NGOs in International Law: Efficiency in Flexibility?
Akima Paul, Solicitor (England & Wales)
Over the last decade, NGOs have come to enjoy an increasingly influential role in affecting political processes that occur on a supra-national level. In particular, the internationalisation of NGOs and the intensity of their activities illustrate that they have assumed an active role in governance and have become very influential players in affecting the outcome of negotiations in the international arena. NGOs in International Law: Efficiency in Flexibility, a series of essays edited by Pierre-Marie Dupuy and Luisa Vierucci, aims to answer the polemical question of whether there should be a more formal revised status for NGOs in international law, given their increasing international presence and their substantive impact on decision making.
Christine Bakker and Luisa Vierruci begin first by helpfully examining the definition of NGOs in international law (Introduction pp1-17). Emmanuele Rebasti then addresses the interaction between NGOs and intergovernmental organisations (IGOs) by examining the existing consultative relationship that most NGOs enjoy with IGOs(pp23-37). Drawing on a mixture of reports and resolutions, Rebasti recognises that whilst the consultative status of NGOs was inadequate in controlling and facilitating participation, that there is a ‘gap between the factual and legal dimensions’ (p31) of the role of NGOs. He observes a trend towards the institutionalisation of arrangements, using ECOSOC, the Commission on Sustainable Development, and the Joint United Nations Programme as examples. He notes, significantly, that the prevalence of informality risks working to the disadvantage of the smallest, less-resourced and less-networked organisations, most of which exist in the developing world.
Rebasti's essay is perhaps the most informative and comprehensive of the six, dealing broadly with the reasons for a higher degree of formalisation, the dangers of formalisation, the attraction of self regulation, and crucially, by examining different possible patterns of NGO participation. He soundly and critically examines the benefits of the choices of either institutionalised participation, formalised participation without institutional participation or informal participation.
Olivier de Frouville's contribution( Part 1 Chapter 2) is provocative in nature and prosaic in style. He deals with the issue of the proliferation of Governmental Non-Governmental Organisations (GONGOs) that he terms a non-legal category of NGOS. He laments the creation of GONGOs as the creation of a ‘servile society’ in which civil society is domesticated to serve the purpose of the State. He uses Cuban NGOs, Pakistani and Indian NGOs which intervene in conflicts in Kashmir, and ‘laudatory and imitative NGOs’ in China and Tunisia as examples. De Frouville forcefully and convincingly argues against the institutionalisation of these NGOs and concludes with a recommendation that these NGOs should be denied consultative status. However, De Frouville omits to show clearly the criteria by which such NGOs should be categorised as servile. It is also unclear how this contribution fits into the overall objective of the collection, as de Frouville focuses on ‘NGOs’ that are perhaps, not NGOs at all.
Valentina Bettin’s contribution (Part 1 Chapter 3) focuses on the relationship between NGOs and the European Union, focusing on the transition of the NGO’s role from aid implementer to development partner. Bettin also traces the development of the consultative role of the NGOs and notes the broad acceptance of the non-formalisation of the role of NGOS, in that most entities appear to favour a form of committed consultation. Attila Tanzi, on the other hand, takes a look at a different area in which the intervention of NGOs seems to proliferate- international environmental law (Part 1 Chapter 4). Tanzi notes a shift towards partnership in implementation and concludes, interestingly, that the recently increased focus on the role of NGOs seems to be pointing towards deregulation of their status under international law. Tanzi's and Bettin's essays, together, are interesting and shed light on the roles of non-governmental organisations in various aspects of the public domain. However, the basis for the selection of environmental policy and the European Union have not been expounded upon, and it is therefore unclear whether any general conclusions could, and should be drawn from these ‘case studies’.
The second part of the book, entitled ‘NGOs, international courts and compliance review mechanisms’ focuses on the non uniformity of the place of NGOs in courts, tribunals and other ‘justice’ mechanisms. Luisa Vierucci adeptly discusses the limitations faced by NGOs in obtaining locus standi (and the role played by NGOs in its interventions on an amicus curiae basis (Part 2 Chapter 5 pp156-168). She argues, forcefully, towards formalisation of representation on a conditional participatory basis. Cesare Pitea then dissects the legal status of NGOs in environmental non-compliance procedures. He notes various attempts to formalize the position of NGOs under various treaty provisions, institutional arrangements and queries whether the lack of formal recognition does indeed prevent NGOs from participation in compliance procedures (Part 2 Chapter 6). He looks specifically at the Aarhus Committee under the Aarhus Convention and makes a forceful argument for flexible public participation.
Pierre Marie Dupuy's conclusion is cohesive and succinct. It is arguable, however, that his critical analysis of the legal status of NGOs would have better served as an introduction to the compilation. Overall, whereas Anna-Karin Lindblom's book of similar name (Non-Governemental Organisations in International Law, Cambridge University Press , 2005), focuses mainly on the possibilities available to NGOs to act within the international legal system, this compilation goes much further and provides a much-needed practical examination of the benefits and possible disadvantages of more structured regulation. The essays are persuasive and well-written and, all in all, the book makes an indelible contribution to the legal discourse surrounding this subject. Although the essays are presented with sufficient detail and structure for legal specialists, it would be extremely useful for lobbying practitioners. It is equally essential reading for larger NGOs who wish to improve existing partnership efforts as well as smaller NGOs in developing countries who would like to know more about the policy considerations underpinning current limitations to the NGO's role.