VOLUME 3, NUMBER 1
JUNE 2007
FRONT MATTER
3
Editors’ Note
NOTES
4
Fitting the Facts of Life into International Political Economy Theories:
The Case of Afghanistan’s Poppies
Markus Coleman
13
Sexual Violence as a Weapon of War in International Humanitarian
Law
Jennifer Park
20
The Outside Dimension to the United States’ Position in the Anti(Human) Trafficking Movement: The Role of Nongovernmental Influence
Manpreet Kaur Sidhu
40
Reconciling Human Rights and State Sovereignty, Justice and the
Law, in Humanitarian Interventions
Alexander Volsky
ARTICLES
49
The Impact of the EU Accession Process on the Establishment of
Evaluation Capacity in Bulgaria and Romania
Julian Knott
INTERNATIONAL PUBLIC POLICY REVIEW
Editorial Staff, Volume 3 (2006 – 2007)
General Editors
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Joshua Mendelsohn, PhD School of Public Policy, Coordinator
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William White, MSc European Public Policy, Editorial Board Liaison
Amy Whitelock, MSc European Public Policy, Copy Editor
Academic Review Panel
Dr. Fiona Adamson
Dr. Basak Çali
Dr. David Coen
Dr. Fabio Franchino
Dr. David Hudson, chair
Editorial Board
Georgia Berry, MSc International Public Policy
Nicholas Carlson, MSc International Public Policy
Anindita Ghosh, MSc Public Policy
Victoria Hasson, MSc International Public Policy
Kalyani S. Iyer, MSc International Public Policy
Andrew Jillions, MA Legal and Political Theory
Dina Karydi, MSc European Public Policy
Joshua Mendelsohn, PhD School of Public Policy
Julio Montero, PhD School of Public Policy
Amy Ngai, MSc Democracy and Democratisation
Gisela Nicolau, MSc Public Policy
Nicole Salisbury, PhD School of Public Policy
Stavros Samouicidis, MSc International Public Policy
Marisa Traniello, MSc International Public Policy
William White, MSc European Public Policy
Amy Whitelock, MSc International Public Policy
Éomer Zwijnenberg, MSc International Public Policy
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EDITORS’ NOTE
It is with great pleasure that we present to you Volume 3, Number 1 of the International
Public Policy Review. As with previous issues, we are proud to publish yet another collection of quality essays and articles that bridge a diverse range of issue areas. These will be
of interest to anyone in the field of public policy and international relations.
In an increasingly integrated and complex international system, academics and policymakers alike have begun to voice their concerns about supranational governance, a trend
with which several of the authors in this issue have engaged. Through a comparative
study of the European Union accession process, an analytical piece on international humanitarian law, and a key theoretical question of international political economy, this selection of articles highlights how unavoidable the question of authority is in today’s
borderless world. As students of public policy pursue a challenging variety of interests
and priorities, this issue of the Review is an opportunity to examine policy areas that may
have been previously overlooked, such as the role of nongovernmental groups in combating human trafficking, or the effect of a plant species grown in a distant part of the world
on our understanding of political economy.
Here we present articles that are not only timely, but raise vital questions for scholars interested in delving deeper into the issues presented by a smaller, more connected world.
We hope, as you read through this issue, that you find an enhanced understanding of a
changing global landscape, and the ability to reflect on the current and future challenges
that we face.
On behalf of the General Editors
Kalyani S. Iyer
London
June 2007
3
FITTING THE FACTS OF LIFE INTO INTERNATIONAL POLITICAL
ECONOMY THEORIES: THE CASE OF AFGHANISTAN’S POPPIES
Markus Coleman‡
ABSTRACT
This article elucidates the most influential theories of international political economy (IPE) by discussing some of the circumstances and forces affecting contemporary Afghanistan. It focuses on the
issue of poppy cultivation vis-à-vis the international community in order to show how numerous
forces are at work, and none of the theories are able to explain the situation exhaustively. In fact, as
a result of selectivity when substantiating their claims, theorists are merely looking at the same issues from different perspectives. I show that the theories actually highlight distinct variables, which
should all be conceived as fundamental components of our current international system. Moreover,
IPE should acknowledge the complementary character of the foremost theories, namely liberalism,
Marxism and realism. In my view, the energy being wasted on debating the relative merits of the
theories would be better utilised by trying to solve contemporary problems in the international system.
Keywords: Afghanistan; international organisations; international political economy; liberalism; Marxism; poppy cultivation; realism
INTRODUCTION
International political economy (IPE) attempts to theoretically define and explain
how the interconnected and reciprocal relationships between political and economic
forces, affected by domestic and international issues, determine the international system as
a whole. IPE has risen to prominence since the 1970s, when it diverged from international
relations (IR) into a discipline in its own right. Instead of focusing only on state policies
when trying to determine the fundamental dynamics of the international system – as was
mostly the case with IR – IPE theorists advocate that the inextricable relationship between
international politics and economics must be acknowledged and reflected in the academic
discourse on international relations. As a result, IPE theorists claim that their theories are
more able to describe and make normative assumptions about what makes the international system tick.
‡
BA History and Philosophy, University College Dublin; MA Legal and Political Theory, University
College London. Author acknowledgements: I would like to thank The Senlis Council for their important
contribution to this issue and for organising the London Conference on “The Afghan Development and Security Crisis.” I would also like to thank all the speakers at the conference, particularly the ones I have noted
in this article.
4
VOL. 3, NO. 1 – JUNE 2007
5
This article will not, however, be a description of the historical development of international political economy or a detailed analysis of the relative strengths of the theorists’
arguments. Rather, it will attempt to explicate the main characteristics of the discipline of
international political economy by highlighting the actors and forces involved through the
prism of contemporary Afghanistan vis-à-vis the international community. Moreover,
IPE’s current liberal, Marxist and realist theories can be usefully elucidated through this
1
case so as to also reflect the emphases of their respective points of view. In the process, I
will attempt to highlight fundamental problems affecting these IPE theories, and promote
a type of “academic détente”2 between the major theorists.
AFGHANISTAN
After bearing the hardships of over two decades of seemingly continuous conflict,3
Afghanistan is one of the least developed countries in the world in terms of its economy,
governance, infrastructure, and the rule of law. Furthermore, while some stability has
been achieved due to the efforts of the US-led coalition, corruption is rife and the instabil4
ity of its southern provinces in particular seems to worsen as time passes. As Afghanistan
is now taking its fledgling steps onto the international arena after years of forced seclusion
due to the reign of the Taleban, the seemingly innocuous issue of poppy cultivation has
become a hotly debated issue in the fora of international political and economic organisations.
Why, then, should a remote country like Afghanistan and, more specifically, whether
or not its poppy farmers are allowed to practice their livelihood, be of any consequence to
the international community? First and foremost, there is the issue of what Afghanistan’s
poppies are manufactured into, as the industry does not exist for floral purposes only. In
fact, Afghanistan is responsible for producing most of the world’s heroin,5 and in 2003 the
total income to opium farmers alone was equal to half of the country’s legal gross domestic product.6 Therefore, the issue has become pertinent to global organisations like the
United Nations (UN), the World Health Organisation (WHO), the World Trade Organisa1
There are numerous variants of these theories, for example, neoliberalism, Dependency Theory and
neorealism, respectively. While possibly somewhat differently tuned, their subdivisions still focus on and
emphasise essentially the same facets of the international system. Therefore, liberalism, realism and Marxism should hereinafter be understood in this article as umbrella terms denoting only the main thrust of the
different perspectives.
2
I am grateful to Adam Landsman for this term.
3
Armed struggle began with the Soviet invasion from 1980 to 1989. Repelling the Soviet forces precipitated two years of civil war, until the Mujahedin triumphed in 1991. Rival factions still competed for local power however, and after a brief hiatus of hostilities, factionalism began to dissipate the Rabbani
government’s authority over the country. The Taleban managed to seize de facto control of Afghanistan in
1996, and by 1997 controlled two-thirds of it. In 1998 the USA launched missile attacks on Afghanistan in
efforts to apprehend or kill the wanted terrorist Osama Bin Laden, and in 1999 the UN imposed an air embargo and strict sanctions on the Taleban government so as to force them to hand over Bin Laden. After
9/11, the US-led Coalition attacked Afghanistan and, after a brief war, forced the Taleban to capitulate.
However, the coalition has proved ineffective in cementing the rule of law over the whole country, and to
this day insurgent groups are constantly operating, particularly in southern Afghanistan, and conflagrations
are common.
4
R. Barnett Afghanistan’s Uncertain Transition From Turmoil to Normalcy, Council of Foreign Relations:
CRS NO. 12, 2006, http://www.cfr.org/publication/10273/ (accessed 4 April 2007), p. 7.
5
According to the United Nations Office on Drugs and Crimes’ (UNODC) Afghanistan Opium Survey
2004, 87% of global opium production in that year took place in Afghanistan. In the Afghanistan Opium Survey 2006, the figure for 2005 was 62%, and in 2006 it had risen again to 82%.
6
C. Todd, N. Safi and S. Strathdee, “Drug Use and Harm Reduction in Afghanistan,” Harm Reduction
Journal vol. 2 (2005), http://www.harmreductionjournal.com/content/2/1/13 (accessed 2 April 2007).
6
INTERNATIONAL PUBLIC POLICY REVIEW
tion (WTO), and also to Afghanistan’s neighbouring states – even to far off ones like the
United Kingdom. The restrictions imposed on Afghanistan’s sovereignty – a concept
which should in this instance be viewed with some reservation due to the current role of
the coalition in the country’s government – in issues of domestic industry are thus justified
and legitimised by the internationally defined illegal nature of Afghanistan’s most important cash crop.
INTERNATIONAL ORGANISATION
The traffic-warden characteristic of international and regional organisations in directing the political and, in this case also economic, activities of a country can be theoretically
explained and justified by liberal assumptions. These underline the necessity, and hence
legitimacy, of some regional and global regulatory mechanisms for resolving problems of
collective action, and also to facilitate a free market economy.7 The liberal perspective basically argues that the best way to resolve international disputes is to create international
organisations (IOs), which will replace notions of self-help with those of “collective secu8
rity.” In effect, self-help policies could be averted by creating a system of global governance, while still preserving a degree of national sovereignty, in order to resolve disputes
among states. Furthermore, in contrast to realist assumptions of relative gains, an important economic facet of liberalism is the belief that a free market economy will entail absolute gains for all parties, as it spurs countries and firms to focus on their respective
strengths. Hence even economically weak countries would benefit from a free market system as their resources would be utilised more effectively.9
From this perspective, international organisations and institutions become the means
to harmonise the interests of all states. Crucially, however, these institutions are moulded
by the most powerful states, for example, the International Monetary Fund (IMF) by the
United States, or the UN by the Security Council’s Permanent Five (the USA, the UK,
France, Russia, and China). In other words, these powers can force other states to comply
with their interests via IOs, or else risk being liable to punitive measures. In the case of
Afghanistan, this becomes evident in the way such organisations and distant states like the
USA and the UK are effectively dictating Afghanistan’s domestic policies, even though the
country has its own democratically elected government. While seemingly contradictory to
the fundamental concept of international law, namely sovereignty, it is nonetheless justified on the basis of the devastating result heroin has on the citizens and economies of
other countries.
While, in theory, liberals advance the ideology of a free market as being the best solution for world poverty, they do, however, distinguish this attitude from their treatment of
products that may enter said market. Whether or not Afghanistan is allowed to continue
its primary industry will therefore be decided by states and institutions other than Afghanistan. Furthermore, the contemporary strategy of crop eradication shows how international consensus over what counts as a legitimate product and its enforcement override
notions of free markets – and even the humanitarian aspect of depriving millions of people
their only means of living. Indeed, if, due to international norms and rules, poppy cultivation is forcefully terminated, some 13 million Afghanis will face ruin, due to the fact the
7
S. Krasner, “International Political Economy: Abiding Discord,” Review of International Political Economy vol. 1, no. 1 (1994), p. 14.
8
C. Brown, Understanding International Relations (New York: Palgrave, 2005), p. 22.
9
R. O’Brien and M. Williams, Global Political Economy: Evolution and Dynamics (New York: Palgrave
MacMillan, 2004), p. 89.
VOL. 3, NO. 1 – JUNE 2007
7
replacement cash crops advocated by the US and the UK, like saffron and olives, would
not yield enough produce to adequately replace the minimal profits the average farmer
10
accrues from his or her poppy fields. Thus, if forced eradication continues, it will plunge
the country into a humanitarian crisis.
The Senlis Council has, however, devised a bold policy to license, not legalise, poppy
cultivation in order to make its legal derivative (morphine and codeine) production into a
major industry for Afghanistan.11 This would not only safeguard the currently vulnerable
farmers, but Afghanistan could begin to supply the world’s developing countries with affordable morphine and codeine for medicinal purposes. International law and trade policy could also be developed so as to facilitate the export of poppy derivatives from
Afghanistan.12 This would therefore be a realistic win-win programme for both the Afghan people and impoverished peoples all around the world. The only ones to lose would
be the criminal gangs who currently accrue nearly all of the dividends from the poppy
farmers’ labour. This, then, leads us to the next lens for analysing issues in IPE.
PRIVATE INTERESTS AND POWER
While the international system upholds certain norms and rules affecting the activities of states, the power exerted by multinational corporations (MNCs) has also become
increasingly significant. In this context, the effects of licensing poppy cultivation and the
production of its medicinal derivatives in Afghanistan have surely been assessed by the
large pharmaceutical corporations in the USA, Australia, France, Japan, and the UK.13
These corporations have a virtual monopoly on morphine and codeine production, hence,
they control the whole value chain of the opium poppy.14 Moreover, the fact that approximately 77% of the world’s morphine and codeine is consumed by seven of the
world’s richest countries (the USA, UK, France, Italy, Germany, Spain, and Japan) is indicative of the great inequalities the aforementioned international norms and regulations
bring about and perpetuate.15 The WHO has referred to this state of affairs as the “World
Pain Crisis,”16 and while even in the developed Western countries there are insufficient
amounts of these painkillers, the distress developing countries face is especially acute as
they account only for 6% of global morphine consumption. 17
Meanwhile, Afghanistan’s conditions are ideal for poppy cultivation, and the necessary skills and infrastructure for providing said painkillers to the vast majority of the
world’s pharmaceutically disenfranchised peoples already exist.18 Therefore, the only real
issue to be resolved before this pain crisis could be considerably alleviated would be the
10
Shukria Barakzai, Member of Parliament, Kabul Province, Afghanistan, speaking at The Senlis
Council’s London conference on “The Afghan Development and Security Crisis” (first session, Royal Institute of Mechanical Engineers, 30 January 2006).
11
Cf. The Senlis Council, Feasibility Study on Opium Licensing in Afghanistan for the
Production of Morphine and Other Essential Medicines (London: MF Publishing, 2005).
12
G. Triggs, Director, British Institute of International and Comparative Law, speaking at The Senlis
Council’s London conference on “The Afghan Development and Security Crisis” (second session, House of
Commons, 30 January 2006).
13
The Senlis Council (2005), p. 6.
14
Ibid., p. 21.
15
Ibid., p. 2
16
The Senlis Council, Opium Licensing: A Response to the Afghan Reconstruction Crisis, handout at the
London conference on “The Afghan Development and Security Crisis” (first session, Royal Institute of Mechanical Engineers, 30 January 2006), p. 1.
17
The Senlis Council (2005), p. 6.
18
G. Momand, Deputy Country Manager, speaking at the London conference on “The Afghan Development and Security Crisis” (first session, Royal Institute of Mechanical Engineers, 30 January 2006).
8
INTERNATIONAL PUBLIC POLICY REVIEW
licensing process. And this again would seemingly only harm the heroin traffickers.
However, perhaps it would also damage the pharmaceutical corporations who amass vast
amounts of money from supplying developed countries with expensive painkillers.
Marxist IPE theorists focus on the role of capitalist elites, and how the international
system is not primarily determined by state policies (as the realist assumes) or by international organisations (as the liberal assumes). Instead, Marxist theory rejects statism and
19
focuses on the significance of class. Whether in Dependency Theory or Centre-Periphery
Analysis, Marxist IPE theorists argue that the paramount determinants of the international
system’s dynamic and structure flow from the self-serving and exploitative policies of
transnational capitalist elites.20 Furthermore, Marxists advocate that that these unjust
structures, which make the poor pay for the ever-expanding benefits of the rich, are being
continuously entrenched. While not quite calling for a proletariat revolution along the
lines of Marx or Lenin, they nonetheless underline the need for a more equitable system.
Accordingly, it is unsurprising how the pharmaceutical lobby has been unwilling to
back a poppy-licensing programme for Afghanistan, as the potential output of medicinal
painkillers from Afghanistan would be so significant that it could have considerable effects on the vested interests of the existing producers. However, the proposed Afghan
painkiller industry would not even compete for the same markets as these companies. In
fact, according to The Senlis Council’s recommendations, Afghanistan would provide
morphine only to countries that cannot currently afford painkillers as a result of their exorbitant price. The pharmaceutical corporations have, however, only voiced concerns over
the proposed plan, emphasising the fear of subsequent illegal conversion of opium into
heroin. Yet surely the pharmaceutical corporations could help to lobby national and international organisations for implementing this plan rather than ruthlessly buttress their
own pain relief empires. After all, this would be in the interest of millions of sick people
who needlessly suffer and die in pain, and pharmaceutical corporations are in the business
of curing and alleviating suffering.
STATE POWER
After focusing on the problems of inequalities in the global distribution of wealth so
validly highlighted by Marxists, it is necessary to turn to the realist IPE theorists. They
would essentially argue that, in reality, the only obstacle to Afghanistan’s implementation
of such a plan is its relative, and at the moment absolute, weakness on the international
playing field. The realist would offer Afghanistan as the quintessential example of how
the only reason a state has to tolerate the views of other actors is its own lack of power. If
it were politically and economically as powerful as, say, the USA, Afghanistan could grow
whatever it wanted.
Realism thus asserts that the paramount variable determining the political and economic policies of states, and by extension the international system in general, is their
21
strength relative to other states. By conceiving of the international system’s most definitive characteristic as the lack of any overarching authority, hence it being an anarchic
realm, the most influential realist, Kenneth Waltz, came to the conclusion that the system’s
dynamic was necessarily one of self-help. Indeed, echoing the thoughts of Thomas
Hobbes, Waltz proclaimed that “[s]tates in the world are like individuals in a state of na-
19
O’Brien and Williams, p. 23.
Krasner, p. 14.
21
Ibid., p. 4.
20
VOL. 3, NO. 1 – JUNE 2007
9
ture.”22 While multinational and transnational corporations, along with IOs and nongovernmental organisations (NGOs), affect the international system, they are of secondary
importance to IPE in the realist vein; here, it is states wielding armies that are paramount.
While this overly ardent emphasis on states is its foremost shortcoming, realism does
initially seem to offer the best lens for analysing this example. This is simply due to the
fact that, as alluded to earlier, Afghanistan’s specific circumstances are peculiar; it is an
infant state, and de facto authority does not lie with the elected government but with the
coalition. Therefore, while entrenched autocratic regimes, such as are found in North Korea and Zimbabwe, can effectively turn a blind eye to whatever parlance the international
community directs at them (if they can bear the consequent sanctions), a state like Afghanistan can do little but flutter about like a feather when caught in the whirlwinds of
international relations. Furthermore, the Afghan government has itself deemed The Senlis
23
Council’s recommendation as being unviable at present. This is the biggest handicap facing The Senlis Counil’s lobbying, and it is due to the absence of governmental authority,
making the implementation and enforcement of poppy licensing problematic. This lack of
power and the consequent ineptitude of the government would, then, further seem to substantiate the realist case.
ANSWERS AND PROBLEMS
Thus the answers vary as to why this innovative plan – which would profit some of
the most vulnerable people in our world while harming only the criminal gangs whose
products wreak havoc on individuals and societies – will most likely never see the light of
day. The liberal IPE theorist would quite correctly retort that the constraints of international rules and norms necessitate the elimination of poppy cultivation because of the
harmful global effects of heroin. The Marxist would lay the burden of guilt squarely on
the pharmaceutical corporations and their politically influential cronies, which is surely a
valid observation regarding the intertwined relationship of political power and its economic underpinnings. The realist, on the other hand, would simply rebuff the above and
argue that, because Afghanistan does not have sufficient national power, hence international clout, to do so, it cannot implement the plan independently. And again, there is
some truth in this argument as well.
In the end, however, these answers all share the same strength and the same deficit:
they all pick out a valid factual variable and respective theorists then elevate that variable
to the supreme place in the “determinants of the international system” Pantheon. Admittedly, due to the futility of trying to encapsulate all the mechanisms and variables of the
international system into one self-sufficient theory, this tendency is somewhat inescapable.
Therefore, the theories’ insights should certainly be noted and utilised, yet only in tandem
with recognising their limitations.
Indeed, the intertwined relationships between the political and economic, also between the domestic and international, and the profound implications one can have on another, manifest themselves clearly in even such a seemingly trivial matter as flower
cultivation in Central Asia. The particular theoretical frameworks bequeathed to IPE,
namely liberalism, Marxism and realism, however, still share the same myopic nature as
their IR ancestors. In the words of Susan Strange, IPE theorists would often “rather fit the
facts of life into international relations theories than question the validity of the theories to
22
K. Waltz, Theory of International Politics (Boston: McGraw-Hill, 1979), p. 163.
S. Seddiq, Member of Parliament, Nangahar Province, Afghanistan, speaking at the London conference on “The Afghan Development and Security Crisis” (first session, Royal Institute of Mechanical Engineers, 30 January 2006).
23
10
INTERNATIONAL PUBLIC POLICY REVIEW
explain the nature, and the causes and consequences of change in the world.”24 Indeed, a
recurrent problem in the field is that theorists often appear to “talk past” each other rather
25
than engage in productive dialogue.
Furthermore, when substantiating their claims with empirical evidence, the theorists
are effectively given free reigns to find what they want, as the material on which their
theories are “tested” on is the inexhaustible source of our cultural record and current affairs. Postmodern critiques of historiography are therefore also relevant to IPE and IR as
the application of historical facts for substantiating theories is an inherently selective, biased, and fictive process. Indeed, at times both IPE and IR seem more like what Karl Popper identified as pseudo-science in that there is no way to conclusively falsify their claims:
the proponents of a theory can circumvent any counterargument by creating, or in this
case “quarrying” from history, a suitable response.26 While the historian only purports to
be describing historical events and epochs by constructing narratives, the IR and IPE theorists’ endeavour is inherently normative, and substantiating such prescriptive claims with
selective, and hence manipulative, readings of history is therefore suspect to say the least,
and even morally dubious. Theoretical clarity should not be sought at the price of ignoring important facets of the international system, and all the discussed theories share this
fault.
COMPLEMENTARITY
While selectivity may be a natural limitation of political science, a new paradigm for
IPE should attempt to synthesize the discussed perspectives into a more holistic and flexible theory. The first step would be to acknowledge the complementary character of the
theories, as they all have valid points – and when utilised in unison, as was made clear
when dissecting Afghanistan’s poppy industry vis-à-vis the international community –
they give a more multifaceted, and hence superior, picture than when used individually.
From poppies in Afghanistan to political problems concerning Iraq, from human rights
issues in Zimbabwe to debating the rights and duties of transnational corporations, all the
aforementioned theories have valuable insights and lessons that could be utilised in solving such political and economic problems. The efforts of IPE theorists should therefore not
be lost in individual system-building and academic nitpicking but be located in collective
problem-solving. Ideally, each camp would then analyse and give expert advice to policy
makers on issues within their forte – power politics for the realists, transnational corporations and inequality for the Marxist, and institution-building for the liberals – in order to
arrive at as specific and accurate policy recommendations as possible.
As for the poppies in Afghanistan, the future is not clear. The US and UK governments have already categorically rejected The Senlis Council’s proposals.27 The Afghan
government has neither expressed much interest in a plan that they perceive as too much
too soon. Nonetheless, if the current momentum for eradication persists, Afghan farmers
will pay dearly for the hedonistic and destructive inclinations of a marginal group of indi24
S. Strange, “Wake up Krasner! The world has changed,” Review of International Political Economy vol.
1, no. 2 (1994) p. 209.
25
S. Burchill, et al. Theories of International Relations. 3rd ed. (New York: Palgrave, 2005), p. 1.
26
The notion of “quarrying” history in order to substantiate claims in IR is credited to S. Hobden and J.
Hobson in N. Vaughan-Williams, “International Relations and the Problem of History,” Millennium: Journal
of International Studies vol. 34, no. 1 (2005).
27
A. Rassa, Chairman, Afghan Human Rights Organisation, speaking at the London conference on
“The Afghan Development and Security Crisis” (first session, Royal Institute of Mechanical Engineers, 30
January 2006).
VOL. 3, NO. 1 – JUNE 2007
11
viduals in the developed world. Hopefully, however, the international community will
recognise the potential benefits of The Senlis Council’s plan, which could substantially alleviate suffering amidst the poor in Afghanistan and around the world. This would be
necessary so as to develop the Afghan government’s confidence, and also assist it to make
the recommendations reality.
In the end, the onus lies not only with the international community to recognize the
distinctive circumstances affecting Afghanistan, but the pharmaceutical companies must
also be willing to loosen their grip on the production of painkillers in order to help the
sick, and finally, the coalition must prevail in cementing the rule of law to, in effect, pave
the road for Afghanistan’s journey toward proper statehood, with all its rights and duties.
Is it not more important that such problems of the international system are addressed and
resolved, rather than academics perpetuating theoretical disagreements arising from such
an unavoidable source as difference of perspective? If so, IPE theorists should work together and define their perspectives, not as mutually exclusive but as complementary.
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http://www.harmreductionjournal.com/content/2/1/13
United Nations Office on Drugs and Crimes. Afghanistan Opium Survey 2004 & 2006.
Available online: http://www.unodc.org/unodc/en/crop_monitoring.html
Vaughan-Williams, Nick. “International Relations and the Problem of History.” Millennium: Journal of International Studies vol. 34, no.1 (2005): 115-136.
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Waltz, Kenneth. Theory of International Politics. Boston: McGraw-Hill, 1979.
Weiss, Linda (ed). States in the Global Economy: Bringing Domestic Institutions Back In. Cambridge: Cambridge University Press, 2003.
Woods, Ngaire (ed). The Political Economy of Globalization. New York: Palgrave, 2000.
SEXUAL VIOLENCE AS A WEAPON OF WAR IN
INTERNATIONAL HUMANITARIAN LAW
Jennifer Park‡
ABSTRACT
Sexual violence as a weapon of war targets individuals not only on the basis of group membership,
but also uniquely on the basis of gender. Despite substantial increases in occurrence during warfare, international and national mechanisms have largely neglected the impact of sexual violence in
hindering peace and obscuring perceptions of security among population groups. The failure to
clearly recognise sexual violence as a weapon of war has resulted in impunity, in turn affecting the
likelihood of future outbreaks of conflict. To prevent further negligence, the establishments of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) have made notable progress toward reconceptualising sexual violence
as a weapon of war. This paper highlights and evaluates the innovations made by the ICTY and the
ICTR towards recognising the issue of sexual violence as a threat to international peace and security in international law.
Keywords: gender; International Criminal Tribunal for the former Yugoslavia; International Criminal Tribunal for Rwanda; security; sexual violence; war
Atrocities committed during conflicts over recent decades underscore the need to
move beyond traditional state-centric conceptualisations of security. As witnessed in the
former Yugoslavia and Rwanda, the nature of contemporary warfare tactics, targeting
specific individuals for the purposes of ethnic cleansing and genocide, make apparent the
inadequacies of conventional notions of security. These two cases exemplify how threats
to the peace and security of states, or rather the individuals within the territories of states,
emanate from “internal” sources of tension. While both cases exhibited elements of crossborder spillover, it is important to note that the use of the terms “genocide” and “ethnic
cleansing” were specifically interpreted as applying to the state-sponsored threats on its
“internal” or “natural” population groups. Levels of hostility against identity-based
groups reached unspeakable magnitude, calling for greater attention towards understanding the internal dimensions of conflict. In particular, the use of sexual and gender-based
violence as a means of ethnic cleansing and genocide presents a compelling case for rethinking measures of administering peace and security in high-risk areas.
Sexual violence as a weapon of war targets individuals not only on the basis of group
membership (i.e. ethnicity, tribe, race, etc.), but also uniquely on the basis of gender. De‡
MSc International Public Policy, University College London. Outreach Coordinator, Women In International Security and the Center for Peace and Security Studies at Georgetown University in Washington,
DC. For questions or comments, please contact: jcp59@georgetown.edu.
13
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spite substantial increases in occurrence during warfare, international and national
mechanisms have largely neglected the impact of sexual violence in hindering peace and
obscuring perceptions of security among population groups. The failure to clearly recognise sexual violence as a weapon of war has resulted in impunity, affecting the likelihood
of future outbreaks of conflict. To prevent further negligence, the establishments of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR) have made notable progress towards reconceptualising sexual and gender-based violence as a weapon of war. This paper aims to highlight
and evaluate the innovations made by the ICTY and the ICTR towards establishing the use
of sexual violence as a threat to international peace and security in international law.
The ICTY and the ICTR have undoubtedly increased the visibility and role of international law in administering and promoting peaceful mechanisms for post-conflict transitions. While controversy and debate surround the establishment of ad hoc war tribunals,
the process of international law continues to build upon understandings of the “absolute
worst crimes” committed during conflict through such legal mechanisms. As stated
through the principle of nullum crimen sine lege, nulla poena sine lege, 28 defining criminal behaviour is essential for the purposes of deterrence and punishment, and can easily be applied to the rules of engagement in warfare. Tribunals uniquely address the most serious
crimes of warfare in ways domestic courts are not positioned to do. As iterated by Fionnuala Ni Aolain, “where the actions of an individual clearly point to a pattern of transgressive behavior, unless a legal device exists to disclose associated information, the focus
on individual responsibility may eschew an expanded picture of liability.”29 International
tribunals, which by nature encompass a larger political and military context, render the
kind of venue in which sexual violence may be considered within the scope of war crimes,
crimes against humanity, and genocide. Perpetrators may range from civilian participants
to heads-of-state. Acknowledging this range, the ICTY and the ICTR have made groundbreaking developments for advancing the issue of sexual violence within the arena of international concern.
Before the work of the ICTY and the ICTR, the lack of definitions and appropriate
procedural processes for prosecuting sexual violence proved to be a significant barrier towards advancing the status of sexual violence in international law. As noted by Theodor
Meron, the reference to sexual violence in the Hague Regulations and the Geneva Conventions and Additional Protocols limits sexual crimes to the prohibition of rape, with no ex30
press definition of what constitutes rape. While the prohibition of rape by these treaties
serves an important purpose, it by no means covers the complex and varied forms of sexual aggression witnessed in modern conflicts. Moreover, Fionnuala Ni Aolain explains,
“not only have all-encompassing sexual crimes against women been excluded from legal
prohibition under the laws of war, but when included they have been facets of male status
violation.”31 Her criticism points to the wider problem of masculine gender-biased notions
of warfare, which have failed to address the ever-changing practices and settings for widespread political violence. Ni Aolain’s line of reasoning aptly attends to the inclusion of
women and gender-based concerns in conceptualising legitimate tactics for combat. In
28
See F. Ni Aolain, “Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of
Sexual Violence in War,” Albany Law Review vol. 60, no. 3 (1997), p. 898. The general legal principle “nullum
crimen sine lege, nulla poena sine lege” translates as “no crime without law, no punishment without law.”
29
Ibid.
30
T. Meron, “Rape as a Crime Under International Humanitarian Law,” The American Journal of International Law vol. 87, no.3 (1993), p. 425.
31
Ni Aolain, p. 888.
VOL. 3, NO. 1 – JUNE 2007
15
short, the issue of sexual violence deserves a much greater role in efforts to establish peace
and security, as it has been much neglected in regard to its use as a tool of war.
In her analysis of sexual violence and war, Inger Skjelsbaek points out, “[t]he determining features for both conventional and non-conventional weapons to be characterized
as weapons of war, are that they are used as part of a systematic political campaign which
32
has strategic military purposes.” The ethnic cleansing practices in the former Yugoslavia
and the genocide in Rwanda clearly demonstrate the use of sexual violence beyond traditional notions of rape and as part of wider political agendas, as will be shown below. The
linkage between sexual violence and political agendas is essential in these contexts. While
sexual violence may be an unconventional weapon of war, it is arguably one of the most
effective tactics used in warfare. A report by UNIFEM states:
Men and boys as well as women and girls are the victims of this targeting, but
women, much more than men, suffer gender-based violence. Their bodies become a
battleground over which opposing forces struggle. Women are raped as a way to
humiliate the men they are related to, who are often forced to watch the assault. In
societies where ethnicity is inherited through the male line, ‘enemy’ women are
forced to miscarry through violent attacks. Women are kidnapped and used as sexual slaves to service troops…33
The effects of sexual violence persist long after the actual events have occurred. Physical
and psychological pain, forced impregnation resulting in unwanted children, and the deliberate spread of HIV/AIDS give ample justification for lasting skepticism and mistrust of
members of the opposing group. For these reasons, the disassociation of sexual violence
from post-conflict peace processes and security sector reform constitutes as gross negligence by the international tribunals.
Although statistics often fall short of expressing the true extent of the aftermath of
conflict, the following help illustrate the pervasive use of sexual violence in the former
Yugoslavia and Rwanda. In the former Yugoslavia, several reports have cited a conserva34
tive approximation of 20,000 Bosnian women as victims of rape during the war. In a report by Tresnjevka, a Croatian nationalist women’s group, more than 35,000 women and
35
children were allegedly held in Serb-run “rape/death camps.” To add to the magnitude,
such reports have acknowledged underreporting by survivors of sexual violence. According to the above UNIFEM report, 250,000 to as many as 500,000 women were raped during
the 1994 genocide in Rwanda.36 Many of the victims were infected with HIV by perpetrators during the genocide, causing an ongoing crisis for Rwandans.37 These numbers point
to the widespread, systematic nature of sexual violence in both contexts. As can be imagined, however, statistics for the various forms of sexual assault have been incredibly difficult to gather. In spite of this, the documenting and reporting of individual incidences
32
I. Skjelsbaek, “Sexual Violence and War: Mapping Out a Complex Relationship,” European Journal of
International Relations vol. 7, no. 2 (2001), p. 213.
33
E. Rehn and E. J. Sirleaf, Women, War and Peace: The Independent Experts’ Assessment on the Impact of
Armed Conflict on Women and Women’s Role in Peacebuilding (New York: UNIFEM, 2002), p. 10.
34
“The Impact of Conflict on Women in Bosnia and Herzegovina: Political and Security Impact,”
available online: http://www.womenwarpeace.org/bosnia/bosnia.htm (accessed 31 March 2006).
35
B. G. J. De Graaff, “Rapes in Bosnia: A New Theme in the Media,” Srebrenica – A Safe Area (2002),
available online: http://213.222.3.5/srebrenica/toc/p1_c09_s002_b01.html (accessed 1 April 2006).
36
Rehn and Sirleaf, p. 9.
37
“The Impact of Conflict on Rwandan Women: The Humanitarian Impact”, available online:
http://www.womenwarpeace.org/rwanda/rwanda.htm (accessed 31 March 2006).
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have helped to include sexual violence in the agendas of the ICTY and the ICTR, as will be
shown with the first cases for each court.
Commissioned with the immense task of bringing justice and deterring further
crimes, the ICTY and the ICTR both base their case laws on their respective Statutes as
well as on customary international law. This feature of the tribunals produces a greater
level of influence on the development of criminalising sexual violence in warfare, since
38
customary international law inevitably affects all states. Customary law allows the tribunals to draw upon a wider frame of reference beyond their prescribed Statutes, adding a
level of flexibility necessary for adjudicating crimes of sexual violence. The tribunals considered rape and sexual assault in terms of torture, grave breaches to the Geneva Conventions, violations to the laws or customs of war, crimes against humanity, and genocide.39
The importance of regarding sexual violence within the scope of the worst crimes committable under international law lies in the understanding that within the contexts of both interstate and non-interstate conflicts, violence that is sexual in nature may have deliberate
and planned characteristics amounting to a mechanism of warfare. Moreover, including
sexual violence as a weapon of war reflects a rethinking of post-conflict reconciliation and
methods to establish respective understandings of security.
As the first international tribunal since the Nuremberg Trials, the ICTY has endeavoured to hold individuals responsible for serious violations of international humanitarian
law since 1991 on the territory of the former Yugoslavia. Fionnuala Ni Aolain states, “The
Yugoslav conflict is exceptional because of the way in which violence against women has
been widely exposed as a method and means of warfare, not ancillary to military objectives, but innately linked to them.”40 Rape camps and alleged plans written by Serb army
officers to use rape as a tool of ethnic cleansing during the war exemplify this linkage.41
This has also been witnessed in the treatment of men during the conflict, as demonstrated
through the cases of Bosnian concentration camp victims where the majority of victims
were men.42 The Statute of the ICTY in defining the crimes under Articles 2 through 5 include rape as a crime against humanity, and leaves considerable flexibility for inclusion of
other forms sexual violence as punishable under international law.
As the first trial of the ICTY, Prosecutor v. Tadic set a major precedent by including
sexual violence as an indictable crime by an international court. The charges against
Dusko Tadic included a wide range of participation in sexual violence toward males and
females. Charged with 34 counts of crimes against humanity, grave breaches, and violations to the laws or customs of war,43 Tadic was found guilty of direct and indirect participation in sexual crimes. The significance of this case lies partly in the Tribunal’s
interpretation of individual criminal responsibility, as spelled out in Article 7 of the Statute. As noted by Kelly Askin:
38
F. Hampson, “Working Paper on the Criminalization, Investigation and Prosecution of Acts of Serious Sexual Violence”, UN Doc. E/CN.4/Sub.2/2004/12, available online: http://documents-ddsny.un.org/docs/UNDOC/GEN/G04/154/40/pdf/G0415440.pdf?OpenElement (accessed 20 March 2006),
p. 4.
39
Ibid., p. 5.
40
Ni Aolain, pp. 883-884.
41
Skjelsbaek, p. 220.
42
Ibid., p. 224.
43
See Prosecutor v. Dusko Tadic. ICTY. Case No. IT-94-1-L. Second amended indictment.
VOL. 3, NO. 1 – JUNE 2007
17
Even though it was not proven that Tadic himself had committed sexual violence, the
chamber held him responsible for his participation in a general campaign of terror,
44
manifested by murder, rape, torture and other forms of violence.
In interpreting Tadic’s actions, the Tribunal found indirect involvement in sexual violence
sufficient for holding Tadic personally responsible for such crimes. The verdict demonstrates the use of international law to implicate and convict an individual for “inactive participation” in sexual crimes, an innovation aimed at influencing participants in conflict to
curtail one another’s brutality. In effect, this judgment has serious implications for future
convictions of direct and indirect participation of sexual crimes, as well as creating impetus for deterrence.
Similarly, the first case for the ICTR, Prosecutor v. Akayesu, also set precedents for advancing the status of sexual violence in post-conflict justice. As the first international tribunal to define rape and sexual violence, the ICTR explicitly set sexual aggression on the
agenda for post-genocidal justice in Rwanda. Utilising the Convention against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment, the Tribunal likened rape to
torture, thus expanding the treatment of rape beyond the Fourth Geneva Convention’s interpretation of rape as an offense against the honor of the victim. In a statement regarding
the significance of sexual violence in international justice, the court stated:
Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and
prosecution of war crimes. The investigation and presentation of evidence relating to
sexual violence is in the interest of justice.45
The ICTR stands apart from the ICTY in that the genocide in Rwanda mainly raised issues
of internal armed conflict. While the ICTY was able to justify the use of international humanitarian law on the basis of international armed conflict among the fragmented territories of Yugoslavia, the ICTR had to take a further leap forward in prosecuting sexual
violence as genocide in the context of internal conflict.
The Prosecutor v. Akmkayesu case presented the first conviction of an individual for
the charges of genocide and international crimes of sexual violence, a truly groundbreaking feat. Kelly Askin highlights three historic aspects of this case:
…(1) the trial chamber recognized sexual violence as an integral part of genocide in
Rwanda, and found the accused guilty of genocide for crimes that included sexual
violence; (2) the chamber recognized rape and other forms of violence as independent crimes constituting crimes against humanity; and (3) the chamber enunciated a
broad, progressive international definition of both rape and sexual violence.46
Essentially, the Akayesu case made the linkage between the prevalence of sexual violence
and the political agenda behind identity-based conflict. In this way, the Tribunal established that sexual violence and military objectives could be one and the same. The use of
the term “sexual violence” to encompass rape and other forms of sexual aggression has
more relevance in modern warfare than the previous references to rape. According to the
44
K. Askin, “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals:
Current Status”, The American Journal of International Law vol. 93, no. 1 (1999), p. 104.
45
See par. 417 in Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T. Decision of 2nd September 1998.
46
Askin, p. 107.
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Akayesu judgment, the Tribunal identified sexual violence to include acts that did not
47
necessary involve physical invasion of the human body or physical contact. The innovative and expansive use of terminology reflects the level of understanding acquired
through thorough investigation of such crimes. Like the Tadic case, the consequences of
the Akayesu case will certainly resonate in future indictments.
The indictments and convictions of perpetrators of sexual violence by the ICTY and
the ICTR have made invaluable contributions towards addressing the use of sexual aggression as a tool of war. While the successful prosecutions of such perpetrators as Tadic
and Akayesu have certainly revolutionized the understanding of sexual violence in warfare, the tribunals have yet to demonstrate the desired deterrent effect in ongoing conflicts.
A much-cited criticism of the ICTY is that the atrocities committed in Srebrenica posed a
major challenge to the deterrent value of the court. Also, despite proximity to the ICTR,
widespread sexual violence continues to be rampant in areas of the greater Great Lakes
region, including Uganda, Democratic Republic of Congo, Sudan, etc. Deterrence may be
a matter of time, publicity, and accumulation of international legal documentation towards norm establishment. But the issue of deterrence also points to the need for complementary mechanisms for international peace and security. The lack of enforcement
power severely limits the effectiveness of tribunals, thus necessitating institutional and
multilateral cooperation.
Sexual violence in warfare is ultimately a greater issue that cannot solely be addressed through legal procedures. It is not within the scope or jurisdiction of an international tribunal to deal with all the complex and lasting consequences of widespread sexual
violence. Financial support and international collaboration greatly affect the ranging facets of dealing with aftercare services for survivors, reconciliation with former “enemies,”
establishing rule of law and trust in legal systems, among other aspects of peace-building.
Publicity and immediate relevance to those who have been affected also play a large role
in validating the work of the tribunals. Other mechanisms for peace-building such as
UNIFEM’s call for an international Truth and Reconciliation Commission aim to fill the
historical gap left by undocumented and unacknowledged crimes.48 The expansive and
long-lasting nature of sexual violence may necessitate such an institution, and may serve
to complement the work of tribunals. The ICTY and the ICTR have paved the way for
more sophisticated understandings of sexual violence. It is imperative that existing institutional mechanisms build upon the momentum created by the tribunals. Essentially,
peace-making and peace-building efforts will be better served by greater attention paid to
the use of sexual violence in conflict through international collaboration.
REFERENCES
Askin, Kelly D. “Sexual Violence in Decisions and Indictments of the Yugoslav and
Rwandan Tribunals: Current Status.” The American Journal of International Law vol.
93, no. 1 (1999), pp. 97-123.
De Graaf, B. G. J. “Rapes in Bosnia: A New Theme in the Media.” Srebrenica – A Safe Area.
2002. The Netherlands for War Documentation. Available online:
http://213.222.3.5/srebrenica/toc/p1_c09_s002_b01.html
47
48
Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T.
Rehn and Sirleaf, p. 18.
VOL. 3, NO. 1 – JUNE 2007
19
Hampson, Françoise. “Working Paper on the Criminalization, Investigation and Prosecution of Acts of Serious Sexual Violence.” UN Doc. E/CN.4/Sub.2/2004/12. Available online: http://documents-dds-ny.un.org/docs/UNDOC/GEN/G04/154/
40/pdf/G0415440.pdf?OpenElement
Meron, Theodor. “Rape as a Crime Under International Humanitarian Law.” The American Journal of International Law vol. 87, no. 3 (1993), pp. 424 – 428.
Ni Aolain, Fionnuala. “Radical Rules: The Effects of Evidential and Procedural Rules on
the Regulation of Sexual Violence in War.” Albany Law Review vol. 60 no. 3 (1997),
pp. 883–905.
Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T. Available online:
http://69.94.11.53/default.htm
Prosecutor v. Dusko Tadic. Second amended indictment. ICTY. Case No. IT-94-1-L. Available online: http://www.un.org/icty/indictment/english/tad-2ai951214e.htm
Rehn, Elisabeth and Ellen Johnson Sirleaf. Women, War and Peace: The Independent Experts’
Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace
Building. New York: UNIFEM, 2002.
Skjelsbaek, Inger. “Sexual Violence and War: Mapping Out a Complex Relationship.”
European Journal of International Relations vol. 7, no. 2 (2001), pp. 211 – 237.
“The Impact of Conflict on Rwandan Women: The Humanitarian Impact.” UNIFEM.
Available online: http://www.womenwarpeace.org/rwanda/rwanda.htm
“The Impact of Conflict on Women in Bosnia and Herzegovina: Political and Security Impact.” UNIFEM. Available online:
http://www.womenwarpeace.org/bosnia/bosnia.htm
THE OUTSIDE DIMENSION TO THE UNITED STATES’ POSITION
IN THE ANTI-(HUMAN) TRAFFICKING MOVEMENT: THE ROLE
OF NONGOVERNMENTAL INFLUENCE
Manpreet Kaur Sidhu‡
ABSTRACT
Global exploitation of human beings is usually associated with the images of men, women, and children working in sweatshops to produce garments for Westerners for pennies a day. However, there
is an even more brutal form of human exploitation taking place. Every year millions of men,
women, and children are trafficked worldwide into forced labour, involuntary servitude, and forced
prostitution. Recently, the United States has made progress in eradicating all forms of human trafficking, by enacting legislation directly attacking this problem through a legal-based approach and a
victim-centred outlook. This article explores the way in which the United States spearheaded the
international movement against human trafficking and sex trafficking. A broader understanding of
the influence of the outside dimension (domestic NGO influence) on US policy process, and in
translating international norms into domestic policy, provides the theoretical framework. The article examines the premise that due to domestic NGO pressure, the United States became a prominent actor in the anti-(human) trafficking movement. The results illustrate that domestic NGOs
influenced the United States to take on a prominent role in the anti-(human) trafficking movement,
and these NGOs utilised international norms to mobilise governmental and public support.
Keywords: human trafficking; international norms; nongovernmental influence; nongovernmental organisations; norm socialisation; public policy; sex trafficking
1. INTRODUCTION
Every year millions of individuals are trafficked worldwide into slavery-like conditions,49 and thousands are trafficked into the United States. Trafficking is more commonly
associated with the illegal trade of goods across borders; however, Flamm notes, “this
‡
MSc International Public Policy, University College London. For questions or comments, please contact: mksidhu04@yahoo.com. Author acknowledgments: Many thanks to Dr. Fiona Adamson of University
College London, Sandra Hunnicutt of Captive Daughters, family, friends and past professors that I have
been privileged to study under, for their encouragement, kind support, and guidance.
49
“Slavery-like practices” means inducement of a person to perform labour or other services by force,
coercion, or by any scheme, plan, or pattern to cause the person to believe that failure to perform the work
will result in the infliction of serious harm (Trafficking Victims Protection Act, Public Law 106-386).
20
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21
trade has taken a giant leap forward to include the trafficking of human beings.”50 Human
trafficking is generally defined as the “transportation of individuals across international
51
borders by means of fraud, coercion or deception.” As indicated by this definition, trafficking in persons can take many forms, with the most prevalent being the commerce of
women and female children.52 Typically, foreign women are offered jobs in the United
States as nannies, models, or waitresses. Once they arrive they are stripped of their passports and other documents, threatened, beaten, and forced (mainly) into prostitution.53
The following is an excerpt from an account of a trafficking victim who testified before the
2000 US Senate Foreign Relations Committee:
Once in Florida, Abel Cadena, one of the ringleaders, told me I would be working at
a brothel as a prostitute. I told him he was mistaken and that I was going to be working in a restaurant not a brothel. He then ordered me to work in a brothel. He said I
owed him a smuggling debt of approximately $2200 and the sooner I paid it off the
sooner I could leave… Next, I was given tight clothes to wear and was told what I
must do. There would be armed men selling tickets to customers in the trailer. Tickets were condoms. Each ticket would be sold for $22 to $25... The client would then
point at the girl he wanted and the girl would take him to one of the bedrooms. At
the end of the night, I turned in the condom wrappers. Each wrapper represented a
supposed deduction to my smuggling fee. We tried to keep our own records, but the
bosses would destroy them. We were never sure what we owed.… We were constantly guarded and abused. If anyone refused to be with a customer, we were
beaten. If we adamantly refused, the bosses would show us a lesson by raping us
brutally…. We were transported every fifteen days to another trailer in a nearby city.
This was to give the customers a variety of girls and so we never knew where we
were in case we tried to escape. I could not believe this was happening to me.54
Only through real-life accounts like these can we fully understand the nature of this problem.
The US State Department estimates that between 600,000 and 800,000 people are trafficked globally each year, and an estimated 80 percent are women and girls who mainly
55
fall victim to the sex trade. The Department of Justice estimates that 14,500 to 17,500 of
these individuals are trafficked annually into the United States.56 The United States, as a
key actor in the international political arena and a popular destination country for the trafficking victims, has an enormous impact on the industry. Trafficking has been rightly referred to as a modern form of slavery. Slavery in the United States is typically thought of
as a problem that ended in 1865, as a peculiar, now defunct institution, “framed by images
of the vast Southern plantation, auctioneer’s block, shackle, stockade and lash - all of
50
M. Flamm, “Exploited, Not Educated: Trafficking of Women and Children in Southeast Asia”,
United Nations Chronicle (2003), http://www.un.org/pubs/chronicle/2003/issue2.html (accessed 22 March
2006).
51
K. Ryf, “The First Modern Anti-slavery law: The Trafficking Victims Protection Act of 2000,” Case
Western Reserve Journal of International Law 34 (2002), p. 2.
52
Ibid., p. 3.
53
Ibid.
54
Polaris Project, “Trafficking Victim’s Testimony (Maria)” (2006),
http://www.humantrafficking.com/ humantrafficking/features_ht3/Testimonies/testimonies_mainframe.htm (accessed 6 July 2006).
55
State Department, Trafficking in Persons Report (Washington, DC: US Government Printing Office,
2006), p. 6, http://www.state.gov/g/tip/rls/tiprpt/2006/ (accessed 15 June 2006).
56
Department of Justice, “Assessment of US Government Activities to Combat Trafficking in Persons”,
(2004), p. 6.
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which were vanquished following a violent Civil War and by a simple, textual committh
57
ment in the Constitution’s 13 Amendment”. However, slavery is not just a problem of
yesteryear.
A particular facet of modern slavery has gained widespread international attention:
the sex industry or sex trafficking. Recently the United States has made progress in eradicating all forms of human trafficking, through the creation of the anti-(human) trafficking
divisions in the State Department and Department of Justice. Moreover, the United States
has become the first state to enact legislation directly attacking this problem through a legal based approach and a victim-centred outlook, by means of the Trafficking Victims Protection Act 2000 (TVPA). Each of these ‘steps’ has pushed the United States to the forefront
of the domestic and international anti-trafficking movement, despite the fact that historically the United States has managed to avoid directly addressing the problem. Collective
movements, such as the feminist movement and the religious right movement, crutched
by global norms and embedded within a community of nongovernmental organisations
(NGOs), not only determined how the United States defined the phenomenon of human
trafficking, but also increased awareness within the wider American population. The way
in which the United States spearheaded the international movement against human trafficking and sex trafficking is worthy of study and analysis.
In order to comprehend the effect of these NGO communities, we must better understand the world in which these organisations operate and the mechanisms that allow them
to influence domestic and international affairs. The last several decades have presented
the study of International Relations (IR) with scores of political, economical, and social
challenges. It is in this context that IR scholars have begun to recognise the growing influential role of non-state actors. Such challenges now demand closer scrutiny of the relationships between international norms and domestic politics. A better understanding of
this relationship provides an insight into the role of NGOs in the domestic and international political arenas. This article argues that domestic NGOs influenced the United
States to take on a prominent role in the anti-(human) trafficking movement. The article
also argues that these NGOs utilised international norms to mobilise governmental and
public support.
By enquiring into the nature of NGO activity and NGO impact on policy formulation,
we can better appreciate the nature of government decision-making in relation to the
growing role of nongovernmental actors, agendas, and organisations. Since it is assumed
that the United States holds a hegemonic position in the international arena, it is critical
that we comprehend the mechanisms that drive policy change and/or enactment within
the United States. A better understanding of these processes provides a set of lenses
through which we can see the social, political, and economic ripples of United States policy across the international community.
Local groups and national and international NGOs have generated increasing pressure for government policy formulation. The outside influence of these groups is becoming a growing trend in international affairs. It has given a practical and emancipated voice
to those suffering and deprived of global recognition. It is important and crucial for academia to account for this growing trend and recognise this phenomenon as being revolutionary and an important historical change in our political history.
57
B. Azmy, “Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil
Rights Agenda”, Fordham Law Review vol. 71 (2002), p. 2.
VOL. 3, NO. 1 – JUNE 2007
23
2. LITERATURE REVIEW
There are many works and bibliographies on the topic of human trafficking in general. However, few of these works reference the factors that pushed the United States to
the forefront of the international movement, and even fewer consider the historical role of
non-state actors in combating the trafficking industry. It is imperative that we begin an
analysis by defining the relevant institutions and processes, which are the focus of the
study below.
2.1 (Domestic) Nongovernmental Organisations
NGOs are not a recent phenomenon; however, lately these organisations have increasingly attracted attention from academia. Matthews attributes this “power shift” to:
the end of the Cold War [which brought] a novel redistribution of power among
states, markets and civil society. National governments are not simply losing autonomy in a globalizing economy. They are sharing powers – including political, social
and security roles at the core of sovereignty – with businesses, with international organisations, and with a multitude of citizen groups, known as nongovernmental organisations.58
NGOs are now recognised as significant players in domestic and international affairs.
However, the term NGO has become a “catch all phrase” for any organisation that separates itself from government. In order to understand the definition, it is useful to break
down the term and understand each individual component. Lador-Lederer characterizes
NGOs as “non-profit-making,”59 whereas Willetts describes NGOs as “any … non-violent,
organised group of people who are not seeking office.”60 Rosenau maintains that NGOs
should not be solely dependent on governmental resources in order to maintain and promote their ‘nongovernmental’ aspect, implying that they may receive some government
61
assistance.
An NGO has the potential ability to influence government. Clark et al. illustrates two
distinct influences: “It enhances political responsiveness by aggregating and expressing
the wishes of the public through a wealth of nongovernmental forms of association, and it
safeguards public freedoms by limiting the government’s ability to impose arbitrary rule
62
by force.” The article focuses on the outside dimension of domestic NGOs on the United
States policy process, thus exemplifying organisations that originally established themselves within the United States domestic realm. Due to the historical nature of the article
and the transnational nature of the problem of human trafficking, a number of these organisations have expanded their operations through the use of international norms.
58
J. Matthews, “Power Shift”, Foreign Affairs vol. 76 no. 50 (1997), p. 50.
J.J. Lador-Lederer, International Non-Governmental Organizations and Economic Entities (The Netherlands: Sythoff, Leyden, 1963), p. 60.
60
P. Willetts, “The Conscience of the World”: The Influence of Non-Governmental Organizations in the UN System (Hurst, London, 1996), p. 5.
61
J. Rosenau, “NGOs and fragmented authority in globalizing space,” article presented at the Third
Pan-European International Relations Conference and Joint Meeting with the International Studies Association, Vienna, Austria, September 16–19, 1998.
62
A. Clark et al., “The Sovereign Limits of Global Civil Society: A Comparison of NGO Participation in
UN World Conferences on the Environment, Human Rights and Women”, World Politics vol. 51 no. 1 (1998),
p. 1.
59
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2.2 International Norm(s)
Scholars of IR have struggled with questions not only about the meaning of norms
but also about the influence of norms on human behaviour. According to Finnemore, a
leading scholar of the modern debates on international norms:
we cannot understand what states want without understanding the international social structure of which they are a part. States are embedded in dense networks of …
international social relations that shape their perceptions of the world and their role
in that world. States are socialized to want certain things by the international society
in which they … live.63
Norms are about “behaviour” and “oughtness”.64 Essentially, norms are about how an actor should or ought to behave. Finnemore provides a more holistic definition of norms as
“a set of intersubjective understandings readily apparent to actors that makes behavioural
claims on those actors.”65 This definition provides a framework within which this article is
structured. It must be noted that norms “are obeyed not because they are enforced, but
because they are seen as legitimate”, as Florini observes.66 Florini’s observation provides
an insight into why the international community confronts such problems as human trafficking. Due to the fact that the anti-trafficking movement is crutched on global norms, an
understanding of the evolution of the definition is imperative.
2.3 Human Trafficking: Defining the Problem
Any study of modern-day slavery in the United States requires an understanding of
its social and historical underpinnings. Kyle and Koslowski state:
[The] trade in humans and migrants is more than a subcategory of global migration…[it] is a subject that intersects contemporary anxieties concerning the global political economy, ethnic and gender stratification, multiculturalism, population
growth, political corruption, transnational crime, the Internet, human rights abuse
67
and the (in)ability of states and global agencies to control effectively.
The debates surrounding human trafficking have traditionally “been dominated by governments concerned with irregular immigration and/or transnational organized crimes
(especially after the September 2001 event),” as Obuah notes.68 Ryf argues that there was
an inadequate response by governments to combat the human trafficking industry due to
sheer denial, thus resulting in an eruption of the problem.69
63
M. Finnemore, Defining National interests in International Society (Ithaca, NY: Cornell University Press,
1996), p. 2.
64
Ibid.; A. Florini (1996); J. Thomson (1993).
65
M. Finnemore, “Constructing Norms of Humanitarian Intervention,” article presented at the Annual
Meeting of the International Studies Association, Washington, DC, (1994), p. 2.
66
A. Florini, “The Evolution of International Norms”, International Studies Quarterly vol. 40 no. 3 (1996),
p. 365.
67
D. Kyle and R. Koslowski, Global Human Smuggling: Comparative Perspectives (Maryland: The John
Hopkins University Press, 2001), pp. 4-5.
68
E. Obuah, “Combating Global Trafficking in Persons: the Role of the United States Post-September
2001,” International Politics vol. 43 (2006), p. 243.
69
Ryf, p. 45.
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25
According to the United Nations (UN), human trafficking has exploded into a $7-10
70
Moreover, human trafficking is the world’s fastest growing
billion global industry.
criminal activity, ranking third behind trafficking in illegal drugs and arms as noted by
Ryf.71 Soderlund, a leading scholar of historical anti-trafficking initiatives, states that the
UN is the “largest global regulatory institution to declare global sex trafficking a violation
of women’s rights. However, in the last [six] years the United States has positioned itself
72
as an equally significant force in the anti-trafficking arena.” The United States first formally and legally defined trafficking in persons under the TVPA (2000).73 The Act addresses “severe forms of trafficking” as:
(1) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years
of age, or (2) the recruitment, harboring, transportation, provision, or obtaining of a
person for labor or services, through the use of force, fraud, or coercion for the pur74
pose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
Ryf, one of the first legal scholars to critically review such modern anti-slavery policies,
notes that the TVPA (2000) is part of the largest anti-trafficking movement and that the nature and magnitude of this legislation has not been matched by any other actor of the international community.75
2.4 Theoretical Underpinnings: Translating International Norms into Domestic Policies
A theoretical framework is required for analysis of the links between NGO influence,
international norms, and the position of the United States in the anti-trafficking movement, to provide an understanding of the foundation of such a relationship. Coleman and
Perl state that “the field of comparative public policy and international relations are edg76
ing inexorably toward one another.” This understanding of international influences on
public policy has been observed for some time in the field of political science. Nearly
three decades ago, in 1977, Keohane and Nye identified the concept “interdependence” as
a key dynamic of international relations.
Traditionally, scholars noted that states become embedded in a regime of international norms by means of international institutions that shape their own domestic con77
Finnemore 78 and True and Mintrom79 admittedly support the conversion of
duct.
international norms into a domestic context via international organisations, while Keck
and Sikkink80 advocate that these socialisation agencies are rather transnational networks
of non-state actors in the form of advocacy groups. A second wave of scholars has argued
that international norms have an important effect on state behaviour via domestic actors
70
State Department (2006), p. 14.
Ryf, p. 2.
72
G. Soderlund, “Running from the Rescuers: New US Crusades Against Sex Trafficking and the
Rhetoric of Abolition”, NWSA Journal vol. 17 no. 3 (2005), p. 67.
73
Trafficking Victims Protection Act, Public Law 106-386.
74
Trafficking Victims Protection Act, Public Law 106-386, sec.103
75
Ryf, p. 2.
76
W. Coleman and A. Perl, “International Policy Environments and Policy Network Analysis” Political
Studies XLVII (1999), p. 692.
77
Florini, pp. 363-389.
78
Finnemore (1996).
79
J. True and M. Mintrom, “Transnational Networks and Policy Diffusion: The Case of Gender Mainstreaming,” International Studies Quarterly vol. 45 (2001), p. 27.
80
M. Keck and K. Sikkink, Activist Beyond Borders (Ithaca and London: Cornell University Press, 1998).
71
26
INTERNATIONAL PUBLIC POLICY REVIEW
and processes.81 In other words, it is no longer that international organisations and transnational networks are the main entrepreneurs that diffuse international norms into domes82
tic practices, as argued by Risse-Kappen. Thus it is increasingly agreed that NGOs
operate in a broader political arena than the purely domestic, and further acknowledged
that they are actors in bringing international agendas to domestic attention, as well as domestic issues to international attention.
Constructivist scholars have recognised the significant influence of norms on states;
however, Price notes that “some critics of constructivism now argue that insufficient attention has been paid to how this occurs.”83 This “how” question illustrates the framework
within which the analysis of this article is structured. Here, a general deficit in the field of
international norm diffusion is identified: the need for a “better understanding of the domestic bases of support for international institutions”, as Cortell and Davis note.84 RisseKappen states that “recent scholarship conceptualizes the diffusion of international norms
into domestic practices as a socialization process.”85 Socialisation has been defined as “the
process by which principled ideas held by individuals become norms in the sense of collective understandings about appropriate behaviour which then lead to changes in identi86
This process
ties, interests and behaviour”, as Risse-Kappen and Sikkink illustrate.
provides a basis for the study and analysis of the topic at hand.
Finally, it is imperative that we utilise real life experience to explain and better understand such a scholarly debate. The study of the outside dimension to the United States’
position in the anti-(human) trafficking movement will provide such vivid examples. The
following section uses the literature discussed here to illustrate the interconnected relationships of NGOs, international norms, and domestic policy within the wider context of
the anti-(human) trafficking movement.
3. ANALYSIS AND DISCUSSION
Trafficking for sexual exploitation has taken place for centuries. The degree of
awareness of this exploitation has fluctuated over the past century. However, once again
this issue has been picked up on the political radar. Stories of brothel raids from Los Angeles to New York have been increasingly familiar since domestic women’s rights and
faith-based organisations began mobilising governmental and public support for the
United States to take on a prominent role in the wider anti-(human) trafficking movement.
On October 28, 2000, President Clinton signed into law the TVPA 2000. The Act was part
of a larger bipartisan crime bill entitled the Victims of Trafficking and Violence Protection
Act (2000).87 Based upon a framework of prevention, protection, and services, with prose-
81
Such scholars include: A. Cortell and J. Davis (2000); A. Gurowitz (1999); and T. Risse-Kappen
(1999).
82
T. Risse-Kappen, “International Norms and Domestic Change: Arguing and Communicative Behavior in the Human Rights Area,” Politics and Society vol. 27 no. 4 (1999), pp. 539-559.
83
R. Price, “Reversing the Gun Sights: Transnational Civil Society Targets Land Mines,” International
Organization vol. 52, no. 3 (1998), p. 615.
84
A. Cortell and J. Davis, “Understanding the Domestic Impact of International Norms: A Research
Agenda,” International Studies Association (Malden, MA: Blackwell Publishers, 2000), p. 87.
85
Risse-Kappen, p. 529.
86
T. Risse-Kappen and K. Sikkink, “The socialization of international human rights norms into domestic practices: introduction,” in T. Risse-Kappen, S.C. Ropp and K. Sikkink (eds.), The Power of Human Rights:
International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), p. 11.
87
Ryf, p. 5.
VOL. 3, NO. 1 – JUNE 2007
27
cution and law enforcement, it is the first comprehensive legislation dedicated solely to
88
combating human trafficking.
The TVPA (2000) was born out of the “alliance between evangelical Christian groups
and contemporary secular feminist anti-trafficking crusaders”, according to Soderlund.89
Faith-based organisations, specifically evangelical Christians, had taken on the issue of
human trafficking during the latter portion of the 1990s.90 These organisations were joined
by women’s rights NGOs “in the name of saving the world’s women,” as Soderlund depicts.91 Leder,92 editor of the famous Take Back the Night, argued that faith-based organisations have created “a fresh perspective and biblical mandate to the women’s movement.
Women’s groups don’t understand that the partnership on this issue has strengthened
them, because they would not be getting attention internationally otherwise.”93 However,
it must be noted that women’s rights NGOs created the initial push of human trafficking
onto the international agenda, by framing the problem as an issue of violence against
women during the 1980s and 1990s.94
The acceleration in the processes of globalisation defines a new dimension in political
history: local groups, domestic, national, and international NGOs, have had an increasing
degree of influence on government policy formulation. The study of IR has grown into a
diverse discipline in which scholars have begun to recognise the influential role of domestic non-state actors and their use of international norms. Realism tends to focus on statecentric power relations arguing that the state is the key actor. Liberalism highlights various actors including states, NGOs, and multinational corporations. In contrast, realists see
the state as a territorially and nationally bounded community with defined borders, where
the domestic is clearly demarcated from the international. Liberals challenge these inside/outside labels of realism by emphasising the cooperative nature of the international
community in a world that has become increasingly interdependent. The processes of
globalisation call for closer scrutiny of the relationships between (domestic) NGO influence, international norms, and domestic policy. Such relationships are explored in the subsequent sub-sections.
3.1 Developing an International Norm
Human trafficking and sex trafficking did not come onto the international political
agenda as an issue in itself; rather it found a place within various international policies
and movements, specifically the violence against women campaign. The discourse concerning violence against women, as well as mobilisation efforts regarding the issue, remained local until the 1980s, when international interest started to develop. Figure 1
details a timeline charting the creation of the international norm that violence against
88
K. Hyland, “Protecting Human Victims of Trafficking: An American Framework,” Berkeley Women’s
Law Journal vol. 16 (2001), p. 14.
89
Soderlund, p. 68.
90
A. Hertzke, Freeing God’s Children: The Unlikely Alliance for Human Rights (Lanham, MA: Rowman
and Littlefield, 2004).
91
Soderlund, p. 68.
92
L. Leder later founded the Protection Project, a women’s rights nongovernmental organisation. For
further details, refer to Section 3.3.
93
As cited in A. Crago, “Unholy Collaboration,” Rabble (2003),
http://www.rabble.ca/news_full_story.shtml?sh_itm=732c406837d3f11e6560df106fb79c10&rXn=1&
(accessed July 5, 2006).
94
S. Zwingel, “How do international women’s rights norms become effective in domestic contexts? An
analysis of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW),”
(2005), http://deposit.ddb.de/cgibin/dokserv?idn=97814287x&dok_var=d1&dok_ext=pdf&filename
=97814287x.pdf (accessed 12 July 2006).
28
INTERNATIONAL PUBLIC POLICY REVIEW
women is a prominent concern. These developments laid the foundation for efforts to
counter human trafficking and sex trafficking to enter the international political agenda
via such campaigns:
Figure 1: Creating an International Awareness
Year
1975
1980
1981
1985
1992
1993
1995
Developments
UN Conference for International Women’s Year in Mexico
City
Second UN World Conference on Women in Copenhagen
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Third UN Conference on Women in Nairobi and closing of
the UN Decade on Women (1975-1985)
UN Committee to End Discrimination Against Women
(CEDAW) adopts Recommendation No.19 on Violence
Against Women
UN World Conference on Human Rights in Vienna illustrates
the “Declaration on the Elimination of Violence Against
Women” and solidified women’s rights as human rights.
Fourth World Conference on Women in Beijing devotes an
entire section in the Beijing Platform for Action to Violence
Against Women
The UN Conference in Mexico City opened the doors of the international arena to the
women’s rights movement. CEDAW (1981) emphasises the eradication of all forms of discrimination against women; however, the notion of violence against women remained absent and so did human trafficking. Nairobi concluded with the Nairobi Forward-Looking
Strategy, which mentioned violence against women, but only as a side-issue regarding
discrimination and development.95
By the mid-1980s, the topic of violence against women made its way onto the international agenda, but only as an issue of women’s health and crime prevention rather than an
issue of human rights.96 At the same time, Soderlund illustrates that:
attention to international sex-trafficking began … and became visible on two interconnected arenas: in a broad based campaign to introduce women’s sexual and reproductive rights into traditional human rights doctrine and in media attention to the
plight of sex trafficking victims.97
Here, the United States declared a “War on Crime” in the 1980s, and the women’s rights
movement pushed for attention to crimes against women.98 In these years, the antitrafficking movement altered in outlook and in scope as the United States experienced an
era of political and social transformations.
It was not until the UN conferences in Vienna and Beijing that the issue of violence
against women dominated the campaign for women’s rights with explicit international
95
A. Bertone, “Transnational Activism to Combat Trafficking in Persons,” Brown Journal of World Affairs vol. 2 (2004), p. 11.
96
Ibid.
97
Soderlund, p. 69.
98
Ibid.
VOL. 3, NO. 1 – JUNE 2007
29
norms regulating state behaviour. Thus the issue became a priority of the UN in the 1990s
“when a diverse set of activists organized to bring gender and sexuality into the purview
99
of traditional human rights doctrine.” This problem differed from the classic matters of
suffrage, equality, and prejudice in the global North for Western women. Soderlund argues that it was within “this already narrowed focus, sex trafficking and prostitution surfaced as the most egregious form of violence against women imaginable, and thus
trafficking emerged as the centrepiece of the campaign.”100 Here, the United States implemented the Violence Against Women Act of 1994,101 which set the domestic foundation for
the TVPA (2000).
Finally, these developments exemplify the adaptation of an international norm and
“moral consciousness-raising” which have been “institutionalized” and “habitualized” ac102
Now, with this understanding of the developcording to Risse-Kappen and Sikkink.
ment of the international awareness about the problems of human trafficking and sex
trafficking, we can deduce a correlation between the international campaign to stop violence against women and the development of the international anti-trafficking movement.
Such an understanding calls for closer analysis of the relationship between the international arena and the domestic, in order to understand how we arrived at the point where
the international anti-trafficking campaign is led by the United States.
3.2 Building a Relationship and Opening a Platform
Traditionally, NGOs had a limited role in UN conferences due to the international
organisation’s intergovernmental rationale.103 At the Women’s Decade conferences, “NGO
participation was initially limited, and few NGOs made official interventions.”104 However, gradually a number of UN bodies accepted NGO input as valuable support for their
work. Figure 2 notes the strengthening of the relationship and the increasing role of
NGOs in the international arena:
Figure 2: NGO Participation in UN Conferences
105
Number of NGOsattended
3500
3,000
3000
2500
2000
1500
1,400- 1,500
1000
500
0
114
Mexico City (1975)
163
Nairobi (1985)
Vienna (1993)
Beijing (1995)
UN Conferences
99
Ibid.
Ibid., p. 70.
101
For further information consult: http://www.endabuse.org/vawa/
102
Risse-Kappen and Sikkink, p. 12.
103
Zwingel, p. 316.
104
For example, only two representatives per accredited NGO were permitted to participate on a limited basis in the governmental conference at Mexico City (Clark et al., p. 22).
105
Clark et al., p. 3.
100
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INTERNATIONAL PUBLIC POLICY REVIEW
As Figure 2 illustrates, at the 1975 Mexico City Conference for International Women’s Year
only 114 NGOs gained access to the official conference. Similarly, UN records indicated
that there were a total of 163 NGOs at the 1985 Nairobi conference closing the decade
dedicated to women. It was not until the 1993 Human Rights Conference in Vienna that
the partnership of NGOs in the UN reached significant numbers with estimates of 1,400 to
1,500 organisations in attendance. Two years later the Beijing Conference witnessed the
largest NGO attendance with 3,000 organisations that had gained access to the Fourth
World Conference on Women.106
The NGO-UN partnership has grown from a cautious friendship to an intimate relationship. The realist boundaries demarcating the domestic realm from the international
have been broken down, allowing NGOs to gain access to the wider international political
arena. This progression illustrates a crucial element of liberal thinking in which a diverse
group of actors (including NGOs) affect and control international relations due to the acceleration of the processes of globalisation.107 The UN soon recognised the importance of
the critical position of NGOs at the forefront of the (women’s) rights movement, since in
order to implement effective policies, it is necessary to have a clear understanding of violations and NGOs can provide the most neutral accounts and testimony from the individuals who are being exploited. Moreover, the UN realised the crucial role NGOs could play
in contributing information independent from governments, thereby providing international bodies with a diverse range of perspectives on the problem at hand. The UN conferences provided a forum for making visible the problem of human trafficking and sex
trafficking, and enabling anti-trafficking measures to enter the international political
agenda. It is this foundation from which domestic NGOs were able to expand their resources, interact with state and non-state actors, and increase their understanding of violations such as human trafficking from its countries of origin.
Domestic NGOs have played a key role in connecting the United States with the
wider international community. The United States government has long had a women’s
policy agency; however, this agency was hidden in the back offices of the State Department.108 True and Mintrom state:
whereas there has been this lack of gender equality for some time, US-based NGOs
have played a major role in transnational advocacy for gender justice. This dichotomy between American governmental and nongovernmental action became particularly stark during the lead up to the UN Fourth World Conference on Women in
109
Beijing in 1995.
The increasing disjuncture between non-state actors and the United States government
“pushed” the Clinton Administration to create the President’s Interagency Council on
Women.110 This council provided the means through which domestic NGOs could hold
government accountable for the promises and statements pledged during international
conferences and NGO forums.
Prior to the Beijing Conference (1995), domestic NGOs held the United States government to account, and through the use of international norms, NGOs mobilised government to create a direct link from international women’s rights movements to
governmental departments. These developments were a consequence of the “internaliza106
Ibid., p. 4.
As cited in Zwingel, p. 317.
108
True and Mintrom, p. 35.
109
Ibid.
110
Ibid.
107
VOL. 3, NO. 1 – JUNE 2007
31
tion” of norms in identities, interests, and behaviours of the norms “socialisation” process,
111
It is this connection that created the foundation to
as Risse-Kappen and Sikkink note.
plug the issues of human trafficking and sex trafficking into the United States domestic
political agenda. Essentially the issues of trafficking lingered in the background “until the
campaign on violence against women, and then rode the wave of the international
women’s movement into the early 1990s”, as Bertone notes.112 The international antitrafficking movement clearly benefited from the campaign to prevent violence against
women. The United States’ domestic NGOs began to solidify the international antitrafficking movement in the United States after the Beijing Conference (1995).
IR scholars (except the diehard realists) have accepted the importance of norms and
agree that international norms matter when discussing international affairs, transnational
issues, and domestic policies. The debate has shifted from the importance of norms to the
effect of international norms in the domestic arena. Traditionally, transnational non-state
actors have come to dominate the debate on international norms socialisation as indicated
by Keck and Sikkink.113 However, a deeper look into the subject illustrates that domestic
non-state actors have been at the forefront of pressure politics previously, especially in the
case of the United States’ anti-trafficking movement. Bertone notes that in “the 1970s and
114
‘80s, international NGOs such as Anti-Slavery International tried unsuccessfully to bring
these problems to the attention of the media. Fortunately, domestic women’s movements
ascended … and forums for discussion opened.”115
Liberals argue that international norms constrain the behaviour of societal and political actors by creating outside motivations.116 Constructivists suggest that the impacts of
norms are more deep-seated: they are essentially shared understandings that form actor
117
identities and interests. Through the socialisation of international norms into domestic
policy via domestic NGOs, the issues of human trafficking and sex trafficking have surfaced as part of the United States domestic policy processes. Finally, an understanding of
the general relationship between NGOs and the UN illustrates how United States domestic NGOs utilised international norms in the campaign to challenge violence against
women and the wider women’s right movement, to directly mobilise governmental support and indirectly mobilise public support for their cause. These developments provide
an understanding of how the campaign to stop violence against women was internalised
into United States norms and identities. Moreover, these developments provide an understanding of how the United States government entered the anti-(human) trafficking
movement. With such understanding of the correlation between domestic NGO influence
and the United States’ position in the international campaign to combat trafficking, we can
take a closer look at the individual organisations before opening the argument to current
activism. The section that follows reviews several cases, in order to document and describe the relationship between domestic NGOs and government.
111
Risse-Kappen and Sikkink, p. 12.
Bertone, p. 12.
113
Keck and Sikkink.
114
One of the oldest human rights international NGOs is based in London, England.
115
Bertone, p. 11.
116
A. Cortell and J. Davis, “How Do International Institutions Matter? The Domestic Impact of International Rules and Norms,” International Studies Quarterly vol. 40 (1996), pp. 451-478.
117
Finnemore (1996).
112
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3.3 NGOs as Teachers of Norms118
NGOs have been crucial to the identification of human trafficking and prosecution of
human trafficking violations. The State Department has “actively sought out the crucial
cooperation of NGOs, given their invaluable practical experience.” Moreover, the department has noted that “it would be challenging to implement successfully an ongoing
119
international campaign to combat trafficking without [NGO] partnership.”
According to Soderlund, “the crusade against sex trafficking within the larger
women’s human rights movement had largely been spearheaded by a collection of feminist organisations most notably the Coalition Against Trafficking in Women” (CATW).120
It must be noted that due to the gender sensitive nature of the problem, women’s NGOs
have been at the forefront of the anti-[sex] trafficking movement: raising awareness, lobbying for change, and providing victim support. CATW was founded in 1988 in Massachusetts and was one of the first United States NGOs to focus on human trafficking, especially
sex trafficking of women and female children. The organisation has expanded internationally and works at combating the problem from the countries of origin. The mission
statement maintains that “CATW has been an effective NGO presence internationally and
121
has changed the terms of the debate over prostitution and trafficking.” Due to the organisation’s long-standing history it has organised coalitions of NGOs to solidify the outlook, definition, and perspective of this problem. CATW was a catalyst for the flourishing
of domestic NGOs in the United States.
Six years later the Protection Project at John Hopkins University in Washington DC122
was founded by Laura Lederer, a current State Department appointee. Leder has func123
tioned as a major link between feminist and evangelical organisations. The Protection
Project was one of the first NGOs to be established to address the issue of trafficking in
persons as a human rights violation.124 Due to its university affiliation, the organisation
has taken great strides to educate the global society through academic literature and research. This NGO has established a close link with government, thereby opening the
doors for other organisations to offer support and critique of current state anti-trafficking
measures. This link is evidenced by the role of this organisation in the drafting of model
anti-trafficking legislation with the Department of Justice, and its contributions to the
125
drafting and implementation of the TVPA (2000). Essentially, the organisation has created an insider position within the wider United States domestic policy processes.
The TVPA (2000) legislation was a true effort on the part of both political parties to
step forward and take action against this grievous issue. The development of a large coalition of citizen organisations fighting this issue from the forefront of the war on human
trafficking was a direct push to gain bipartisan support.126 Religious organisations have
also joined the fight against human trafficking and made a strong effort to educate the
118
“Teachers of norms” is borrowed from Finnemore (1998).
State Department, Trafficking in Persons Report (Washington, DC: US Government Printing Office,
2004), p. 7, http://www.state.gov/g/tip/rls/tiprpt/2004/ (accessed 20 February 2006).
120
Soderlund, p. 72.
121
Captive Daughter, “Mission Statement” (2006),
http://www.catwinternational.org/about/index.php (accessed 11 July 2006).
122
The Project initially began at Harvard University in Cambridge, Massachusetts.
123
Soderlund, p. 68.
124
Protection Project, “Mission Statement,” (2006), http://www.protectionproject.org/aus.htm (accessed 11 July 2006).
125
Ibid.
126
Congressional Record, “Conference Report on H.R.3244 Victims of Trafficking and Violence Protection Act of 2000,” Congressional Record vol. 147 (5 October 2000), p. 2.
119
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33
public that slavery is alive and stronger then ever before. Father Stan DeBoe, with the
Conference of Major Superiors of Men (CMSM), has made a strong effort in the fight
against human trafficking by mobilising governmental support from both political parties.
The CMSM is the voice of 20,000 vowed religious “priests and brothers in the United
States, and also collaborated with the US bishops and other Catholic organisations which
127
serve the Church.” This organisation created a strong and unified faith-based voice defining human trafficking as a morality issue and thus engaged religion in the battle against
human rights violations.
Faith-based organisations created a substantial “push” to mobilise governmental
support during the latter portion of the 1990s. One of the most influential domestic faithbased organisations is the International Justice Mission (IJM). IJM stepped into the antitrafficking movement in 1997 with a coalition of human rights professionals, lawyers, and
public officials. This organisation introduced a new aspect to combating the human trafficking industry: through the use of a legal staff, IJM conducts criminal investigations and
collects evidence to rescue victims and bring perpetrators to justice. Just as CATW started
with a domestic force and moved internationally to combat the industry from the countries of origin, IJM has taken on a similar focus. Recently the State Department reported
that IJM “a US NGO investigated [trafficking] conditions and, in partnership with Cambodian law enforcement officials, participated in a raid that rescued 37 children.”128
Through this unique approach the organisation has emphasised the need for stronger domestic judicial systems across the international arena. IJM has established the foundation
from which other organisations have begun to combat the industry from the countries of
origin and destination.
Finally, these organisations represent a diverse range of approaches that evolved
over time to combat the human trafficking and sex trafficking industry. These organisations have created the foundation from which other public support has been generated
and many more domestic NGOs have been established. An awareness of who these
NGOs are and how they have mobilised governmental and public support provides an
understanding of how these organisations “pushed” the United States to the forefront of
the anti-trafficking movement. With such an understanding we can take a closer look at
current activism in the United States to provide a holistic insight into the United States
government’s position in combating this global epidemic.
3.4 Current Activism
Today we encounter the Bush Administration and the 107th Congress continuing the
anti-trafficking effort with strong bipartisan support. In 2001, Attorney General John
Ashcroft announced that the Administration and United States law enforcement were
129
pushing human trafficking as a top priority. At the same time, the State Department released its first Annual Trafficking in Persons Report, required by Congress under the TVPA
(2000), and since then continues to release new research each year.
On 23 September 2003, President Bush delivered a speech before the UN about terrorism and the war in Iraq. During his speech, the President devoted a great deal of time to
discussing the “humanitarian crisis of slavery,” in particular, trafficking in persons. This
127
Congressional Record, “Fighting the Source of Trafficking in Women and Children,” Congressional
Record vol. 147 (29 November 2001), p. 2.
128
State Department, Trafficking in Persons Report (Washington, DC: US Government Printing Office,
2005), p. 36, http://www.state.gov/g/tip/rls/tiprpt/2004/ (accessed 20 February 2006).
129
J. Ashcroft, “Ashcroft’s News Conference on 27 March,” (2001),
http://www.usdoj.gov/ag/speeched.html (accessed 10 February 2006).
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was a direct result of the religious right anti-trafficking movement, which encouraged bipartisan support to recognise human trafficking as a horrendous moral, as well as social,
130
problem. More recently, the growing problem of child sex trafficking and child sex tourism has been highlighted by NGOs such as World Vision. Once again, nongovernmental
influence has pushed the United States to the forefront of this problem. By passing the
Prosecutorial Remedies and other Tools to end Exploitation of Children Today Act in 2003,
the United States has strengthened its ability to fight this growing trend within the wider
framework of sex trafficking.131 The governmental efforts to combat the problem that first
began in the Clinton Administration have thus continued to be recognised by the Bush
Administration.
These developments would not have been possible if not for the initial push by domestic NGOs to mobilise the United States government. It is the insight into the patterns
of arrangements prevailing through the course of history that clearly illustrate the outside
dimension to the United States position in the anti-(human) trafficking movement. The
correlations developed in this article disprove the notion that domestic NGO pressure did
not play a dominant function in the development of the United States’ role in the international campaign against human trafficking. A new notion has entered the study of IR: domestic policy influencing the international community composed of “sovereign” states.
4. CONCLUDING REMARKS
This article set out to explore the way in which the United States spearheaded the international movement against human trafficking and sex trafficking. Domestic NGOs influenced the United States to take on a prominent role in the anti-(human) trafficking
movement. These NGOs utilised international norms to mobilise governmental and public support. Such correlations were illustrated by creating an understanding of the international dialogue on the international campaign to stop violence against women. This
campaign set the foundation from which the issue of sex trafficking within the wider context of human trafficking entered the international political agenda and became a widely
accepted international norm. By understanding the mechanisms of the international political arena we can see the point at which the United States embraced such norms. This
understanding provides a context from which the NGO component was explored. Domestic NGOs acted as socialisation agencies by translating international norms into the
domestic political arena. In order to provide a holistic understanding of the influential
role of NGOs, the article took a closer look at the individual organisations at the forefront
of the movement and the diverse methods used to mobilise government and generate public support. Such correlations were addressed using theoretical underpinnings and conceptualisations.
Theory provides a foundation which scholars can use and build upon to better understand the political world in which we live. It is imperative that the study of IR takes
into account this growing trend of nongovernmental influence. Scholars have traditionally
challenged the outside/inside labels of realism with concepts of international cooperation
via international organisations, international agreements, and transnational NGOs. However, a crucial element of international relations has heretofore been overlooked: the role
of domestic NGOs in international affairs. Liberalism has cautiously embraced the notion
that international norms can have important effects on states, specifically in facilitating cooperation. However, liberals (over)emphasise the role of the state in building international agreements and thus are ill equipped to fully conceptualise the growing role of
130
131
Congressional Record (2001), p. 2.
State Department (2006), p. 24.
VOL. 3, NO. 1 – JUNE 2007
35
NGOs.132 An understanding of the process of norm socialization via domestic NGOs is not
to downplay the role of the state, but rather to create a better understanding of what influences domestic and international public policy processes. The state remains the most definitive political actor; however, by focusing solely on the state the study of IR overlooks
the crucial outside dimension. This article not only used IR theory of international norms,
socialisation, and pressure politics to provide a theoretical foundation for the concepts and
processes discussed, but also commanded the study of IR to look at the growing role of
domestic NGOs and their affect on international relations.
In view of the fact that the article engages in qualitative research it is necessary to
recognise that NGO political pressure does not stand alone in its influence on policy. International cooperation is a key concept often taken for granted in qualitative research.
Global cooperation provides clear channels through which NGOs are able to manoeuvre
the political machinery of a society to generate public support and mobilise governmental
action for their causes. Studies conducted in the field of political science are not confined
to controlled environments; thus it is our duty to take note of any limitations. The article
held international cooperation constant in order to illustrate the importance of nongovernmental influence. In a world that has become increasingly interdependent, each component of the political arena constrains other components in some shape or form: NGOs
are constrained by the state and other organisations, as well as international cooperation.
It is necessary to account for this limitation in order to fully conceptualise the role of the
United States. The United States has established many methods for combating this industry; however, the problem continues to grow and expand. Outside (NGOs’) influences
may have facilitated the United States to spearhead such a movement but how well has
this movement affected the outside (the rest of the world)? Does the United States’ hegemony grant it the ability to successfully induce policy and environment change in the
rest of the world? Unfortunately, the extent of this problem cannot be eradicated even by
the policy “missiles” deployed by the United States.
A better understanding of the United States’ policy processes provides a set of lenses
through which we can see the social, political, and economic ripples of domestic policy
across the international community. NGOs are not only affecting domestic policy but also
international policy, thus blurring the lines between the international and domestic
realms. This study has opened the discussion to understand how various domestic and
international policies enter the political agenda. The role of the outside dimension has
claimed its space within the field of IR. This outside dimension in the form of domestic
NGOs using international norms created an influential “push” resulting in the United
States becoming a lead actor in the anti-(human) trafficking movement. We can only envisage a world free of such a problem if the efforts made by government supported by the
work of NGOs, continues to grow. Such a problem is deeply embedded into history, culture, politics, and economics, and its eradication will require the uprooting of these previously held norms. A total cure may seem unfeasible, but it is imperative that we use such
an example to understand that the world in which we live in has the capacity to view individuals as commodities, rather than human beings.
132
Price, p. 614.
36
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RECONCILING HUMAN RIGHTS AND STATE SOVEREIGNTY, JUSTICE
AND THE LAW, IN HUMANITARIAN INTERVENTIONS
Alexander Volsky‡
ABSTRACT
The NATO campaign in Kosovo in 1999 has been frequently described as the paradigmatic example
of a humanitarian intervention. Nevertheless, the rationale offered for war, and the means employed therein, have been subjected to a plethora of criticisms, which are at the forefront of recent
debates on global governance. The doctrine and practice of humanitarian intervention presents a
dilemma in global governance: this dilemma is characterized by the tension between the primacy of
state sovereignty and the protection of fundamental human rights. This article argues that egregious violations of human rights cannot be shielded by appeals to the sacrosanctity of sovereignty;
however, at the same time, state sovereignty cannot be violated without legal recourse to the UN
Charter and its collective security mechanisms. This seeming paradox is explained, within the context of the NATO intervention in Kosovo, as the gap between legitimacy and legality, justice and
the law. Lastly, a suggestion is offered on how to bridge this gap: international law should be
amended to include criteria and provisions for the implementation of humanitarian intervention
premised on the principles of Just War Theory.
Keywords: humanitarian intervention; international law; Kosovo; NATO; state sovereignty; United Nations
The end of the Cold War inaugurated a period in the international system that was
marked by an increased prevalence of humanitarian interventions. The NATO campaign
in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian
interventions: it is revered as history’s first instance of a truly altruistic war. Nevertheless,
the rationale offered for the war making, and the means employed therein, have been subjected to a plethora of criticisms, which are at the forefront of recent debates on global
governance. The doctrine and practice of humanitarian intervention presents a seemingly
insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of state sovereignty and the protection of fundamental human
rights. It will be argued that egregious violations of human rights cannot be shielded by
appeals to the sacrosanctity of sovereignty; however, at the same time, state sovereignty
cannot be violated without legal recourse to the UN Charter and its collective security
mechanisms. This seeming paradox will be explained, within the context of the NATO intervention in Kosovo, as the gap between legitimacy and legality, justice and the law.
Lastly, a suggestion will be offered on how to bridge this gap: international law will be
‡
M.Phil Candidate at University of Oxford, University College.
40
VOL. 3, NO. 1 – JUNE 2007
41
amended to include criteria and provisions for the implementation of humanitarian intervention premised on the principles of Just War Theory.
The doctrine of humanitarian intervention will first be examined with an eye to international legal institutions, which refute it, and then to the actual norms and practices of
states, which apply it. In this light, the NATO intervention in Kosovo will be introduced
as a legitimate act that protected fundamental human rights, and it will then be described
as an illegal act that transgressed international law. A prescription or legal reform proposal will then be offered to eliminate the gap between legitimacy and legality, or in other
words, the gap between justice and the law. A caveat must be made concerning the fact
that the proposal to reform international law is constructed primarily from an examination
of one example: the NATO operation in Kosovo. The Kosovo case presents a paradigmatic
example of a humanitarian intervention. It is paradigmatic because it presented a situation in which intervention was morally necessary, but under the legal circumstances, impossible. To the extent that this conundrum characterises other instances of humanitarian
interventions, the suggested reforms equally apply.
The international institution or authority structure that is most relevant for a discussion on the doctrine of humanitarian intervention is the United Nations. All the principles
and purposes of the UN are embodied within its Charter, which asserts that collective security and peaceful deliberation are the most effective means with which to safeguard international peace and security. More specifically, Article 2(4) states:
All Members [of the UN] shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations.133
This article effectively prohibits the aggressive use of force as an instrument of any state’s
foreign policy. However, the Charter also enumerates two legal conditions in which force
may be authorised under international law. The first condition permits a state to use force
if sanctioned by the Security Council (Article 42), and the second condition permits a state
to use force in self-defence (Articles 51).134 What is particularly noteworthy for the purpose
of this discussion is the absence of a provision for humanitarian interventions – in fact, the
135
Nevertheless, the UN has been
term is never mentioned throughout the document.
complicit in recent humanitarian interventions, most notably in Somalia in 1992-93; however, this intervention was authorised under Article 42 as a threat to international peace
and security, and not as a humanitarian intervention per se.136 Adam Roberts suggests that
the Charter “leaves some scope for humanitarian interventions,” 137 but this is largely
through indirect and subtle channels, which ought to be made more explicit. Therefore,
since the doctrine of humanitarian intervention has no overt legal grounding in the UN
Charter, it is necessary to examine the actual norms and practices of states in order to understand the evolving nature of the doctrine within the context of global governance.
133
Charter of the United Nations, http://www.un.org/aboutun/charter/index.html (accessed 20
March 2007).
134
Ibid.
135
A. Roberts, “UN and Humanitarian Intervention,” Humanitarian Interventions and International Relations, ed. Jennifer Welsh (Oxford: Oxford University Press, 2004), p. 72.
136
K. Pease and D. Forsythe, “Human Rights, Humanitarian Intervention, and World Politics,” Human
Rights Quarterly 15, no. 2 (1993): p. 309.
137
Roberts, pp. 73-74.
INTERNATIONAL PUBLIC POLICY REVIEW
42
James Rosenau defines global governance as “intentional activities designed to regu138
larise the arrangement which sustains world affairs.” Egregious humanitarian abuses do
not sustain world affairs, and it is within this context that humanitarian interventions are
perceived as a form of global governance because they attempt to rectify such aberrations
in the international order. Despite the illegality of humanitarian interventions according
to international law, many states have on several occasions applied the concept as a form
of global governance by intervening in the affairs of other sovereign states. Some of the
most prominent cases of interventions, with pure or mixed motives, include the Indian invasion of East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978-79, Tanzania’s ousting of Idi Amin from Uganda in 1979, the UN’s involvement in Somalia in 199293, and of course, the NATO campaign in Kosovo in 1999.139 These interventions, along
with the recent focus on the Universal Declaration of Human Rights and the Genocide
Convention, have prompted some legal scholars to argue that humanitarian interventions
are so commonplace in world politics that they are in fact a type of customary international law.140 This argument does not withstand scrutiny, however, because the Nicaragua
judgment of the International Court of Justice (ICJ) states that current international law
may only be breached and challenged by state practices which are clearly predicated on an
alternative rule of law – a qualification which is absent in all the aforementioned interventions.141 In the final assessment, it is evident that the norms and practices of states have relied on a doctrine of humanitarian intervention, which has evolved and obtained a quasilegal status in international relations discourse; however, it remains excluded from current
international law as embodied in the UN Charter.
The NATO campaign in Kosovo marked a watershed in the history of humanitarian
interventions, and for some, in the history of war itself. In an address to the Canadian Parliament, the President of the Czech Republic, Vaclav Havel, effectively portrayed this sentiment with his resounding assertion that:
No person of sound judgment can deny one thing: this is probably the first war ever
fought that is not being fought in the name of interests, but in the name of certain
principles and values. If it is possible to say about a war that it is ethical, or that it is
fought for ethical reasons, it is true of this war.142
Havel continued to declare that the rights of human beings are above the rights of states,
and he invoked a “higher moral law” of human rights to guide the future international
143
order. For many observers who share Havel’s philosophy, the answer to the diplomatic
stalemate of March 1999 was not a difficult one: something simply had to be done! There
were clear signs that the Yugoslav army, accused of committing war crimes in the past,
had already engaged in the ethnic cleansing of Kosovars, and that preparations were un-
138
J. Rosenau, “Governance, Order, and Change in World Politics,” Governance without Government:
Order and Change in World Politics, ed. J. Rosenau and O. Czempiel (Cambridge: Cambridge University Press,
2000), p. 8.
139
M. Walzer, “The Argument about Humanitarian Intervention, ” Dissent vol. 49, no. 1 (2002): p. 31.
140
P. Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?” The European
Journal of International Law vol. 12, no. 3 (2001): p. 437.
141
Note: a “higher moral law” does not constitute an alternative rule of law. J. I. Charney, “Anticipatory Humanitarian Intervention in Kosovo,” The American Journal of International Law vol. 93, no. 4 (1999): p.
836.
142
V. Havel, address by Vaclav Havel, President of the Czech Republic, to the Senate and the House of
Commons of the Parliament of Canada, 29 April 1999.
143
Ibid.
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43
der way to exacerbate the process.144 Russia and China were expected to use their vetoes
in any attempt by NATO to sanction the use of force against Yugoslavia, and Slobodan
145
Milosevic had rejected the Rambouillet proposal on the basis that it violated Yugoslavia’s sovereignty.146 Some form of intervention was required to stop the bloodshed, yet the
only politically feasible solution was a NATO air strike against the Yugoslav military and
infrastructure.147 Few could disapprove of the legitimacy of NATO’s intention to protect
the lives of ethnic Kosovars; NATO’s modus operandi thereto, however, is a different question.
There has been a plethora of criticisms leveled against the NATO decision to intervene in Kosovo. In this light, it is possible to single out two particularly germane points in
Havel’s speech to the Canadian Parliament: the first is that he highlights the tension between human rights and state sovereignty, and the second is that he indirectly concedes
that the NATO air attacks were illegal by referencing a “higher moral law.” As aforementioned, there is no explicit basis in the UN Charter for humanitarian interventions, and by
failing to adopt a Security Council resolution authorising the use of force, NATO circumvented the well-established principles and procedures of the UN Charter and collective
security. Richard Falk described “[the NATO] bypassing of UN authority as a devastating
148
blow to the authority of the organization.” This illegal invasion of a sovereign state sundered the process of collective decision-making and thereby destabilised the international
order.
Furthermore, opponents of the air attacks have argued that plausible diplomatic solutions to the crisis were not exhausted, since Russia was not included in the NATO negotiations with Milosevic, and the Rambouillet proposal was offered on a nonnegotiable
basis.149 Opponents also note that instead of pacifying the Yugoslav army and bringing
Milosevic to the bargaining table, the NATO bombings actually intensified the Yugoslav
campaign of mass murder and forced appropriations, and increased the flow of Kosovar
refugees fleeing the air strikes. Robert Hayden’s comments encapsulate the most vehement criticism of NATO’s operation in Kosovo, which he describes as a “perversion of
humanitarianism”:
This [illegal] war, supposedly in defense of human rights, has led to war crimes being
committed by NATO and a civilian casualty rate that is at least three times greater
than the casualty rate of the “intolerable” violations of human rights that NATO was
ostensibly acting to correct.150
From the perspective of the opponents, since the cure was illegally administered, it was
worse than the disease.
How can these two antithetical interpretations, as characterised by Havel’s and Hayden’s comments, be understood and reconciled? It appears, on the one hand, that the
NATO intervention was “legitimate” because the evidence clearly demonstrated gross
144
M. Walzer, Arguing about War, (New Haven: Yale University Press, 2004), p. 99.
The Rambouillet proposal envisaged an autonomous but not an independent Kosovo, which was to
be policed by NATO forces.
146
L. Ziring, R. Riggs and J. Plano, “The United Nations and Collective Security,” The United Nations:
International Organizations and World Politics (Toronto: Nelson Thomson Learning, Inc., 2000), p. 168.
147
Ibid.
148
R. Falk, “Kosovo, World Order, and the Future of International Law,” The American Journal of International Law vol. 93, no. 4 (1999): p. 850.
149
Ibid., p. 851.
150
R. Hayden, “Eastern Europe After Kosovo: Humanitarian Hypocrisy,” Eastern European Constitutional Review vol. 8, no. 3 (1999): p. 1.
145
INTERNATIONAL PUBLIC POLICY REVIEW
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humanitarian violations in Kosovo, and ultimately, the intervention improved the prospects for peace in the area. On the other hand, however, it was clearly “illegal” and in violation of international law. As the Independent International Commission on Kosovo
concludes, there is a gap between “legitimacy and legality,” or in other words, between
151
The intervention was justifiable, but not in the manner underjustice and the law.
152
taken. Therefore, through an understanding of the two paradoxical components of the
thesis (viz., violations of human rights cannot be shielded by claims of sovereignty; and
sovereignty cannot be breached to protect human rights) as the gap between legitimacy
and legality, one comes to the disquieting conclusion that the humanitarian intervention in
Kosovo was necessary, but under the legal circumstances, impossible.153 A formula that suggests a way beyond this conundrum, or how to bridge the gap between legitimacy and legality – and thereby render humanitarian interventions possible within the confines of
international law – will be presented. But first, it is necessary to examine a recent development in this field in the form of the UN’s “Responsibility to Protect” document.
In December 2001 a UN Commission drafted a report titled The Responsibility to Protect which developed “the idea that sovereign states have a responsibility to protect their
own citizens from avoidable catastrophe – from mass murder and rape, from starvation –
but that when they are unwilling or unable to do so, that responsibility must be borne by
the broader community of states.”154 The report promoted the notion of “sovereignty as
responsibility” and invoked inter alia the principles of Just War Theory to buttress it. Although the report contains many important insights into the ethical and legal issues surrounding humanitarian interventions, its principal shortcoming is the fact that it does not
go far enough: the report itself does not have the status of law, nor does it recommend
amending the UN Charter with a provision for humanitarian intervention. If this legal
amendment is not made, then the international discourse on humanitarian intervention
will always remain shrouded in mystery. Conversely, by enumerating clearly and distinctly the criteria under which a humanitarian intervention may be launched in accordance with the UN Charter, a large step will be taken toward demystifying the concept of
humanitarian intervention. In short, if the concept of humanitarian intervention obtains
the status of law under the UN Charter, then the fierce debate over the primacy of state
sovereignty and of protecting human rights will be mitigated.
In order for justice to reflect the law there must be congruence between legitimacy
and legality. How can this be achieved in the context of humanitarian interventions?
Adam Roberts explains that “the idea of general criteria by which to evaluate decisions on
the use of force has a long history, including the Just War tradition. It is certainly useful to
bear such criteria in mind and adapt them to the question of humanitarian intervention.”155
Since humanitarian interventions – or as labeled by some pundits, “humanitarian wars” –
are instances that involve a resort to force, an adaptation of the principles of Just War Theory (which is one of the oldest and richest corpuses on the laws of war) to suit the contemporary conditions of humanitarian interventions is merited. Just War Theory is a
moral doctrine that has an intellectual heritage in many notable theologians and philoso-
151
R. Falk, “Legality to Legitimacy,” Harvard International Review vol. 26, no. 1 (2004): p. 42.
Falk (1999), p. 854.
153
Ibid., p. 852.
154
Responsibility to Protect, ICISS Report: International Commission on Intervention and State Sovereignty,
December 2001, http://www.iciss.ca/report2-en.asp (accessed 20 March 2007).
155
A. Roberts, “The So-Called ‘Right’ of Humanitarian Intervention,” Yearbook of International Humanitarian Law vol. 3, (T.M.C. Asser Press, The Hague, 2002), p. 34.
152
VOL. 3, NO. 1 – JUNE 2007
45
phers. It has two main categories: ius ad bellum and ius in bello.156 The former provides
guidelines on when it is just to resort to war, and the latter discusses how war may be
157
In fact, these two categories, ius ad bellum and ius in bello, are already
justly fought.
widely accepted as legitimate by the international community and they serve as the foundation for many sources of international law including inter alia treaties such as the UN
Charter and conventions such as the Geneva Convention. Likewise, the principles of Just
War Theory may serve as a foundation for a law guiding the resort to humanitarian interventions. The criteria for both categories of Just War Theory are enumerated in Table 1.
Table 1: Just War Criteria by Category158
It is necessary to slightly adjust the original criteria in order to transfer them from
their theological birth into the current realities of humanitarian interventions. The four
core principles of ius ad bellum (last resort, right authority, just cause, and right intention)
and the two principles of ius in bello will be retained because they are entirely compatible
with considerations of when it is just to launch a humanitarian intervention, and what a
just humanitarian intervention would look like once it was launched.159 Two additional
principles – credible evidence and limited duration – are also included as a means of
adapting the original principles to contemporary concerns of not only justice, but also of
practicability, with regards to humanitarian interventions. Thus, the criteria for the implementation of humanitarian interventions are:
1. Credible Evidence: There must be credible and objective evidence that the highest
norms of human rights – the right to life and the right to be free from physical abuse
– are being violated in a state that is either unwilling or unable to remedy the abuses,
156
J. Elshtain, “Just War and Humanitarian Intervention,” Ideas: From the National Humanities Center
vol. 8, no. 2 (2001): p. 6.
157
M. Fixdal and D. Smith, “Humanitarian Intervention and Just War,” Mershon International Studies
Review vol. 42, no. 2 (1998): p. 286.
158
The criteria in this table are drawn from the works of M. Fixdal and D. Smith (p. 286), and R. Miller,
Interpretations of Conflict, Ethics, and the Just War Traditions (Chicago: University of Chicago Press, 1991), pp.
13-15.
159
The remaining ius ad bellum principles are implicit in these four core principles.
INTERNATIONAL PUBLIC POLICY REVIEW
46
2.
3.
4.
5.
6.
7.
8.
or in a state that is the perpetrator of the abuses.160 An international committee under
the direction of the Secretary General will ascertain the veracity of the evidence, and
present it to the Security Council. The evidence must point to widespread violations
that are either occurring or imminent.161
Last Resort: The use of force must be the last resort when all other diplomatic means
to rectify the humanitarian abuses have been exhausted.
Right Authority: The Security Council is the only entity with the authority to launch
humanitarian interventions.162
Just Cause: There must be widespread violations of the highest norms of human
rights and the intervening party must have a reasonable chance of rectifying the humanitarian abuses.
Right Intention: The primary objective of the intervening party must be ending the
163
humanitarian abuses; however, this need not be the only motive.
Limited Duration: Once the primary objective is accomplished, viz., the humanitarian
abuses cease to exist, the intervening party must withdraw upon request from the local authorities.164
Discrimination: The principle of noncombatant immunity must be upheld.
Proportionality: The intervening party must use the minimal amount of coercive
power necessary to accomplish its objectives.
It is important to identify the failure of the criteria to address certain key questions.
First, the criteria do not specify the means to be used to rectify the humanitarian abuses.
A major criticism of the NATO operation in Kosovo was the decision not to use ground
troops, which could have prevented the genocide more effectively. The criteria have been
established with an eye to flexibility on this issue and permit the political process to determine the means employed. Second, the criteria do not place any responsibility on the
intervening party other than stymieing the humanitarian abuses. In other words, it is not
incumbent on the intervening party to topple a corrupt government, build democracy, police a cease-fire, etc.: as soon as some semblance of local law and order is established, the
intervening party is permitted to leave. Once again, the criteria enable the political proc160
The criteria are defined in the minimalist sense and are based exclusively on the right to life and
right to be free from physical abuse. These rights were selected for pragmatic reasons, because the world
could conceivably be in a perpetual state of war if the more vague concepts of freedom and equality were
included.
161
It is impossible to quantify an exact number that constitutes “widespread.” In fact, the very exercise
of establishing a quantity of the maximum human rights abuses necessary before intervention is merited is
inhumane and degrading to the very values that the intervention would seek to protect. “Imminent” is defined herein as “certain and within a short duration.” Both concepts are left deliberately vague, to be determined by an international committee under the direction of the Secretary General.
162
This argument is in direct contradistinction with the argument propounded by M. Walzer; i.e., regional organizations, groups of states, and neighbouring states may instigate humanitarian interventions.
The entire enterprise of amending the UN Charter to account for humanitarian interventions rests on the
organization’s ability to effectively administer the law when deemed appropriate by the Security Council.
Any type of intervention by regional alliances or groups of states is by definition unilateral in terms of international law, and hence it remains illegal and undesirable. Lastly, such a provision for regional initiatives
would give states a blank cheque for intervening where they deem lucrative, and accordingly, the international order would be subject to politically motivated invasions masquerading as moral imperatives.
163
For the purposes of pragmatism, other motives – political, economic, strategic, etc. – are also justified, insofar as they coincide with, and are subordinate to, the humanitarian motive.
164
The term “local authorities” was once again left deliberately vague to permit the intervening party
to accomplish its primary objective and withdraw as soon as some semblance of local law and order is established.
VOL. 3, NO. 1 – JUNE 2007
47
ess to determine when such “peace-building” measures are applicable, unless the local authorities request a withdrawal. Lastly, there is no mention of a mechanism that can determine the amount of resources each member of the UN will contribute to a particular
intervention, thereby implying that contributions will be on a voluntary basis.
The criteria will be appended to Chapter VII of the UN Charter, and the ultimate decision for implementation will reside with the Security Council. It is important to note
that the core organizational structure of the Security Council, with its five veto-wielding
members, remains intact to reflect the unequal distribution of capabilities among states.
This permits Russia and China, for instance, to veto any ambitions by human rights
groups to intervene in Chechnya and Tibet, respectively, which could instigate another
world war. The UN was specifically designed to avert such a global conflagration, and
accordingly, the criteria for humanitarian intervention must also be sensitive to these
power realities by adapting to the current organizational structure, not by challenging it.
It has been argued that gross violations of human rights cannot be shielded by appeals to the sacrosanctity of sovereignty. Nevertheless, it has also been asserted that state
sovereignty cannot be breached without legal recourse to the UN Charter and its collective
security mechanisms: neither considerations of human rights nor state sovereignty is to be
permitted to trump the other. The NATO campaign in Kosovo in 1999 served as a case
study to explain this paradox as the gap between legitimacy and legality, justice, and the
law. This gap was ascertained to be unhealthy, gradually corroding the legitimacy and
authority of the UN and international law. Consequently, a proposal to bridge the gap
was offered in which Chapter VII of the UN Charter is to be appended with a provision
authorising humanitarian interventions on the premises of Just War Theory. This would
render dialogue on the tension between human rights and state sovereignty superfluous
since humanitarian interventions would be morally legitimate and constitutionally legal.
REFERENCES
Charney, Jonathan I. “Anticipatory Humanitarian Intervention in Kosovo.” The American
Journal of International Law vol. 93, no. 4 (1999): pp. 834-841.
Charter of the United Nations. Available online:
http://www.un.org/aboutun/charter/index.html
Elshtain, Jean Bethke. “Just War and Humanitarian Intervention.” Ideas: From the National
Humanities Center vol. 8, no. 2 (2001): pp. 1-21.
Falk, Richard. “Kosovo, World Order, and the Future of International Law.” The American
Journal of International Law vol. 93, no. 4 (1999): pp. 847-857.
----------. “Legality to Legitimacy.” Harvard International Review vol. 26, no. 1 (2004): pp.
40-45.
Fixdal, Mona and Dan Smith. “Humanitarian Intervention and Just War.” Mershon International Studies Review vol. 42, no. 2 (1998): pp. 283-312.
Havel, Vaclav. Address by Vaclav Havel, President of the Czech Republic, to the Senate and the
House of Commons of the Parliament of Canada. 29 April 1999. Available online:
http://old.hrad.cz/president/Havel/speeches/index_uk.html
Hayden, Robert M. “Eastern Europe After Kosovo: Humanitarian Hypocrisy.” Eastern
European Constitutional Review vol. 8, no. 3 (1999).
48
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Hilpold, Peter. “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?” The
European Journal of International Law vol. 12, no. 3 (2001): pp. 437-467.
Miller, Richard. Interpretations of Conflict, Ethics, and the Just War Traditions. Chicago: University of Chicago Press, 1991.
Pease, Kelly Kate and David P. Forsythe. “Human Rights, Humanitarian Intervention,
and World Politics.” Human Rights Quarterly vol. 15 no. 2 (1993): pp. 290-314.
Responsibility to Protect. ICISS Report: International Commission on Intervention and State
Sovereignty. December 2001. Available online: http://www.iciss.ca/report2-en.asp
Roberts, Adam. “The So-Called ‘Right’ of Humanitarian Intervention.” Yearbook of International Humanitarian Law vol. 3. The Hague: T.M.C. Asser Press, 2002.
----------. “UN and Humanitarian Intervention.” In Humanitarian Interventions and International Relations, edited by Jennifer Welsh. Oxford: Oxford University Press, 2004.
Rosenau, James. “Governance, Order, and Change in World Politics.” In Governance without Government: Order and Change in World Politics, edited by James Rosenau and Otto
Czempiel. Cambridge: Cambridge University Press, 2000.
Walzer, Michael. Arguing about War. New Haven: Yale University Press, 2004.
----------. “The Argument about Humanitarian Intervention.” Dissent 49, no.1 (2002): pp.
29-38.
Ziring, Lawrence, Robert Riggs and Jack Plano. “The United Nations and Collective Security.” In The United Nations: International Organizations and World Politics. Toronto:
Nelson Thomson Learning, Inc., 2000.
THE IMPACT OF THE EU ACCESSION PROCESS ON THE
ESTABLISHMENT OF EVALUATION CAPACITY IN BULGARIA
AND ROMANIA
JULIAN KNOTT‡
ABSTRACT
Policy and programme evaluation is fast emerging as a norm of international governance and is
seen by many as an important tool in promoting a more accountable and results-oriented public
sector. As a consequence, many governments and international organisations have sought to export its benefits by making it a pre-condition for both bilateral and multilateral financial assistance.
This paper analyses the extent to which the European enlargement process has impacted on the
evaluation capacities of Bulgaria and Romania. It examines the institutional and organisational
changes that have affected the demand, supply and utilisation of evaluation in these two countries.
It argues that the accession process has played a significant part in introducing the vocabulary, systems, and structures of evaluation, mainly through the conditionalities associated with the preaccession programmes and the European Structural Funds. However, as things stand, evaluation
remains primarily associated with EU programmes and has still not been adopted systematically
into national structures and practices.
Keywords: accession process; conditionalities; European Union; governance; policy
evaluation
1. INTRODUCTION
Following the collapse of communism in Central and Eastern Europe (CEE), the region has undergone a dramatic transformation moving away from centrally planned
economies towards democratic market economies. This process was marked by the historic accession of eight CEE countries to the European Union (EU) on the first of May 2004.
Although Bulgaria and Romania did not form part of this first wave due to some outstanding compliance issues, they are currently on track to enter the EU on the first of
January 2007.165
‡
Research assistant at the School of Public Policy, University College London. For questions or comments, please contact: j.knott@ucl.ac.uk
165
European Parliament Resolution on the Accession of Bulgaria and Romania, Strasbourg: 14 June
2006. http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=6FD18228762B3F90C3044733CD1249D0.
node1?pubRef=//EP//TEXT+TA+P6-TA-2006-0262+0+DOC+XML+V0//EN (accessed on 01/08/06).
49
INTERNATIONAL PUBLIC POLICY REVIEW
50
Accession to the EU requires compliance with an extensive set of conditions com166
167
monly known as the Copenhagen Criteria and the community acquis, both of which
place huge pressures on Candidate Countries to pursue a wide variety of reforms in a
number of different policy areas. Given the enormity of the transition and the great demands that were being placed upon the candidates in CEE, the last enlargement became a
long and drawn out process. As a means of facilitating this process and in order to provide assistance in key areas of importance, the European Commission introduced a series
of programmes, namely the PHARE, SAPARD and ISPA programmes. Thus the process
of accession was characterised by a long process of legal transposition as well as a series of
political and economic reforms. As well as facilitating the candidate countries with these
issues, the pre-accession programmes also acted as “learning by doing” exercises in preparation for the European Structural Funds,168 which become available on accession. The introduction of these programmes placed a series of new responsibilities and obligations on
the candidate countries in terms of management procedures in areas such as tendering,
contracting and payment. In addition, in line with the EU financial regulation, there was
also a requirement to monitor and conduct ex-ante, interim and ex-post evaluations of all
EU expenditure.169 Therefore, there have been strong influences and incentives for candidates to develop capacity in these areas. Although the concept of evaluation has been
largely embraced in the EU fifteen170 and enshrined in the practices of project cycle management,171 it was a relatively new concept for the ex-Soviet countries of Central and Eastern Europe who had no mechanisms for the systemic evaluation of policies, programmes,
and projects outside the scope of EU funds. These countries, according to Hyatt, were culturally more familiar with the concepts of policing and control than they were with the
softer “learning” or “accountability” driven perceptions of evaluation.172 Therefore, moving from these conceptions towards the prevalent EU and international norms of evaluation required a considerable shift in terms of institutions, organisations, systems,
structures, and expertise. As policy and programme evaluation is increasingly seen by
many as an important tool in promoting a more accountable and results-oriented public
sector, many governments and international organisations have sought to export its benefits by making it a pre-condition for both bilateral and multilateral financial assistance.
While there is no “right” way of exporting the values of evaluation, there are certainly lessons that can be drawn from the EU enlargement process concerning the promotion of
evaluation as best practice in international governance.
It is in this context that this paper analyses the European enlargement process in
terms of its impact on the evaluation capacity of two acceding countries; Bulgaria and
166
The Copenhagen Criteria referred firstly to a set of political criteria, namely the establishment of
stable institutions guaranteeing democracy, the rule of law, human rights, and respect for protection of minorities; secondly, a set of economic criteria, namely a functioning market economy and the capacity to cope
with competition and market forces in the EU; and lastly to the capacity to take on the obligations of membership, including adherence to the objectives of political, economic and monetary union (COM 2006).
167
The Acquis Communautaire consists of the detailed laws and rules of the EU, which are based on
the founding treaties of the European Union, mainly those of Rome, Maastricht, Amsterdam and Nice (COM
2006).
168
The term “Structural Funds” in this paper will refer to the new Structural Funds Regulation that
will be in operation from 2007-2013. This provides a funding scheme targeted towards the three objectives
of convergence; regional competitiveness and employment; and European territorial cooperation
169
COM (2002), p. 12.
170
K. J. Lönnroth, “Challenges for Evaluation in an Enlarged Europe,” Plenary Feedback Session, Fifth
European Conference on Evaluation of the Structural Funds (Budapest: 26-27 June 2003).
171
COM (2004).
172
J. Hyatt and H. Simons, ”Cultural Codes: Who Holds the Key? The Concept and Conduct of Evaluation in Central and Eastern Europe,” Evaluation vol. 5, no. 1 (1999).
VOL. 3, NO. 1 – JUNE 2007
51
Romania. For the purpose of this study, capacity is measured by looking at the institutional and organisational changes that have taken place affecting the demand, supply, and
utilisation of evaluation. The paper starts from a theoretical perspective, looking at the
main mechanisms by which the EU impacts on domestic institutions and policy. It then
goes on to explore the issue of evaluation, its significance as an emerging European norm
and the key factors required in developing evaluation capacity. The paper then looks empirically at how the EU has impacted on evaluation capacity in these two countries. The
findings section is divided into three parts, looking firstly at the role of the pre-accession
programmes in introducing the practice of monitoring and evaluation, secondly, the influence of the Structural Funds programmes in consolidating this process and finally, the implications for evaluation outside the scope of EU programmes.
2. ASSESSING THE IMPACT OF THE EU ON DOMESTIC INSTITUTIONS AND POLICY
The process whereby domestic change occurs as a result of EU influence is often referred to as “Europeanization,” defined slightly more precisely by Hix and Goetz as “a
process of change in national institutional and policy practices that can be attributed to
European integration.”173 Schimmelfennig and Sedelmeier identify the predominant factors involved in EU-driven change (see Table 1).174 They outline two explanatory models
consisting of the “external incentives” or conditionality model, the “social learning” or socialization model. Based on work by March and Olsen, and consistent with the debate between rational choice institutionalism and sociological institutionalism, these models
differentiate between a logic of consequences and a logic of appropriateness as drivers of
change.175 The logic of consequences makes the assumption that rational actors seek to
maximise their welfare through strategic actions. The logic of appropriateness, on the
other hand, assumes that actors will be motivated by internalized identities, values, and
norms. The following sections explore these different models drawing on a variety of literature.
Table 1: Alternative Mechanisms of Europeanization
176
Logic of rule adoption
Logic of conseLogic of appropriatequences
ness
EU drivers of change Conditionality
Socialization
2.1 Rule Adoption through Conditionality
One of the primary focuses of the literature on European enlargement has been on
the issue of conditionality, defined by Schimmelfennig and Sedelmeier as “a bargaining
strategy of reinforcement by reward, under which the EU provides external incentives for
173
S. Hix and K. Goetz, “Introduction: European Integration and National Political Systems,” West
European Politics vol. 23, no. 4 (2000): p. 27.
174
F. Schimmelfennig and U. Sedelmeier, “Introduction: Conceptualizing the Europeanization of Central and Eastern Europe,” in The Europeanization of Central and Eastern Europe, eds. F. Schimmelfennig and U.
Sedelmeier (Cornell: Cornell University Press, 2005).
175
J. March and J. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (New York: New
York Free Press, 1989).
176
Adapted from Schimmelfenning and Sedelmeier (2005), p. 8.
INTERNATIONAL PUBLIC POLICY REVIEW
52
a target government to comply with its conditions.”177 As well as its application in recent
EU enlargements, conditionality has also been an instrument commonly used by other international institutions such as the World Bank and the International Monetary Fund in
the context of development assistance programmes and the provision of loans. Following
a rationalist bargaining model, EU conditionality is based on a system of power asymme178
try, which enables the Commission to demand compliance with the Copenhagen Criteria
and the community acquis in exchange for membership of EU.
Whereas conditionality has often been focused on economic issues, its use in the context of the EU accession process has seen a controversial move to the political and institutional domain.179 Given this increasing tendency, the Commission’s influence on candidate
country governance during the recent and on-going accession processes has been well beyond the sway that it has had in previous enlargements.180 Indeed, previous accessions
consisted of much shorter processes, involving far less scrutiny over the institutional and
governance systems of prospective members. It is therefore generally accepted that, as far
as the recent and on-going enlargement processes are concerned, the EU has displayed its
potential to influence the candidate countries through these mechanisms of conditionality.
Grabbe identifies five main mechanisms used by the EU to effect change through condi181
These are categorised as: (1) gate keeping; (2)
tionality and the accession process.
benchmarking and monitoring; (3) the provision of legislative and institutional templates;
(4) money: aid and technical assistance; and (5) advice and twinning. According to
Grabbe, the gate keeping function is the most powerful conditionality tool as it represents
the EU’s ability to control the accession process in terms of when the negotiations are
started, when the relevant chapters of the acquis are closed, and ultimately when a country is accepted in to the Union. 182 The other four conditionality tools, however, capture the
more intermediate and perhaps more operational means that the Commission uses to exert influence. The above factors will be further examined later in this paper in order to obtain an empirical understanding of the impact of these mechanisms on the establishment
of evaluation capacity in Bulgaria and Romania.
The EU accession process has been characterised by two main forms of conditionality: democratic conditionality, embodied by the Copenhagen Criteria, and acquis conditionality. Measuring the fulfillment of these requires various levels of interpretation. As
the Copenhagen Criteria are quite ambiguous in nature, consisting of fairly broad concepts, any decision on their fulfillment is extremely subjective and strongly driven by the
political environment within the EU. Indeed, Checkel points out that the politicised nature of conditionality means that there is not always a strong correlation between conditionality and compliance.183 The acquis on the other hand is more detailed and its progress
is often easier to measure. However, the degree to which this is possible is largely de177
F. Schimmelfennig and U. Sedelmeier, “Governance by Conditionality: EU Rule Transfer to the
Candidate Countries of Central and Eastern Europe,” Journal of European Public Policy vol. 11, no. 4 (2004): p.
662.
178
Schimmelfenning and Sedelmeier state that bargaining power is a result of “the asymmetrical distribution of : (1) information; (2) the benefits of a specific agreement compared with those of alternative outcomes or ‘outside options’” (2005, p. 11).
179
J. Checkel, “Compliance and Conditionality” ARENA working papers 00/18, prepared for delivery
at the 2000 Annual Meeting of the American Political Science Association, (Washington DC: 2000).
180
H. Grabbe, “A Partnership for Accession? The Implications of EU Conditionality for the Central and
East European Applicants,” Robert Schuman Centre Working Paper 12/99 San Domenico di Fiesole (European University Institute, 1999).
181
Ibid., p. 1020.
182
Ibid.
183
Checkel (2000).
VOL. 3, NO. 1 – JUNE 2007
53
pendent on the level of specification in the policy area concerned.184 Conditionality is not
uniform, and its strength varies considerably depending on the policy field and the degree
185
to which the acquis in that area is “thick” or “thin.” In some areas, the lack of institutional templates and specific guidance from the Commission has meant that candidates
have been unsure of how to implement the required changes. Vague guidance such as
“prepare strategy” without additional substantive guidelines on what specific areas
should be addressed has been prevalent.186 In addition, due to the ambiguous nature of
much of the formal conditionality, compounded by the ad hoc advice coming from the
Commission, it would appear that the conditionalities, although theoretically uniform,
have led to a more divergent set of outcomes.187
Building on this concept of unevenness, it is also important to recognise the existence
of both formal and informal conditionality. Whereas much conditionality is embodied
and formally presented through the Copenhagen Criteria and community acquis, during
the day-to-day operations of the accession process, there are a number of pressures that
are exerted by actors within the Commission that are aimed at influencing certain policy
outcomes, most notably in areas where the acquis is “thinnest.”188 The Commission is
therefore able to use this increased ambiguity and flexibility in order to influence its counterparts towards the policy options that it favours.
Conditionality, however, cannot be described as the unique driver of change. Brusis
characterises conditionality more as affecting the opportunity structures faced by domestic
actors, and he argues that conditionality is often a facilitating force rather than a decisive
one.189 Checkel states “there is a need to broaden the conceptual toolkit when considering
the causal nexus between conditionality and national compliance.”190 Building on this, the
following section focuses on alternative or complimentary explanations of rule adoption.
2.2 Rule Adoption through Socialisation
The section on conditionality above has focused mainly on the coercive mechanisms
used by the Commission to influence institutional and policy change in the candidate
countries. Although conditionality will be the main focus of this paper, it is also important to explore alternative models of EU-driven change, notably the process of socialisation.
Social constructivism makes an important contribution to the debate on EU-driven
change. Schimmelfennig and Sedelmeier sum up the socialisation argument very succinctly, proposing “a government adopts EU rules if it is persuaded of the appropriateness
191
of EU rules.” They identify the issues of legitimacy, identity, and resonance as being key
factors in this persuasion process. They argue that if these factors are undermined there
will be more reluctance to conform to the rules. For example, regarding legitimacy, they
argue that this decreases in cases where rules are not uniform and are not consistent for
184
M. Brusis, “The Instrumental Use of European Union Conditionality: Regionalization in the Czech
Republic and Slovakia,” East European Politics and Societies vol. 19, no. 2 (2005).
185
J. Hughes et al, “Conditionality and Compliance in the EU’s Eastward Enlargement: Regional Policy
and the Reform of Sub-national Government,” Journal of Common Market Studies vol. 42, no. 3 (2004): p. 525.
186
Grabbe.
187
K. H. Goetz and H. Wollmann, “Governmentalizing Central Executives in Post-Communist Europe:
A Four-Country Comparison,” Journal of European Public Policy vol. 8, no. 6 (2001).
188
Hughes et al, p. 525.
189
Brusis.
190
Checkel (2000), p. 1.
191
Schimmelfennig and Sedelmeier (2005), p. 18.
INTERNATIONAL PUBLIC POLICY REVIEW
54
old and new members of the EU.192 Risse characterises the constructivist interpretation in
terms of the pressures that make people try to “do the right thing” as opposed to necessar193
In this respect, candidate countries are
ily behaving in a welfare maximising manner.
compelled to conform to EU norms because of the pressure of wanting to be seen to be behaving appropriately, or in similar ways to existing members.
Checkel argues that when looking at compliance with EU norms, it is not possible to
focus solely on material incentives, as proposed by the rationalist position, but rather to
include factors such as social learning, socialisation and social norms.194 Indeed Checkel
makes the point that it is not necessary to explain rule adoption in the EU by either rationalist or constructivist approaches alone; moreover it is useful to consider how both interpretations can contribute to understanding this phenomenon.
DiMaggio and Powell argue that modern society is characterised by increasing similarity in the forms and practices of organisations, which they call “institutional isomorphism.”195 Of particular relevance to this study is their identification of the coercive
mechanism of isomorphism. This consists of both formal and informal pressures that are
exerted upon organisations. This mechanism incorporates the conditionality driven rule
adoption as described above, but also allows for a constructivist interpretation. They
point out that changes which are driven by coercive means, i.e. EU conditionality, can
sometimes be slightly “ceremonial” in nature. However, they go on to show that, even if
these changes are not initially deep-rooted, the legal constraints with which they are associated can considerably affect the behaviour and structure of the recipient organisations.
Using this approach, it can be seen that whereas conditionality is useful in explaining
institutional and policy changes, it is not always so helpful in explaining what determines
the success or failure of the implementation of these changes. In the case of EU enlargement, considerable focus has been placed on the task of transposing large amounts of legislation. However, the degree to which this legislation is implemented, and the degree of
success of this process, are factors of key significance. The socialisation argument can help
to explain successful policy adoption and implementation in terms of the acceptance of,
and identification with, norms and values in the case of EU policies, irrespective of
whether or not these were imposed through conditionality.
3. EVALUATION CAPACITY DEVELOPMENT
“The more that we [public administrations] know about how our programs are functioning, the effects they are having, and at what cost, the more likely we are to search out
ways of making them more efficient and more effective. To a substantial degree, this
knowledge is the public-sector manager’s surrogate for the profit-and-loss statement of the
business sector.”196
Policy and programme evaluation has become an increasingly popular tool in the
public sector, often forming part of the recent reform programmes and being seen as going
192
Ibid., p. 19.
T. Risse, “Lets Argue!: Communicative Action in World Politics,” International Organization, vol. 54,
no. 1 (2000): p. 4.
194
J. Checkel, “Why Comply? Social Learning and European Identity Change,” International Organisation vol. 55, no. 3 (2001).
195
P. DiMaggio and W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective
Rationality in Organisational Fields,” American Sociological Review vol. 48, no. 2 (1983).
196
Havens (1992) in R. Pablo Guerrero, “Evaluation Capacity Development in Developing Countries:
Applying the Lessons from Experience,” in Building Effective Evaluation Capacity, eds. R. Boyle and D. Lemaire (New York: Transaction, 1999), p. 178.
193
VOL. 3, NO. 1 – JUNE 2007
55
hand in hand with the move towards a more results oriented public sector.197 Chelimsky
distinguishes between two main functions of evaluation: the learning function and the ac198
countability function. Leeuw and Sonnichsen emphasise the first of these, highlighting
that evaluation acts as an important feedback mechanism used in organisational learning,
which provides decision-making information for the purpose of corrective actions either at
project, programme or policy level.199
Much of the literature on evaluation capacity development has been associated with
external assistance and funding. As many have noted, evaluation has often been introduced as a precondition for receiving financial assistance.200 Although evaluation is often
promoted as best practice governance, many overstretched governments in developing
and transition economies are sceptical that expending already scarce resources on such activities represents a beneficial option. However, despite such reservations, there is a
growing consensus that the development of an “evaluation culture” is a significant means
of improving the performance of governments.201 In addition, regarding the issue of resources, international donors often provide part of the financial resources necessary for
conducting evaluation, which considerably increases incentives.
A critical aspect is the way in which evaluation is integrated into the organisational
and administrative processes. Indeed, as Darlien points out, unless the conducting of
evaluation becomes institutionalised, its occurrence, and certainly its use, tends to be random.202 Thus, in order for evaluation to be conducted systematically, it is necessary to
build sufficient capacity within the institutions and organisations of the public administration.
The World Bank Operations Evaluation Department203 characterises the development
of evaluation capacity in terms of the four pillars shown in Box 1 below.
Box 1: The Four Pillars of Evaluation Capacity Development
1) Institutional capacity: a move from less efficient to more efficient accountability rules and incentives;
2) Organisational capacity: the tailoring and adaptation of the organisational architecture of monitoring and evaluating government entities to the new and more efficient accountability rules and incentives;
3) Information & communication technology (ICT) capacity: using informatics for better and timelier information on results;
4) Human capacity: through training in monitoring and evaluation, but targeted at the skills that are
suited to the particular institutional and organisational context, and will thus actually be used
and reinforced after they are imparted.
197
R. Boyle and D. Lemaire (eds.), Building Effective Evaluation Capacity, (New York: Transaction, 1999).
E. Chelminsky, Programme Evaluation: Patterns and Directions (Washington DC: American Society for
Public Administration, 1985).
199
F. Leeuw and R. Sonnichsen, “Introduction: Evaluations and Organizational Learning: International
Perspectives,” in Can Governments Learn: Comparative Perspectives on Evaluation and Organisational Learning,
eds. F. Leeuw, R. Rist and R. Sonnichsen (London: Transaction, 2000).
200
Pablo Guerrero.
201
K. Mackay, “Institutionalization of Monitoring and Evaluation Systems to Improve Public Sector
Management,” ECD Working Paper Series, No. 15 (Washington DC: World Bank, 2006).
202
Darlien (1990) in Leeuw and Sonnichsen.
203
S. Schiavo-Campo, “Building Country Capacity for Monitoring and Evaluation in the Public Sector:
Selected Lessons of International Experience,” ECD Working Paper Series No. 13 (Washington DC: World
Bank, 2005).
198
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56
This characterisation is important to emphasise the fact that evaluation capacity development is about more than simply training. Indeed it splits up areas that are often grouped
together, such as institutions and organisations. The institutional situation of a country in
terms of its formal and informal rules, norms, and values is key in shaping its policies. In
terms of the establishment of evaluation capacity, without certain institutional changes,
endless organisational re-configurations may be useless. Therefore attention must be
given to both these levels, as opposed to seeking short fixes through organisational
changes.204 Evaluation is about information, and consequently appropriate systems must
be put in place to systematically measure indicators upon which to gauge the success of
programmes and policies. Without this element, evaluation becomes a far less effective
tool. The final point regarding human capacity is clearly crucial. Evaluation is dependent
upon expertise, both in its management and conduct. Accordingly, as well as developing
sustainable systems for building and in-house evaluation capacity, emphasis must also be
placed on stimulating capacity within the professional community.
As mentioned above, the development of evaluation capacity has often been associated with external demand, such as the conditions imposed by donor agencies. Boyle has
observed this link between the imposed regulations relating to the management of the
205
European Structural Funds and the establishment of evaluation capacity in Ireland. Indeed, Toulemonde has observed the influence of the European Structural Funds on the
creation of Europe-wide evaluation functions.206 However, undoubtedly one of the key
factors of successful evaluation capacity development is the extent of domestic demand for
evaluation information.207 In this respect, external demand for evaluation is not a substitute for strong internal demand from the national parliaments, public administrations, and
general public.
Toulemonde argues that demand cannot be taken as a given and must be created and
progressively developed.208 He identifies three principal methods of creating demand for
evaluation, which he characterises as “carrots,” “sticks,” and “sermons.” The “carrots,” or
the creation of demand by incentives, he argues, can take the form of budgetary or career
incentives. The budgetary dimension follows the logic of Niskanen: where budgets are
available, civil servants take interest.209 The career incentives refer to the incentives behind
following a specialised career as an evaluation expert. The “sticks,” as alluded to previously, refers primarily to compulsory evaluation, such as exampled by European Structural Funds. However, this can also entail giving evaluation authority: giving power to
the evaluators to ask specific questions, to request certain information, and to oblige people to use evaluation results (for example by threatening budget cuts in the case of failure
to comply).
Needless to say, the creation of sustainable demand for evaluation requires a mix of
both incentives and constraints. However, the third factor proposed by Toulemonde, the
“sermon,” falls into a different category. This refers to a state whereby evaluation is no
longer principally conducted in response to incentives and constraints, but because of a
204
Ibid.
R. Boyle, “Evaluation Capacity Development in the Republic of Ireland,” ECD Working Paper Series No. 14 (Washington DC: World Bank, 2005).
206
J. Toulemonde, “Incentives, Constraints and Culture-Building as Instruments for the Development
of Evaluation Demand,” in Building Effective Evaluation Capacity, eds. R. Boyle and D. Lemaire (New York:
Transaction, 1999).
207
Mackay.
208
Toulemonde.
209
W. J. Niskanen, Bureaucracy and Representative Government (Chicago: Aldine Publishing Company,
1974).
205
VOL. 3, NO. 1 – JUNE 2007
57
true subscription to the norms and values of evaluation. In this case, evaluation takes
place because of the presence of an “evaluation culture.” Similarities can be drawn between this typology and the one identified above by Schimmelfennig and Sedelmeier.
4. FINDINGS
In order to explore some of the questions posed above and to look empirically at how
the accession process has impacted on the evaluation capacity of Bulgaria and Romania,
this paper has drawn on a variety of sources. Firstly, a review of both European Commission and national documentation relating to evaluation was carried out. Secondly, a series
of semi-structured elite interviews was conducted with European Commission officials
responsible for evaluation at the Directorates General (DG) for Enlargement, and for Regional Policy, as well as evaluators working on the evaluation of the pre-accession programme, “PHARE.” Thirdly, a questionnaire was distributed to relevant stakeholders
involved with the evaluation process in Bulgaria and Romania, such as representatives
from the national evaluation units and members of the European Commission Delegations. This questionnaire also served as an interview guide. In terms of the people targeted for the interviews and questionnaires, in view of the technical and specialised nature
of the subject, an elite approach was taken whereby only specialists in the field were contacted. Similarly, the actors within the Commission who are the most operationally involved in evaluation matters in Bulgaria and Romania are those from DG Enlargement
and DG Regional Policy, and therefore members of their evaluation units were targeted.
Appendix 1 shows the typology used for the definition and measurement of the dependent and independent variables. The results are presented below.
4.1 Pre-accession Programmes: An Introduction to Evaluation
Prior to the start of the accession process and the introduction of the pre-accession
programmes, evaluation was not a systematically used management tool in the Governments or public administrations of Bulgaria and Romania. Although there was a strong
tradition of reporting in both countries, the concept of evaluation as a “learning” mechanism210 was not a familiar one. There was also little demand for evaluation from either the
executive or legislative branches of government. Consequently, the institutional apparatus and culture of evaluation was largely missing.
4.1.1 Evaluation Demand
Demand for evaluation was created formally through the introduction of the PHARE,
ISPA and SAPPARD programmes, and the associated conditionality with this funding.
The monitoring and evaluation of activities are specified in Article 8 of the PHARE Regulation.211 Article 27 of the EU’s financial regulation212 stipulates that all EU programme expenditure must be subject to monitoring and evaluation. Chapter 28 of the community
acquis, referring to financial control obligations, specifies the need, among other things, to
perform ex-ante, ongoing and ex-post evaluations of all EU expenditure. Therefore, with
the introduction of pre-accession assistance in Bulgaria and Romania came these additional responsibilities.
210
Chelimsky.
European Commission Interim Evaluation Guide, 2004.
212
COM (2002), p. 12.
211
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This formal demand is also complemented by responses in both interviews and questionnaires (see Figure 1) that identified the accession process as being the most significant
factor in the establishment of an evaluation function. The next most significant factor was
considered to be internal demand for improved decision-making, followed by demand
from national parliament. Although there was one respondent in Romania who identified
EU accession as least important, this does not fit with the legal and institutional structures
surrounding evaluation in this country. Nor does it explain why evaluation was initially
only associated with the EU funds, and not the national budget.
Bulgaria
Romania
Figure 1: Factors Influencing the Development of an Evaluation Function in Bulgaria and
Romania
Least
Important
Less
Important
Most
important
Least
Important
Less
Important
Most
important
Internal Demand for improved
decision-making information
Demand from national
Parliament
EU Accession
4.1.2 Pre-accession Evaluation Structures
A gradual decentralisation of monitoring and evaluation activities took place during
the pre-accession period. This started with the delegation of monitoring responsibilities as
part of the decentralised implementation system (DIS).213 The National Aid Coordinator
214
(NAC) structures took over the responsibility for monitoring under the guiding framework of the Joint Monitoring Committee (JMC) System. This system was established in
2000/2001215 for the purpose of “supervising the progress of EU-funded assistance programmes (PHARE, ISPA and SAPARD) towards their objectives and coordinating their
activities.”216 Meeting once a year, the JMC was responsible for proposing corrective actions regarding the activities, management, and technical and financial aspects of programmes; reallocations of funds within programmes; and revision of contracting and
217
A number of monitoring sub-committees
disbursement periods for specific projects.
(SMSC) were required to report to the JMC and to provide information at the sector level.
These SMSCs were also key sources of data for the evaluation exercise, and acted as forums for the discussion of evaluation results. According to the interviewees, these structures provided an initial exposure to the practice of evaluation for many of the members of
213
COM (2006).
These bodies were established in Bulgaria and Romania in the late 1990s as central coordinators of
external assistance. The Management of EU Funds Directorate at the Ministry of Finance is the interlocutor
in Bulgaria and in Romania, the Managing Authority for Community Support Framework at the Ministry of
Public Finance.
215
The JMC system was formalised by an official mandate on 4 July 2002.
216
JMC Mandate, COM (2002), p. 1.
217
Ibid.
214
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the public administrations. Numerous of the programme and project managers within
218
implementing authorities and line ministries participated in the evaluation exercises (often through interviews or by commenting on draft reports), and therefore also gained a
perspective on the role of evaluation within the programme cycle.
As the evaluation function was managed by the EC in Brussels, and external contractors conducted the evaluation work, there were very few budgetary incentives for departments to initiate evaluation activities. Similarly, the lack of formal evaluation
competence outside of the contact units at the Ministries of Finance meant that there were
few possibilities to pursue work in the area of evaluation within the public administrations. This is set to change with both countries about to receive Extended Decentralised
Implementation System (EDIS) accreditation, which will give them responsibility for the
ex-ante control of the programmes, as well as their interim evaluation.219 For both countries, this decentralisation will represent a first experience in the management of an
evaluation function. Both national evaluation units will have to organise and contract independent contractors to undertake the evaluation of the remainder of the pre-accession
programmes. This is in many ways a stepping-stone towards the responsibilities that they
will assume on accession regarding the evaluation of the Structural Funds.
4.1.3 Monitoring Information Systems and Indicator Measurement
Good quality data and adequate monitoring systems are fundamental to a well functioning evaluation process. Various attempts have been made to establish monitoring information systems for the pre-accession funds in Bulgaria and Romania. Despite the fact
that systems were introduced, there were, and there remain, problems with their application at many levels. While the basic financial monitoring of allocation and disbursement
figures tends to be adequate, there has been a lack of systematic monitoring of predetermined indicators. Thus, systems have often been designed without the basic building blocks consisting of the precise definition of the types and level of information required. In addition, there has not been sufficient attention paid to assuring that roles are
allocated within project units for the systematic completion of monitoring information. As
a consequence, monitoring has often been an ad-hoc activity overly reliant on process description as opposed to result measurement based on indicators. This is an area that will
require significant improvement under the Structural Funds. In particular, there will be a
need to adapt the systems in order to cope with monitoring at the more strategic Operational Programme level.
4.1.4 Evaluation Capacity-Building Activities
Both the Bulgarian and Romanian public administrations have received support in
order to assist them in building their monitoring and evaluation capacities predominantly
for specific programmes such as PHARE and Structural Funds, but also for national purposes.
Most capacity-building activities were delivered through the medium of training
seminars and workshops, provided within the context of the interim evaluation exercise
and financed by the Commission. However, specific twinning and technical assistance
projects also provided more long-term assistance.
218
Over 70 sectoral interim evaluations and two ex-post evaluations have taken place in Bulgaria and
Romania since 2001.
219
COM (2006).
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Bulgaria has directed the majority of its assistance towards the pre-accession programmes (see Figure 2), perhaps unsurprisingly as preparations for EDIS have been a key
concern in the lead up to accession. Romania, on the other hand, has been slightly more
forward thinking in focusing much of its capacity-building preparations on the Structural
Funds.
Figure 2: Direction of Capacity-Building Assistance
100%
80%
60%
BG
70%
RO
40%
20%
49%
40%
25%
5%
7%
4%
0%
Pre-accession
Structural Funds
National Funds
Other
As well as the formal training workshops and seminars, and twinning and technical
assistance projects, there has also been considerable know-how transfer from the evaluation unit at DG Enlargement (this could be considered as the informal conditionality), as
well as the external evaluators. In addition to the exposure given to evaluation through
the involvement of sectoral line ministries in the evaluation process, the external evaluator, in collaboration with the NAC services, at the instruction of the DG Enlargement
evaluation unit, embarked on a shadowing process. In Bulgaria, two staff from the NAC
services shadowed evaluators on an interim evaluation of the economic development sector. In addition, the leader of the external evaluation team is engaging in regular meetings
with the heads of the SMSC Secretariats in order to explain the purpose of the interim
evaluation reports, and how they fit in with their monitoring work. In Romania, staff
from the NAC services were seconded to the external evaluation team to shadow the production of an evaluation of the economic and social cohesion sector.
In both cases, external evaluators have worked in cooperation with twinning and
technical assistance partners in order to ensure a coordinated approach to the know-how
transfer exercises. Respondents to the questionnaire and interviews were also satisfied
that the different capacity-building activities were delivering consistent messages (see
Figure 3).
VOL. 3, NO. 1 – JUNE 2007
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Figure 3: Capacity-Building Activities Provided Consistent Advice Contributing Towards
the Development of a National Evaluation Capacity
100%
80%
60%
80%
Bulgaria
67%
Romania
40%
33%
20%
20%
0%
Strongly
agree
Agree
Unsure
Disagree
Strongly
disagree
4.1.5 Involvement within Evaluation Networks
The Evaluation Advisory Group, initiated in 2002 has been the primary networking
structure in place during the pre-accession process.220 It was established in order to provide a forum for exchanging good practices between Member States and Candidate Countries in developing monitoring and evaluation capacity. It had three, key objectives.
Firstly, to promote the development of medium-term National Strategies for building local
monitoring and evaluation capacities (which would also cover the national public funds).
Secondly, to support candidate countries (via exchange of experience) in their preparation
of draft short-term Action Plans for development of local monitoring and evaluation capacities, within the framework of decentralisation of monitoring and evaluation. Thirdly,
to prepare a Guide to Good Practices in Monitoring and Evaluation Capacity Building, including national strategies, monitoring and evaluation models, capacity building strategies, and means to boost monitoring and evaluation capacity.221
Bulgaria and Romania participated in this advisory group, which was successful in
opening doors for communication and learning with the Member States. However, in
terms of the achievement of the first two fairly ambitious objectives, the group appears to
have had little impact. The group was initiated in 2002, and the beginnings of evaluation
strategies are only now starting to emerge. It would seem that the spark for activities in
the area of evaluation strategy development derive more from the approaching accession
deadline than from the activities of the group. Once Bulgaria and Romania become members of the EU, their respective central evaluation units will become members of the DG
Regional Policy evaluation network, where they will be able to benefit from Member State
experiences of Structural Fund evaluation. In addition, the evaluation unit in Romania intends to become a member of the European Evaluation Society, which has a large membership including governments from all over the EU as well a number of professional
organisations.
4.2 The Potential for the Institutionalisation Through European Structural Funds
Despite helping to raise the profile of evaluation, it is hard to say that evaluation has
been institutionalised through the management and implementation of the pre-accession
programmes. The Structural Funds, although still in a preparatory phase in Bulgaria and
Romania have the potential to consolidate the experience gained during the accession
220
221
EMS (2004).
Ibid.
INTERNATIONAL PUBLIC POLICY REVIEW
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process and embed evaluation in a wider institutional and organisational context. Given
the huge budgets associated with the Structural Funds, providing 336.1 billion Euros for
222
the 2007-2013 programming period, they represent an extremely significant influence on
the institutional and organisational structures of recipient countries.
4.2.1 Evaluation Demand
Similar to the pre-accession funds, the demand for evaluation in the framework of the
Structural Funds comes from the EU conditionality associated with this funding. The
Structural Funds Regulation223 sets out specific requirements in the field of monitoring (Articles 62-65) and evaluation (Articles 45-47). In this respect, Bulgaria and Romania will
take over the responsibility for both ex-ante and mid-term evaluation of the National Strategic Reference Framework (NSRF)224 and Operational Programmes (OP),225 while the remit
of ex-post evaluation remains with the EC.
In Bulgaria, Council of Ministers Decisions for the appointment of a central coordinating unit, Structural Fund Managing Authorities, and intermediate bodies are currently
under approval. These decisions refer to the monitoring and evaluation of both the National Strategic Reference Framework and the Operational Programmes. In Romania, the
Managing Authority for the NSRF was set up at the Ministry of Public Finance through
Government Decision 403/3004. 226 This decision assigns responsibility for the evaluation
function to each managing authority, as well as the central coordinating unit.
4.2.2 Evaluation Structures for the Structural Funds
There have been a number of capacity-building initiatives that have taken place during the pre-accession period (outlined in the previous section above). It is generally felt
that these activities, and the capacity that was built up under these structures, will form
the basis for future evaluation activities (see Figure 4).
222
This budget refers to all countries in the EU; however, 78% of this is allocated under the “convergence” objective the majority of which, since the recent enlargement, has shifted east towards the new Member States (COM 2004, p. 22).
223
COM (2004).
224
The strategy document ensures that Community structural aid is consistent with the Community
strategic guidelines, and identifies the link between Community priorities, on the one hand, and national
and regional priorities in order to promote sustainable development, and the national action plan on employment, on the other hand (COM 2004, p. 33).
225
Operational programmes are targeted towards one of the Structural Fund objectives and usually
address sectoral issues.
226
H. Curley and E. Perianu, “Assessment of the Evaluation Culture in Romania,” project document
for Technical Assistance for Programming, Monitoring and Evaluation, Romania: RO 2003/005-551.03.03.04
(2006).
VOL. 3, NO. 1 – JUNE 2007
63
Figure 4: Evaluation Capacity Built Up During Pre-accession Process Will Form the Basis for the
Evaluation Function of the Structural and National Funds
100%
80%
60%
Bulgaria
60%
Romania
40%
20%
0%
33%
33%
20%
20%
Strongly
33%
Agree
Unsure
Disagree
Strongly
However, unlike the evaluation system under the pre-accession funds, the Structural
Fund evaluation will be predominantly delegated to the various managing authorities, but
will be co-ordinated by central bodies within the Ministries of Finance, which remain the
main evaluation structures within Bulgaria and Romania. Therefore, each of these authorities will have to set up the appropriate evaluation structures, including monitoring
committees, and will be responsible for overseeing the progress towards reaching the objectives of the operational programmes.
Within the Structural Funds Budget, there is a “technical assistance” allocation,
which can be used to finance the preparatory, monitoring, administrative and technical
support, evaluation, audit, and inspection measures that are specified in the Structural
Funds Regulation.227 This is likely to give the authorities concerned a considerable incentive to develop both the monitoring and evaluation functions not only at the central level,
but also within the sectoral managing authorities concerned. This financial commitment
will help to place evaluation as a permanent fixture on the organisational charts of the
managing authorities, thus creating new hubs for career development in this area. It can
therefore be seen that demand for evaluation under the Structural Funds will be more
widespread than under the pre-accession system.
4.2.3 The Local Evaluation Market
The sustained budget and timescale of the Structural Funds and the concomitant requirement for evaluation has the potential to spark the development of a local market for
evaluation services. A local professional community in this area is yet to be established,
mainly because of the lack of demand for external evaluation from the administrations in
Bulgaria and Romania. However, this is also due to the centralised nature of the evaluation of the pre-accession funds that have been managed by the EC in Brussels.
With the Bulgarian and Romanian public administrations taking on the responsibility
of evaluation and being given considerable scope to shape these functions to suit their national contexts, there could be an increased demand for local evaluators who can respond
to local needs. However, this process may take some time, as evaluation is a specialised
subject area, involving complex methodologies combined with a specialised knowledge of
a variety of policy fields. This raises the importance of involving the academic sector in
the development of evaluation capacity, as well as establishing professional bodies such as
227
COM (2004).
INTERNATIONAL PUBLIC POLICY REVIEW
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national evaluation societies that can disseminate best practice guidelines, and provide a
mechanism for communication between both public and private evaluation professionals.
4.3 Impact Beyond EU Programmes: Moving Towards an Evaluation Culture?
The two chapters above have identified both the pre-accession funds and the EU
Structural Funds as being key drivers of evaluation in Bulgaria and Romania. Whilst the
pre-accession funds acted as an introduction to evaluation, the forthcoming Structural
Funds hold the potential to embed evaluation within a wider and more sustainable
framework. The institutional and organisational changes have largely been made to accommodate the EU regulations, and progress has been made in terms of the development
of information systems and the creation of human capacity for evaluation. However, these
structures relate predominantly to the EU funding mechanisms, and the demand would
appear, at least in the first instance, to be largely external. Therefore, has there been any
impact beyond the EU funds in terms of evaluation demand and capacity?
The answer to this question is largely mixed. In Bulgaria, the acting legislation concerning management of public investments stipulates requirements for good financial
governance in the public sector and for compliance with the principles of effectiveness and
efficiency. Additionally, it outlines requirements for the introduction of uniform rules in
planning and management of investments (EU and international standards for project
management), irrespective of the origin of funding. Despite this, however, there is little
evidence that evaluation is applied systematically to national programmes and policies.
Bulgaria is yet to develop a national evaluation strategy, and the efforts of the evaluation
unit are currently consumed with preparations for the decentralization of the evaluation of
PHARE in the short term, as well as preparations for the evaluation of the Structural
Funds in the medium term.
In Romania, there seems to be mounting interest in evaluation from a number of different parties. A national strategy for evaluation is currently under development, which
will address not only the evaluation of the EU budget, but also ways in which the EU
practices can be incorporated into the national system. In a recent assessment of Romanian
evaluation culture, the authors observed that there are a number of parties driving the
evaluation process within the country.228 These include the General Secretariat of the Government (in a bid to improve the public planning policy process); the Ministry of Public
Finance (in order to implement the Single Action Plan); the Chancellery of the Prime Minister (looking to improve economic forecasting and planning); the Parliament (looking to
improve the ex-ante analysis of legislation); and finally the Supreme Audit body (looking
to expand its role from purely financial auditing to a performance audit role including
evaluation questions). Despite this interest, as things stand, a formal legal framework
making evaluation a compulsory exercise is still lacking.
As Toulemonde states, evaluation pursues “different paths in a movement towards
229
Therefore, it should not be expected that there is a fixed route towards
maturity.”
achieving evaluation capacity and the panacea of evaluation culture. Both countries are
just starting their journeys as Member States. Considering that for the majority of current
Member States evaluation was only truly institutionalised after several years of Structural
Funds implementation, it seems too early to make definite judgements on how the process
of membership has impacted upon them in this respect. Hyatt notes that the evaluation of
228
229
Curley and Perianu.
Toulemonde, p. 10.
VOL. 3, NO. 1 – JUNE 2007
65
EU funds tends to be very focused on accountability,230 which strongly shapes how countries in CEE see it. Therefore, in order for a broader evaluation culture to take hold, it will
be necessary for administrations to design their own, purpose-built evaluations, which reflect more of a learning perspective and less of a bureaucratic, procedural approach. Both
Bulgaria and Romania are showing signs that evaluation is becoming more than just an
external obligation. The language of evaluation is being increasingly used, and its value as
a management tool is becoming more evident. However, it remains to be seen whether
this talk will be translated into national policy. For the time being, the fact remains that
the key driver of evaluation is the EU.
5. CONCLUSIONS
This paper concludes that the accession process has been significant in terms of the
establishment of evaluation capacity in Bulgaria and Romania. It has argued that the concept and vocabulary of evaluation were initially introduced to these countries through the
pre-accession programmes. Furthermore, preparations for the implementation and management of the Structural Funds helped to embed these principles. These processes have
been strongly guided through the use of institutional and organisational templates, technical assistance and twinning support as well as training and development. EU formal
conditionality has been a key feature in this process, underpinning institutional and organisational changes.
Although a number of changes have taken place in the area of evaluation, they remain largely associated with the EU funding process. In this respect, steps are being
taken, and strategies are being put in place to introduce systematic evaluation of EU funding. However, what remains to be seen is whether the principles embedded in the management of the EU budget will be embraced and systematically introduced into
mechanisms at the national policy level. This is largely dependent on the extent to which
the norms and values of evaluation are embraced, and the extent to which demand for
transparency and accountability is generated internally rather than externally.
Evaluation, as it stands, is rather mechanistic and bureaucratic, and until the association of evaluation with external control and compliance is removed, there is unlikely to be
a deeper-rooted evaluation culture established. Given the increased autonomy of the Bulgarian and Romanian public administrations in the area of evaluation ensuing accession,
there is likely to be a move away from this rigid approach and towards more tailored exercises that fit the needs of the local institutions concerned. It may, however, take some
time to assess the overall impact of this change in governance, and to assess the degree to
which the norms and values of evaluation have been embraced. Clear lessons can be
drawn from this example concerning the promotion of evaluation as good governance
through the provision of financial and technical assistance.
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Utilization of evaluation results
Institutionalisation of evaluation
Know-how transfer and integration within EU networks
Capacity for management
and conduct of evaluation
Supply of evaluation/Organisational factors
Demand for evaluation/Institutional Factors
Research Issue
IV13: incorporation of EU evaluation norms in to national systems and structures – establishment of an evaluation culture
IV 14: Evidence of the systematic implementation of evaluation
recommendations
IV12: Membership and interaction within European evaluation
networks
IV11: Development of a strategic framework for evaluation
IV10: Development of systems and procedures relating to the
management of the evaluation function
IV9: Evaluation training and capacity-building activities
IV8: Allocation of human resources for evaluation purposes
IV7: Local market expertise in the area of evaluation – presence
of a professional community
IV6: Monitoring information systems, supply of data for indicator measurement
IV5: Monitoring and evaluation structures such as Committees
IV4: Organisational changes relating to monitoring and evaluation
IV3: Career incentives
IV2: Budgetary incentives
Independent Variable
IV1: Legal basis for evaluation
National evaluation strategies, national legislative framework,
interviews
Interviews, report on the implementation of evaluation recommendations
Interviews, questions 3 and 4 in questionnaire, national strategies
Interviews, questions 18 and 19 in questionnaire.
National evaluation strategies, interviews, question 12 in questionnaire.
Interviews, questions 10- 17 of questionnaire.
Interviews. Question 20 and 24 in questionnaire.
Human resource plan, national evaluation strategies, national
and EU budgets. Question 25 in questionnaire.
Interviews, national evaluation strategies, question 21, 22 and
23 in questionnaire.
EU evaluation guidelines/mandates. Evaluation strategies,
questions 8 and 9 in questionnaire. Interviews. Report on the
functioning of the JMC system.
National evaluation strategies
EU evaluation guidelines, national evaluation strategies/action
plans/procedures. Question 5- 7 in questionnaire. Interviews.
EU assistance and national budgets
Information sources
EU and national directives and regulations.
Question 1 in questionnaire.
Appendix 1: Independent Variable Typology
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