How Do Non-Governmental Organizations (NGOs) Participate in the International Legal Process?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Non-Governmental Organizations (NGOs) have become ubiquitous and influential actors on the world stage. From championing human rights and environmental protection to providing humanitarian aid and advocating for disarmament, these diverse entities play an increasingly prominent role in shaping international norms, monitoring compliance, and even participating in dispute settlement. While traditionally not considered formal subjects of international law in the same vein as states or intergovernmental organizations, their impact on the international legal process is undeniable and multifaceted. This article explores the various ways NGOs engage with and influence international law.

The Nature and Diversity of NGOs

The term "NGO" encompasses a vast array of organizations. Generally, they are understood to be non-profit, private organizations, independent of direct government control, that pursue objectives in the public interest. Their diversity is immense:

  • Scope: They range from small, local grassroots groups to large, international organizations with global reach and multi-million dollar budgets, such as Amnesty International, Human Rights Watch, Médecins Sans Frontières (Doctors Without Borders), Greenpeace, and the International Committee of the Red Cross (ICRC).
  • Focus: Their mandates cover virtually every conceivable area of global concern, including human rights, environmental protection, humanitarian relief, development, disarmament, international justice, and corporate accountability.
  • Legal Status: Most NGOs are established under the national law of the country where they are headquartered. Their ability to operate transnationally depends on the laws of other states and their own operational capacities.
  • Membership and Funding: Some NGOs are membership-based, while others are primarily staff-driven. Funding sources also vary widely, including individual donations, foundation grants, and, in some cases, government funding (which can sometimes raise questions about their independence). Some unique entities, like the International Union for Conservation of Nature (IUCN), even have states and governmental agencies among their members.

NGOs' Formal Standing in International Law: Limited but Evolving

Despite their significant practical influence, NGOs generally lack international legal personality in the traditional sense. International law primarily creates rights and obligations for states and intergovernmental organizations established by states. States have been historically reluctant to grant NGOs formal subjecthood, as evidenced by the limited ratification of instruments like the 1986 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations.

However, NGOs are not entirely without formal standing in certain international contexts:

  1. Consultative Status: A key avenue for formal participation is through "consultative status" with intergovernmental organizations. The most well-known example is with the United Nations Economic and Social Council (ECOSOC), as provided for under Article 71 of the UN Charter. ECOSOC Resolution 1996/31 (which revised earlier arrangements) governs this relationship, granting accredited NGOs rights such as attending meetings, making oral and written statements, submitting agenda items, and consulting with ECOSOC and its subsidiary bodies. Many other UN bodies and specialized agencies also have arrangements for NGO participation.
  2. Specific Roles under Treaties: Certain treaties explicitly grant specific roles or functions to particular NGOs. The most prominent example is the International Committee of the Red Cross (ICRC). Though a private association under Swiss law, the Geneva Conventions of 1949 and their Additional Protocols of 1977 accord the ICRC unique mandates in international armed conflicts, such as visiting prisoners of war, providing humanitarian assistance, and acting as a neutral intermediary. Similarly, an entity like the World Anti-Doping Agency (WADA), established as a private foundation, plays a central role under the UNESCO International Convention against Doping in Sport (2005).

NGOs exert influence and participate in nearly every stage of the international legal process, from norm creation to compliance monitoring and enforcement.

A. Advocacy, Agenda-Setting, and Mobilizing Public Opinion

One of the most significant roles of NGOs is their ability to raise awareness about pressing international issues and to place them on the global agenda.

  • Identifying Emerging Issues: NGOs are often among the first to identify and document human rights abuses, environmental threats, humanitarian crises, or gaps in international law.
  • Public Awareness Campaigns: Through research, reports, media engagement, and public campaigns, NGOs can galvanize public opinion domestically and internationally, creating pressure on governments to act.
  • Lobbying and Policy Input: International and national NGOs actively lobby governments, parliamentarians, and intergovernmental organizations to advocate for specific policy changes or the adoption of new international standards.
  • Catalyzing Treaty Negotiations: NGO campaigns have been instrumental in initiating and driving forward negotiations for major international treaties. Notable examples include:
    • The International Campaign to Ban Landmines (ICBL), a coalition of NGOs, was a key force behind the 1997 Ottawa Treaty banning anti-personnel landmines.
    • The Coalition for the International Criminal Court (CICC) played a vital role in the negotiations leading to the 1998 Rome Statute of the ICC.
    • NGOs were also highly active in advocating for the Arms Trade Treaty, adopted in 2013.

B. Participation in Law-Making and Norm Development

Beyond advocacy, NGOs increasingly participate more directly in the substance of international law-making:

  • Expertise in Treaty Negotiations: Many NGOs possess specialized expertise and provide valuable technical information, research, and draft language to state delegations during treaty negotiations. They may be included as observers or even as members of government delegations in some instances (e.g., environmental treaty negotiations, or processes like those under the auspices of the UN Economic Commission for Europe, such as the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters).
  • Development of "Soft Law": NGOs contribute to the development of non-binding standards, guidelines, and principles ("soft law") that can shape state practice and eventually crystallize into customary international law or form the basis for future treaties.
  • Input to International Law Commission (ILC): While the ILC's work is primarily state-focused, NGOs often provide research and commentary that can inform the ILC's deliberations on the codification and progressive development of international law.

C. Monitoring Compliance, Implementation, and Enforcement

NGOs are crucial actors in monitoring state compliance with international legal obligations and advocating for effective implementation:

  • Fact-Finding and Documentation: NGOs conduct on-the-ground investigations and document violations of international human rights law, humanitarian law, environmental regulations, etc. Their reports often provide vital information that would otherwise be unavailable.
  • "Shadow Reporting": Many NGOs submit "shadow reports" to UN human rights treaty bodies, providing alternative perspectives and critiques of official state reports on treaty implementation.
  • Campaigning for Enforcement: When states fail to comply with their international obligations, NGOs often lead campaigns to pressure them to do so, using public advocacy, media attention, and engagement with international bodies.
  • Assisting in Domestic Implementation: NGOs may work at the national level to promote the incorporation of international law into domestic legislation, raise awareness among the judiciary and legal professionals, provide legal aid to victims, and build capacity for implementation.
  • Formal Monitoring Roles: Some treaties envisage roles for NGOs in their formal compliance mechanisms.

D. Involvement in International Adjudication and Dispute Settlement

NGOs are increasingly finding ways to participate, directly or indirectly, in international judicial and quasi-judicial processes:

  • Strategic Litigation: NGOs may support or initiate litigation before national courts (using principles like universal jurisdiction or foreign direct liability) or regional human rights courts (e.g., the ECHR, the Inter-American Court of Human Rights) to seek redress for violations of international law.
  • Amicus Curiae Submissions: A growing number of international courts and tribunals now accept unsolicited written submissions from NGOs as amici curiae ("friends of the court"). These briefs can provide valuable factual information, legal arguments, or policy perspectives.
    • The WTO Appellate Body first affirmed its authority to accept amicus briefs from NGOs in the United States – Import Prohibition of Certain Shrimp and Shrimp Products case (Report of the Appellate Body, October 12, 1998).
    • Investment arbitration tribunals (e.g., under ICSID or UNCITRAL Rules) increasingly accept amicus submissions, particularly in cases raising significant public interest issues (e.g., environmental protection or human rights). The 2006 revisions to the ICSID Arbitration Rules explicitly provide for such submissions (Rule 37(2)).
    • The ICJ has accepted written statements from international NGOs in the context of its advisory proceedings (e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8, 1996) and has formalized this possibility in its Practice Directions.
    • Regional human rights courts, like the ECHR and the Inter-American Court, also have well-established practices of receiving amicus briefs.
      The extent to which these submissions actually influence the outcomes of cases is subject to ongoing debate, but they undoubtedly contribute to the transparency and perceived legitimacy of these adjudicative bodies.

E. Operational Activities and Humanitarian Action

In many fields, particularly humanitarian aid, development, refugee protection, and disaster relief, NGOs are indispensable operational actors. They are often the primary implementers of assistance programs on the ground, working in challenging and dangerous environments, and sometimes filling critical gaps where states or intergovernmental organizations are unable or unwilling to act.

Assessing the Impact and Influence of NGOs: A Balanced View

The contributions of NGOs to the international legal process are undeniable, but their role is not without its complexities and criticisms.

Positive Contributions:

  • Giving Voice to the Voiceless: NGOs often represent marginalized communities, victims of abuse, and diffuse public interests (like environmental protection) that may otherwise be overlooked in a state-centric system.
  • Enhancing Transparency and Accountability: By monitoring state conduct, publicizing information, and advocating for compliance, NGOs contribute to greater transparency and accountability in international affairs.
  • Providing Expertise and Information: NGOs often possess specialized knowledge, research capabilities, and on-the-ground information that is invaluable to international organizations and governments.
  • Promoting the Rule of Law: By advocating for the development, implementation, and enforcement of international law, NGOs contribute to strengthening the international rule of law.

Challenges and Criticisms:

  • Legitimacy, Representation, and Accountability: NGOs are typically self-appointed and may not be democratically accountable to a defined constituency in the way governments are. Questions arise about whom they truly represent, the transparency of their funding sources (particularly if they receive significant government funding, raising concerns about "GONGOs" or government-organized NGOs), and their own internal governance.
  • Potential for Bias and Selectivity: NGOs, like any organization, may have their own particular agendas, priorities, or biases, which can influence the issues they focus on and the positions they take.
  • Resource Imbalances: There is a significant disparity in resources and influence between large, well-funded NGOs predominantly based in the Global North and smaller NGOs from the Global South. This can lead to an imbalance in the voices heard in international fora.
  • Relationship with States: The relationship between NGOs and states can range from cooperative partnerships to deeply adversarial confrontations. Some states view NGO activities, particularly in human rights monitoring, as an unwelcome interference in their internal affairs.
  • Lack of Formal Power: Ultimately, NGOs lack the formal law-making and enforcement powers that states possess. Their influence is primarily persuasive, moral, or based on their ability to mobilize public and political pressure.

The Evolving Framework for NGO Engagement

Recognizing both the value and the challenges associated with NGO participation, the international community continues to grapple with how best to structure this engagement. Efforts are ongoing within the UN system and other international bodies to develop clearer guidelines and more consistent practices for NGO consultation and participation, balancing the benefits of their input with the need to ensure the integrity and state-driven nature of formal intergovernmental processes. Simultaneously, there are increasing demands on NGOs themselves to enhance their own transparency, accountability, and adherence to ethical standards.

Conclusion

Non-Governmental Organizations have evolved from peripheral actors to integral, if often informal, participants in virtually every aspect of the international legal process. They serve as advocates, watchdogs, experts, service providers, and increasingly, as direct contributors to norm development and compliance monitoring. While their formal legal status remains limited, their practical influence in shaping international law and policy is profound and continues to grow. The ongoing challenge for the international community is to harness the immense potential of NGOs to contribute to global governance while addressing legitimate concerns about their accountability and the overall coherence of the international legal system.