by C. ALIHUSAIN on NOVEMBER 9, 2010
Peace Palace Blog: NGO's in International Law
From a traditional point of view, International Public Law has been understood as a set of rules produced by states in order to regulate relations between them. Since the end of the Cold War, the role of NGOs in international law is growing in importance and their activities are reaching the remotest parts of the world.
In this blog, I will briefly discuss how NGOs have transformed international law as well as how they continue to contribute to the development of international law.
NGOs can best be described as ‘groups of persons or of societies, freely created by private initiative, that pursue an interest in matters that occur or transcend national borders and are not profit seeking.[1]
Since international NGO law does not exist, article 71 of the UN Charter has served as a legal basis for NGO activities. Article 71 of the UN Charter determines that NGOs can be granted consultative status by the UN Economic and Social Council (ECOSOC). These consultative norms underlying article 71 have influenced institutional developments in many other International Organizations as well.
For instance, The Organization of American States (OAS) adopted The Guidelines for the participation of Civil Society Organizations in OAS Activities in 1999. In 2001, the Constitutive Act of the African Union (AU) also called for the establishment of an advisory Economic, Social and Cultural Council composed of social and professional groups of the member states. [2] Over the years, such provisions made by International Organizations have caused an enormous rise of NGO participation in the international decision- making process. The practice of consulting NGO quickly became widespread and continues to expand. Even though article 71 of the UN Charter granted NGO consultative status in UN policymaking, the UN Security Council remained off- limits until 1997 when NGOs began to hold briefings with council members.
In 2004, the UN Security Council engaged in direct consultations with NGOs regarding the role of civil society in post-conflict peace building.[3] International Organizations like the World Bank and the International Monetary Fund (IMF) both provide limited opportunities for NGOs to participate. The WTO, on the other hand, continues to resist to formally adopting a NGO consultation process.
When it comes to exerting influence in the international law-making process, NGO typically initiate action by first encouraging states to codify international norms. Very often, this results in what legal scholars consider soft law which mainly consists of declarations and resolutions devoid of any legal force. [4] Since soft law is mostly declarative, not legally binding and therefore flexible, it enables NGO to easily interfere and gain influence. States are more willing to comply with international legal norms when the legal scope of their responsibility is small.[5]As a result, many NGOs strongly believe that these declarations of principle may serve as a legal basis for future ‘ hard law’ norms.[6] This has led many legal scholars to believe that NGOs played an important role in helping to make international law more responsive to the needs of the international community. [7] In a lecture, Rosalyn Higgins, former President of the International Court of Justice (ICJ) pointed to NGO demands as a “one phenomenon in the reformation in international law”. [8] “An aspect of that reformation is a change in the concept of international law, and in particular, in our notions of the identity of the users and beneficiaries of international law”. [9]
For many NGOs as well as intergovernmental organizations, obtaining even as little as informal political declarations is already a lot since these ‘ given words and statements’ may then be used and publicized in order to bring it in to more formal arenas and to eventually turn them into legally binding instruments. Once international norms have legal effect, NGOs continue to have a watchdog and monitoring role to play in order to ensure that these norms are applied in accordance with the spirit in which they were negotiated, or that they are interpreted in a way that is favorable to the enforcement of legal rights. [10] In this way, NGO’s help foster a universal legal conscience, a loyalty to and compliance with a certain set values. In the early 21st century, NGOs have become unavoidable participants in the emergence, drafting and monitoring of international norms. In addition, as the voice of international civil society, they have had a hand in humanizing international law to the general public.
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Footnotes
[1] S. Charnovitz , Nongovernmental Organizations and International Law, in Non State Actors and International Law (A. Bianchi Ed., p.350 (A. Bianchi Ed.,2009)
[2] S. Charnovitz , Nongovernmental Organizations and International Law, in Non State Actors and International Law (A. Bianchi Ed., p.350 (A. Bianchi Ed.,2009)
[3] http://www.globalpolicy.blog/; R.Wedgwood, Legal Personality and the Role of Non-Governmental Oraganizations in Non- State Actors as New Subjects of International Law, p. 27 (R.Hofmann Ed)
[4] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254
[5] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254
[6] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 254
[7] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy 207,211-215 (R. Rawlings Ed.,1997)
[8] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy207,211-215 (R. Rawlings Ed.,1997)
[9] Rosalyn Higgins, The Reformation in International Law, in Law, Society and Economy207,211-215 (R. Rawlings Ed.,1997)
[10] M. Törnquist-Chesnier, NGO and International Law, Journal of Human Rights, Vol 3, No 2 (2004), p. 258
Image: http://www.zunia.org/
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