Charnovitz on NGOs

Steve Charnovitz has an article on NGOs in the latest issue of the American Journal of International Law (check out the new cover), important not the least because it is one of only three “centennial essays” to mark the organization’s hundredth birthday. That provides yet further evidence that NGOs really have arrived, when the fairly traditional AJIL features them in a commemorative edition.

Charnovitz himself might differ with this last characterization, for a central theme in the piece is that NGOs have long been an influential element of the international legal scene. Continuity is the message. To the extent that there has been recent change, it is not in the way of a revolution but rather of a “reformation” – “a return to an earlier doctrine so as to clear away errors, such as the excessive state-centricity of positivist orthodoxy.” The piece makes the best case that can be made along those lines. It is rich in its documentation of the early and mid-twentieth century literature on NGOs (including in the first volume of the AJIL itself), for which purposes this piece should be considered a canonical treatment. There is a good deal to work with in establishing continuity. NGOs clearly aren’t a new phenomenon.

But I’m not persuaded that there isn’t something radically new going on here. The piece concedes that the “geographic range” of NGOs has expanded, so that they are now universal where at one time they were restricted to some subset of states. Charnovitz also notes the importance of technology for coordination and publicity purposes, but then discounts it by highlighting its use in historical campaigns, such as the use of slide shows in the Congo Reform movement of the early 1900s. But technological change has lowered the start-up and operating costs for NGOs so dramatically that it would seem to change the whole equation. Imagine how much that slide show cost, and the physical limitations of its audience, versus the cost of a PowerPoint presentation, a website, and the possibility of coverage from the internationalized modern media.

Relatedly, Charnovitz parts ways with those who see in the rise of NGOs as necessarily weakening the state. “A state is not weakened just because its citizens speak through diverse voices. Actually, a more likely impact of involvement has been to strengthen states when the new international legislation promoted by NGOs expands states’ regulatory agendas.” A couple of thoughts here. First, to the extent that states lose their monopoly on representing individuals at the international level, it may necessarily weaken their position. It means that the interests of states as states will not go unchallenged at the international level (witness the corresponding rise of meaningful human rights protections and NGOs). It also means that states will now have to compete with NGOs in effectively representing their citizens in international decisionmaking. To the extent that NGOs have unmediated access to international institutions, they will be a check on state discretion.

States are also having to compete with NGOs in the development of law-like regimes. Here’s where codes of conduct come into the picture. If codes are effective at regulating behavior, and states are cut out of the picture (as where NGOs and corporations reach agreement among themselves), that’s another way in which their power is diminished. Charnovitz understandably brackets codes of conduct for purposes of the essay – they are a large topic in themselves. (One way of measuring the rise of NGOs: Charnovitz can pretty thoroughly canvas the history of NGOs from 1900 to 1980 in 30 pages; it would be impossible to do that for the post-1980 period.) But they can’t be bracketed for purposes of considering the relationship of state and NGO power. As for the possibility that NGOs initiatives will end up strengthening states, to the extent that formal international lawmaking is entrenched and states are its agents, they may add power (David Jacobson makes a similar argument with respect to international human rights in his book Rights Across Borders), but only as agents, and sometimes against their interests as states.

Finally, Charnovitz appears to reject the conception of NGOs as representative entities; “an NGO cannot justify its own activist role on the claim that it represents the public.” (He makes the same argument in a paper on NGO accountability, which you can find here.) His perspective seems more to see NGOs in their expert mode, to be measured by the quality of their ideas (he suggests the possibility of an emerging international norm under which IOs may have some duty to consult NGOs). But I don’t see why NGOs are any less capable of representing individuals than states are. Religions would present a pretty clear example of such a representative function. Even in the absence of formal state-like democratic governance mechanisms, NGOs can be accountable to discrete constituencies. I think that explains in part why they have grown so powerful in recent years.

All this said, the piece is an excellent read, and I highly recommend it.