3.2.3. Civil society

Civil society and the private sector are the two classes of non-state actor recognised by the United Nations as stakeholders in Internet governance. As such, there is much in common between them, and much that has been written in the previous section is applicable to civil society also.

However the sense in which the phrase “civil society” is generally used in relation to the international system differs somewhat from its usage elsewhere. First, it refers to organised civil society, rather than to civil society at large. It is possible that civil society at large may in some circumstances qualify as an international actor in its own right; for example, in 1992 the UN Security Council authorised action on behalf of civilian populations of Somalia.[1] Also, the IGF allows for the participation of individual actors from civil society, who need have no particular institutional affiliation other than with the IGF itself. However these are exceptions to the usual rule that the participation of civil society in the international system occurs only through organised groups.

Second, “civil society” ordinarily refers to global (or transnational[2]) civil society, rather than domestic civil society. Hence it is the more precise meaning of organised, global civil society that will be referred to when the term “civil society” is used here, and NGO will be used where appropriate as the singular form.[3]

Once understood as NGOs, the characteristics of civil society participants in the development of international law may be further narrowed by the following factors:

Some would add an additional criterion to the list given above: that they act politically. Civil society traditionally represented the group of citizens who upheld the rule of law of a state, and from amongst whom new regulatory authorities and arrangements might emerge.[5] This constriction would exclude for example cultural or sporting organisations. It is difficult to understand why the definition needs to be so restricted, as it has not been suggested that the involvement of the private sector in the international system should be similarly conditioned. Moreover, it could be said that any NGO that seeks a voice in the international system will be acting politically by definition.

It has also been suggested that NGOs with a positively illiberal programme, such as Hizb ut-Tahrir[6] that have been linked to international terrorism, should be excluded by limiting the definition of civil society to those groups that provide a “civilizing process”[7] and excluding “uncivil society.”[8] This particular question is a thorny one that raises questions about how cultural differences should be treated in international law, and will be revisited at Section 3.4.3.3.

3.2.3.1. Civil society’s influence on international law

Much like the private sector, civil society has been active in influencing the development of international law since the 18th century, particularly in areas such as the abolition of slavery, the pursuit of peace, worker solidarity and free trade.[9] Civil society was even central to the development of the international law of intellectual property, with the Berne Convention having been drafted by governments based upon the proposals of the International Literary and Artistic Association, a civil society organisation headed by Victor Hugo.[10]

Civil society remains active in influencing the shape of international law today. For example, civil society’s participation has been central to the success of climate change negotiations,[11] the prohibition of commercial whaling,[12] and the establishment of the International Criminal Court.[13] The 1997 Mine Ban Treaty,[14] now signed by over 150 states, was also largely the product of civil society action.[15] In working on such issues across national boundaries, transnational NGOs have participated in international negotiations directly rather than through the intermediation of governments. As Charnovitz puts it, “[i]t is illogical to tell an NGO like the ICC or the International Confederation of Free Trade Unions to channel its concerns through its own government. Such an instruction negates the purpose of the organization.”[16]

Thus civil society has won permanent representation at a variety of intergovernmental organisations and conferences, including the World Bank’s Panel of Inspection hearings on environmental issues, and to a limited degree, WSIS.[17] At the United Nations Conference on the Human Environment held in Stockholm, Sweden in 1972, there were more NGO representatives present than governments, and by 1987 in Montreal they were not merely observing but addressing plenary sessions in their own right.[18]

Perhaps the high water mark in this evolution was reached in 1992 with the Rio Declaration on Environment and Development, principle 10 of which recited that “[e]nvironmental issues are best handled with participation of all concerned citizens, at the relevant level.” Upon this base, the Aarhus Convention was established in 1998 to set minimum standards for the inclusion of the public in international environmental governance.[19]

In 1994, then Secretary-General Boutros Boutros Ghali had addressed NGOs in the following terms:

I want you to consider this your home. Until recently, these words might have caused astonishment. The United Nations was considered to be a forum for sovereign states alone. Within the space of a few short years, this attitude has changed. Non-governmental organizations are now considered full participants in international life.[20]

As catalogued by Charnovitz, there are no fewer than ten ways in which NGOs can participate, and have historically participated in intergovernmental organisations.[21] These range from the utilisation of the NGO on an advisory panel or as a delegate to an international conference, through to allowing it full membership of the organisation. The 2004 Cardoso report on UN–Civil Society recommended to the UN that it “should embrace an array of forums, each designed to achieve a specific outcome, with [civil society] participation determined accordingly.”[22]

Taken a step further, whilst normally civil society’s actions merely contribute to the formation of international law that must in the end be created by agreements between states,[23] there are cases in which NGOs have negotiated agreements with governments in their own right. For example, principles of the Declaration of Panama regarding tuna fishing standards were negotiated between a group of five environmental NGOs and Mexico in 1995, before being signed by eleven other governments.[24] Greenpeace also negotiated an agreement with France over damages to be paid to Greenpeace for the sinking of the Rainbow Warrior.[25]

Taken a step further still, civil society’s role in international public policy governance can bypass governments altogether. For example, it was civil society, including AIDS activists and organisations such as Doctors Without Borders/Médecins Sans Frontières, that were largely responsible for pharmaceutical companies agreeing to reduce the price of AIDS drugs to Africa and other third world regions during 2000–2001.[26] This was a case in which the private sector and civil society together achieved a public policy outcome without state intervention at all.

Civil society’s effectiveness in influencing the shape of international law has only continued to increase through the use of technologies such as the Internet,[27] which have assisted the growth of social movements and action groups in civil society and given given them a louder voice in policy networks,[28] by making it easier and less expensive for them to mobilise resources and constituents.

3.2.3.2. ECOSOC

Although most of the bodies and specialised agencies of the United Nations have regular dealings with NGOs, by far the largest number of NGOs that collaborate with the United Nations do so within the UN Economic and Social Council. Article 71 of the Charter of the United Nations states that ECOSOC

may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

A framework to give effect to Article 71 was first entered into by resolution of ECOSOC in 1950, which has been amended twice by further resolutions in 1968 and 1996.[29] The 1996 resolution (“the resolution”) seeks to achieve “a just, balanced, effective and genuine involvement of non-governmental organizations from all regions and areas of the world.”[30]

An NGO may apply for consultative status to the ECOSOC Committee on NGOs if it satisfies the criteria set out in the resolution, including having been registered for at least two years, having an established headquarters, and not having been established or primarily funded by government.[31] The Committee, which is composed of 19 member states and meets twice per year, may then recommend to ECOSOC that it admit a qualifying NGO to consultative status in one of three tiers; general, special and roster.[32]

NGOs in the general tier may propose items for the provisional agenda of meetings of ECOSOC, submit written statements of up to 2000 words for circulation (if longer, a summary will be circulated), and request opportunities to make oral presentations. NGOs in the special tier may submit statements of up to 500 words in their fields of speciality for circulation, and the ECOSOC Committee on NGOs may also recommend to the Council that they be permitted to make oral presentations in those fields. All tiers of NGOs may attend public meetings of ECOSOC as observers, but those on the roster tier only when the meeting concerns matters within their field of competence.[33]

ECOSOC was careful to state in its 1996 resolution that “the arrangements for consultation should not be such as to accord to non-governmental organizations the same rights of participation as are accorded to States,” and that “arrangements should not be such as to overburden the Council or transform it from a body for coordination of policy and action, as contemplated in the Charter, into a general forum for discussion.”[34]

Notes

[1]

Security Council of the United Nations, Resolution 794 (1992)

[2]

Held, David, Law of States, Law of Peoples (2002), 44—“transnational” is often used in contrast to “international” respectively to differentiate the actions of non-state actors across borders from those of states.

[3]

See Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 188

[4]

Gordenker, Leon & Weiss, Thomas G, Pluralizing Global Governance: Analytical Approaches and Dimensions (1996), 20–21.

[5]

Lipschutz, Ronnie D & Mayer, Judith, Global Civil Society and Global Environmental Governance (1996)

[6]

See http://www.hizb-ut-tahrir.org/.

[7]

See eg Elias, Norbert, The Civilizing Process: State Formation and Civilization (1982).

[8]

Cardoso, Fernando H, Civil Society and Global Governance (2003), 5

[9]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 191–194

[10]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 201

[11]

See Matthews, Jessica T, Power Shift (1997).

[12]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 263

[13]

See eg the Coalition for the International Criminal Court, at http://www.iccnow.org/.

[14]

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 Sep 1997, 1999 ATS No 3 (entry into force for Australia 1 Sep 1999) (Mine Ban Treaty)

[15]

Cameron, Maxwell A, Global Civil Society and the Ottawa Process: Lessons From the Movement to Ban Anti-Personnel Mines (1999)

[16]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 276

[17]

See Section 5.1.

[18]

Perritt Jr, Henry H, The Internet is Changing the Public International Legal System (2000), 899; Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997) , 262

[19]

UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 Jun 1998, 1998 SD No 46 (entry into force 30 Oct 2001) (Aarus Convention)

[20]

United Nations Non-Government Liaison Service, NGLS Roundup, November 1996 (1996)

[21]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 281

[22]

Cardoso, Fernando H, Cardoso Report on Civil Society (2004), 33

[23]

Detter, Ingrid, The International Legal Order (1994), 177.

[24]

Scott, Michael, The Tuna-Dolphin Controversy (1996)

[25]

Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997), 265

[26]

Kobrin, Stephen J, Economic Governance in Global Economy (2002), 65

[27]

Slaughter, Annie-Marie, Government Networks: the Heart of the Liberal Democratic Order (2000), 200; Perritt Jr, Henry H, The Internet is Changing the Public International Legal System (2000) , 899

[28]

Deibert, Ronald J, Altered Worlds: Social Forces in the Hypermedia Environment (1998), 6

[29]

See generally Willets, Peter, Consultative Status for NGOs at the UN (1996).

[30]

ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996), paragraph 5

[31]

ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996), paras 9–13

[32]

These are described in ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996). In 2007 there were 136 NGOs in the general tier, 1955 in the special tier and 960 on the roster tier.

[33]

ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996), paras 28–32

[34]

ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996), paras 18 and 19