K.U.

Leuven
Faculty of Law

Institute for International Law

Working Paper No 14 - November 2001

Human Rights NGOs: Role, Structure and Legal Status

Jan Wouters & Ingrid Rossi

The Institute for International Law of the K.U.Leuven groups the teaching and
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Institute for International Law, K.U. Leuven, 2001

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HUMAN RIGHTS NGOS: ROLE, STRUCTURE AND LEGAL STATUS

Prof. Dr. Jan Wouters & Ingrid Rossi
Institute for International Law, K.U.Leuven

I.

Introduction

The European Unions (EU) Third Annual Report on Human Rights adopted by
the Council of the EU on October 8, 2001, provides, as did its two predecessors, for the
organization of a EU Human Rights Discussion Forum. This event aims at bringing
together EU institutions, Member States, non-governmental organizations (NGOs),
academics and international organizations to focus on issues on the international human
rights agenda.
In particular, Working Group I of this years EU Human Rights Discussion
Forum will discuss the roles and responsibilities of Non-State Actors. In preparation for
the discussion, we prepared this paper, which focuses on one Non-State Actor, NGOs.
It is worth mentioning that the EU is and has been a great supporter of the role
played by NGOs at the national, European and international level. In particular, the EUs
Third Annual Report on Human Rights provides that the EU is committed:
to strengthening the position of NGOs in international organizations, where the
Union defends established NGO access rights, and in third countries, where the
Union makes efforts to enhance the role of civil society and NGOs as participants,
promoters and beneficiaries in democratization and development processes. The
Union is convinced that Government action greatly benefits from dialogue and
cooperation with civil society. Therefore, it will continue its own valuable
dialogues with NGOs and also continue to provide extensive support to NGOs
and to the strengthening of civil society in different parts of the world.1
Throughout the Third Annual Report, one finds various practical illustrations of
this commitment: they include the EUs efforts to foster the role played by NGOs in
human dimension activities of the OSCE2 and in the Stability Pact for South-Eastern
Europe3, and the EUs not negligible financial support for the participation of NGOs in
regional preparatory conferences to the World Conference agains Racism, Racial

Council of the European Union, EU Third Annual Report on Human Rights (2001), p.11,
http://www.europa.eu.int/comm/external_relations/human_rights/doc/report01.htm.

EU Third Annual Report on Human Rights, p. 62.

EU Third Annual Report on Human Rights, p. 65.

Discrimination, Xenophobia and Related Intolerance in Durban, and the Conference

itself. 4
In this context, the present paper intends to give a general overview of the role,
structure and legal status of human rights NGOs, as well as to raise some issues with
respect to the problems of legitimacy and accountability of NGOs which necessarily arise
from the increasing participation of NGOs as Non-State actors in the international legal
sphere.
In particular, Section II of the paper gives a brief summary of the different roles
played by human rights NGOs both at the national and international level. Sections III
and IV identify some of the differences between human rights NGOs in their mandates,
structure and configuration. Section V refers to the international status of NGOs and
gives a short overview of the rights conferred to NGOs in the framework of the UN
Charter, human rights treaties, human rights non-treaty based procedures and legislation
allowing NGOs to intervene as amici curiae in human rights judicial proceedings.
Section VI outlines the main points surrounding the difficult issues of legitimacy and
accountability of NGOs. Finally, Section VII concludes with various reflections on the
legal status, legitimacy and accountability of NGOs.

II.

Role of human rights NGOs

As is well-known, a considerable number of NGOs is engaged in the protection of

human rights both at the national and international level. The varied role of these NGOs
can be summarized as follows.5
A. Agenda setting
NGOs play a crucial role in the creation of the political atmosphere and context to
stimulate action in the field of human rights by governments and intergovernmental
organizations (IGOs). They contribute to drawing the attention of world public opinion
to human rights issues, influence the setting of the public agenda in this respect and help
governments and IGOs to identify and prioritize key human rights issues.
B. Standard setting
NGOs are actively involved in the drafting process of human rights conventions
and treaties (e.g., Universal Declaration of Human Rights, Convention on the Rights of
4

EU Third Annual Report on Human Rights, pp. 98-99. The Commission contributed EUR 3,6
million to the Office of the UNHCHR to support this participation of NGOS.

For further background on the role of human rights NGOs, see e.g., David Weissbrodt, The
Contribution of International Nongovernmental Organizations to the Protection of Human Rights,
in 2 HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND POLICY ISSUES (Theodor Meron ed.,
1984).

the Child, Convention Against Torture) and thus help in the development of human rights
norms.
Lobbying is generally the means by which NGOs provide their input in standard
setting (e.g., 1993 World Conference on Human Rights in Vienna, 1995 Fourth World
Conference on Women in Beijing, 2001 World Conference on Racism). In many
instances part of the lobbying strategy consists in submitting legal studies drafted by
experts, which contain the NGOs own interpretation of the applicable international rules
and suggestions for improvements.
C. Enforcement
NGOs help to safeguard human rights against government infringement through
techniques such as diplomatic initiatives, fact-finding missions, reports, public statements
and mobilization of public opinion. These techniques have proven successful, since in
most circumstances, NGOs are more independent from political forces than States or
IGOs and thus are more able to identify and criticize human rights violations. Once
NGOs bring a problem to a States attention it becomes more difficult to ignore human
rights violations.
Most NGOs publicly report the results of their missions and thus provide valuable
information about violations of human rights. Publicity is an important factor in the
enforcement of human rights by NGOs.
NGOs also contribute to the enforcement of human rights by carrying out research
and providing it to IGOs (especially, but not only, the UN human rights bodies) or to
national delegations or governmental bodies.6
Once norms are promulgated and the machinery to hold States accountable for
human rights violations is in place, NGOs play a predominant role in providing the
machinery with the information necessary for them to discharge their tasks effectively.7
D. Aid and Education
NGOs provide assistance to victims of human rights violations. They also assist
States and IGOs in the implementation of human rights programmes by acting as their
agents on the field.
NGOs sometimes represent persons in their dealings with national officials or
before courts or IGOs.
6

Because many national delegations lack the resources to do thorough human rights research,
NGOs often provide delegates with information and even draft documentation for use in U.N.
bodies. (Weissbrodt, op. cit., p. 419).
See Nigel S. Rodley, Human Rights NGOs: Rights and Obligations, Present Status and
Perspectives, in THE LEGITIMACY OF THE UNITED NATIONS: TOWARDS AN ENHANCED LEGAL
STATUS OF NON-STATE ACTORS, SIM Special No. 19, (1997), p. 44.

In addition, NGOs educate the general public by disseminating information on

human rights and offering courses on the topic.

III.

Mandates

Human rights NGOs differ widely in their mandates.8 Some of them have very
narrow and discrete mandates, focusing on one category of rights and even on a particular
aspect of a category, while other NGOs have broader and more inclusive mandates.
Moreover, some NGOs have activities in several countries and are thus considered as
international NGOs, while others limit their activities to their own country. The main
difference between these two types of NGOs is that international NGOs base their
advocacy more consistently on international law.
Mandates of human rights NGOs have been dynamic, changing according to
different circumstances, such as: political and institutional context, ideological positions
and geographical locations, practical issues of membership and fundraising, concerns on
how to maximize achievements, self-perception and pressures from local groups or other
institutions.9
The differences in mandates also correspond to the division between First World
and Third World NGOs.10 In general, First World NGOs concentrate more than Third
World NGOs on civil and political rights, due process and the protection of individuals
against State interference. Third World NGOs, on the other hand, tend to stress the
importance of economic, social and cultural rights.
In their aim to draw attention to social and economic rights, some Third World
NGOs argue for a broad and deep reform-oriented approach as opposed to a mere caseby-case approach as practiced by the First World NGOs. The latter, however, argue that
such an approach would erase the boundaries between human rights groups and political
groups, whereby NGOs risk losing their legitimacy as defenders of legality and merge
into the political process.11

9
10

11

The term mandate refers to a formal expression of an NGOs functions and goals contained in a
charter, a policy statement, or any other form of public self-identification. (Henry J. Steiner,
Diverse Partners, Non-Governmental Organizations in the Human Rights Movement, Harvard
Law School Human Rights Program and Human Rights Internet, p.8).
Steiner op. cit., p. 13-14.
The term First World NGOs in this context refers to NGOs based in developed countries and
committed to traditional Western liberal values. The term Third World NGOs refers to all other
NGOs not included in the first category. Given the diversity of conditions, cultures and values in
developing countries, this category constitutes a more diffuse one than First World NGOs.
Steiner, op. cit., p. 34-37.

IV.

Structure and Configuration12

Most NGOs consist of a small group of policy makers and administrators without
a broad membership. International human rights NGOs are often structured so that there
is an international secretariat that represents national sections in various countries.
The membership composition of human rights NGOs also differs widely. For
instance, some Third World human rights NGOs involve local governmental officials and
professional groups or are likely to include elected officials among their members. In
contrast, other human rights NGOs (especially First World NGOs) are very careful not to
accept members with government links.
In general it appears that international human rights NGOs have formal members
and that their membership structures have gradually become more decentralized,
allowing more input from individual members and giving their national sections a
considerable amount of autonomy. Generally, decision making within these NGOs
follows consensus procedures. However, according to some authors the cult of
personality is a reality and very few NGOs are run in a participatory way. 13
Many international human rights NGOs rely to some degree on fundraising to
sustain their operations. A large percentage of these NGOs also receive foundation grants
to support their work. In addition, many NGOs receive grants from governments or
IGOs.
V.

International Legal Status

Most human rights NGOs are to be found at the national level. Their legal status
is determined by reference to the law of their national States.
Nonetheless, a substantial number of human rights NGOs consider themselves
international. This is because they bring together individuals or associations from
different countries and because their interests extend beyond the national level (even if
their constituent membership or associations are mainly involved in work at the local
level). Very few international NGOs are exclusively international in approach (e.g., like
Amnesty International).
Despite their international character, the legal status of international NGOs is
generally determined either by the State of incorporation or, in the absence of
incorporation, by the State where the headquarters or other organized activities are
located. The laws of the country of establishment generally govern even NGOs that are
established at the national level but have an international mandate.

12

13

See in general George A. Lopez, Globalizing Human Rights NGOs in the 1990s, 20 HUM RTS. Q.
379 (1998), p. 405-407.
See e.g., Steiner, op. cit., p.77.

Despite the above, international law does invest NGOs with some degree of legal
status. Below is a brief summary of the rights conferred to NGOs in the framework of
the UN Charter, human rights treaties, human rights non-treaty based procedures and
legislation allowing NGOs to intervene as amici curiae in judicial proceedings.
14

A. UN Charter
Article 71 of the UN Charter provides that the Economic and Social Council
(ECOSOC) may make consultative arrangements with NGOs. ECOSOC Resolutions
1996/31 and 1296 implementing this article, divide NGOs in three categories: Category I,
Category II and Roster.
Category I is for NGOs with interest in most of the activities of ECOSOC;
Category II is for those with a special competence in a few of the activities of ECOSOC;
and the Roster is for all other NGOs that might be consulted on an ad hoc basis.15
The number of NGOs having consultative status has grown steadily since the
creation of the UN Charter.
The rights conferred by the consultative status include:

Agenda: Right to receive the provisional agenda of ECOSOC or its subsidiary

bodies and to propose the inclusion of new agenda items (Category I NGOs).

Attendance: NGOs are entitled to attend public meetings of ECOSOC and its
subsidiary bodies (Roster NGOs only in certain cases).

Written Statements: NGOs may submit statements and have them circulated to
ECOSOC and its subsidiary bodies. (The permitted length of the statement
depends on the NGO category).

Oral Interventions: Depending on their category, NGOs have the right to make
oral statements before ECOSOC.

Many special organs of the UN maintain similar consultative arrangements with

NGOs, which are regulated in resolutions of the General Assembly, ECOSOC, or in rules
of procedure of the special organs themselves (e.g., the UN High Commissioner for
Refugees (UNHCR), the UN Childrens Fund (UNICEF), the UN Environment Program
14

15

It may also be worth noting that rights tend to be accompanied by obligations. Many
international NGOS use methods of acquiring information that would not be acceptable from an
entity enjoying formal international legal personality. It is far from clear that their work would be
so advanced by the acquisition of legal status as to compensate for possible restrictions on their
operating methods, (Rodley, op. cit., p. 59).
In principle, the categories are differentiated by objective, non-political criteria. In practice, there
is a definite sense of the organizations being ranked by their status (Peter Willets, Consultative
Status of NGOs at the United Nations, in THE CONSCIENCE OF THE WORLD, THE INFLUENCE OF
NON-GOVERNMENTAL ORGANIZATIONS IN THE U.N. SYSTEM, (1996), p. 33).

(UNEP), etc). Moreover, other specialized organizations of the UN have formalized

consultative relationships with NGOs in accordance with their constitutions (e.g., the UN
Educational, Scientific, and Cultural Organization (UNESCO)).
NGOs have no formal rights in the General Assembly, its committees and
working groups. Even when access is granted informally, neither written nor oral formal
participation by NGOs is allowed.
It is worth mentioning that it is standard practice to give rights of participation at
UN conferences to NGOs with ECOSOC consultative status. It has also been common
practice to give the same rights at conferences to a wider range of NGOs that apply to
attend an individual conference.16

B. Human Rights Treaties

Most of the UNs human rights treaties provide for schemes to review State
compliance with their provisions, normally by means of an established expert body.
NGOs play a very important role as part of the reporting procedures before these treaty
bodies in submitting reliable information to (members of) the body in question regarding
State violations. The role of NGOs varies from treaty to treaty. It has been said that the
most developed system of NGO input is the NGO Group on the Committee on the Rights
of the Child, which has issued a guide for NGOs preparing complementary information
and which invites NGOs to present oral information to a pre-sessional working group of
the Committee. 17 The Committee on Economic, Social and Cultural Rights also proves to
be quite open to NGO involvement. It invites written information from NGOs and even
provides an opportunity to present oral information before both the Committee itself and
its pre-sessional working group.18 In many other committees the role of NGOs seems
influential even if it takes a more informal character.
At the regional level in Europe, mention should be made of the important role
reserved for NGOs under the Council of Europes European Social Charter. There is
provision for input from NGOs with particular competence in this field (as well as for
that of workers and employers organizations) when States Parties report on the
implementation of the Social Charter. The 1995 Additional Protocol to the European
Social Charter Providing for a System of Collective Complaints includes as sources of
such complaints those international NGOs in consultative status with the Council of
Europe listed for this purpose, as well as (apart from workers and employers
organizations) national NGOs if the State in question has made a declaration to this effect
when becoming a party to the Additional Protocol.

16
17

18

See Willets, op. cit., p. 49.

Martin Scheinin, International Mechanisms and Procedures for Implementation, in AN
INTRODUCTION TO THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS, (Raija Hanski and
Markku Suksi, eds., 1999, 2nd ed.), 429, at p. 435.
Scheinin, op. cit., p. 435.

Also the European Committee for the Prevention of Torture is strongly dependent
on NGOs: it relies on them for information about countries and places of detention which
give cause for concern and the Committee is often alerted by NGOs to engage into visits
to particular countries or places. 19
C. Non-Treaty Based Mechanisms
The UN Commission for Human Rights (the Commission) has created a machinery
to address serious human rights problems. In 1970 it established a confidential procedure
pursuant to ECOSOC 1503(XLVIII) concerning situations that appear to reveal a
consistent pattern of gross and reliably attested violations of human rights. The 1503
procedure allows the reception of materials emanating from any non-official source,
including NGOs. From 1980 onwards, the Commission set up a series of mechanisms to
deal with particular types of human rights violations such as the Working Group on
Enforced or Involuntary Disappearances, the Special Rapporteur on Torture, etc. They
are mandated to seek and receive information from a broad range of non-official sources,
including NGOs.

D. Judicial Bodies
The ability of NGOs to initiate an international case or intervene as party is
limited because in many international courts only States may be parties to proceedings.
In spite of this, there is some legislation and case law regarding the participation of
NGOs as amici curiae and public interest litigators in international judicial bodies.
NGOs are especially active as amici curiae in the regional human rights systems of
Europe and America, i.e., the European Court of Human Rights and the Inter-American
Court of Human Rights.20
Also at the national level, NGOs participate often as amici curiae.21

19

See Rachel Brett, Non-Governmental Actors in the Field of Human Rights, in AN INTRODUCTION
399, at p. 403-404.
For more information on this topic, see Dinah Shelton, The Participation of Nongovernmental
Organizations in International Judicial Proceedings, 88 AM. J. INTL L. 611 642 (1994).
For instance in the Pinochet case. (House of Lords, Regina v. Bartle and the Commissioner of
Police for the Metropolis and Other (Appellants), Ex Parte Pinochet (Respondent)(On Appeal
from a Divisional Court of the Queen's Bench Division); Regina v. Evans and Another and the
Commissioner of Police for the Metropolis and Others (Appellants), Ex Parte Pinochet
(Respondent) (On Appeal from a Divisional Court of the Queen's Bench Division) (No. 3),
Judgment of 24 March 1999 (http://www.parliament.the-stationery-office.co.uk), Amnesty
International was admitted as intervener in the case, and other NGOs were admitted as amici
curiae.
TO THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS,

20

21

10

VI.

Legitimacy and Accountability

There has been an incredible growth in the number, size and reach of international
NGOs in the last decades. The increased influence of NGOs in the international sphere
has generated attention not only to NGO achievements but also to issues such as the
legitimacy of NGOs to intervene in global governance, as well as the internal structure
and organization of NGOs.
It has often been stressed in the literature that the participation of NGOs reduces
the democratic deficit in the creation, enforcement and monitoring of international law
and enhances the legitimacy of these processes through broader public participation and
increasing transparency.22 However, the question of legitimacy not only concerns the
question of improving transparency and incorporating civil society23 in the creation,
enforcement and monitoring of international law, but also concerns the internal structure
and organization of the NGOs themselves.
NGOs are very diverse and represent a variety of interests. It is extremely
difficult to subdivide them on the basis of the interests they defend, or the scope of their
activities. This is so even with respect to human rights NGOs. It is difficult to describe
NGOs as representing a global civil society with uniform goals and values. Nevertheless,
NGOs, with their achievements in the international sphere have come to prove that they
play an important role in global governance. Collaboration and partnership with NGOs
has proved to be efficient for IGOs and States. In particular, IGOs have come to realize
that partnership with NGOs contributes to more efficient project implementation and a
lower rate of failure; a better public image and more political support.24 In addition,
NGOs are considered as providing additional channels for popular representation, thus
creating a fairer distribution of power through the international system.
Despite the above, there is a claim of lack of legitimacy of NGOs to intervene in
global governance. This claim generally focuses on four issues: lack of transparency,
internal democracy, accountability and accuracy.25

Transparency: Transparency is related to the identity of the subjects that NGOs

claim to represent. Whom do NGOs represent? Sometimes it is difficult to know
who is really speaking through the NGO and whether NGOs claims are really
rooted in society. It is important to know who enjoys the benefits and suffers the
costs of NGO achievements.

See Leon Gordenker, NGOs and Democratic Process in International Organizations, in THE ROLE
ST
CENTURY (Castermans, van Hoof and Smith eds., 1998).
See Dianne Otto, Nongovernmental Organizations in the United Nations System: The Emerging
Role of International Civil Society, 18 HUM. RTS. Q. 107 (1996).
See Michael Edwards, NGO RIGHTS AND RESPONSIBILITIES, A NEW DEAL FOR GLOBAL
GOVERNANCE (2000), p. 11; It is undeniable that the political/moral legitimacy/influence of
NGOs in the human rights field has been the keystone of the whole international human rights
project (Rodley, op. cit., p.58).
See Edwards, op. cit., p. 16-27.

OF THE NATION-STATE IN THE 21

23

24

25

11

Internal Democracy: Legitimacy is linked to the problem of internal democratic

processes within NGOs. If NGOs are constituted as membership bodies,
legitimacy is claimed through normal democratic elections and sanctions that
ensure that an entity is representative of, and accountable to, its constituents. By
contrast, if NGOs do not constitute membership bodies their legitimacy is defined
on the basis of their compliance with legal rules, effective oversight by trustees
and recognition by other legitimate bodies.

Accountability: NGO accountability is weak and problematic. There is no single

authority to which NGOs must report on their activities. NGO accountability
depends entirely on public opinion and self-regulation either through the own
structure of the NGO or through a network of NGOs to which the particular NGO
is affiliated.

Accuracy: Because NGOs vary widely between each other; the quality and
accuracy of their contributions also varies. While certain NGOs provide valuable
and reliable information and expertise, other NGOs have sometimes simplistic
and poorly researched positions.

According to some scholars, it is too soon to declare that a civil society has
emerged.26 Even though NGOs have demonstrated in the last decade that they are
important players in the international sphere and States have clearly recognized a broader
role for them and many times relied on their assistance, differences among NGOs are still
considerable and States do not perceive NGOs as equal players. For instance, in the last
UN Conferences, NGOs were shut out of the most crucial stage of conference planning
and were given subordinate roles in conference documents.27
Even though NGOs have started to build networks28 and to coordinate in order to
increase the power and effect of their positions, substantial differences and rivalry among
NGOs prevail.29
For instance, at the most recent UN Conference, the World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Intolerance, which took place in
Durban, South Africa, from the 31st of August to the 7th of September of this year, NGOs
found great difficulties organizing themselves. NGOs from all regions attended Durban
in great numbers. More than 6,000 participants from approximately 2,000 NGOs
attended the parallel NGO Forum. At the Forum, NGOs found out that they had very
different views and approaches towards the problems addressed at the Conference and
consequently had many difficulties agreeing on a common NGO Declaration and
26

27
28

29

See Ann Marie Clark, The Sovereign Limits of Global Civil Society: A Comparison of NGO
Participation in UN World Conferences on the Environment, Human Rights, and Women, World
Politics 51.1 (1998).
See Ann Marie Clark, op. cit., p. 18, and 33.
Networking between NGOs usually takes place at parallel NGO forums accompanying official
government proceedings. These forums produce their own formal statements, have their own
programs and newspapers, and offer a multitude of activities for visitors.
See Ann Marie Clark, op. cit. p.14.

12

Programme of Action that was to be handed out to the President of the Conference.
Moreover, Amnesty International, one of the most important international human rights
NGOs, disassociated itself from parts of the documents adopted by the NGO Forum
because it found that they reflected extreme views.30

VII.

Final Remarks and Open Questions

As can be appreciated from the different sections of this paper, NGOs have
succeeded in making their voice heard at a national and international level and have thus
become important actors in the protection and promotion of human rights throughout the
world. However, while States have agreed to a certain level of NGO involvement, they
still bar NGO participation in procedures or issues that in some way involve political
decisions or restrict State sovereignty. States retain the ability to respond selectively to
NGO proposals, adopting some and rejecting others.
Thus, States and their
representatives retain the decisive roles both nationally and internationally.
In this respect, the question arises as to whether or not the national and
international legal status of NGOs should be enhanced in order to formally recognize
NGO achievements and allow NGOs to be on a more equal level with States and IGOs.
Would this create problems of accountability and legitimacy, as NGOs are not politically
accountable bodies? Should politically accountable bodies retain control of certain
decisions? Should the role of NGOs continue to be determined and limited by States and
IGOs?
In order to enhance the legal status and accountability of NGOs, one possibility
would be the creation of a code of conduct. This would require the examination of
previous attempts to regulate the behaviour of Non-State actors, such as the draft
conventions prepared by the Institute of International Law with respect to NGOs, and the
steps taken in this direction by the UN and other international organizations with respect
to multinational corporations.
The principal advantage of a code of conduct would be that it would establish
with precision the rights and obligations of NGOs and would probably dispel any doubts
as to the legal personality of NGOs. However, the main disadvantage of such an attempt
would be that NGO-hostile States could use the opportunity to restrict the activities of
NGOs. This concern could most likely be avoided if NGOs are involved at all stages of
the creation of the code of conduct.

30

Press Release RD/D/41 of September 6, 2001, Addressing Racism Conference, Non-Governmental

Organizations Call for Urgent Action by Member States to Combat Discrimination.

13

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