International Norms in Human Rights Fact-Finding

In The Transformation of Human Rights Fact-Finding (Philip Alston and Sarah Knuckey, eds, 2016)

American University, WCL Research Paper No. 2017-07

Posted: 1 Nov 2016 Last revised: 21 Feb 2017

Diane Orentlicher

American University - Washington College of Law

Date Written: 2016

Abstract

Calls for human rights fact-finding to be governed by widely accepted standards are hardly new, but have been made with growing frequency in the past decade. During the same period, the human rights field has developed increasingly sophisticated fact-finding methodologies and generated a raft of guidelines, principles, and compilations of good practice for fact-finding endeavors. The parallel trends raise the questions of whether human rights fact-finding is indeed plagued by harmful deficiencies and, if so, whether the solution lies in further standard-setting or enforcement efforts.

These questions cannot usefully be addressed in general terms, as the answers turn on the type of institution undertaking fact-finding activities, the nature of its endeavor, and the uses to which its findings will be put. No one doubts, for example, that the investigative activities of a prosecutor examining human rights atrocities should be guided by well-established professional standards, such as those dealing with the chain of custody for physical evidence, protocols for conducting exhumations, and the like. Nor is there any question in principle - though, problematically, not yet in practice - that when a UN organ or official establishes a commission of inquiry (COI) to investigate serious violations of human rights and humanitarian law, it should consistently follow well-established standards to ensure the commission's independence, objectivity, competence, and effectiveness. Yet just as surely, the full panoply of rules governing criminal investigations or international COIs should not constrain monitoring activities undertaken by nongovernmental organizations (NGOs), governments, and intergovernmental organizations with a view to capturing early warnings of potential abuses.

This chapter focuses on an aspect of human rights fact-finding that has provoked particularly intense debate: whether fact-finding by NGOs should be governed by uniform methodological standards. As a foundation for this inquiry, I first consider the utility of standards governing human rights fact-finding undertaken by national commissions of inquiry (NCOIs). Clarifying why NCOIs with a human rights mandate are subject to international standards brings into sharper focus the reasons it is far less obvious that NGO fact-finding should be subject to uniform standards. As I argue in Section IV, the notion of uniform NGO standards is especially problematic when it comes to methodologies for establishing facts as opposed to standards in the form of guiding principles along the lines of "fact-finding" missions deployed by NGOs should be impartial and independent."

There are, as I will elaborate, significant grounds to doubt the premises underlying some writers' calls for NGOs to develop standardized methodologies. Equally important, the promulgation of "authoritative" methodological standards could imperil the internationally protected rights to freedom of association and expression. Moreover the exercise itself carries a high risk of privileging the methodologies developed by well-resourced Northern NGOs at the expense of equally valid approaches developed by NGOs in the Global South. But if attempts to formally constrain NGOs' fact-finding activities are misguided, there is a compelling case for developing a dedicated platform for NGOs to share best practices, as well as lessons learned from poor practices, and to access a wide range of fact - finding guidelines and manuals.

Keywords: human rights, fact-finding, non-governmental organizations

Suggested Citation

Orentlicher, Diane, International Norms in Human Rights Fact-Finding (2016). In The Transformation of Human Rights Fact-Finding (Philip Alston and Sarah Knuckey, eds, 2016); American University, WCL Research Paper No. 2017-07. Available at SSRN: https://ssrn.com/abstract=2859702

Diane Orentlicher (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Paper statistics

Abstract Views
106