SHOULD NGOS BE MORE ACCOUNTABLE AT THE … · NGOs being accountable to stakeholders in the same way as States or IGOs would be held accountable, and that this delegation of power

qhdjsqjj Working Paper No. 12 – May 2008

SHOULD NGOS BE MORE ACCOUNTABLE AT THE INTERNATIONAL LEVEL?

Ingrid Rossi

SHOULD NGOS BE MORE ACCOUNTABLE AT THE INTERNATIONAL LEVEL? Ingrid Rossi

ABSTRACT:

This paper analyzes whether there is a need to make non-governmental organizations (NGOs) more accountable at the international level and if so, how this should be done in practice. It identifies accountability concerns that arise from NGO action at the international level as well as the main sources for these concerns. It then addresses the question of to whom NGOs need to be accountable and distinguishes accountability from legal responsibility. Finally, the paper analyzes the different options to increase NGO accountability at the international level and describes some of the initiatives taken by the different actors to address this issue. The paper concludes that the preferred option for increasing NGO accountability at the international level would be to elevate the status of NGOs involved in public functions to that of subjects of international law in order to make them subject to international legal obligations. Beyond that, NGOs should be left free to self-regulate in order to make the sector more accountable vis-à-vis its various stakeholders. KEY WORDS: non-governmental organizations (NGOs), accountability, legal responsibility, self-regulation. AUTHOR: Ingrid Rossi studied law in Mexico City at the Universidad Nacional Autónoma de México (UNAM), after which she did an LLM at the University of Chicago. She worked as a lawyer in Curtis, Mallet-Prevost, Colt & Mosle both in Mexico and New York and then joined Cleary, Gottlieb, Steen & Hamilton in Brussels where she worked until she began her PhD at the KU Leuven. She is now a PhD candidate in international law at the K.U.Leuven. The topic of her thesis is the legal status of NGOs in international law. © 2008 by Ingrid Rossi. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

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CONTENTS SHOULD NGOS BE MORE ACCOUNTABLE AT THE INTERNATIONAL LEVEL? .......................... 1 I. INTRODUCTION .......................................................................................................................................... 3

1.1. SOURCES OF NGO ACCOUNTABILITY CONCERNS ................................................................. 7 1.1.1. Increased Number and Power of NGOs........................................................ 7 1.1.2. Possibility of Abuse ........................................................................................ 7 1.1.3. The Need to Watch the Watchdogs................................................................. 8

II. ACCOUNTABILITY TO WHOM? ........................................................................................................ 9 III. INTERNATIONAL RESPONSIBILITY AND NGOS........................................................................ 11

3.1. POSSIBLE ARGUMENTS TO HOLD NGOS LEGALLY RESPONSIBLE AT THE INTERNATIONAL LEVEL 12 3.1.1. Elevate NGOs to the Status of Subjects of International Law..................... 12 3.1.2. Apply International Human Rights Obligations to NGOs............................ 14

IV. INITIATIVES TO INCREASE INTERNATIONAL NGO ACCOUNTABILITY......................... 17 4.1. REGULATION ....................................................................................................................... 18

4.1.1. Consultative Status ....................................................................................... 20 4.1.2. Other Forms of Regulation........................................................................... 22

4.2. PRIVATE INITIATIVES .......................................................................................................... 24 4.3. SELF-REGULATION .............................................................................................................. 24

4.3.1. Self-Regulation Promoted by States ............................................................ 25 4.3.2. NGO Self-Regulation.................................................................................... 26

4.3.2.1.NGO Self-Assessment 28 4.3.2.1.1.Standards .....................................................................................................................................28 4.3.2.1.2. Codes of Conduct.......................................................................................................................29 4.3.2.1.3. Other Self-Assessment Initiatives ............................................................................................30

4.3.2.2. Independent Assessment........................................................................................................29

V. CONCLUSIONS ................................................................................................................................... 31

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I. INTRODUCTION

As NGOs have become more prominent in the international scene, so too has the

issue of their accountability both in academic literature and in practice. 1

NGO presence in the international arena comprises mainly three types of activities:

participating in the law-making, monitoring and enforcement of international law within the

framework of international governmental organizations (IGOs), treaty bodies or

adjudicative bodies; cooperating with States and IGOs in the area of aid, relief and

development assistance; and participating in global governance through policy advocacy

and campaigning activities. Accountability issues arise with respect to all three areas.

1 See in general Philip Alston, The ‘Not-a-Cat’ Syndrome, in Philip Alston (ed.), NON-STATE ACTORS AND

HUMAN RIGHTS, Oxford University Press, 2005, pp. 3-36; Kenneth Anderson, The Limits of Pragmatism in American Foreign Policy, Unsolicited Advice to the Bush Administration on Relations with International Nongovernmental Organizations, 2 CHIJIL 371, 2001; Jem Bendell, Debating NGO Accountability, NGLS Development Dossier, 2006; Robert Charles Blitt, Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations and the Case for Regulation, 10 Buff. Hum. Rts. L. Rev. 261, 2004; Erik B. Bluemel, Overcoming NGO Accountability Concerns in International Governance, 31 Brook. J. Int’l L. 139, 2005; Steve Charnovitz, Accountability of Non-Governmental Organizations (NGOs) in Global Governance, paper prepared for the Conference on Global Administrative Law on April 22-23, 2005, available at http://iilj.org/global_adlaw/documents/CharnovitzPaper.pdf, also published in Lisa Jordan & Peter Van Tuijl (eds.), NGO ACCOUNTABILITY: POLITICS, PRINCIPLES & INNOVATIONS, Earthscan, 2006; Andrew Clapham, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS, Oxford University Press, 2006; Holly Cullen & Karen Morrow, International Civil Society in International Law: The Growth of NGO Participation, Non-State Actors and International Law 1: 7-39, 2001; Deirdre Curtin and André Nollkaemper, Conceptualizing Accountability in International and European Law, Netherlands Yearbook of International Law, Volume XXXVI, 2005, pp. 3-20; Michael Edwards & David Hulme (eds.), BEYOND THE MAGIC BULLET: NGO PERFORMANCE AND ACCOUNTABILITY IN THE POST-COLD WAR WORLD, Kumarian Press, 1996; Michael Edwards, NGO RIGHTS AND RESPONSIBILITIES: A NEW DEAL FOR GLOBAL GOVERNANCE, The Foreign Policy Center, 2000; Dorothea Hilhorst, Being Good at Doing Good? Quality and Accountability of Humanitarian NGOs, 26(3) Disasters 193, 2002; Stephan Hobe, Legitimacy, Recognition, Democratic Control, Transparency and Accountability of Non-Governmental Organizations, in Wybo P. Heere (ed.), FROM GOVERNMENT TO GOVERNANCE, 2003 Hague Joint Conference on Contemporary Issues of International Law, TMC Asser Press, 2004, pp. 101-108; Lisa Jordan, Mechanisms for NGO Accountability, Global Public Policy Institute (GPPI) Research Paper Series No. 3, 2005; Lisa Jordan and Peter Van Tuil (eds.), NGO ACCOUNTABILITY: POLITICS, PRINCIPLES AND INNOVATIONS, Earthscan, 2006; Julian Lee, NGO Accountability: Rights and Responsibilities, Center for Applied Studies in International Negotiations (CASIN), 2004; Robert Lloyd, The Role of NGO Self-Regulation in Increasing Stakeholder Accountability, One World Trust, July 2005; One World Trust, Global Accountability Report 2006 and Global Accountability Report 2003; See August Reinisch, Governance Without Accountability?, 44 GYIL, 2001, p. 271; August Reinisch, The Changing International Legal Framework for Dealing with Non-State Actors, in Philip Alston (ed.), NON-STATE ACTORS AND HUMAN RIGHTS, Oxford University Press, 2005, pp. 46-47; Hugo Slim, By What Authority? The Legitimacy and Accountability of Non-governmental Organizations, The Journal of Humanitarian Assistance, March 10, 2002, available at http://www.jha.ac/articles/a082.htm; Debora Spar and James Dail, Of Measurement and Mission: Accounting for Performance in Non-Governmental Organizations, 3 CHIJIL 171, 2002; Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the “Unregulated Marketplace”, 18 Cardozo L. Rev. 957, 1996, New Players on the International Stage, 2 Hofstra L. & Pol’y Symp. 19, 1997, and The Democratic Accountability of Non-Governmental Organizations, 3 CHIJIL 161, 2002; Frank Vibert, A Framework for Non-Governmental Organizations in International Diplomacy, 2 CHIJIL 397, 2001; Siegfried Wiessner, Legitimacy and Accountability of NGOs: A Policy-Oriented Perspective, in Wybo P. Heere (ed.), FROM GOVERNMENT TO GOVERNANCE, 2003 Hague Joint Conference on Contemporary Issues of International Law, TMC Asser Press, 2004; Paul Wapner, Paradise Lost? NGOs and Global Accountability, 3 CHIJIL 155, 2002, and Defending Accountability in NGOs, 3 CHIJIL 197, 2002.

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NGOs have become crucial sources of information and expertise in the creation,

monitoring and enforcement of international law within the framework of IGOs, treaty

bodies and judicial and quasi-judicial bodies. NGOs are involved in the daily functioning of

these bodies and are regularly consulted whenever new developments take place.

As the number of NGOs seeking to participate with these bodies has increased

dramatically over the last years, cooperation has become more difficult. It has become

harder to monitor the activities of NGOs and to know which of them can be trusted and

allowed to participate. Despite the fact that NGO participation in these bodies may be on a

formal basis, as is the case for example in consultative arrangements with the UN, these

formal arrangements impose few obligations on NGOs and the bodies implementing them

do not generally have the capacity to monitor their activities and to engage in thorough

reviews of NGO compliance with these obligations.

NGOs also engage in informal cooperation with IGOs, treaty bodies and judicial

and quasi-judicial bodies at the international level. With respect to this kind of cooperation

there are clearly no formal obligations or accountability requirements imposed on NGOs.

Thus, even when NGO participation at the international level occurs within the

framework of IGOs, treaty bodies and judicial and quasi-judicial bodies, this participation

does not entail any substantial accountability for NGOs.

This begs the question as to whether NGOs working with these bodies should be

made to comply with certain accountability standards, and if so, whether, for example,

more formal rights should be granted to NGOs in exchange for more accountability. This is

linked to the issue of whether NGO accountability measures should be imposed by the

bodies with which NGOs seek to cooperate, whether NGOs should be encouraged by

these bodies to adopt accountability measures on their own or whether NGOs should be

left free to determine whether any accountability measures are needed at all.

Another point of discussion relates to the type of accountability measures that

should be adopted. Different intergovernmental bodies and different NGOs have different

views as to what accountability means and about the type and content of the measures

that should be adopted.

When answering these questions, it is important to keep in mind that when NGOs

participate with IGOs, treaty bodies and judicial and quasi-judicial bodies, they have an

interest in building a good reputation with these bodies since they tend to cooperate with

them on a regular basis. NGO have incentives to behave in a responsible and accountable

way if they want to continue cooperating with these bodies.

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In addition to the participation of NGOs in the work of IGOs, treaty bodies and

judicial and quasi-judicial bodies, NGOs have become more and more involved in activities

that traditionally belonged to States and IGOs in the areas of aid, relief and development

assistance.2

NGOs in this field have increased in number and scale of operation. One reason for

this has been the fact that official development assistance has been redirected towards

and through NGOs. The arguments in favor of this development are that NGOs are

generally more effective and efficient than States and IGOs in delivering aid, relief or

services because they tend to be less bureaucratic, more flexible, more innovative and to

have more committed staff.3

However, there has been much criticism of this privatization approach of public

functions, including the lack of accountability of NGOs to beneficiaries and the imposition

of the NGOs’ or their donors’ interests and agenda on people.4 Moreover, there have also

been claims of NGO incompetence, corruption and abuse of beneficiaries.5 In this context,

one concern that has emerged is that governmental tasks are performed by NGOs without

NGOs being accountable to stakeholders in the same way as States or IGOs would be

held accountable, and that this delegation of power cannot take place without the

corresponding delegation of responsibilities.

The increasing number of NGOs together with the increased amounts of money

being channeled through NGOs has prompted additional problems in the NGO sector.

Since donors are increasingly issuing short-term, renewable contracts for concrete projects

and requiring NGOs to bid competitively and to demonstrate concrete results,6

international NGOs are under constant pressure to renew, extend, or win new contracts.7

According to some commentators, this may create incentives for contract renewal and

opportunism at the expense of ethical concerns, cooperation, self-reflection and protest.8

One argument is that the setting of clear standards both for NGOs and donors

would solve these problems. In this context, scholars have started to examine whether

NGOs could be subject to international human rights obligations in the same way that

2 See in general, Jem Bendell, Debating NGO Accountability, NGLS Development Dossier, 2006,

available at http://www.un-ngls.org/pdf/NGO_Accountability.pdf. See also Lisa Jordan & Peter Van Tuijl, NGO ACCOUNTABILITY: POLITICS, PRINCIPLES & INNOVATIONS, op. cit.; Julian Lee, NGO Accountability: Rights and Responsibilities, Center for Applied Studies in International Negotiations (CASIN), 2004; Robert Lloyd, The Role of NGO Self-Regulation in Increasing Stakeholder Accountability, One World Trust, July 2005; and Alexander Cooley and James Ron, The NGO Scramble, International Security, Vol. 27, No. 1, 2002, pp. 5-39.

3 Jem Bendell, op. cit. p. 9. 4 Ibid, pp. 10-12. 5 Ibid, pp. 12-13. 6 Alexander Cooley and James Ron, The NGO Scramble, op. cit., p.11. 7 Ibid, p.12. 8 See the different examples cited by Alexander Cooley and James Ron, The NGO Scramble, op. cit.,

pp. 25-36.

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States or IGOs are. One of the possibilities for holding them responsible for human rights

violations would be to recognize them as subjects of international law.9

NGOs also participate actively in the international arena advocating different views

and campaigning for different causes. This political role has raised many questions in

terms of legitimacy but also in terms of accountability.10

With respect to NGOs participating in global governance, the rationale for more

accountability is that they should be transparent in order to keep their credibility as an

authoritative voice and be responsible for what they say.

With respect to the participation of NGOs in the international decision-making

process and in the creation, monitoring and enforcement of international law within the

framework of IGOs, treaty bodies and judicial and quasi-judicial bodies, the accountability

issues are similar. When NGOs intervene in the decision-making process they generally

do so in the context of intergovernmental processes that usually take place within the

framework of IGOs or treaty bodies. In this case, the question arises again as to whether

participating NGOs should comply with certain accountability standards and if so whether

for example more formal rights should be granted to NGOs in exchange for more

accountability.

To date there are no accountability measures imposed on NGOs participating in

the international decision-making processes, but NGOs also have no formal negotiating

rights in these processes. NGOs are normally only admitted as observers and any

negotiating role is excluded beforehand. Thus, any influence that NGOs may have in

setting the international agenda or ability to shape the international standard setting

procedures is informal and does not entail any obligations.

This paper analyzes whether there is a need to make NGOs more accountable at

the international level and if so, how this should be done in practice. After having identified

in this introduction the main accountability concerns that arise from NGO action at the

international level the paper continues by explaining the main sources for those concerns.

It then addresses the question of to whom NGOs need to be held accountable and

distinguishes accountability from legal responsibility. Finally, the paper examines the

9 In the section on international legal responsibility and NGOs (see below) this issue if further

explained. 10 Relevant questions with respect to legitimacy include questions such as whether political advocacy

and campaigning by NGOs constitutes an exercise of their rights to freedom of expression and whether this is inherent to democratic government also at the international level. There is also the additional problem of the great number of NGOs seeking participation in the international decision-making processes that generally take place within the framework of international bodies, and the limitations faced by these bodies in terms of space and time. Since not everybody can participate, who should participate? Should the rules be based in terms of representation, expertise, knowledge and/or experience?, etc.

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different alternatives for increasing NGO accountability at the international level and

describes some of the initiatives that are being taken by the different actors in the

international system to address this issue.

1.1. Sources of NGO Accountability Concerns Accountability concerns surrounding NGOs have mainly three sources. These are

the increased number and power of NGOs, the possibility of abusing this power and the

desire of other international actors, such as IGOs or multinational corporations (MNCs), to

submit NGOs to the same degree of scrutiny that they face themselves.

1.1.1. Increased Number and Power of NGOs The proliferation and extent of NGO participation in the international system to date

is unprecedented. The increased number, influence and visibility of NGOs in the

international sphere, together with the increasing amount of money which is being

channeled through NGOs, has generated attention not only on NGO achievements but

also on NGO accountability.11 There is a widespread idea that good intentions are not

enough to ensure accountability for NGOs and that their increased power should be

subject to checks and balances and thus be accompanied by increased accountability.

1.1.2. Possibility of Abuse The second source of concern surrounding NGOs is that there have been abuses

by NGOs and that there are currently no ways of holding NGOs accountable for these

abuses at the international level.

There have been cases of mismanagement, dissemination of false information,

irregularities in contracts, corrupt aid distribution and human rights violations, together with

the absence of internal and external structures to avoid these problems.12

11 According to a study by the Center for Civil Society Studies at John Hopkins University cited by

SustainAbility the non-profit sector is a 1.1 trillion dollar industry, employing 19 million full paid employees and representing the world’s eighth economy. See the study by SustainAbility entitled The 21st Century NGO: In the Market for Change, December 10, 2003, available at http://www.sustainability.com/insight/research-article.asp?id=51.

12 See in general Jem Bendell, Debating NGO Accountability, NGLS Development Dossier, 2006, available at http://www.un-ngls.org/pdf/NGO_Accountability.pdf; Holly Cullen & Karen Morrow, International Civil Society in International Law: The Growth of NGO Participation, 1 Non-State Actors and International Law 7, 2001; William Korey, NGOS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: “A CURIOUS GRAPEVINE”, 1998; Synthesis Report, NGO Impact Initiative: An Assessment by the International Humanitarian NGO Community, October 2006; UNHCR/Save the Children UK, Note

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To prevent these abuses there is wide consensus that NGOs should be open about

their sources of funding and have procedures in place to justify their use of funds, but also

procedures on how they manage and conduct their operations and how they assess their

performance with respect to different stakeholders.13

1.1.3. The Need to Watch the Watchdogs There is a widespread belief that since NGOs are operating on the same ground as

other international actors (States, IGOs) they should have similar responsibilities to report

their activities, follow certain standards of behavior and be accountable for their actions.14

In addition, certain organizations like the One World Trust (even though itself an

NGO) have started to publish reports which conclude that in certain cases NGO

accountability ranks below that of IGOs or MNCs.15 Other studies have shown that in order

for NGOs to exercise their full potential in the 21st century vis-à-vis other actors, they will

also have to address critical challenges surrounding their transparency, accountability and

governance.16

for Implementing and Operational Partners, Sexual Violence and Exploitation: the Experience of Refugee Children in Liberia, Guinea and Sierra Leone, February 2002, available at http://www.unhcr.org/cgi-bin/texis/vtx/news/opendoc.pdf?id=3c7cf89a4&tbl=PARTNERS.

13 See the draft report for consultation Deserving Trust: Issues of Accountability for Human Rights NGOs, International Council on Human Rights Policy, Switzerland, 2003. See also the Synthesis Report, NGO Impact Initiative, op. cit. p. 7.

14 See the draft report for consultation Deserving Trust: Issues of Accountability for Human Rights NGOs, International Council on Human Rights Policy, Switzerland, 2003. See also Hugo Slim, By What Authority? The Legitimacy and Accountability of Non-Governmental Organizations, the Journal of Humanitarian Assistance, March 10, 2002, available at http://www.jha.ac/articles/a082.htm.

15 See Global Accountability Report 2006, op. cit. 16 The 21st Century NGO: In the Market for Change by SustainAbility, is available at SustainAbility’s

website at http://www.sustainability.com/insight/research-article.asp?id=51.

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II. ACCOUNTABILITY TO WHOM? In the past, NGO accountability has been viewed as the right that those with

formal authority over an organization have to hold it to account.17 In practice, this has led

NGOs to focus on their “upward accountability”, this is, their accountability relationships

with donors, the State and their own governing structures but not so much on their

“downward accountability” or their accountability to other stakeholders such as

beneficiaries or in general those that NGOs affect or try to affect but that do not have

formal authority over the NGO.

There have been many criticisms to the “upward accountability” approach. Some of

them include the tendency to accounting and audit that does not necessarily make the

NGO more efficient and effective, the imposition of Western methods of accountability, and

the fact that the implementation of accountability measures takes time and resources away

from other activities and prioritizes the needs and desires of donors and States over those

of other stakeholders. There have also been criticisms claiming that accountability

measures can be quite expensive and therefore prohibitive for small NGOs, that in many

occasions these measures tend to be short-termed and focus more on functional rather

than strategic issues, and that stringent directives imposed by donors may stifle

experimentation, innovation and flexibility to respond to stakeholders’ needs.18

On the other hand, there are authors who consider that in order for accountability to

work, there has to be the power to hold to account (through delegated responsibility and

financing), the power of information and participation and the power to judge and enforce

judgment.19 They believe that without the presence of these elements accountability is

unlikely to take place in practice.

So to whom should NGOs be held accountable? To States, to IGOs, to other

NGOs, to their donors, to their members, to the people affected by their decisions? NGOs

are in many instances accountable to their donors, to the State and to their members but

not to other stakeholders. Must NGOs be accountable to all stakeholders as some authors

propose?20

17 See Global Accountability Report 2003, available at

http://www.globalpolicy.org/ngos/intro/general/2003/0120account.pdf; see also Julian Lee, NGO Accountability: Rights and Responsibilities, op. cit., p.6.

18 See Jem Bendell, Debating NGO Accountability, op. cit.; Lisa Jordan, Mechanisms for NGO Accountability, op. cit., pp. 11-13.

19 See Austen Davis, Network Paper No. 58 Concerning Accountability of Humanitarian Action, Humanitarian Practice Network, February 2007, p. 5.

20 See Jem Bendell, Debating NGO Accountability, NGLS Development Dossier, 2006, available at http://www.un-ngls.org/pdf/NGO_Accountability.pdf. See also Lisa Jordan, Mechanisms for NGO Accountability, Global Public Policy Institute (GPPi) Research Paper Series No. 3, 2005.

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More attention has been given recently to the multiple stakeholder approach.21

This approach suggests that NGOs should also be accountable to those that do not have

any formal power over them but that are nevertheless affected by their actions. Thus,

pursuant to this approach, NGOs should be accountable to donors, to the State, to

beneficiaries, to other NGOs, as well as to their members, mission, values, and staff.22

Such an approach is of course much more ambitious and difficult to implement in practice.

In fact, even though in the academic literature the concept of “multiple accountabilities”

both upward and downward has been recognized for quite some time, practical models

implementing such an approach are only recently emerging.23

Although there is little dispute to the benefits of a multi-stakeholder approach, the

more difficult and disputed issue concerns the way this goal should be achieved in

practice. A critical point refers to whether it suffices to take internal accountability

measures or whether external assessment of compliance is preferable. In such a case

there is also dispute as to who should evaluate the compliance and how this should be

done.24

There are authors who are more skeptical about the practicability of the multi-

stakeholder approach, especially with regard to accountability to beneficiaries.25

Besides the upward and downward accountability distinction, there is also a

distinction between internal and external accountability.26 Internally NGOs may be

accountable to their members, to their staff, to their board of directors, to their mission and

values. Externally NGOs may be accountable to donors, to other NGOs, to IGOs, to

States, to the people they affect and to the public at large.27

Spiro adopts the distinction between internal and external accountability and thinks

of ways of how to ensure the presence of each of them within NGOs. In particular, he

considers that internal accountability to members and staff can be ensured through

competition among NGOs, members’ low exit costs and the requirements imposed on

21 Robert Lloyd, The Role of NGO Self-Regulation in Increasing Stakeholder Accountability, One World

Trust, July 2005. See also Lisa Jordan, op. cit.; the Global Accountability Report 2006; and Chapter IV of the draft report for consultation Deserving Trust: Issues of Accountability for Human Rights NGOs, op. cit.

22 Robert Lloyd, The Role of NGO Self-Regulation in Increasing Stakeholder Accountability, One World Trust, July 2005, p. 3.

23 See for example Michael Edwards and David Hulme, Introduction: NGO Performance and Accountability, in Michael Edwards & David Hulme (eds.), BEYOND THE MAGIC BULLET: NGO PERFORMANCE AND ACCOUNTABILITY IN THE POST-COLD WAR WORLD, op. cit., pp. 1-20.

24 Siegfried Wiessner, Legitimacy and Accountability of NGOs: A Policy-Oriented Perspective, in Wybo P. Heere (ed.), FROM GOVERNMENT TO GOVERNANCE, 2003 Hague Joint Conference on Contemporary Issues of International Law, TMC Asser Press, 2004, p. 100.

25 See Austen Davies, op. cit., p.12 and 17. 26 See Spiro, The Democratic Accountability of Non-Governmental Organizations, op. cit., pp.163-169;

Paul Wapner, Defending Accountability in NGOs, op. cit., pp. 201-203. 27 Some authors consider accountability to donors as part of internal accountability. See Paul Wapner,

Defending Accountability in NGOs, op. cit., pp. 201-203.

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NGOs by sophisticated donors.28 In order to ensure external accountability to the system in

which NGO exercise power, Spiro advocates formal recognition of international legal

personality to NGOs with the rights and responsibilities that such status entails.29 Spiro

argues that accepting the formal inclusion of NGOs in the international decision-making

process would hold NGOs, as repeated players, accountable to international bargains.30

As will be explained in the next section, efforts have been made in the context of

human rights and humanitarian law to find arguments that could justify elevating the status

of NGOs to that of subjects of international law. Such recognition would indeed increase

the external accountability of NGOs, as it would make them subject to international legal

obligations.

III. INTERNATIONAL RESPONSIBILITY AND NGOS

NGOs have responsibilities under the national laws of the different countries in

which they are based, and also under the laws of the countries in which they have a

presence. In general, NGOs are legally responsible for wrongful acts and must comply with

certain accountability requirements with respect to how they operate and handle their

finances.

At the international level, NGO are not legally responsible. Even though they participate

extensively in the international system they are not subject to international legal obligations

because they have not been recognized as subjects of international law.

The lack of recognition of NGOs as subjects of international law has been confirmed

by the fact that NGOs have been excluded from the scope of the formal initiative of the

International Law Commission on the Responsibility of International Organizations.

When defining the scope of the International Law Commission’s study on the

responsibility of international organizations, Special Reporter Giorgio Gaja explained that

NGOs were not included in the study because the study only considered organizations that

were already subjects of international law and as such bound by obligations imposed on

them by international law.31

28 Spiro, The Democratic Accountability of Non-Governmental Organizations, op. cit., pp.163-166. 29 Ibid, pp. 166-169. 30 Ibid, p. 162 and 167. 31 See Giorgio Gaja, First Report on Responsibility of International Organizations, UN Doc A/CN.4/532,

26 March 2003.

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3.1. Possible Arguments to Hold NGOs Legally Responsible at the International Level

There is a current trend among human rights scholars to try to find arguments to

hold non-State actors responsible at the international level. These efforts are mainly

focused on trying to apply international human rights and humanitarian law to non-State

actors (including NGOs) in order to be able to conclude that these actors have

international human rights obligations.

The rationale behind these efforts is that the shift of the exercise of traditionally

State performed tasks to NGOs and other non-State actors raises the issue of the

responsibility for the performance of these activities when they affect the rights of

individuals. There is no fundamental rights protection against non-State actors.

International human rights obligations are generally believed to be conceptually limited to

State duties based on treaties, custom or general principles of law.

There are two main arguments for how to hold non-State actors and therefore also

NGOs directly responsible under international human rights law. The first is to elevate

NGOs to the status of subjects of international law. The second is to interpret certain

human rights obligations as applicable to all members of society, including NGOs.

3.1.1. Elevate NGOs to the Status of Subjects of International Law The first argument for holding NGOs directly responsible at the international level is

that if they could be elevated to the status of subjects of international law they would be

subject to international legal obligations emanating from international customary law and

the general principles of law.

In general, it is considered that the subjects of international law are bound by

general international law, including any norms that can be viewed as customary law or as

general principles of law.32 Thus, while treaties only bind those that have ratified them,

customary law or the general principles of law are binding on all subjects of international

law. Customary law and the general principles of law are regularly used for reaching non-

parties to international treaties, such as non-signatory States and non-State actors

considered as subjects of international law.33 This is the case with respect to IGOs.34 Thus,

32 See August Reinisch, The Changing International Legal Framework, in Philip Alston (ed.), NON-STATE

ACTORS AND HUMAN RIGHTS, Oxford University Press, 2005, pp. 46-47. 33 Meron, op.cit., at p. 247. See for example the US Supreme Court’s Opinion in Hamdan v. Rumsfeld,

Secratry of Defense, et. al., June 29, 2006, available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-184&friend=nytimes#opinion1.

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even if IGOs do not have any human rights treaty obligations, they are bound by human

rights obligations that are customary law or form part of the general principles of the law.

In the field of human rights law, customary rules have evolved primarily from those

norms that are considered to be universal in character and that are proclaimed in various

international instruments. For example, several of the principles proclaimed in the

Universal Declaration of Human Rights have acquired the status of customary international

law and are therefore legally binding.35

Rules of customary international law are unwritten and research into State practice

is required to determine their existence.36

Contrary to IGOs or individuals, international law has not yet explicitly recognized

NGOs as subjects of international law.

There are therefore two possibilities for elevating NGOs to the status of subjects of

international law. The first is to interpret the current status of NGOs as already conferring

on them the status of subjects of international law and therefore making them subject to

the rules of customary law or to the general principles of international law. The second one

is to have States recognize NGOs as subjects of international law.

According to Hobe, when NGOs are involved in international law-making, as well

as in the monitoring and enforcement of international law, they perform public functions

and in that respect supplement and sometimes even substitute the implementation of

public tasks. Moreover, when NGOs perform these tasks in the framework of an IGO they

are incorporated in the exercise of public authority and they are de facto recognized as

subjects of international law.37

According to this argument, only those NGOs that perform public tasks within the

framework of an IGO would be considered as subjects of international law and therefore

obliged by customary law and the general principles of international law. This argument

would exclude NGOs not performing public tasks such as those engaged in advocacy or

34 See August Reinisch, Securing the Accountability of International Organizations, 7 Global

Governance, 2001. 35 See Clapham, op. cit., at p. 35. 36 For this reason, the 26th International Conference of the Red Cross and Red Crescent, held in

December 1995, requested the ICRC to carry out a study in order to identify, and consequently facilitate the application, of existing rules of customary international humanitarian law (see Jean-Marie Henckaerts, op. cit.). The recent ICRC study on customary international law identifies the common core of international humanitarian law binding on all parties to international and non-international armed conflicts. The website of the ICRC devoted to customary international humanitarian law in the context of the ICRC Study on Customary Rules of International Humanitarian Law published by Cambridge University Press in March 2005, is available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/section_ihl_customary_humanitarian_law.

37 Stephan Hobe, Legitimacy, Recognition, Democratic Control, Transparency and Accountability of Non-Governmental Organizations, in Wybo P. Heere (ed.), FROM GOVERNMENT TO GOVERNANCE, 2003 Hague Joint Conference on Contemporary Issues of International Law, TMC Asser Press, 2004, p.p. 101-108.

14

campaigning outside the framework of IGOs, as well as NGOs that do not have an official

or formal link to an IGO. NGOs involved in aid, relief and development assistance on

behalf of States and IGOs or as subcontractors of these entities would probably also be

considered as subjects of international law.

Although this approach would exclude many NGOs active in the international

arena, it would make NGOs performing public functions subject to general international

legal obligations in addition to their obligations emanating from their official relationship

with an IGO. This would be a starting point and as Hobe suggests, it might be necessary to

apply different criteria to determine the international legal responsibility of NGOs,

depending on the nature of their international activities.38

This argument is persuasive. In practice, however, it would be difficult to actually

hold NGOs responsible for general international law violations on the basis of an

interpretation of a de facto recognition by States of their subject status. Probably State

explicit and formal recognition would be required before anything could be enforced in

practice. If States would recognize subject status to NGOs they would need to specify to

which NGOs they refer, e.g., whether to all NGOs active in the international sphere, to

those complying with a set of requirements, or only to those that carry out public functions.

It would probably be a good start to explicitly recognize as subjects of international

law those NGOs that carry out public functions, namely those NGOs that are involved in

international law-making, as well as those involved in the monitoring and enforcement of

international law and those involved in the delivery of aid, relief and development

assistance in collaboration or in substitution of States and IGOs. It is these NGOs that

most urgently need to be subject to international legal obligations since their actions may

affect the rights of individuals or other subjects of international law.

3.1.2. Apply International Human Rights Obligations to NGOs

The second argument made in order to apply international human rights to non-

State actors is that the texts of several global human rights instruments may be interpreted

as providing that all members of society, including NGOs, must respect human rights.39

38 Stephan Hobe, Legitimacy, Recognition, Democratic Control, Transparency and Accountability of

Non-Governmental Organizations, op. cit., p. 106. 39 See August Reinisch, Governance Without Accountability?, op. cit., pp. 270-306. See also August

Reinisch, The Changing International Legal Framework, op. cit., p. 71-72, where he asserts that “a contemporary reading of human rights instruments shows that non-State actors are also addressees of human rights norms.”

15

This argument is linked to the first. If it can be concluded that NGOs are subject to

international obligations, then they can be considered as subjects of international law. As

is well known, one way to acquire international legal personality is to be subject to

international legal obligations. 40

The provisions that are often cited in support of this argument are Article 30 of the

Universal Declaration of Human Rights,41 and Article 5(1) of both the International

Covenant on Civil and Political Rights (ICCPR) and the International Covenant on

Economic, Social and Cultural Rights (ICESCR).42

Article 30 of the UDHR provides that: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” (Emphasis added). Article 5(1) of the ICCPR and of the ICESCR provides: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.”43 (Emphasis added). The European Convention for the Protection of Human Rights and Fundamental

Freedoms, although a regional instrument, contains in Article 17 an exact provision to

Article 5(1) cited above.44

In addition, at least one human rights body has affirmed that core human rights

obligations are binding on all parts of society, including NGOs.45 According to Clapham,

these obligations arise because the international legal order considers them as generally

applicable and binding on every entity that has the capacity to bear them.46

Besides these general obligations to refrain from performing any act aimed at

destroying or limiting to a greater extent than permitted the fundamental rights guaranteed

in these international instruments, there are internationally recommended principles and

40 See Shaw, op. cit., at pp. 243-244. 41 The Universal Declaration of Human Rights, UN GA Res. 2171(1948). 42 International Covenant on Civil and Political Rights, 999 UNTS 171; and International Covenant on

Economic, Social, and Cultural Rights, 993 UNTS 3. 43 The ICESCR is available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm, the ICCPR is available

at http://www.ohchr.org/english/law/ccpr.htm. 44 The European Convention for the Protection of Human Rights and Fundamental Freedoms, available

at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm. 45 See for example General Comment No. 14 of the UN Committee on Economic, Social and Cultural

Rights “The Right to the Highest Attainable Standard of Health”, stating that “[…] while only States are parties to the Covenant, and thus ultimately accountable for compliance with it, all members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil organizations, as well as the private business sector – have responsibilities regarding the realization of the right to health.” UN Doc. E/C.12/2000/4, August 11, 2000, para. 42, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument.

46 See Clapham, op. cit., at p. 19.

16

guidelines, which although non-binding specifically apply to NGOs. Some examples are

cited below.

Article 18(2) and (3) of the Declaration on the Right and Responsibility of

Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized

Human Rights and Fundamental Freedoms provides that:

(2)“Individuals, groups, institutions and non-governmental organizations have an

important role to play and a responsibility in safeguarding democracy, promoting

human rights and fundamental freedoms and contributing to the promotion and

advancement of democratic societies, institutions and processes;” and

(3) “Individuals, groups, institutions and non-governmental organizations also have

an important role and a responsibility in contributing, as appropriate, to the

promotion of the right of everyone to a social and international order in which the

rights and freedoms set forth in the Universal Declaration of Human Rights and

other human rights instruments can be fully realized.” 47 (Emphasis added).

There are also official guidelines that apply to NGOs in situations of humanitarian

crisis such as the Guiding Principles on Internal Displacements,48 and the Recommended

Principles and Guidelines on Human Rights and Human Trafficking.49 These guiding

principles and guidelines are specifically addressed to NGOs among other actors such as

States and IGOs.50 Below are some examples of the provisions that apply to NGOs:

Principle 27(1) of the Guiding Principles on Internal Displacements provides that: “International humanitarian organizations and other appropriate actors when

providing assistance should give due regard to the protection needs and human

rights of internally displaced persons and take appropriate measures in this regard.

In so doing, these organizations and actors should respect relevant international

standards and codes of conduct.” (Emphasis added).

All guidelines of the Guidelines on Human Trafficking are addressed to States, and

where applicable, also to IGOs and NGOs.

47 UN GA Res. 53/144 (1999), available at

http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.RES.53.144.En?OpenDocument. 48 UN Doc. E/CN.4/1998/53/Add.2, available at

http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/d2e008c61b70263ec125661e0036f36e?Opendocument.

49 UN Doc. E/2002/68/Add.1, available at http://www1.umn.edu/humanrts/instree/traffickingGuidelinesHCHR.html.

50 See Article 2 of the Guiding Principles on Internal Displacements, op. cit.

17

For example, guideline 1 on the promotion and protection of human rights provides

that:

“States and, where applicable, intergovernmental and non-governmental

organizations, should consider:

1. Taking steps to ensure that measures adopted for the purpose of

preventing and combating trafficking in persons do not have an adverse impact on

the rights and dignity of persons, including those who have been trafficked. […].”

(Emphasis added).

From the above it can be concluded that there is some basis for the view that

human rights obligations bind NGOs. However, as Alston has pointed out, this is an

implied rather than express consequence of existing human rights treaties.51

Even though there is a potential source of obligations for NGOs at the international

level, it is not clear, even if NGOs were considered as subject to international obligations,

whether these obligations could actually be enforced. In order to solve these problems,

States must either recognize NGOs as subjects of international law or enact a treaty

making NGOs directly subject to international obligations. If States would want NGOs to

become legally responsible at the international level, they could establish the required

institutions and legal procedures.52

IV. INITIATIVES TO INCREASE INTERNATIONAL NGO ACCOUNTABILITY

The accountability of NGOs at the international level is a broader concept than their

international legal responsibility and relates to the way in which NGOs should behave both

internally and externally and to the way their conduct should be controlled and by whom.

The rapid growth of NGOs globally has made it difficult for States and IGOs to

effectively monitor and control NGO activity. As mentioned before, except for certain rules

that can be found in the context of NGO relationships with IGOs and some initiatives taken

at the regional level, international law does not regulate NGO activity nor does it address

accountability concerns related to NGO activities.

States and IGOs can always decide to regulate international NGO activity by

enacting an international treaty or by adopting global principles or guidelines applicable to

international NGOs. However, lack of State conviction to regulate NGOs at the global level

has created incentives for private companies to issue standards to evaluate NGO

51 See Philip Alston, The ‘Not-a-Cat’ Syndrome, op. cit., p. 26. 52 August Reinisch, The Changing International Legal Framework, op. cit., p. 87.

18

performance and has motivated NGOs to ensure the accountability of the sector through

self-regulation initiatives.

The three options for enhancing NGO accountability at the international level are

examined in the following sections.

4.1. Regulation As has been pointed out, at the international level, besides a limited number of

accountability requirements imposed in the framework of the different consultative

arrangements established by IGOs, there are no other accountability mechanisms in place

for NGOs. This might be due to the difficulty of determining the desirability of such

regulation and the entity, if any, which should impose accountability requirements on

NGOs at the international level.

In this context, the question arises as to whether further steps should be taken in

order to enhance NGO accountability and whether a formal approach through regulation

would be desirable.

As was mentioned earlier, States could agree to make NGOs subject to certain

fundamental international rules by way of treaty or by recognizing NGOs as subjects of

international law. However, this would not impose on them other requirements relating for

example to management, transparency, finances, good governance and accountability to

stakeholders.

Another option would be to adopt global non-binding standards of NGO

accountability addressed directly to international NGOs or addressed to States so that the

latter would implement globally recognized standards at the national level. An effort by the

World Bank to develop global standards for national NGO laws, the World Bank Draft

Handbook on Good Practices for Laws Relating to NGOs (the “Draft Handbook”) failed

completely.53 The main failures of this project were the fact that the World Bank was not

considered to be the appropriate institution to address NGO legal framework issues, that

the process for the creation of the Draft Handbook was perceived as flawed and

inadequate due to the lack of NGO involvement, and that the content of the Draft

Handbook was heavily criticized as inconsistent with international human rights law,

particularly freedom of association.54

53 See Patricia Armstrong, The Limits and Risks of Regulation: the Case of the World Bank-supported

Draft Handbook on Good Practices for Laws relating to NGOs, in NGO ACCOUNTABILITY, POLITICS, PRINCIPLES AND INNOVATIONS, Lisa Jordan and Peter Van Tuil (eds.), Earthscan, 2006, pp. 61-80.

54 Ibid, pp. 66-73.

19

With respect to the last of these criticisms it is important to mention that even

though most criticisms of the Draft Handbook acknowledged that some regulation of NGOs

was important when there was a legitimate public interest requiring protection, most of

them considered that the Draft Handbook lacked clarity and precision and restricted

freedom of association in a manner that was not justifiable, thus providing opportunities for

unwarranted government intrusions.55 This was considered to put at risk NGOs that were

often critical of governments or that operated in countries with undemocratic and

repressive regimes.56

Despite this failure, efforts to provide for minimum NGO accountability standards

may prove successful at the regional level, for example in the case of the

Recommendation to Member States on the Legal Status of Non-Governmental

Organizations in Europe issued by the Council of Europe, or in the case of the European

Commission’s initiatives against terrorism financing of non-profit organizations or its

proposal to regulate lobbyists at the European level.57

Regulation of an activity is only justifiable when there is a legitimate public interest

to do so. Regulation must be consistent with fundamental principles such as freedom of

association and freedom of expression and limitations to these rights should not provide

openings for unnecessary government intrusions.

Taking this into account, it is not at all clear whether besides the legal responsibility

that NGOs could incur at the international level if they were elevated to the status of

subjects of international law, international law should otherwise regulate NGO

accountability. Perhaps the better solution would be to limit NGO regulation to national

laws or to recommend certain minimum standards but to leave their implementation to

States, as has done the Council of Europe.58 There is more and more consensus that at

55 Ibid, pp. 69-73. 56 Ibid. 57 Recommendation CM/Rec(2007)14 of the Committee of Ministers to Member States on the Legal

Status of Non-Governmental Organizations in Europe adopted on October 10, 2007, available at https://wcd.coe.int/ViewDoc.jsp?id=1194609&Site=CM&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75. The Explanatory Memorandum to the Recommendation is available at http://www.coe.int/t/e/legal_affairs/legal_co-operation/civil_society/Basic_texts/Explanatory%20memorandum.pdf. The Commission Communication on The Prevention of and Fight Against Terrorist Financing Through Enhanced National Level Coordination and Greater Transparency of the Non-Profit Sector, COM(2005) 620 final, is available at http://eur-lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0620en01.pdf. The Green Paper for the European Transparency Initiative, is available at http://ec.europa.eu/commission_barroso/kallas/doc/com2006_0194_4_en.pdf. There is also a European Commission’s website dedicated to this initiative at http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm#2.

58 In the context of the Council of Europe, although the Explanatory Memorandum to the Recommendation to Member States on the Legal Status of Non-Governmental Organizations in Europe (the “Recommendation”) recognizes that the best means to ensure ethical and responsible conduct by NGOs is to promote self-regulation in this sector at national and international level, it also

20

the international level NGOs should be free to adopt self-regulating measures to increase

their accountability.59

4.1.1. Consultative Status

Many NGOs have consultative arrangements with IGOs. The most important of

these arrangements and the one that has been a model for many others is that of the UN

Economic and Social Council (ECOSOC) based on Article 71 of the UN Charter. This

section briefly describes the accountability requirements imposed on NGOs that enter into

consultative arrangements with ECOSOC. Since other consultative arrangements between

NGOs and other agencies and programs within the UN or with other IGOs in general

impose similar requirements, only those imposed by ECOSOC will be described here.

Pursuant to ECOSOC Resolution 1996/31, implementing Article 71 of the UN

Charter, NGOs in consultative status with ECOSOC must conform to the principles

governing the establishment and nature of their consultative arrangements.60

Besides this general requirement, ECOSOC Resolution 1996/31 also imposes the

specific obligation on NGOs in consultative status to submit to the NGO Committee61 a

report of their activities every four years, in order to demonstrate that their actions are in

accordance with the principles governing the consultation system.62 Based on the findings

of the NGO Committee’s examination of the quadrennial reports and other relevant

information, the NGO Committee may recommend to ECOSOC reclassification,

suspension or withdrawal of consultative status.63

Pursuant to ECOSOC Resolution 1996/31, consultative status will be suspended or

withdrawn in the following cases:64

recognizes that States have a legitimate interest in regulating NGOs in order to guarantee respect for the rights of third parties (whether donors, employees, members of the public) and to ensure the proper use of public resources and respect for the law. (Explanatory Memorandum to the Recommendation, para. 119). By adopting the Recommendation, the Council of Europe decided to recommend standards on the regulation of NGO accountability but to leave this regulation to national laws and not to espouse an international agreement on the subject.

59 See for example Patricia Armstrong, The Limits and Risks of Regulation: the Case of the World Bank-supported Draft Handbook on Good Practices for Laws relating to NGOs; Steve Charnovitz, Accountability of Non-Governmental Organizations (NGOs) in Global Governance, op. cit. and Richard Fries, the Legal Environment of Civil Society, op. cit.

60 ECOSOC Res. 1996/31, Part VIII, para 55. 61 The NGO Committee consists of 19 members elected for four years on the basis of equitable

geographical representation. The main tasks of the NGO Committee are the following: implementing the provisions of ECOSOC Resolution 1996/31 and monitoring the consultative status, reviewing the applications for consultative status and the requests for reclassification submitted by NGOs, and reviewing the quadrennial reports submitted by NGOs. See ECOSOC Resolution 1996/31, Part IX, para. 60-63. On the NGO Committee see http://www.un.org/esa/coordination/ngo/.

62 Ibid. 63 ECOSOC Resolution 1996/31, Part IX, para 61(c). 64 For some examples on how the deliberation within the NGO Committee on the suspension of NGO

consultative status works, see the reports of the NGO Committee for the years of 2000 and 2001:

21

a) if an organization, either directly or through its affiliates or representatives

acting on its behalf, clearly abuses its status by engaging in a pattern of acts

contrary to the purposes and principles of the UN Charter, including

unsubstantiated or politically motivated acts against a Member State of the UN,

incompatible with those purposes and principles;65

b) if there exists substantiated evidence of influence from proceeds resulting from

internationally recognized criminal activities such as illicit drugs trade, money-

laundering or illegal arms trade; or

c) if, within the preceding three years, an organization did not make any positive

or effective contribution to the work of the UN and, in particular, to ECOSOC or

its commissions or other subsidiary bodies.

The decision to suspend or withdraw the consultative status of an NGO must be

made by ECOSOC on the recommendation of its NGO Committee.66 In the case of

withdrawal, NGOs are entitled to reapply for consultative status three years after the

effective date of such withdrawal.67

The criteria for suspension and withdrawal have often been criticized as being used

to punish specific NGOs for political reasons. The NGO Committee has been particularly

criticized for its policy towards human rights NGOs.68 In practice, suspension or withdrawal

of consultative status occurs only rarely.

The workload of ECOSOC and the increasing number of NGOs seeking

consultative status makes it difficult for ECOSOC to correctly verify the quality of NGOs

being granted consultative status. In addition, once admitted to consultative status it

becomes almost impossible for ECOSOC to thoroughly review the activities of these

NGOs.

http://www.un.org/documents/ecosoc/docs/2000/e2000-88part1.pdf, http://www.un.org/documents/ecosoc/docs/2000/e2000-88part2.pdf,

http://www.un.org/esa/coordination/ecosoc/doc2002.htm (at E/2002/10). 65 Some of the cases reported by the NGO Committee regarding the suspension of NGO status include:

International Council of the Association for Peace in the Continents (ASOPAZCO) with respect to Cuba; Freedom House with respect to Cuba; Transnational Radical Party with respect to the Russian Federation, and France Libertés (Fondation Danielle Miterrand) with respect to China. Available at http://www.un.org/esa/coordination/ecosoc/doc2002.htm (for 2001), and http://www.un.org/documents/ecosoc/docs/2000/e2000-88part2.pdf. (for 2000).

66 ECOSOC Resolution 1996/31, Part VIII, para 58. 67 Ibid, Part VIII, para 59. 68 “It is on the grounds of having criticized the human rights record of a member state of the Committee

that withdrawal or suspension of the consultative status of an organization is requested. Such requests find no basis in Resolution 1996/31, however. When it comes to state complaints, the debate in the Committee becomes heavily politicized.” Jurij Daniel Aston, The United Nations Committee on Non-Governmental Organizations: Guarding the Entrance to a Politically Divided House, EJIL 12, 2001, p. 949.

22

There are currently large numbers of NGOs in consultative status with the UN that

are not complying with the requirement to submit quadrennial reports on their activities.69

The NGO Committee’s vast workload together with the increasing number of NGOs in

consultative status renders it impossible to make a thorough review of all the reports that

are actually submitted.70

Since the only accountability mechanism of the most important consultative

arrangements established at the international level does not work properly, former UN

Secretary-General Kofi Annan suggested already in 2004 that Member States explore the

possibility of drawing up a code of conduct as an instrument to ensure that NGOs commit

themselves to the aims of the UN Charter and act in a manner that reflects the

intergovernmental character of the UN.71 So far, no action has been taken in this respect.

Other IGOs as well as other UN agencies and special bodies and programs have

followed to a larger or lesser degree the model of ECOSOC of establishing consultative

arrangements with NGOs. In order to monitor NGO activities most of them also have

reporting requirements and the possibility to suspend or withdraw consultative status in

specific circumstances.

As mentioned before, the issue of whether NGOs should be given more rights of

participation within IGOs in return for an NGO commitment to comply with a set of

minimum requirements on transparency, integrity and performance, is still a topic for

debate. While some consider that such a development is necessary,72 others think that

NGOs should be left free to self-regulate and that IGOs should not take additional steps to

regulate NGO activity.73

4.1.2. Other Forms of Regulation

As there is a lack of legislation, procedures and institutions available for holding

NGOs directly responsible or accountable at the international level, States could solve this

by enacting a treaty imposing obligations on NGOs at the international level or recognizing

NGOs as subjects of international law. Such a treaty could also create the institutions and

mechanisms necessary to enforce its provisions. One possibility would be a universal

treaty under the patronage of an organization such as the UN. However, it would probably 69 See para 34 of the Secretary General’s Response to the Cardoso Report, available at http://www.un-

ngls.org/edited%20advance%20report%20of%20SG%20on%20Cardoso.pdf. 70 See Jurij Daniel Aston, The United Nations Committee on Non-Governmental Organizations:

Guarding the Entrance to a Politically Divided House, EJIL 12, 2001, p. 961. 71 See Section IV, para. 34 of the Report of the Secretary General in Response to the Report of the

Panel of Eminent Persons in UN-Civil Society Relations, A/59/354, September 13, 2004, available at http://www.un-ngls.org/edited%20advance%20report%20of%20SG%20on%20Cardoso.pdf.

72 See Proposal 23 of the Cardoso Report, op. cit.; see also Michael Edwards, NGO RIGHTS AND RESPONSIBILITIES: A NEW DEAL FOR GLOBAL GOVERNANCE, op. cit., at pp. 5 and 30.

73 See for example Steve Charnovitz, Accountability of Non-Governmental Organizations (NGOs) in Global Governance, op. cit., p. 30.

23

be difficult to obtain State consensus for such an agreement due to the different views that

States have with respect to the role of NGOs in the international system.74

The task might be easier at the regional level. However, we have seen that for

example States belonging to the Council of Europe appear to be reluctant to regulate

NGOs outside the national level. As mentioned before, the Recommendation to Member

States on the Legal Status of Non-Governmental Organizations in Europe adopted by the

Council of Europe recommends certain standards on NGO accountability to Member

States but leaves this regulation to national laws.

The European Commission has followed different approaches according to the

issue at hand. In the context of terrorism financing it adopted the same approach as the

Council of Europe.75 Even though it had an interest in creating European standards that

would guarantee NGO accountability throughout Europe, it decided not to impose these

standards directly on NGOs but to recommend Member States to adopt certain

mechanisms in order to ensure that NGOs comply with certain minimum transparency

standards.

However, with respect to lobbyists or ‘interest representatives’ (including NGOs

engaged in lobbying activities), the European Commission published a Green Paper in

May 2006 that among other things identified the need for a more structured framework for

lobbying activities and proposed a mixed approach of regulation and self-regulation.76 It

recommended the creation of a voluntary registry at the European level of all interest

groups and lobbyists who wish to be consulted on EU initiatives, together with the

requirement for those registering of providing certain information and committing to comply

with a self-adopted code of conduct.77 In a recent communication, the European

74 See the report by Marcel Merle, International Non-Governmental Organizations and their Legal

Status, Appendix 3.5 of the International Associations Statutes Series, Vol. 1, UIA eds., 1988, available at http://www.uia.org/legal/app35.php#ngoints.

75 Commission Communication on The Prevention of and Fight Against Terrorist Financing Through Enhanced National Level Coordination and Greater Transparency of the Non-Profit Sector, COM(2005) 620 final, OJ C 122 of May 23, 2006, available at

http://eur-lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0620en01.pdf. The Commission Communication elaborates on the previous Draft Recommendation to Member States Regarding a Code of Conduct for Non-Profit Organizations to Promote Transparency and Accountability Best Practices, (JLS/D2/DB/NSK D(2005) 8208, July 2005, available at http://ec.europa.eu/justice_home/news/consulting_public/code_conduct_npo/draft_recommendations_en.pdf) and takes into account the comments received by NGOs and other interested actors during the consultation period. All comments are available at http://ec.europa.eu/justice_home/news/consulting_public/code_conduct_npo/news_contributions_code_conduct_npo_en.htm#civil_society.

76 The Green Paper for the European Transparency Initiative is available at http://ec.europa.eu/commission_barroso/kallas/doc/com2006_0194_4_en.pdf. See also the European Commission’s website dedicated to this initiative at http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm#2.

77 Pursuant to the Green Paper and on the basis of public consultations on the subject, the Commission decided in March 2007 to set up the public register “for all interest representatives working to influence decisions taken in EU institutions” and proposed a common code of conduct (COM(2007)127final). When registering, registrants will automatically be asked to declare that they

24

Commission included the final Code of Conduct that was established following a public

consultation.78 To motivate compliance, the Code provides that breaches of its rules may

lead to suspension or exclusion from the registry and that anyone can lodge a complaint

(substantiated by material facts) about a suspected breach.79

4.2. Private Initiatives There have also been initiatives by the private sector in order to increase NGO

accountability. In particular, there is a company that has created an NGO standard and

that offers its services to certify NGOs on the basis of this standard.

Société Générale de Surveillance (SGS), an inspection, verification, testing and

certification company, has designed an NGO Benchmarking standard that aims at

providing assurance that a given NGO’s objectives and activities are implemented in an

accountable, efficient and sustainable manner.80 The NGO standard measures the

performance and accountability level against a series of best practice criteria put together

by SGS. The purpose of SGS is to provide NGOs, as well as the donor community and

the public at large, with an independent assessment of NGOs. Successful NGO applicants

receive an SGS certificate of compliance with SGS’s NGO Benchmarking standard.

4.3. Self-Regulation

The past decade has seen a proliferation of efforts to encourage NGOs to adopt

codes of conduct, guidelines, standards, and other voluntary and non-binding

arrangements to increase their accountability. In general, these initiatives come from

States or from NGOs (either internally or from their peers).

abide by this code, or that they already abide by a similar professional code. In a recent communication, the European Commission has further clarified the workings of the Register and attached the final version of the Code of Conduct (see the Communication from the Commission, European Transparency Initiative, A Framework for Relations with Interest Representatives (Register and Code of Conduct), May 27, 2008, COM(2008)323final), available at http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm.

78 See the Communication from the Commission, European Transparency Initiative, A Framework for Relations with Interest Representatives (Register and Code of Conduct), May 27, 2008, COM(2008)323final), available at http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm.

79 Ibid, p. 7. 80 On the SGS NGO Benchmarking Standard see

http://www.sgs.com/sgs_ngo_benchmarking_eng_final__170206.pdf. See also http://www.sgs.com/ngo_benchmarking_?serviceId=6967&lobId=5549.

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As a result, NGO activities are being subject to intensified scrutiny.81 As mentioned

before, there is growing consensus that NGO self-regulation should be encouraged to

promote NGO accountability at the international level.82 For an increasing number of

commentators NGO self-regulation is preferable to a form of accountability imposed by law

or even to self-regulation recommended by States and IGOs.83 The main justification for

this view is that self-regulation coming from the NGOs’ own initiative allows them to be

more independent from States and thus permits them to continue with one aspect of their

role, namely being watchdogs of power abuse by States.84

As will be clear from the NGO initiatives explained in the coming sections, self-

regulation among NGOs varies widely depending on the sector and the specific characteristics of the NGOs involved.

4.3.1. Self-Regulation Promoted by States The model proposed by the European Commission to create a voluntary registry of

lobbyists is a mixture of regulation and State-imposed self-regulation.85 The Green Paper

and the communications implementing it explain that even though registration would be

voluntary, those organizations that do register must disclose certain information and

comply with a code of conduct. It is still to be seen how this model will work in practice.

As mentioned before, former UN Secretary-General Kofi Annan made a similar

proposal when he suggested that Member States explore the possibility of drawing up a

code of conduct as an instrument to ensure that NGOs commit themselves to the aims of

the UN Charter and act in a manner that reflects the intergovernmental character of the

UN.86

Examples of actual procedures developed and managed by NGOs at the request of

the State can be found at the national level. Two noteworthy examples are the Philippine

Council for NGO Certification (PCNC) and the Pakistan Center for Philanthropy NPO

Certification Program. According to these programs, tax exemptions may only be granted

to donors that finance certified NGOs. Thus, although certification is not mandatory and is

81 See Kathrin Dombrowski, Overview of Accountability Initiatives, One World Trust, January 2006,

available at http://www.globalpolicy.org/socecon/tncs/2006/01accountability.pdf. See also the NGO Cafe’s website dedicated to NGO Codes of Conduct, available at http://www.gdrc.org/ngo/codes-conduct.html.

82 See Richard Fries, the Legal Environment of Civil Society, op. cit. 83 See Richard Fries, the Legal Environment of Civil Society, op. cit., at pp. 226-227. See also Steve

Charnovitz, Accountability of Non-Governmental Organizations (NGOs) in Global Governance, op. cit. 84 Ibid. 85 See section 4.1.2. of this paper. 86 See Section IV, para. 34 of the Report of the Secretary General in Response to the Report of the

Panel of Eminent Persons in UN-Civil Society Relations, A/59/354, September 13, 2004, available at http://www.un-ngls.org/edited%20advance%20report%20of%20SG%20on%20Cardoso.pdf.

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carried out by an independent NGO, there is an element of compulsion involved since

donations to non-certified NGOs are not tax-deductible.

The Philippine Department of Finance asked the NGO community to establish a

self-regulatory mechanism and body that could certify to the legitimacy, accountability, and

transparency of NGOs in the Philippines. In response to this challenge, the PCNC was

organized by six of the country’s largest national NGO networks. A Memorandum of

Agreement (MOA) was signed between the Philippine Department of Finance and the

PCNC.87 The MOA authorized the PCNC to certify NGOs complying with certain minimum

legitimacy, accountability and transparency standards. Only NGOs certified by the PCNC

are allowed to receive the title of organizations with “donee” status from the Philippine

Bureau of Internal Revenue, and only donations to these organizations may be deducted

from a donor’s income tax.

The Pakistan Center for Philanthropy NPO Certification Program constitutes an

almost identical initiative.88

The Australian Council for International Development (ACFID) has also

encouraged Australian development NGOs that deliver aid overseas to become

signatories of a voluntary, self-regulatory code of conduct (the ACFID Code of Conduct).89

4.3.2. NGO Self-Regulation

NGOs are also taking steps of their own to respond to the increasing claims on

their perceived lack of accountability at the international level.

Most initiatives that relate to accountability have been developed with the intention

of demonstrating to donors that adequate systems of monitoring, evaluation and

management are in place.90 Recently, however, more importance has been paid to

accountability to different stakeholders.

Below is an overview of some of the initiatives that have been undertaken by NGOs

to increase their accountability. While some of them refer to the internal adoption of certain

standards and techniques for self-assessment, others involve an independent assessment

of the NGO’s work. In addition, while some of these initiatives involve an organization or a

network of organizations, others refer to all NGOs within a sector and others aim at being

cross-sectoral. 87 See the PCNC website at http://www.pcnc.com.ph/. See also See Stephen Golub, NGO

Accountability and the Philippine Council for NGO Certification: Evolving Roles and Issues, in Lisa Jordan & Peter Van Tuijl, NGO ACCOUNTABILITY: POLITICS, PRINCIPLES & INNOVATIONS, op. cit., pp. 93-107.

88 For more details see the website of the Pakistan Center for Philanthropy at http://www.pcp.org.pk/index.html

89 The ACFID Code of Conduct is available at http://www.acfid.asn.au/code-of-conduct. 90 Jem Bendell, op. cit., pp.15-16.

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4.3.2.1.Self-Assessment In general NGO self-assessment refers to the adoption of standards, codes of

conduct or internal strategies by NGOs in order to improve their accountability. These

standards or strategies are adopted internally by the organization and do not involve an

independent evaluation or assessment of compliance with the adopted measures.

4.3.2.1.1.Standards Standards are generally voluntarily adopted by NGOs in order to enhance the

quality of the organization’s work. Standards may focus on different issues such as

management, financial oversight, accountability to beneficiaries, reporting techniques, etc.

They may be elaborated internally by an NGO or NGO network, or externally by an

independent NGO, by the State or by an IGO or private company.

Examples of internal standards and strategies that are being created or have been

adopted by NGOs in order to improve their own accountability or that of the NGO sector

include ISO’s Social Responsibility Standard91 and Keystone’s Reporting Standards for

Civil Society Organizations.92

InterAction, an alliance of US-based development and humanitarian relief NGOs,93

has also developed a set of standards known as the Private Voluntary Organization (PVO)

Standards. Self-certifying compliance with these standards each year is a condition of

91 The International Organization for Standardization (ISO) approved the development of a standard on

social responsibility that will provide guidance to organizations on social responsibility. The standard will deal with issues concerning protection of the environment, human rights, labor practices, organizational governance, fair operating practices, and consumer issues. It will be applicable to all types of organizations, including businesses, NGOs, governments, etc. (See ISO’s Press Release with Reference Number 1049 of February 13, 2007, available at http://www.iso.org/iso/en/commcentre/pressreleases/2007/Ref1049.html.) The standard will provide guidance on how to make social responsibility operational. It will attempt at developing guiding principles that will be useful to organizations worldwide in establishing, implementing, maintaining and improving the way they address social responsibility. ISO’s objective is to produce a guidance document, written in plain language that will be understandable and usable by non-specialists and not a specification document intended for third party certification. ISO expects that developing the standard will take three years with publication of the standard scheduled for 2010 as ISO 26000. See ISO’s website on Social Responsibility at http://isotc.iso.org/livelink/livelink/fetch/2000/2122/830949/3934883/3935096/home.html?nodeid=4451259&vernum=0.

92 In 2004, AccountAbility (a non-profit membership organization established in 1995 to promote accountability) agreed to act as an incubator for Keystone, a new multi-stakeholder initiative that aims to create globally applicable systems of NGO accountability (http://www.keystonereporting.org/about/background). Keystone is a cross-sectoral partnership that will develop reporting standards for civil society organizations, including NGOs. (See the ten year review report of AccountAbility at http://www.accountability21.net/uploadstore/cms/docs/AccountAbility%20looking%20back%20looking%20forwards.pdf.).

93 Members of InterAction include NGOs such as Care, Save the Children and World Vision. See more on InterAction at http://www.interaction.org/.

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membership.94 The PVO Standards contain guidelines and frameworks for effective

management, governance, financial oversight, human resource policies and program

implementation.95

The Steering Committee for Humanitarian Response (SCHR) together with

InterAction created the Sphere Project to develop the Humanitarian Charter and the

Minimum Standards in Disaster Relief.96 Signatories to the Humanitarian Charter have

adopted an accountability mechanism to hold them to account on their commitments with

respect to the Humanitarian Charter. This is known as the Humanitarian Accountability

Project (HAP).

4.3.2.1.2. Codes of Conduct Codes of conduct are normally legally non-binding rules, usually adopted

voluntarily in order to express in a clear way what is expected of an organization. In

general, the supervisory and enforcement mechanism of codes of conduct is weak or even

non-existent. Nevertheless, in general, codes of conduct are viewed as effective tools to

regulate conduct.

NGOs have adopted several sectoral codes of conduct, such as the Code of

Conduct for the International Red Cross and Red Crescent Movement and NGOs in

Disaster Relief97 and the Code of Good Practice for NGOs Responding to HIV/AIDS.98

In addition, in 2006, eleven of the world’s leading human rights, environmental and

social development international NGOs publicly endorsed the first global and cross-

sectoral code of conduct for NGOs, the International Non Governmental Organisations’

Accountability Charter (the “Accountability Charter”).99

Pursuant to the Accountability Charter, in addition to committing to comply with

relevant governance, financial, accounting and reporting requirements in the countries

94 For more information on the PVO Standards, see http://www.interaction.org/pvostandards/index.html. 95 Ibid. 96 See the Sphere Handbook, available at the website of the Sphere Project at

http://www.sphereproject.org/content/view/27/84/lang,English/. 97 The SCHR was the founder of the Code of Conduct for the International Red Cross and Red Crescent

Movement and NGOs in Disaster Relief and its members are all signatories to the code. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief is available at http://www.ifrc.org/publicat/conduct/code.asp.

98 The Code of Good Practice for NGOs Responding to HIV/AIDS is available at http://www.ifrc.org/Docs/pubs/health/hivaids/NGOCode.pdf?health/hivaids/NGOCode.pdf.

99 The Accountability Charter is available at the websites of all NGOs subscribing it: ActionAid International, Amnesty International, CIVICUS World Alliance for Citizen Participation, Consumers International, Greenpeace International, Oxfam International, International Save the Children Alliance, Survival International, International Federation Terre des Hommes, Transparency International and World YWCA. See for example the website of Amnesty International at http://www.amnesty.org/resources/downloads/INGO_Accountability_Charter.pdf. See also the press release of Amnesty International of June 6, 2006, available at http://news.amnesty.org/mavp/news.nsf/print/ENGPOL306062006.

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where they are based and operate, NGOs agree to follow principles of best practice in

governance that can guarantee the transparency and accountability of all signatories to the

Accountability Charter.

The Accountability Charter adopts a multi-stakeholder approach and is composed

of four main parts: principles, good governance, ethical fundraising and professional

management.

Whether the Accountability Charter will help to solve the accountability concerns

with respect to NGOs remains to be seen. The Accountability Charter could constitute the

first step of a system of global NGO self-regulation that might give some additional comfort

to States and IGOs dealing with them, and further legitimize the role of NGOs in global

governance.

4.3.2.1.3. Other Self-Assessment Initiatives Besides standards and codes of conduct, there are other internal initiatives that

have been taken by NGOs in order to improve their accountability, such as Action Aid’s

Accountability Learning and Planning System (ALPS), an organizational strategy with the

principal goal of increasing downward accountability.100

4.3.2.2.Independent Assessment There have also been several initiatives undertaken by NGOs to carry out

independent assessments of the NGO sector or of particular NGOs in order to increase

their accountability. Some of the better-known examples include NGO Watch and One

World Trust.

NGO Watch is a website (ngowatch.org)101 created by the American Enterprise

Institute and the Federalist Society for Law and Public Policy Studies aimed at compiling

factual data about NGOs, including analysis of relevant issues, treaties, and international

organizations where NGOs are active.102

One World Trust has created a Global Accountability Project (GAP) that aims to

assess how open and receptive global organizations are to internal demands of their

members and the external demands of individuals and groups who are affected by the

organizations’ daily operations.103 One World Trust develops indicators to measure the

accountability of IGOs, NGOs and MNCs. In addition to publishing accountability reports

100 See Action Aid’s 2006 document on ALPS available at

http://www.actionaid.org/main.aspx?PageID=2. 101 NGO Watch’s website is available at http://www.ngowatch.org. 102 See Kathrin Dombrowski, Overview of Accountability Initiatives, One World Trust, January 2006,

available at http://www.globalpolicy.org/socecon/tncs/2006/01accountability.pdf. 103 http://www.oneworldtrust.org/?display=project&pid=10.

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on international organizations, One World Trust has issued transparency guidelines that

can be used by NGOs, IGOs and corporations as self-assessment tools to increase their

accountability.104

Besides requiring its members to self-certify compliance with the PVO Standards,

InterAction has engaged in other accountability initiatives such as the child sponsorship

certification project.105 A sub-group of five InterAction members that operate child

sponsorship programs took part in the project. They agreed to have an external auditing

team certify that they were each in compliance with the PVO Standards. Social

Accountability International (SAI), a company known for its labor standards audits around

the world, accredited the entire process.106 This project received much media attention as

it was the first time a group of international NGOs had gone through a certification of

compliance to a set of standards by a third party.107

Finally, the Humanitarian Accountability Partnership International (HAP-I) adopted

a yet different system to make an independent evaluation of their member organizations.108

They instituted a committee that may receive and respond to complaints made against any

of its member organizations.

V. CONCLUSIONS

The increased power of NGOs at the international level together with the possibility

of abusing that power has generated increasing attention on NGO accountability. There is

an unquestionable perception within the international community that NGOs, as

international actors, should be subject to an increased degree of scrutiny, as are other

actors such as States, IGOs and MNCs.

104 For more information on the transparency guidelines see Monica Blagescu, Lucy de las Casas and

Robert Lloyd, Foundations of the Framework: The GAP Dimension Papers, One World Trust, September 2005, available at http://www.oneworldtrust.org/documents/Foundations%20of%20the%20Framework.pdf. See also in general One World Trust’s website at http://www.oneworldtrust.org.

105 See the InterAction Child Sponsorship Certification Executive Summary, July 18, 2005, available at http://www.interaction.org/.

106 See SAI’s website at http://www.sa-intl.org/. 107 See the article by Michael M. Phillips, Big Charities Pursue Certification To Quell Fears of Funding

Abuses, The Wall Street Journal, March 9, 2005. 108 The Humanitarian Accountability Project (HAP) was created to identify, test and recommend a variety

of accountability approaches for humanitarian organizations. The origins of this project can be traced to the 1996 Joint Evaluation of the International Response to the Genocide in Rwanda, an initiative of the humanitarian NGOs to analyze the shortcomings of humanitarian practices during the genocide in Rwanda. One of the main findings of HAP was that humanitarian accountability could best be strengthened and implemented through the creation of a strong international self-regulatory body, able to insist on monitoring and compliance, while providing strategic and technical support to its members. Based on this conclusion, fourteen humanitarian NGOs created in 2003 the Humanitarian Accountability Partnership International (HAP-I). The website of HAP-I is available at http://www.hapinternational.org/en/pages.php?IDcat=10).

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Even though there is widespread consensus that NGOs should be more

accountable at the international level, there are differences in views among States, IGOs,

NGOs and scholars as to the content of the accountability measures that should be

adopted, the stakeholders to whom NGOs should be held accountable, and the manner in

which this accountability should be monitored and enforced. Moreover, there are also

differences in opinions concerning whether accountability measures should be imposed on

NGOs or whether they should be a result of self-regulation.

It is generally considered that NGOs’ rights to freedom of expression and assembly

should only be limited when there is a legitimate public interest to do so. Thus, there is an

argument for imposing accountability requirements only when NGOs perform public

functions at the international level, as they do when they participate in the creation,

monitoring and enforcement of international law within the framework of IGOs or are

involved in aid, relief and development assistance on behalf of States and IGOs or as

subcontractors of these entities.

There are different options to make NGOs more accountable at the international

level. One way would be to impose additional accountability measures in the framework of

the consultative arrangements that IGOs may establish with NGOs. This could be done in

return for greater access to IGOs.

Another option would be to make NGOs legally responsible at the international

level. Even though NGOs participate in the international system they are not subject to

international legal obligations because they have not been formally recognized as subjects

of international law. Thus, in order to make them subject to international obligations NGOs

would need to be elevated to the status of subjects of international law. This could be done

in an international treaty recognizing such status or imposing certain obligations on NGOs,

such as human rights obligations. In order for this to be enforceable, however, such a

treaty would need to provide for the mechanisms and institutions to enforce such

obligations against NGOs. Consensus for such a treaty would be difficult to obtain.

Another option would be for States or IGOs to impose or encourage NGO self-

regulation or to adopt a mixed system as the European Commission is doing with respect

to lobbyists, including NGOs engaged in lobbying activities. The idea that IGOs should

impose or encourage NGO self-regulation has been discussed within the UN. Although

former UN Secretary-General Kofi Annan proposed to encourage NGO self-regulation, the

UN has not taken any steps in this direction. Moreover, the UN has not shown any support

for the idea of further formalizing its relationships with NGOs. A mixed approach of

regulation and State imposed self-regulation, as that being put into practice by the

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European Commission with respect to lobbyists would be difficult to implement at the

global level since it would assume that NGOs could agree on a common code of conduct

to increase their accountability.

There is growing support for the view that NGOs at the international level should be

left free to engage in self-regulation to increase their own accountability. The diversity of

NGOs, fields of operation and stakeholders favors this approach, since it is very difficult to

find generally applicable and universal standards by which all NGOs participating at the

international level could be held accountable. NGOs are so varied, perform such a wide

range of functions, and are at such different stages of development, that it would probably

be unrealistic to suppose that a single set of standards could be applied to all of them.

At the international level the most appropriate option would be to elevate the status

of certain NGOs to that of subjects of international law so that they would be subject to

international legal obligations and for the rest leave NGOs free to engage in self-regulation

in order to make the sector more accountable vis-à-vis their different stakeholders. The

NGOs that could be recognized as subjects of international law could be those that

operate within the frameworks of IGOs or act in cooperation or in substitution of States and

IGOs in the delivery of aid, relief and development assistance. Ideally this could be done

through a treaty under the patronage of an organization such as the UN.

The perceived lack of NGO accountability at the international level together with the

lack of State initiatives and will to regulate NGOs at the global level has created incentives

at least for one private company to issue a standard to evaluate international NGO

performance and has motivated NGOs to ensure the accountability of the sector through a

plethora of self-regulation initiatives.

Whether these initiatives will work in practice and increase the accountability of the

NGO sector as a whole remains to be seen. For the moment most of these initiatives are

still developing or are in a trial phase. However, with the increased number and power of

NGOs, the momentum for the increased accountability of NGOs in the international arena,

whether imposed by international law or self-initiated, demands that change will come to

this sector in the near future.

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