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Место неправительственных организаций в международном праве и ООН
Научные статьи
09.04.13 12:48

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ЕврАзЮж № 1 (20) 2010
Международное право
Гулиев А.А.
Место неправительственных организаций в международном праве и ООН
Одной из часто обсуждаемых тем в международной политике является нарас­тающая роль неправительственных организаций в международных организациях, в частности ООН, и их деятельность в определении международной политики. Такая ситуация неизбежно требует рассмотрения основных норм международного права и уставов международных организаций, определяющих статус НПО. Целями данной статьи являются изучение основных принципов ООН (и нескольких других конвен­ций), определяющих деятельность НПО, а также применение теории корпоратизма, функционализма и плюрализма для выявления вклада неправительственных органи­заций в деятельность ООН. Исследования показали, что утверждение принципа защи­ты человеческих прав международным сообществом привело к признанию ценности НПО. Кроме того, применение теории позволило установить, что, являясь субъектом международного права, неправительственные организации могут представлять инте­ресы всех слоев общества и помочь ООН стать более демократичной. Однако это не означает отсутствие препятствий перед НПО в их отношениях с международными организациями. Нехватка важных ресурсов для НПО и недоверие политиков часто мешают углублению отношений между неправительственными организациями и ООН.

  History can be said to have seen tendency of NGOs to turn gradually into subjects of the international law with major wars being responsible. For instance, in response to conflicts and subsequent humanitarian crises of the nineteenth and mostly twentieth centuries, American Medical Association was founded in 1847, and many years later Save the Children and Oxfam were established in 1919 and 1942, respectively. Organi­zations established in the subsequence to wars served to help affected persons only in some continents. However, it was the World War II (among others) that resulted in such a humanitar­ian crisis that no state was in position to deal with unilaterally, and consequently lead world public to recognize role of NGOs in maintaining international peace and security. One sign of this was that non-governmental organizations were directly or indirectly mentioned in the charters of international orga­nizations. For instance, Article 71 of the UN Charter states that "The Economic and Social Council may make suitable arrange­ments for consultation with non-governmental organizations, which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after con­sultation with the Member of the United Nations concerned". But this is not to say that ECOSOC is the only UN agency to deal with NGOs as many other organs of the United Nations, such as UNESCO, UNDP and UNHCR in addition to ECOSOC hold regular meetings with NGOs and consider their recom­mendations on social and public aspects of international peace and security. As one of the five main organs of the United Na­tions and responsible for dealing with economic and social af­fairs globally, ECOSOC makes its own contribution to provid­ing international peace and security. Article 71 allows ECOSOC to benefit from NGO input and regular consultation thereby demonstrating the willingness to engage non-governmental  organizations in providing economic and social well-being im­portant for international peace and security.

ECOSOC have characterized contemporary non-govern­mental organizations as being:

-    established by private individuals

-    independent from the state

-    not for private/special profit

-    interested basically in public affairs

-    based on and promoting voluntarism

-    legitimate, not confronting laws.

ECOSOC grants a consultative status to NGOs whose activities are relevant to that of ECOSOC, which have demo­cratic decision-making mechanisms, have official registration and receive their contributions from sources other than gov- ernments. Actually, the kind of consultative status was initially introduced in the United Nations to implement article 71 of the Charter. Such similar arrangements were later adopted by a number of organizations, UN Specialized Agencies and Orga­nization of American States.

But with what opportunities does the consultative status at ECOSOC promise for NGOs? Though NGO role in the in­tergovernmental process is recognized and they hold a corre­sponding legal status, they have problems of access and accred­itation procedure, and usually can participate only in specific organs and in specific fields of activity. The consultative status model has proved to be effective in that participation of NGOs in meetings and in debates was influential in setting agendas shaping the policy approach embracing issues like human rights and environmental degradation. Despite the fact that NGOs with consultative status may not take part in decision­making process, they can attend meetings, make statements and propose agenda. Consequently, it is more appropriate to talk of them as observers rather than participators. As to the problem of "accreditation procedure", it is a kind of body filled by representative of member states who defines pre-admission conditions for NGOs. Information provided by epistemic com­munities was considered to be utmost reliable by the UN Sys­tem and many other international organizations as they reflect­ed expert knowledge on the area and fresh data. In contrast, some other scholars argued ECOSOC is somehow discrimina­tive as "its consultative status does not involve all transnational NGOs and its statute does not give NGOs a legitimate place in international diplomacy".

It should be noted that along with the UN Charter, many other international conventions have recognized importance of NGOs and their indispensable role in civil society development and in upholding democratic principles. These are the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, African Charter of Human Rights, Ameri­can Declaration of the Rights and Duties of Men and American Convention on Human Rights, and the European Convention on Human Rights and Fundamental Rights.

Articles 19-20 of the Universal Declaration of Human Rights signed in 1948 stressed on "the right of each individual for speech" and "the right for assembly and association". Af­ter being signed by Member-States in 1948, the instrument has been recognized as a normative document in the international law and thereby endorsed role of non-governmental organiza­tions in building civil society.

Other International Instruments

In addition to the UN Charter, the International Cov­enant on Civil and Political Rights (ICCPR) defines basic hu­man rights which burdens not only state but also civil society institutions with high responsibility to preserve these rights. Articles 19, 21 and 22 are devoted to the overall protection of human rights and freedoms. The First Additional Protocol to the International Covenant on Civil and Political Rights ratified in 1976 has become even further promoter for human rights as it established the Commission on Human Rights within ECOSOC which was responsible for dealing with individuals whose rights as defined by the international agreement were violated. In this way, the Protocol strengthened the position of NGOs as citizens were unaware of the rights as defined by the new instruments and of the newly-established Commission on Human Rights to preserve their rights. It is however obvious that ratification does not guarantee observation of the terms in good faith as a number of states signatory to the ICCPR and its Protocol often violate fundamental rights and freedoms of their citizens. This inevitably raises the need for non-governmental organizations, be it international or domestic.

Yet, another influential document is the European Con­vention on Human Rights and Fundamental Freedoms which serves as a reference point for most of the judicial decisions in the European continent. It is signed by most of the European countries, and the novel character of the Convention is that it has an enforcement power achieved by freezing membership of a state to the European Union and Council of Europe with possible dismemberment in case of violation. The Convention's Articles 2-14 deal with fundamental human rights and article 34 recognizes the right of individuals to apply to the European Court of Human Rights if their rights are violated. It is interest­ing enough to note that aside from other international instru­ments which usually use notion of "persons" to signify both legal and physical persons (including non-governmental orga­nizations), the European Convention directly mentions "non­governmental organizations" along with its other subjects. It is a fact that the Convention is binding upon the Members and both the European Union and Council of Europe grants bil­lions of Euros to the development of civil society institutions and protection of human rights (in other words upholding the European Convention on Human Rights and Fundamental Freedoms) in the regions of Europe.

Finally, still other international agreement specifying role of non-governmental organizations is the Final Act adopted by OSCE in 1975. Examining 10 principles in the Final Act, we can conclude that direct participation of a non-governmental orga­nization is quite feasible in two of these principles since they emphasize on "peaceful settlement of international disputes" and "respecting for human rights and freedoms" where non­governmental organizations can be an actor not only in inter­national instruments but also in the bilateral agreements signed between states. Therefore, they can be seen as not only object of international instruments but also as important players in the spheres of social cooperation among states.

Some scholars insist that NGOs act basically through net­works which they "create for exchange of information, mobili­zation of support, co-ordination of strategy, sharing costs and having greater political impact". According to Willet, four main types of network can be identified: umbrella network of interna­tional NGOs (INGOs), issue networks, caucuses and governance networks. An umbrella INGO is created when organizations in different countries have common goals and decide to work to­gether in a joint organization. The image of this can be repre­sented as Green Peace or Environmentalist organizations work­ing together to raise world public awareness about the pressing biological issues of the earth, such as natural degradation and global warming. An issue network is when NGOs collaborate with other NGOs on specific issues, though they may not share common goals with one another. Say, the International Baby Foods Action Network, by bringing doctors, women's groups, consumer associations, development activities, churches and community organizations together, mobilized them on specific issues. However, when the network is created temporarily for a single issue, then it is an issue caucus. On the other hand, when NGOs attempt to promote wider participation of NGOs in a particular policy-making forum, they create governance networks. The oldest is the Conference of Non-Governmental Organizations in Consultative Relationship with the United Na­tions (CONGO). Other examples are various "steering commit­tees", "facilitation committees" or "NGO networks" focused on UN bodies, specialized agencies or UN conferences

Summarizing the legal aspects of NGOs in the interna­tional system, we achieve a conclusion that basically two main trends have contributed to prominence of NGOs and their recognition in the international norms in the twentieth cen­tury. First, gradual expansion of NGOs both qualitatively and quantitatively in time and space was possible due to wars that brought humanitarian crises (though this is not the main topic of our research, and NGOs existed in the previous centuries) going beyond the control of nation-states. Secondly, waves of independence in the parts of the third world, setting issues of human rights and liberal democracy as agenda of world poli­tics, that necessitated promoting growth and development of NGOs and their participation both in national and interna­tional decision-making processes. NGOs were accepted by the international instruments as vital in maintaining international peace and security and preserving human dignity. However, the growth of non-governmental organizations has sometimes impeded operation of the participatory mechanisms and thus raised new concerns.

NGOs demand ever greater participation in the inter­governmental procedures believing that the later have been less democratic and unresponsive. As Willets puts it, "in a democratic world, intergovernmental organizations have to be transparent and open to public debate, articulated by NGOs".13 But the more the NGOs are influential at international orga­nizations, the more NGOs' legitimacy and transparency are called into question. Such a condition is further worsened by duplication of activities, loss of valuable information and waste of already-limited resources.

Theoretical Background

Having touched upon legal aspects of NGOs, we come to the second task of the paper - elaborating theoretical debates on NGO-IO interaction. Application of three distinctive theo­ries helped to distinguish among different aspects of an NGO the contribution to the UN system. While some NGOs repre­sent various sectors of society in the international arena, others contribute by virtue of their professional expertise. Still another group of non-governmental organizations can create a more accountable decision-making procedure within the United Na­tions. These issues were elaborated by the Panel of Eminent Persons on United Nations-Civil Society Relations established in 2003 to produce a set of practical recommendations for the Secretary-General on how the United Nations relationship with civil society, as well as with private sector and parliaments, could be improved.

While the Panel argues for a greater participation in the UN system (among others), the following paragraphs attempt to understand format of this participation by applying corpo- ratist, functionalist and pluralist theories as they are often used in the study of IO-NGO interaction.

Corporatist Debate

The corporatist theory is drawn from the Economics and based on the belief that national economy is best managed by tripatrism that is, a close cooperation among the labor, the capi­tal and the government who are the real stakeholders. Trans­lated into international relations, this signifies the importance of collaboration and dialogue among the major actors includ­ing intergovernmental organizations, transnational civil soci­ety institutions and multinational companies. The perspective holds that participation of these actors is healthy in achieving rational and acceptable to all sides decisions. This facilitates getting a comprehensive description of an issue and guaran­tees successes in its solution as the decisions are made by the sides that are more likely to support its enforcement and im­plementation. From this perspective, ignoring any stakeholder in decision-making would signify ignorance of a vital part of problem, subsequently misrepresentation of reality, and there­fore risking with positive solutions.

The Summit organized by the United Nations in Rio de Janeiro in 1992 dedicated to the environmental affairs which invited nation-states to cooperate with major groups to achieve long-term development is a clear example to that. It is a well- known fact that majority of the UN agencies cooperated with the institutions affected by their work. Their cooperation was often based on consultation and exchange of information and experiences. Such consultations gradually became more for­mal, and since 1999 it came to be described as «multi-stake- holder dialogues» in the Commission on Sustainable Develop­ment. The World Summit on Sustainable Development held in Johannesburg in 2002 made ever greater stress on partnerships in the form of multi-stakeholder partnerships, multi-sectoral partnerships, or partnerships between the United Nations, governments, the private sector, and civil society. The concept constituencies attracted much attention as, by emphasizing on multi-constituency procedures, it deemed necessary to found Office of Constituency Engagement and Partnerships, with an Under-Secretary-General in charge which would have a Civil Society Unit and a Partnership Development Unit to pro­mote partnership within the UN system and its country-level operational programs; an Elected Representatives Liaison Unit responsible for dealing with parliaments; the existing Global Compact Office, which was formed in July 2000 to engage companies in the United Nations' promotion of human rights, labor standards, and the environment; and the existing secre­tariat for the Permanent Forum on Indigenous Issues. How much emphasis the corporatist approach puts on the role of the government in the partnership and development projects is well-known fact. The Panel of Eminent Persons on United Nations-Civil Society Relations advised the United Nations to strengthen its relationship with the private sector. However the status of private companies deliberating with the United Nations is unclear as it did not mention any accreditation for private companies as is employed for NGOs.

Functionalist Debate

When the United Nations and its agencies were established, the functionalist theory of international relations was influential among scholars and was an important component of public de­bate. Functionalism was much based on ideas of David Mitrany, who assumed that all people shared common interest in general welfare, health, and education. States were not in a position to meet demands of their citizens by themselves because of the limited resources, limited expertise skills and the transnational character of the problems which crossed the national borders. As such, unilateral actions by governments generated political processes that interfered with efficient and equitable promotion of the common good and thus contributed to political conflicts within and between states. The solution was a condition where centralized, territorially based governments are replaced by separate systems of governance for each task, or function, that society requires, that is by functional organizations performing specific functions. He believed that some functions were best handled at the local level, some in wider areas, and some on a continental or global basis. Decision-making should be the re­sponsibility of those who are directly involved, as producers, administrators, or consumers by virtue of their expertise skills. There was a strong emphasis on the ability of experts to maxi­mize welfare and to depoliticize decision-making. Functional­ism views NGOs both as the sources of expertise, skills, and reli­able information, which are better able to solve global problems. Such ideas were influential when the UN Charter was negoti­ated among the founder-states. They decided to establish three councils in the UN System with different functions rather than a single executive board and functional commissions under ECO- SOC. They also saw obvious need for consultations with NGOs and a need for creating autonomous agencies, such as the World Health Organization and UNESCO. According to the UN Char­ter these agencies are specialized agencies, but they are often referred to as the functional agencies. Therefore their executive boards were staffed not by states or their representatives, but of specialists having expert knowledge and skills in the subject matter of the agencies.

Since its establishment there has been continuous agree­ment among the key chiefs of the United Nations to fill their organization with skilled experts. With the aim at hand, the Panel organized by the personal initiative of the UN Secretary- General Kofi Annan began to emphasize on neo-functionalist strands, advising the United Nations to cooperate with global policy networks - the public sector, the private sector, and civil society which share same concerns and interests. It especially highlighted the need to shift the focus from generalized assem­blies to specific networks and to embrace greater flexibility in the design of United Nations forums. Each forum would have «a different style of work and degree of formality, with differ­ent participants engaged for the contribution they offered and for the task at hand». The functionalist theory emphasizes on expertise, skills, knowledge, experience of NGOs, and it is results-oriented, and technical. Its apolitical character is based on the belief that without politics it is much easier to formulate priorities and accomplish goals. In what the functionalists fail to emphasize is the fact that they demonstrate no evidence of cri­teria for selecting and estimating priorities and goals. However, despite this, the functionalist proposal in the Panel concerned reforming the UN organs. On the one hand, it emphasized on the need to depoliticize accreditation mechanism and access. On the other hand, it was based on disputable suggestion to lay NGO accreditation on its expertise, competence and skills». According to its main themes, the Security Council should ar­range for evidence from civil society before it could start nego­tiated. The Council had to arrange meeting with local civil soci­ety leaders in field missions and, after peacekeeping operations end, it should convene commissions that would take evidence from civil society specialists and would assess operations. The new accreditation system based on merit had to apply to condi­tions of the Assembly, ECOSOC, and the Department of Public Information and should shift the task of reviewing applications to the Secretariat so as to reduce time inefficiencies and increase the technical focus of the review. Emerging issues should be elaborated in small, informal, high-level, round-table forums with NGO having expertise knowledge in the field to allow real exchanges of experience. There should be public hearings, which would be «technical forums», «to determine appropriate course corrections» for progress towards global goals.

Pluralist Debate

Pluralism is a theory of politics which holds that politics takes place among the number of diverse actors and that such a diversity, expressed in needs, social philosophies, views and etc. is healthy for democracy irrespective of the actors' race, sex, origination or whatsoever. Pluralism promotes for greater space for deliberation as it emphasizes on understanding and tolerance of diversity as the only way to mutual benefit and dispute-settlement. The emphasis here is the democratic rules.

Applying pluralism to global politics is a passionate at­tempt as it involves a controversial history. Say, while the UN Charter created a Commission on Human Rights, it did not mention democracy. Only with the time the United Nations underwent shifts and began to propagate ideals of good gov­ernance as a due condition for healthy development. With the collapse of the Soviet Union in 1991 and democratic revolution of the late 1980s, a majority of the world's governments have chosen to established democratic system of rule, and partici­pation of civil society in the United Nations is supported as an extension of democracy at home. It was increasingly recog­nized that in order to have democracy both at home and at the United Nations, at least three interdependent conditions must be met: a transparent decision-making processes; prevention of majority rule over minority, procedures for diverse opinions to be expressed to the decision-makers; and accountability for the decisions. In theory, democracy is a kind of rule which is based on checks and controls by the citizens over the politicians with the aim to blocking possibility abuse of power. Such a con­trol is usually best achieved by acting through groups. Demo­cratic pluralism derives its basis from the condition where a great diversity of groups exists and exercises some influence and initiates policy proposals. It is such a decision-making mechanism where diverse interests, needs, cultures, thoughts are taken into account during decision-making. It is often ar­gued that UN debates are too democratic and transparent. But we should not forget that in most of the cases the transparency in the UN agencies is achieved by NGOs' involvement and their availing them to the public's attention. NGOs holding consul­tative status at ECOSOC are better able to express their inter­ests and achieve global goals. Even as such, the United Nations fails to be ideally accountable as it is not elected by the people. Here NGOs emphasize that this democratic deficit can be rem­edied by election of intergovernmental organizations to a new would-be Association of World Citizens. However the belief that since NGOs represent people, and so the representatives at the international intergovernmental organizations should be more accountable to them, seems to be unachievable goal as NGOs are consist of their members that is, a tiny portion of total population.

Meanwhile, the Panel expressed its position based on the belief that active participation by intergovernmental organiza­tions is contributing to democracy and to a system of multiple actors. It deemed quite feasible for the United Nations to meet new challenges of globalization through «helping to connect national democratic processes with international issues and by expanding roles for civil society in deliberative processes». Similarly, civil society institutions believe that democratization can be best achieved by gaining participation rights for NGOs in the General Assembly, and in some cases in the Security Council. Proposals called for funding from international do­nors to build Southern civil society capacity to engage with the UN at the country level and to participate in global deliberative processes as relatively low participation by developing country NGO representatives is a major democratic deficit at the United Nations. The third intergovernmental review of the consulta­tive arrangements in 1996 made an important contribution to the statute of NGO whereby they did not need to be regional or global in their membership and those based in a single country, national NGOs, could be accredited. It was believed that this would guarantee NGOs from developing countries an access to the United Nations without precondition of being membership in international NGOs. As it could promote more NGO rep­resentation from the North and under-representation from the South, result in government financed «GONGOs» in the South which were believed could be far from genuine, active, devel­oping country NGOs, such idea appeared unrealistic, too.

It can be seen that pluralist approach advocates open ac­cess and respect for the system's procedures when it comes to the accreditation of NGOs to the United Nations, in contrast to functionalist approach to restrict participation to people with concrete expertise, knowledge and experience. Neo- corporatists advocate restricting participation to organized in­terests, resolve conflicts by bargaining between those interests, and therefore ignore the general interest. Yet, even in case of some kind of agreement among these three positions, decisions on who will participate, what will be said, what papers will be presented, and what their content should be are not orga­nized by the Secretariat but by NGO networks or caucuses on a bottom-up basis, which will also do not represent common interests of world's peoples.

Most scholars mistakenly believe that reforming of the United Nations should also entail involvement of civil-society institutions in the UN policy-making forums. However, as the United Nations is the international intergovernmental organi­zation whose decisions are made by its members states, such an aspiration is practically unrealistic since most of the members, be it democratic or undemocratic, are too distrustful of civil- society institutions.

Actually, guiding principles for NGOs at ECOSOC catego­rize civil-society organizations as having General Status, Spe­cial Status, and the Roster, based on the range of their activities and the geographical spread of their membership. It is a clear violation of the NGO statute that some 20 of the 134 NGOs with General Status are national NGOs and a further 10 are regional, when they are supposed to be concerned with most ECOSOC activities and «representative of major segments of society in a large number of countries in different regions of the world».

Since its establishment, the United Nations has attracted ever increasing number of NGOs through an increasing num­ber of procedures and over an expanding range of issues with the need for democratic pluralism on all economic, social, hu­man rights, and environmental policy issues. It is impractical to extend NGOs access to or participation in the General Assem­bly, the Security Council, and the global economic institutions. There should be greater participation from developing coun­tries. It would benefit from a variety of reforms to strengthen democratic pluralism and increase the density of interactions in global civil society.

Conclusion

The paper reviewed some of the main international docu­ments and their principles, guiding NGO activities at the in­ternational level. By highlighting the vitality of NGO as source of accountability, expertise and support for intergovernmental organizations, international instruments and intergovernmen­tal organizations have given them legal status in the interna­tional law as subject and object of international law. With the gradual emphasis of the international documents on the need and responsibility of states to respect human rights burdened NGOs with the responsibility of protecting and enforcing hu­man rights. However, abilities and resources of NGOs should be differentiated across countries as NGOs of developing states may be less prominent and less represented in the global deci­sion making processes.

With the rise of common problems, mostly brought by globalization, intergovernmental organizations founded after World War II seemed less capable of addressing global chal­lenges. Besides, most intergovernmental procedures dealing with global issues remained unaccountable and un-transparent. The repeated call for reforming the United Nations is marked by the Panel of Eminent Persons welcomed NGO participation believing that such an action could contribute at least in three ways to the United Nations: it could make all voices heard andtherefore make UN more democratic; it could provide it with expertise knowledge and skills so important for effective func­tioning of the United Nations; or it could settle problems by consultation inviting the parties whose interests are at stake. International norms and international organizations can be said to have been set in a way to encourage NGO participation in the intergovernmental processes. However, it seems effective­ness of NGO contribution to the global issues much depends on NGOs themselves, their available resource and conditions in the countries of their residence. Despite the United Nations and NGOs' attempt to join their common efforts to address global problems, it also remains with the political will of Member- States to allow them to take an active part in intergovernmental procedures. As such, the link between norms of international law does not always overlap with the activities of NGOs in the United Nations.



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Ирина Анатольевна Умнова (Конюхова) Зав. отделом конституционно-правовых исследований Российского государственного университета правосудия


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