOs to other possibilities exemplified by DNGOs in other jurisdictions. For future researchers, this pattern appears to illustrate the benefits of comparative studies such in this one in unmasking the other possibilities for DNGOs that lie beyond the 'standardization' that can occur as a result of institutional isomorphism. They allow for classic Comparative Law 'transplantation' from other jurisdictions to deal with the mimetic and normative forces that DNGOs face. This pattern thus illustrates an important future role that researchers could take up in furthering the work that human rights DNGOs undertake. The Case Studies That Focus on Legal Work Have Mechanical Designs The author also observed that the DNGOs who favoured engaging in professional legal activities, such as litigation or producing legal opinions, almost universally had mechanical structures. The adoption of this mechanical structure in turn seemed both to empower them, through increased organisational capacity to do this sort of work, and to make them less responsive to their environments. This seemed to the author to describe not only LDF or CCR in America, but also JUSTICE in Britain. The implication of this for DNGOs would seem to be that if they wish to undertake this type of activity, then some sort of mechanical structure would have to be adopted. Once having adopted such a mechanical structure, however, the DNGO’s organisational culture would also need to be aware of the lack of responsiveness that goes with such a structure, and to take measures to increase responsiveness to the environment. For researchers, there is a clear need for research into further case studies to determine if this statement is indeed generally the case. 371

DNGOs Composed of Public Intellectuals Have Organic Structures Another important pattern that appears to have arisen from the data and to complement what was said above, is that DNGOs composed primarily of public intellectuals that mobilise through the law, tend to have more organic structures and to be funded more through membership fees. This appears to be both because such DNGOs don't need as much money capital to survive, because they can rely on pro-social behaviour, and because organic structures may be less expensive to maintain because of their lesser organisational capabilities. For DNGOs the main implication of such a pattern is that DNGOs composed of public intellectuals require less money capital to establish, and can be more sensitive to environmental influences. For researchers, this result illustrates the dire need for more research on DNGOs in Europe and other parts of the world where the normal pattern is for DNGOs to be composed of public intellectuals, rather than lawyers. Research on DNGOs has tended to be focused on countries where lawyers typically dominate DNGOs, such as the United States and Britain. A DNGO's Structure and Organisational Culture are Strongly Affected by the Beliefs of its Founders. Somewhat of a corollary to the previous patterns, is the further pattern that the structure and organisational culture of DNGOs appear to be strongly affected by the political and professional beliefs of their founders. The history of an organisation thus has a strong tendency to weigh heavily upon its present operations. The author could not determine in any of the case studies an exception to this principle. The implication of this for DNGOs appears to be that it is too easy for DNGOs to become 'trapped' within the worldviews of their founders long after they have exited the scene. It is thus important for DNGOs to become aware of the strengths and weaknesses of the worldviews they inherit from their founder/s. For researchers, it thus seems from this pattern that some knowledge of who founded an organisation and what their views were is essential to any worthwhile knowledge of the workings of a human rights DNGO.

372

DNGO Tactics Determined by the Relative Pull of Legitimacy and Rational Adaptation to the Environment. It seems that DNGO tactics tend to be determined by the relative pull of legitimacy on the one hand, and rational adaptation to the environment on the other. As a result, DNGOs in one jurisdiction tend to have similar 'styles' of tactics compared to DNGOs in other jurisdictions. For DNGOs, the implication of this finding appears to be that they should seek a balance between these two considerations in their work. It also suggests that they should be conscious of the 'style' of work that is predominant in the jurisdiction, and be aware that other 'styles' of work exist that could perhaps be used when the situation demands it. For researchers, further investigation is necessary to determine if this theory of balance between legitimacy and rational adaptation generally explains DNGO tactics. It may also be useful to determine whether other jurisdictions have 'styles' of work by human rights DNGOs, and what these styles are. Sources of Money Capital Can be Either Constraining or Liberating in Terms of Tactics. Another pattern worth mentioning is that most sources of money capital for DNGOs are both liberating and constraining in terms of tactics and effectiveness. Nevertheless, on balance, those sources of money capital that have motivations to encourage domestic human rights work, and who can create harmonious working relationships with DNGOs, appear to be the most desirable. To the author this seemed to be the case for all of the case studies, whether they obtained money capital from foundations, from mail donations or from a membership. The implication of this for DNGOs appears to be that they need to be careful as to who they choose to be their source of money capital. In addition, it appears to indicate that certain types of relationships with such sources of capital, where each side has some ability to influence the relationship, are desirable. For researchers, this indicates that research on DNGO funding should expand beyond the type of investigation of foundation funding 373

undertaken by Ovsiovich9 to include other sources of money capital and their effects on DNGO operations. In conclusion, as described in the Introduction this work has tried to move beyond human rights doctrine and the confines of other disciplines that Human Rights Law often draws upon to tailor make conceptual approaches that both allow for a better understanding of how DNGOs enforce Human Rights Law and an assessment of their effectiveness in doing so. The work has focused on DNGOs rather than other types of NGOs so as to try to understand what the practical problems of human rights defenders working in NGOs closest to violations on the ground are, and then focus its theoretical efforts at gaining insight into those problems. The results of the study have reinforced the author’s conviction that, to paraphrase the famous American jurist Oliver Wendell Holmes, the true life of Human Rights Law lies not in the logic of its doctrine or that of the disciplines it uses, but rather in the experiences of human rights defenders trying to use it to end human rights violations.10 The author hopes that in the future an even greater nexus can be created between the endeavours of human rights scholars and the work of human rights DNGOs combating human rights violations around the world.

9 See generally J.S.Ovsiovich "Feeding the Watchdogs: Philanthropic Support for Human Rights NGOs" (1998) 4 Buffalo Human Rights Law Review 341. 10 The original quote is: "The life of the Law has not been logic; it has been experience." See O.W.Holmes The Common Law (Little Brown & Co, Boston, 1923) p1. 374

Appendix: Table Nine: Summary of the Results for the Case Studies

Case Studies. Main Features of Main Features of Main Features of Overall (Second and Third Structures. Resource Effectiveness Using Order) Tactics. Acquisition. the Above Method. LDF Litigation using Mechanical, Money capital and Low. impact litigation. centralised, lawyers from mail hierarchical. donors, Foundation grants and volunteer and staff lawyers. LCCRUL Litigation using Mechanical, Links to law firms, Medium. impact litigation. decentralised. money capital and lawyers from law firms, staff lawyers, mail donors and foundation grants. CCR Litigation using Partly mechanical Money capital and Medium. responsive/impact and hierarchical and lawyers from litigation and partly decentralised foundation grants, community and organic. membership and organising. staff lawyers. JUSTICE Lobbying/policy and Mechanical, Money capital and Medium. education work. centralised, lawyers from hierarchical. foundation grants, membership and staff lawyers BIRW International Mechanical and Human rights legal High. lobbying and hierarchical with expertise, links to education work. much networking. other organisations and money capital from international foundations. CAJ International Mechanical and Money capital, links Medium. lobbying. hierarchical with to other much networking. organisations and volunteers from international foundation grants, INGOs and civil society. HU Lobbying and Organic, Cultural capital, Medium. socialisation of decentralised. access to opinion forming government and elites. money capital from membership and volunteers. KGD Socialisation of civil Organic, Cultural capital, links Low. society and decentralised. to social movements publication. and technical 375

expertise in demonstrations from membership, staff and social movements. GBM Publication and Organic, Cultural capital, High. international and decentralised. access to domestic lobbying. international bodies & expertise in law and international relations from members, volunteers and social movements.

376

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Other Materials Anträge an die 17.Ord.Delegiertenkonferenz der Humanistichen Union e.V. am 15.16. September 2001 (copy in possession of the author). Articles of Association of British Irish Rights Watch. “Asylum Bill ‘May’ Breach Rights Law” The Times 31 Jul, 2002. “Aus den Wahlprogrammen der Parteien: Außen-Sicherheits- und Verteidigungspolitik” Frankfurter Allgemeine Zeitung Aug 9, 2002. British Irish Rights Watch Management Committee Report and Financial Statements for the Year Ended 31 March 2000. British Irish Rights Watch Submission to the United Nations Human Rights Committee - Human Rights Violations Arising Out of the Conflict in Northern Ireland (May, 1995). British Irish Rights Watch 1998 (pamphlet). British Irish Rights Watch 1999 (pamphlet). Bürger- und Bürgerinnen Information- Die Neue Bundeswehr: Umrustung zur Angriffsfähigkeit (KGD, Cologne, 2000). Bürger- und Bürgerinnen Information - Ein Deutschland für Einwanderer. Oder: Die Schein-Politik der Selbsttäuschung und Lügen hat kein Ende (KGD, May 2000). Call to Justice (Summer 2001) Vol2 No1. 397

Centre for Constitutional Rights 1998 Fall Docket. Center for Constitutional Rights 2000 Fall Docket. Centre for Constitutional Rights 2001 Annual Report. Committee on the Administration of Justice Annual Report 1999-2000. Committee on the Administration of Justice Annual Report 2000-2001. “Court Rules Gay Ban ‘Breaches Human Rights’” The Guardian 27 Sept, 1999. “Croatia’s Casualties, Bosnia’s and Ours” by N.Dale New York Times Jun 16, 1994 p17. “District Lags in Distributing Extra Meals” by J.Blum Washington Post Jul 15, 2002 p33. “Ein brisantes Gesetz kommt fast unbemerkt daher” by G.Heinen Die Welt 25 Oct, 2001. E-mail Correspondence with Tobias Bauer at HU Headquarters in Berlin 2003 (copies of originals in possession of the author). Erinnerungen an Gustav Heinemann: Gesprächskreis Geschichte Heft 24 by D.Posser (Forschungsinstitut der Friedrich-Ebert-Stiftung-Historisches- Forschungs-Zentrum, Bonn, 1999). EU Cooperation in Criminal Matters: A Human Rights Agenda (JUSTICE, London, 2000) “Families Win IRA Human Rights Ruling” The Guardian May 5, 2001. “F.D.P.: Schily bei Antiterror ‘Nicht seriös’” Frankfurter Allgemeine Zeitung Jan 9, 2001. Ferien vom Krieg: Dokumentation der Ferienfreizeiten für Flüchtlingskinder aus dem ehemaligen und heutigen Jugoslawien (KGD, Cologne, April 2001). GBM 2002 Calendar. GBM Informationen 7-8/2001. GBM Informationen 9/2001. GBM White Book – Unrest in Germany – Discrimination in the New Länder (in German) (GBM, Berlin, 1992). “Globalisation, State and Law: Towards a Multi-Dimensional Polity” by J.Kelsey Unpublished Conference Paper, Australasian Law Teachers Conference, La Trobe University, Melbourne, Sept 1995. “Grüne wollen gegen Demonstrationsverbot klagen” Frankfurter Allgemeine Zeitung, Feb 12, 2002. “Human Rights on Trial” The Guardian Nov 12, 2002. 398

“Hunger in the Nation’s Capital” Washington Post, July 17, 2002 pA22. Interview with British Irish Rights Watch, London, Oct 2001 (notes in possession of the author). Interview with the Committee on the Administration of Justice, Belfast, Oct 2001 (notes in possession of the author). Interview with the Centre for Constitutional Rights, New York, Nov 2001 (notes in possession of the author). Interview with GBM, Berlin, Sept 2001 (notes in possession of the author). Interview with JUSTICE, London, Oct 2001 (notes in possession of the author). Interview with KGD, Cologne, Sept 2001 (notes in possession of the author). Interview with the Lawyers’ Committee for Civil Rights Under Law, Washington DC, Nov 2001 (notes in possession of the author). Interview with the NAACP Legal Defence and Education Fund, New York, Nov 2001 (notes in possession of the author). “Jugend kämpft gegen Rechtsextreme im Internet” Die Welt Jan 18, 2001. JUSTICE Annual Report 2000. JUSTICE Annual Report 2001. JUSTICE Financial Statement 31 March 2001. KGD Informationen 1/2000 January 2000. KGD Jahrbuch ‘95/’96. KGD Jahrbuch ‘97/’98. KGD Jahrbuch ‘98/’99. Lawyers’ Committee for Civil Rights Under Law Annual Report 1995-96. Liberty/Civil Liberties Trust Annual Reviews 2000. The Masterlist: A List of Organisations Concerned with Human Rights and Social Justice Worldwide (Human Rights Internet, Ottawa, 1994). “Mensche ohne Makel” Frankfurter Allgemeine Zeitung, Feb 25, 2002. “400 Menschen protestieren gegen Abschiebepraxis” Frankfurter Allgemeine Zeitung – Rhein-Main Zeitung Mar 3, 1997. NAACP Legal Defence and Education Fund Annual Report 1999. NAACP Legal Defence and Education Fund Annual Report 2000. National Association of Citizens Advice Bureaux Annual Report 2002/03. “Not All Human Rights Groups Are Equal” by A.Neier New York Times, May 27, 1989 p22. 399

Notes by the Author of the 40th Annual Conference of the Humanistic Union, Humbolt University, Berlin, Sept 2001 (original in possession of the author). “Poverty 1993: Bigger, Deeper, Younger, Getting Worse” New York Times, Oct 10, 1993 pD5. “Prison Discipline and Human Rights: Letter” The Times 31 July, 2002. Questionnaire Completed by BIRW 2001 (original in possession of the author). Questionnaire Completed by GBM 2001 (original in possession of the author). Questionnaire Completed by HU 2001 (original in possession of the author). Questionnaire Completed by JUSTICE 2001 (original in possession of the author). Questionnaire Completed by KGD 2001 (original in possession of the author). Questionnaire Completed by LCCRUL 2001 (original in possession of the author). Questionnaire Completed by LDF 2001 (original in possession of the author). “Renamed Force Must Abandon Old Loyalties” by A.Gillan The Guardian Sept 10, 1999. “Report on Black-White Disparities is Mixed” Washington Post July 22, 2002 pA3. The Schengen Information System: A Human Rights Audit (JUSTICE, London, 2000). Secret Trials and Executions: Military Tribunals and the Threat to Democracy by the Centre for Constitutional Rights (Open Media Pamphlet Series/Seven Stories Press, New York, 2002). “Senat bleibt bei Ablehnung der Zeugen Jehovas” Die Welt Dec 20, 2002. “Sitte und die seinen” Die Welt Dec 12, 2001. Social Rights in Northern Ireland: Building Upon the Agreement and the European Social Charter: Conference Report (CAJ, Belfast, 1999). Totalverweigerung: Eine Streitschrift für die totale Kriegsdienstverweigerung (2 Auflage) (KGD, Sensbachtal, Jan 1996). Voices of African American Women in the United States of America: The Unkept Promises of the Platform for Action (LCCRUL, Washington DC, May 2000). White Book 2 – Dissatisfaction in Germany – Scholarship and Culture During Reunification (in German) (GBM, Berlin, 1993). 400

Ziviler Ungehorsam für Asylrecht! Für die Abschaffung der Abschiebehaft! Verteidigungsreden vor dem Bonner Amts- und Landgericht (KGD, Cologne, March 1996). Ziviler Ungehorsam: Traditionen, Konzepte, Erfahrungen, Perspektiven by M.Singe (KGD, Cologne, date unknown).