Amnesty International and Non-Governmental Organisations

International organisations first, national ones "where appropriate", and for a national organisation after consultation with the Member concerned, so a State has a say in whether its own nationals' association is admitted.

The system built on article 71. The Council has established arrangements under which organisations are granted consultative status in graded categories, from a general status for large organisations concerned with most of the Council's agenda, through a special status for those with competence in particular fields, to a roster of those able to make occasional contributions. Status carries rights to attend meetings, to submit written statements, and in the higher categories to speak and to propose items. Applications are examined by a committee of the Council, which also considers complaints and may suspend or withdraw status. The grant, refusal and withdrawal of status are decided by governments sitting as a committee, which is the political feature of the arrangement and the source of most of the criticism of it.

Beyond article 71. Practice has gone further than the article. NGOs are accredited to major United Nations conferences, participate in the work of the human rights treaty bodies and the Human Rights Council, and are consulted by specialized agencies under their own constitutions.

What NGOs actually do in international law

The influence is real and it is exercised through law-making rather than through legal personality.

Setting the agenda. Campaigns by coalitions of organisations preceded and shaped several modern treaties, and the pattern is consistent: an NGO documents a problem, drafts a model instrument, assembles a group of sympathetic States, and the States conclude the treaty.

Supplying facts. Treaty bodies and special procedures depend on information that governments will not supply about themselves. An organisation with researchers on the ground fills the gap, and the reliability of its reporting is the whole of its authority.

Reporting on compliance. Under a reporting system of the kind in [The Economic and Social Council], the State's own report is answered by parallel reports from organisations, which is what makes the examination something other than a recital of the State's own claims.

Litigating and intervening. Not as parties before the International Court, which article 34(1) forbids, but as counsel, as amici before regional human rights courts and criminal tribunals whose rules permit it, and as the drafters of the litigation strategies that produce the cases.

Under article 24 of the Constitution of the International Labour Organisation, an industrial association of employers or of workers may make a representation against a Member. That is a rare instance of a non-governmental body given a direct procedural right against a State, and [The International Labour Organisation] works it.

Amnesty International

Founded in 1961 in London, it is a worldwide organisation for the protection of the rights of prisoners of conscience, and it was awarded the Nobel Peace Prize in 1977, the motivation being for worldwide respect for human rights.

How it describes its method, in terms that state the legal significance exactly: it is a worldwide human rights organisation run by its members; it is independent of all governments and all financial players, and independent of political convictions and religious faiths; it uncovers the facts about violations and breaches of human rights; the issues may concern individuals or conditions within a particular State, and it also pursues themes, such as the death penalty.

Why independence is the legal point, and not merely a boast. An organisation whose reporting is thought to follow a government's interests is worth nothing to a treaty body weighing a State's own account. Independence of governments and of funders is what converts private research into material an international organ can act on, and it is the reason organisations of this kind refuse government money.

Its contribution to the law. Its work on prisoners of conscience, on the death penalty and on torture belongs to the process by which the prohibition of torture moved from a treaty obligation to a norm generally regarded as peremptory, as [Validity of Treaties, and Jus Cogens] notes. The mechanism is the one described above: documentation, publicity, and States persuaded to conclude and to ratify.

Its legal status is the ordinary one. It is an association, not a subject of international law, and its access to the United Nations rests on consultative arrangements under article 71.

The criticisms, stated fairly

An answer that praises NGOs without stating the objections is incomplete, and the objections are not frivolous.

Accountability. An NGO is accountable to its members and its donors and to nobody else. It is not elected, it represents no population, and it may speak about a country in which it has no members at all. States asked to change their law on the strength of its reports may fairly ask on whose authority it speaks.

Selectivity. Attention follows funding, language and access, so open societies that admit researchers are reported on more thoroughly than closed ones that do not, which can make the record read as though the open society were the worse offender.

Northern dominance. The largest and best-funded organisations are based in a small number of wealthy States, and the agenda of international civil society has been criticised, particularly from States in the position of India, as reflecting the preoccupations of those States rather than the priorities of the people the organisations speak about.

The gateway is political. Because consultative status is granted and withdrawn by a committee of governments, States have an instrument against organisations that criticise them, and applications from organisations working on subjects governments dislike have been deferred for years by repeated questioning.

Foreign funding and domestic law. Many States, India among them, regulate the receipt of foreign contributions by domestic associations. Such regulation is a matter of municipal law and is within the State's jurisdiction, and its compatibility with the freedom of association protected by human rights treaties the State has ratified is a question of international law. Both propositions are true at once, and an answer that states only one of them is incomplete.

A worked example

An association registered under State AA's law researches detention conditions worldwide. It wishes to address the Economic and Social Council, to bring a case against State BB before the International Court, to conclude an agreement with State CC guaranteeing access to its prisons, and to make a representation about State DD's failure to observe a labour Convention.

Addressing the Council. Article 71 permits suitable arrangements for consultation with non-governmental organisations concerned with matters within the Council's competence. As a national organisation it may be admitted where appropriate and after consultation with State AA, so its own government is consulted about it. What it obtains is consultation, not membership and not a vote.

Suing State BB. Impossible. Article 34(1) of the Statute provides that only states may be parties in cases before the Court. The association's only routes are to persuade a State to bring a claim, or to work in fora that admit non-State applicants, which the International Court is not.

The agreement with State CC. Not a treaty. Article 2(1)(a) of the Vienna Convention confines treaties to agreements between States, and article 3 preserves the legal force of agreements with other subjects of international law, which this association is not. Any agreement it makes is governed by some municipal law.

The representation about State DD. Only if it is an industrial association of employers or of workers, because article 24 of the ILO Constitution confines the right to such associations. A general human rights body is outside it.

Change one fact: the association is the International Committee of the Red Cross. Then functions are conferred on it by name by the Geneva Conventions of 1949, so its position rests on treaty, and access to detainees in armed conflict follows from those provisions rather than from any State's goodwill.

Distinctions table

What it does NOT mean

An NGO is not a subject of international law, however large or influential.

Consultative status is not membership. Article 71 authorises arrangements for consultation.

An NGO cannot appear as a party before the International Court. Article 34(1) confines cases to States.

Article 71 does not open the Security Council or the General Assembly. It concerns the Economic and Social Council, and practice elsewhere rests on the rules of the body concerned.

The International Committee of the Red Cross is not the ordinary case. Its functions come from the Geneva Conventions.

Influence is not personality. An organisation may shape a treaty without ever being a party to it.

Limits and criticism

The whole of the legal position rests on one permissive sentence written in 1945, which authorises consultation with a Council that has itself been eclipsed, and the growth of civil society participation has therefore outrun its constitutional basis.

Access is controlled by the States being scrutinised, since status is granted, deferred and withdrawn by a committee of governments, which is a structural conflict that the Charter did not anticipate and does not address.

The accountability objection has no clean answer. Transparency of funding, publication of methods and correction of errors are the practical responses, and none of them supplies the democratic mandate a State can claim.

The absence of standing before international courts leaves a gap that regional systems have filled by admitting individual and organisational applicants, and that the universal system has not, so the forum in which the general law is made remains closed to the bodies that generate much of the evidence on which it rests.

Quick revision

A non-governmental organisation is constituted under municipal law, is not a subject of international law, cannot conclude a treaty (Vienna Convention article 2(1)(a) and article 3), cannot be a party before the International Court (Statute article 34(1)), has no vote, and has no immunities.

Charter article 71: the Economic and Social Council may make suitable arrangements for consultation with NGOs concerned with matters within its competence; with international organisations and, where appropriate, with national organisations after consultation with the Member concerned. The only mention of NGOs in the Charter.

Consultative status under the Council's arrangements is graded, carries rights to attend and to submit written statements and, in the higher categories, to speak, and is granted, suspended and withdrawn by a committee of governments.

What NGOs do: set the agenda for treaties; supply facts that governments will not; file parallel reports under treaty reporting systems; litigate where rules permit. ILO article 24 lets an industrial association of employers or of workers make a representation against a Member.

Amnesty International: founded 1961, London; for the protection of the rights of prisoners of conscience; Nobel Peace Prize 1977, motivation for worldwide respect for human rights; independent of all governments and all financial players; uncovers the facts about violations.

The exception: the International Committee of the Red Cross, a Swiss association on which the Geneva Conventions of 1949 confer functions by name.

Criticisms: accountability, selectivity, northern dominance, and a politically controlled gateway.

Test yourself

1. Is a non-governmental organisation a subject of international law?

No. The subjects of international law are States and, since Reparation for Injuries Suffered in the Service of the United Nations, international organisations created by States to the extent that their functions require. A non-governmental organisation is constituted under the municipal law of some State, ordinarily as an association or company, and is not created by treaty. The consequences are precise: it cannot conclude a treaty, because article 2(1)(a) of the Vienna Convention confines treaties to agreements between States and article 3 preserves the force only of agreements with other subjects of international law; it cannot be a party before the International Court, because article 34(1) of the Statute provides that only States may be parties; it has no vote in any organ of the United Nations; and it enjoys no immunities.

2. What does article 71 of the Charter provide, and what are its limits?

It provides that the Economic and Social Council may make suitable arrangements for consultation with non-governmental organisations concerned with matters within its competence, and that such arrangements may be made with international organisations and, where appropriate, with national organisations after consultation with the Member of the United Nations concerned. Its limits are in its words. It authorises consultation, not membership and not a vote. It applies to matters within the Council's competence, which by article 62 are economic, social, cultural, educational, health and related matters and human rights. It puts international organisations first and admits national ones only where appropriate. And it requires the State of which a national organisation is a national to be consulted first. It is the only provision of the Charter that mentions non-governmental organisations.

3. How do NGOs influence international law if they are not subjects of it?

Through the making of law rather than through legal personality. They set agendas, documenting a problem, drafting a model instrument and assembling States willing to negotiate it, which is the pattern behind several modern treaties. They supply facts that governments will not supply about themselves, which is what the human rights treaty bodies and special procedures depend on. They file parallel reports under treaty reporting systems, so that a State's own account is not the only account before the examining body. They litigate where the rules of a court or tribunal permit non-State participation, and design the strategies behind cases that States or individuals bring. And under article 24 of the ILO Constitution an industrial association of employers or of workers may make a representation that a Member has failed to secure the effective observance of a ratified Convention, which is a direct procedural right against a State.

4. Give an account of Amnesty International.

It was founded in 1961 in London and is a worldwide organisation for the protection of the rights of prisoners of conscience. It was awarded the Nobel Peace Prize in 1977, the prize motivation being for worldwide respect for human rights. It is run by its members and is independent of all governments and all financial players, and independent of political convictions and religious faiths. Its method is to uncover the facts about violations and breaches of human rights, whether concerning particular individuals, conditions within a particular State, or themes such as the death penalty. Its independence is a legal point and not merely a claim, because a body whose reporting is thought to follow a government's interests is of no use to an international organ weighing that government's own account. Its legal status is the ordinary status of a non-governmental organisation, and its access to the United Nations rests on consultative arrangements under article 71 of the Charter.

5. Why is the International Committee of the Red Cross different?

Because its functions are conferred by treaty. It is an association constituted under Swiss law, so on the ordinary analysis it would be a non-governmental organisation with no international personality. But the Geneva Conventions of 1949 and their Additional Protocols confer functions on it by name, including in relation to prisoners of war, civilians and the wounded, so its position in armed conflict rests on provisions of treaties binding on the States concerned rather than on any consultative arrangement or on the goodwill of a host State. It is therefore the standing exception, and it illustrates that the rule about non-governmental bodies is a rule about what States have chosen to do, not a logical necessity.

6. State the principal criticisms of the role of NGOs in international law.

Four are usually made. Accountability: an organisation answers to its members and donors alone, is not elected, represents no population, and may speak about a country where it has no members, so States asked to change their law may ask on whose authority it speaks. Selectivity: attention follows funding, language and access, so open societies that admit researchers are reported on more fully than closed societies that exclude them, which can distort the record. Northern dominance: the largest and best-funded organisations are based in a small number of wealthy States, and their agenda has been criticised as reflecting those States' preoccupations. And political control of the gateway: because consultative status under article 71 is granted, deferred and withdrawn by a committee of governments, the States being scrutinised control the access of those who scrutinise them.