In the present time, non-governmental organisations (NGOs) play an important role in international economic relations. They affect the international system by monitoring state performance or advocating new policy agendas. The work of NGOs focuses on a variety of fields, e.g. economy, human rights, development, and the environment. Their activities have also found a prominent place in the WTO (World Trade Organisation) and in the United Nations system. The recognition of NGO’s de facto (factual) influence in international relations and the absence of international regulation for their creation and activity are the reasons why it is particularly important to establish their de iure (legal) status in international economic law, including their rights and obligations. This is the main objective of this short paper.
Firstly, it is essential to provide a definition of NGO. The present article has chosen to adopt the following one. Taking into account the definitions provided by the OECD (Organisation for Economic Co-operation and Development), the ECOSOC (United Nations Economic and Social Council), and the COE (Council of Europe), Hobe (2010, p. 2) defines NGOs as “organisations founded by private individuals, which are independent from states, oriented towards the rule of law, pursue public rather than private goals, and possess minimal organisational structure”. Concerning their reach, one may further distinguish between national and international NGOs, depending on whether the goals and the organisational structure transcend national boundaries or not.
Secondly, it is necessary to describe their activities in international economic relations. As mentioned above, NGOs play important and varied roles. They are invited as observers to the meetings of global international economic organisations or to participate in side-debates. They are also admitted to present observations in state to state dispute settlements as amicus curiae (a person who is not one of the litigants but is interested in the issue, files a brief or participates in the argumentation of the case). An example of this is provided by the famous WTO’s US – Shrimp case in which the US attached to its appellant’s submission amicus curiae observations from three groups of NGOs (Oesch, 2014, p. 3; Qureschi & Evans, 1999, p. 200). These observations were accepted by the Appellate Body as part of the US submission. In a more general way, we can distinguish between the role of NGOs in the formation of new international law at international level, the role of NGOs in the creation of new international law at national level, and the international verification and monitoring function of NGOs.
2. NGO participation in the WTO
The increasingly active role of NGOs in dispute settlement proceedings can be seen as a consequence of the criticism on the working of the GATT (General Agreement on Tariffs and Trade), the WTO, particularly strong at the Seattle Ministerial Conference in 1999. This reason can also explain the readiness to allow the participation of NGOs in meetings and debates. A similar explanation is the one provided by Mehta (2001, p. 1-2). He argues that, because various interest groups feel that their governments do not adequately respect their interests internationally, there is a need to create a separate entity which advocates for those overlooked interests in the international community. The author also mentions the main arguments presented by the international community against NGO participation in the WTO. Firstly, it is argued that as the WTO is an inter-governmental body, NGOs cannot participate. In addition, some believe that NGOs should pressure the authorities in their own countries instead of acting in the international community. Finally, not all NGOs have the resources to maintain a delegation in Geneva, which is a barrier to the participation in the WTO.
These arguments do not seem to be verified. Participation of NGOs in the WTO process is not going to undermine the inter-governmental character of the WTO. It rather has the potential to enhance equity in the whole process, since NGOs enjoy a greater degree of freedom than many developing countries in today’s power game. They can be more vocal in furthering the interests of the ones in need, for example. Regarding the second argument against NGO participation, various interest groups are not able to influence their national officials regarding the need for NGOs. It can even be considered positive that – through their participation – there is an increased representation of the interests affected by the international decisions and the result would be a more democratic and fair process. It is also worth mentioning that some trans-border issues and interests are not well-represented by the states (precisely because of their nature) and NGO participation could be beneficial in this regard. Environmental concerns are clear examples. As for the last argument, it is true that some NGOs, to some extent, enjoy better opportunities than their counterparts. However, this cannot be used as an excuse to block such participation in general. Many NGOs are already present in Geneva, either directly or through their networks. Besides, many NGOs that have the resources sympathise with the interests pursued by the organisations that do not possess the same resources and act on them.
3. Problems of legitimacy
After this assessment of the role of NGOs in international economic relations, particularly in the WTO, it is important to analyse some additional problems arising from the mentioned participation, particularly whether there are legitimacy issues regarding NGOs. For this reason, it is worth asking: How representative are NGOs? How are they financed? Are there satisfactory checks and balances in terms of their increased lobbying power? These questions are complicated to answer due to the fact that NGOs are not transparent, consequently, it is difficult to precisely verify how their creation and activity is conducted and whose interests they ultimately pursue. It is also true that NGOs rarely possess a democratic mandate and their internal structures are often not resulting from democratic procedures. Nevertheless, this does not cause fundamental problems and represents no reason against their participation in international law-making and law enforcement.
Furthermore, it is evident that democratic and transparent structures – in contrast with states – cannot be expected from NGOs. Not even international governmental organisations can fulfil the democratic principle of states. For example, the European Union is frequently criticised for its lack of democracy. Nevertheless, the EU is recognised by the international community as a subject of law. Therefore, when observing organisations outside the states, one should rather concentrate on the participatory surrogates for democratic legitimacy, e.g. efficiency, transparency, accountability, and ex post (based on knowledge and retrospection of the) acceptance of public acts.
In addition, NGOs arguably represent the non-state sector and the specific interests of common concerns from the civil society’s point of view. So, according to Charnovitz (2006, p. 366-368) and the theory of output-legitimation (output legitimacy refers to the public assessment of the relevance and quality of the institution’s performance), the representation of the interests of a certain civil society is sufficient for legitimising NGOs. Consequently, even when NGOs cannot fulfil the democratic requirements expected from the states, they still represent civil society and contribute to a pluralistic organisation of global governance by representing their specific interests.
4. International regulation
NGOs are generally not regarded as subjects of international law. Their legal status is not determined by international but by national law. Nevertheless, some regulations can be found at the international level, which differ from area to area and from organisation to organisation. For example, within the United Nations (UN) system, Article 71 of the UN Charter establishes that the ECOSOC may make suitable arrangements for consultation with NGOs. The ECOSOC, therefore, is the organ responsible for granting NGOs formal access to the UN.
With regards to the accountability of NGOs specifically, cases like the Brent Spar incident in 1995 give rise to serious questions. In that particular case, Greenpeace acted on incorrect information and claimed that the dumping of the oil from a Shell platform into the North Sea posed an ecological threat to the region. This campaign resulted in a boycott against many of Shell’s products, which had a grave financial impact on the enterprise. Thus, the question of accountability is fundamental.
As the legal status of NGOs is determined by national law, they are – at least – accountable at the national level. At an international level, regulation concerning the accountability is very limited: ECOSOC Resolution 1996/31 of 25 July 1996 on the Consultative relationship between the United Nations and non-governmental organisations demands reports from such NGOs which possess consultative status every four years. Otherwise, their participatory status can be suspended or withdrawn, and the COE applies a similar system. However, a complete international accountability regime for the actions of NGOs is missing.
5. Legal status under international law
The ever-increasing role of NGOs raises the issue of their legal status under international law. Normally, subjects of international law are those that enjoy entitlements and may be obliged by international law. As such, the classical subjects of international law are states. Nevertheless, actors under international law include for example international governmental organisations and, arguably, individuals. The possibility of recognising subjects other than states was acknowledged by the International Court of Justice (ICJ) in the Reparation for Injuries Suffered in the Service of the United Nations case (Advisory Opinion of 11 April 1949). The ICJ stated that the “(…) subjects of the law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature may depend upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States”.
This approach was later expanded by the ICJ in the LaGrand case (Germany v. United States of America, 2001). Furthermore, the Special Rapporteur of the International Law Commission, Giorgio Gaja (First Report on Responsibility of International Organisations), concluded that the approach of the ICJ to acknowledge individuals as subjects of international law may lead the Court “to assert the legal personality even of non-governmental organisations”. Nevertheless, NGOs have not explicitly and generally been recognised as subjects of international law so far. Despite its name, the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations only created a system for the establishment of the legal personality of NGOs in national laws and did not recognise the international legal status as such. Moreover, there is no direct entitlement or obligation of NGOs under international law. However, considering their role in international law-making, it is quite probable that a change will take place in the near future.
Although the current entitlements are probably insufficient to accept the legal personality of all NGOs at the moment, it is somewhat reasonable to sustain that some NGOs, due to their role in our global system, should be regarded as partial subjects of international law. When NGOs work within a legal framework of an organ or an international governmental organisation, they are involved in the exercise of public authority as, for example, in the field of the protection of human rights. Then the de facto recognition of their (partial) legal subjectivity under international law should be acknowledged. Thus, with reference to the current level of the entitlements and obligations of NGOs under international law, it may be justified to award some of them the status of “partial legal subject”, depending on their involvement in the official work of the inter-governmental organisations.
The place of NGOs in international law is unclear. As it is well known, international law has evolved as a law solely shaped by states. This has the effect that governments are the most significant players in its formation and implementation. Recently, however, the number of the actors in the international system has increased and international NGOs have been acknowledged as having some legal status under international law, depending on their concrete role in international relations. International law is still based on states’ cooperation in inter-governmental organisations. Yet, one of the distinct features of the current era of globalisation is the growing importance of multinational enterprises and non-governmental entities in the international system. Perhaps, they should no longer be excluded from the circle of the subjects of international law in order for the establishment of concrete rights and duties under international law, as well as their international accountability. Indeed, explicit rules are needed to constitute the international accountability of NGOs, such as a legal regime of self-regulation or a system of regulation by the states. One possibility that seems particularly remarkable is the extension of the scope of the application of human rights rules to NGOs. All these propositions, however, may prove to be difficult to implement in practice. It is clear, though, that NGOs could only be held directly accountable for their actions under international law in case they receive subject status.
NGOs have influenced international economic relations and international economic law. They represent and support the interests of the civil society and make pluralistic global governance possible. NGOs thus represent society in the international system in the era of globalisation. They contribute to global governance as far as they are involved in the law-making and the implementation processes. Moreover, they may confront governments, trying to formulate a common international interest which has been neglected by the global community. The more international law allows NGOs to actively participate in the international law-making process, the closer they will get to achieving legal personality. This – as a necessary corollary – will strengthen their democratic legitimacy when articulating the interests of the civil society.
By Joana Gomes Beirao
This article was originally published in issue 6.2 of the magazine, which can be accessed here. All references used can be found at the end of that issue.