Non-Governmental Organisations in International Law

Transcription

1 Non-Governmental Organisations in International Law Anna-Karin Lindblom CAMBRIDGE UNIVERSITY PRESS

2 Contents Acknowledgements List ofabbreviations page xv xvii Part I Theoretical framework 1 1 The main issues and their context Introduction The legitimacy of international law 6 Introduction 6 Democracy and representation in international law 6 A changing international scene: globalisation and thedifrusionof State power 12 The transnationalisation of civil society and the increasing role of NGOs 15 Legitimacy and international law 22 Conclusion: the role of NGOs in a discourse model of international law The diversity of NGOs: definitions and delimitations 36 Definitions of 'NGO' in international instruments and doctrine 36 Defining 'NGO* for the purpose of the study 46 2 Historical and conceptual background Introduction The historical view of the subjects of international law Intergovernmental organisations as subjects of international law 58 Vll

3 VIU CONTENTS 2.4 The 'sui generis' subjects of international law 63 Introduction 63 The Order of Malta 64 The International Committee of the Red Cross The classical concepts relating to international legal personality in modern doctrine The relationship between personality and the making of international customary law 77 3 International legal theory and non-state actors Introduction The actors of international law in international legaltheory 82 Introduction 82 The rule approach 84 Who are the actors of international law? 84 How can it be determined that a new actor has become part of the legal System? 87 The process approach 91 Who are the actors of international law? 91 How can it be determined that a new actor has become part of the legal system? 96 International law and international relations 100 Who are the actors of international law? 103 How can it be determined that a new actor has become part of the legal system? Conclusions 109 Introduction 109 States as the dominant actors of international law 111 The increasing role of non-state actors 111 States and the conferral of international legal Status 112 Generally accepted sources 113 An inductive method 115 Part II Legal and empirical survey Rights and obligations Theoretical background 121 The conceptof'rights' 121

4 CONTENTS IX Non-state rights-holders on the international plane 123 Introduction 123 The intention of the parties 127 The terms of the treaty 128 Rights and legal remedies 130 Conclusion Organisation rights 134 Human rights, group rights and Organisation rights 134 Organisation rights in international law 139 Introduction 139 The International Covenant on Civil and Political Rights 140 The International Covenant on Economic, Social and Cultural Rights 147 The UN Declaration on Human Rights Defenders 152 The ILO Conventions 154 The Aarhus Convention 160 The European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations 164 Council of Europe Fundamental Principles on the Status of Non-Governmental Organisations in Europe 166 The European Convention on Human Rights 168 The rights to freedom of assembly and association 169 The right to freedom of expression 172 The right to a fair trial 173 The right to freedom of religion 174 The right to respect for private life 176 The right to peaceful enjoyment of one's possessions 176 The legal nature of rights under the European Convention 177 The European Social Charter 177

5 CONTENTS The American Convention on Human Rights 181 The African Charter on Human and Peoples' Rights International obligations 187 Introduction 187 Iimitations of Organisation rights 190 The ILO Conventions 192 The UN Declaration on Human Rights Defenders 192 The obligations of NGOs in their co-operation with IGOs 193 Formal IGO-NGO co-operation 193 Operational IGO-NGO co-operation 198 Codesofconduct International humanitarian law and non-state actors 201 Introduction 201 International humanitarian law and humanitarian organisations Conclusions 215 Standing before international judicial and quasi-judicial bodies Introduction International bodies 219 The International Court of Justice 219 International criminal courts 224 The UN Treaty Bodies 224 The Human Rights Committee 224 The Draft Optional Protocol to the ICESCR 230 The Committee on the Elimination of Racial Discrimination 231 The Committee Against Torture 234 The Committee on the Elimination of Discrimination Against Women 235 The 1503 Procedure 236 The ILO freedom of association procedures 237 The UNESCO procedure for individual Communications 239 The World Bank Inspection Panel 241

6 CONTENTS XI 5.3 Regional bodies 246 The European Convention on Human Rights and its monitoring bodies 246 The procedure 246 The concept of 'non-governmental Organisation' and the victim requirement 247 NGOs as parties before the Commission and the Court 253 Issues raised in cases brought by NGOs 255 The European Social Charter collective complaints procedure 257 The European Court of Justice 264 The Inter-American System for Human Rights 271 The procedure 271 The Inter-American Commission 274 The Inter-American Court 277 The African Commission and Court for Human and Peoples' Rights 279 The African Commission 279 The African Court 285 The Aarhus Convention procedure for individual Communications 285 The Citizen Submission procedure under the North American Agreement on Environmental Cooperation 5.4 Conclusions Non-party participation before judicial and quasi-judicial bodies Introduction The World Court International criminal courts The International Criminal Court The International Criminal Tribunal for the former Yugoslavia The International Criminal Tribunal for Rwanda The WTO dispute settlement procedure The European Commission and Court of Human Rights The Commission

7 XU CONTENTS The Court The European Court of Justice The Inter-American Commission and Court of Human Rights 350 The Inter-American Commission 350 The Inter-American Court of Human Rights 354 Contentious cases 355 Advisory opinions The African Commission and Court of Human and Peoples' Rights Conclusions 363 Co-operation with intergovernmental organisations Introduction The United Nations 367 Introduction 367 The General Assembly and the Security Council 369 ECOSOC consultative arrangements 374 General 374 ECOSOC Standing Committee on Non-Governmental Organizations 382 ECOSOC subsidiary bodies and extra-conventional mechanisms 387 The UN treaty bodies 395 Introduction 395 The Human Rights Committee 396 The Committee on Economic, Social and Cultural Rights 397 The Committee Against Torture 399 The Committee on the Elimination of Discrimination against Women 401 The Committee on the Elimination of Racial Discrimination 402 The Committee on the Rights of the Child 404 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families 406 Discussions on reform of UN-civil society relationships 406

8 CONTENTS Xlll 7.3 The International Labour Organization 410 The tripartite structure 410 Consultative Status The Council of Europe The European Union The Organization of American States 431 General 431 The General Assembly and the General Secretariat 435 The OAS Councils 436 The Inter-American Commission on Human Rights The African Union 438 General 438 The African Commission on Human and Peoples' Rights Conclusions 444 Participation in international Conferences Introduction Rules for NGO participation in UN Conferences The United Nations Conference on Environment and Development The World Conference on Human Rights Third Session of the Conference of the Parties to the Framework Convention on Climate Change The Rome Conference for an International Criminal Court 463 Introduction 463 Qualitative research interviewing 465 The legal framework for NGO participation 467 Influence on the negotiations 470 General 470 The modalities for NGO participation 471 Strategies and working methods of NGOs 472 The internal strategy of the CICC 477 The role of different organisations 478 In what respect were the negotiations influenced? Conclusions 479

9 XIV CONTENTS 9 Agreements with states and intergovernmental organisations International agreements and non-state actors Agreements between states and NGOs Agreements between IGOs and NGOs 496 Introduction 496 Memoranda of understanding and framework agreements 498 Project agreements Conclusions 506 Part III Conclusion Summary and concluding remarks The legal Status of NGOs in international law Possible developments of the legal Status of NGOs through standard-setting NGOs and the legitimacy of international law 523 Bibliography 527 Interviews 545 Index 547