Report by Marcel Merle (Professor at University Paris-1)
Appendix 3.5 of the International Associations Statutes Series vol 1, UIA eds (1988)

The following report by Marcel Merle (Professor at University Paris-1) was presented to the "Colloquy on the role of international non-governmental organizations (NGOs) in contemporary society" (Strasbourg, February 1983), organised under the auspices of the Parliamentary Assembly of the Council of Europe (1).

Introduction

It would be difficult to imagine an intellectually more stimulating subject than the one proposed here for our study. It has its roots in a long and varied history and leads on to the most topical and concrete problems of world structure and organisation. Our task is no less than to identify the future foundations and principles of the relations, in international life, between private enterprise and the action of public authorities in the form of states and intergovernemental organisations. But however fascinating the subject of the debate may be, any solution to the problem is, as it always was, extremely difficult to find, not only because it implies a network of technical procedures very hard to conceive and equally hard to implement and co-ordinate, but above all because any change in the existing legal structures has political implications, whether we like it or not, which cannot be overlooked by any of the parties concerned.

It will be a good thing to recall certain well-known facts in order to determine more accurately the dimensions of this question. To judge by certain examples such as the religious orders, or the trade leagues linking the large medieval cities, the private sector frequently preceded the public sector in international activity. But from the 16th century, with the appearance and growing strength of modern European states, the nature of the problem was to change radically. Where a political authority invokes sovereignty to justify the exercise of exclusive powers over all persons living in or entering the territory it claims to control, the network of private transnational relations is obviously threatened. But as the claims of sovereign states were still less extensive than their means of action, people and ideas continued to circulate across frontiers. We only have to consider the cosmopolitanism of intellectuals in the Age of Reason or the influence of philosophical societies whose membership spread over several countries (eg Freemasonry) to realise that, despite gradual reinforcement of state power, considerable room remained for private enterprise. In the 19th century neither the Holy Alliancenor the Concert of Europe managed to stifle the spread of liberal movements across frontiers, the emergence of international workers' movements or the appearance of humanitarian organisations (eg the Red Cross).

Today in a strange way both these traditional tendencies have become stronger. On the one hand, the nation state has become a universal model of society and now occupies all the living space available. The surface of the earth is therefore more compartmentalised than ever before in the course of history. Intergovernmental organisations provide the ideal means of dialogue or confrontation between sovereign states. On the other hand, the tendency to form international associations has, since the beginning of the century, grown at unprecedented speed as shown by the statistics of the Union of International Associations. There were a few dozen NGOs at the beginning of the century and today in 1987 there are several thousands. This proliferation may be put down to a number of factors which we could sum up under the heading "the shrinking world" -breathtaking progress in communications in every field, speeding-up of international exchange of all kinds, increased inter-penetration of activities, blurring of the former sharp distinction between home and abroad through the number and complexity of interrelated activities.

The increase in the number of NGOs would in itself suffice to show that governments have at least shown tolerance towards them. But a new form of co-operation between the "public sector" in international society was introduced with the creation of "consultative status", inaugurated by Article 71 of the United Nations Charter and adopted in similar forms by numerous other intergovernmental organisations.

So considerable progress has been made in our field over the last half century. But the process of evolution is always characterised by stoppages and difficult passages. The international association movement is today making such strong demands that it is no longer content with tolerance on the part of governments and feels uneasy, confined within the limits of "consultative status". At both levels of activity NGOs remain subject to constraints which hamper the freedom of movement to which they aspire. It remains to be seen whether the granting of genuine international status would truly help lighten these constraints.

NGOs and the states

Under present public international law only states are able to occupy and administer the inhabitable parts of the earth's surface. Thus intergovernmental organisations are obliged, if they wish to occupy a given point on the globe, to make "headquarters agreements" with the government on whose territory they have chosen to settle. As they have no territorial basis NGOs are bound, in order to function, to take refuge in the territory of one of some 160 states which control the earth's surface. As a result they are subject to the regulations andjurisdiction of the authorities which agree to have them. A major contradiction at once emerges between an NGO's international vocation, which is its raison d'être, and the national legal status in which it is confined.

It would require a huge inventory and encyclopaedic knowledge to describe and compare the various kinds of legislation which the 160 countries of the world apply to NGOs. Even on the assumption that a great many countries give little attention to the question of associations and bestow their favours above all on "private" organisations whose real purpose is to mould and indoctrinate the population according to the instructions of the powers-that-be, the list of states in which the problem of the status of NGOs truly arises is too lengthy to allow of systematic comparison, especially in a short report of this kind. A typology will help here.

In practice there are only three possible solutions to the problem of the national status of NGOs:

The discrimatory system whereby the establishment and operation of NGOs is made subject to conditions more restrictive than those applied to national associations. Until 1981 this was the French solution since, under the terms of a decree of 1939 (issued in the climate of growing peril in Europe), associations deemed to be "foreign" on account of the composition of their governing bodies, could not be created without prior authorisation and could be dissolved by a simple administrative decision. However, this retrograde, vexatious legislation was applied in a liberal manner. The best proof is the fact that France has always been, and still is the country with the highest number of NGO headquarters. This remark is not intended to justify the situation but it does show -and it would be quite wrong of us to forget this fact here or elsewhere - that there can often be a wide gap between law and reality.

Application of the general law This is the system whereby NGOs are purely and simply assimilated in status to national associations as regards both the conditions of formation and dissolution and the rules under which they operate. This is, in my experience, the situation in countries with a liberal tradition; it is the situation now in France since the Act of 9 October 1981 repealed the legislative Decree of 1939. Thus an NGO may now be created and form an association on French territory simply by means of a "declaration published in the Official Gazette (Journal Officiel)". Once declared the NGO enjoys the same rights as any other association set up in France by French nationals.

Abolition of the discriminatory system does, quite clearly, constitute progress. But is does not solve the problems facing NGOs - far from it. Although based on liberal principles, French legislation on associations contains a whole series of restrictions which turn NGOs into second-class legal entities in comparison with commercial companies or trade unions. The same is true in most countries. Thus the principle of assimilationsubjects the NGOs to the same restrictions as all the national associations with which their lot is bound up.

ut the most serious drawback to this arrangement is that it does not meet the specific requirements of NGOs which have to do, essentially, with their relations with individual members or sections beyond the frontiers. For example the introduction of rigorous exchange control has no effect on the running of a French anglers association but can paralyse the financing and thus the activities of an international NGO.

Preferential status This is the system set up in the well known Belgian Act of 25 October 1919 which still serves as a reference point in this question (see Appendix 6). With the aim of encouraging the establishment of NGOs in Belgium territory the Act recognises them as corporations even when they are composed of non-Belgian nationals, provided that one of their directors is a Belgian national. Its provisions are more flexible than those of French legislation concerning property rights and donations. But nonetheless prior authorisation is required and fairly strict requirements are imposed concerning the drafting of the statutes.

In fact the most audacious provision of Belgian legislation concerns recognised rights in Belgian territory, of international associations with headquarters in another country (2). This measure which has no parallel in other legislations, has the advantage of conferring rights on an extraterritorial private entity. If a similar measure were adopted by the legislation of other countries it would effectively solve many problems and open the way to multilateral "transnationality", without there being any need to introduce an international status worked out by all the governments.

But the fact is that the Belgian example has not been followed and it seems unlikely that it will be in the near future (3). The unilateral granting of preferential status, even if combined with facilities to NGOs established in other countries, solves only part of the problem of the functioning of NGOs. In the most developed version (the Belgian Act) national legislation can go so far as to recognise, within the national territory, the validity of activities whose origin is outside their frontiers but it cannot and will never be able, without the consent of foreign states, to control those same activities beyond the limits of national territory.

But the problem raised by the existence and functioning of NGOs is precisely how to escape the constraints of the legislation of the host state and how to find in one form or another the legal means of gaining recognition and respect for the specific nature of their activities. Unless we can hope for a sudden unanimous conversion of all states thoughout the world to the position adopted by Article 8 of the Belgian Act recourse to national legislation will remain ineffective. The hypothesis of a sudden conversion of that kind is the more improbable as apart from the major obstacle of territorial sovereignty, account must be takenof the factors of state interest, public order and the defence of economic interests. It is these considerations which also explain, as we shall see below, the reticence of governments with regard to the preparation of an international status for NGOs.

NGOs and IGOs

This question has already been commented on so abundantly that one hesitates to deal with it in a few lines. But an explanation of the situation is both feasible and necessary.

The granting of "consultative status" to a great many NGOs by the UN, its specialised institutions and several regional organisations, obviously constitutes considerable progress as compared to the situation at the time of the League of Nations. Although commentaries on the question are too often not supported by statistics and factual research defining the extent of the phenomena, there is little doubt that the consultation machinery and, especially, practical co-operation in the field have resulted in an unprecedented dialogue between governments acting collectively and vast sectors representing numerous currents of opinion throughout the world.

But while we many take note of this progress we can still cast a critical eye on the limits of the evolution that has been taking place around us over the last 36 years or more.

1. "Consultative status" is at present granted only to a minority of NGOs (approximately 600 of the 4,000 listed by the UAI). The majority are thus excluded and cannot enjoy the advantages of this status.
2. The term "consultative status" is ambiguous, to say the least. It simply governs relationships between a given IGO and a given NGO and does not confer any right on an NGO capable of being exercised before any other national or international authority. The fact of belonging to that category of privileged bodies does provide a kind of badge of respectability and leaders of NGOs are jealously devoted to the granting and maintaining of such status, but access to consultation has only limited effects and under no circumstances can it amount to legal status in the full meaning of the term.
3. The three levels of consultation which have been introduced in most IGOs establish a new form of discrimination among NGOs. In fact most of them are confined to a role of recipient of information from the IGO and are legally powerless to take any effective part in consultation.
4. "Consultative status" is "granted" at the discretion of IGOs and may be withdrawn on the same basis. We may refer here to incidents that occurred in the Economic and Social Council at the end of the 60s or in UNESCO in the 70s in order to show the tendency of IGOs to demand a sort of ideological conformity on the part of their "consultants". Insofar as the question involved is observance of the statutes of the IGO, conformity may be a legitimate requirement; but this is less the case when it isimposed, in individual cases, by temporary majorities in connection with political disputes between member states. If tendencies of this sort were to predominate in future the very basis of co-operation between NGOs and IGOs would be threatened and NGOs would be simply left with a choice between withdrawal from the consultative system or complicity in manoeuvres in contradiction with their own aims.
5. For these various reasons the "consultative status" offered and controlled by IGOs cannot give NGOs the protection or guarantees they need in order to carry out, in complete independence, the functions which they have assumed.

NGOs and international status

To fill the gaps arising from the juxtaposition of the various national provisions and strengthen the position of the NGOs vis-à-vis the IGOs, there is only one solution - it is to give NGOs an international status guaranteeing them minimum rights and a degree of freedom of action vis-à-vis the various national or international authorities with which they have relations.

This is no new idea and has already given rise to a whole series of proposals, some of which have taken the form of conventions ready to be signed by the states (4). Backed by the authority of theseexperts the NGOs have made numerous representations to IGOs, so far without success. If we consider the reasons for this failure we shall be better able to understand the remaining obstacles.

1. As it stands, international law allows only states to make rules of law, including those which confer legal personality and legal capacity on entities other than themselves (cf the opinion of the ICJ in the Bernadotte case on the legal personality of the UN). The instinct of self-preservation ensures that states are somewhat disinclined to grant legal personality and legal capacity to private organisations when this might prejudice their own authority.
2. Supposing that this obstacle were removed, it would still be necessary to decide in what framework and under whose jurisdiction this status could be prepared. Ideally, one might think in terms of a universal conference, possibly under the patronage of an organisation such as the United Nations. In view of the varying nature of the political systems involved and the fact that each "camp" has diametrically opposed conceptions of the role of private enterprise, the likelihood of agreement in this context is practically nil.
3. In theory, the task is easier in regional organisations (such as the Council of Europe) because there is a minimum of consensus among members on the importance of private enterprise in developing international co-operation. Supposing that the undertaking did succeed it would produce a status whose scope would, necessarily, be restricted to the territories of the member states. That would in itself constitute a considerablestep forward; but it would not in any way solve the questions raised by the existence of world-wide NGOs which, beyond the frontiers of western Europe, would come up against the same old obstacles.
4. As far as states are concerned, NGOs form a genuine nebula including both giants and dwarfs. But the differences in size and power are not the only ones. Experts well know that the label NGO covers a wide variety of articles - from the scientific or humanitarian association whose activities are presumed to be beneficial, to so-called "professional associations" which frequently mask powerfully organised interests. To grant them all the same status and privileges (conferring exemptions from the ordinary law, particularly with regard to taxation, customs, labour regulations etc) would be tantamount to giving identical treatment to a learned or charitable society and to the directors of a multinational company or consortium. Experts also realise that though the activities of most NGOs benefit society as a whole the term international association sometimes serves to cover up subversive or terrorist activities which can threaten internal security. The danger of infiltration of that sort would be increased if members of such an organisation could claim privileges deriving from an international status (5) vis-à-vis the authorities of the host state.
5. In view of this instinctive mistrust on the part of governments it would be unreasonable to expect the community of states (even at regional level) to produce any other solution than the adoption of a sort of "outline status", the application of which would necessarily be left to the judgment of the various states concerned.

We would point out that the same applies to the recognition of states (or governments), since under the rules of international law every government can decide at its own discretion on the legitimacy of a newly created state or of a change of government as the result of a revolution. It is hardy conceivable that private organisations should be treated differently. In other words, even if international status defining the rights and privileges of NGOs were adopted the problem of designation of organisations to benefit from that status would still remain unsolved.

It is hard to imagine any international body making, upon its own authority, a selection from the thousands of NGOs listed by the UAI and from among the new candidates which would not fail to present themselves; it is even more difficult to imagine that a list of organisations enjoying international status could be imposed upon states. The latter would demand the right to examine and approve the credentials and good standing of the private organisation in question before confering a status which grants exemptions from the provisions of domestic law. Failure to take account of that legitimate requirement would rule out any prospect of international status for NGOs (6).

Conclusion

In the strict sense of the term this report can have no conclusion since it is only one of the many working papers which will be supplied to participants in the colloquy for their perusal. The only object to the two remarks that follow is to place the preceding observations in a wider context.

1. The problem raised by the legal status of NGOs must be looked at from the point of view of re-shaping the structure and organisation of the international community. The nation states have taken centuries to emerge and, for the time being, have their hands firmly on the controls in the internationl community. The rise of the "transnational private sector" constitutes a genuine challenge to this situation. Much time and patience will no doubt be needed to form a combination of "public" and "private" action so as to include transnational forces in the decision-making process.
2. The spontaneity and variety which are among the most positive attributes of international associations, still constitute a handicap vis-à-vis the coalition of states and will continue to do so for a long time to come.

Notes

1. Marcel Merle. Le rôle des ONG dans la société contemporaine. Associations Transnationales, 35, 1983, 1 (English version in Transnational Associations, 38, 1986, 3, pp. 133-136) (back)
2. Article 8. "International associations with their headquarters in another country which are governed by foreign law but which fulfil the conditions laid down in Section 1 and comply with Sections 342 and 3 may, in Belgium, within the limits specified in Section 4 and subject to the requirements of public policy, exercise the rights deriving from their national status. Such associations shall not be required to include at least one Belgian member in their administrative body". (back)
3. Under plans at present being discussed in France to reform the rules governing associations, the intention is to grant a preferential situation to certain NGOs on account of the nature and importance of their activities. Thus we are moving towards a discriminatory preferential system which does not, however, follow Section 8 of the Belgian Act. (back)
4. Cf the draft conventions prepared in 1923 and 1950 (see Appendix 4.6 and 4.8) by the Institute of International Law and the report presented by Mrs Suzanne Bastid (see Appendix 3.4) (back)
5. The reintroduction of the visa system by the French Government (October 1982) for Latin American nationals is an expression of its mistrust of foreign infiltration. A measure of that kind, if made general, could make the task of NGOs with headquarters in France much more complicated. (back)
6. The drafts of an "international status" prepared by the IDI leave considerable room for the initiative and responsibility of states (see Appendix 4.6 and 4.8).