Fr. Association

actor, civil society, commons, nongovernmental, public sphere

A common feature of democratic societies, as noted by Beigbeder (1992), “NGOs can be created and operate independently of public authorities only in liberal and pluralistic societies,[...] that is in Western countries since the 19th century…. which implies a number of preconditions: independence from the state and respect by the state of such basic human rights as freedom of association, meeting, thinking conscience and religion.” Associations arise “because people tend to associate with others who share their values, identity and beliefs, associational life is the social expression of ethical pluralism” (Chambers and Kymlicka, 2002, 2). This entails a political pluralism associated with civil society portrayed as as a buffer against the state.

Thomas Hobbes had argued in The Leviathan (1651) that no other institution should stand between the isolated individual and the absolute state, a vision that Jean-Jacques Rousseau’s social contract (1762) carried forward, recognizing only two entities: the isolated individual, and the absolute state, which left no place for such a thing as “society” composed of intermediate bodies. Each citizen would be completely independent of his fellow men, and absolutely dependent upon the state. Alexis de Tocqueville argued that, on the contrary, autonomous intermediate associations provide the ultimate guarantee that the state will be unable to arrogate to itself any more power than an active citizenry is willing to grant. In Democracy in America (1966, 175), he defined voluntary associations as “the public and formal support of specific doctrines by a certain number of individuals who have undertaken to cooperate in a stated way in order to make these doctrines prevail», which in turn allowed for the checking and balancing power of civic associations and were the best dike to hold back tyranny” (177). These are an innumerable multitude, he said, among which “Political and industrial associations strike us forceably; but the others elude our observation, or if we discover them we understand them imperfectly because we have hardly ever seen anything of the kind.” He consequently considered that, in democratic countries, the science of association is the mother science, and that the progress of all the others depends on the progress of that one.

However relevant, these views are quite restrictive and ignre both prehistoric and non-Western societies. Not only can ethical and charitable activities be traced to the medieval brotherhoods and corporations, but also to ancient commons and even prehistoric leisure activities. In his studies of the Middel ages, Leo Moulin (1980) described extensively what he called the transnational Cistercian networks of monasteries across Europe, also depicted as the forebears of representative democracy. Patterns of ritualized friendship among ancient Greeks have been related to patronage and philanthropy, organized into networks of ritualized friendship among the elite of ancient Greek cities. Anthropological and historial records show that the emergence of Athens as the premier city state is characterized by its aristocracy sponsoring culture (paideia) through the construction and operation of vast numbers of temples, comic, tragic and choral theatres, public hospitals, oracles at Delphi, sporting events and games at Olympia, and other community activities. They were equivalent to our tax-supported events or facilities, but were rather supported by the liturgical system of patronage (Lohman1992).

Out of Western history, Lohman also refers to cultures or political traditions defining what is equivalent to associations and philanthropy, whether secular or religious, in Chinese, Indian, Greek, Roman, Islamic (reference is to “Law, Muhammadan”) or Jewish. In ancient India, Emperor Asoka patronized the institutional base of Buddhism, just as Constantine endowed networks of Christian monasteries, monuments and temples across the Roman Empire. In Africa, the associational life has been fully analysed by Bratton and others.

From local to global

In the international sphere, public law conventionally emphasizes the prominent position of states as the main subjects of international law and the main actors in international relations. As such, those entities are the addressees of international legal rules or norms and the bearers of international obligations and rights.However, a modern development among actors is that voluntary, nonprofit entities have migrated from the familiar sphere of local associations, groups and charities into the international sphere, under the terms “international association” or, in UN vocabulary, “international nongovernmental organis(z)ation” (INGO). As a central component of civil society, international or transnational associations are usually perceived as grassroots projects of reshaping or altering social, political, cultural, scientific and other structures through formal agreements or unofficial movements, to promote democratic participation in interaction with states and interstate organizations, to challenge states and international organizations or alternatively to proclaim the end of the Westphalian system.

A second consequence of these developments is that the term “association” has become more and more polysemous (even if we exclude such phrases as “associations of states”, obviously exluded from this note), with sometimes a loose usage not only in popular parlance but also in the academic discourse. Its ideological connotations have often focused on the non-state status aims and policies, so much so that “nongovernmental organization” was formed as an alternative term within the UN Charter vocabulary to emphasize this particular feature. The term has been added to associated terms like charities, third sector, or more recently “civil society organizations” within the EU institutions. It is conventionally qualified as autonomous even if not independent of states, self-reflexive as opposed to spontaneous social movements, self-organized as opposed to state-sponsored.

The variety of references has brought increasing fuzziness and polysemy on various levels. Associations can be international as opposed to transnational, oriented or not to business activities, represent employers or employees. Amnesty International is a nonprofit making body, but so are the European Automobile Manufacturers Association, business federations, industry lobbies, trades-related organizations or chambers of commerce, which appear under a nonprofit disguise even though their members are profit making companies Another paradoxical usage is the terms’s content, when urban authorities or regional administrations, which are official bodies, gather into the International Union of Local Authorities (IULA), which is an association or, as is today customary, an NGO. Similarly, the Committee of the Regions (CoR) is the official voice of local and regional government within the Europe Union under the Maastricht Treaty, whereas the Assembly of European Regions (AER) is an NGO. In this regard, it is interesting to note the existence of mixed bodies, such as the European Economic and Social Committee (EESC), whose 350 members are drawn from both economic and social interest groups in Europe and represent employers, workers, and various interests groups (consumers, environmentalists, etc.).

Such overlapping has brought another ambiguity in the economic field, when nonprofit bodies intends to be more “professional”, adopting methods and leadership borrowed from the forprofit, private sector. By doing so, nonprofit management may be characterized ironically as "entrepreneurship”, running the risk of conveying a negative image of entities that cannot be properly managed if they do not follow the predominant forprofit type of management. In a more positive way, overlapping between forprofit and non profit criteria has led to the creation of mixed actors, particularly multistakeholder initiatives (MSIs) which have gained significant importance in recent years. These include certification schemes (ISO14001, SA8000…), anti-sweatshop initiatives, global reporting initiative to improve certain aspects of management, monitoring and reporting systems, as well as learning through stakeholder engagement, global and framework agreements between TNCs and international trade union organizations, and particularly those actors supporting the UN Global Compact established to encourage companies to stick to nine principles derived from international labour, environmental and human rights law.

The limitations of company codes of conduct and corporate self-regulation have been addressed, involving standard setting and the promotion of dialogue, reporting, monitoring, auditing, and certification. Many MSIs assume the organizational form of non-governmental organizations (NGOs), although industry, trade union and multilateral organizations have also taken the lead in some cases. MSIs have been somewhat successful in addressing certain weaknesses associated with corporate self-regulation, especially in their attempts to impose a degree of coherency on the confusing proliferation of company codes, and the attention they have directed to issues of labour rights, independent monitoring, the responsibilities of suppliers in TNC value chains, and international labour, environmental and human rights law. By their very nature, MSIs bring into decision-making processes a broader range of actors and can therefore have positive implications in terms of democratic global governance, but they do not avoid major differences in the extent to which they integrate trade unions, local-level monitoring and verification organizations in developing countries, and Southern actors more generally.

Community and society

One sociological ambiguity is illustrated in current perceptions of associational life is related to Tönnies’s well-known distinction between Gemeinschaft and Geselschaft, the communal nature of associational structures in traditional societies as opposed to the formal or informal status of bodies allowed under the freedom of association. A traditional communal practice usually comes under the concept of “commons” mentioned before, quite distinct from the modern concept and practice of freedom of/to association. In the past, John Locke had argued that indigenous peoples had no legitimate title to their land because they belonged to communities and had no individual rights. By the end of the 19th century, these ideas came to characterize a Hobbesian idea of civil society, which distinguished between civilized and uncivilized peoples. If indigenous communities are part of civil society, the question is whether civil society should be defined in opposition to a state world order, in the same way as NGOs were defined in the UN Charter in opposition to UN member states. For many years, the tendency in the Council of Europe was to consider minorities as “national”, and was unable to conceive of them as “transnational” communities.

In both cases, the difficulty for IR has been to think of either free associations or communities as non-territorial, i.e. truly transnational entities. Formally, ethnic or cultural communities usually come under the authority of particular states, but international associations of indigenous peoples are NGOs, sometimes with consultative status with the UN or Unesco. The significance of this particular opposition has been made even more relevant since the principle of self-determination of peoples, long regarded as contributing to the defense of collective rights, has gradually enhanced the possible clash with individual rights. Worse still, it has become “the opening for a new form of tribalism and is encouraging some of the most reactionary tendencies in contemporary world society” (Archibugi 2003).    

A third case is made up of ideological and religious organisations, probably the most powerful representatives of the associational complex. It is commonly assumed that (inter/transnational associations are equivalent to voluntary associations/NGOs. So, the Commission on Global Governance (1995, 32) includes under these terms international (and sometimes local) voluntary associations/NGOs, trade unions, chambers of commerce, cooperatives and other civil society oeganizations, but also religion-based organizations. However, in many cases there is no direct link between religious organizations and free associations. Lenore T. Ealy (2004) highlights the classic case of American churches, which were mostly state supported two centuries ago – the argument for state-sponsored religion being that a religious person was thought to be a better citizen – before the Constitution was amended so that political authorities kept within constitutional limits in this regard. …. The “privatization » » of religion (Olds 1994) has never been implemented in Islam, which is the official religion of what is righly called “Muslim” countries insofar as Arab/Muslim constitutions take muslim law as one source, if not the only source of law. The Arab and Islamic Countries issued several declarations concerning human rights, to conform with Islamic law. The few attempts to reform the Islamic law are usually unsuccessful, as shown by Professor Abu-Zayd from Cairo University, who tried a liberal interpretation of the Quran. A fundamentalist group successfully instituted a suit for apostasy against him. This matter went before the Egyptian Court of Cassation, which confirmed his condemnation August 5th, 1996, and required the separation of Abu-Zayd from his wife. The couple left Egypt and asked for asylum in the Netherlands, for fear of being killed (Aldeeb 2003). It is notable that under Shari’ah law in many countries apostasy (an expression of freedom of association and thinking) and any actions or statements considered blasphemous are harshly punished, in some States by death. The institutional context confirms the supremacy of religious law over civil law, first illustrated by the decision of Saudi Arabia not to sign the UN declaration of Human Rights in 1948, arguing that it violated Islamic law, and more generally by the 1990 Cairo Declaration on Human Rights in Islam, adopted at the Nineteenth Conference of the Organisation of Islamic Cooperation by its 45 member states (among which Turkey, whose constitution was said to be secular) and published by the UN as one of the regional instrument in 1997. It says that “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah” (Art. 24), and “The Islamic Shari'ah is the only source of reference for the explanation or clarification to any of the articles of this Declaration” (Art. 25). This declaration questions the very concept of the universality of human rights or, in other words, affirms an alternative view of universality based on religious principles. Its signatories are in effect reneging on the obligations they freely entered into in signing the UDHR and the two covenants.

An extreme case is that of mafia associations and terrorist groups, whose non-state nature is obviously “illegitimate”, but may borrow perfectly legal forms. Criminal organizations are a type of organized crime syndicates whose primary activities (racketeering, arbitration of disputes between criminals, organizing and oversight of illegal agreements and transactions, otherwise referred to as yakuza (Japanese Mafia), bratva (Russian Mafia), etc. Individual mafia groups may nevertheless be “fully developed organizations” with ruling bodies to enforce their normative order (Paoli 2003).

The latter features question the positive values conventionally associated with associations as the most important component of civil society and reveal its “dark side”. They also make the term an inconvenient tool for a scientific analysis of the concepts and contexts it is supposed to refer to, as its complex normative, analytical and empirical dimensions call for a cross-disciplinary, contextualized approach.

UN relations

The UN Charter, both in the preamble and article 71, provides for a relationship with international associations, NGOs (INGOs), more commonly called « civil society » today, even though they are only part of it. In 1948, the first NGOs were granted consultative status by the Economic and Social Council (ECOSOC), and rules were adopted in 1950 by the ECOSOC in resolution 288 B(X) (reviewed by the General Assembly in 1968 in resolution 1296, then in 1993 to update and accommodate changes, review concluded by ECOSOC resolution 1996/31. In 1998, the Secretary-General elaborated arrangements and practices for NGOs in his report A/53/170, and reflected the views of Member States, members of the specialized agencies, observers, intergovernmental organizations and NGOs from all regions in another report (A/54/329) in 1999. The Millennium Declaration later gave a new mandate to enhance this partnership.

In the recent decades, non-state entities have been granted, whether legally or de facto, the status of actors in the international system. A special case is the Catholic Church, whose statehood entity, the Holy Sea, was granted the status of subject of international law. Most of the other INGOs have played a role stemming from the Charter of the UN (article 71), which recognises their relevance through a consultative status. It shold however be noted that “consultative” dos not mean that they must be consulted, but that they just may be. This specification contrasts with the European Economic [...] and Social Committee (EESC) created by the Rome Treaties in 1957, an assembly not linked to political parties which must be consulted by all three institutions (Council, Commission and Prliament) in all cases provided for in the treaties and when the institutions deem it desirable. It may also deliver an opinion (15% of its opinions are on their own initiative) or write information reports. Nowadays, the Committee delivers almost 150 opinions a year on a variety of issues. This means that the European project is led not only by the European institutions and politicians, but also by active citizens involved in the economic, social and cultural life.

In addition to their active role in many international fields, NGOs have actively contributed to the development of international law in the field of human rights, scientific research, environmental matters and many more. More generally, they are fully involved in norm formation and political decision-making through formal or informal processes. These developments have led to the concept of an international law conceived as cosmopolitical, i.e. based on interpretations granting equal status to all parties involved, decentred from any particular vision. One implication has been to increase the complexity of theoretical and empirical perspectives, between integration and fragmentation, with a strong focus on the sociological point of view. Marcel Merle (1987) or Nye had already pointed to the complex features of the international system. In his Sociology of International Relations, the former recognizes the ever-changing transnational forces and actors underpinning this field of studies. Applying the system analysis through a rigorous method and a demanding epistemology, he showed how political, but also legal, technological, social, economic, demographic and psychological factors combine in complex patterns, including the emergence of a global public opinion.

A second category of non-state entities is multinational companies (MNCs), which have also been proclaimed as new actors on the international scene as new agents of economic development, this time quite formally with the setting up of the UN-sponsored Global Compact, a loose UN policy of rapprochement with the business community. Their action is now so significant that they are commonly seen as the most active agents of globalisation, and that the Global Compact has been entrusted with controlling their influence, some NGOs arguing “that corporate influence at the UN is already too great, and that new partnerships are leading down a slippery slope toward the partial privatisation and commercialization of the UN system itself” (TRAC, 2000).

This introduces to a dimension of civil society that is not readily recognized, that is, its collusion with state interests, its ignorance of democratic liberlism, or even an “uncivil attitude” to society as a whole. Even if one accepts that civil society is uniquely bound up with the historical process of liberal democratization, the latter idea may be as relevant as the idea that civil society necessarly acts for the common good, or is symbolically a « conscience of the world ». The objective analysis of actual civil societies results in an empirically tricky exercise through different types of social organization, from nonprofit to for-profit Efforts to decide which of them are truly 'civil' are doomed to fail if we give them as opposed to those which may be dismissed as 'pre-civil', 'uncivil' or 'anti-civil'. The FIFA case is a clear illustration of porous links between the two categories of interantional actors – states and INGOs – , but also of the fuzzy boundary between them, as shown by the investigations into corruption at FIFA by the FBI and Swiss prosecutors, which also include the 2014 World Cup in Brazil.

The diversification of global actors does not end with these two non-state categories, if we consider the variety of liberation and other national movements, social, ethnic and cultural communities, let alone more extreme cases, such as maffia and terrorist networks, which usually arise from social, non-state movements and initiatives and have often adopted legal associational forms. One issue posed by the heterogeneous nature of international actors is the persistent threat to state sovereignty, whether caused by civil or “uncivil” society organisations. This concern emerged in 1989, when it appeared that the political systems of three centuries came to an end in Europe: the balance of power and the imperial urge. That year marked not just the end of the Cold War, but also, and more significantly, the end of a state system which dated from the Thirty Years War. However, the resurgence of ethnic tensions, the creation of new nations-states, a revival of transnational terrorism and the appeal to a coordinated response to climate change have notably eased a return of/to the state, if not to forgotten empires (Russia, China).

 


Alexis de Tocqueville, Democracy inAmerica, edited by J.P. Mayer and Max Lerner (New York: Harper and Row, 1966

Roger A. Lohmann, The Commons: New Perspectives on Nonprofit Organizations, Voluntary Action and Philanthropy, San Francisco: Jossey-Bass Publishers, 1992

Beigbeder, Yves: Le rôle international des organisations non gouvernementales, Brussels: Bruylant, 1992

Daniele Archibugi, « A critical analysis of the self-determination of peoples: a cosmopolitan perspective », Constellations, 4, 2003, Blackwell, Londres

Simone Chambers and Will Kymlicka, Introduction toAlternative Conceptions of Civil Society, Princeton University Press, Princeton, 2002

Sami A. Aldeeb Abu.Sahlieh, “Comparison between Islamic and Western concepts of law and its impact on minorities”, 2003. www.sami-aldeeb.com

Commission on Global Governance, Our Global Neighbourhood, New York: Oxford University Press, 1995

Kelly Olds, “Privatizing Religion: Disestablishment in Connecticut and Massachusetts.” The Journal of Political Economy 102 (2), 1994

Lenore T. Ealy (ed.), Conversations on Philanthropy. Vol. I, Conceptual Foundations, Donorstrust, 2004 Michael Bratton, “Beyond the State: Civil Society and Associational Life in Africa", World Politics, April 1989

Michael Bratton, Civil Society and Political Ttransition in Africa, IDR Reports, Number 6, 1994

Letizia Paoli, Mafia Brotherhoods: Organized Crime, Italian Style, New York: Oxford University Press, 2003

 


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

Marcel Merle

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[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.


 

Law is like music

The legal dimension of NGOs

Frits Hondius

Trustee, The Europhil Trust. Former Deputy Director of Legal Affairs of the Council of Europe.

This paper was read at the UIA Symposium on “Civil society and the sense of Europe Associations” and was published in Transnational Associations, 1/2002. © UAI/UIA.

I have been asked by the organizers of the UAI Symposium held in Brussels on 20 October 2001 to make some remarks, as the final speaker, on the legal dimension of NGOs. My chronological position in the programme is in a way indicative for the role lawyers are often expected to play. When you have a problem, call in the lawyers, and bring up the law. The term ‘law’ stands not only for texts in the statute books but also for case law. Do we have interesting decisions handed down by supreme courts or by international tribunals (such as those in The Hague, Luxembourg and Strasbourg) that can help to illuminate and guide us to the correct solution of the problem at hand? However, the fact that it was necessary to submit a problem to court or legal consultation raises the question why the matter did arise only at this late stage and not earlier. Where were the lawyers when the original position was being formulated or negotiated?

I belong to the school of legal philosophy of Wolfgang Friedmann who has always argued in favour of full participation of legal experts in any decision-making process; not only during the final stage, but from the beginning. Lawyers can help decision-makers to articulate their aims and products. Legal critique a posteriori is unhelpful. I give as an example the critical comments recently made by the Netherlands State Commission on private international law about alleged shortcomings the UIA’s brainchild, the 1986 European Convention no 124 on the recognition of the legal personality of international NGOs1. No matter how well founded such comments, one cannot help asking: where was the Commission at the time when the treaty was being negotiated in Strasbourg? The Commission should know that there is great reluctance to modify a treaty once concluded. States know what they have in hand and are uncertain about what will be the result of tampering.

Law is like music: a set of agreed principles, rules and conventions applied to ever changing circumstances.

Just as harmony is the supreme principle of music, so Rule of Law is the supreme principle of law. The extent of that principle is not always fully understood. ‘Rule of Law’ not only means that the law must be known, understandable, just and enforceable; but also, and more fundamentally, that there must be law. There must not be no-go zones of non-law.

What about the law governing civil society? In a recent contribution to the Festschrift Cremona2, I have examined to what extent civil society is a legally well-defined category. My research led me, unexpectedly, to the Western confines of Europe, the Republic of Ireland, whose 1938 Constitution refers to civil society as a value and a standard. This provision, which modern Ireland owes to its founding father Eamon de Valera, has hitherto attracted little attention but deserves a great deal more. It has been rumoured that it might even be dropped from the Constitution on the occasion of a future reform. I earnestly appeal to Irish policy-makers and legislators to preserve this precious jewel. I also express the hope that other countries in the European Union will take inspiration from this provision.

The 1938 constellation was the grave political situation of Europe with the Spanish Civil War raging and World War II looming. De Valera cautioned his fellow citizens to steer clear of any extremisms, whether left or right, religious, political or other, and to exercise their rights in harmony with the civil society. It would be half a century before the notion of civil society was again addressed as a basic constitutional principle. This time it would be in Eastern Europe, by the leaders of Solidarnosc in Poland.

One of the safeguards of civil society is the presence of a legal framework, clear and precise enough to allow civil society institutions, such as NGOs, to exist, to function properly, efficiently and independently and to allow the outside world to know, identify and understand civil society institutions. In other words, to receive answers to three fundamental questions: who are you? what is your aim? how do you operate?

We are commemorating at present the centenaries of three major laws in Europe underpinning NGOs: the 1601 Statute of Elizabeth 1 on charities, the 1900 German BGB (civil code) governing inter alia foundations and associations, and the French Loi 1901 on associations. All three have been the object of retrospection and forward-looking studies. The International Seminar on Charity Law at the London School of Economics3 took stock of the extraordinary and wholesome effect of English law throughout the world, inside and outside ommonwealth countries, fortified through dynamic interpretation by the courts. In Germany, the academic community has focused attention during a conference in May 2000 at Schloss Salzau jointly called by the Max-Planck-Institut and the University of Kiel, on the necessary reform of foundation law in particular to relax the grip of the State on the establishment process of foundation4. The celebration of the 1901 French Law on Associations has given rise to an impressive series of conferences and other manifestations, including the re-publication of the proceedings of the National Assembly5. Apart from the fact that the assembled deputies were addressed as “Messieurs” – not a woman in sight -we learn with astonishment that one of the purposes of the law was to do away with association as a criminal offence (delit d’association) and this more than a century after the proclamation of the Declaration of rights of Men and Citizens. The explanation of this oddity was that the French Revolution was hostile to any intermediary institutions between the citizen and the State.

Where there is a fire there must be smoke and vice versa. Where there are NGOs there must be law that governs them. Even in the former Soviet Union, where the law expressed the will of the Communist Party and the bureaucracy, laws were always duly made to fit the institutions.

In democratic countries, all the law one needs for the prospering of NGOs comprises two basic elements: first, protection of the fundamental freedom of association and peaceful assembly and secondly, law enabling civil society institutions, such as associations and foundations, to be recognized as personae in public life. I recently had occasion to recall this combination of legal principles in a note to the Netherlands Minister of Justice in connection with the intended ratification by the Netherlands of the NGO Convention no 124. Concerns had been expressed to the Ministry that some countries might interpret certain restrictions and limitations allowed by article 4 of the Convention in a dictatorial or arbitrary fashion. I have pointed out that there is no ground for such fears since Article 11 of the European Convention on Human Rights forbids such inroads on the freedom of association that this Convention is jus cogens, taking precedence over laws and ordinary treaties, such as Convention no 124.

There is a new dimension to the law on civil society and NGOs: the Internet. This creates wonderful opportunities for people to get together, without any need for travel or visas. This world of virtual association and assembly has given rise to the emergence of a new type of NGO which Professor Karsten Schmidt of Bonn University has called the “virtual legal person” (virtuelle Rechtsperson) or the “as if” NGO6. While this new form deserves encouragement, in particular because it empowers communication between and assembly of less well-endowed people, regardless of borders, it calls for close scrutiny. One of its possible side effects is a weakening of personal privacy, protected by article 8 of the European Human Rights Convention. Another is the blurring of the dividing line between fact and fancy and therefore a weakening of the freedom of information (article 10 of the European Human Rights Convention) which includes the freedom to seek and receive information.

There is no need in this article to present a full panorama of national and international laws governing NGOs. There is ample information available on the subject, particularly since the end of communism in Central and Eastern Europe.

The end of communism was hastened by civil society organizations, whether legal or not. On the other hand the collapse of the monolithic State brought with it a wave of new NGOs both to give expression to the reborn fundamental freedoms of association as well as to fill the gap left by the collapse of the former State institutions of health care, social assistance etc. The new democracies of Central and Eastern Europe have turned to those of Western Europe and North America for advice and guidance both in terms of law and organization and management. Their western partners are often embarrassed by the question: “what is the Western model?” because there is no such single model. There is a kaleidoscopic variety between law and practice of Western countries with regard to NGOs. The present author has documented the laws on foundations worldwide in his encyclopedia book “Foundations”7. A similar book on associations will appear shortly. The contrasts between different legal systems in Western Europe are startling. To give just one example: English charity law is allergic to any political activism on the part of NGOs, whereas such activism is considered perfectly in order in countries such as Holland or Germany. So the East European question “what is the West European answer?” will receive no response or a variety of possible responses. This has given rise in Western Europe to a critical self-assessment by and on civil society organizations regarding common features that characterize their legal systems in spite of the apparent contrasts.

Above all, “the West”, whatever it stands for, warns “the East” against the tendency to overlegislate. A friend of mine, on loan to a Central European country as NGO adviser, has been happily inventing NGO laws, allegedly to help that country to gain admission to the European Union. I reminded him that there are already plenty of laws, beginning with the 1948 UN Universal Declaration of Human rights and article 71 of the Charter of the United Nations, which declares the role of NGOs in international relations. These are useful and time-honoured wheels which do not need to be re-invented.

Do not legislate when there is no need. In the Russian Federation, there is a proliferation of laws, partly overlapping on NGOs. The result is confusion, contradictions and an open invitation to the bureaucracy to impose its own interpretations.

We should at this juncture recall a basic truth. NGOs, no matter how international, have no alternative to incorporation under some country’s national law. There is no international law regime, not even the one intended by the European Commission for European associations, under the mysterious motto of “social economy”. Social economy is a French concept that does not mean much to the rest of Europe.

We should also recall that those who want to assemble and associate often do not care much about the law. I came across a lady in Amsterdam who ran a very useful operation called “Russia Desk”. I asked Olga what was its legal status. Answer: “It’s a helpdesk”. I pressed further about what chapter of the law that belonged to. Answer: “We are part of a network”. I concluded for myself that her helpdesk was possibly an association under the Civil Code and the network an operation falling under telecommunications law.

The law reform process in Central and Eastern Europe has had a positive effect on the countries of Western Europe. This process is buffeted between the desire of Eastern Europe to overhaul its legislation and the impatience of North America to import NGO notions coming from its commerce oriented culture, but foreign to the culture of ex-Communist countries –example “non profit organization”. The nations of Western Europe have taken the lead in building bridges between national NGO systems.

No piece of architectures is more symbolical than the bridge, such as the Pont de l’Europe between France and Germany or the new bridge between Denmark and Sweden. Some bridges link not only one land site to another, but also past and present, such as the historic Kapellbrucke of Lucerne, destroyed by fire and reconstructed by modern technology.

The NGO bridge Europe has constructed is the Convention no 124 of the Council of Europe, which says basically: if you are an NGO legally created under the laws of country A, you will be recognized as such in countries B, C and D. No need to harmonize your laws first. No need to introduce something in your domestic law to please foreign jurisdictions. France once tried in vain to introduce into its civil code a common law NGO institution, the charitable trust (in its Quebec form, the fiducie). One day “Le Monde” announced: “the fiducie is dead.” The transplant failed. But if countries voluntarily accept to recognize other countries’ NGOs, is there still a need for the Convention no 124? The answer is yes. There is a fundamental difference between enacting a position in one’s domestic law and accepting an international undertaking to this effect by signing a treaty before the international community of States.

Under Convention no 124 there is no more need to effect complicated gymnastics in order to accommodate each other’s NGO institutions. We accept each other as we are. I recall here the wise words of Professor Merle, one-time President of the UIA : “What we NGOs have in common is that we are all different.”

The story does not stop here. While NGOs are all different, surely there must also be something they have in common. An exercise to discover what they have in common is in progress at the Council of Europe in Strasbourg on the basis of a report by Professor Jeremy Mc Bride of the University of Birmingham. This endeavour has the aim of distilling therefrom a recommendation, or a ‘charter’, of fundamental principles governing the legal status of NGOs in Europe. Needless to say, the Union of International Associations takes a lively interest in this activity8. It should also be hoped that the experts discussing the draft charter will pay due attention to other work in the same direction, such as, for example, the draft Handbook for NGO Laws, prepared by ICNL, Washington DC, at the behest of the World Bank9.

Notes 

1. Opinion of 29 February 2000 of the Netherlands State Commission for Private International Law to the Minister of Justice.

2. Frits W Hondius. “Civil Society, the Human Dimension of Europe”, in Mainly Human Rights-Studies in Honour of J. J. Cremona, p. 105.

3. Conference “Charity: 400 years of the Statute of Elizabeth”, Centre for Civil Society, London School of Economics, 18/19 June 2001.

4. Hopt/Reuter Stiftungsrecht in Europa, Carl Heymanns Verlag KG Köln, 2001.

5. Mission interministérielle pour la Célébration Centenaire de la loi du 1er juillet 1901 relative au contrat d’association, “L’avènement de la loi de 1901 sur le droit d’association” Edition des Jouraux Officiels 2001.

6. Karsten Schmidt, “Ersatzformen der Stiftung:. in op.cit footnote 4, p. 175-196.

7. Frits Hondius/Tymen van der Ploeg Foundations Mohr Siebeck Tubingen 2000.

8. The secrecy with which this draft has ben prepared by governmental experts and the Secretariat of the Council of Europe seems in flagrant denial of the openness which it recommends to NGOs. The text, already several years in the files of the Council of Europe, will not be revealed before March 2002. NGOs, its benefiaries, have not been informed of the draft, nor been enabled to comment on it.

9. International Center for not-for-profit Law, Washington DC “Handbook on good practices for laws relating to non-governmental Organization”, revised discussion draft, September 2000.

                                                                                                                                                      

 


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

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

    [3] See Transnational Associations, Brussels: UAI, 1993, No. 6.

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

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

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

    [7] See the discussion opened on this point at the Symposium held by the UAI in October 1992, Transnational Associations, 1993, No. 2.