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Max Planck Encyclopedia of Public International Law [MPEPIL]

International Organizations or Institutions, Observer Status

Thilo Rensmann

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Membership of international organizations — International organizations, practice and procedure — NGOs (Non-Governmental Organizations)

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Notion

Observer status is a status short of membership which allows non-members limited participation without a vote in the sessions and work of one or more of the organs of an international organization (International Organizations or Institutions, Membership; International Organizations or Institutions, Voting Rules and Procedures). Traditionally the notion of observer status only refers to participatory rights granted to States, international organizations and other subjects of international law which are not members of the organization or of a particular organ.

Increasingly observer status is understood in a wider sense to encompass consultative and participatory rights accorded to other international actors, in particular non-governmental organizations.

B.  Function and Significance

In many instances the inclusion of non-members in the work of international organizations is essential for the effective fulfilment of the organization’s mandate. By granting observer status, international organizations and their organs can ensure collaboration with international actors which either do not qualify for membership or which for political reasons are not accepted as or do not aspire to become full members of the organization. Conversely, observer status allows non-members to ensure that their interests are taken account of in the work of the international organization.

The institution of observer status has assumed increasing importance as a means of adapting the constitutional structure of international organizations in order to open up avenues of institutionalized co-operation between international organizations and new international actors—eg, non-governmental organizations (‘NGOs’)—which are excluded from membership in international organizations.

C.  Historical Background

The institution of observer status was first recognized in the League of Nations (‘League’). In particular, the failure of the United States of America (‘US’) to ratify the Covenant of the League of Nations (‘League Covenant’) created the need to allow non-Member States to participate in the work of the League organs and commissions. The League also assumed a pioneering role in developing modes of close institutionalized co-operation with other international organizations (cf Art. 24 League Covenant) and NGOs (International Organizations or Institutions, External Relations and Co-operation).

D.  Legal Basis

Although it is common practice today amongst international organizations to allow interested non-Member States and other international actors some formalized opportunity to participate in their work, there are no general rules of international law which regulate the status of such observers. The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (1975) which sets forth certain rules on the status of observers has so far failed to attract the number of ratifications necessary for entering into force (Treaties, Conclusion and Entry into Force).

The conditions for obtaining observer status and the concomitant rights and obligations of observers hence vary from organization to organization. In a very few instances specific rules on the status of observers are set forth in the international organization’s constituent instruments. More commonly observer status is regulated by the rules of procedure of the organ in question or by specific ‘guidelines’ of the organization (International Organizations or Institutions, Internal Law and Rules). In other organizations, including the United Nations (UN), the institution of observer status is based largely on practice.

Endowing non-members with observer status is the prerogative of the Member States and is, as a general rule, exercised through the plenary policy-making organ of the international organization (International Organizations or Institutions, Decision-Making Bodies). Whether other organs may be competent to invite observers to participate in their sessions and work depends on the powers vested in the organ in question.

E.  Different Categories of Observers

The conditions for obtaining observer status and the extent of the concomitant rights of attendance and participation vary according to the entity seeking such status.

1.  Non-Member States

10  As a general rule non-Member States will only be granted observer status if they are endowed with the full attributes of independent statehood (State). This is at least true for international organizations which in principle restrict—full—observer status to States and international organizations.

11  Due to its disputed international status, Taiwan failed in its request for observer status in the World Health Organization (WHO) and the Organization of American States (OAS). In other instances, however, Taiwan has been endowed with observer status under designations which reflect its uncertain status, eg, as a ‘fishing entity’ under the UN Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks) and as a ‘separate customs territory’ in the World Trade Organization (WTO) before being admitted to full membership.

12  Some organizations specifically require the non-Member State’s commitment to the organization’s purposes, ideals, and values as a precondition for granting observer status (see, eg Council of Europe [COE] Statutory Resolution [93] 26 [14 May 1993]). In other international organizations, such as the WHO and the WTO, observer status for non-Member States is contingent on their stated intention to obtain full membership.

13  Observer status may also be granted to Member States which are not represented in non-plenary organs of the organization (see, eg, Arts 31–32, 69 United Nations Charter [‘UN Charter’]).

2.  International Organizations

14  Reciprocal arrangements for observer status are the traditional mode of institutionalized co-operation between international organizations (Reciprocity) since most international organizations do not admit other international organizations to full membership (see, however, European Community and Union, Membership in International Organizations or Institutions). The archetypes for such arrangements are the reciprocal representation clauses in the relationship agreements between the UN and its specialized agencies concluded in accordance with Arts 57, 63, and 70 UN Charter (United Nations, Specialized Agencies). As a general rule the eligibility of international organizations for observer status is contingent only on their competence and activities concerning matters of interest to the granting organization together with their willingness to co-operate closely with the granting organization (see, eg, UNGA Decision 49/426 [9 December 1994]; United Nations, General Assembly [‘UNGA’]; Guidelines for Observer Status for International Intergovernmental Organizations in the WTO para. 2).

3.  Other Entities with International Legal Personality

15  Other entities with—limited—international legal personality (eg, the International Committee of the Red Cross [ICRC] and the Order of Malta (Malta, Order of)—have been granted observer status in a number of international organizations, including certain international organizations which by virtue of their rules of procedure limit observer status in principle to States and international organizations. In such cases the rules of procedure cannot be considered exhaustive; the doctrine of implied powers leaves the plenary organ the liberty to extend the circle of entities eligible for observer status (International Organizations or Institutions, Implied Powers).

16  The Holy See which enjoys full membership in various specialized agencies of the UN has been accorded observer status in the UN and in other international organizations.

17  During the process of decolonization, national liberation movements—such as the Palestine Liberation Organization (PLO) and the South West Africa People’s Organization—were endowed with observer status in the UN and other international organizations. In 1998 the UN General Assembly enhanced the observer status of the PLO by vesting it—under the new designation Palestine—with a number of additional participatory rights and privileges otherwise reserved to Member States (UNGA Res 52/250 [13 July 1998]). In 2005 the PLO—on behalf of the Palestine authority—was granted observer status in the WTO.

18  Due to their unique status in international relations the Inter-Parliamentary Union (IPU) and the International Federation of Red Cross and Red Crescent Societies have been granted observer status by the UN and other international organizations. Despite not being recognized as subjects of international law, they have been accorded the same participatory rights in this capacity as entities endowed with international legal personality.

4.  Non-Governmental Organizations

19  Many international organizations provide for institutionalized forms of co-operation with NGOs. Most organizations follow the model of the UN Charter which in Art. 71 empowers the UN Economic and Social Council (‘ECOSOC’) to make arrangements for consultation with NGOs (United Nations, Economic and Social Council). The UN draws a clear distinction between the consultative status which may be granted to NGOs—Art. 71 UN Charter; Chapter XIII Rules of Procedure of the ECOSOC (‘ECOSOC Rules’)—and a more extensive participatory status which is reserved for States, international organizations, and national liberation movements—cf Arts 69 and 70 UN Charter; Chapter XII ECOSOC Rules.

20  The procedure and conditions for granting consultative status to NGOs are currently governed by ECOSOC Resolution 1996/31 of 25 July 1996. Under these rules NGOs are eligible for consultative status if they are concerned with matters falling within the competence of the ECOSOC, if their aims and purposes, are in conformity with the spirit, purposes, and principles of the UN Charter, and if their organizational structure fulfils a number of formal requirements. The above-mentioned resolution distinguishes three types of consultative relationships—general consultative status, special consultative status, and roster status—depending on the degree to which the NGOs are concerned with the activities of ECOSOC and on the assistance they may be expected to give to ECOSOC in carrying out its functions. NGOs with general consultative status enjoy the most extensive consultative rights which include the right to propose items for inclusion in the provisional agenda of ECOSOC, the right to designate representatives, to attend public meetings of ECOSOC and its subsidiary bodies, the right to submit written statements to ECOSOC and have them circulated amongst its members, and the right to make oral presentations during ECOSOC meetings.

21  The Report of the Panel of Eminent Persons on United Nations–Civil Society Relations proposed that the consultative status of NGOs be extended to the UN General Assembly and that a single accreditation system be established for all UN forums (Civil Society). The trend towards enhancing the rights enjoyed by NGOs in their capacity as observers in international organizations has found clear expression within the COE which in 2003 upgraded the former ‘consultative status’ for NGOs to a new ‘participatory status’ (cf Committee of Ministers Res [2003] 8 [19 November 2003]).

F.  Rights and Duties of Observers

22  Observer status may entail a broad variety of consultative or participatory rights. The specific extent of the rights vested in an observer depends on the category to which the observer belongs—see Sec. E above—and the organization or organ which has granted observer status. Observer status may extend to one or more of the organs and subsidiary bodies of the respective organization.

23  In any given case observer status may encompass one or more of the following rights: a) access to the forum in which the sessions of the respective organ are held, b) access to the documents issued by the respective organ, c) the right to have documents distributed, d) the right to make statements, e) the right to reply, f) the right to submit proposals, and g) the right to raise points of order.

24  In its Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) the International Court of Justice (ICJ) held that Palestine was entitled to submit a written statement in the proceedings by virtue of its having been granted observer status by the UN General Assembly (at para. 2).

25  Observer status may also place certain duties on the observer. In some organizations observers are required to make financial contributions for services provided to them in connection with their observer status (International Organizations or Institutions, Financing of). Observers may also be subject to certain reporting duties (see, eg, Guidelines for Observer Status for Governments in the WTO para. 7; ECOSOC Res 1996/31 para. 61 [c]).

26  Observer status may be granted on a permanent or temporary basis. Functional observers are only invited to attend meetings relating to subject-matters of particular concern to them.

G.  Immunities and Privileges of Observers and Their Missions

27  Typically, the constituent instruments of international organizations do not explicitly grant immunities and privileges to observers and their missions. The functional privileges and immunities granted in Art. 105 (2) UN Charter are limited to representatives of the Member States (International Organizations or Institutions, Privileges and Immunities). Certain privileges and immunities would, however, have to be granted to observers invited by the organization by virtue of the general duty inherent in the constituent treaty and the respective host State agreement to refrain from any measure which would jeopardize the effective functioning of the organization (Host State Agreements; International Organizations or Institutions, Headquarters). Such immunities include immunity from legal process with respect to words spoken or written and all acts performed in their official capacity as observers before the respective organ of the organization, and the inviolability of all official papers, documents, and the premises of the mission (Premises of Diplomatic Missions).

28  The Agreement between the UN and the US regarding the Headquarters of the United Nations (‘Headquarters Agreement’) and a number of other host State agreements specifically require the host State to permit observers—‘persons invited … by the United Nations or by such specialized agency on official business’ (Art. 4 (11) Headquarters Agreement)—to enter and remain in the host State in order to carry out their official functions. Art. 4 (11) Headquarters Agreement explicitly extends in its para. 4 these privileges and immunities to NGOs granted consultative status in accordance with Art. 71 UN Charter. Although not specifically mentioned in Art. 4 (11) to 13 Headquarters Agreement, the privileges and immunities have been held to extend by necessary implication to establishing and maintaining a permanent observer mission (cf UNGA Res 42/210 [17 December 1987]; US v PLO [SDNY 1988] [1988] 27 ILM 1055).

29  In some cases certain observers and their missions have been granted additional privileges and immunities (see, eg, US Executive Order 13427 [7 March 2007] [72 Federal Register 10879 (9 March 2007)] with respect to the permanent observer mission of the Holy See to the UN).