The Oxford Guide to Treaties Symposium: Enter Non-State Actors

by Peter Spiro

I’ll join the chorus of praise for my colleague Duncan’s book. It will clearly become the standard reference work in the area. As IL scholarship proliferates, there is a lot of smart money in handbook volumes such as this one. The Oxford Guide to Treaties is a one-stop source for the best thinking on the subject.

Duncan is also to be congratulated for his forward-looking inclusion of a chapter by Kal Raustiala on NGOs and treaty-making. Kal’s entry represents the best kind of writing for the format. It gives the newcomer a parsimonious but informative survey of the subject. For those already engaged on the subject, it has an edge.

Kal argues that states have a self-interest in permitting NGO participation in treaty-making. NGOs provide information in both treaty negotiation and implementation. NGO inclusion pays domestic political benefits, helping to get NGOs on board during the negotiations who are then more likely to turn around and sell the deal back home. When it comes to delicate negotiations, states can have their cake and eat it too, by closing the door on NGOs in informal-informals and the like. Kal describes how NGOs have become more prominent in the treaty-making process. But in his view this rise

should not be viewed as necessarily antagonistic to State interests. Nor does it undermine the centrality of States in international law-making. The roles played by NGOs remain formally subject to State control. This control ranges from the accreditation process, which keeps out the overly radical or insufficiently organized (or just deeply disliked), to the use of informal negotiating venues and forums, which keeps out everyone. Yet this control is used sparingly and, I have argued, often strategically. The reality is that NGOs remain active in a wide range of treaty settings.

I agree that as a formal matter states are still in charge. In theory, they can reject NGO participation. In practice, however, no multilateral regime can succeed without a substantial NGO presence. That’s not just a matter of putting NGOs to work in the service of states. It’s about legitimizing global institutions. The results won’t always be to state liking, either: NGOs are influential in treaty-making, in a way that’s often consequential.

The treaty form works against NGO participation, at least for now. (There is an interesting chapter by Tom Grant on non-state treaty-makers, but his discussion focuses on other territorial creatures – subnational jurisdictions, external territories, and insurgent groups.) When NGOs get involved on the basis of something more like equality, it has made sense to take other institutional routes. Think the Kimberley Process or the Global Fund. There’s a selection error in focusing on treaties as a form of international agreement-making. As a legacy institution, treaties will reflect a lower level of non-state participation than more novel agreement forms. I understand that this is beyond Duncan’s brief. But it’s something to keep in mind as we think about the spectrum of international instruments.

As a bonus to Kal’s chapter, Duncan includes model clauses on the terms of NGO participation (see 673-75). I’m sure that’s something new in a treaty handbook. I expect that future editions of the book will be including more material relating to non-state actors as their power becomes more evident and as the treaty form adapts accordingly.

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