Non-governmental Organization

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A. What are Nongovernmental Organizations[edit | edit source]

I. Definition[edit | edit source]

As the name indicates, Nongovernmental Organizations “are groups of persons or of societies, freely created by private initiative, that pursue an interest in matters that cross or transcend national borders and are not profit seeking.”[2] However, this explanation cannot provide meaningful information to understand NGOs’ nature, organization, and function. NGO as a social phenomenon is complicated. No one can tell precisely how many NGOs exist around the globe. It just takes “a desk and a fax machine”[3] to set up an NGO, and an interesting quotation is from the former US President Bill Clinton after he left office,“I have become an NGO.”[4] Notably, one cannot miss the headlines occupied by the several prominent NGOs in global media: Amnesty International, Save the Children, Doctors without Borders/Médecins Sans Frontières (MSF), Transparency International. One can be excused by the sublime feeling aroused by these nice words that made the name of these NGOs.

However, what is the NGO? Firstly, an NGO is an organization made by individuals. It gathers people in one group, no matter what kind of organizational structure it adopts. Internally, its management structure can be hierarchical or flat. Secondly, an NGO is independent of the government. This is one of the most salient features. However, as will be discussed later, this feature is blurred as more and more Government Non-Governmental Organizations (GONGOs) emerge in recent years.[5] ]This phenomenon has dramatically impacted the NGO terrain. Even we cannot avoid GONGOs; theoretically speaking, an NGO is at least at first glance an organization that does not belong to a government branch and does not exercise any official governance function. Thirdly, an NGO is an organization which is not-for-profit. To ensure its existence, an NGO needs financial resources to support itself, and basically, it relies on voluntary contribution from external parties. It can be petty cash donations or a big cheque from a rich source, a billionaire, or a conglomerate. Its operation does not aim to generate more money or get some tangible reward but to create intangible results. It is challenging to have a complete compilation of all the purposes of NGOs. The most likely NGOs would be environmental protection, charity, organizations for hobbies or interest groups, human rights, legal or economic communities.

II. A Brief Conceptual History: From Civil Society to NGO[edit | edit source]

One can always spot that in common usage, the term NGO and Civil Society are used interchangeably.[6] Some people would prefer to use the phrase civil society to convey a connotation beyond the technical and unimaginative expression “NGO.” To understand the correlation and difference of the two usages, we need to briefly consult the history and theory to get some clues to gain a fuller picture of the evolution of the concept of civil society and NGO.

Civil society is a word that bears more controversies than NGO. At the Aristotelian conception, civil society denotes an equal and autonomous society instead of the authoritarian and barbarian autocratic monarchy. It is a civilized society that bolsters the rule of law and the dignity of the individual.[7] In the enlightenment era, enlightenment thinkers utilized civil society to depict the form of human organization which has escaped from the natural state that Thomas Hobbes elaborated in his masterpiece Leviathan. Hegel revolutionized the concept by imposing the political connotation into it. In his view, civil society is the society that is opposed to the political state. It is an autonomous sphere that is materially and socially independent from the interference from the state and is the place which freedom and egalitarianism are generated.[8] Hegel’s theory profoundly influenced the Marxist tradition in its elaboration on the state-society relationship. What’s worth mentioning is the Italian theorist Antonio Gramsci, who criticized the political nature of civil society as its collusion with the hegemony of the bourgeois class made it a significant hindrance to the emancipation of the working class.[9] This insight is helpful for a critical apprasial of civil society in today.

Jürgen Habermas has written extensively on civil society and shaped the current dominant understanding of civil society. As the leading figure of the Frankfurt School, Habermas divided civil society into two distinct parts: civil society in the private domain and civil society in the public domain.[10] By doing so, Habermas carved out a civil society that is simultaneously political and unpolitical, autonomous and dependent. Civil society in the public domain is political and plays an essential role in making democratic governance happen. It is in the civil society in the public domain that Non-governmental organizations stepped in. In an ideal liberal society, NGO is a necessary element to supplement the gap left by the government and ensure accountability of the power holders. What’s more, in Habermas’s understanding, the civil society he envisages is not limited by territorial boundary but spans the globe. Thus, there exists a global civil society. This theory provides sound moral basis for INGOs.

III. From domestic to international: NGO in the global domain[edit | edit source]

We are living in a globalized era. Nevertheless, globalization is only a recent phenomenon. For a long time, the movement of people, goods, and ideas was confined to a limited range. Since people tend to focus on the things that happen around them, civil society is local-oriented. The earliest form of NGO that spanned continents was religious groups and secret societies by today's standard.[11] During the 1760s and the 1860s, this one-fold form was superseded by the modern form of INGOs which works on a broad range of activities. It is commonly held that the earliest modern INGO was the British and Foreign Anti- Slavery Society, which was established in London in 1839.[12]

The 19th century had seen a boom in the development of INGOs, both in the amount and scope of their work. The Union of International Associations, the first international organization (interestingly, itself is also an INGO) that aims to have a complete record of the INGOs, made the 19th century the starting point of “globalization” INGOs.[13] As some observers have noted, the narrative of the spread of NGOs from Europe to other parts of the world cannot escape the “Eurocentrism,” which has drawn much academic criticism in contemporary critical scholarship.[14] As Michael Barnett puts it, the mainstream narrative of transnational humanitarianism “is rooted in Western history and globalized in ways that were largely responsive to interests and ideas emanating from the West.”[15] It is no wonder that some authors from third-world countries have accused INGOs as the vanguard of colonialism and imperialism in the colonial age.[16] This topic will be picked up again in the later passage.

The development of NGOs on the international stage is not a linear process. Instead, according to Thomas Davies, a cyclical pattern can be spotted.[17] There have been three waves in the globalization of INGOs: before 1914, 1914-1939, and 1939 to the present day. An easily neglected fact is that the most prominent international petition in the 1930s was the international disarmament movement organized by women's groups. The above three waves have witnessed the up and down of the INGOs. The scope of the first two waves, albeit in a relatively technologically disadvantaged phase, is no less influential in breadth and scale. Currently, we are in the third wave that has been profoundly shaped by the international environment brought out by the end of the cold war, technological advancement, and globalization. Furthermore, the intermingling of NGOs and Civil Society constitutes a non-negligible feature of the current global civil movement.


B. The Legal Status of Non-Governmental Organization in International Law[edit | edit source]

I.      The Continual Debate[edit | edit source]

The legal status of Non-governmental Organizations, along with other Non-state Actors, has been the subject of continual debate among international lawyers. The focus of the discussion centers on the term “legal personality.” Is legal personality an outdated word, or still bear contemporary relevance? As Professor Cedric Ryngaert has pointed out, States have still dominated the imagination of international lawyers in international law. For non-state actors, acquiring the status akin to statehood can be deemed the “ultimate prize.”[18]

Notwithstanding the non-state actors are occupying an “inferior” position compared to States, one cannot neglect that the roles played by these NSAs are becoming more and more significant. Some authors are proposing a new theory to eliminate the rigid and state-centered concept “legal personality” and adopt a more dynamic and inclusive perspective towards the actors or participants of international law. However, not all the authors share this view. As professor Thirway opposed in the retort to professor Cedric Ryngaert, the paramount status acquired by the state in international can be primarily attributed to its role as the protector of the constituency, and the NSAs cannot replace this role.[19] It is firmly state-centered and deeply ingrained in the positivism school that has dominated international legal thinking.

The above debate concerning the legal personality is closely related to the legal status of Non-governmental Organizations in international law. The theoretical underpinnings of the discussion are how to conceive international law in a changing world. Is the traditional international law since the Westphalia still taking hold in the contemporary world where individuals, non-governmental organizations, transnational corporations, and even terrorist groups are infecting every part of our life? There is no definite answer to this question. According to the research done by Portmann, there are at least five different theories to interpret legal personalities, and each view presents its unique understanding of the subjects of international law.[20] These variances are closely related to the further understanding of the nature of international law in changing circumstances. No matter what theoretical inclination one take, it is safe to say that NGOs has become important actor, participant, or player in the international legal arena.

II. The Normative Description: NGOs in Major International Legal Documents[edit | edit source]

Many international legal documents have mentioned NGOs, and each is trying to give its peculiar normative description of NGOs. A brief sketch of these documents can provide us with a glimpse of the legal status of NGOs in positive international law.

(1) The UN System[edit | edit source]

The UN Charter is the most authoritative document that stipulates the legal status of NGOs. It is through Article 71 that the nomenclature Nongovernmental Organization officially enters international legal usage. This article dictates[21]:

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

For many, this article signified a great leap forward of democracy on the international stage and initiated an exciting institutional linkage between States and NGOs. It is the first time that NGOs can occupy a place and make their voices heard in an international organization that States dominate. All the NGOs that participate in the work of the UN Economic and Social Council, based on the working field and competence, are classified into three types: General consultative status, Special consultative status, and Roster status.[22] According to the official explanation from the UN website:[23]

  • General consultative status is reserved for large international NGOs whose area of work cover most of the issues on the agenda of ECOSOC and its subsidiary bodies. These tend to be significant, established international NGOs with a broad geographical reach.
  • Special consultative status is granted to NGOs with unique competence and is explicitly concerned with only a few of the fields of activity covered by the ECOSOC. These NGOs tend to be smaller and more recently established.
  • Organizations that apply for consultative status but do not fit in any of the other categories are usually included in the Roster. These NGOs tend to have a relatively narrow and technical focus. NGOs that have formal status with other UN bodies or specialized agencies (FAO, ILO, UNCTAD, UNESCO, UNIDO, WHO, and others) can be included on the ECOSOC Roster. The Roster lists NGOs that ECOSOC or the UN Secretary-General considers can make "occasional and useful contributions to the work of the Council or its subsidiary bodies."

With the consultative states, NGOs can participate in the conferences convened by the United Nations, and that is no limit to the conferences convened by the ECOSOC, they can also participate in the conferences to its many subsidiary bodies, to the various human rights mechanisms of the United Nations, ad-hoc processes on small arms. By doing so, NGOs can voice their concerns on various vital issues such as environmental protection, human rights, arms control, etc. It can also provide expertise and necessary information to the UN. What is more, exerting civil power can be a driving force to concrete steps that should be taken to tackle the issues facing humankind.

By evading the question of legal personality, the UN is making significant strikes to cooperate with NGOs. In the Panel of Eminent Persons on United Nations-Civil Society Relations report,[24] a participatory relationship is proposed to more actively integrate NGOs in the day-to-day working of the UN system, and that moved beyond the consultative status as stipulated in Article 71. The reasons underlying the welcome attitude of the UN towards the NGOs are open to discussions. As Peter Willets pungently illustrated, it might be because by working with NGOs, the UN and NGOs can achieve a kind of "mutual legitimacy" that can concertize each other's role in the state-centric international society.[25]

(2) The European Union[edit | edit source]

Following the United Nations, the Council of Europe also established formal working relationships with Non-governmental organizations as earlier as 1951.[26] It distinguished between international and domestic NGOs and gave the former participatory status and the later partnership status. Compared to the United Nations, the Council of Europe made one bold move towards recognizing the legal personality of international non-governmental organizations. However, the "legal personality" here is not the same that have been discussed. Under this Convention, it facilitates the recognition of legal personality in the domestic sphere across countries. By this Convention, the legal status of an international NGO registered in one state party is automatically acquired if it works in another state party.[27] Currently, there are 13 state parties to this Convention. Although it did not solve the legal personality of NGOs on the international stage, at least, it has shown the state's willingness to recognize and appreciate INGOs' work in promoting democracy, cultivating civil participation, and acting as experts in the international field.

As the pioneering place towards civil freedom, NGOs have a fertile place to grow and expand in Europe. Major NGOs today almost all firstly originated in Europe and expanded their work to other locations. NGOs all engaged extensively in their daily work in other regional mechanisms in Europe, such as the CJEU and ECtHR.

(3) Other Regional Bodies[edit | edit source]

Other regional bodies also have set up relevant mechanisms to facilitate the participation of NGOs in their work. For example, the Organization of American States in its Charter in 1948 laid out several provisions concerning NGOs. One notable point in the OAS system is that in 1999, the general assembly of the OAS established a commission civil society participation in the OAS activities within the permanent council, and afterward, a guideline for civil society participation was promulgated.[28] One salient feature of the NGO participation in the OAS system is its term used. "civil society" rather than NGO is used frequently, and it symbolizes an optimistic attitude towards the NGOs and attaches a progressive narrative towards the role of NGO in the international arena. This mentality can be summarized as treating NGOs as "a force for good."[29]

The African Union is unique in its relationship with civil society organizations (CSOs). Few NGOs have been granted observer status, but no explicit legal basis was provided to entitle NGOs to work with the AU at the general level. By Article 22 of the Constitutive Act on the African Union, an Economic, Social, and Cultural Council (ECOSOCC) was established.[30] The ECOSOCC is an advisory body comprised of different social and professional groups from memberships. Although the aim and purpose of the ECOSOCC are expansive, what comes with this expansiveness is the vagueness.[31] it is not easy to evaluate the exact role and actual position of NGOs in the AU. In the meantime, Africa has also been a significant place that some western NGOs work with. The political repercussions of the work of western NGOs on the continent have aroused much debate.[32]

(4) Beyond Legal Personality[edit | edit source]

A brief survey on the role of NGOs in international documents can provide us with some general information on the legal status of NGOs in international law. Firstly, legal personality is considered a problem that should be put aside. What matters is how NGOs should be incorporated into an international legal system that is still state-centric. As we can see, NGOs may have consultative status or play a participatory role on the above occasions. Secondly, the conception of NGOs has witnessed changes since, more often, the term civil society is frequently used. Some optimists even envisaged the emergence of a Global Civil Society in which the sovereign states may give up to a more cosmopolitan world. Thirdly, underlying the optimistic mood of treating the coming of civil society as progressive, we cannot keep blind eyes to the dark sides to this phenomenon. Recently, the world has witnessed backlash towards NGOs.[33] Many scholars are moving from normative inquiries to a critical lens to view the substantive function of NGOs and their essential role as an indispensable agent of neoliberalism. We will turn from normative to descriptive to examine the role NGOs that has played in international law.

C. The Role of NGOs in International Law[edit | edit source]

NGOs have played various roles in international law. Despite the participation mentioned above in major international institutions' work, they also may have standing before the international judicial and quasi-judicial bodies or work as non-party participation before judicial and quasi-judicial bodies. They may also participate in international conferences, whether as an official participant via appropriate legal arrangements or as the civil groups that protest outside the venues where international conferences occur. In some cases, especially where humanitarian assistance is needed, NGOs may become contractors that some International Organizations enlist to carry out certain humanitarian functions such as distribution of disaster relief, provision of medical and psychological service, or information collection. On other occasions, such as in the World Bank, World Health Organization, FAO, NGOs are also worked as a contractor to help project design and implementation. The current roles of NGOs in international law can be summarized as follows.

(1) International Law-Making[edit | edit source]

NGOs have been exerting more and more influence in international law-making. As the democracy deficit has been mounting concern in international law, NGOs or Global Civil Society have deemed a benchmark to counter this deficit. There are several ways for NGOs to engage in state-dominated international making.

The first way is through agenda-setting. NGOs have played the role of “epistemic community” and can influence agenda-setting in international affairs.[34] For example, in the drafting process of the Convention on Biological Diversity, the World Conservation Union intensely participated in the discussion and wording of several important articles and successfully integrated its agenda into the Convention.[35] Secondly, some NGOs can even go further to join in the drafting process directly. They may work as independent experts to aid the formulation of draft articles. In negotiating the Ottawa Treaty of the Prohibition of Anti-Personnel Mines, the International Campaign to Ban Landmines followed through the whole process.[36] It wielded a considerable influence on the content of the treaty clause. On some occasions, NGOs may directly join the government delegation as counsels or delegates. This case happened in the negotiation of the Rome Statute of the International Criminal Court.[37] [4]Finally, another role NGOs play in international law-making is advocacy. NGOs as pressure groups, even excluded from the negotiation process, can still influence or even distort the whole process. As we can see, the defeat of the Multilateral Investment Agreement in 2001 is a salient case.

(2) Administration of International Affairs[edit | edit source]

Apart from international law-making, NGOs also participate in global governance to engage with the daily routines of international affairs. Again, as expertise, NGOs are enlisted by many IOs to provide professional opinions on the issues or discuss policies and documents. In the UN system, this is realized through various working groups that generally work side by side with relevant NGOs. A notable example is the UN Global Compact Initiative.[38] NGOs have been the pioneer in utilizing the voluntary code of conduct to induce good behavior of transnational corporations in human rights and the environment. Some exciting examples may include the World Commission on Dames, as it forged an extensive collaboration with NGOs and openly welcomes NGO participation in its daily running. Also, in the International Labor Organization, the tripartite structure of decision-making gives NGOs critical outlets to participate in global labor rights management.[39] As an NGO specializing in standards-making, International Standardization Organization (ISO) provided a case in point on NGOs' role in the administration of international affairs.[40]

When talking about NGOs, some of them are particularly worth mentioning. These are the International Committee of Red Cross, the International Union for Conservation of Nature (IUCN), the Global Fund to Fight AIDS, Tuberculosis, and Malaria; Gavi, the Vaccine Alliance (Gavi), and the World Anti-Doping Agency (WADA). The particularity of these NGOs is that they have a hybridity character, and they all share a mission of international interest. To a certain extent, especially in the case of ICRC, they are deemed as having legal personality and enjoy the privilege of immunity.[41] The reasons behind this are closely connected to the functions these institutions played in the administration of international affairs. Whether more NGOs would enjoy a similar kind of privilege is a question that remains to be developed.

(3) International Law Enforcement[edit | edit source]

Enforcement of international law has long been dubbed as the “vanishing point of international law.”[42] With the veil of sovereignty, it is hard to envisage an enforcement mechanism backed by a superior organ as in the domestic scenario. However, this defect of problematic enforcement can be remedied by the“soft” enforcement which NGOs led. As some authors have observed, modern information technology has dramatically accelerated the flow of information. By this, NGOs worldwide can cause a “boomerang effect” that can equip NGOs with the necessary civil power-public opinion- to compel or even coerce States into the issues of global concern.[43] One can observe these trends in human rights and environmental protection in particular.

In the Montreal Protocol on Substances that Deplete the Ozone Layer, NGOs are implicitly tasked to monitor the compliance behavior of the state party. If they found any treaty breach, they could notify the secretariat of the situation, thus ensuring a quick sanction process.[44] In the human rights field, the role of NGOs is particularly eye-catching. By issuing shadow reports and adopting the “naming and shaming” strategy, human rights NGOs can pressure States to comply with relevant human rights norms. In the meantime, we can observe that some judicial or quasi-judicial mechanisms have opened the door to NGOs.[45] For example, in the WTO dispute settlement mechanism, NGOs may submit amicus curiae opinion to assist the resolution of trade disputes.[46] Another method that NGOs might contribute to the enforcement of inthrough domestic litigation. By doing so, it may press the States to conform to relevant international standards.

D.   A Critical Appraisal of NGOs in International Law[edit | edit source]

NGOs, as some scholars praised, are the vanguard of global democracy.[47] Acting individually, NGOs have provided ordinary people the outlet to make their voices heard worldwide, which once was the exclusive domain of the sovereign states. NGOs are leading a “global association revolution”.[48] Suppose we pay attention to what is happening in the world. In that case, we may encounter many organizations such as Green Peace, Amnesty International, Human Rights Watch, and the recent Nobel Peace Prize winner ICAN or the International Campaign to Abolish Nuclear Weapons; they are fighting at the forefront for world peace, sustainable environment, and human rights. What is more, NGOs are not powerless actors protesting in the corner. Constituting the main body of Global Civil Society (GSC), NGOs gained legitimacy and potency to occupy streets, block unfavorable bills and criticize governments.

However we should spare some time for a second thought on the all bright image of NGOs. NGOs, or Global Civil Society, are not without ambiguities. Here, this introduction will make three submissions and elaborate on them later. Firstly, GSC is not a bounded “non-governmental” space but a means of making global politics governable in particular ways. In this regard, NGOs, states, and markets are closely intertwined and mutually constituting; Secondly, NGOs with the prefix of “non” assume “autonomy” or “voluntary.”However, on occasion, this introduction submits that NGOs represent the interests of certain social groups, especially the powerful groups. Thirdly, against the progressive and empowering image of NGOs, this introduction proposes that NGOs also engage in the power struggle and cannot escape tensions and contradictions as they try to transform the politics.[49] This introduction will turn to another concept, “NGOization,” closely related to the above three characterizations of NGOs.

The term “NGOization” is commonly used among many social movements, activist networks, and academics to refer to the institutionalization, professionalization, depoliticization, and demobilization of movements for social and environmental change.[50] As many scholars have pointed out, NGOization is a relatively new phenomenon that concurred with the outgrowth of neoliberalism or, put it another way, NGOization is a “symptom”desired by the neoliberal ideology. As some scholars put very directly, “the greater the devastation caused by neoliberalism, the greater the outbreak of NGOs”.[51] Only by NGOization, NGOs gain the organizing imperative and internal momentum to participate in the world struggle under the disguise of non-government, impartiality, and independence.

Sabine Lang provided a more precise depiction of the NGOization phenomenon in his monograph NGOs, Civil Society and the Public Sphere.[52] Here this introduction will summarize the three indicators of NGOization proposed by him: professionalization, institutionalization, bureaucratization.

  • Professionalization: compared to the self-motivated and random occurrence of social movements, NGOs are more and more professionalized in the contemporary world, which incorporates a modern organizational logic like the for-profit organizations. The staff and leadership became the expert that as the veteran in the NGO industry complex. NGOs must adapt to key performance indicators (KPI) to win donors' trust to ensure that they spend the money well. On the one hand, professionalization can enhance efficiency and mobilization; on the other hand, it pushes NGOs to acquire a routinized and habitual frame when engaging with social problems.[53] In the end, NGOs lost the unique character of being creative, innovative, and romantic.
  • Institutionalization: like professionalization, institutionalization is required to meet the highly competitive donor-securing environment. NGOs need to adopt specific structures and follow certain decision-making procedures to prove that they are reliable partners. NGOs need to consider the strategy adopted in the process, for they cannot afford to irritate other stakeholders, especially the powerful ones. What is more, according to Lang, by being institutionalized, NGOs tend to change their operating logic from an outsider of the government to an insider of governance, thus creating opportunities for NGOs employees to take advantage of the revolving door to pursue job opportunities in the government sector.[54] [8]As a result, NGOs develop into just another mundane game player of the social movement division of labor rather than being the vanguard of social change.
  • Bureaucratization: likewise, to win the contracts, NGOs have to behave more bureaucratized, for they have to fill the forms and eye on indicators desired by the donors. This leads to the "bureaucratization of social discontent," which means social ruptures felt by poor and marginalized people became encapsulated and insulated in individualized caseworker files and administered through the bureaucratized NGOs.[55] NGOs are pulled to instill predictability, functional hierarchies, and monitoring in the operations, and they are encouraged to carry out "upward" rather than "downward" accountability.

Based upon the above analysis of NGOization, we can conclude that this phenomenon seriously hampered NGOs' autonomy, neutrality, and "progressiveness." To understand NGO properly, one needs to see the larger picture, put it against the current political and social situation, and inquire about how NGO discourse is mainstreamed in contemporary international law. This will provide us with an illuminating case to see how the expertise is utilized to pursue specific political agendas under the disguise of innocence.

E. NGOs, International Law, and International Politics[edit | edit source]

The proliferation of NGOs does not happen by one night. However, international lawyers have long been notorious for neglecting the power dissemination underlying the normative rules. Major publications about NGOs in international law mainly possess an optimistic tone of these new actors. NGOs are hailed as “new global potentate”or “global superpower,”which can break the iron curtain imposed by states.[56] In a "borderless" world, NGOs can traverse the boundary of states to provide citizens the possibility to validate their rights. Under this world view, some positivist international lawyers have started to envisage a future international law to accommodate better NGOs' participation in the making, adjudication, and enforcement of international norms.[57] Some scholars even began to discuss the possibility of incorporating NGOs as international legal persons.

There is an apparent rupture between the two images of NGOs and the “mainstream international lawyers”to use Martti Koskenniemi's words, ignore the fracture and continue to "believe" in the bright side of NGOs.[58] Here we arrived at the critical moment to expose the NGO's innocence of international law and think about the "politics of international law" by drawing a larger picture. It is vital to remember that any international rule, which is covered with neutrality and formalism in its first appearance, entails power distribution in a more profound sense. This case is what Prof. David Kennedy has told us in the third chapter of A World of Struggle.[59] In the following part, this introduction will briefly introduce how the discourse of NGOs sneaked into international law and what implications it has for the shape of international law we have today.

As mentioned before, NGOs entered the ambit of international law at a relatively late time. John Boli used the words “suddenly”to describe the so-called rediscovery of "civil society" in the global arena.[60] NGOs acquired the charisma lost by the states to become the bearer of hope for an equal world. Nevertheless, what comes with the bright sides are the dark sides. The relationship between states and NGOs is not what we thought of as an opposite or contesting pair. As Sangeeta Kamat pointed out, NGOs are the white gloves of states, especially the dominant western states, to discharge their responsibility to provide public goods under the neoliberal ideology.[61] Kamat argues that most NGO analysts reify state and civil society as “totemic motifs”and obfuscate how NGOs are being integrated into global capitalist relations.[62] He continues to argue that "the NGO phenomena must be theorized concerning the global economic and political process that involves an overall restructuring of public good and private interest. At stake is not the struggle between state and civil society, but a revaluation of private interest and the public good.[63] The NGO representation of public good is an illusion for the dominant neoliberalism logic has made NGOs invisible to the states and International Organizations to advance their political and economic agendas.

The NGOization phenomenon can be apprehended more clearly. One impetus of NGOs to be professionalized, institutionalized, and bureaucratized is to win donors' trust, primarily Western states, and international organizations. Furthermore, under ostensible autonomy, these NGOized NGOs cannot help but follow the dictations of the donors and accept the following audit and accountability mechanism. Two severe adverse implications come with NGOization under neoliberalism. Firstly, NGOs are pulled to engage in public relations rather than public engagement, which means NGOization tends to increase strategic dimensions at the expense of substantive dimensions in the relationship between organizations and their public, and a successful NGO behaves more like a public relation (or “PR”) company, counting the projects finished, forms filled, and questionnaire received.[64] Secondly, NGOs turned from activism to advocacy. Advocacy conjures images of experts who assess specific spheres of influence and target specific goals and institutions. Activism, by contrast, might make specific demands; often, however, activists raise their voices without direct instrumental implications.[65] This turning means NGOs are no longer at the forefront of social movement but are shrewd actors in the competitive social society market to weigh losses and gains to determine whether to do so.

Drawing David Kennedy's description of expertise in A World of Struggle, we can say that the reification of NGOs is such expertise that merits caution.[66] By exposing itself to such innocence and enthusiastically embracing NGOs, international law participates in the collusion of distribution process created by the expertise about NGOs. This expertise has deep ideological connotations and is artificial engineering through knowledge production and discourse dressing.

F. Conclusion: International law as a struggle in the case of NGOs[edit | edit source]

The case of NGOs has provided us with a vivid example to observe the perils of international law. By embracing NGOs or the more intriguing Global Civil Society without a second thought, international lawyers celebrate the advent of a more democratic, inclusive, and cosmopolitan international law, which can bring hope for a murky world dominated by greedy, aggressive, and violent states. However, suppose we dig into the impetus of the explosion of NGOs and the popularity of civil society on the global stage. In that case, we cannot deny that the natural face of NGOs is challenging to ascertain. NGOs are the vanguard of social activism to counter injustice, brutality, and discrimination; what is more, NGOs can also be the fire brigade to put off the fire lit by the neoliberal states. NGOs are caring agents for the sake of humanity, but they can also be shrewd groups with the sheer aim to attract donors and fulfill the formal obligations, which are far from the real needs of the weakness. International law is participating in a real struggle by building an alliance with NGOs, and in this struggle, as international lawyers, we have to take note of the losses and gains that ensued.

Further Readings[edit | edit source]

  • Aziz Choudry and Dip Kapor (eds.), NGOization: Complicity, Contradiction and Prospects (Zed Books, 2013).
  • Anna-Karin Lindblom, Non-governmental Organizations in International Law (Cambridge University Press, 2005).
  • Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World(Berkeley CA: University of California Press, 2002).
  • Alison Van Rooy, The Global Legitimacy Game: Civil Society, Globalization, and Protest, Palgrave Texts in International Political Economy (Palgrave Macmillan, 2004).
  • Barbara K. Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice Queen Mary Studies in International Law, Vol.2 (Martinus Nijhoff Publishers, 2010).
  • Bob Reinalda, Math Noortmann and Bas Arts (eds.), Non-state Actors in International Relations (Ashgate, 2001).
  • Chiang Pei-heng, Non-Governmental Organizations at the United Nations: Identity, Role, and Function (New York: Praeger, 1981).
  • David Rieff, A Bed for the Night: Humanitarianism in the Crisis (Simon &Schuster, 2002).
  • Daniela Tepe, The Myth about Global Civil Society; Domestic Politics to Ban Landmines (London: Palgrave Macmillan, 2012).
  • David Chandler, Constructing Global Civil Society: Morality and Power in International Politics (Palgrave Macmillan, 2004).
  • Gideon Baker and David Chandler (eds.), Global Civil Society: Contested Futures (London and New York: Routledge, 2005).
  • Heidi Nichols Haddad, The Hidden Hand of Justice: NGOs, Human Rights, and International Courts (Cambridge University Press, 2018).
  • INCITE! Women of Color against Violence (ed.), The Revolution Will Not be Funded: Beyond the Non-Profit Industrial Complex (South End Press, 2007).
  • Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law (Intersenia, 2010).
  • John Keane, Global Civil Society? (Cambridge University Press, 2003).
  • Jem Bendell, Debating NGO Accountability (United Nations Non-Governmental Liaison Service, 2006).
  • Jens Steffek and Kristina Hahn (eds.), Evaluating Transnational NGOs: Legitimacy, Accountability, Representation(New York: Palgrave Macmillan, 2010).
  • Janne E. Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (The Hague: T.M.C Asser Press, 2004).
  • Jan Aart Scholte (ed.), Building Global Democracy: Civil Society and Accountable Global Governance (Cambridge University Press, 2011).
  • Kristen Martens, NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (Palgrave Macmillan, 2005).
  • Lester M. Salamon et al., Global Civil Society Dimensions of the Nonprofit Sector, Vol.1 (The Johns Hopkins Comparative Nonprofit Sector Project 1999).
  • Lyman C. White, International Non-governmental Organizations: Their Purposes, Methods, and Accomplishments(New York: Greenwood Press, 1968).
  • Molly Ruhlman, Who Participates in Global Governance? States, Bureaucracies, and NGOs in the United Nations. Global Institutions (Taylor and Francis, 2014).
  • Margaret E. Keck, Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998).
  • Mary Kaldor, Global Civil Society: An Answer to War? (Polity Press, 2003).
  • Peter Willetts, The Conscience of the World: The Influence of Non-Governmental Organizations in the UN System(London: C. Hurst & Co. Publishers, 1996).
  • Raphael Harel Ben-Ari, The Normative Position of International Non-Governmental Organizations under International Law (Martinus Nijhoff Publishers, 2012).
  • Sabine Lang, NGOs, Civil Society, and the Public Sphere (Cambridge University Press, 2013).
  • Thomas Davies, NGOs: A New History of Transnational Civil Society (Oxford University Press, 2014).
  • Volker Heins, Non-governmental Organizations in International Society: Struggle for Recognition (Palgrave Macmillan, 2008).
  • William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: St. Martin's Press, 1998).

Conclusion[edit | edit source]

  • Summary I
  • Summary II

Table of Contents[edit source]

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Steve Charnovitz,“Nongovernmental Organizations and International Law.”The American Journal of International Law, Vol.100, No. 2, 2006, p.350.
  3. Paul Wapner, “Introductory Essay: Paradise Lost? NGOs and Global Accountability”, Chicago Journal of International Law,Vol.3,No 1, 2002, p. 157.
  4. Quoted from Volker Heins, Nongovernmental Organizations in International Society: Struggles for Recognition, Palgrave Macmillan, 2008, p. 3.
  5. See Reza Hasmath, Timothy Hildebrandt & Jennifer Y. J. Hsu, Conceptualizing Government-organized Non-governmental Organizations, Journal of Civil Society, Vol.15, No.3, 2019, pp.267-284. see also, Fiona McGaughey, From gatekeepers to GONGOs:A taxonomy of Non-Governmental Organisations engaging with United Nations human rights mechanisms, Netherlands Quarterly of Human Rights, Vol.36, No.2, 2018, pp.111-132.
  6. For example, in some UN occasions, Civil Society and NGOs are used interchangably. See UN Civil Society Webpage, https://www.un.org/en/civilsociety (last accessed on 27/2/2022). See also “We the Peoples: Civil Society, the United Nations and Global Governance”, the report of the 12-member Panel of Eminent Persons on United Nations-Civil Society Relations, A/58/817, 2004. Some authors also prefer to use “civil society” in academic writings, see John Keane, Global Civil Society? (Cambridge University Press, 2003); Mary Kaldor, Global Civil Society: An Answer to War (Polity Press, 2003); David Chandler, Constructing Global Civil Society: Morality and Power in International Politics (Palgrave Macmillan, 2004); arbara K. Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice, Queen Mary Studies in International Law, Vol.2 (Martinus Nijhoff Publishers, 2010); Michael Edwards (ed.), The Oxford Handbook of Civil Society (Oxford University Press, 2011).
  7. Aristotle firstly brought up the concept “ Politike Koinonia” and it is closely related with the idea “civil society” that we are studying today. See Hu Jian and Dong Chun-shi, “The Concept and Feature of Civil Society”, Journal of Northwestern University, Vol.35, No.2, 2005, p. 113. [Original in Chinese]
  8. Some chinese scholars did very extensive research on the concept of “civil society” and this article mainly relies on them to illustrate. On Hegel’s theory on civil society, see Zhou Yongkun, “On the transformation of the concept civil society and its inner logic”, Tsinghua University Law Review, Vol.8, No.4, 2014, pp.72-73.See also, He Zengke, On the Conceptual Transformation of Civil Society, Chinese Social Sciences, Issue 5, 1994, pp. 67-81. [Original in Chinese]
  9. Antonio Gramsci, Selections from Prison Notebooks, Cao Leiyu et al. translates, Chinese Social Sciences Press, 2000, p.7. [Chinese Edition]
  10. Jürgen Habermas, Structural Transformation of the Public Sphere (Cambridge: MIT Press, 1989), p. 206.
  11. See Steve Charnovitz, “Two Centuries of Participation: NGOs and International Governance”, Michigan Journal of International Law, Vol.18, No.2, 1997, pp.184-286
  12. Charles Chatfield, “Intergovernmental and Non-Governmental Associations to 1945”, in Jackie Smith, Charles Chatfield and Ron Pagnucco (eds.), Transnational Social Movements and Global Politics: Solidarity Beyond the State (Syracuse, NY: Syracuse University Press, 1997), p. 21.
  13. See Thomas Davies, “Understanding Non-governmental Organizations in World Politics: The Promise and Pitfalls of the Early ‘Science of Internationalism’”, European Journal of International Relations Vol.23,No.4, pp. 884-905,2017.
  14. A general discussion on “Eurocentrism”, see Martti Koskenniemi, “Histories of International Law: Dealing with Eurocentrism”, Rechtsgeschichte, Vol.19, 2011, p. 158.
  15. Michael Barnett, Empire of Humanity: A History of Humanitarianism (Ithaca, NY: Cornell University Press, 2011), p. 16.
  16. James Petras, “NGOs: in Service of Imperialism”, in James Petras and Henry Veltmeyer (eds.), Globalization Unmasked: Imperialism in the 21st Century (Zed Books, 2001), pp.128-130.
  17. See Thomas Davies, NGOs: A New History of Transnational Civil Society (Oxford University Press, 2014). This book made a very detailed survey on the up and downs of the development of INGOs across history.
  18. See Cedric Ryngaert, “Non-State Actors: Carving out a Space in a State-Centered International Legal System”,  Netherlands International Law Review, Vol. 63, No.2, pp. 183-195, 2016.
  19. [2] See Hugh Thirlway, “The Role of Non-State Actors: A Response to Professor Ryngaert”, Netherlands International Law Review, Vol. 64, No.1, pp. 141–153 ,2017.
  20. See Roland Portmann, Legal Personality in International Law (Cambridge University Press, 2010).
  21. Article 71, The Charter of the United Nations.
  22. See UN ECOSOC Resolution 1996/31 Consultative Relationship between the United Nations and Non-Governmental Organizations, 25 July 1996, paras. 60-61.
  23. UN Website, “Introduction to ECOSOC Consultative Status”, https://www.un.org/ecosoc/en/ngo/consultative-status,(Last accessed  on 27 February 2022).
  24. See“We the peoples: civil society, the United Nations and global governance: Report of the Panel of Eminent Persons on United Nations–Civil Society Relations”, A/58/81711, 2004.
  25. See Peter Willets,“The Cardoso Report on the UN and Civil Society: Functionalism, Global Corporatism, or Global Democracy?” Global Governance,Vol.12, No. 3,pp.305–24, 2006.
  26. Council of European Resolution (51) F, Relations with International Organizations, both Intergovernmental and Non-governmental, 3 May 1951.
  27. European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations, adopted on 24 April 1986.
  28. CP/RES. 759 (1217/99), Guidelines for Participation by Civil Society Organizations in OAS Activities, 15 December 1999, para. 2.
  29. See George Kaloudis, “Non-governmental organizations: mostly a force for good”,International,Journal on World Peace, Vol. 34, No. 1, pp. 81-112,2017.
  30. Assembly/AU/Dec 48 III, Decision on the Economic, Social and Cultural Council (ECOSOCC), 6–8 July 2004.
  31. See Experts/PRC/ECOSOCC Statutes/Rev.5, Statutes of the Economic, Social and Cultural Council of the African Union, Article 7.
  32. See Usman A. Tar, “Civil Society and Neoliberalism”, in E.Obadare (ed.), The Handbook of Civil Society in Africa (Springer, 2014), pp.253-270.
  33. ] See Kenneth Anderson and David Reiff, “Global Civil Society: A Skeptical View”, in M. Glausis, M. Kaldor and H. Anheier (eds.), Global Civil Society2004/5, Oxford: Oxford University Press, 2004, p. 35
  34. Peter M. Haas, “Introduction: Epistemic Communities and International Policy Coordination”, International Organization, Vol. 46, No. 3, 1992, p. 3.
  35. Erik B. Bluemel, “Overcoming NGO Accountability Concerns in International Governance”, Brooklyn Journal of International Law, Vol. 31, No. 1, 2005, p. 162.
  36. Williams and Goose, “The International Campaign to Ban Landmines”, in M.A. Cameron, R.J. Lawson, and B.W. Tomlin (eds.), To Walk Without Fear: The Global Movement to Ban Landmines, Oxford: Oxford University Press, 1998, p. 20.
  37. See Michael J. Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency, New York: Palgrave Macmillan, 2008.
  38. Peter J. Spiro, “New Global Potentates: Nongovernmental Organizations and the Unregulated Marketplace”, Cardozo Law Review, Vol. 18, 1996, p. 962.
  39. See Sergey Ripinsky and Peter Van Den Bossche, NGO Involvement in International Organizations: A Legal Analysis, London: British Institute of International and Comparative Law, 2007, pp. 67–69.
  40. See Karsten Ronit and Volker Schneider, “Global Governance through Private Organizations”, Governance, Vol. 12, No. 3, 1999, pp. 243–266.
  41. The ICRC stands alone among INGOs for it attains sui generis status as subject of international law.
  42. See Richard Falk and Asli Ü. Bâli,“International Law at the Vanishing Point.” Middle East Report, No. 241, pp.34–48, 2006.
  43. See Margaret E. Keck, Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998).
  44. Elizabeth P. Barratt-Brown, “Building a Monitoring and Compliance Regime under Montreal Protocol”, Yale Journal of International Law, Vol. 16, 1991, p. 564.
  45. See Robyn Eckersley, “A Green Public Sphere in the WTO? The Amicus Curiae Interventions in the Transatlantic Biotech Dispute”, European Journal of International Relations, Vol. 13, No. 3, 2007, pp. 329–356.
  46. See William J. Aceves, “Actio Popularis? The Class Action in International Law”, University of Chicago Legal Forum, 2003, p. 355.
  47. ] See Jan Aart Scholte, “Global Governance, Accountability and Civil Society”, in Jan Aart Scholte (ed.), Building Global Democracy: Civil Society and Accountable Global Governance, Cambridge: Cambridge University Press, 2011, pp. 1–40.
  48. Lester M. Salamon, “The Rise of the Nonprofit Sector”, Foreign Affairs , Vol.73, No.4, 1994, p.109.
  49. See Amoore Louise and Paul Langley, “Ambiguities of Global Civil Society”, Review of International Studies, Vol. 30, No. 1, 2004, pp. 89–110.
  50. See Aziz Choudry and Dip Kapor (eds.), NGOization: Complicity, Contradiction and Prospects (Zed Books, 2013).
  51. Arundhati Roy, “Help that hinders”, Le Monde Diplomatique (English Edition), 1 November 2004.
  52. Sabine Lang, NGOs, Civil Society, and the Public Sphere( Cambridge: Cambridge University Press, 2013).
  53. See Aziz Choudry, “Global Justice? Contesting NGOization: Knowledge Politics and Containment in Anti-globalization Networks”, in Aziz Choudry and Dip Kapoor (eds), Learning from the Ground up: Global Perspectives on Social Movement and Knowledge Production, New York: Palgrave Macmillan, 2010, pp. 17–34.
  54. Supra note 51, p. 73.
  55. Ibid., p.74.
  56. Peter J. Spiro, “New Global Potentates: Nongovernmental Organizations and the Unregulated Marketplace”, (1996) 18 Cardozo Law Review, pp.957-69.
  57. See Anna-Karin Lindblom, Non-Governmental Organizations in International Law (Cambridge University Press, 2005).
  58. Martti Koskeniemi, “The Mystery of Legal Obligation”, International Theories, Vol. 3, No. 2, 2011, p. 324.
  59. See David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy, Princeton: Princeton University Press, 2016.
  60. John Boli, “International Non-Governmental Organizations”, in W.W. Powell and R. Steinberg (eds), The Non-Profit Sector: A Research Handbook, New Haven: Yale University Press, 2006, p. 340.
  61. Sangeeta Kamat, “The NGO-ization of Grassroots Politics”, in P. Leistyna (ed.), Cultural Studies and Practical Politics, Boston: Blackwell Publishers, 2004, pp. 142–156.
  62. Sangeeta Kamat, “The Privatization of Public Interest: Theorizing NGO Discourse in a Neoliberal Era”, Review of International Political Economy, Vol. 11, No. 1, 2004, p. 156.
  63. Ibid.
  64. Aziz Choudry and Eric Shragge, “Discipling Dissent: NGOs and Community Organizations”, Globalizations, Vol. 8, No. 4, 2011, p. 510.
  65. John Morison, “The Government-Voluntary Sector Compacts: Governance, Governmentality, and Civil Society”, Journal of Law and Society, Vol. 27, No. 1, 2000, p. 109.
  66. Focault’s term “governmentality” squarely applies in taming NGO. See Ole Jacob Sending and Iver B.Neumann, “Governance to Governmentality: NGO, States and Power”, International Studies Quarterly, Vol. 50, 2006, pp. 651–672.