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How "Public" Is Public International Law? Toward a Typology of NGOs and Civil Society Actors.

How "PUBLIC" IS PUBLIC INTERNATIONAL LAW? DESPITE ITS NATURAL LAW origins, international law has long privileged the role of the state. Today, NGOs and civil society actors play an increasingly important role--offering a voice for the disenfranchised through their advocacy and a helping hand for the disadvantaged through their operations. Calls for accountability from these actors are understandable, but often founder on their diversity. This essay develops a typology of such actors, based on their activities and their drivers, to distinguish justifications for and potential mechanisms of accountability. In addition, it suggests a possible evolution in the international order where the status of an actor (state, intergovernmental organization, NGO, etc.) is less important than its function.

A preliminary hurdle that must be crossed is the fact that the subject of public international law embodies a series of hypocrisies within its very name. The most remarked on tends to be whether this discipline really achieves the august status of being "law." Treaties may be written, advocates may put on robes and appear in court, but when push comes to shove states will do as they wish. "Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must." (1) So observed Thucydides 2,500 years ago, and realists and neorealists continue to raise eyebrows or turn up their noses at international lawyers today.

A second hypocrisy at the heart of public international law is its claim of being truly "international." Anthea Roberts recently published a book-length treatment of this question, challenging the discipline's claim to universality in application and the suggestion that its practitioners exist as a kind of invisible college. (2) As a public international lawyer based in Asia, this is not exactly a revelation. One of the reasons why Asian states lack a continent-level regional organization and remain suspicious of international treaties is that they were rarely the author of or invited to play a lead role in those regimes. (3)

For present purposes, however, it is the remaining word that will be my focus: international law's claim to being "public," in the sense of concerning the people as a whole, analogous to public institutions at the national level and distinguished from those that are private. Here, we find tension between substance and form. In substance, the natural law origins of public international law were very much concerned with order and the reduction of human suffering. In form, however, since the Peace of Westphalia in 1648, the vehicle for addressing those concerns has been states.

In this essay, I first recount how states became the central and defining actors in international law. Second, I show how that history obscures the role of individuals and other actors, in particular the role of humanitarian organizations and civil society. Third, I outline the halting steps today toward such actors being recognized not merely as objects, but also as subjects of international law.

As signposts along the way, I organize these observations around three locations that encapsulate the story being told: Westphalia, Solferino, and Rome.

Westphalia, 1648: The Preeminence of the State

The man often called the father of international law, Hugo Grotius, wrote his master work De jure belli ac pacis in the early seventeenth century. (4) Though he drew heavily on the work of earlier theorists, the intellectual heritage of Grotius, and in particular the idea of the "international society" that he described, continues to inform our understanding of the law of nations. This conception of what Hedley Bull later termed the "anarchical society" (5) of states provided an alternative worldview to both the entirely chaotic state of nature as described by Niccolo Machiavelli and later Thomas Hobbes, and the attempts to bring this chaos under centralized control by restoring the institutions of Latin Christendom, (6) or through the construction of new institutions seeking a perpetual peace through human progress as ultimately articulated by Immanuel Kant. (7) Central to this view was that sovereignty and the state went together. "That power is called sovereign," Grotius wrote, "whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will." (8)

A century later, Jean-Jacques Rousseau argued that Grotius tended to argue by offering fact as proof of right: "It is possible to imagine a more logical method," he concluded, "but not one more favorable to tyrants." (9) Grotius wrote his treatise in a period of transition. Europe was emerging from the medieval period and the vertically structured hierarchies under the Pope and emperor, entering the modern period of horizontally organized sovereign states that was formally established in the 1648 Peace of Westphalia. That treaty provided the foundation for the balance of power policies that remained substantially unchanged until the French Revolution and the Napoleonic wars. Ending the wars of religion, the 1648 treaty affirmed the right of rulers to determine the confessional allegiance of their states and subjects (cuius regio, eius religio) and the corresponding secular supremacy of territorial rulers over their dominions (Rex in regno suo est Imperator regni sui). (10) This effectively brought an end to interventions for purely religious differences in Western Europe, though religion remained an important factor in the East.

Today, states continue to command a privileged position over other (recognized) international persons. Only states can be members of the United Nations, only states may bring contentious claims before the International Court of Justice (ICJ), and only states are entitled to the benefits of territorial integrity and sovereign immunity. The state is therefore the dominant actor on the international plane (though, if states are theoretically equal, some are clearly more equal than others).

The greatest potential for challenge to this paradigm came after decolonization, as independence was assumed by the one-third of humanity that did not govern itself when the promises of the UN Charter were made. In part due to fear of disorder and in part for want of any choice, the postcolonial leaders accepted the borders and many of the institutions bequeathed to them.

There are, to be sure, exceptions. The Holy See and Vatican City, for example, have caused much head-scratching over the years on the part of academics: they enter into treaties and have observer status at the UN, but lack a permanent population and, in the case of the Holy See, any territory--or at least any earthly territory. (11)

These and other exceptional cases like the Knights of Malta notwithstanding, the history of public international law is commonly regarded as a history written by and for states.

Solferino, 1859: Enter Civil Society

Such an account is, of course, a partial one at best, but it brings me to my second locale: Solferino.

In an age when the promise and the perils of globalization mean that public goods like the Internet and threats from terrorism to climate change operate independently of states, the notion that states are the only politically relevant actors is risible. Yet the role of civil society existed long before the shrinking and flattening of the world. (12)

The origins of modern international humanitarian law lie in a kind of civil society. The modern form of the problematic body of rules designed to limit suffering in wartime can be traced to the Austro-Italian War of 1859. Henry Dunant, a Swiss businessman, happened to arrive in Castiglione della Pieve on the same day that the Battle of Solferino was fought nearby--a "mere tourist," as he wrote in the memoir of what he witnessed. The brutality of the battle was not atypical for its time, but Dunant's depiction of the human misery was graphic and pointed. In particular, he focused on the aftermath of battle, the wounded men whose numbers overwhelmed army medical services and began to fill the town:
Men of all nations lay side by side on the flagstone floors of the
churches of Castiglione--Frenchmen and Arabs, Germans and Slavs. Ranged
for the time being close together inside the chapels, they no longer
had the strength to move, or if they had there was no room for them to
do so. Oaths, curses and cries such as no words can describe resounded
from the vaulting of the sacred buildings. (13)


Dunant called for the establishment of "relief societies for the purpose of having care given to the wounded in wartime," and "international principles" (14) to serve as the basis and support for these societies--precursors to the International Committee of the Red Cross (ICRC) and international humanitarian law. This set the stage for more formal conventions on the laws and customs of war adopted at The Hague International Peace Conferences of 1899 and 1907.

It is a function of the human condition that we view the present as unique, but the role of civil society in international law dates back to at least that time. Indeed, by 1912 a draft proposal had been written to regulate the status of what we now term international nongovernmental organizations (NGOs). (15) Through the course of the twentieth century, humanitarian organizations and civil society played vital roles as advocates and providers, pushing states to act in their enlightened self-interest and filling the gaps when they failed to do so.

Their role in consultative processes was legitimized in 1945 by the UN Charter, Article 71, which provides that the Economic and Social Council (ECOSOC) "may make suitable arrangements for consultation" with NGOs. Over the next quarter-century, a few hundred such bodies registered. During the 1970s, however, a series of multilateral conferences saw a rise in the number of NGOs. That trend has accelerated in the past decade and today there are almost 5,000 NGOs holding consultative status with ECOSOC. (16) The total number of NGOs worldwide is difficult to estimate, but some put it at about 10 million.

In addition to proliferating in number, the impact of NGOs and civil society is visible in other key developments, in particular international humanitarian law. One of the most significant developments was the Ottawa landmines convention of 1997, remarkable in part because it was the first time in a century that a widely used conventional weapon was banned outright. But it was also remarkable for the key role that international civil society played in diplomatic and lawmaking processes that had previously been reserved for states. (17) This success paved the way for the role that civil society played in an even more important legal development, which took place the following year in Rome.

Rome, 1998: NGOs Ascendant

The adoption of the Rome Statute of the International Criminal Court was another achievement of civil society. (18) But as a landmark, it was also a triumph for the rule of law. Despite evident limitations, the Rome Statute offers the possibility of criminal sanctions against individuals who perpetrate war crimes and crimes against humanity in place of the more ambiguous sanctions against states that authorize them.

Three months after the Rome Statute came into force, UN Secretary-General Kofi Annan acknowledged the important role that civil society had come to play in intergovernmental processes and established a high-level panel to make recommendations on managing such relationships. (19) The report--We the Peoples (20)--endorsed greater involvement on the part of civil society but was somewhat impractical when attempting to outline how that might happen. (21)

Today, a major intergovernmental conference without civil society participation would be regarded as incomplete. Similarly, the idea that a war zone or humanitarian disaster could completely exclude NGOs is almost nonsensical--indeed, a growing number of treaties envisage specific roles for NGOs. The Treaty on the Prohibition of Nuclear Weapons, for example, adopted in July.2017, specifically provides that "relevant non-governmental organizations shall be invited to attend the meetings of States Parties and the review conferences as observers." (22) It was no coincidence that the International Campaign to Abolish Nuclear Weapons (ICAN), which had campaigned for such a treaty for more than a decade, won the Nobel Peace Prize three months later.

As we think about the roles that these actors can play, it is useful to offer some categories to focus discussion, in particular on the extent to which such actors can and should be held accountable for their actions. It is common to think of NGOs in terms of their issue areas or spheres of operation. For our purposes, a more abstract level of analysis may be appropriate.

Accountability is not just an end in itself. Accountability, in the sense of being required to give an account of one's actions and being held responsible for that account, may be desirable for various reasons: to punish and deter abuse, to improve transparency of decisionmaking, and to improve the quality of decisions. (23) Focusing on the possibility of being held responsible, key factors in the allocation of fault tend to be what was being done and why. Here, I propose a two-dimensional model of NGOs and other civil society actors based on their activities and their drivers.

In terms of activities, we can think of NGOs as existing on a spectrum. At one end is the role of civil society as a vehicle for advocacy. At the other end is the role that some humanitarian NGOs play in operations. A detailed model might have more subtle gradations, but for present purposes I confine the examination to these two broad categories.

A second axis reflects the drivers that motivate NGOs and their stakeholders. Again there is a spectrum, ranging from those that have a specific agenda to achieve, which I term supply-driven, and those that are more responsive to demand. Again, fine-grained divisions might be possible, but I limit the analysis here to a loose categorization as either primarily motivated by supply (i.e., pursuing an agenda or supporting a specific population) or demand (i.e., motivated primarily by an objective assessment of need).

We have, then, a two-by-two matrix as shown in Figure 1. In the bottom left of the figure we have issue-driven advocates, termed partisans. In the international humanitarian law context, this might include groups such as ICAN and the Coalition for the International Criminal Court. In the top right we have operational responders driven by demand, termed Samaritans. Archetypal actors here would be the ICRC and Medecins Sans Frontieres (MSF). In the top left we have policy activists holding themselves out as objective, termed experts. Indicative groups would be the Stockholm International Peace Research Institute (SIPRI) and the World Justice Project. (24) In the bottom right we have operational actors driven at least in part by subjective concerns such as religious affiliation. I label these kinsmen, though I note that many such organizations strive to act regardless of faith or other considerations. Examples might include Islamic Relief Worldwide and Catholic Relief Services. One could argue about the placement of NGOs within the various cells, but such a matrix is helpful because it clarifies some of the calls for accountability that are routinely made of these actors.

Insofar as they contribute to debate, partisans--the advocacy NGOs and the individuals that make them up--are entitled to their opinions and the promotion of their views. An interesting marginal case is raised by the fact that activist NGOs occasionally play an outsize role in the foreign policy of small states. This is most evident in treaty conferences in which delegations of small states are routinely supported by NGOs. It has also been known to happen in the context of international disputes, as when it was widely believed that the suit brought before the ICJ by the Marshall Islands was at the behest of NGOs. (25) Nonetheless, such political projects are most appropriately addressed through political means of contestation, rather than treating them as analogous to other categories of actors.

As NGOs purport themselves to be more objective, it is appropriate to hold them to a higher standard. Bodies such as SIPRI and the World Justice Project stake their credibility on the rigor of their analysis and the impartiality of their views. When we consider operational NGOs in the context of conflict zones, the arguments for accountability are far stronger, as such entities are not merely operating in the realm of ideas but may be responsible for the lives of thousands of individuals. In such circumstances, it is entirely appropriate for them to be held accountable for their actions.

The problem is that those people with the greatest leverage over such operational actors may have the least interest in accountability, while those with the greatest interest may have the least leverage. (26) Donors--individuals as well as governments--want to see their money spent well, but are unlikely to be in a position to critique decisions on the ground. Recipients, by contrast, have a clear interest, but often no mechanism for challenging decisions. There have been various efforts to address this imbalance, often more rhetorical than normative. In the 1990s, it became common to refer to a "rights-based" approach to humanitarian relief and development. (27) Yet it was never clear that rights-based meant anything more than that humanitarian relief is important. Around the same time, the language of "ownership" came to be used in development and humanitarian contexts, though the precise content of such a term was rarely specified. (28)

It is, perhaps, telling that the accountability I am calling for increases as NGOs and civil society occupy roles that previously might have been arrogated to the state or perhaps an intergovernmental organization, but which for present purposes might simply be termed public.

Conclusion: From Status to Function?

Some years ago, while doing field research on postconflict administration in Afghanistan, I met an Afghan NGO worker who bemoaned the proliferation of foreign NGOs in his country. He acknowledged that they were trying to help, but much of their work seemed geared toward raising funds and justifying expenses. He memorably described such NGOs as "cows that drink their own milk." (29)

There is no question that humanitarian organizations and civil society play vital roles in conflict zones today. In this essay, I have provided a potted history of how that came to pass, but also the manner in which that evolution calls into question how "public" public international law really is. I conclude with two observations on possible implications for the role of NGOs and civil society in the future.

The first is that legal status is less important than legal personality. Questions of legal status in international law tend to focus on the identification of who or what are the "subjects" of international law--archetypally states--with occasional references to other entities as being "objects" of the law. It is true that some NGOs have taken on roles previously arrogated to the state, including measures of diplomatic immunity. Yet efforts to define a formal status for NGOs in the sense of subjects and objects of the law are futile. In the various definitions that are proffered for NGOs, the one consistent aspect lies in the name: they are not government organizations. Much as NGOs and other civil society actors exist on a spectrum, so will their legal status be contingent upon their activities. The more operational they are, the more legal powers they are likely to exercise.

This is entirely consistent with existing international law on legal personality, which allows for varying degrees of personality--a position accepted by the ICJ in the Reparations case in 1949 concerning the ability of the United Nations to bring an international claim:
The subjects of law in any legal system are not necessarily identical
in their nature or in the extent of their rights, and their nature
depends upon the needs of the community. Throughout its history, the
development of international law has been influenced by the
requirements of international life, and the progressive increase in the
collective activities of States has already given rise to instances of
action upon the international plane by certain entities which are not
States. This development culminated in the establishment in June 1945
of an international organization whose purposes and principles are
specified in the Charter of the United Nations. But to achieve these
ends the attribution of international personality is indispensable. (30)


(It is noteworthy that the Geneva Conventions of the same year also accorded rights and responsibilities to the ICRC.)

This leads to my second concluding point: that legitimacy and accountability go hand in hand. For NGOs, this is linked to their activities and their drivers. The more operational they are or the more objective they claim to be, the higher the standard to which they should be held. Partisan advocates driven by passion should muster good arguments if they wish to prevail, but if their policy arguments are weak, they have committed no wrong. An NGO purporting to run a refugee camp for 100,000 people, by contrast, should have an obligation to those refugees as well as to the donors who fund it.

As for international law, it is possible that we are at the beginning of a transformation similar to that experienced by domestic law several centuries ago. In medieval times, one's legal position in society was largely ascribed by the group to which one belonged--slave, serf, freeman, and so on. Modern law recognized a degree of autonomy in choosing those relations, a transformation that Henry Sumner Maine famously described as the move from status to contract. (31) It is possible that, at the international level, we are now seeing something similar. As the legal order of states gives way to something much more fluid, we may be seeing a move from status to function. As diverse entities take on public powers, it is appropriate to impose greater accountability on those entities. (32)

Otherwise, like the cow that drinks its own milk, such actors are primarily concerned with themselves, running the risk of being at best a distraction, at worst a drain on scarce resources when they are needed most.

Notes

Simon Chesterman is dean and professor, National University of Singapore Faculty of Law. A version of this essay was first presented at the Carabinieri Officers Academy conference, "The Protection of Civilian Population in Warfare--The Role of Humanitarian Organizations and Civil Society," Rome, October 2017.

(1.) Thucydides, The Peloponnesian War (London: J. M. Dent, 1910), book V, chap. 89.

(2.) Anthea Roberts, Is International Law International? (Oxford: Oxford University Press, 2017).

(3.) Simon Chesterman, "Asia's Ambivalence About International Law and Institutions: Past, Present and Futures," European Journal of International Law 27, no. 4(2016): 945.

(4.) Hugo Grotius, De jure belli ac pacis, trans. Francis W. Kelsey, Classics of International Law (1646; reprint Oxford: Clarendon Press, 1925).

(5.) See, generally, Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977), p. 46.

(6.) One issue on which both Hobbes and Grotius were as one was the authority of state over church.

(7.) See Immanuel Kant, "Toward Perpetual Peace" in Practical Philosophy, trans. Mary J. Gregor (1795; reprint, Cambridge: Cambridge University Press, 1996), p. 311. For a modern articulation of Kantian international legal theory, see Fernando R. Teson, "The Kantian Theory of International Law," Columbia Law Review 92, no. 1 (1992): 53.

(8.) Grotius, Dejure belli, book I, chap. 3.

(9.) Jean-Jacques Rousseau, The Social Contract, trans. G.D.H. Cole (1762; reprint, London: J. M. Dent, 1923), book I, chap. 2.

(10.) See John Gerard Ruggie, "Territoriality and Beyond: Problematizing Modernity in International Relations," International Organization 47, no. 1 (1993): 139, at 157.

(11.) See, for example, Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998), pp. 64-65; Malcolm N. Shaw, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997), p. 172.

(12.) Stefan Kirchner, "The Subjects of Public International Law in a Globalized World," Baltic Journal of Law and Politics 2, no. 1 (2009): 83.

(13.) Henry Dunant, A Memory of Solferino, trans. American Red Cross (1862; reprint, Geneva: International Committee of the Red Cross, 1986), p. 61.

(14.) Ibid., p. 115.

(15.) Rephael H. Ben-Ari, The Legal Status of International Non-governmental Organizations: Analysis of Past and Present Initiatives (1912-2012) (Leiden: Martinus Nijhoff, 2013), pp. 5-7.

(16.) United Nations Department of Economic and Social Affairs, NGO Branch, Consultative Status with ECOSOC and other accreditations, http://esango.un.org/civilsociety/displayConsultativeStatusSearch.do?method=search&sessionCheck=false, retrieved 12 February 2018.

(17.) Kenneth Anderson, "The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society," European Journal of International Law 11, no. 1 (2000): 91.

(18.) Heidi Nichols Haddad, "After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court," Global Governance 19, no. 2(2013): 187.

(19.) Report of the Secretary-General: Strengthening of the United Nations: An Agenda for Further Change, UN Doc. A/57/387, 9 September 2002.

(20.) Note by the Secretary-General: Strengthening of the United Nations System, UN Doc. A/58/817, 11 June 2004.

(21.) Peter Willetts, "The Cardoso Report on the UN and Civil Society: Functionalism, Global Corporatism, or Global Democracy?" Global Governance 12, no. 3 (2006): 305.

(22.) Treaty on the Prohibition of Nuclear Weapons, done at New York, UN Doc. A/CONF.229/2017/8, 7 July 2017, Art. 8(5).

(23.) See Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford: Oxford University Press, 2011), pp. 207-213.

(24.) Disclosure: the author is a director of World Justice Project Ltd.

(25.) Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom; Marshall Islands v. India; Marshall Islands v. Pakistan) (Preliminary Objections) (International Court of Justice, 5 October 2016).

(26.) An analogous situation is the turn to outsourcing by various Western militaries who came to rely on private military and security companies (PMSCs) in part as a means of avoiding accountability. See Simon Chesterman and Angelina Fisher, eds., Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Oxford: Oxford University Press, 2009).

(27.) See, for example, Andrea Cornwall and Celestine Nyamu-Musembi, "Putting the 'Rights-based Approach' to Development into Perspective," Third World Quarterly 25, no. 8 (2004): 1415.

(28.) See Simon Chesterman, "Ownership in Theory and in Practice: Transfer of Authority in UN Statebuilding Operations," Journal of Intervention and Statebuilding 1, no. 1 (2007): 3.

(29.) Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-building (Oxford: Oxford University Press, 2004), p. 186.

(30.) See Simon Chesterman, "Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person," Singapore Year Book of International Law 12(2008): 199.

(31.) Henry Maine, Ancient Law (London: J. M. Dent, 1861).

(32.) Simon Chesterman, "Globalization Rules: Accountability, Power, and the Prospects for Global Administrative Law," Global Governance 14, no. 1 (2008): 39.
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Title Annotation:THE GLOBAL FORUM
Author:Chesterman, Simon
Publication:Global Governance
Article Type:Essay
Geographic Code:4EUIT
Date:Apr 1, 2018
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