Fr. Acteur

Sp. Actor

-> Agency, association, empire, factor, nongovernmental, state, system

The environment of IR is typically described in terms of arenas and subarenas or, in other terms, factors. Within these areas and processes, there have emerged over time a variety of actors, whether conceived as units (states, inter-state organisations, and possibly nongovernmental associations and federations of such bodies, or even individuals), unformal movements or sets constituted into systems or networks.

A state system

Modern states have formal organizational structures and pursue a wide variety of interests and goals that reflect a broad spectrum of internal and external factors and influences, with the greatest range of choices at their disposal when operating in the international arena. The primacy of the state in the international system dates to the Treaty of Westphalia in 1648 (actually a pair of Treaties, the Treaty of Osnabrück and the Treaty of Münster, two Wesphalian cities), which brought to an end the Eighty Years' War between Spain and the Dutch and the German phase of the Thirsty Years’ War, which had diminished Germany's population by two thirds. The Spanish-Dutch treaty was signed “in the name of the most holy and individual Trinity » on January 30, 1648. The Treaty of October 24, 1648, comprehended the Holy Roman emperor Ferdinand III, the other German princes, France, and Sweden. England, Poland, Muscovy, and Turkey were the only European powers that were not represented at the two assemblies.

Today, in the absence of a world polity to impose universal rules and standards of behavior and impose and enforce order, states remain sovereign entities, free to govern affairs within their territorial borders and act in defense of their national interests. This state of affairs may include what some political scientists call “the return of empires”, referring to former empires with a nominal state structure but longing for the past. For example, the Russian state is not exempt from the sense subjugation, as it was for two and a half centuries part of the Mongol Empire, having laid claim to be the Third Rome and rule the world after the fall of Constantinople, the ‘Second Rome’ in 1453. Neither is it familiar with democracy, as its colonial subjects were forced to bear the weight of the Empire, first as serfs, then as nominally free people but without the right to land, self-government or real representation in the organs of power, until the failed attempts to bring genuine emocracy in recent times.

Another type of “return to empire” was once pleaded for by former Tony Blair's foreign policy guru Robert Cooper, who thinks that chaotic situations and failed states should be met with a new type of imperialism compatible with human rights and cosmopolitan values. He calls it “voluntary imperialism” (global economy and global institutions such as the IMF and the World Bank, and European enlargement), “postmodern imperialism” (protectorate policies imposed on instable neighbouring countries, as in Bosnia and Kosovo). The EU in particular is presented as a cooperative empire offering rules and norms, liberty and security, and ethnic inclusiveness as ooposed to ethnic exclusiveness of nation-states.

Obviously, even in the latter case, states are the ultimately decision makers, despite the substantial body of international law, norms, and principles they are willing to accept and the agreement to renounce the use of force in international affairs. It also reflects the persistent sense of identity people derive from their nation-state or nationality and their reluctance to accept a supranational authority. International cooperation between states, as occurs in the European Union, appears as “utopian realism”, with its all-embracing technocratic management and the absence of strong common political institutions. The relative failures to integrate in areas such as foreign policy, immigration, and internal security may imply a retreat from the prospect of a “ever-closer union” or a transition period before a two-tier EU is established, or new supranational bodies are created to control financial markets, fiscal policies or external borders.

Non-state actors

The supremacy of states has been otherwise questioned by the emergence of transnationalism, formally subdivided into three forms of interstate cooperation - supranationalism, multilateralism, and transgovernmentalism, but can also imply relationships between state and non-state actors. The latter type gave rise to the concept of transnational governance as the coordination of policy decision making or enforcement in a given issue area across national borders. Beyond and across traditional government and interstate relations, the concept of governance typically involves nonstate (nongovernmental organizations, multinational firms) and inter-state (international organizations) actors to respond to problems which cross national jurisdictions, often in the absence of meaningful involvement by national governments. True, this issue is not new, as stated by Thomas Jefferson, 3rd president of US (1801-1809): “I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around [the banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.” (attributed by the Associated Press, March 11, 2009) In the 20th century, this view was reflected in the quasi-religious beliefs that market forces are guided by the “invisible hand” of Adam Smith. A striking illustration of this stereotype is given by the World Business Academy, which is “not just another association of business people to exchange information and foster collegiality,” but understands that business is the dominant institution in society today and the one most capable of responding to rapid change and to disseminate business into the world to rekindle the human spirit in business: “Business has become, in this last half of century, the most powerful institution on the planet. The dominant institution in any society needs to take responsibility for the whole, as the church did in the days of the Holy Roman Empire. But business has not had such tradition. This is a new role, not yet well understood or accepted” Harmann, 2005).

In this context, the recognition of non-state actors, and the development of a more restricted civil society in democratic societies in the second half of the 20th century, have increasingly assumed transnational dimensions. These related concepts are particularly fuzzy, as they include conventional NGOs, unofficial social movements and economic agents as well as nationalist groups such as the Kurds of Iraq or Syria or non-state actors such as ISIS (which by the way take advantage of an environment of weak or failed states to claim state status), but they are widely shared among both specialists and the public. Interestingly, interventions in these cases by external states are presented as being about “saving” failing states. Both concepts are studied in different disciplines, with different approaches: sociology, political science, law, history, economics, cultural studies, anthropology, with few attempts to bring scholars to arrive at a comprehensive understanding of transnationalism. One such attempt emerged from the inter-paradigmatic debate, introducing transdisciplinary concepts such as the transnational and transcultural dimensions, while shedding new light on globalisation and its impact on political, social, or communal identities. A response was being sought to the changing pattern of power relations, toward what appears as a form of “complex" or "plural" multilateralism (O’Brien et al., 2000, Chan 2017) involving a system of governance made of a plurality of actors: not only states and inter-state organizations conventionally recognized by international law, but also networks and communities diversely formalised into civil society organizations, whether on a corporate or a non-profit basis. The “multi-stakeholder” dialogues and “multilayered identities” are some of the concepts associated with multipartite governance structures, which have arisen as a novel feature of the institutional landscape. To some extent, a coexistence has been prevailing between various paradigms, implying the common recognition that, in the debate between state-centric and transnationalist views, both the state and societies are constant references in history. While the latter proclaim the fading of the state and the emergence of a new Cosmopolis based on the setting up of universal jurisdictions, the former keeps announcing the demise of multilateral institutions and international law, retreating to a identification with the sovereign nation-state, if not with the closed community or an all-embracing “civilisation”. This paradoxical trend took an explicit turn with the transnational militancy in Seattle, Prague and Genoa around 2000, which clashed with the “emerging” powers, the terrorist attacks on various cities in the early 21rst century and various fundamentalist trends, among which the so-called Islamic State that emerged from a disintegrating Middle East.

Another aspect which has usually been ignored in IR is the role played by individuals. In the past, historical figures include celebrated women such as Boadicea, the historical queen called Boudica, Queen of the Iceni, wielding her spear against the armies of occupying Rome; the Rani of Jhansi, rousing her troops against British forces in India; Cleopatra of Egypt, Tamara of Georgia, Catherine the Great of Russia, Golda Meir, Indira Ganghi, Margaret Thatcher and other women who are not only in charge but in charge of war. The difficulties in conceptualizing the role of individual actors in world politics has been addressed by a number of researchers, such as Michel Girard (1994) and a dozen colleagues, or more recently Jacobi and Freyberg-Inan y (2015). Both argue that human beings have always been central to IR. The former reminds us of the long way from the undefined individual to the human person recognized as such, but warns againt an excessive subjectivism which would undervalue the state and other collective structures, as a result of the ascendancy of a critique of the state by idealistic of transnationalist scholars. Another argument in the latter book is that, by decentring human beings, an underdeveloped concept such as agency can be better understood ‘by moving not from human agents directly to social structure, but first of all to the social structure of agency” (326).


Stephen Chan, Plural International Relations in a Divided World, Polity, 201

Michel Girard (dir.), Les individus dans la politique internationale, Economica, 1994
R. O'brien, A.M. Goetz, Jan Aart Scholte & M. Williams, Contesting global governance: multilateral economic institutions and global social movements, Cambridge: CUP, 2000
Daniel Jacobi and Annette (eds.), Human beings in International Relations, Cambridge: CUP, 2015
Susanne Hoeber Rudolph (ed.), Transnational Religions & Fading States, Boulder: Westview Press, 1997
Paul Ghils, “Transnational society as a reasonable Utopia for the 21st century,” in Transdisciplinarity Theory and Practice, Basarab Nicolescu (Ed.), California Institute of Integral Studies, Hampton Press, 2007
Paul Ghils, “International Relations and its languages: A transdisciplinary perspective”, TRANS, Internet-Zeitschrift für Kulturwissenschaften, August 2004
Paul Ghils, “The International Civil Society”, International Social Science Journal, UNESCO, 133, August 1992
Marcel Merle, “Le retour de l’Etat”, La Croix, 21 novembre 2002
Marcel Merle, “Les acteurs dans les relations internationales”, Revue française de science politique, 1987/ 2, 249-251
John A. Hall, “The Return of the State”, Social Science Research Council, New York, 2002
John Keane, ‘Cosmocracy”, Centre for the Study of Democracy, September 2002
Thomas Risse-Kappen (ed.), Bringing Transnational Relations Back In, CUP, 1995
Robert Cooper, “Why we still need empires”, The Observer, April 7, 2002
Willis Harmann, World Business Academy. http://www.worldbusiness.org/about/about-willis-harman


 

New players in international relations

 

Eric SUY

Emeritus Professor, Catholic University of Leuven. Professor Extraordinarius, University of the Free State, Bloemfontein.

Formerly Under-Secretary-General and The Legal Counsel of the United Nations

This paper is reproduced from Transnational Associations, 3/2002, 162-169. © All rights reserved.

 

1. Public international law, as it is tought still today, emphasizes the prominent position of subjects of international law as the main actors in international relations and, therefore, in international law. The subjects are those entities which are the addressees of international legal rules or norms, the bearers of international obligations and rights. Traditional international law distinguishes between states and international organizations as subjects of international law. The latter have only recently been recognized as limited subjects of international law, and only to the extent that states, the primary subjects of international law, grant international rights to and impose international obligations on the intergovernmental organizations which, therefore, became subjects of international law by the grace of states which are and remain the original subjects of international law.

 2. The peculiarity and, indeed, the uniqueness of international law is and remains that the very subjects of this legal order, viz. the states, are also the entities that create international law, either through state conduct (practice) leading to custom, or through interstate agreements or treaties. Intergovernmental organizations, as subjects of international law, are created by interstate agreements or treaties called: covenant, charter, constitution, act, treaty, etc… It is important to emphasize that states remain the primary subjects of international law and that, without these primary subjects, there are no other subjects of international law, be they interstate organizations or other entities which have gradually emerged as limited subjects of international law.

 3. Gradually, and even before intergovernmental organizations became subjects of international law, entities other than states acquired the status of - albeit limited – subjects of international law. In the case of the Holy See and, to a more limited extent, of the Sovereign and Military Order of Malta, their acceptance as subjects of international law was largely due to the fact that , at some point in history, they had been sovereign rulers over a given territory (the Papal states and Malta) and, therefore, full subjects of international law. Today, these entities remain important actors in the field of international relations. This is particularly true for the Holy See, although some confusion may persist because of the simultaneous existence of the Vatican State, a micro-state with a given territorial base. International law has also recognized belligerents as subjects for the very reason that they were (and still are) a force to be reckoned with, and that they may, through the fortune of arms, eventually become the legitimate rulers of the country. In other words, the status of subject of international law of these entities depends upon their acceptance and recognition by the original subjects of international law viz. the States, as important actors in interstate relations. Whereas intergovernmental organizations are accepted as subjects of international law by treaties between states as primary subjects, the new ‘entities’ acquired the status of subjects of international law through their own and specific role as actors which states ultimately recognized through practice.

 4. Recent times have seen other significant changes in the perception of the role of entities other than states and international organizations as important actors in interstate relations. These changes stem either from the Charter of the United Nations, or from the practice of the various United Nations principal organs. A most important group of actors are, of course, the non-governmental organizations (NGOs) which have a consultative status with the Economic and Social Council of the United Nations (article 71, UN Charter). The General Assembly of the United Nations has admitted observers to either the Organization or to the Assembly and/or its organs. The Security Council and the General Assembly dealt with topics and adopted resolutions concerning a variety of non-state actors such as liberation movements, terrorist organisations, individuals, and private enterprises.

We purpose to examine some of the most recent and salient developments concerning the role mainly of non-governmental organizations and the national liberation movements. In the light of this, the question will be dealt with to what extend the doctrine of state sovereignty has been affected.

The Evolution of the Role of Non-governmental organizations

5.   The Charter of the United Nations recognizes the important role of non-governmental organizations as non-state actors in Article 71 which runs as follows:

      “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”[1]

This is not the place to dwell upon the ‘arrangements’ for consultation with non-governmental organizations. Suffice it to say that the relationship between the United Nations and the NGOs has undergone important changes during the history of the Organization[2]. First, there is the number of organizations with consultative status which stands at approximately 2.000. Second, the procedure and the type of arrangements have recently been modified in order to reflect the changing relationship[3]. Third, some non-governmental organizations have also been granted a special status as observers with the General Assembly[4]. Fourth, at major international conferences called for by the United Nations General Assembly on topical issues, the

participation of non-governmental organizations in parallel and simultaneous meetings has largely contributed to the results of these conferences. NGOs were thus given a special opportunity for lobbying and exerting an influence on the delegations[5]. Fifth, frequently, states and intergovernmental organizations call on NGOs to participate in and even take the lead of humanitarian operations because of their special knowledge and experience. The awarding of the Nobel Peace Price to the International Campaign to Ban Landmines (ICBL) in 1997 and to Médecins sans Frontières in 1999 is an eloquent example of the international recognition of the role and importance of humanitarian non-governmental organizations as prominent non-state actors[6].

6. Except for their admission to the status of consultative partners in the United Nations Charter and in constitutions of other intergovernmental organizations, such as Unesco and the Council of Europe, and except also for their authorized participation at international conferences, the role of NGOs as non-state actors in the formal decision-making-process, either in the legislative or in the executive organs of intergovernmental organizations, has still to be institutionalized. There is, of course, one notable exception in the constitution of the International Labour Organization which granted such an enviable position to representative groups of both workers and employers.

If non-governmental organizations, as the larger group of non-state actors, are gradually acquiring more weight, and as they have an increasing impact on the informal process of decision-making, there is every reason for granting those actors a more visible role whenever states will proceed to a revision of existing constitutions of intergovernmental organizations, including the Charter of the United Nations. To put it in the words of Secretary-General Kofi Annan: “our post-war institutions were built for an inter-national world, but we now live in a global world. Responding effectively to this shift is the core institutional challenge for world leaders today”[7].

The Contribution of NGOs to the development of International Law

7. It is obvious that non-governmental organizations dealing with international law, such as the Institut de Droit International and the International Law Association are likely to have a considerable impact on the future development of international law. Indeed, legal advisors of Ministries of Foreign Affairs and of intergovernmental organizations, international law professors and practitioners, judges in international and regional courts, members of the International Law Commission usually are also members of these learned societies, and as such they contribute, in their individual capacity, to the elaboration and the development of international law. Several similar associations in the field of international environmental and space law likewise contribute to the development of these branches of international law[8].

8. To the extent that other NGOs are important non-state actors, capable of influencing the conduct of states and governments, they may also play an important role in the formation and the development of international law. Whoever participated in the drafting of international conventions in the field of modern aspects of international law will be able to witness to the often driving force of NGOs in the international law making process. It is true that, hitherto, states and their representatives and negotiators are always the final and exclusive partners in the treaty-making process. But in some important instances, the conduct of states has been largely influenced by NGOs whose representatives are sometimes members of the official state delegation. In some instances, individuals at the helm of those NGOs were able to play a prominent personal role in influencing changes in international law. It is, of course, impossible to give a complete picture of those typical and topical contributions by NGOs. Here is a largely uncleared field for scientific research which will have to be based on the archives of both the relevant NOGs and of states.

I merely wish to refer briefly to the contribution of the International Catholic Child Bureau (ICCB) and of its then Director-General, the Rev. Canon Moerman, in the elaboration of the 1989 Convention on the Rights of the Child. When states, after difficult and protracted negotiations, adopted in 1988 a Convention on theRegulation of Antarctic Mineral Resources Activities, leading environmentalists, arguing that the entry into force of this convention would jeopardize the fragile ecosystem of the region, started a vigorous campaign against the ratification of the convention. Greenpeace and 'Commander' Cousteau, who in person visited the heads of state, prime ministers and ministers of foreign affaires of the 'consultative' parties, were instrumental in obtaining that those same states, led by Australia and France, eventually agreed on a fifty years mining ban. This was achieved in the Protocol on Environmental Protection to the Antarctic Treaty, adopted in Madrid on 4 October 1991.

Is it necessary to stress the prominent role of Henri Dunant in the drafting of the first Geneva Convention in 1864, and that of the International Committee of the Red Cross (ICRC) in the elaboration of the 1949 four Geneva Conventions ? Here again, the final text was adopted by states in an international conference. But the groundwork was done by experts under the direction of the ICRC. During an international conference which met from 1974 to 1977, two additional protocols were negotiated again under the aegis of the ICRC. The personal role and impetus of the conference's chairman, Jean Pictet, should also be emphasized as an example of a non-state actor's contribution to the development of international law[9].

In a remarkable and extremely well documented study, Ken Rutherford of Southwest Missouri State University, examines the contribution of the International Campaign to Ban Landmines, a conglomerate of about one thousand NGOs, to the elaboration of the Ottawa Treaty banning anti-personnel landmines. One of his conclusions is that "(t)he landmine case provides a prologue to future NGO attempts at changing state behavior in certain issue-areas"[10].

9. In a somewhat broader context, the United Nations Security Council dealt with problems of international humanitarian law for the first time during the Iraq-Kuwait Conflict. Several resolutions condemn the violations of international humanitarian law by Iraq[11]. Thus, in Resolution 666 (1990), the Council reaffirms that Iraq remains fully responsible for the safety of third-state nationals "in accordance with international humanitarian law including, where applicable, the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949"[12] .

In the same resolution, the Council directs the Sanctions Committee that it should bear in mind that foodstuffs should be provided through the United Nations "in cooperation with the International Committee of the Red Cross or other appropriate humanitarian agencies"[13].

In Resolution 670 (1990) of 25 September, the Security Council condemns Iraq's continued occupation of Kuwait and its holding of third-State nationals against their will, in flagrant violation i.a. of "international humanitarian law"[14]. In the same Resolution, the Council reaffirms that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, applies to Kuwait and that "Iraq is bound to comply fully with all its terms and in particular is liable under the Convention in respect of the grave breaches committed by it"[15].

On 18 December 1990, the United Nations General Assembly adopted a resolution concerning the situation of human rights in Kuwait which contains several references to the principles of international humanitarian law, the ICRC and the protection of the civilian population[16].

In the famous Resolution 687 (1991) the Council decides that "Iraq shall extend all necessary cooperation to the International Committee of the Red Cross" in furtherance of its commitment to facilitate the repatriation of all Kuwaiti and third-state nationals. The Council also invites the ICRC to keep the Secretary-General of the United Nations apprised of all activities undertaken in connection with facilitating this repatriation[17].

  1. This survey of the prominent role of the ICRC in the development and implementation of international humanitarian law should be completed by a reference to two recent events. Firstly, ever since the creation of the United Nations peace-keeping operations, the question has been raised whether the 1949 Geneva Conventions and the 1977 Protocols thereto are applicable to the United Nations Blue Helmets and to their operations. The official position of the Secretariat has always been that the general principles of humanitarian law were applicable to the peacekeeping operations, but not the Conventions and Protocols as such, because the United Nations was and is not a party to these legal instruments. On 6 August 1999, however, a somewhat different position was adopted when Secretary-General Kofi Annan issued a Bulletin on Observance by United Nations forces of international humanitarian law[18]. This promulgation, without expressly referring to the Geneva Conventions and the Protocols, states that "(t)he fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence"[19] . This formal recognition of the applicability of international humanitarian law to certain types of U.N.operations is a step in the right direction, but it leaves many questions unanswered.                                                                                                                   Secondly, it is important to draw the attention to Security Council Resolution 1296 (2000) of 19 April 2000 which deals with the protection of civilians in armed conflict.

This Resolution is an important addition to existing international humanitarian law in that it confirms that "the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security " thus opening the possibility for the Council to take action under Chapter VII of the Charter of the

United Nations. Those few examples seem to confirm that the Security Council of the United Nations takes an active interest in the observance and the development of international humanitarian law in the light of the international and, especially, of the national armed conflicts in which the Organization becomes involved. There is no doubt in my mind that these recent developments have been brought about by the sustained action of the representatives of the ICRC in New York.

  1. NGOs are active not only in the process of developing international law and of its codification, but also, and perhaps more prominently so, in the verification of the implementation of international commitments by states. Although actions of NGOs as watchdogs have not been institutionalized, they are nevertheless sometimes highly visible thus contributing to a better implementation of the law. This is undeniably the case in the field of human rights where Amnesty International and Human Rights Watch, to name only these two, function as efficient controllers[20] . Similarly, NGOs sometimes play an effective role in the field of disarmament and arms control as well as in the proces of implementing international environmental law. This unofficial and informal verification by NGOs functions rather well, and any attempt to institutionalize this role may jeopardize the independence and neutrality of the NGOs and hence the quality and reliability of their findings.

 

National Liberation Movements, Belligerents and Factions in Internal Conflict

12.   During the process of decolonization, especially since 1970, the United Nations supported national liberation movements which existed in various countries and territories then still under colonial rule or under foreign domination by giving them some sort of recognition. The most visible form of such recognition was the decision by the United Nations General Assembly to grant the observer-status to these movements, either directly, which was the case in 1974 for the Palestine Liberation Organisation (PLO), or indirectly, in admitting as observers those liberation movements and organizations which had been recognized by the Organization of African Unity[21].

The recognition of the national liberation movements by the United Nations amounted to the promotion as proto-states. This, eventually, led to the sovereign independence of new states. This newly acquired status did not exclude, however, that competing liberation movements continued the struggle for internal domination once independence was a fact. This is still the drama in former colonies in Africa, such as Angola, where UNITA, once recognized as a national liberation movement in the struggle against the Portuguese colonial regime, continues to fight for domination in a civil war situation against the universally recognized government of the independent and sovereign state of Angola.

13. The refusal by UNITA to accept the verdict of free elections led the Security Council to adopt a series of resolutions under chapter VII of the United Nations Charter in which ‘sanctions’ were decided against UNITA [22]. This was the case in Resolution 864 (1993) which was the first one in which the Council imposed sanctions upon an entity which was not a state – and even not a proto-state – while holding this entity responsible for its illegal conduct. In subsequent resolutions, the Security Council, still acting under Chapter VII of the Charter, condemned the attitude and actions of UNITA[23]. It is submitted that the international community, represented by the United Nations General Assembly and Security Council, does no longer accept any liberation movement as representing the people under colonial yoke and foreign domination once independence has been achieved. Factions within an independent and liberated country which continue to use force in the struggle for political domination have no longer anything in common with the original liberation movement they once might have been. Theirs is the status of belligerents in an internal conflict or civil war. Sometimes, the international community intervenes in an effort of pacification which may lead to the acceptance, by all the parties involved, of a peace-agreement. The recent developments in Africa and in Central America prove the successes, but in some cases also the failures and weaknesses of such agreements. In some instances, the United Nations Security Council, acting under Chapter VII of the Charter, has determined that the violation of those agreements to bring about law and order in a state, may be a threat to international peace and security, either in general, but mostly in the region.

14. This does not imply that the right of self-determination is denied. It simply means

that the right has been shifted from the external to the internal level [24], and that, consequently, the use of force which was recognized as legitimate in the struggle against colonialism, foreign occupation and apartheid, is no longer accepted in the exercise of the internal right of self-determination. The handling by the Security Council of the Kosovo question is a case in point.

It should be emphasized that the Council, in all its resolutions dealing with this crisis, expressly affirms the commitment of the international community to the "sovereignty and territorial integrity of the Federal Republic of Yugoslavia"[25]. The Council further stresses the necessity for a negotiated settlement and expresses its support for an "enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful self-determination"[26]. The Council also condemns the use of "excessive" force by Serbian police forces, "as well as all acts of terrorism by the Kosovo Liberation Army"[27]. While imposing an arms embargo, the Council decided that all States "shall prevent arming and training for terrorist activities there"[28]. When, after NATO's military intervention in the Federal Republic of Yugoslavia, the Security Council adopted Resolution 1244 (1999), it decided "that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and as further elaborated in the principles and other required elements in annex 2". The demilitarization of the Kosovo Liberation Army and other armed Kosovo Albanian groups is one of these elements. One of the main responsibilities of the international civil presence includes: "(P)romoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo"[29]. The pattern followed by the Security Council is similar to solutions adopted in situations of civil strife in other countries, such as Sierra Leone, where the Council refuses to ackowledge the admissibility of the use of force by factions, and orders their demilitarization and disarmament while stressing the necessity for a political solution which would respect the unity of the State. In other words, internal self-determination should be peaceful, and the use of force, although a fact which has to be taken into account, cannot be condoned because it would affect the sovereignty of the State.

Other Transnational Actors in Uncivil and Civil Society

15. - In his already quoted report We the peoples: the role of the United Nations in the twenty-first century[30] the United Nations Secretary-General Kofi Annan discusses 'new vulnerabilities' which globalization has created to old threats. He emphasizes, in particular, "(c)riminal networks (which) take advantage of the most advanced technologies to traffic around the world in drugs, arms, precious metals and stones - even people. Indeed, these elements of "uncivil society" are constructing global conglomerates of illicit activities"[31]. This problem of organized international crime also covers other well known modern phenomena such as: piracy at sea, terrorism in all its aspects, bribery and corruption, money laundering, tax evasion through international havens and illegal immigration. The revolution in global communications already changes the way many people work and live, and some non-state actors take advantage of this revolution to undermine the fundamentals of state sovereignty. States and their governments are compelled nowadays to deal more and more with criminal challenges emanating from individuals and groups. The latter, in all their appearences, have indeed become powerful actors influencing international relations and the development of international law. States and their governments have become, to a large extent, the re-actors to those new challengers. The ever growing number of international agreements against all forms of terrorist activities, against money-laundering and the recently signed Convention against Organized Crime with its two Protocols clearly indicate that, in future, major parts of international law will deal with problems generated by non-state actors.

 

16. - It should, however, be emphasized that the course of international relations and of international law is not only influenced by elements of "uncivil society", but that elements of highly developed society have the same, and perhaps even a more important influence. Globalization, even if it still is a controversial term and phenomenon, has mainly to do with the communications revolution. Another aspect is the growing trend of transnational mergers and acquisitions giving rise to more and more powerful transnational corporations. Globalization is brought about, not by states or by governments, but by individual investors and inventors and by the companies they have created. States, therefore, tend to control the power and influence of these corporations which they sometimes view as a threat to their sovereign rights. But is state sovereignty really threatened by all those non-state actors ?

Non-State actors: a challenge to State sovereignty ?

17. States, intergovernmental organizations and belligerents are the traditional subjects of international law. But there are many more non-state actors which, without having formally obtained the status of subject of international law, play an important role in the conduct of international relations and, hence in the formation of international law. Most of these 'modern' actors are non-governmental organizations the importance of which has already been recognized in the law of international organizations by the possibility of granting them an appropriate, mostly consultative, status. Nowadays, NGOs have become much more influential, and the states rely upon their experience in order to formulate new policies and new rules.

Other 'entities' have appeared on the forefront of international relations. The international community of states has dealt with the issue of transnational corporations when, since the middle of the 1970s, an attempt was made in the United Nations to curb the activities of the TNCs by the elaboration of appropriate guidelines. The new era of globalization will, no doubt, see an intensified effort by states to regulate the activities of corporations which they may deem dangerous to the exercise of their sovereign rights and to their national interests.

Finally, individuals have become more and more the concern of international relations. International humanitarian law has, traditionally, been dealing with the conduct of combattants in armed conflicts. The development of international humanitarian law during the last quarter of the XXth century, and the growing concern of its implementation through the creation of international criminal courts and tribunals clearly point to the increasing role individuals may play as non-state actors. States are compelled to deal more and more frequently with the activities of individuals and of groups in a variety of fields which can be qualified as highly criminal and which are likely to affect the authority and the sovereignty of the states as major actors in international relations. Non-state actors are, therefore, a factor to be reckoned with while thinking about and preparing a possible but necessary restructuring of the international community, while at the same time uncivil and/àr criminal conduct of non-state actors must be addressed effectively at the international level. The voices of the Peoples of the United Nations should be heard and listened to more carefully. This trend already exists. But structural changes in the international community will be necessary allowing for the most beneficial contribution of the non-state actors to the peaceful development of international relations.

  1. Addressing the annual NGO conference organized by the UN Department of Public Information, Secretary-General Kofi Annan stated on 28 August 2000: "You are our best defence against complacency, our bravest campaigners for honesty and our boldest crusaders for change". While ultimately, decisions about the level of NGO participation in the United Nations'work would be taken by the member states, he said: "I believe that in time, they will agree that our doors must be open". In his Millenium Report, which was published a few days later, the Secretary-General stated: "the international public domain - including the United Nations - must be opened further to the participation of the many actors whose contributions are essential to managing the path of globalization"[32]. In the otherwise rather disappointing Millenium Declaration, the heads of State and Government sound much more cautious when, in section VIII on Strengthening the United Nations, they resolve, as a last point, "to give greater opportunities to the private sector, non-governmental organizations and civil society, in general, to contribute to the realization of the Organization's goals and programmes"[33]. This remark shows the hesitation and reluctance of states to share their power with non-state actors.

And yet, the practice of participation by non-state actors in the various fields covered by the specialized organizations of the United Nations system can be described as useful, fruitful and rewarding. The member states of these organizations will gladly admit that the expertise of non-state actors is a welcome contribution to the work of the organizations. Those familiar with the working methods of the Commission of the European Union in preparing the various legal instruments which make up the 'acquis communautaire' can bear testimony to the important contribution of the non-state actors either as lobbyists or as consultants. The active participation of non-state actors in the elaboration of the law and policy does not per se go at the expense of state sovereignty. After all, the final decision-making rests with the states.

The foregoing obviously does not apply to non-state actors whose purpose is to challenge the authority of the state such as the liberation movements in a non- decolonisation context, international criminal organizations and other organized gangs. Similarly, the power and influence of global companies, the decisions of which may have farreaching consequences for the prosperity of peoples and countries, may affect the sovereignty of smaller and developing countries. It is, therefore, compelling that states remain vigilant against the excesses of globalization. Recent manifestations by the 'civil society' are there to remind us of the potential baleful influence of those corporations on state sovereignty.

  1. A final question should be addressed: given the growing impact of non-state actors on the behaviour and decision-making of states and of intergovernmental organizations, could an institutionalizing of this expanding relationship contribute to enhancing this cooperation ? Is there a need for regimentation ?

In the course of this study, we have indicated several times that, save for constitutional provisions on some form of relationship between international organizations and NGOs, the cooperation is based upon practice. States have always shown a tendency to keep the NGOs and their activities under some control. A minimal regulation is required, both at the national and international level, in order to ascertain that interested groups fulfil certain requirements such as legal personality, minimal membership, healthy financing, accountability, purposes fitting with those of the international organization with which they seek an affiliation. It is, therefore, normal and necessary, that intergovernmental organizations and their member states establish rules for the recognition of NGOs willing to enter into some form of relationship with them. The consultative or observer status will provide the NGO with well defined facilities and possibilities to air their concern, present their views and even exert pressure in order to promote and provoke action by the organs of the organizations and by their member states. The practice of the United Nations shows that there is some degree of flexibility allowing for a regular adjustment of this relationship. Formal arrangements institutionalizing the cooperation would, most probably, amount to freezing a relationship which is advantageous also for the member states[34]. The latter will, no doubt react, if they feel that the power and influence of the non-state actors, and of the NGOs in particular, become a threat to the exercise of their sovereign rights.

It would, however, be wrong to conclude that the acquisition of some status with an intergovernmental organization confers upon the NGO an international legal personality, even if the NGO is entitled to actively participate in the international decision-making process or otherwise in the activities of an intergovernmental organization. The fact that persons deployed by a humanitarian non-governmental organization may, under certain circumstances, be protected by the Convention on the Safety of United Nations and Associated Personnel[35] does not confer upon them or upon the NGO concerned a status of even limited international legal personality. Also in this respect do states remain the ultimate decision makers.

It is generally recognized that the transfer, by states, of sovereign rights to intergovernmental organizations does not affect their sovereignty. The powers and competence of the state may be diminished, but the transfer is proof of their sovereignty.

Similarly, in allowing NGOs to participate in the decision-making process, states, directly or through intergovernmental organizations, do not give away sovereign rights. In many fields, states and international organizations can no longer do without the expertise of NGOs which have thus become privileged partners in international relations[36]. The growing rôle of non-state actors in international relations tells strongly in favor of a healthy concern for democratization of the international relations through the involvement of knowledgable, experienced and responsible non-state players.

             


[1]  For an exhaustive commentary and literature, see R. Lagoni, subArticle 71 in B. Simma, ed., Charta der Vereinten Nationen. Kommentar (1991) pp. 857-871, and also the English edition: The Charter of the United Nations-A Commentary (1995), pp. 901-915

2 Transnational Associations - Associations transnationales, the Review of the Brussels based Union of International Associations contains, in my view, the best series of studies dealing with the evolving status of non-governmental organizations in their relations with various intergovernmental organizations. For a most recent, thorough and comprehensive analysis of international non-state actors in the era of globalization, see W. Hummer, Internationale nichtstaatliche Organisationen im Zeitalter der Globalisierung-Abgrenzung, Handlungsbefugnisse, Rechtsnatur, in Berichte der Deutschen Gesellschaft für Völkerrecht, vol. 39 (2000) pp. 45-230.

3 The Economic and Social Council of the United Nations established, by its resolution 3 (II)(1946), a Committee on Non-governmental Organizations with a mandate to examine and report on the consultative relationship which ECOSOC should accord to NGOs and to recommend what action should be taken on submissions which those organizations may make to it. In resolution 1996/31, the Economic and Social Council adopted new criteria by which ‘arrangements’ on consultative status for NGOs may be established.

4Although the General Assembly has traditionally granted observer status to intergovernmental organizations, non-member states recognized by specialized agencies, and national liberation movements, NGOs, such as the International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent societies were granted observer status in  1990See in general: E. Suy, The Status of Observers in International Organizations, in Académie de droit international, Recueil des Cours vol  II-1978, pp. 75-179, and R.N. Sybesma-Knoll, The Status of Observers in the United Nations (1981). 

[5]  Thus, during the Millenium Forum, representatives of more than thousand NGOs gathered at the United Nations in New York during five days in May 2000 in order to formulate a collective vision for the hew century and the role of the United Nations and of civil society in the major issue areas of today. A Declaration proposing i.a. the creation and funding of a Global Civil Society Forum was presented to the world leaders gathered at the Millenium Summit which took place early September 2000.

[6] One may perhaps consider that most of the recipients of the Price also belong to the group of important non-state actors.

[7]  We the peoples: the role of the United Nations in the twenty-first century. Report of the Secretary-General, G.A. Document A/54/2000, § 30.

[8] See the Yearbook of International Environmental Law (since 1989), and the works of the International Institute of Space Law.

[9] See: Studies and Essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet   (1984).

[10] K. Rutherford, The landmine ban and NGOs: the role of communications technologies, in Transnational Associations (2/2000) pp.  60 - 73, at 73. This study focuses on the use of communications technologies in order to increase the NGOs opportunities for success in changing state behavior. See also ICBLs website at http://www.icbl.org.

[11] E. Suy, 'International Humanitarian Law and the Security Council Resolutions on the 1990-1991 Gulf Conflict' in A.J.M. Delissen and G.J. Tanja, eds., Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven,  (1991) pp. 515-526.

[12]  The United Nations and the Iraq-Kuwait Conflict 1990-1996, The United Nations Blue Book Series, Vol. IX, Document 13 , pp. 172-173.

[13]  SC Res 666 (1990) , § 6

[14]  2nd preambular paragraph.

[15]  Operative § 13, Idem, document 16 pp. 175.

[16]  A/Res/45/170, Idem, document 20 pp. 178-179.

[17]  SC Res 687 (1991), section G, §§ 30-31, Idem, document 35 pp. 197.

[18] ST/SGB/1999/13, reprinted in International Review of the Red Cross, nr. 836, December 1999, 812-817.

[19] See the comments by A. Ryniker,  Respect du droit international humanitaire par les forces des Nations Unies, supra n. 19 pp. 795-805.

[20]  See on this aspect: P.R. Baehr, Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Human Rights NGOs, in E. Denters and N. Schrijver, eds., Reflections on International Law from the Low Countries, in Honour of Paul de Waart  (1998) pp. 135-155.

[21]  This formula was used in order to avoid being trapped into the intricacies of having to deal with several liberation movements operating in the same territory.

[22]  P.H. Kooijmans, The Security Council and Non-State Entities as Parties to Conflicts, in K. Wellens, . ed., International Law: Theory and Practice. Essays in Honour of Eric Suy (1998) pp. 333-346.

[23] See also the SC Resolutions 1127 (1997) ,  1173 (1998) and 1229(1999).

24 On this distinction, see P.H.Kooijmans, Zelfbeschikkingsrecht. Naar een nieuwe interpretatie ? in N. Sybesma-Knoll & J. Van Bellingen , eds., Naar een nieuwe interpretatie van het Recht op Zelfbeschikking (1995) pp. 157 ff.  For a recent view on self-determination: Th. Christakis, Le droit à l'autodétermination en dehors des situations de décolonisation (1999).

[25] SC Res. 1160 (1998), SC Res. 1199 (1998) , SC Res. 1244 (1999).

[26] SC Res. 1160 (1998), operative § 5,  SC Res. 1199 (1998), preambula, repeated in SC Res. 1203 (1998)  and in SC Res. 1244 (1999), also in the preambula.

[27] SC Res. 1160 (1998), preambular § 3

[28] Idem, operative § 8, repeated in SC Res. 1186 (1998) preambular § 2 , in SC Res. 1199 (1998), preambular part, and in SC Res. 1203 (1998), preambular part.

[29] Operative § 11 (a). Our italics.

[30]  Doc. A/54/2000

[31]  Idem, § 34.

[32] We the Peoples. The Role of the United Nations in the 21st Century. p. 13.

[33] A/RES/55/2 of 8 September 2000

[34]  See supra in paragraphs 6 and 11

[35]  Adopted on 9 December 1994 by GA Res 49 (59). See art. 1, (b), (iii).

[36] This privileged partnership of NGOs is also highly visible in national politics and decision-making.

 


A legal tangle: the "status" of nongovernmental international organizations between

international law and nation

Marcel Merle

Prof. Emeritus at the University of Paris I (Panthéon-Sorbonne). This article is the English translation of "Un imbroglio juridique : le "statut" des OING, entre le droit international et les droits nationaux", in L'internationalité dans les institutions et le droit. Etudes offertes à Alain Plantey, Pedone, Paris, 1995, reprinted in Transnational Associations, 5/1995, by permission of the publisher. All rights reserved.

The gaps in the law (especially numerous in international law) never cease to fascinate the observer of organisations. How is it that mankind, so careful in regulating the course of all social activities, can overlook one or two of them and abandon them to the law of the jungle? Is it because of the lack of curiosity about certain terrae incognitae, which are still distant and, for the time being, inaccessible? This argument may hold true of sectors that are being turned upside down, such as that of bio-ethics, where the law is dependent on fast-moving scientific progress; but it does not extend to long-standing and easily marked situations, as with non-governmental international organizations (INGOs). Are they in fact sectors which are perfectly marked out but subject to a kind of taboo, as with primitive societies, whose violation would seem a sacrilege? Such a theory in the light of the secularization of the law. Is it possible, on the other hand, that these gaps have deliberately been left unfilled by an implicit consensus, whereby everyone stands back, preserving their reciprocal rights, from encroaching on the margin of manoeuvre from which other decision-takers seek to benefit? That seems a more plausible explanation. However, to confirm it, we must explore the void left by the absence of law and, like a potholer, map out the subterranean currents that explain the origin or the disappearance of the flow that he has noted on the surface.

The problem presented by the absence of an appropriate status for INGOs is a perfect illustration of this working hypothesis. On the one hand, we see an accumulation of phenomena; on the other, all we find in existing law are fragments of an answer, ill-adapted to the problems raised through the vitality of the tendency to associate. The latter is the more apparent as it is one of the more characteristic expressions of the transformation that occurred in international relations during the last century. True, the existence of a cross-border solidarity between beliefs or between interests goes back further than yesterday. But the examples that we can find in history either emerged at a time when political power was fragmented and incapable of ensuring the control of territory (cf. the urban leagues or the religious orders in the Middle Ages) or they came up against a defensive reaction by the State (cf. the expulsion of the Jesuits and the distrust of Freemasons, suspected in each case of wishing to create a state within the state). Nowadays, we have left this reticence and the state of mind far behind us. The statistics are there to prove it: the States that signed the Pact of the League of Nations in 1919 were 31 in number; those who signed the Charter of the United Nations in 1945 numbered 50. Today, the UN has 182 members, namely a sixfold increase in less than a century. By comparison, the Yearbook of International Organizations tells us that the number of inter-governmental organizations (IGOs) has increased from 37 in 1909 to 297 in 1993, i.e. an increase of slightly less than tenfold, while, within the same period of time, the number of INGOs has increased from 176 to 12,457, namely an increase by a factor of 70. In the light of these statistics, we can understand how many observers have interpreted the proliferation of INGOs as proof of the emergence of a "civil society" in the face of the grouping of states and why they have regarded this process as foreshadowing a radical transformation in the structure of international relations. We shall in due course consider the reasons for a more restrained assessment[1].

However it might be truly described, this quantitative thrust is a "social fact" possessed of its own dynamics: aware that they are meeting aspirations that governments are not - or are no longer - able to satisfy, the INGOs are demanding their place in the sun by claiming the granting of a "status" recognizing their specific nature but also and above all, endowing them with the necessary rights to discharge their functions on the international scene. From the start, however, the discussion seems distorted. Although the INGOs are claiming special status, they do so to overcome the constraints imposed on them both by national law and by the carving up of territory by frontiers. However, these two kinds of obstacle are inherent to the juxtaposition of sovereign states holding a monopoly in the creation of the rules of law. The INGOs themselves have no power to grant themselves special status; they have no hope of achieving this, save through intervention and concessions on the part of the groupings of states, whose influence they are at the same time seeking to reduce and whose privileges they are disputing.

A dramatist would say that the fate of victims lies in the hands of their executioners and the former can hope for an improvement in their lot only by the good grace of the latter. To put it more simply, in legal language, only the State has the ability to grant INGOs the special status they claim. This already explains the lack of enthusiasm that governments have shown in finding a solution to the problem.

               I. THE MYTH OF THE UNIFICATION OF NATIONAL STATUS

The question is one that firstly affects each state taken individually. Many of the difficulties encountered by INGOs would be resolved if states were to agree to adopt a single model association status, or, at least, to reduce the disparities that persist both in their functioning and in their regulation.

Unfortunately, such "standardization from the ground upwards" has little chance of success, owing to the weight of national tradition, especially heavy in this field. Authoritarian regimes have long looked at the association tendency with suspicion, until the time when they discover the opportunities for influence that it offers them. Under the banner of private organizations, structures have been erected for organizing and mobilizing the population which soon became mouth-pieces for political propaganda for instruments at the disposal of the authorities. Many "development" schemes, (albeit beneficial) in Third World Countries have been guided by processes of that kind. Although liberal regimes have nothing to learn, they have nothing to give either. It took France more than a century to overcome the ban imposed by the Le Chapelier Act and it had to wait until 1901 before associations were granted the right to be freely formed, under a non-restrictive regime. But association status has, hereto, frequently led to a misuse of power by government. The latter has not hesitated to set up fictitious associations (such as the "Carrefour du développement" in the mid-Eighties) intended to receive grants, for which there was then no mandatory public accountability. But the defence of "good causes" may also hinder financial transparency, as the budgets of humanitarian associations are in principle fed from public funds.

The distinction between national and international associations for its part varies similarly from one country to another. Some have introduced a radical discrimination between the expenditure of international associations regarded as "foreign" and subject to a system of prior authorization and the discretionary powers of dissolution (French system introduced by the Decree of 12 April 1939, as a result of the threat of war, but kept in force until October 1981). On the other hand, other laws grant favourable conditions for certain international associations (Belgian Act of 25 October 1919, supplemented by that of 6 December 1954, "granting civil personality to international associations pursuing a philanthropic, religious, scientific, artistic or educational aim"). Other systems draw no distinction between national and international associations, provided the latter are established within the frontiers of the state (as in Switzerland and France since the repeal of the 1939 decree).

The spontaneous sweeping away of such disparities is a pious hope. No government will unilaterally take the decision to align its laws on those of its neighbour since association status is engrained in national tradition and government custom. Besides, a harmonization of laws would presuppose an alignment on a joint reference standard, which could be created only by a joint decision of the states beforehand. Let it be noted, finally, that the "downgrading" of the status of INGOs by purely and simply placing them on the same basis as national associations in their host country would only partly meet the desires of those concerned: on the one hand because such reference to national law would leave all kinds of disparities affecting the status of national associations from one country to another, and on the other because such assimilation would accelerate the segmentation of the international association movement and would mean the latter losing the benefit of all privileges that it might claim to assist with the deployment of its cross-border activities. What the INGOs need is not so much equal treatment by States as recognition of their own rights, which may be invoked before and, if necessary, against the State authorities.

Putting the problem in these terms is to recognize that the solution is an international convention granting INGOs appropriate status.

                                   II. THE "CONSULTATIVE STATUS" TRAP

Pending this ultimate beatification, the INGOs believe they have found some solace in "consultative status", a model for which exists under article 71 of the United Nations Charter, which reads as follows:

"The Economic and Social Council may take all useful steps to consult non-governmental organizations concerned with matters within its jurisdiction. These provisions may apply to international organizations and, where applicable, to national organizations after consulting the Organization Member concerned".

The Pact of the League of Nations did not even mention private international institutions while the workings of the Geneva Organization paid them scant attention.

The possibility of henceforth being associated with the work of one of the principal bodies of the United Nations, in this case the Economic and Social Council, was legitimately regarded as a victory by the representatives of INGOs. Their success was all the greater since article 71 was to serve as a model for specialized institutions and for most of the regional organizations (e.g. the Council of Europe). A vast network of relationships was therefore installed as from 1945 between the IGOs and the INGOs. To what extent these innovations contributed towards improving the condition of the INGOs is hard to say.[2]

True, the category of INGOs emerged from obscurity. It was in fact following publication in the United Nations Charter that it received the patronym by which it is today identified. But recognition of their existence has only limited effect and can in no way be regarded as equivalent to "legal status".

Firstly, the position of spokesman for the INGOs remains reserved to a limited number of partners. It is up to the authorities of the IGOs to grant and, where applicable to withdraw this privilege. The regime is therefore one "granted" unilaterally and at discretion, not vested ipso jure and remaining precarious and revokable. In fact, only a few hundred INGOs (approx. 700, according to the United Nations out of more than 12,000 units surveyed) are permitted to participate in the work of the IGOs. The others are kept at arm's length of all recognition. It is true that the General Assembly of the United Nations has softened the stringency of this discrimination by inviting a growing number of INGOs to participate in the major conferences that it has organized on subjects of a general nature, such as the environment, disarmament or population. The number of delegations despatched was such (2,500 private participants in the Earth Summit in Rio de Janeiro, 1992) that two conferences had to be organized separately in parallel. Within the framework of the "Forums" allocated to them, the INGOs acted as representatives of a kind of world public opinion within which contradictory proposals were frequently tackled. In fact, these events largely played the role of a pressure group, aimed at influencing the work of the experts or government delegates who were attending the official conferences. Dialogue between the two categories of bodies on occasion suffered from certain forms of demagogic over-bidding and the confusion that resulted. However, be that as it may, these experiments had only limited extent and cannot be regarded as offering recognition to those invited, beyond the period of the meetings.

These being beneficiaries appointed under article 71 and equivalent provisions, the so-called "consultation" scheme extends only to bilateral relations between the IGOs and the INGOs concerned. It gives rise to no objective right that may be held out against third parties (including Member States of the Organization). The consultation mechanism therefore does not confer international personality on its addressees. It would be wrong to regard a simple functional arrangement, which has no effect beyond the departmental limits of the IGOs as "status".

Finally, this "pseudo-consultative status" grants the INGOs only very limited prerogatives. Most of the beneficiaries must be happy with the distribution of information and non-participant attendance at debates. Only a minority of the "major" INGOs were entitled to ask for questions to be included on the agenda, to submit brief arguments in writing and, even more rarely, to have their say at meetings. In no event were voting rights granted to representatives of INGOs. This means that the consultative function was construed in very restrictive terms and that the INGOs had very little opportunity to influence the decisions of the IGOs.

This restrictive interpretation is clearly disputed by INGO representatives, who quite rightly claimed their prerogatives. Under the pressure of the latter, the Economic and Social Council on 29 July 1993 passed a resolution opening the debate on the reform of consultative status.[3] There is no reason to believe that its work will end with a favourable result before the fiftieth celebration of the Charter and that States will abandon the distrust that they have so far shown towards the INGOs.

Although the IGO/INGO relationship is only one element of the "status" of the INGOs, it nonetheless remains an essential link in the operation of the international system. To be fair, one should mention here the often fruitful collaboration between the two categories of institution in the field of international cooperation. Many INGOs have accordingly been invited to participate in setting up aid schemes on the ground or to offer training under the aegis of the specialized institutions.

In this connection, a word must be said about the problems raised through the humanitarian intervention in recent situations of armed conflict (former Yugoslavia, Somalia and Rwanda). The situation that the partners concerned must face up to does not fall under article 71 of the Charter, but it concerns to the fullest extent the question of the relationship between "private" and "public" in international relations. The humanitarian organizations operate in a field where not only rival factions but also the "blue helmets", entrusted by the Security Council with tasks that are sometimes less than certain and, with armed forces possibly placed under the direct and exclusive control of certain States (United States in Somalia, France in Rwanda), are manoeuvring. Where it is most needed, the humanitarian approach becomes impossible, as it is constantly asked for, exploited and distracted from its objective through the strategy of the parties on the spot.[4]

The problem is not that of finding a solution but simply to draw attention to the seriousness of the disfunctions resulting from the total absence of coordination between private initiative and the action of those who pull the political strings, national or international. The matters at stake go well beyond academic debate, but it would do little good to show proof of sophistication in perfecting consultative status if it was at the expense of finding a "code of conduct" to associate the private sector and the public sector in the solution of the more dramatic crises that affect the course of international relations. Even if the case is an extreme one, this example shows that legal gaps exist that can have catastrophic consequences in certain circumstances. We have seen that "consultation" is insufficient to grant status. Where there is not even consultation, we come back to the law of the jungle.

Since, in any case, consultative status is an illusion, the difficulty must be tackled head-on and the preparation of a true international status for INGOs envisaged.

                   III. TOWARDS AN INTERNATIONAL STATUS FOR INGOs?

This is not a new plan and it can boast of at least one famous precedent, that of the formation of the Red Cross. In fact, there is nothing to stop States as a group from setting up organizations, public or private, to which functions considered useful or necessary for the international good order are entrusted. In 1864, the nations agreed on the initiative of an ordinary private citizen, the Swiss Henry Dunant, to entrust a private organization, the International Committee of the Red Cross, with the task of offering succour to the injured on the field of battle and subsequently to come to the aid of victims of all armed conflict. Strictly in law, the Red Cross remains an association governed by Swiss law, whose directors must be Swiss nationals but which is entrusted, with the aid of national sections attached to it, with a true international public service mission. Its founder was blessed with the intuition of a genius when he suggested to the nations that the duty of acting in circumstances where international relations reach a high degree of conflict should be left to a private, neutral and independent institution.

But, States as a group may also entrust an inter-governmental organization with a more modest task. That is the case with the International Diplomatic Academy, founded in 1926 by a convention signed by 91 governments and whose objective is "the joint study of international problems by statesmen and diplomats". In fact, the functioning of the Academy, which is established in Paris, is very similar to that of a INGO, as its operation is more often a matter of personalities than of governments.

On the basis of these two examples, one may wonder why States have appeared so reticent in attributing INGOs the status that they seek. Ten projects have been worked out since 1910 within the framework of prestigious institutions (including the Institute of International Law) and patronized by persons whose authority has been universally recognized (Nicolas Politis, Suzanne Bastid, amongst others)[5]. Despite these incentives, the States have remained deaf to the appeals launched by the INGOs. Insofar as they have begun to listen to these requests, they have shown proof that their goodwill is not free from timidity or tactlessness.

Although it is true that, so far, no "world" status for INGOs has seen the light of day, significant progress has nonetheless been made at "regional" - especially European - level. The most meaningful achievement in this connection is the "European Convention on the recognition of the legal personality of INGOs", signed on 24 April 1986 under the aegis of the Council of Europe[6]. The writers of the document had a choice between two formulae: either to cobble together an entirely new status from many different parts or to submit to the existing provisions of national law and, by a subtle system of "references", ensure for INGOs on the territory of all Member States of the Council of Europe the same rights and prerogatives as those that they already enjoy in the State where they have chosen to establish their head office. Wisely, the Council of Europe opted for the minimalist solution, one quite easy to put into effect, thereby evading the essential issue as to the ideal content of an autonomous international law for associations. In terms of this Convention (art. 1), the following are regarded as INGOs:

Associations, foundations and other private institutions that fulfil the following conditions:

a)         to have a non-profit-making aim of international utility

b)         to have been established by an instrument governed by the internal law of a Party

c)          to carry on their activities with effect in at least two States

d)         to have their statutory office in the territory of a Party and the central management in the territory of that Party or of another party."

Subject to the arrangements for application the details of which cannot be entered into here, article 2 provides that:

"The legal personality and capacity, as acquired by an INGO in the Party inb which it has its statutory office, shall be recognized as of right in the other Parties".

An essential point is therefore established. Within the area covered by the 1986 Convention, the INGOs are henceforth protected from any discrimination. Like the snail that carries its shell, every INGO carries with it its identity and its status without having to request new recognition from the various countries where it carries on its activities.

Does this deal with all the problems as such? Far from it. Although article 7 of the Strasbourg Convention encourages the executive bodies of the Council of Europe to instigate membership on the part of non-member States, the scope of the new system ends with the geographical limits of the Council of Europe and, within them, to the countries who have ratified the Convention. France saw no reason to proceed with ratification, owing to its gut reaction to which problems of immigration and terrorist threat give rise in respect of any form of foreign - or supposedly foreign - admixture.

Secondly, the mechanism for referral back to the original legal system prevents INGOs from being granted privileges beyond the ordinary law of partnership, which would in fact be necessary for the free pursuit of private activities of a national nature: freedom of movement for persons and capital across frontiers, tax and customs exemptions, easing of the rules of labour law. This is where the lack of a legal status specific to associations is felt.

Finally, the welcome initiative of the Council of Europe is today under threat from interference arising from projects of the European Union. Even before ratification of the Maastricht Agreement, the EEC Commission had, on 5 March 1992, published a "proposed Regulation concerning the status of the European Association". This project is aimed at encouraging the setting up within the exclusive jurisdiction of the Community of associations of a "European" inclination (to avoid the word "Community"), whose status would endow them both with advantages and specific constraints. Contrary to the automatic effect for which the Council of Europe Convention provides, the Community status would be "optional" and "granted" on the basis of criteria in line with the Community's objectives.[7]

There was a time when people complained of the lack of international organizations compared with INGOs. The time has perhaps come for people to complain of the plethora of initiatives, owing to the absence of coordination. This will necessarily mean distortion in space and time, according to the chronological order in which the laws enter into effect and depending on the scheme of association adopted. In the worst case, having regard to the competition that exists between the Council of Europe and the European Union, we can imagine the same association being subject to three different schemes, depending on where its head office and its foreign branches are located, or an association benefitting from three different and contradictory schemes in the same country and at the same time. The theory of conflict of laws will be given a new lease of life.

Although the present turmoil within the European space is a source of confusion, it shows all the more the enormous size of the challenge presented by the drafting of the Convention and in providing all INGOs on a world scale with an appropriate status.

But with the symptoms of the malaise relatively easily identified, causes of this behaviour, the result of which is the persistence of a regrettable gap in the international legal order requires scrutiny.

The responsibility of States has frequently been questioned. It is true that they are the "legislators" and we can understand that nations as a group have some worries about offering potential competitors a platform: the more that "rights" are conceded to representatives of the international "private" sector, the greater the slice of the "public" sector is placed under the control of the sovereignty of states, is reduced.

Added to this very general motif is the distrust of many governments of these "Trojan horses" that hostile regimes or ill-intentioned operators sometimes infiltrate into their territory merely to destabilize or speculate. We remember that the Decree of 1939 is motivated by the fear instilled in the French government by the actions of the "Fifth Column" (an espionage and demoralization network set up by the Nazis), and we know that the people as a whole will always respond to the "security" argument.

Although well-known, these arguments are still insufficient to carry the day. Not only does the distinction between "private" and "public" tend to weaken in the international environment as in the domestic environment, but legal prohibitions do not prevent subversive elements and foreign agitators from acting in their own fashion by other means. Standing the problem on its head, one might even wonder whether States are not chary of laying down over-strict rules in a field where they do not hesitate to use the association cover (internal or international) to achieve their own ends.

We must, rather, turn to the INGOs themselves to understand the difficulty, if not the impossibility, of regulating their participation in international life. The growth in size of the phenomenon is already in itself an obstacle to dialogue; however, the extreme diverseness of the association environment, which is such as to prevent any attempt to typify them, enhances the obstacle yet further. Whatever the degree of anarchy inter-state system may have reached, it remains a model of order and organization compared with the ceaseless, uncontrolled mushrooming of oddball INGOs: it is a French garden compared with an equatorial jungle.

No authority is at present in a position to represent this grouping or to negotiate on its behalf, and no authority could claim such an impossible task. The Union of International Associations (UIA), formed in Brussels in 1907, certainly attempted at one time to set up a "Federation". It had to give this up in 1953, to devote itself in accordance with article 3 of its Articles of Association to activities of "research, study, information, consultation, advice and services" which exclude any notion and any function of representation in the strict sense of the word.

In fact, we find that the "major" INGOs, those who live from their own resources or whose usefulness and good name have long been recognized (such as the International Chamber of Commerce), are not looking for any supplementary endowment in terms of a status that might impose unnecessary constraints on them; most of the INGOs that play an active part in the international cooperation sector gravitate around IGOs whose activities are in line with their objectives and manage to arrive at the necessary compromises with them for useful cooperation. "Consultative status", which covers these activities, can and must be improved, but progress must be sought on the part of the two categories of partner that exist: IGOs must do something about the discredit resulting through their lack of effectiveness, while the INGOs should look for improved balance between the set of convictions that underlie their purpose and the set of responsibilities that they sometimes lack.

Beyond this, one notes with satisfaction some positive progress, such as the Convention of the Council of Europe already mentioned. However, the barriers that remain and the persistence of a grey area within an ever-more substantial part of international activity are all too obvious. What we also know is that this legal vacuum relates to realities which must one day be tackled, as they will otherwise surface in due course in a more threatening form. But to fill the gaps, it is not enough to mark their existence; we must also try to understand the reasons for them. The legal tangle is never a coincidence but the outward sign of contradictions that are at work at the heart of society.

 


    [1] V. Marcel Merle, "Le concept de transnationalité", in Mélanges René-Jean Dupuy, Pedone, 1991.

    [2] V. Marcel Merle, "Le'article 71 de la Charte" in La Charte des Nations Unies, Commentaire article par article, edited by J.P. Cot and A. Pellet, Economica 1991.

    [3] See Associations transnationals (U.A.I., Brussels) 1993, No. 6.

    [4] V. Alain Destexhe, "L'humanitaire impossible, ou deux siècles d'ambiguité". A. Colin, 1993.

    [5] A full list of these projects (texts and comments by the authors) appears in the International Statutes Series, Vol. 1, U.A.I. 1988.

    [6] Text and preparatory work in Transnational Associations, 1986, No. 3.

    [7] See the discussion opened on this point at the Colloquium held by the U.A.I. in October 1992, Transnational Associations, 1993, No. 2.