A legal tangle: the "status" of non-governmental international organizations between international law and national laws
Professor 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.
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.
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.
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. 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.
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). 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. 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.
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.