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Title: Legal Status of Non-Governmental Organisations in International Law.
Other Titles: Legal status of Non-Governmental Organisations in International Law.
Authors: Rossi Hansberg, Ingrid; M0231464
Issue Date: 8-Dec-2009
Abstract: Non-governmental organizations (NGOs) are a heterogeneous group of organ izations. They are active at the national, regional and global level in many different areas and vary greatly in terms of size, scope of activit ies and strategies. At the international level, NGOs carry out many activities that are of r elevance to international law: they participate in the international dec ision-making process by advocating new international policies and promot ing changes in existing international legal regimes, they intervene in t he discussions, negotiations and drafting of international treaties, the y help international organizations and treaty bodies in the implementati on and monitoring of international rules, they participate in judicial a nd quasi-judicial proceedings at the international level and cooperate w ith States and international organizations in the area of aid, relief an d development assistance. Despite their vast international activities, there is no agreed definiti on of NGOs in international law and, more significantly, no internationa l instrument defining the rights and obligations of NGOs as a category. What then is the legal status of NGOs in international law? In general, legal status in international law has been defined by using the concepts of subjects of international law and international legal pe rsonality. According to the classical theory of international law, only the ‘subjects’ of international law possess international legal personal ity and therefore have a legal status in the international legal system. There is, however, no generally agreed definition of what it means to b e a ‘subject’ of international law. Different authors propose different definitions, and throughout the years, entities with different character istics have been recognized as ‘subjects’ of international law. NGOs have not explicitly been recognized as ‘subjects’ of international law. They participate at the international level either informally or on the basis of different provisions scattered among a number of instrumen ts varying in terms of their legal relevance. The thesis identifies and examines many of these provisions in order to try to determine whether N GOs have a legal status in international law and if so, what it is. A positivist approach to international law recommends determining the le gal status of an entity that already participates in the international s ystem by looking at the rights and duties, if any, that the entity posse sses in the international sphere. Following the positivist methodology, the thesis identifies and analyzes the different international instruments referring to NGOs in order to t ry to determine whether rights and duties stricto sensu have been confer red to or imposed on NGOs. However, in order to better understand the fu ll legal relevance of NGO participation in the international legal syste m, the thesis also proposes to take into account the ‘participatory’ rig hts and duties that have been granted to or imposed on NGOs at the inter national level. Therefore, besides rights and duties stricto sensu, the thesis also surveys and examines other provisions contained in internati onal legal instruments allowing NGOs to participate in the workings of i nternational bodies or processes, or imposing some requirements regardin g this participation. In particular, Chapters 2 to 4 of the thesis contain an overview of many of the provisions that can be found in international law conferri ng rights and duties, and therefore, some kind of legal status on NGOs. More precisely, Chapter 2 refers to the legal status granted to NGOs by international governmental organizations (IGOs) in the framework of cons ultative or similar arrangements that may be established between IGOs an d NGOs. The thesis examines in detail the different arrangements that NG Os may establish with the United Nations (UN), the Council of Europe and the Organization of American States, and in each case identifies the ri ghts and duties that are granted to or imposed on NGOs by these IGOs. Re ference is also made to the exceptional cases in which NGOs have been in cluded in the governance structure of UN specialized organs or specializ ed agencies. Chapter 3 refers to the legal status granted to NGOs by international tr eaties mainly in the areas of human rights and environmental law. This C hapter surveys a number of treaties in each of these fields and examines the text of the provisions that specifically refer to NGOs, as well as (where applicable) the rules regarding NGO participation that have been developed by the bodies in charge of the implementation of the treaty. Chapter 4 refers to the legal status granted to NGOs by international in struments allowing NGOs to intervene before judicial or quasi-judicial b odies. NGOs may intervene before international and regional courts or qu asi-judicial bodies either as victims, on behalf of or as representative of victims, as providers of information on a particular situation or as amici curiae. The thesis examines the different instances in which NGOs may intervene before international and regional judicial and quasi-judi cial bodies and examines in each case the legal basis for such intervent ion as well as the rights and duties that it entails. The legal status of NGOs also relates to the issue of their accountabili ty. As NGOs become more prominent in the international scene, the issue of their accountability has raised additional attention. The number of N GOs seeking to participate at the international level has increased dram atically in the last years and it has become harder to monitor the activ ities of NGOs and to distinguish among them to know which NGOs can be tr usted by the other actors in the international system. Besides a limited number of requirements imposed in the framework of the consultative arr angements that may be established between NGOs and IGOs, there are no ot her accountability measures imposed on NGOs at the international level. Moreover, since NGOs have not explicitly been recognized as ‘subjects’ o f international law, they cannot be held legally responsible at the inte rnational level. Chapter 5 explains the different concerns and views that exist with resp ect to the perceived lack of accountability of international NGOs. It al so gives an overview of some of the main initiatives that are being expl ored by the different actors in order to increase NGO accountability. Ta king these initiatives into account, Chapter 5 tries to define a positio n on how NGO accountability should be approached at the international le vel. Once the different provisions of international law that regulate NGOs ha ve been identified, the thesis tries to come to a conclusion as to wheth er taken together these provisions could be interpreted as already impli citly granting NGOs the status of ‘subjects’ of international law. That is, whether from the rights and duties already possessed or being impose d on NGOs, it is possible to conclude that there is implied recognition from the international community as to their ‘subject’ status. The main findings of the thesis can be summarized as follows: Some rights stricto sensu have been conferred on NGOs. This, however, constitutes the exception and not the rule and, when it does ha ppen, it generally takes place at the regional and not at the internatio nal level. Therefore, it is probably too soon to conclude that NGOs have acquired the status of ‘subjects’ of international law. For this to hap pen additional rights and duties would need to be conferred to or impose d on NGOs, or some other form of recognition of their status would be ne cessary. It could, however, be argued that implied recognition is b uilding up gradually and that this development will lead in the future e ither to the explicit recognition of NGOs as subjects of international l aw or to the gradual development of a rule of customary law recognizing the legal personality of at least certain NGOs in international law. There are many instances in which NGOs are being granted participatory r ights and duties both at the regional and international level. This show s that there is a high level of State consensus on the importance and us efulness of NGO participation in the international decision-making, law creation and law enforcement processes. The thesis suggests that the cur rent status of NGOs could already award them something that could be cal led ‘participatory personality.’ If recognized by the international comm unity such status could entail the right to be consulted and to particip ate in certain international processes and the concomitant obligation to comply with a number of conditions. With respect to NGO accountability the thesis concludes that the most ap propriate solution at the international level is to leave NGOs free to e ngage in self-regulation. IGOs, treaty bodies and international courts a nd quasi-judicial bodies could redefine their policies for cooperating a nd entering into relationships with NGOs so as to deal only with NGOs th at subscribe to some acceptable form of self-regulation. In this way, NG Os would be free to adopt the accountability measures that they consider best for their organizations but would also be encouraged to comply wit h certain standards if they wish to establish long-term relationships wi th IGOs, treaty bodies and international courts and quasi-judicial bodie s. The diversity of NGOs, fields of operation and stakeholders favors th is approach, since it is very difficult to find meaningful standards by which all NGOs participating at the international level could be held ac countable.
Publication status: published
KU Leuven publication type: TH
Appears in Collections:Human Rights and International Justice (-)
Research Unit International and Foreign Law - miscellaneous
Leuven Centre for Global Governance Studies

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