Participants in International Law-Making

2

Participants in International Law-Making

1. Introduction

The traditional statement of the sources of international law, the Statute of the International Court of Justice (ICJ), Article 38 (1) assumes states to be the primary actors in international law-making and gives no indication of the ways in which non-state entities impact upon this function. Although states enter into binding agreements with non-state entities, treaties are defined as legal agreements between states,¹ or between states and international organisations or international organisations inter se;² state practice and opinio juris are the constitutive elements of customary international law; general principles of law are gleaned from the domestic legal systems of states. In the traditional schema of sources the contribution of non-state actors is recognised only with respect to the subsidiary sources: the writings of publicists. As President of the ICJ, Judge Higgins, has put it: ‘States are, at this moment of history, still at the heart of the international legal system.’³ But focus solely on state actions gives a misleading picture of international law-making. Account must also be taken of the role and influence in multilateral law-making of the state-based intergovernmental organisations (IGOs) that are discussed in the following chapter. The present chapter considers the place in international law-making of other non-state actors, in particular those that are variously termed civil society, transnational advocacy networks,⁴ social movements,⁵ and in an institutionalised form, non-governmental organisations (NGOs). In general terms, such non-state actors have sought access to international governmental institutions and law-making processes to advance their own agendas. Their role must be considered in order to understand some of the political influences behind international law-making and some of the ways in which alliance with civil society enhances the profile of some apparently weaker states within international law-making arenas and diffuses centralised state power.

Past examples of non-state actors that have left their mark on the international legal system include mediaeval political structures, religious institutions, commercial enterprises such as the East India Company and other chartered bodies engaged in the colonial enterprise in its so-called informal era.⁶ Significant social movements have campaigned since at least the 18th century around such issues as the abolition of the trade and institutions of slavery, women’s suffrage, international peace and international workers’ rights. Some at least of their efforts resulted in significant changes in international law and practice. The International Committee of the Red Cross (ICRC) was founded in 1863 and its pre-eminent position in the formation and implementation of international humanitarian law is well known.

At the end of the 19th century the belief of non-governmental movements in international law as a powerful force for beneficial change was evidenced in the popular and church support for a permanent institution for international arbitration at the 1899 and 1907 Hague Peace Conferences.⁷ At the Hague Conferences non-governmental groups submitted petitions to the delegates and organised a salon as an informal meeting place between government delegates and groups and individuals.⁸ As another example of activity by non-state actors at this time, Charnowitz notes that the Convention Creating the International Institute of Agriculture, 1905, Article 9 provided for consultation with ‘international or other agricultural congresses or congresses of sciences applied to agriculture . . . ’.⁹ Civil society groups sought legal status even prior to the League of Nations¹⁰ and many groups became actively involved with the League,¹¹ seeking cooperation and demanding international law reform with respect to issues such as the nationality of married women¹² and human trafficking. The Constitution of the International Labour Organisation provided for the participation of employers’ and workers’ organisations at its meetings, including with voting rights.¹³ Similarly, the determination of primarily American NGOs at San Francisco resulted in the adoption of human rights articles within the UN Charter,¹⁴ paving the way for the growth of international human rights law.

Civil society’s impact on international affairs was given further impetus by the populist movements that grew up in Eastern Europe after the Helsinki Final Act, 1975 which sculpted the political space to challenge the communist regimes. Peoples’ movements have brought down governments in countries as diverse as Iran, Nicaragua, the Philippines, South Africa and Ukraine. The end of the cold war, the removal of oppressive regimes in states in Central and South America, Asia and Africa and demands for some form of accountability for the human rights violations of such regimes all contributed to what has been claimed as an emergent international legal entitlement to democratic rule.¹⁵ It has been argued that bringing civil society movements into the state-centric system of international law has itself been part of this democratisation trend.

Scholars from different theoretical perspectives have acknowledged the broad range of participants in the contemporary processes of international law-making. For example, among modern positivists Bruno Simma and Andreas Paulus recognise that ‘[o]ther actors than states are assuming growing importance: intergovernmental organizations, as well as nongovernmental organizations, global economic players and the global media’.¹⁶ From the New Haven school, Michael Reisman asserts the importance of actors who lack formal law-making competence but who nevertheless influence decisions, including IGOs, NGOs, pressure groups, interest groups, gangs and individuals.¹⁷ Harold Koh describes the transnational legal process as involving a range of public and private actors, including nation states, international organisations, multinational enterprises, non-governmental organisations and private individuals that interact in a ‘variety of public and private, domestic and international fora to make, interpret, internalize, and enforce rules of transnational law’.¹⁸

It is apparent that transnational non-governmental bodies have never and still do not form a homogeneous grouping. Non-state actors today encompass inter alia sub-state entities and entities denied statehood, national and international issue-based NGOs, individuals, ‘kitchen-tablers’,¹⁹ the corporate and business sector, shareholders, churches and religious groupings, trade unions and employees, academics, think tanks, consumer groups, para-military forces, professional associations, including those of judges, lawyers, parliamentarians and law enforcement agencies, expert communities, sport associations and criminal and terrorist organisations.

The range and diversity of non-state actors make it impossible to do more than generalise about their law-making activities. Nevertheless there is little doubt that various non-state actors contribute in different ways to the emergence of international norms.²⁰ The exponential growth in their numbers throughout the twentieth century means that this influence is likely to become greater.²¹ So too do the information technology and electronic communications that have made global networking immeasurably easier to create and to maintain.²² Debates are conducted in the public arena of the web as individuals and organisations across many countries exchange information instantaneously and mobilise an inestimable audience while controlling costs. People who cannot attend meetings can participate and present their views. The collapse of obstacles of time and space brought about by the information revolution has played a significant if unmeasured role in enhancing input by non-state actors into international law-making.²³ It must also be remembered that the advantages of technology are also used by those seeking to destroy the international legal order such as terrorist organisations.

What is more problematic is to determine empirically the precise role of such bodies in international law-making: do they act as little more than a catalyst to traditional forms of state law-making or can they be accurately described as free-standing participants in international law-making? Are their activities primarily lobbying and campaigning or can they be appropriately termed law-making?²⁴ Do they represent a paradigm shift away from a state-centric model of international law-making? Further questions follow relating to the desirability, legitimacy and accountability of such bodies: does their participation in law-making processes constitute a desirable democratisation of international legal processes, or a new form of legal imperialism?²⁵

We consider these questions in this chapter. We examine first the distinctive position of some different entities with respect to participation in law-making processes and then in more detail one form of non-state actor, international NGOs. In Chapter 4 we discuss the work of non-governmental associations formed in the late 19th century explicitly for the purpose of promoting international law through codification-like processes, notably the International Law Association and the Institut de Droit International.²⁶ These professional associations are somewhat different from both ‘social justice’ NGOs that seek to make international law advance their agendas within special issue areas, such as human rights, the environment and disarmament, and from business oriented non-state entities. We discuss the definition of an NGO, their different roles and their access to IGOs, in particular whether NGOs have a right to participate in IGO processes and whether such participation enhances the legitimacy of international law-making. We then look at NGO participation in various state law-making processes: treaty-making (including case studies), law-making through institutional resolutions and global summits, and advocacy within national, regional and international tribunals. Where state processes are inadequate or do not exist, NGOs have developed their own. We discuss one such example, that is Peoples’ Tribunals. We conclude with an overview of the relationship between NGOs and IGOs and an assessment of the contribution of the former to international law-making.

We single out NGOs for greater attention because they alone among civil society actors are given international legal status by the UN Charter. Article 71 provides that the Economic and Social Council (ECOSOC) ‘may make arrangements for consultation with non-governmental organizations which are concerned with matters within its competence’. NGOs have used this consultative status to demand access to the law-making activities of international institutions. Indeed a symbiotic relationship has developed between NGOs and IGOs: IGOs acquire some additional legitimacy from the participation of NGOs in their processes while NGOs can point to this participation as evidence of their status and the importance of their activities—a matter of considerable interest to donors. This mutually reinforcing relationship is recognised by the fact that ongoing proposals for UN reform include strengthening NGO participation.

2. Non-state Actors and Law-Making

2.1    Non-state Entities

In this section we look at some state-like entities that for political reasons are denied full participation in UN and other multilateral law-making activities. They may be afforded limited access and procedural rights through observer status. Observer status is not provided for within the UN Charter. It is accorded to ‘Non-Member States, entities and organizations’²⁷ by GA resolution on a case by case basis after consideration by the GA 6th (Legal) Committee. The privileges observer status bestows are dependent upon the terms of the particular resolution, practice and interpretation by the UN Secretariat. In the exceptional case of the Holy See, these privileges are barely distinguishable from those of states and it participates as such in multilateral diplomatic conferences and meetings.²⁸ The Holy See governs the Vatican City and is regarded as the ‘juridical personification’ of the Roman Catholic Church. It maintains a permanent observer mission to the UN and is a full member of UN specialised agencies and European IGOs. It has exercised considerable influence in the negotiation of treaties and soft law instruments. For example it led a group of Catholic states at the 1994 Cairo Conference on Population and Development and the 1995 Beijing World Conference on Women. At both these conferences the Vatican combined forces with a number of Islamic states to resist international recognition of women’s sexual and reproductive rights and freedoms.²⁹ At the 1998 Diplomatic Conference in Rome it influenced drafting of the provisions on ‘forced pregnancy’ and the meaning of gender within the ICC Statute.³⁰ In these actions it was opposed by many women’s NGOs, who questioned why a particular religious community should enjoy privileged status within international fora.

Entities with observer status before the GA form an eclectic group. They include Guam, the Organisation of the Islamic Conference, Palestine, the Sovereign Military Order of Malta, the Inter-Parliamentary Union (IPU) and a number of IGOs. Exceptionally the International Committee of the Red Cross, an NGO, was accorded observer status in 1990. The IPU is of particular significance as it links national legislators with the GA and secures parliamentary input into the latter’s work.³¹ In its application for observer status it stated that it could ‘channel to the United Nations the views of the people, in all their diversity, as expressed in parliamentary debates and discussions at the IPU’.³² The importance of this relationship is echoed in the GA’s call for ‘strengthened cooperation between itself and national and regional Parliaments in particular through the IPU’.³³

Political controversy denies certain entities statehood or even observer status and other techniques have to be found to allow them any form of participation in international law-making. For example, the uncompromising stance of the People’s Republic of China to even implied recognition of the Republic of China (Taiwan) as a state denies Taiwan access to UN bodies. The disadvantages of Taiwan’s exclusion—a sizeable entity that constitutes the world’s fourteenth largest economy—from the ambit of international regulatory regimes has led to seeking ways of facilitating its participation. Participation in most modern treaties is limited to states and regional organisations for economic integration such as the EU, but some treaties unusually allow for less restricted participation and access for non-state entities. Serdy has described how advantage has been taken of such treaty provisions in the case of Taiwan.³⁴ For example the WTO Agreement, Article XII provides that ‘Any state or customs territory having full autonomy in the conduct of its trade policies is eligible to accede to the WTO on terms agreed . . . ’. Taiwan negotiated membership in January 2002 under the name of the ‘Separate Customs Territory of Taiwan, Penghu, Kimmen and Matsu’ or ‘Chinese Taipei’.

Taiwan’s significant deep sea fishing fleet has also made it important to bring it within fishing conservation regimes. Progress has been made by granting Taiwan observer status at technical and scientific meetings, followed in some cases by full membership. Articles 305–6 of the 1982 UN Convention on the Law of the Sea allow for self-governing associated states and territories to become parties and the UN Fish Stocks Agreement, 1995 provides for ‘fishing entities’ (such as Taiwan) to become members of regional fisheries commissions. On that basis, as ‘Chinese Taipei’, it participated in negotiation of the 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, and is a member of the commission established by the treaty. Taiwan similarly attended the trilateral scientific meetings of the Commission for the Conservation of Southern Bluefin Tuna. This was made possible by Article 14 of the 1993 Convention for the Conservation of Southern Bluefin Tuna which allowed states parties to invite ‘any State or entity’ to such meetings. A Resolution adopted by the Commission in 2001 to establish an ‘Extended Commission’ was negotiated with Taiwan’s participation and led to its becoming a member as the ‘Fishing Entity of Taiwan’. Taiwan is also a ‘Cooperating Fishing Entity’ in the International Commission for the Conservation of Atlantic Tuna.

2.2    Indigenous Peoples

A particular category of non-state actors has had some considerable success in institutional development but less in successful law-making in the sense of adoption by states of the international legal standards they have worked towards. Indigenous peoples across many states hold a unique position in the world and have sought to have their status and rights given effect under international law. There has long been engagement between international institutions and indigenous peoples. The ILO began working on issues pertinent to indigenous peoples as early as 1921, especially in connection with what they termed the ‘native workers’ of Latin America. In the UN era the ILO adopted Convention No. 107 on Indigenous and Tribal Populations in 1957. This Convention identified members of indigenous peoples as requiring special protection of their human rights but this was within a framework of assimilation that does not ‘envisage a place . . . for robust, politically significant cultural and associational patterns of indigenous groups’.³⁵ The Convention was revised in 1989 by ILO Convention No. 169. In the meantime there had been a significant change. Indigenous peoples had ceased to be solely ‘objects’ of international law but had become active participants ‘in an extensive multilateral dialogue that has engaged states, non-governmental organisations, and independent experts, a dialogue facilitated by human rights organs of international institutions’.³⁶ There was some participation by representatives of indigenous peoples in negotiating the 1989 Convention. The assimilationist perspective had largely given way to one that recognises the importance of maintaining and developing the identities, languages and religions of indigenous peoples within their own states of residence. Nevertheless, for some people there remained concerns about the 1989 Convention, including the qualified use of the word ‘peoples’³⁷ and the definition of ‘indigenous’.

Another instrument negotiated through the wide participation of indigenous representatives was still needed. The mechanism through which this has been sought was the Commission on Human Rights (CHR) Sub-Commission on Prevention of Discrimination and Protection of Minorities.³⁸ In 1971 ECOSOC authorised the Sub-Commission to work on the subject and in 1982 the Sub-Commission established a Working Group on Indigenous Populations to work on a draft instrument. The Working Group began work in 1985, thus pre-dating ILO Convention No. 169. Indeed the latter became an ‘effective extension’³⁹ of the Working Group, although with less active participation by indigenous persons than in the Working Group. The latter pioneered innovative working methods within the UN, most importantly according speaking rights to indigenous representatives without requiring them to have affiliation to any NGO with ECOSOC consultative status. Alongside states, such representatives were able to comment on proposals and to make their own suggestions. In 1994 the Sub-Commission adopted the Working Group’s Draft Declaration on the Rights of Indigenous Peoples. It was hoped that the Draft Declaration would be discussed and adopted in turn by the CHR, ECOSOC and finally the GA. However the process was long stalled in the CHR. In 1995 the CHR established an open-ended inter-sessional working group to elaborate a draft declaration on the rights of indigenous peoples, considering the Sub-Commission’s draft.⁴⁰ Unlike the Sub-Commission (and its Working Group) this body comprised state representatives, although it followed the practice of the Sub-Commission Working Group by authorising as observers participation by organisations of indigenous people not in consultative status with ECOSOC. Controversial issues included the right to self-determination and land rights. At the first session of the Human Rights Council in 2006, nearly 25 years after the establishment of the Sub-Commission Working Group and after eleven sessions of the Working Group, the non-binding declaration was adopted,⁴¹ although of course this is still a long way from the adoption of a binding convention.⁴² Change in 2006 rested upon the apparent willingness of some states to offer support to the Declaration, illustrating that the political will of states remains crucial to the law-making activities of non-state actors—a recurrent theme throughout this chapter. Other factors were the support for the declaration in the World Summit Outcome Document and perhaps too the desire for the newly established Human Rights Council to be seen to take a significant law-making step at its first meeting.⁴³

Institutionally there was faster progress. In 1993 the Vienna World Conference on Human Rights recommended consideration of the establishment of a permanent forum for indigenous people within the framework of an international decade of the world’s indigenous people.⁴⁴Workshops were held to explore the feasibility of this recommendation and a CHR ad hoc Working Group established. Indigenous representatives participated throughout these processes. The recommendation of the ad hoc Working Group to the CHR was accepted by ECOSOC, which adopted by consensus a resolution establishing the Permanent Forum on Indigenous Issues.⁴⁵ The Forum is a subsidiary organ of ECOSOC with advisory status on issues within its mandate. Eight members are nominated by governments and elected by ECOSOC, and eight members are nominated by the ECOSOC president ‘on the basis of broad consultations with indigenous organizations’. All members serve in their personal capacity ‘as independent experts on indigenous issues’. This composition makes the Forum a unique global body⁴⁶ in which indigenous representatives access a UN body on an equal footing with states’ representatives. Further, ECOSOC has provided that ‘organizations of indigenous people may equally participate as observers in accordance with the procedures which have been applied in the Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights’. It appears that through the processes evolved for the drafting and adoption of the draft Declaration by the Sub-Commission and the creation of the Permanent Forum there is now a principle, backed by supporting state practice, that rights of indigenous peoples cannot be determined without their participation and consent. Nevertheless the long delay in the adoption of the draft Declaration demonstrates that where states deem their interests to be threatened, even extensive participation by non-state actors does not lead to timely international law-making.

2.3    Transnational Networks

It has been convincingly argued that international law-making through negotiation of treaties or other instruments rests upon a unitary model of the state that speaks through the mouth of the head of government (or other relevant ministry).⁴⁷ Anne-Marie Slaughter has criticised this model for discounting the way government networks disaggregate the state and carry out law-making functions. People working in sub-state sectors such as courts, administrative agencies, legislatures and parliamentarians share professional and technical expertise with those in similar positions in other states.⁴⁸ Through their working relationships they develop networks across state borders in a horizontal system of what Slaughter terms ‘transnational regulatory cooperation’. Such networks may work in conjunction with, or be initiated by, those in expert positions in IGOs, for example financial networks including World Bank and International Monetary Fund personnel.⁴⁹ Experts from civil society groups also assist within public sector transnational networking. Membership of networks is flexible without the formal criteria for participation that are required for non-state actor access to IGOs. Networks facilitate devising solutions to common problems that are formulated through rules and principles in soft law forms such as codes of conduct, guidelines and best practices. Guiding rules and principles may also be more formally agreed through Memoranda of Understanding. They are implemented by the network participants within their own states. These flexible and informal agreements on common approaches and regulatory mechanisms create the expectation of compliance, in effect international standard setting. Slaughter gives as examples the Basle Committee on Banking Supervision, the International Organisation of Securities Commissioners and the International Association of Insurance Supervisors.⁵⁰ The soft character of their agreements⁵¹ avoids the formality of treaty negotiation and the need for incorporation into national law. Transnational networks are facilitated by electronic communications that avoid the expense and time of meetings, or in the case of government networks, the formality of diplomatic meetings. These networks emphasise technical expertise, practice and functional efficiency, although at the expense of openness and transparency.

Similar forms of transnational networking take place through expert groups within the private sector, for example professional associations and similar epistemic communities.⁵² Such networking has had a long history. Writing in 1907 Baldwin listed some 600 meetings of what he termed ‘leading congresses, associations and societies of an unofficial description’.⁵³He noted that international regulation of matters of public moment often resulted from private congress inspired by commercial, scientific, philosophic or altruistic motives.⁵⁴ A contemporary example is what has been called the ‘globalization of accounting standards’.⁵⁵ Standard setting for accounting has traditionally been carried out by national authorities but this has shifted to the International Accounting Standards Board, a London-based organisation whose parent body is a US private corporation and which is largely financed by the ‘big four’ accountancy firms. Since 2005 the International Financial Reporting Standards (IFRS) prepared by this body have been adopted by all publicly listed companies in the EU and by some 70 other states. The IFRS have, in effect, become international accounting standards and provide an example of international regulation of technical matters by an epistemic professional community. ‘What stands out . . . is the strong role of the [accounting profession] and of a very narrow group of private actors [the Big Four] in the process of formal rule setting.’⁵⁶

The various ways in which non-state entities are brought into the law-making processes and the activities of sub-state and professional networks illustrate different forms of participation and their diverse outcomes. Innovative solutions are possible to allow participation where the political will (or economic reality) requires measures to redress the anomaly of an entity’s exclusion from UN institutional law-making (as in the case of Taiwan), or of a long marginalised group (as in the case of indigenous peoples). Expert networks are a pragmatic (albeit bureaucratic) response in the public or private sector to complex specialist demands which can best be met through transnational cooperation. Treaty-making may be too cumbersome a process to address effectively these demands.

3. NGOs and the UN

3.1    What is an NGO?

This section considers the distinctive role played by NGOs in the institutional processes of international law-making. In accordance with the UN Charter, Article 71, ECOSOC has accorded consultative status to NGOs whose mandates are ‘in conformity with the spirit, purposes and principles of the Charter’.⁵⁷ Different categories of NGO status (general, special and ‘roster’) determine the level of participation.⁵⁸ ECOSOC is thus the ‘gatekeeper’ between NGOs and the UN. Some specialised agencies also provide for some form of consultative or other status for non-governmental entities. For example UNESCO’s Constitution allows the Organisation to ‘make suitable arrangements for consultation and cooperation with non-governmental international organizations concerned with matters within its competence, and may invite them to undertake specific tasks’.

In 1996 ECOSOC reconsidered its criteria for according consultative status⁵⁹ and determined that an NGO (international, regional, sub-regional or national) must have inter alia established headquarters, a democratically adopted constitution, representative structure, appropriate mechanisms for ensuring accountability to its members and transparent decision-making processes. Any financial support from a government must be declared to the ECOSOC Committee on NGOs.⁶⁰

Despite the elaboration of criteria for consultative status, neither the Charter nor ECOSOC have spelled out what constitutes an NGO. NGOs are primarily defined through what they are not: they are not established by a government or by intergovernmental agreement and their resources should come primarily from voluntary contributions. They may operate solely or primarily in a single state (national NGOs) or across a number of states (international NGOs). Such general criteria provide a broad umbrella for a range of institutional arrangements⁶¹ whose interests, strategies, target audiences and objectives do not necessarily coincide. Although the term NGO is often used to distinguish organisations with humanitarian or social justice ‘public’ objectives from commercial interests, NGO status is the route through which non-governmental industry and corporate entities are brought within the UN framework. These include associations representing commercial interests (for example the International Chamber of Commerce, the International Chamber of Shipping, and the International Air Transport Association) and transnational corporations (TNCs). Some international instruments now draw a distinction between NGOs and the private⁶² or business⁶³ sector, although the same entitlements may be extended to both categories. The objectives of private sector bodies may be at odds with environmental, human rights and other public interest NGOs. The objective of the former category is typically to ensure that governments are informed of, and take into account, their specialist knowledge and profit-oriented business interests.⁶⁴ They seek to ensure that governmental delegates who lack industry-specific expertise are informed of the potential impact of particular measures on their industries.

The relationship between all types of non-state entity and the UN has been (and remains) an evolving one. The granting of consultative status was the first formal step into the UN for NGOs, which was the starting point for their much greater influence today. The language of consultative status or ‘honoured guests’⁶⁵ has since shifted to that of ‘loose creative coalitions’⁶⁶ and ‘partnership’ at the conceptual, operational and economic levels. In the words of UN Secretary-General Kofi Annan:

    I think it is clear that there is a new diplomacy, where NGOs, peoples from across nations, international organizations, the Red Cross and governments come together to pursue an objective. When we do . . . this partnership . . . is a powerful partnership for the future.⁶⁷

Partnership entails a mutually beneficial and equal relationship. Many IGOs and UN organs have established units, working groups or other focal points for liaison with NGOs and issued guidelines for their mutual relations. The concept of partnership has also been used to induce regulation of non-state actors, even if only voluntary self-regulation, as for example in the setting up of the Global Compact between companies, UN agencies, labour and environment movements in 2000.⁶⁸

As part of his strategy for strengthening the UN, in 2004 the Secretary-General appointed a Panel of Eminent Persons to consider UN–Civil Society Relations. The Panel considered that the UN should become ‘more outward looking’ and to this end recommended increased NGO participation, including streamlining accreditation to the UNGA and its committees.⁶⁹ Implementation would enhance the opportunities for NGOs to influence international law-making. The UNGA in its 2005 consideration of UN reform stressed the importance of continued engagement between governments, IGOs, the private sector and other civil society bodies but made no reference to the suggestions of the earlier Panel.⁷⁰ Nor did it make any specific proposals of its own.

3.2    An NGO Right to Participation?

An important consequence of ECOSOC consultative status is that there is now widespread provision for national and international NGOs qualified in relevant fields to be accorded observer status at meetings of treaty parties, in law-making diplomatic conferences, global summits and other meetings held under UN auspices. Upon occasion, a government may select NGO representatives as members of its own delegation.⁷¹ Otherwise a range of modalities exist for NGO participation at particular meetings.⁷² This may depend upon their accreditation, which is carried out by a designated preparatory committee or commission (prepcom). Accreditation also determines the privileges of participation, for example which meetings NGO representatives may attend, which documents they may receive, and whether, when and for how long they are entitled to speak. The criteria are often inconsistent and uncertain.⁷³

While there is no general right to observer status, and some treaties continue to exclude NGOs, many agreements now presume admission unless at least one third of member states object.⁷⁴ In some instances NGO observers have been admitted to meetings of treaty parties even without any specific treaty provision.⁷⁵ Unusually, a global convention, the 1995 UN Fish Stocks Agreement, Article 12, provides that relevant NGOs have a right to take part in the meetings of regional fisheries bodies.

Which NGOs are qualified to participate will usually be determined by the rules of procedure of the organisation or treaty in question. For example the Convention on the Rights of the Child, Article 45 allows the committee of experts⁷⁶ to invite ‘other competent bodies’ to provide expert advice on the Convention’s implementation. Other instruments refer explicitly to NGOs with consultative status. The Rules of Procedure for Meetings of States Parties to the 1982 UN Convention on the Law of the Sea allow NGOs recognised by ECOSOC whose activities are ‘relevant to the law of the sea’ and other invited NGOs to attend as observers.⁷⁷ Such NGOs may attend public meetings and make oral and written statements. The criteria of relevance or expertise are relied on in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Article XI (7) so that a body ‘technically qualified in protection, conservation or management of wild fauna and flora’ may inform the Secretariat that it wishes to be represented at a conference of the parties and shall be admitted unless at least one-third of the Parties object. Such representation bestows no voting rights. FAO’s Rules of Procedure, rule XVII (3) allow an observer of an NGO with consultative status to attend Conference plenary meetings, commission and technical committee meetings, to speak before such bodies but not to vote. The Rules of Procedure for the Rome Conference of the International Criminal Court, rule 63 allowed ‘invited’ NGOs to attend plenary meetings and unless decided otherwise by the Conference for specific meetings, formal meetings of the Committee of the Whole and to receive official documents. Some NGO representatives were able to make oral statements at the beginning and end of the Conference. Only states could vote. Under the 1997 Ottawa Landmines Convention, ‘relevant’ NGOs may be invited to Meetings of States Parties, Review Conferences and Amendment Conferences, in each case as observers in accordance with the Rules of Procedure. The Rules of Procedure for the First Review Conference, ⁷⁸ held at Nairobi in 2004, stated that certain specified non-state entities (including the ICRC, the International Federation of Red Cross and Red Crescent Societies and the International Campaign to Ban Landmines (ICBL) )⁷⁹ and other bodies ‘that have received an invitation from the Coordinating Committee’ could attend as observers. Rule 24 prevented observers from participating in decision-making, making any procedural motion, raising a point of order or appealing against any ruling of the President. The 1998 Aarhus Convention entitles a ‘qualified’ NGO to participate as an observer at a meeting of the Parties, unless at least one third of the Parties present objects.⁸⁰ This last formulation (also found in CITES) provides a procedural mechanism for resolving any disputed claim to participate. It also shifts the determination away from a conference bureaucracy to the states parties.

It will have been noted that in all these examples observer status gives no right to vote. Thus while access to NGOs has been quite widely accorded, allowing the acquisition of knowledge about the progress of international negotiations and the opportunity to influence state delegates,⁸¹ states have been unwilling to permit such non-state actors to take a crucial part in law-making decisions.

NGO access was initially less readily accepted in the WTO.⁸² The WTO Agreement, Article V (2) provides that the ‘General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO’. In 1996 the General Council adopted Guidelines for Arrangements on Relations with Non-Governmental Organizations.⁸³However the motivation was not to allow participation in decision-making but rather to facilitate the role of NGOs in increasing ‘the awareness of the public in respect of WTO activities’ and improving transparency. Although NGOs were recognised as a ‘rich resource’ it was explicitly spelled out that ‘the special character of the WTO’ as an ‘intergovernmental treaty of rights and obligations among its Members and a forum for negotiations’ led to ‘a broadly held view that it would not be possible for NGOs to be directly involved in the work of the WTO or its meetings’. However, NGOs may be accredited to attend Ministerial Conferences and plenary sessions, and increasing numbers have done so.⁸⁴ The majority of these are trade and industry associations although others represent a broad range of interests, including human rights, development, environmental protection, protection of animals, and aid agencies. While the vast majority are based in Europe and North America, many of these exist to promote the interests of developing states. The NGO focus has been primarily on process, that is transparency, accountability, access and inclusivity as hallmarks of procedural legitimacy.⁸⁵

The more frequent presence of NGOs (and their larger numbers) at multilateral law-making processes raises the question of whether there is an NGO right to participation. Where there is a specific treaty entitlement the answer is determined by the treaty terms, although there may remain ambiguity and uncertainty as to who may make the final determination. Where NGOs were active participants in the treaty negotiations they are likely to have sought provision for their own inclusion in subsequent processes, as was the case with UN Charter, Article 71. Without such treaty provision there is undoubtedly a growing practice towards, and expectation of, NGO participation. The UN Secretary-General has commented that ‘a major United Nations gathering without the involvement of civil society in all its various forms is scarcely imaginable’.⁸⁶However it seems premature to assert that there is a right to access and participation.⁸⁷ The very existence of accreditation procedures by a designated body indicates a discretion as to whether access is granted and the fact that some applications for accreditation to global diplomatic conferences have been refused reinforces this conclusion. For example Tibetan (and other) NGOs were denied accreditation for the 1995 Beijing Women’s Conference and for the 1996 Istanbul Habitat Conference on Housing and Sustainable Communities. Such refusals may be politically motivated and cause considerable disquiet.⁸⁸

In practice another concern is that of logistics. Attendance by NGO representatives requires greater meeting space, wider production and distribution of materials and, where they are permitted to speak in formal sessions, longer time. This all adds to the expense and burdens of meetings. There are also concerns about the size and composition of NGO delegations. These practical considerations impinge upon the more theoretical issues discussed in the following section.

3.3    Democratisation of International Law-Making?

The Panel of Eminent Persons on UN–Civil Society Relations, the UN Secretary-General and the UNGA at its 2005 Summit all supported increased access for NGOs to the UN and its agencies and their greater participation in international law-making. As UN S-G, Kofi Annan has stated, ‘[The UN] must be open not only to States but also to civil society, which at both the national and international levels plays an increasingly important role in world affairs’.⁸⁹

Despite this level of agreement it must be asked what extensive NGO participation in international law-making processes achieves and whether it is appropriate. The first concern is addressed in Section 4 below. With respect to the second, it has been suggested that NGO participation constitutes a ‘sea-change’ in international law-making⁹⁰ by democratising and thus legitimising the essentially non-democratic processes of international law.⁹¹ It strips away the myth of the monolithic state and allows disagreement with the official state view to be voiced at the international level. The expression of a cosmopolitan,⁹² popular will through the NGO voice—the ‘conscience of the world’—is itself seen by some as a basis of legitimacy.⁹³ More instrumentally the Secretary-General has stated that ‘[m]ore effective engagement with NGOs also increases the likelihood that United Nations decisions will be better understood and supported by a broad and diverse public’.⁹⁴ As international law impacts more often and directly upon individuals it becomes more important that it is seen as legitimate to a broader based community.

Nevertheless caution is required against assuming the democratisation of international law-making through NGO participation.⁹⁵ Judge Higgins presents well the alternative views: ‘To some, these radical phenomena represent the democratisation of international law. To others it is both a degradation of the technical work of international lawyers in the face of pressure groups and a side-stepping of existing international law requirements and procedures.’⁹⁶

Some of the areas of concern are the following. NGOs are often non-democratic, self-appointed, may consist of only a handful of people and determine their own agendas with an evangelical or elitist zeal. There is no guarantee that the views expressed by even high-profile NGOs are representative, either generally, or with respect to their claimed constituencies. Their internal decision-making processes may not be transparent and are often concealed within a deluge of information. NGOs do not have to address the full range of options that must be considered by state elites but can limit themselves to their own, often limited or even single issue, concerns. The need for many NGOs to account to donors for their expenditures gives rise to questions about the latter’s influence on setting priorities.

Another source of unease is whether the NGOs that are most prominent in an international forum do in fact speak for a broader constituency. NGO coalitions are one way of enhancing their representative character, as well as creating a single, and therefore more forceful, NGO voice.⁹⁷ But coalition building does not necessarily answer the concern. The fact of a coalition may conceal deep divisions between its members.⁹⁸ Some NGOs may feel they are being asked to make unwelcome compromises, or that bigger, better funded NGOs wield excessive influence. Dissenting voices might be silenced in order to maintain the appearance of unity, or those who have not joined the coalition may become invisible. On the other hand opposing alliances may form. Diversity of NGO views fosters fuller debate but may be seen as detrimental by majority NGOs that apprehend the dilution of their voice and consequential weakening of their influence. Divisions may cause hostility, accusations of unfair tactics and seeking different allies among states. Contestation between NGO alliances can impact upon the final text. For example at Rome, Cairo and Beijing, women’s interests were contested between the Vatican and other religious-based pro-life groups on the one side and the Women’s Caucus on the other. Although the Women’s Caucus was successful in securing the inclusion of gender crimes within the ICC Statute, the influence of the former ensured restrictive definitions of gender and of forced pregnancy as a crime against humanity, and the rejection of persecution on the basis of sexuality as a crime against humanity. ⁹⁹

Individual NGOs must determine whether their objectives are more likely to be achieved through joint action with other NGOs or by remaining outside any coalition. Some NGOs prefer to remain outside the established processes of international law creating a dichotomy between ‘insider’ and ‘outsider’ NGOs. States may be more likely to consult or otherwise work with the ‘insiders’ and claim popular legitimacy for their actions by having done so. This carries the risk of marginalising the ‘outsiders’ and silencing voices that are unwilling to compromise within the state-dominated international fora. Outsider groups (for example women’s groups, indigenous persons) seeking to move from the margins of meetings devoted to their concerns to the mainstream of international law may have to compromise with ‘mainstream’ NGOs whose agendas and priorities do not accord with their own. All these considerations undermine a claim of democratisation through NGO participation.

In light of the imbalance between international NGOs from the northern industrialised countries and those from the developing countries,¹⁰⁰