Foreign assistance at home: increasing USAID accountability through victim participation rights in the foreign assistance act.

Author:Saxena, Shefali
Position:United States Agency for International Development
 
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The United States Agency for International Development (USAID) has been the chief arm of U.S. foreign assistance, dedicated to sustainable development in developing countries. However, in the aftermath of the Cold War, support for USAID waned, resulting in a loss of autonomy, structural integrity, and overall effectiveness. A troubling consequence of these internal problems has been the misappropriation of USAID funds, where local governments in developing countries have abused these contributions by using them for personal gain at the expense of their citizens' human rights. With reduced capacity and inadequate monitoring mechanisms, USAID has been unable to address these pressing human rights violations. Current victims do not have any means of domestic recourse, and this Note submits that it is USAID's duty to provide some form of redress. This Note proposes that Congress should amend the Foreign Assistance Act to include a private right of action for victims and their representatives to challenge USAID's actions. Such an amendment would be consistent with other U.S. agency practice, and more importantly, would comport with the U.S. ' and international community's commitment to addressing human rights abuses.

CONTENTS I. INTRODUCTION II. USAID'S BACKGROUND, PROBLEMS, AND RESULTING HUMAN RIGHTS VIOLATIONS A. Historical Problems with USAID and the Issue of Aid Effectiveness B. Human Rights Abuses Resulting from Misappropriated USAID Funds 1. Ethiopia 2. Vietnam C. Limitations in the FAA III. PRIVATE RIGHTS OF ACTION, STANDING, AND PUBLIC PARTICIPATION DOCTRINE IN ADMINISTRATIVE AGENCIES A. Statutory Rights and Standing Doctrine B. Public Interest Representation in U.S. Administrative Agencies C. Cases Under the Administrative Procedure Act D. Prudential Limitations and Third-Party Standing IV. VICTIM PARTICIPATION IN THE INTERNATIONAL CRIMINAL COURT V. THE ALIEN TORT STATUTE VI. THE FEDERAL TORT CLAIMS ACT VII. APPLICATION OF PUBLIC AND VICTIM PARTICIPATION DOCTRINE to USAID A. Absence of Redress for Victims of Misappropriated USAID Funding B. Regulatory Agencies as a Model for USAID C. Future Concerns and Long-term Changes VIII. CONCLUSION I. INTRODUCTION

The United States Agency for International Development (USAID) has faced several institutional and organizational problems since its inception in 1961, (1) but recently Human Rights Watch has highlighted an additional, growing concern. (2) USAID funding for projects in developing countries such as Ethiopia (3) and Vietnam (4) has been used to fuel egregious human rights abuses, either directly through projects implemented by USAID, or indirectly through politicization of USAID funds by local governments. While several proposals have been made to implement sweeping changes to USAID's structure, including more effective monitoring of USAID project funding, the suggested remedies do not truly address the underlying problems, have not been put into effect, and in any case, will likely take several years to enact. (5) Further, the few reforms that have been implemented--while helpful--do not ultimately target the fundamental issues that have led to human rights violations. (6)

The most alarming aspect of this problem is that there are currently no avenues of redress or accountability for victims of USAID funding. (7) There are no statutory schemes in the U.S. that can provide any form of recognition, let alone remedy, for these victims. (8) Compounding this issue, USAID is not only unaware of the conditions in these countries after funding has been delivered, but it also has inadequate means of rectifying this deficiency. Many proposed solutions center around a complete overhaul of USAID, which would take a significant amount of time and resources, while doing nothing to help current victims. The incremental internal changes now occurring within USAID similarly leave victims without a true remedy. Therefore, a more immediate solution is needed to address these victims' rights, while the underlying structural changes can be set in motion over the next several years.

This Note proposes an alternative solution that involves a limited amendment to USAID's mandate in the Foreign Assistance Act (FAA), (9) rather than a time-intensive reimagining of the entire statute.

Specifically, it argues that creating a private right of action within the FAA itself is the most effective means of giving victims a voice and an opportunity for redress until USAID can undergo the necessary structural changes that will prevent such abuses in the future. Such a right of action already exists in several U.S. administrative agencies, and Congress should extend that practice to USAID, especially given the nature of the human rights abuses. Further, the idea of victim and public participation in litigation has a long history in both American and international jurisprudence. Additionally, the creation of a private right of action will serve another function for USAID: it will have a monitoring effect so that USAID can become aware of the types of violations that are taking place. By allowing groups and NGOs that have the access and capability of reaching the areas where these violations are occurring to present a case, USAID would be made aware of issues and problems that they otherwise were incapable of realizing. Most importantly, such an amendment to the FAA would provide the only legal recourse for foreign victims of USAID funding, as no other statute or mechanism exists to achieve this purpose--in particular, the Alien Tort Statute (ATS) and Federal Tort Claims Act (FTCA) would not apply.

While the future of U.S. foreign assistance ultimately depends on comprehensive changes in USAID's structure and organization, a limited amendment to the FAA would be more expedient in addressing the immediate problem of human rights violations. However, because it is essentially USAID's institutional weaknesses that lead to the human rights abuses, a thorough assessment of these long-term problems and solutions through institutional reform is necessary to determine why such an amendment is comparably more efficient and effective. Further, the broader changes must also be considered to ultimately improve USAID's effectiveness and prevent further and future human rights abuses.

This Note analyzes the perennial problems afflicting USAID, the resultant human rights abuses, and possible solutions to address these issues. Part II provides the historical background and overview of USAID's institutional problems, as well as an examination of the human rights abuses in Ethiopia and Vietnam. Part III reviews the practice of public and victim participation in U.S. administrative agencies, including issues of standing to challenge administrative agency actions. Part IV looks to the rationale of the Victim Participation Clause in the Rome Statute for the International Criminal Court as guidance for creating similar rights in the FAA. Part V discusses the Alien Tort Statute and its limitations. Part VI briefly notes the limited scope of the Federal Tort Claims Act. Part VII provides an analysis of how public participation doctrine can be applied in the context of USAID and proposes the components of a statutory amendment to the FAA as well as potential long-term solutions to be considered in addition to the amendment. Part VIII concludes and summarizes the analysis.

  1. USAID'S BACKGROUND, PROBLEMS, AND RESULTING HUMAN RIGHTS VIOLATIONS

    1. Historical Problems with USAID and the Issue of Aid Effectiveness

      USAID is the primary administrative agency that oversees the delivery and implementation of development assistance programs overseas. (10) Congress mandated USAID through the FAA in 1961, and it has remained the principal development arm of the U.S. (11) While the U.S. has the highest disbursement levels of any other donor country, (12) with USAID supporting $17.8 billion in projects in 2013, (13) USAID faces a two-tier problem. The first tier relates to the underlying institutional issues that involve USAID's organization and structure. These fundamental problems lead to the second, more immediate tier of human rights violations that result from the misuse of USAID funding.

      The FAA was enacted "[t]o promote the foreign policy, security, and general welfare of the United States by assisting peoples of the world in their efforts toward economic development and internal and external security, and for other purposes." (14) These goals translate into U.S. foreign assistance program initiatives designed to "support U.S. national security and promote economic growth, poverty reduction, and humanitarian relief abroad." (15) During the Cold War, USAID enjoyed autonomy and considerable resources, and was on the whole effective in achieving its stated goals. (16) Specifically, USAID problem" in State, USAID Shortfalls, Stripes Central Blog (Aug. 23, 2010), http://www.stripes, com/blogs/stripes-central/stripes-central 1.8040/gates-congress-is-part-of-the-problem-in-state-usaid-shortfalls complemented the foreign influence of the State Department and Pentagon--USAID agents could more effectively address development issues because they had a greater integrated field presence in the target areas. (17) They were able to establish contacts and interactions in more remote cities with civil-society leaders, government officials, local legislative agencies, businessmen, and ministries, ensuring both the effectiveness and sustainability of development programs. (18)

      Following the Cold War, however, USAID underwent organizational changes that resulted in a loss of independence and the assumption of a subordinate role. (19) Because USAID was instituted in response to the Cold War, in the period after, several members of Congress no longer believed in its purpose. (20) USAID functions and budget were now under the aegis of the U.S. State Department, which made USAID's agenda secondary to the State Department's. (21) Upon...

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