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Nongovernmental Organizations and International Law

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Nongovernmental organizations (NGOs) have exerted a profound influence on the scope and dictates of international law. NGOs have fostered treaties, promoted the creation of new international organizations (IOs), and lobbied in national capitals to gain consent to stronger international rules. A decade ago, Antonio Donini, writing about the United Nations, declared that “the Temple of States would be a rather dull place without nongovernmental organisations.” His observation was apt and is suggestive of a more general thesis: had NGOs never existed, international law would have a less vital role in human progress.

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1 Donini Antonio, The Bureaucracy and the Free Spirits: Stagnation and Innovation in the Relationship Between the UN and NGOs, 16 Third World Q. 421 (1995).

2 See Russel Lawrence Barsh & Khattak Nadia, Non-governmental Organisations in Global Governance: Great Expectations, Inconclusive Results, in Justice Pending: Indigenous Peoples and Other Good Causes. Essays in Honour of Erica-Irene Daes 15, 2326 (Alfredsson Gudmundur & Stavropoulou Maria eds., 2002) (noting a lack of data for demonstrating NGO effectiveness).

3 Simeon E. Baldwin, The International Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World, 1 AJIL 565, 576 (1907). In 1907 Baldwin was the chief justice of the Connecticut Supreme Court of Errors, and he later served as governor of Connecticut.

4 Id. at 808, 817. He calls the study of such meetings a “new field.” Id. at 817-18 n.8.

5 Kaufmann Wilhelm, Die modernen nicht-staatlichen internationalen Verbände und Kongresse und das internationale Recht, 2 Zeitschrift Für Völkerrecht und Bundesstaatsrecht 419, 43435 (1908).

6 Id. (trans, by author). Kaufmann takes note of Baldwin’s article. Id. at 423.

7 Root Elihu, The Function of Private Codification in International Law, 5 AJIL 577, 583 (1911). In an earlier study, Root had observed “an indefinite and almost mysterious influence exercised by the general opinion of the world regarding the nation’s character and conduct.” Root Elihu, The Sanction of International Law, 2 AJIL 451, 455 (1908). It may be that Root saw in “international societies” a partial explanation for the “mysterious influence.”

8 Lieber Francis, On Civil Liberty and Self-Government 129 (enlarged ed. 1859).

9 For example, the first treaty promulgated by the International Labour Organization (ILO), the Hours of Work (Industry) Convention, committed governments to engage in “consultation” with worker and employer organizations whenever governments sought to provide regulatory exceptions. ILO, Hours of Work (Industry) Convention, No. 1, Nov. 28, 1919, Art. 6.2, 1 International Labour Organisation, International Labour Conventions And Recommendations l (1996), available at <http://www.ilo.org/public/english/standards/index.htm>.

10 See, e.g., Ralph G. Steinhardt, Corporate Responsibility and the International Law of Human Rights: The New “Lex Mercatoria,” in Non-State Actors and Human Rights 177, 17787 (Alston Philip ed., 2005).

11 This definition draws from Article 2 of Professor Suzanne Bastid’s resolution cited infra note 58, which sought to establish an international status of associations.

12 Unlike other analysts, I do not reserve the term “NGO” for organizations that pursue a “public interest,” and I do not exclude from the definition of an NGO the labor unions, professional associations, or other organizations that pursue a “single interest” or a “special interest.” In my view, it is not always easy to distinguish a public interest from a special interest or a public benefit from a mutual benefit. Furthermore, a policy organization typically pursues both a membership interest and the organization’s conception of the public interest.

13 Lador-Lederer J. J., International Non-Governmental Organizations And Economic Entities: A Study In Autonomous Organization And Ius Gentium 13 (1963). He suggests an alternative term, “International Autonomous Entities.” Id.

14 Alston Philip, The ‘Not-a-Cat’Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors? in Non-State Actors and Human Rights, supra note 10, at 3, 3 .

15 The term “civil society” is more than a matter of nomenclature because some analysts use that term to encompass everything that is not government or business. Thus, religions, political parties, movements, and community groups are part of civil society, even if they are not considered NGOs.

16 Martens Kerstin, Mission Impossible? Defining Nongovernmental Organizations, 13 Voluntas: Int’l J. Voluntary & Nonprofit Orgs. 271, 277 (2002). Martens points out that in some languages, “nongovernmental” is translated as “against the government” or “antigovernment.” Id.

17 UN Charter Art. 71.

18 For example, Jeremy Rabkin has contended that the term “nongovernmental organization” is “a Stalinist concept” originating in a defense by the Soviet Union of its delegation to the ILO. Jeremy Rabkin, Why the Left Dominates NGO Advocacy Networks, written version of paper delivered at conference entitled “Nongovernmental Organizations: The Growing Power of an Unelected Few,” American Enterprise Institute (June 11, 2003), at <http://www.aei.org/events/eventID.329,filter.all/event_detail.asp>.

19 Dwight W. Morrow, The Society Of Free States 81 (1919). Morrow was later to serve as a U.S. ambassador and U.S. senator.

20 Sanger Sophy, Practical Problems of International Labour Legislation, in Labour as an International Problem 135, 136 (John Solano E. ed., 1920). Sanger was one of the drafters of the provisions on labor in the Treaty of Versailles.

21 See Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203, 22122 (1943) (using that term).

22 On the UNAIDS Programme Coordinating Board, there are five NGOs, including associations of people living with HIV/AIDS. The Arctic Council includes six permanent participants from organizations of Arctic indigenous persons.

23 See Lung-Chu Chen, An Introduction to Contemporary International Law, ch. 4 (2d ed. 2000) (giving examples of NGO functional activities in intelligence, promoting, prescribing, invoking, applying, terminating, and appraising).

24 James Brown Scott, Inter-American Commission of Women, 24 AJIL 757, 75960 (1930); George A. Finch, James Brown Scott, 1866-1943, 38 AJIL 183, 210 (1944) (noting Scott’s own role in getting the women heard).

25 See, e.g., Cassese Antonio, Human Rights In A Changing World 173 (1990); Korey William, NGOs And The Universal Declaration Of Human Rights: A Curious Grapevine 2950 (1998); Paul Gordon Lauren, The Evolution Of International Human Rights: Visions Seen 183, 18889 (1998); Michael Reisman W., Private International Declaration Initiatives, in La Déclaration Universelle des Droits de L’Homme 194898, at 79 (1998); Louis B. Sohn, The United Nations at Fifty: How American International lawyers Prepared for the San Francisco Bill of Rights, 89 AJIL 540 (1995).

26 See, e.g., Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AJIL 22, 2339 (1999).

27 Theo Boven van, The Role of Non-governmental Organizations in International Human Rights Standard-Setting: A Prerequisite of Democracy, 20 Cal. W. Int’l L.J. 207, 21920 (1990). The NGOs were the International Commission of Jurists, the International Association of Penal Law, and the Urban Morgan Institute of Human Rights.

28 Meron Theodor, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424, 426 (1993).

29 Mackenzie Ruth, The Amicus Curiae in International Courts: Towards Common Procedural Approaches? in Civil Society, International Courts and Compliance Bodies 295, 30204 (Treves Tullio et al. eds., 2005) (discussing filtering mechanisms).

30 Shelton Dinah, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 AJIL 611, 64142 (1994). Her study dealt extensively with the Inter-American Court of Human Rights and the European Court of Human Rights.

31 See, e.g., Hervé Ascensio, Lamicus curiae devant les juridictions international, 105 Revue Générale de Droit International Public [RGDIP] 897 (2001).

32 Chinkin Christine & Mackenzie Ruth, Intergovernmental Organizations as “Friends of the Court, “in International Organizations and International Dispute Settlement: Trends and Prospects 135, 14849 ( Laurence Boisson de Chazournes, Cesare P. R. Romano, & Mackenzie Ruth eds., 2002); Patrizia De Cesari, NGOs and the Activities of the Ad Hoc Criminal Tribunals for Former Yugoslavia and Rwanda, in Civil Society, International Courts and Compliance Bodies, supra note 29, at 113 .

33 Gautier Philippe, NGOs and Law of the Sea Disputes, in Civil Society, International Courts And Compliance Bodies, supra note 29, at 233, 242 .

34 Bartholomeusz Lance, The Amicus Curiae Before International Courts and Tribunals, 5 Non-State Actors & Int’l L. 209, 212 (2005) (“Although the Court was initially open to NGO participation in its advisory jurisdiction, in 1971 it locked the door, let some materials slip under the door in 1996, and then since 2004 left it slightly ajar.”).

35 ICJ, Practice Direction XII (July 30, 2004), available at <http://www.icj-cij.org>.

36 Laurence Boisson de Chazournes & Makane Moïse Mbengue, The Amici Curiae and the WTO Dispute Settlement System: The Doors Are Open, 2 L. & Prac. Int’l Cts. & Tribunals 205 (2003).

37 Methanex Corp. and United States, Decision on Petitions from Third Persons to Intervene as “Amici Curiae,” paras. 33, 53 (NAFTA Ch. 11 Arb. Trib. Jan. 15, 2001), available at <http://www.state.gov/documents/organization/6039.pdf> . The tribunal explained that “Amiciare not experts”; they are “advocates.” Id., para. 38. For a discussion of the decision, see Mann Howard, Opening the Doors, at Least a Little: Comment on the Amicus Decision in Methanex v. United States, 10 Rev. Eur. Community & Int’l Envtl. L. 241 (2001).

38 Sean D. Murphy, Contemporary Practice of the United States, 98 AJIL 841 (2004). 39 Methanex, Final Award on Jurisdiction and Merits, para. 27 (NAFTA Ch. 11 Arb. Trib. Aug. 3, 2005), available at <http://www.state.gOv/s/l/c5818.htm>.

40 Bartholomeusz, supra note 34, at 265-72, 285. One was a case under NAFTA using UNCITRAL rules (the UPS case), and the other a case under a bilateral investment treaty between France and Argentina using 1CSID rules (the Aguas argentinas case).

41 See Jeffrey L. Dunoff, Border Patrol at the World Trade Organization, 1998 Y.B. Int’l Envtl. L. 20, 2223 (predicting that the openness to amicus briefs would be illusory).

42 United States—Investigation of the International Trade Commission in Softwood Lumber from Canada, Doc. WT/DS277/R, para. 7.10 n.75 (adopted Apr. 26, 2004).

43 Nsongurua J. Udombana, So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights, 97 AJIL 1, 2 (2003); Zagorac Dean, International Courts and Compliance Bodies: The Experience of Amnesty International, in Civil Society, International Courts and Compliance Bodies, supra note 29, at 11, 3437 .

44 Hey Ellen, The World Bank Inspection Panel: Towards the Recognition of a New Legally Relevant Relationship to International Law, 2 Hofstra L. & Pol’y Symp. 61, 66 (1997). Edith Brown Weiss has suggested that the Inspection Panel is part of “growing efforts to provide means to civil society to hold international intergovernmental organizations accountable for their actions.” Edith Weiss Brown, Invoking State Responsibility in the Twenty-first Century, AJIL 798, 815 n.1 19 (2002).

45 Rôle of Non-governmental Groups in the Development of International Law, 54 ASIL Proc. 194, 220, 221 (1960) (comments of Oscar Schachter).

46 See, e.g., David P. Forsythe, Who Guards the Guardians: Third Parties and the Law of Armed Conflict, 70 AJIL 41, 4446 (1976) (discussing the formal role of the ICRC); Harold K. Jacobson & Edith Weiss Brown, Assessing the Record and Designing Strategies to Engage Countries, in Engaging Countries: Strengthening Compliance With International Environmental Accords 511, 527, 529, 533 ( Edith Brown Weiss & Harold K. Jacobson eds., 1998); Prasad Maya, The Role of Non-governmental Organizations in the New United Nations Procedures for Human Rights Complaints, 5 Denv. J. Int’l L. & Pol’y 441 (1975).

47 Chayes Abram & Antonia Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements, ch. n, at 250, 251 (1995).

48 First Meeting of the Parties to the Aarhus Convention, Decision 1/7, UN Doc. ECE/MP.PP/2/Add.8, annex, para. 4 (2004). NGOs can also submit communications alleging noncompliance by a party to the Convention. See Report of the Compliance Committee, UN Doc. ECE/MP.PP/2005/13, paras. 24-27. The Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 38 ILM 517 (1999).

49 SC Res. 771, para. 5 (Aug. 13, 1992).

50 SC Res. 1470, para. 8 (Mar. 28, 2003).

51 Edwin M. Borchard, The Access of Individuals to International Courts, 24 AJIL 359, 364 (1930).

52 Higgins Rosalyn, Conceptual Thinking About the Individual in International Law, in International Law: A Contemporary Perspective 476, 480 (Falk Richard, Kratochwil Friedrich, & Saul Mendlovitz H. eds., 1985).

53 See generally Martens Kerstin, Examining the (Non-)Status of NGOs in International Law, Ind. J. Global Legal Stud., Summer 2003, at 1 ; Nowrot Karsten, Legal Consequences of Globalization: The Status of Non-governmental Organizations Under International Law, 6 Ind. J. Global Legal Stud. 579 (1999).

54 This problem was recognized by the late nineteenth century. For example, Pasquale Fiore wrote that societies (which are “the result of freedom of association for a common interest”) are granted rights by the sovereignty of a state, and thus that such societies “may not as of right exercise their functions in foreign countries.” Fiore Pasquale, International Law Codified And Its Legal Sanction 3435 n.1 (Edwin M. Borchard trans., 1918).

55 1 Union of International Associations, International Association Statute Series, app. 4.1 (1988). This and the other documents noted here from the UIA Statute Series are available online at <http://www.uia.be/legal/>. The predecessor organization to the UIA was founded in 1907.

56 The one concrete achievement occurred in 1986 with the signing of the European Convention on the Recognition of Legal Personality of International NGOs. It requires parties to recognize “as of right” the legal personality and capacity acquired by an NGO in any of the parties. European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations, Apr. 24, 1986, Art. 2, ETS No. 124. The Convention has eight parties.

57 Institut de droit international, Draft Convention Relating to the Legal Position of International Associations (1923), reprinted in Union of International Associations, supra note 55, app. 4.5 [hereinafter Draft Convention]; see James Scott Brown, The Institute of International Law, 17 AJIL 751, 75356 (1923).

58 Resolution adopted by the Institute of International Law at its 49th Session, reprinted in Union of International Associations, supra note 55, app. 4.8, and in 45 AJIL Supp. 15, 20 (1951).

59 C. Jenks Wilfred, Multinational Entities in the Law of Nations, in Transnational Law In A Changing Society: Essays In Honor Of Philip C. Jessup 70, 77 ( Friedmann Wolfgang, Henkin Louis, & Lissitzyn Oliver eds., 1972).

60 Menno T. Kamminga, The Evolving Status of NGOs Under International Law: A Threat to the Inter-State System? in Non-State Actors and Human Rights, supra note 10, at 93, 9899 . In addition, the ICRC and the federation were granted observer status in the UN General Assembly in the early 1990s. Note that the ICRC claims to be an entity other than an IO or NGO. ICRC, Discover The ICRC 6 (2005).

61 Draft Convention, supra note 57, pmbl.

62 See Rebasti Emanuele, Workshop Report, A Legal Status for NGOs in Contemporary International Law? (Eur. Univ. Inst. Workshop Report, Nov. 2002), at <http://users.unimi.it/sociv/documenti/report.doc> (remarks of Pierre-Marie Dupuy).

63 Ruth B. Russell (assisted by Jeannete E. Muther), A History Of The United Nations Charter 800-01 (1958) (stating that Article 71 “formalized a normal practice under the League of Nations of consulting with interested nongovernmental organizations concerned with pertinent economic and social activities”). Of course, consultations with NGOs had declined in the period preceding 1945.

64 Convention on the International Institute of Agriculture, June 7, 1905, Art. 9(f), 35 Stat. 1918, 1 Bevans 436. Unofficial international agricultural congresses had begun in 1878.

65 League of Nations Covenant Art. 25; Chandler P. Anderson, The International Red Cross Organization, 14 AJIL 210, 214 (1920).

66 See, e.g., 29 International Law Association, Conference Report 363-65 (1920) (remarks of Wyndham A. Bewes); Manley O. Hudson, The First Conference for the Codification of International Law, 24 AJIL 447, 451 (1930) (noting that organizations of women sent representatives to the conference at The Hague and that a conference committee devoted a session to hearing statements from the organizations).

67 Convention and Statute Establishing an International Relief Union, July 12, 1927; Convention Art. 5(2), Statute Art. 1, 135 LNTS 248. The International Relief Union was the first IO to have a provision in its charter providing for a consultative capacity for NGOs.

68 Lyman Cromwell White (assisted by Marie Ragonetti Zocca), International Non-Governmental Organizations: Their Purposes, Methods, And Accomplishments 24647 (1951).

69 Article 71, in 2 The Charter of The United Nations: A Commentary 1069, 1070 (Simma Bruno ed., 2d ed. 2002) (making no mention of the lobbying by NGOs at the conference); Leland M. Goodrich, Hambro Edvard, & Anne Patricia Simons, Charter Of The United Nations: Commentary And Documents 444 (3d & rev. ed. 1969) (mentioning the NGOs but not the active role they played).

70 See Democratic Processes: The Non-governmental Organizations, 1951 Ann. Rev. UN Aff. 165, 182 (remarks of Waldo Chamberlin); Dorothy B. Robins, Experiment In Democracy: The Story Of U.S. Citizen Organizations In Forging The Charter Of The United Nations 122-28 (1971) (noting the catalytic role of James T. Shotwell). Robins and Chamberlin were both present at the San Francisco Conference. See also Suy E., The Status of Observers in International Organizations, 160 Recueil des Cours 75, 102 (1978 II) (noting the pressure brought by the NGOs on the drafters of the Charter).

71 Lauterpacht H., International Law And Human Rights 24-26, 6364 (1950); Otto Dianne, Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society, 18 Hum. Rts Q. 107, 127 (1996). For a survey of current UN practices by agency, see UN Non-Governmental Liaison Service, UN System Engagement With NGOS, Civil Society, The Private Sector, And Other Actors: A Compendium (2005), available at <http://www.un-ngls.org/publications.htm>.

72 Review of Consultative Arrangements with Non-governmental Organizations, ESC Res. 288 (X), para. 8 (Feb. 27, 1950), reprinted in Lador-Lederer, supra note 13, app. C, at 387 [hereinafter 1950 NGO Rule]; Arrangements for Consultation with Non-governmental Organizations, ESC Res. 1296 (XLIV) (May 23, 1968), available at <www.globalpolicy.org/ngos/ngo-un/info/res-1296.htm>; Consultative Relationship Between the United Nations and Non-governmental Organizations, ESC Res. 1996/31 (July 25, 1996), available at <http:l/www.un.org/esa/coordination/ngo/Resolution_1996_31/index.htm> [hereinafter 1996 NGO Rule].

73 1950 NGO Rule, supra note 72, para. 5.

74 1996 NGO Rule, supra note 72, para. 9 (emphasis added).

75 Compare 1950 NGO Rule, supra note 72, paras. 8-9, with 1996 NGO Rule, supra note 72, paras. 4-5 .

76 1996 NGO Rule, supra note 72, paras. 10, 12.

77 Id, para. 57(a).

78 Id., para. 56.

79 See, e.g., Jurij Aston Daniel, The United Nations Committee on Non-governmental Organizations: Guarding the Entrance to a Politically Divided House, 12 Eur. J. Int’l L. 943 (2001). The recent Report of the Panel of Eminent Persons on United Nations-Civil Society Relations (Cardoso Report) stated that “it is essential to depoliticize the accreditation process.” We the Peoples: Civil Society, the United Nations and Global Governance, UN Doc. A/58/817, at 54, para. 127 (2004).

80 OAS Permanent Council, CP/Res. 759 (1217/99) (1999).

81 Corinne A. A. Packer & Rukare Donald, The New African Union and Its Constitutive Act, 96 AJIL 365, 375 (2002).

82 Kiss Alexandre & Shelton Dinah, International Environmental Law 167 (3d ed. 2004).

83 The definition is found in a funding limitation on the number of U.S. employees who may attend a conference. Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108, §634, 119 Stat. 2290(2005).

84 José E. Alvarez, International Organizations as Law-Makers 611 (2005); see also Eibe Riedel, The Development of International Law: Alternatives to Treaty-Making? International Organizations and Non-State Actors, in DEVELOPMENTS OF INTERNATIONAL LAW IN TREATY MAKING 301,317 (Rudiger Wolfrum & Volkt r Roben eds., 2005) (stating that NGO involvement in all processes of IO activities has been crucial and indispensable!.

85 See, e.g., CONSTRUCTING WORLD CULTURE: INTERNATIONAL NONGOVERNMENTAL ORGANIZATION S SINCE 1875 (John Boli & George M. Thomas eds., 1999); ‘THE CONSCIENCE OF THE WORLD’: THE INFLUENCE OF NON-GOVERNMENTAL ORGANISATIONS IN THE UN SYSTEM (Peter Willetts ed., 1996); Tom Farei, New Players in the Old Game: The De Facto Expansion of Standing to Participate in Global Security Negotiations, 38 AM. BEHAVIORAL SCIENTIST 842 (1995); Anne-Marie Slaughter, International Law and International Relations, 285 RECUEIL DES COURS 9, 96-151 (2000) (constituting chapter 3, The Role of NGOs in International Lawmaking); The GrowingRole of Nongovernmental Organizations, 89 ASIL PROC. 413 (1995); P. J. Simmons, Learning to Live with NGOs, FOREIGN POL'Y, Fall 1998, at 82.

86 S. H. BAILEY, THE FRAMEWORK O F INTERNATIONAL SOCIETY 81 (1932).

87 Id. at 82.

88 PHILIP C. JESSUP, ADOLF LANDE, & OLIVER J. LISSITZYN, INTERNATIONAL REGULATION OF ECONOMIC AND SOCIAL QUESTIONS 33 (1955).

89 Rosalyn Higgins, The Reformation in Lnternational Law, in LAW, SOCIETY AND ECONOMY 207, 211-1 5 (Richard Rawlings ed., 1997).

90 Id. at 212, 215.

91 Id. at 215.

92 See Marek St. Korowicz, The Problem of the International Personality of Individuals, 50 AJIL 533, 534 (1956) (noting the views of Grotius and Pufendorf); Myres S. McDougal & Gertrude C. K. Leighton, The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action, 59 YALE L.J. 60, 83 (1949) (stating that “[i]t is indeed only from the narrowest perspectives of international law as conceived in the period since Bentham that an observer can claim that even theoretically only states, exclusive of individuals, are the subjects of international law”).

93 On customary international law, see John King Gamble & Ku Charlotte, International Law—New Actors and New Technologies: Center Stage for NGOs:? 31 Law & Pol’y Int’l Bus. 221, 244 (2000); Hobe Stephan, The Role of Non-State Actors, in Particular of NGOs, in Non-contractual Law-making and the Development of Customary International Law, in Developments of International Law in Treaty Making, supra note 84, at 319, 328 .

94 The issues in play were the slave trade, religious freedom, and intellectual property. Max J. Kohler, Jewish Rights at International Congresses, Am.Jewish Y.B. 5678, at 106, 10910 (1917); Lauren, supra note 25, at 40; Nicolson Harold, The Congress of Vienna: A Study in Allied Unity: 1812-1822, at 132 (1946).

95 See David D. Caron, War and International Adjudication: Reflections on the 1899 Peace Conference, 94 AJIL 4, 15 (2000). In 1908, in his Nobel Peace Prize lecture, Fredrik Bajer likened the “organization of peace” to a “house of three stories,” including on the first story the peace associations; on the second story, the inter parliamentary conferences; and on the third story, the intergovernmental Hague Peace conferences. Fredrik Bajer, The Organization of the Peace Movement (May 18, 1908), at <http://nobelprize.org/peace/laureates/1908/bajer-lecture.html>.

96 International Conference on Customs and Other Similar Formalities: Official Instruments Approved by the Conference, League of Nations Doc. C.D.I.96(1).1923, at 25; George L. Ridgeway, Merchants Of Peace 21213 (1938).

97 Paul S. Reinsch, International Administrative Law and National Sovereignty, 3 AJIL 1, 22 (1909).

98 Fenwick C.G., The “Failure” of the League of Nations, 30 AJIL 506, 508 (1936).

99 Wright Quincy, Activities of the Institute of International Law, 54 ASIL Proc. 194, 196 (1960).

100 Id. He also observed that private groups are free to make use of persons from all over the world.

101 Kazansky Pierre, Théorie de l’administration internationale, 9 RGDIP 353, 354, 357 (1902) (trans, byauthor).

102 Mat 361.

103 See, e.g., Margaret E. Keck & Sikkink Kathryn, Activists Beyond Borders 1 (1997); Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. Rev. 623, 646, 647 (1998); Ethan A. Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society, 44 Int’l Org. 479, 482 (1990).

104 Myres S. McDougal, The Role of Law in World Politics, 20 Miss. L.J. 253, 260, 265 (1949); see Higgins Rosalyn, Problems and Process: International Law and How We Use It 4950 (1994) (explaining that international law is a dynamic decision-making process rather than merely a set of rules).

105 Daniel C. Esty, Non-governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. Int’l Econ. L. 123, 13537 (1998).

106 Ranjeva Raymond, Les organisations non gouvemementales et la mise en oeuvre du droit international, 270 Recueil Des Cours 9, 23, 100 (1997).

107 See, e.g., Harold Koh Hongju, Transnational Legal Process, 75 Neb. L. Rev. 181, 20304 (1996).

108 See Reinsch, supra note 97, at 15-16; Raustiala Kal, The “Participatory Revolution “in International Environmental Law, 21 Harv. Envtl. L. Rev. 537, 58284 (1997).

109 See Alvarez, supra note 84, at 287, 610, 612.

110 UN Press Release SG/SM/7318, Partnership with Civil Society Necessity in Addressing Global Agenda, Says Secretary-General in Wellington, New Zealand Remarks (Feb. 29, 2000).

111 See, e.g., Fitzmaurice Malgosia, Actors and Factors in the Evolution of Treaty Norms, 4 Austrian Rev. Int’l & Eur. L. 1 (1999); Volker Röben, Proliferation of Actors, in Developments of International Law in Treaty Making, supra note 84, at 511, 512 . The earliest textbooks on international organization gave attention to NGOs. See, e.g., Frederick Charles Hicks, The New World Order, ch. 20 (1920); Pitman B. Potter, An Introduction To The Study Of International Organization, ch. 18 (rev. ed. 1922).

112 David Bederman has suggested that IOs be visualized as “communities.” David J. Bederman, The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel, 36 Va. J. Int’l L. 275, 37172 (1996).

113 See, e.g., Palmer Geoffrey, New Ways to Make International Environmental Law, 86 AJIL 259, 28083 (1992).

114 Virginia A. Leary, Lessons from the Experience of the International Labour Organisation, in The United Nations and Human Rights 580, 585 (Alston Philip ed., 1992).

115 See Maragia Bosire, Almost There: Another Way of Conceptualizing and Explaining NGOs’ Quest for Legitimacy in Global Politics, 2 Non-St. Actors & Int’l L. 301, 313 (2002); see also Simma Bruno, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours 217, 23536 (1994 VI) (noting the vital role of NGOs and asking whether sovereign states have a moral basis for monopolizing the discourse on the definition and pursuit of community interests in international law).

116 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 287-88, para. 2 (July 8) (Guiilaume, J., sep. op.). He suggested “piercing the veil” of the IOs. Id. In its opinion, the Court stated “that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion.” 1996 ICJ Rep. at 234, para. 13.

117 Id. at 288, para. 2 (Guiilaume, J., sep. op.).

118 Id. at 335-36, para. 8 (Oda, J., dissenting). Regarding the World Health Organization’s request, Judge Oda issued a separate opinion agreeing with the Court’s decision to decline to render an opinion, but holding that the advocacy by the NGOs was an additional reason to decline. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 ICJ Rep. 66, 92-96, paras. 9, 15-16 (Oda, J., sep. op.).

119 John R. Bolton, Should We Take Global Governance Seriously? 1 Chi. J. Int’l L. 205, 217 (2000).

120 Id.

121 Anderson Kenneth & Rieff David, ‘Global Civil Society’: A Sceptical View, in Global Civil Society 2004/5, at 26, 37 (Anheier Helmut et al. eds., 2004).

122 Id. at 29.

123 Id. At 30.

124 Id. at 34.

125 Note that the idea of NGOs as serving a representative function at the United Nations goes back to how UN member governments implemented Article 71 in 1950 in calling for an accredited NGO to “represent a substantial proportion of the organized persons within the particular field in which it operates.” See text at note 73 supra.

126 Scelle Georges, Une Crise De La Société Des Nations 14446 (1927) (trans, by author). Scelle’s term for NGOs was extra-state societies. Scelle Georges, Précis De Droit Des Gens 288 (1932).

127 Schucking Walther, Le développement du Facte de la Société des nations, 20 Recueil des Cours 349, 394 (1927 V) (trans, by author). In 1921 Schücking said that “the time had arrived in which it was necessary to create a new international law not only for states but for peoples, in order that the natural law of peoples to govern themselves should penetrate the law positive.” James Scott Brown, Walter Schiücking, January 6, 1875-August 25, 1935, 31 AJIL 107, 109 (1937) (quoting Schucking at Institut de droit international, Rome, Oct. 8, 1921).

128 Berenstein Alexandre, Les Organisations Ouvriéres: Leurs Compétences Et Leur Rôle Dans La Société Des Nations 277 (1936) (trans, by author).

129 Mitrany David, An Advance in Democratic Representation, 6 Int’l Associations 136, 188 (1954). Yet he presciently warned that “if the NGO’s are to become the accepted channel of international public opinion they will have to display a sense of restraint and responsibility in their views and claims; and perhaps also perform among themselves a certain process of selection.” Id.

130 Crawford James & Marks Susan, The Global Democracy Deficit: An Essay in International Law and Its Limits, in Re-Imagining Political Community: Studies in Cosmopolitan Democracy 72, 83 (Archibugi Daniele, Held David, & Martin Köhler eds., 1998).

131 Kamminga, supra note 60, at 110.

132 Thomas M. Franck, Remarks, in Non-State Actors as New Subjects of International Law 151, 152 (Hofmann Rainer ed., 1998). Professor Franck’s views on NGOs have evolved. Several years ago, he wrote that introducing the voice of individuals and interest groups in diplomatic negotiations “ameliorates, but does not cure, the legitimacy-deficit of Vattelian international governance and the modern alienation that ensues.” Thomas M. Franck, The Empowered Self: Law And Society In The Age Of Individualism 36 (1999).

133 Florentino P. Feliciano, Book Review, 68 Yale L.J. 1039, 1047 (1959) (reviewing Wilfred Jenks C., The Common Law Of Mankind (1958)).

134 In that regard, the goal of lobbying is functionally the same at the international level as it is at the domestic level, where the individual is typically governed by parliaments containing many members for whom he had no opportunity to vote.

135 Bodansky Daniel, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law? 93 AJIL 596, 612 (1999).

136 Robert O. Keohane & Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in Efficiency, Equity, And Legitimacy: The Multilateral Trading System At The Millennium 264, 282 (Roger B. Porter et al. eds., 2001). They cite earlier work by Fritz Scharpf on input and output legitimacy. Id. at 293 n.40.

137 M a t 283-84.

138 Id. at 289-90.

139 Robert O. Keohane, The Contingent Legitimacy of Multilateralism, in Multilateralism Under Challenge? Power, International Order, and Structural Change (Newman Edward, Thakur Ramesh, & Tirman John eds., forthcoming 2006).

140 See Dunn Fredericks, The International Rights of Individuals, 35 ASILProc. 14, 18 (1941) (suggesting that if international law is to regain its former influence, then it needs to be in harmony with social developments in democracy that entail a right of the individual to be consulted in matters affecting his welfare).

141 See, e.g., Edwards Michael, Ngo Rights And Responsibilities (2000); Reinisch August, The Changing International Legal Framework for Dealing with Non-State Actors, in Non-State Actors and Human Rights, supra note 10, at 37, 4849 ; Peter J. Spiro, Accounting for NGOs, 3 Chi. J. Int’l L. 161 (2002); Stein Eric, International Integration and Democracy: No Love at First Sight, 95 AJIL489, 533 (2001).

142 Chinkin Christine, Human Rights and the Politics of Representation: Is There a Role for International Law? in The Role Of Law In International Politics: Essays In International Relations And International Law 131, 144 (Byers Michael ed., 2000).

143 See Chiang Pei-Heng, Non-Governmental Organizations At The United Nations 5 (1981) (suggesting that the most important function of NGOs is “providing alternative programs and ideas, and views in opposition to or critical of official policies and opinions”).

144 Mary F. Dominick, Consultation, 1 Encyclopedia Of Public International Law 776, 778 (1992). See generally Frederic L. Kirgis Jr., Prior Consultation In International Law (1983).

145 An example of an advisory group is the Business Advisory Council of the Asia-Pacific Economic Cooperation Forum. Notice-and-comment opportunities are provided in several IOs, for example, the Organization for Economic Co-operation and Development. For examples of multistakeholder dialogues, see Monterrey Consensus of the International Conference on Financing for Development, UN Doc. A/CONF. 198/11, annex, para. 69 (2002); World Summit on the Information Society, Tunis Agenda for the Information Society, para. 72 (2005), available at <http://www.itu.int/wsis/documents>.

146 At the 2004 meeting, CARE International and the International Center for Transitional Justice briefed Council members on the role of civil society in post conflict peace building. Arria and Other Special Meetings Between NGOs and Security Council Members, June 22, 2004, available at <http://www.globalpolicy.org/security/mtgsetc/brieindx.htm>; Wedgwood Ruth, Legal Personality and the Role of Non-governmental Organizations and Non-State Political Entities in the United Nations System, in Non-State Actors as New Subjects of International Law, supra note 132, at 21, 27 .

147 Before the summit, the president of the General Assembly presided over informal interactive hearings with NGOs and the private sector.

148 Guidelines for Arrangements on Relations with Non-governmental Organizations, Doc. WT/L/162, para. VI (1996). Once a year, the WTO Secretariat sponsors a symposium in which invited NGOs participate in panel sessions along with business leaders, government officials, and academics. In addition, NGOs are invited to attend WTO ministerial conferences as silent obervers. For example, in December 2005, over eight hundred NGOs attended the Hong Kong ministerial conference.

149 Id.

150 Chinkin Christine, Enhancing the International law Commission’s Relationships with Other Law-making Bodies and Relevant Academic and Professional Institutions, in Making Better International Law: The International Law Commission At 50, at 333, 33941 , UN Sales No. E/F.98.V.5 (1998); Charlesworth Hilary & Chinkin Christine, The Boundaries Of International Law: A Feminist Analysis 101 (2000).

151 Statute of the International Law Commission, Art. 26(1).

152 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 19(2), 999 UNTS 331 (emphasis added).

153 American Declaration of the Rights and Duties of Man, May 2, 1948, Art. XXIV, 43 AJIL Supp. 133 (1949).

154 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, Sept. 18, 1997, Arts. 11.4, 12.3, 13.2, 36 ILM 1507(1997).

155 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, Art. XI(7)(a),993 UNTS 243, 12 ILM 1085 (1973). The Aarhus Convention of 1998 contains a similar provision. Aarhus Convention, supra note 48, Art. 10(5).

156 That language occurs in conventions regarding the ozone layer, hazardous waste, climate change, biodiversity, desertification, hazardous chemicals, and persistent organic pollutants. In some meetings, NGOs are invited to make oral statements at the invitation of the chair.

157 United Nations Conference on Environment and Development, Agenda 21, ch. 27.9(b), UN Doc. A/CONF. 151/26 (1992), UN Sales No. E.93.I.11.

158 Community of Democracies, 2005 Santiago Ministerial Commitment, Cooperating for Democracy, §1 (Apr. 30, 2005), available at <http://www.state.gOv/g/drl/cl0712.htm>.

159 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GARes. 53/144, annex, Art. 5 (Mar. 8, 1999) (emphases added).

160 White Lyman, Non-governmental Organizations and Their Relations with the United Nations, 1951 Ann. Rev. UN Aff. 165, 16667 . At the time that he made this observation, White was a UN staff official working on NGO affairs.

161 Janne Elisabeth Nijman, The Concept Of International Legal Personality 469 (2004) (suggesting that when groups “are silenced or suppressed, the international community has a duty to accommodate these groups on stage and to be an audience to them”); Laurence Boisson de Chazournes & Sands Philippe, Introduction to International Law, The International Court of Justice and Nuclear Weapons 1 , 10 (Laurence Boisson de Chazournes & Sands Philippe eds., 1999) (seeing a “growing entitlement of individuals and non-governmental organisations to a more formal and informal involvement in international judicial and quasi-judicial proceedings”); Higgins, quoted in text at note 91 supra (using the term “entitlement”); Nowrot, supra note 53, at 625 (suggesting that the participatory rights granted to NGOs under the internal law of the United Nations are a form of entitlement); Willetts Peter, From “Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN, 6 Global Governance 191, 205 (2000) (suggesting that Article 71 of the UN Charter can now be regarded as part of customary international law and seeing evidence for this in the way that NGOs can gain access even when the political climate turns against them).

162 Kant Immanuel, To Perpetual Peace, in Perpetual Peace and Other Essays on Politics, History, and Morals 107, 126 (Humphrey Ted trans., 1983) (Kant pagination 36869).

163 Id.

164 Id. A similar idea was voiced in 1916 by Henri La Fontaine, who wrote that the highest interests of humanity

have found their expression in numerous free organizations; the international needs of men have induced them to come into closer relations despite frontiers and to unite in order the better to satisfy these needs. It is natural that they will appeal to the Conference of States and try to obtain its aid; it seems right to allow them to transmit their wishes to the Conference and submit to it the best means of realizing them.

Henri La Fontaine, The Great Solution 65 (1916). La Fontaine does not discuss Kant. On La Fontaine, see The Award of the Nobel Peace Prize to Senator Henri LaFontaine, 8 AJIL 137 (1914).

165 Feinberg Nathan, La petition en droit international, 40 Recueil des Cours 529, 628 (1932 II). Feinberg also discusses the legal status of the “petition-complaint” in which the petitioner demands rectification for an injury to its private interest.

166 Id. at 631 (trans, by author).

167 Id. at 632.

168 Id. at 638. Feinberg wrote in 1932, a high-water mark for NGO participation in the pre-World War II period.

169 Louis B. Sohn, Remarks on the role of lawyers and resourcefulness legal, in The Effectiveness Of International Decisions: Papers Of A Conference Of The American Society Of International Law And The Proceedings Of The Conference 488, 491 (Stephen M. Schwebel ed., 1971).

170 Pound Roscoe, The Idea of Law in International Relations, 33 ASIL Proc. 10, 18 (1939).

171 Id. at 21. Pound says that he borrowed the term “englobing” from the French jurists of the international school.

* Of the Board of Editors. The author thanks Jeffrey Dunoff, Hilary French, Menno Kamminga, Karsten Nowrot, Christopher D. Stone, and Urs Thomas for helpful comments. The author also thanks Christiane Conrad, Joseph Johnson, Antonia Rahneva, Jenn Ritter, and Isabelle van Damme for research and translation assistance.

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American Journal of International Law
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