Managing the 'Republic of NGOs': accountability and legitimation problems facing the UN cluster system.

• Author: Heath, J. Benton
• Position: Abstract through IV. Accountability, Legitimacy, and Institutional Design, p. 239-267

ABSTRACT

This Article critically assesses the crucial but troubled system for the coordination of international humanitarian assistance--the UN "cluster approach." Regardless of whether the cluster approach actually helps in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable because they ultimately fail to resolve the tension between humanitarian organizations' autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and peer review. Drawing on theories of network governance and experimentalism, this Article teases out the institutional and normative implications of such a model. In particular, this Article argues, the emerging turn toward peer review in the cluster approach would demand dramatic improvements to the system's inclusion of affected populations. This investigation may carry broader lessons for transnational networks and the study of accountability in global governance.

TABLE OF CONTENTS I. INTRODUCTION II. THE RISE OF THE UNITED NATIONS AS A HUMANITARIAN COORDINATOR III. THE POWER OF HUMANITARIAN COORDINATION: OPERATIONAL AND INSTITUTIONAL ASPECTS A. Trampling Diversity? Harmonization of Policy in the Clusters B. Problematizing Diversity: Variance Among Leaders IV. ACCOUNTABILITY, LEGITIMACY, AND INSTITUTIONAL DESIGN A. A Broad Approach to the Accountability of Networks B. Accountability as the Self-Justification of Institutions V. SUPERVISORY ACCOUNTABILITY IN THE UN HUMANITARIAN ARCHITECTURE A. Autonomy and Coordination as Constraints on Accountability B. Outlines of a Formal Supervisory Structure C. The Breakdown of the Formal Structure VI. THE PROMISES AND CHALLENGES OF PEER REVIEW IN THE CLUSTER SYSTEM A. Peer Review and the Autonomy-Coordination Tension B. Experimental Humanitarian Institutions: Sketching an Alternative Model 1. Active and Clear Rulemaking 2. Overcoming the Peer Monitoring Deficit 3. Reflexivity of Policy Making 4. Rethinking Hierarchy C. Participation as the Central Problem of a Reimagined System VII. CONCLUSION I. INTRODUCTION

The demand for improved coordination marks all contemporary discussions of humanitarian aid. (1) Three years after the devastating earthquake in Haiti, coordination failures take the blame for the interminable pace of the recovery effort. (2) Meanwhile, one observer has defined the "main problem" of aid delivery in rebel-held Syria as "the absence of coordination" between various local and foreign actors. (3) The lack of coordination can lead to wasted resources, needless suffering, or both. (4) As self-described humanitarian organizations continue to proliferate, and as the complexity of disaster response emerges as a growing concern, the need for sustained and reliable coordination mechanisms is both pressing and uncontestable. (5)

Institutions are emerging to meet this demand, and there is no shortage of coordination mechanisms in Haiti or any other disaster-ravaged nation. Chief among these mechanisms is the UN system for coordinating humanitarian operations, generally known as the "cluster approach." (6) Though no more than a loose network connecting autonomous organizations, the cluster approach may be understood as an institution in its own right, one that exercises substantial power in disaster-affected states. (7) Whatever its flaws, a coordination apparatus like the cluster system is the connective tissue that brings together various humanitarian actors, forming what some Haitians have derisively called the "Republic of NGOs." (8)

This Article critically assesses the power, accountability, and legitimation of a coordination network such as the cluster approach. (9) In so doing, it brackets the question of whether this system actually improves coordination, or how such improvement would be measured. (10) This Article explains that the cluster approach alters the realities of disaster response by assigning competences and leadership roles, setting policies, and channeling funding. Embedded within arguments regarding the accountability of this power structure are deeper questions concerning the legitimation of an institution such as the cluster approach. By identifying and interpreting emerging trends in this discourse, this Article draws out the normative choices that face the UN humanitarian architecture.

This Article argues that changes within the cluster approach are placing increasing stress on the inclusion of voices from vulnerable and disaster-affected communities. Voice is not a new concern for humanitarian actors. (11) But institutional developments within the cluster system, designed to ensure its accountability and legitimacy, raise the problem of voice and inclusion to a place of primacy, without necessarily solving it. As humanitarian actors begin to unlock the potential of the cluster system for decentralized learning and experimentation, the fate of that system will be increasingly bound to the question of how well it secures the effective participation of local populations.

Despite a renewed interest in disaster response law, (12) the institutions through which disaster response is operationalized remain understudied in the legal literature. (13) This deficit is at least partly attributable to the orthodox view of public international law in this area, which remains focused on rules of conduct and responsibility, rather than institutional structure. (14) But the intensive study of institutional design, and in particular the normative assessment of institutional structure, is a fundamental task in the history of public law. (15) The task of the public lawyer should be to draw out the normative implications of a particular practice through the careful and context-sensitive study of institutional structure and operations, not to develop policy prescriptions through the direct application of abstract theories. (16) In undertaking this approach, this Article aims to make a small contribution to the effort to reclaim the study of institutions for legal scholars.

The particular institution studied here is a relatively new invention. Though coordination is a persistent historical problem of humanitarianism, (17) the United Nations has emerged as a central player in humanitarian coordination largely in the past two decades. (18) In 2005, following the highly complex response to the Indian Ocean tsunami and the crisis in Darfur, a comprehensive review of the humanitarian system recommended the designation of lead agencies in areas where coordination was weak. (19) The next year, the Inter-Agency Standing Committee (LASC) finalized guidelines for such an approach, designating nine "cluster leads" in substantive areas where "there are clearly identified gaps in capacity." (20) The so-called cluster approach now claims to be the central method for coordinating humanitarian activity in countries experiencing overwhelming disasters. This system is the focus of this Article, though any future arrangement will have to confront problems similar to those described here, unless the realities of humanitarian institutions are dramatically altered.

This Article does four things. Following an introduction to the humanitarian system (Part II), it identifies a form of power defined as "institutional choice" and argues that the mere fact of assigning competences and tasks to one organization rather than another has practical consequences at all levels of action (Part III). Second, it relates the discourse of accountability in the cluster approach to the difficulties in controlling and correcting the effects of institutional choice. In the process, the Article sketches an approach to institutions that melds normative and conceptual inquiry with a detailed, practical focus on the actual design and workings of institutions (Part IV). Third, it applies that method to critique the vertical, hierarchical accountability structure that was designed for the cluster approach, demonstrating that the system's operation in practice has forced a confrontation with its normative shortcomings (Part V).

Fourth, this Article accepts the invitation, posed by some recent reports from practitioners and consultants, to reimagine the system for humanitarian coordination in terms of a horizontal accountability structure (Part...