Jump to Content Jump to Main Navigation
The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part III The Sources of International Responsibility, Ch.23.3 The Responsibility of Other Entities: Non-Governmental Organizations

Anna-Karin Lindblom

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

(p. 343) Chapter 23.3  The Responsibility of Other Entities: Non-Governmental Organizations

State responsibility and NGOs

(a)  Introduction

As a consequence of the considerable number, resources, and political role of nongovernmental organizations (NGOs), the demands for their accountability are increasing.1 The NGO sector attracts large amounts of international funding and, as a consequence of developments such as the privatization of public services in many countries and the globalization of decision-making, their role is powerful both locally and transnationally. The possibility of holding NGOs legally responsible for their conduct is only one aspect of the larger question of their accountability.2 Here, the focus lies on this legal aspect: to what extent can NGOs be held responsible in international law?

(p. 344) The issue of the international responsibility of NGOs has no evident place in relation to the more solid areas of international law, such as State responsibility, international obligations and courts, but seems to float somewhere off the coastline. In this Chapter, I will try to locate the place of NGOs in relation to international responsibility by identifying and examining their obligations under international law. After briefly touching on the rules on State responsibility, the obligations and responsibilities of NGOs under treaties, resolutions and other instruments will be examined. On the basis of this discussion, conclusions will be drawn regarding the international responsibility of NGOs.

This approach may appear clinical, even superficial. As Jordan and van Tuijl state: ‘NGO accountability has become a “wedge issue” that appears uncontestable across different constituencies on the surface but disguises deep and often undeclared divisions of interest beneath’.3 The international obligations of non-State actors raise controversial issues which are essentially about power and control. A short discussion of these aspects of the international responsibility of NGOs will conclude this Chapter.

There is no generally applicable legal definition of NGOs. For the purpose of the article, a functional definition will be based on some of the international instruments that relate to NGOs. Thus, the concept of an ‘NGO’ is here understood as an organization which:

  • •  is ‘non-governmental’ in the sense that it is established by private initiative, it is free from governmental influence, and does not perform public functions;

  • •  has aims that are not-for-profit; if profits are earned, they are not distributed to members or founders but used in the pursuit of the NGO’s objective;

  • •  does not use or promote violence; and

  • •  has some sort of representative structure and usually, but not necessarily, a formal existence based on a statute.4

NGOs may be national or international and have diverse objectives and forms, including associations, charities, foundations, churches and religious congregations, non-profit corporations, and trade unions. No distinction will be made here on the basis of the organization’s objective, apart from the requirement that it is not-for-profit.

The term ‘non-governmental organization’, which was used in the UN Charter, is sometimes criticized for referring to these actors solely by what they are not, ie States.5 Through the designation ‘non-governmental’, NGOs are to a large extent excluded as irrelevant for international law and defined as belonging to the domestic sphere. This exclusion is precisely where their most important role lies, as it means independence from governments. That is also why the term is adequate in the context of inte rnational law.

(p. 345) (b)  State responsibility and NGOs

The Commentaries to the Articles on State Responsibility for Internationally Wrongful Acts (ARISWA) declare that:

The articles are concerned only with the responsibility of States for internationally wrongful conduct, leaving to one side issues of the responsibility of international organizations or of other non-State entities.6

The question of the international responsibility of non-State actors for their conduct is a different question from that of, and does not exclude, the responsibility of States. Nevertheless, as the basic structure of international responsibility, it is necessary to refer to the Articles in order to discuss the international responsibility of NGOs.

According to article 2 ARISWA, an internationally wrongful act of a State occurs when conduct consisting of an action or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. The most common way to address the issue of responsibility for the actions of an NGO would consequently be consider the issue of attribution.7 The Commentary to article 5 regarding attribution of the conduct of entities, which are empowered by the law of a State to exercise elements of governmental authority, explains that the term ‘entity’ reflects a wide variety of bodies,8 but this can apply only in virtue of their relation to the State itself.

However, the focus here is on the responsibility of NGOs themselves directly under international law. According to ARSIWA, there is an internationally wrongful act when conduct constitutes a breach of an international obligation. In that sense, international obligations may be regarded as the source of international responsibility. Thus, the international obligations of NGOs need to be examined before the question of their international responsibility can be addressed.

(c)  The composite legal status of NGOs

According to the traditional view on the subjects of international law, NGOs cannot have international obligations, at least not in a strict sense, as they are not subjects of inter national law. However, the dichotomy of subject and object will be put aside here as a simplification that can at best serve as a presumption, but that excludes too much information about a complex reality. It is interesting to note that, while the subject-object dichotomy is so often rejected, it is always referred to.9 This paradox can perhaps be explained by the lack of adequate concepts to describe the reality of often multifaceted situations. Here, the expression composite legal status(p. 346) will be used in order to describe the legal status of NGOs and non-State actors more generally. The point of this expression is to illustrate that, while States possess an international legal status which has the character of a totality or a monolith, the international legal status of non-State actors consists of different combinations of rights, obligations and capacities. The international legal status of such an actor is thus an aggregation of these different parts.

The composite legal status of NGOs, like that of most non-State actors (with a few exceptions, such as the International Committee of the Red Cross) consists of the rights, capacities etc which are expressly conferred on them, and cannot be inferred from a more general recognition of their role and status. Thus, in order to investigate the international legal obligations of NGOs, it is necessary to examine international treaties and other instruments and documents.

The obligations of NGOs under international law

While there are several examples of obligations placed on the individual in international criminal law, and on national liberation movements, armed opposition groups, and other non-State actors in international humanitarian law, the international legal obligations of NGOs are few. A few examples of obligations laid down in treaties will first be described below. Thereafter, other types of regulation through international instruments will be discussed, such as resolutions, agreements, and codes of conduct.

(a)  Treaties and other international instruments

As regards treaty law, examples of obligations of NGOs can be found in humanitarian law. The presence of international humanitarian organizations in situations of armed conflict have created a need for international law to adapt and encompass NGOs and other non-State actors in order to regulate their status, role, rights and obligations. The special status of the International Committee of the Red Cross (ICRC) in the context of the Geneva Conventions and their Additional Protocols is the clearest example of this. While some of these rules apply specifically to different bodies of the Red Cross and Red Crescent Movement, others refer to humanitarian organizations in general. There are several different terms used in the Conventions and Protocols to refer to NGOs, including ‘any other impartial humanitarian organization’; ‘body’; ‘other Voluntary Aid Societies’; ‘an organization which offers all guarantees of impartiality and efficacy’; ‘international religious organizations’; ‘any other organization giving assistance to prisoners’; ‘relief societies’, and ‘social or cooperative organizations’. In other words, diverse categories of NGOs are afforded rights, protection and, in some cases, obligations under international humanitarian law.

Perhaps the clearest example of obligations which may be placed on an NGO is expressed in article 10 of Geneva Convention I (with corresponding articles in other Geneva Conventions), where it is stated that the High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the Convention.10 In some situations, (p. 347) the role of protecting power can be taken on by a humanitarian organization. Article 10 also clarifies that whenever mention is made in the Convention of a Protecting Power, such mention also applies to substitute organizations in the sense of the article. The duties of a protecting power include, for example, safeguarding the interests of the parties to the conflict (article 8).11

Article 44 of Geneva Convention I regulates the use of the Red Cross emblem and the words ‘Red Cross’ or ‘Geneva Cross’, and thereby also the obligation not to use these symbols in any other way. According to the article, National Red Cross Societies and other Voluntary Aid Societies, duly recognized and authorized by their Governments, shall have the right to use the distinctive emblem conferring the protection of the Convention only within the framework of the provision.12

International labour law is another area where NGOs, or more specifically organizations of workers and employers, have a special role and status. In spite of the tripartite structure of the International Labour Organization (ILO), most ILO conventions address only member States, and the obligations expressed in conventions are imposed upon States. One of the Fundamental ILO Conventions, however, expressly imposes an obligation on organizations of workers and employers. Article 8(1) of the Freedom of Association and Protection of the Right to Organise Convention (No 87, 1948), provides that workers’ and employers’ organizations shall, like other persons or organized collectivities, respect the law of the land in exercising the rights provided for in the Convention.13 As these organizations do not have the opportunity to choose whether to ratify the convention or not, it can be observed that there is a flaw as to the source of the binding force of this obligation. However, this flaw is, to some extent, remedied by the fact that representatives of organizations of workers and employers participate in the drafting process within the ILO’s tripartite structure. Furthermore, the obligation is formulated in such a way that it has more the consequence of limiting convention rights than of creating actual obligations.

Although the UN Declaration on Human Rights Defenders is not a legally binding document, it is of some interest here as one of the few international instruments which formulates responsibilities for NGOs in general.14 Article 18 of the Declaration states:

… 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.

(p. 348) Further:

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.

The wording of these provisions is vague and—apart from the fact that the Declaration is not a binding document as such—expressions such as ‘important role’ and ‘responsibility’ are used rather than terms signalling a legally binding character, such as ‘duties’ or ‘obligations’. It should also be noted that it is stressed in the Preamble of the Declaration that ‘the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State’. Consistently with the general scepticism towards imposing obligations on individuals, and the fear that such obligations might be perceived as conditions for human rights, there were diverging views on the notion of responsibilities of human rights defenders during the preparatory work on the Declaration.15

(b)  Obligations of NGOs in co-operation with intergovernmental organizations

There are a number of international instruments which regulate arrangements for cooperation between NGOs and intergovernmental organizations (IGOs), such as the UN Economic and Social Council (ECOSOC), the ILO, the Organisation of American States, and the Council of Europe. Only a few of these will be examined below.

ECOSOC resolution 1996/31 specifies the consultative status of NGOs with ECOSOC with the purpose of enabling the ECOSOC and its subsidiary bodies to secure information or advice from NGOs with special competence and to enable NGOs to express their views.16 According to the provisions regarding suspension and withdrawal of consultative status, NGOs which have been granted consultative status ‘shall conform at all times to the principles governing the establishment and nature of their consultative relations with the Council’.17 Three main grounds are specified for suspension or withdrawal of consultative status. First, consultative status shall be suspended or withdrawn if an NGO:

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 Member States of the United Nations incompatible with those purposes and principles.

Secondly, suspension or withdrawal will take place if there is substantiated evidence of influence from proceeds resulting from internationally recognized criminal activities, such as illicit drugs or arms trade or money laundering. Finally, status may be suspended or withdrawn if, within the preceding three years, an organization did not make any positive or effective contribution to the work of the UN.18 In addition, there is an obligation for NGOs to submit to the Council Committee on Non-Governmental Organizations a quadrennial report of activities.19

The decision to suspend or withdraw consultative status is taken by the ECOSOC on the recommendation of its Committee on NGOs. The reports of the Committee demonstrate that the Committee’s considerations regarding applications and cases of possible (p. 349) suspension or withdrawal of consultative status are often controversial and politicized, which sometimes makes their obligations under the resolution unclear.20 The documents also demonstrate that failure of NGOs to meet the reporting obligation under the Resolution does in fact lead to suspension of consultative status.21

The ECOSOC arrangements are central in the respect of regulating access to a large part of the meeting rooms where important human rights decisions are taken, and also with regard to the high number of NGOs in consultative status (3,289 NGOs by September 2009). However, in terms of rights and duties, there are other examples where NGOs have a stronger status. One example is the Ramsar Convention on Wetlands,22 in the context of which the State parties work closely with four international NGOs. In 1999, these NGOs were given the formal status of international organization partners of the convention, and a fifth NGO has been given the same status subsequently.23 According to the Rules for conferring such status, the partnership organizations are to sign a Memorandum of Cooperation with the Bureau of the Convention, supplemented by work plans, where the responsibilities of each partner organization are specified.24 As an example it can be mentioned that under the Memorandum of Cooperation concluded with BirdLife International, BirdLife undertakes to perform a number of activities, such as to continue to help to stimulate and assist governments at national level with their reporting obligations and to assist countries to join the Convention.25 Article 3 explains that the Memorandum of Cooperation constitutes ‘an expression of a shared objective and vision’.26

An obligation of a more specialized type has been pronounced for NGOs acting as amicus curiae within the context of proceedings before the WTO Dispute Settlement Body.27 According to the Dispute Settlement Understanding, the parties to a dispute shall respect rules of confidentiality. In the case of European Communities—Export Subsidies on Sugar, the Panel decided not to consider an amicus curiae brief from an NGO because, inter alia, ‘it is based on confidential information and is thus evidence of a breach of confidentiality which disqualifies the credibility of the authors’. The Panel considered that, if the NGO—though not a party to the proceedings—wanted to be considered a ‘friend of the court’, it (p. 350) should have made every possible effort to respect WTO dispute settlement rules, including confidentiality rules.28

Several regional organizations have also adopted arrangements for participation or consultation with NGOs. For instance, according to the resolution regulating participatory status for international NGOs with the Council of Europe, NGOs with such status ‘shall undertake’ to furnish the different bodies of the CoE with information, documents or opinions and work to promote the respect of the CoE’s standards, conventions and legal instruments in the member States, and assist in the implementation of these standards.29 The participatory status of an NGO may be withdrawn if, for example, it has failed to comply with its obligations under the rules set out in the resolution, or if it has ‘taken any action which is not in keeping with its status as an international non-governmental organization’.30

Co-operation between NGOs and intergovernmental organizations, such as the Food and Agriculture Organization (FAO) and the World Food Programme (WFP), in respect of more specific projects, is also extensive. Although there are different types of agreements and instruments for regulating the IGO—NGO relations in such operations, these instruments often lack provisions on applicable law, and sometimes refer only to general principles of law. Disputes are often referred to arbitration. There are also examples of agreements which provide that the NGO shall apply a specific code of conduct. The Letters of Agreements used by the Food and Agriculture Organization (FAO) for regulating, for example, the provision of funds for NGO projects, are interesting due to the fact that they clearly spell out the obligations of the recipient NGO while being ‘governed by general principles of law, to the exclusion of any single national system of law’.31 Disputes are to be settled by arbitration under the UNCITRAL Arbitration Rules, and the parties to the agreement are bound by the arbitration award as the final adjudication of a dispute. In other words, the obligations laid down under these agreements can be described as being ultimately governed by international law, albeit the relationship is of a contractual nature. Other examples of similar documents include the field level agreements used by WFP and its partner NGOs.32

In sum, NGOs which enter into arrangements for co-operation and consultation with IGOs have to accept certain undertakings. These undertakings, or obligations, have binding force in the sense that breaches constitute a ground for the IGO to terminate its relation with the NGO. Some of the agreements, in particular those which regulate a specific project or operation, can be described as being of a bilateral and contractual nature, where the rights and obligations of each party have been formulated by them together. Other arrangements are of a different character in the sense that the instrument that regulates rights and obligations has been formulated and adopted by the member States of an IGO, without any voting rights for NGOs. The rules are the same for a vast number of NGOs, (p. 351) and the responsibilities placed on them sometimes include the obligation to respect more generally applicable instruments of international law, such as in the case of ECOSOC resolution 1996/31, according to which NGOs may not engage ‘in a pattern of acts contrary to the purposes and principles of the UN Charter’.

(c)  Codes of conduct

In order to enhance their accountability and legitimacy, NGOs often create joint standards for self-regulation, for instance in the area of humanitarian response. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief was elaborated in the mid-1990s by the International Federation of Red Cross and Red Crescent Societies and the ICRC with the co-operation of Caritas Internationalis, Catholic Relief Services, International Save the Children Alliance, the Lutheran World Federation, Oxfam, and The World Council of Churches.33 According to an ICRC official, the drafting of the code responded to a real need in a situation where there was a high rise of demand of humanitarian action and a corresponding increase in supply.34 Parallel to the growth of existing agencies, a host of new NGOs and other organizations were formed, and some organizations launched operations according to questionable ethical standards. By September 2009, the Code had been signed by 481 non-governmental humanitarian agencies.35

The Code is voluntary and ‘self-policing’; the signatories have not established any system for enforcing it other than by the will of the signatories. The purpose of the code is to ‘maintain the high standards of independence, effectiveness and impact to which disaster response NGOs and the International Red Cross and Red Crescent Movement aspires’. The code includes provisions on, for example, the ‘obligation to provide humanitarian assistance wherever it is needed’ (article 1), and states that ‘Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid is calculated on the basis of need alone’ (article 2). It is also declared that the signatories hold themselves accountable to both those the organizations seek to assist and those from whom they accept resources (article 9).

Although the Code of Conduct is a voluntary instrument for self-regulation, it does at the same time have a certain degree of normative force, especially for those NGOs that have undertaken to respect it as part of an agreement with an intergovernmental donor agency. According to some IGO—NGO agreements, the NGO ‘must’ comply with the Code, while in other cases, NGOs are ‘encouraged’ to do so.36 Codes of Conduct and similar self-regulatory instruments have also been formulated and adhered to by NGOs active in several other areas, such as the NGO Code of Conduct for Health Systems Strengthening (2008),37 the Code of (p. 352) Good Practice for NGOs Responding to HIV/AIDS (2004),38 and the Sphere Humanitarian Charter (original edition 1999, revised edition 2004).39

The international responsibility of NGOs

As has been shown above, NGOs have some, but not many, legally binding obligations under international law. The binding force of most of these obligations have their source in an active decision of the NGO to accept them, by entering into an agreement, seeking consultative or partnership status with an IGO, acting as a humanitarian organization in the meaning of the Geneva Conventions, or by signing an instrument for self-regulation. In these cases, it is the instrument and relationship in question which decide the method for determining whether a breach of the obligation has taken place, and what will be the consequences. In other words, the obligations and responsibilities are a bilateral matter, in contrast to the rules on State responsibility, which define the responsibility of States generally, with no possibility for them to ‘opt out’ of the system. Thus, the limited and consent-based system of international responsibility for NGOs can and should be clearly distinguished from the general and obligatory rules on State responsibility.

The ‘war against terrorism’ has, however, blurred the difference between these two categories. The UN Security Council has increasingly been using targeted sanctions, for example freezing individual bank accounts, the prohibition of entry or transit through a State’s territory or the prohibition of the sale of arms and related material. Although States are the direct addressees of the obligations created by these resolutions, the targeting of the sanctions towards specific individuals and entities leads to responsibility for them directly under international law.40 These international sanctions may also entail responsibility for NGO-like entities, even in cases where their association with terrorism has not been proven in court.

A related development is the one taking place within the intergovernmental Financial Action Task Force (FATF). According to FATF Special Recommendation VIII on nonprofi t organizations (NPOs), countries should review the adequacy of laws and regulations that relate to entities which can be abused for the financing of terrorism.41 In the interpretative note to the recommendation, the more specific meaning of recommendation VIII is partly expressed as direct obligations for NPOs (‘NPOs should …’).42 Through regular evaluations of its member States, FATF seeks to ensure that these obligations are put into practice.

Apart from these examples, however, the main rule for NGOs is that international obligations and responsibilities are accepted and taken on by NGOs themselves. There are good reasons for not bestowing international legal obligations on NGOs as these organizations are defined here, ie as organizations that do not use or promote violence. First, obligations must to some extent be balanced by rights and power. Even if the rights, capacities and possibilities of NGOs to for example act before international courts, co-operate with (p. 353) IGOs, and exert influence on international law- and decision-making are considerable, the international legal status of NGOs and non-State actors in general cannot be compared to that of States.43 For instance, NGOs are not parties to treaties which lay down international legal obligations and have little power over the development of customary international law. Further they have no access as parties to the International Court of Justice. To pronounce legally binding obligations for NGOs, without providing them with the option of accepting or refusing them, or to challenge how these texts are interpreted in court, would create an unbalanced legal system.

Second, despite of their important and influential international role, NGOs depend on States to a large extent. States create and control the domestic legal systems where NGOs have their bases, and often provide funding. If NGOs were to comply with a system of rules laying down international obligations, some States would be likely to use this avenue for challenging and attacking NGOs, which could obstruct their possibilities to work freely and effectively. This risk is clearly illustrated by the discussions held in the ECOSOC Committee on Non-Governmental Organizations.

The growing demands of NGO accountability and responsibility can be met in other ways. NGOs already need to comply with the duties formulated as part of their relationship with IGOs. In addition, the methods for self-regulation seem to be growing and include codes of conduct and good practices, international accountability standards and NGO certification mechanisms.44 When IGOs in their agreements with NGOs refer to or require NGOs to comply with self-regulatory instruments, the normative force of these instruments increases.

A parallel trend has characterized the role and discussion regarding the responsibilities of transnational corporations (TNCs). One aspect of this trend is the growing interest in and use of codes of conduct and other mechanisms for corporate social responsibility.45 In a report of the Special Representative on human rights and TNCs and other business enterprises, the corporate responsibility to respect human rights is discussed:

Whereas governments define the scope of legal compliance, the broader scope of the responsibility to respect is defined by social expectations—as part of what is sometimes called a company’s social licence to operate. The corporate responsibility to respect exists independently of States’ duties. Therefore, there is no need for the slippery distinction between ‘primary’ State and ‘secondary’ corporate obligations …46

The Special Representative has also drawn attention to the concept of ‘shared responsibility’, drawing on the work of the political philosopher Iris Marion Young. This concept recognizes that the challenges arising from globalization are structural, and that they involve governance gaps and governance failures. Accordingly, they cannot be resolved by an individual liability model of responsibility alone, which requires a coherent model focused on realigning the relationships among a wide range of actors, including States, corporations (p. 354) and civil society. This line of thinking is relevant for several global challenges today, such as respect for human rights, transboundary environmental harm, and the need for systems which can ensure the legality and legitimacy of humanitarian responses.47

Finally, it should be observed that the often perceived lack of international personality or ‘subjectivity’ of NGOs is not in itself an obstacle for international legal responsibility to embrace them. As demonstrated, for example by international humanitarian and criminal law, the composite international legal status of NGOs and other non-State actors consists of no more and no fewer parts than the international (State) community finds useful. Legal concepts are mostly created to explain, express, or sometimes enable a political will, rather than the other way around. If the State community finds it useful to keep the main dimension of NGOs’ personality and activity within the domestic sphere, which is currently its most likely agenda, it will do so. There are good reasons for limiting the international legal obligations of NGOs to those which are accepted by their own independent decisions and to the requirements of national legislation. However, the day that the State community considers it necessary to increase the international responsibility of NGOs, such a responsibility will be created, and the notions of subject and object will become even more obsolete than they are already. Or, as Groucho Marx could have said: those are my concepts, and if you don’t like them … well, I have others.48

Further reading

  • RB Bilder, ‘What NGO Accountability Means—And Does Not Mean’ (2009) 103 AJIL 170
  • A Clapham, Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006)
  • S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 348
  • L Jordan & P van Tuijl (eds), NGO Accountability, Politics, Principles and Innovations (Earthscan, London, 2006)
  • A-K Lindblom, Non-Governmental Organisations in International Law (Cambridge, CUP, 2006)
  • E Roucounas, ‘Non-State Actors: Areas of International Responsibility in Need of Further Exploration’, in M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (The Hague, Martinus Nijhoff, 2005), 391
  • L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge, CUP, 2002)

Footnotes:

For a description of the debate and how it has evolved, see RB Bilder, ‘What NGO Accountability Means—And Does Not Mean’ (2009) 103 AJIL 173, and L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 9–13.

Some writers distinguish between external and internal accountability, see S Charnovitz, ‘Accountability of Non-Governmental Organizations in Global Governance’, in L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 33. Accountability is also discussed in relation to different stakeholders and as ‘social accountability’, ‘downward accountability’, and ‘accountability from above’: ibid, 53–55.

L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), viii.

See eg Recommendation C M/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organizations in Europe, 2007, and E/RES/1996/31. It can be observed that this definition differs from the one used by Charnovitz, who includes the more normative element that NGOs should pursue interests that cross or transcend international borders, like the definition used in the draft convention elaborated by the Union of International Associations in 1923: S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 350.

Art 71 of the UN Charter states that ‘The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence …’

Introduction to Commentary, para 5. This explanation is made in relation to arts 57 and 58 regarding the responsibility of intergovernmental organizations and of individuals.

See however, regarding the need to attach some non-State actors more directly to international law for the sake international responsibility, E Roucounas, ‘Non-State Actors: Areas of International Responsibility in Need of Further Exploration’, in M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (The Hague, Martinus Nijhoff, 2005), 404.

Commentary to art 5, para 2. It is also stated that: ‘[i]n theory, the conduct of all human beings corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government’: Commentary to art 5, para 2.

Rosalyn Higgins has declared that the notion of ‘subjects’ and ‘objects’ is an ‘intellectual prison’: R Higgins, Problems and Process, International Law and How We Use it (Oxford, Clarendon Press, 1994), 49. See also S Charnovitz, ‘Accountability of Non-Governmental Organizations in Global Governance’, in L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 33, and Jan Klabbers, who describes personality and subjectivity as descriptive notions that are normatively empty, as neither rights nor obligations flow automatically from a grant of personality: J Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge, CUP, 2009), 51.

10  Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 31.

11  It can be questioned in relation to such obligations if and how non-State actors—and in this case non-parties to the conflict—can be bound by treaties to which they are not parties, and the question is not unproblematic. The explanation of the ICRC Commentary is that the commitment made by a State applies also to any established authorities and private individuals within its territory, C Pilloud et al (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (The Hague, Kluwer Law International, 1987), 1345. For a thorough discussion on the origin of obligations of armed groups under inter-State treaties, see L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge, CUP, 2002), 155ff.

12  The Commentary explains that Governments may authorize societies other than the Red Cross Societies to assist the medical service, and that these societies, even when they have no connection with the National Red Cross, are entitled both in peacetime and in wartime to use the red cross sign. J Pictet, Commentary on the Geneva Conventions of 12 August 1949, Volume I (ICRC, Geneva, 1952), 328.

13  International Labour Organization, Convention (No 87) Concerning Freedom of Association and Protection of the Right to Organise, 1948.

14  GA/RES/53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 1999.

15  E/CN.4/1997/92 and E/CN.4/1998/98.

16  E/RES/1996/31, para 20.

17  Ibid, para 55.

18  Ibid, para 57.

19  Ibid, para 61(c).

20  See eg E/2009/32, Parts I and II, E/2006/32 (Part I) and E/2000/88.

21  E/2009/32 (Part II), pp 9–12.

22  Convention on Wetlands of International Importance especially as Waterfowl Habitat; Ramsar, 2 February 1971, UNTS No 14583; as amended by the Paris Protocol, 3 December 1982, and Regina Amendments, 28 May 1987.

23  Resolution VII.3 (1999), Partnership with International Organisations. The decision regarding the fifth NGO was taken through the adoption of Resolution IX.16 (2005).

24  Annex to the resolution VII.3 (1999), para 4.7.

25  Memorandum of Cooperation between Ramsar and BirdLife International, 9 March 2005.

26  Another example of close co-operation between governmental and non-governmental bodies on the international plane is the International Organization for Standardization (ISO), which is a federation of 140 national standard institutes that develops international standards to facilitate trade in goods and services. Each national body is the ‘most representative of standardisation in its country’ and may comprise different combinations of governmental and non-governmental participants. For a thorough and structured description of the status of NGOs in international bodies, see Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience, study by Ecologic and FIELD, 2002.

27  The Agreement Establishing the World Trade Organization (Article V:2) explicitly empowers the WTO to engage with NGOs. However, the General Council decided in 1996 to transfer the main responsibility for contacts with civil society to the national level. As a result, NGOs do not have consultative status in any WTO bodies, even if there are other types of contacts, especially with the Secretariat.

28  European Communities—Export Subsidies on Sugar. Complaint by Brazil, Report of the Panel, 15 October 2004, WTO Doc WT/DS266/R, paras 7.82–7.85.

29  Committee of Ministers, Resolution Res (2003) 8, Participatory status for international non-governmental organisations with the Council of Europe, Appendix, para 9.

30  Ibid, para 16. A document from 2005 describes the withdrawal of the participatory status of 31 NGOs on the ground of ‘i.e.’ failure to submit a biennial report for the period 2000–2002, SG/Inf(2005)01, 18 January 2005, para 7.

31  FAO Standard Letter of Agreement, clause 3(f).

32  How to Work with WFP—Manual, A Handbook for Non-Governmental Organizations (NGOs), December 2005, 73–78, Annex 1: Field Level Agreement Template.

33  (1996) 310 International Review of the Red Cross 55–130, annex VI.

34  Bruce Biber, Deputy Head of Division of the ICRC’s Policy and Cooperation within the Movement, The Code of Conduct: humanitarian principles in practice, Focus article on the ICRC website, 20 September 2004.

35  A list of signatories is posted on the website of the International Federation of Red Cross and Red Crescent Societies.

36  Some memoranda of understanding used by WFP state that the NGO ‘must’ follow the code while some local agreements state that the NGO is ‘encouraged’ to do so. The difference may be due to the fact that memoranda of understanding are often not legally binding, while the local contracts are.

37  The NGO Code of Conduct for Health Systems Strengthening, 2008, updated in 2009, available at <http://www.ngocodeofconduct.org>.

38  Code of Good Practice for NGOs Responding to HIV/AIDS, 2004, available at <http://www.hivcode.org>.

39  Sphere Humanitarian Charter, 1999, revised in 2004, available at <http://www.sphereproject.org>.

40  See eg SC/RES/1483 (2003), SC/RES/1532 (2004), SC/RES/1735 (2006) and SC/RES/1822 (2008).

41  FATF, Special Recommendation VIII on non-profit organisations, 2001.

42  FATF, Interpretative Note to Special Recommendation VIII: Non-Profit Organisations, 2006, section b.

43  The legal status of NGOs has been more elaborately described in A-K Lindblom, Non-Governmental Organisations in International Law (Cambridge, CUP, 2006).

44  For information on different initiatives on national, regional and global level, available at <http://www.oneworldtrust.org>.

45  Expressed in eg the OECD Guidelines for Multinational Enterprises (reviewed version 2000) and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted already in 1977. See also A Clapham, Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006), 199ff.

46  A/HRC/8/5 (2008), paras 54 and 55.

47  Report from Workshop on Attributing Corporate Responsibility for Human Rights under International Law, New York University, 2006, p 8.

48  Originally: ‘Those are my principles, and if you don’t like them … well, I have others.’