Open Letter on a new HRW Report: Jonas Moberg writes to Human RIghts Watch

Here is a response from Jonas Moberg and the EITI Secretariat to Arvind Ganesan, Darcy Milburn and Lisa Misol at HRW.

Here is a response from Jonas Moberg and the EITI Secretariat to Arvind Ganesan, Darcy Milburn and Lisa Misol at Human Rights Watch, briefly commenting on the report that argues for incorporating human rights requirements more fully into the EITI Standard:

Dear Arvind, Darcy and Lisa, 

Thanks for sending us your report. I am again sorry for the delay in responding. Clare had asked me to respond and I have been away.

The report is interesting and we generally agree with its description of the EITI. We much appreciate the efforts made by Human Rights Watch to analyse and consider the human rights dimension of the EITI. We have made the report available on our website and we are sharing it with the new board committees (implementation and governance) that will be considering these issues. We will also put my response to you on the site. We agree on many of the aspects that the EITI has to address that you identify, such as implementation in Myanmar.

There are clearly many, important and complex links between the fight against corruption and the promotion of accountability and the respect for human rights. It is welcome that someone is discussing this in some detail.

We agree that human rights and accountability are linked. We agree that some basic human rights have to be respected for the EITI to be implemented in a meaningful way. As you write, “Transparency alone does not improve governance.” But to say “In short, transparency can be transformative in an environment where fundamental freedoms are respected because the combination of the two is what provides for accountability.” takes the argument a bit far. It implies that transparency will only lead to change in “free countries”. Transparency can still contribute to change in countries with relatively poor HR record.

I suspect that we also disagree about the extent to which the EITI should assess and address wider rights aspects. While some basic rights needs to be in place for transparency to improve governance, we have concerns about taking this too far. We may not agree about what kind of minimum human rights requirements need to be satisfied. With the EITI having its focus on the transparency and accountability dimensions, we find it better for the EITI to have relatively low minimum requirements for civil society to participate freely and fairly in the process. This for at least two reasons. Firstly, it may be more effective for the EITI to keep its focus and try to bring about change even in tricky countries. The EITI was in part designed to create a platform for change in countries where human rights standards are often below the desirable. If the situation is such that civil society is not able to participate, the EITI has clear rules and mechanisms for reviewing whether the country can continue to implement the standard. Secondly, it is not easy for something like the EITI to apply minimum standards for the active and free participation consistently. Some countries of course have prohibitive laws and regulations, but allow a relatively free participation in practice. In some other countries civil society has learnt what the government can accept and there is a high degree of carefulness and self-censorship by civil society groups.

To illustrate, we have on one hand seen examples of how human rights campaigning has found it relatively easy to focus on clear and unacceptable laws and regulations potentially restricting free and active participation and wishing the EITI not to accept implementation in such circumstances. On the other hand, in countries where civil society groups have carved out a niche and been skillful at knowing what they can push in countries otherwise characterized by unacceptable standards, there has been a tendency to welcome continued EITI implementation. The EITI has to ensure that it has a standard that can be implemented equitably, regardless of whether it is the legal framework or other actual practices that may cause concern.

Many of the changes to the EITI standard that were agreed at the global EITI conference in May came about to ensure that the transparency delivered through the EITI indeed does a better job in leading to accountability. I don’t agree that the references to civil society participation are reduced.  The provisions from the 2011 Rules are maintained. There are now all part of the sign-up, thus potentially even strengthening the requirements for admitting new candidates.

The evaluation and strategy review did not conclude that "more transparency through EITI did not lead to better governance". The evaluation highlighted the difficulties in measuring the impact, and noted that changes in several high level impact indicators were not yet discernible. A key message was that each implementing country (and the EITI at large) needs a clear set of objectives about how the EITI will harness a collaborative process and more transparency to strengthen governance. The new standard emphasizes this point, and empowers CSOs to put a much wider range of governance challenges on the table. This is a significant shift, and CSO will need support to realize the potential.

You conclude nicely that the “EITI is not designed to be a human rights initiative and we do not expect it to become one, but it cannot afford to ignore the broader rights environment.” We agree.

While I am not sure that I clearly see that a system of having some kind of trial conditionality before countries become candidates, there has arguably been too much focus on the “pass/fail” validationsystem as the sole measure of the quality of EITI implementation. Compliance with a set of minimum requirements may say very little about wider improvements (or a deterioration) in sector governance. We need tools other than validation that speak to the wider impact of the EITI. Again, we hope that the new standard will provide a better platform for more nuance and less focus on pass/fail compliance.  

I hope that we can soon continue the discussion. I also paste below a reply to Oxfam about Honduras, that touches on some relevant aspects.

Thanks and best wishes,