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Indiana Journal of Global Legal Studies 10.2 (2003) 1-24

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Examining the (Non-)Status of NGOs

Kerstin Martens*

Non-governmental organizations (NGOs) are increasingly influential players on the international scene. Since the end of the Cold War, NGOs have enjoyed increasingly easy access to, and better possibilities to affect, political processes taking place above the national level. In fact, the increasing intensity of their activities over the last decade demonstrates that they have become an integral part of the procedures and structures of global governance. 1 Most visibly, the recent protests of anti-globalization activists in Seattle, Gothenburg, Porto Alegre, Davos, Genoa, and many other locations demonstrated the potential of NGOs to influence the proceedings of international negotiations. These protests also clearly revealed NGOs' capacity for mobilizing and networking across borders and in a short period of time. 2

But NGOs are not always opponents to governmental institutions and do not always challenge their policies. Rather, they are often directly involved in the design of policies and may shape political processes from inside the official arenas. For example, at the United Nations, NGOs are significantly involved in the activities and performances of the intergovernmental organizations (IGOs). [End Page 1] They advise U.N. commissions and committees regularly, they work together with U.N. agencies and implement projects for them, or they assist U.N. institutions and provide necessary information. In his Millennium report, Secretary- General Kofi Annan re-emphasized that strengthening the relations between the United Nations and private actors constitutes a priority of his mandate. He seeks "[t]o give full opportunities to non-governmental organizations and other non-state actors to make their indispensable contribution to the [United Nations] Organization's work." 3

Despite the increasing involvement of NGOs in the processes and proceedings of global politics and international law, the features and functions of the "new player" NGO have not yet been clearly identified. 4 Definitions and interpretations of the term NGO vary enormously and can often be misleading or even contradictory. For some, "NGO" simply describes many different types of organizations which are not governmental, including multi-national companies, national liberation groups, and many more. For others, "NGO" is reserved exclusively for private non-profit organizations encouraging higher values within the legal scope of their society. In international law, the term "NGO" is equally confusing in its application. In this paper, I will argue that there is a lack of agreement on NGOs as subjects of international personality. While in many countries domestic legislation for "private associations" serves as a basis for NGO identification and recognition, at the international level, international legal standards to define and regulate the perception of NGOs have not yet been established.

This "non-status" of NGOs in international law may be considered an opportunity for maintaining a variety of voices of civil society in the international sphere. Since the criteria for actor NGOs are not rigorously regulated, various kinds of societal actors may be given the opportunity to contribute to the political process when they would otherwise be excluded. This non-status, however, also creates various problems. Most importantly, in the light of the increasing participation of NGOs in international political processes, the lack of regulation [End Page 2] raises questions about NGO representativity and legitimacy. 5 For whom do NGOs actually stand? Who authorizes them to represent what views? Many NGOs, particularly the well-known organizations such as Amnesty International, the WWF, or CARE, can claim to have a large membership or supporters from many parts of the world; many other NGOs are instead simply self-appointed, consisting of only a small group of people (or even a single individual) and representing the opinions of a relatively small number of people.

For the purposes of this study, I will examine the status of NGOs in international law through a historical analysis covering the last century. In Part I of this article, I will describe current NGO involvement in global governance and analyze certain problems resulting from NGOs' lack of status in international law. Then, in Parts...


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