Advisory letter 13: An Ombudsman for Development Cooperation

March 17, 2008 - nr.13
Summary
Advice request

F. Korthals Altes

Chairman of the

Advisory Council on International Affairs                       Effectiveness and Quality Department

Postbus 20061                                                          Bezuidenhoutseweg 67

2500 EB  Den Haag                                                   2594 AC  Den Haag

                                                          

 

 

Date                 30 August 2007

Reference         DEK/BA-123/07

Re                    Request for advice regarding the Ombudsman

 

 

Dear Mr Korthals Altes,

 

All societies have both official and traditional forms of conflict mediation. In Europe the prevailing traditional institution is the office of the ombudsman. The main characteristics of this institution are its autonomy and transparent methods. Whether or not an ombudsman's recommendations are binding depends on the situation, but the more binding they are the more they contribute to the institution’s authority.

 

In development cooperation, relationships between partner countries are governed by an array of agreements and procedures. But these are not relationships of equals: donors impose their will on their development partners, despite all the talk of ownership. It would attest to the maturity of relations between development partners if both were willing to be called to account regarding aspects of the relationship that are unclear, raise questions or even cause resentment. An ombudsman-like instrument could fill this gap but would need to be adapted to the requirements of intergovernmental relations.

 

Against this background, the government would ask the Advisory Council on International Affairs to issue an advisory letter on the desirability of establishing an instrument of this nature to introduce an element of mutual responsibility into relations between partner countries. You are requested to pay particular attention to the political aspects and potential implications of introducing such an instrument.

 

Questions

1.       What role would an instrument of this kind play in intergovernmental relations between partners?

A characteristic of the institution of ombudsman is its autonomy, which immediately raises the question of the parties’ sovereignty.

 

2.       If the Council sees added value in the instrument, how should it be structured?

 

I ask that the AIV present its advisory letter before the end of 2007.

 

Yours sincerely,

 

 

 

Bert Koenders

Minister for Development Cooperation

 

 

Government reactions

 

Mr F. Korthals Altes                                                    Effectiveness and Quality Department

Chairman of the Advisory Council                                  PO Box 20061  

on International Affairs                                                 2500 EB The Hague     

Postbus 20061                                                                                        

2500 EB Den Haag

 

Date                  31 March 2008

Reference           DEK/BA-013/08

Re                    Response to the AIV’s advisory letter

                        ‘An Ombudsman for Development Cooperation’

 

Dear Mr Korthals Altes,

 

I was greatly interested to read the Advisory Council on International Affairs’ advisory letter ‘An Ombudsman for Development Cooperation’.

 

I was pleased with the AIV’s positive recommendations concerning the establishment, subject to certain conditions, of an independent, external Ombudsman institution. Such a body should serve as an external complaints mechanism for the purpose of mediating and/or resolving disputes related to Dutch and, where possible, international development cooperation. My primary aim in this regard is to supplement and, if necessary, strengthen local accountability mechanisms.  

 

One of development cooperation’s defining characteristics is the abundance of local and international actors that are involved in implementing aid. When disputes arise, some aggrieved parties are unable to refer to underlying agreements or official bodies such as the National Ombudsman or the Human Rights Committee. I fully agree that the Paris Declaration should be placed at the centre of discussions with potentially aggrieved parties in such cases. The Declaration is, after all, a frame of reference for many countries and international organisations, in terms of shaping development cooperation policy and mutual accountability. The aim is to foster frequent discussions between donors and recipients about the importance of improving the effectiveness of aid and public finances. Developing countries are responsible for the effective implementation of national development policy, while donors need to commit themselves to aligning aid with national procedures more effectively and harmonising their activities. In joint financing arrangements too, such as those of the Nordic+ countries, the foundations for mutual cooperation and accountability have been laid. I consider the issue of mutual accountability, which is also on the agenda at the upcoming third High Level Forum on aid effectiveness in Accra in September 2008, to be particularly important. It is crucial, however, that local accountability structures in recipient countries are not undermined.

 

In its advisory letter the AIV proposes initiating a pilot with like-minded donors and sketches the broad contours within which a pilot to establish a multilateral Ombudsman should function. Given the complexity of the issue and the necessarily inconclusive nature of the AIV’s advice, the proposal requires further analysis in the short term, to more clearly identify the objective, the target group and potential partners, and (to) determine how to activate and operate the pilot. As explained below, I have already initiated this process, using the AIV's recommendations as a guideline.

 

An exploratory exercise

In practical terms there are different types of ombudsmen besides the National Ombudsman with whom we are familiar. The institution can have a formal or informal character, and the instruments associated with it are largely determined by the purpose for which it is established. Some ombudsmen serve primarily as alternative sources of conflict resolution, with a focus on protecting diverse interests and preventing complaints in the future. Such ombudsmen generally favour confidential and impartial procedures. Others place a greater emphasis on establishing facts and making these public, while some mix elements of both these types. The nature of the ombudsman translates into its procedural framework and also determines, in part, the legal form it takes. Independence and a clear, sufficiently flexible mandate are the areas that warrant most attention in this regard. A further, related element is the degree to which it is possible to work on the basis of a Memorandum of Understanding, or whether a more formal type of agreement needs to be in place. Although it is not currently possible to provide a definitive answer to that question, we will work on the assumption that a treaty will be necessary if the Ombudsman’s independence becomes more firmly and formally established.  

 

The Dutch National Ombudsman deals with complaints, from individuals, that relate to the performance or conduct of Dutch public authorities. Where specific Development Cooperation-related complaints are concerned, individuals can approach the National Ombudsman only if the performance of the Dutch authorities is at issue. The Office is, however, not authorised to intervene in relationships in which other states, donor states or intergovernmental organisations are involved. A multilateral Ombudsman institution, defined as an arrangement between two or more donor and recipient countries for hearing complaints by private parties, could have added value here. After all, the issue is the treatment of individuals in recipient countries insofar as it affects the activities of organisations, bodies or companies that work with the foreign ministry’s development cooperation resources or other resources in developing countries. It goes without saying that the added value a multilateral Ombudsman can provide will greatly depend on the manner in which it is used and the degree to which the recipient country cooperates. Furthermore, international initiatives should be aligned as closely as possible with local accountability structures.   

 

On the other hand, a multilateral Ombudsman would be less necessary if its purpose were to deal with complaints that result from the relationship between donor governments and recipient countries. Donors and recipients, after all, can approach each other on the basis of documentation that sets out the development cooperation relationship, financial or otherwise. For the purpose of settling legal disputes between countries, there are also special procedures which take sovereignty issues into account. The various consultative forums offer ways of breaking deadlocks and settling differences of opinion. In extreme cases, relations between governments can be severed.  


The Dutch context

A brief, initial inventory of complaints and objections procedures in Dutch development organisations reveals that various organisations already have their own mechanism in place, usually for partners with whom they work directly. At the same time, these organisations also bypass this mechanism to deal with numerous indirect complaints. There is no specific procedure for this.  

 

It is therefore too soon to claim that we have our own house completely in order. I do not yet have sufficient insight into whether it is desirable or feasible to make establishing a complaints mechanism mandatory for all organisations implementing development cooperation policy. This will determine how a complaints mechanism should be organised, as well as what associated competences and oversight will be required.

 

The international context

The multilateral Ombudsman could possibly contribute to the fulfilment of mutual accountability within the framework of the Paris Declaration. I am working to establish a pilot in at least one, and possibly more, partner countries. In the process I am looking for synergies with existing international initiatives in this area. Sufficient interest and involvement from donors and partner countries will be major factors in the success or failure of these efforts. 

 

Like-minded donors within the Nordic+ group are currently discussing how to make greater progress in achieving mutual accountability. Other points of reference include the work on mutual accountability being conducted by OECD/DAC in its Joint Venture on Managing for Development Results. Given the fact that the OECD/DAC project has encountered resistance in some countries to far-reaching new initiatives in this area, it would seem appropriate to first examine the possibilities for cooperation with the Nordic+ group.

 

In the coming period I plan to commission an independent study. I will inform you further of my progress in establishing a multilateral Ombudsman pilot before the end of 2008.

 

I have sent a copy of this letter to the Presidents of the House of Representatives and the Senate of the States General.

 

Yours sincerely,

 

(Signed)

 

Bert Koenders

Minister for Development Cooperation of the Kingdom of the Netherlands

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