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Legal status of international NGOs: overview and options


Originally published in: Union of International Associations (Ed). International Associations Statutes Series (K G Saur Verlag, 1988), Appendix 1. (See other commentaries). The information in the appendices is integrated into a comparative table as Appendix 3.8 of that volume.
Introduction
Multiple legal forms: a radical solution?
Proposals to improve legal status of international associations
References

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Introduction

Although the structure and language of the statutes and constitutions of international NGOs may bear a very strong resemblance to that of intergovernmental organizations, they are by definition based on agreement reached between nongovernmental parties, whether organizations or individuals - even in those cases where the nongovernmental bodies may represent government interests or function as quasi-governmental organizations. In such cases the statutes have no status in international law, although this situation has been modified in principle since 1 January 1991 when the 1986 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations came into force (see Appendix 4.11).

At present however, it is important to stress that from the point of view of international law, international NGOs have no existence as such. They are international 'outlaws'. Thus bodies such as the International Political Science Association (members in 88 countries, secretariat in Canada), the International Association of Legal Science (42, France), the International Law Association (41, UK), the Institute of International Law (43, Switzerland), the International Bar Association (114, UK), the International Association of Democratic Lawyers (83, Belgium), the International Commmission of Jurists (51, Switzerland), the International Association of Judges (31, Italy), and the Inter-Parliamentary Union (107, Switerland), are all 'national' - or, at best, 'foreign' - bodies, from the point of view of both national and international law. They are no different, legally speaking, than bodies such as the American Bar Association or the American Political Science Association, which both have many members outside the USA. Where an organization is 'recognized' by an intergovernmental organization, such as through the consultative relationship arrangements provided by Article 71 of the Charter of the United Nations, it has been argued that such recognition might be interpreted as establishing (rather tenuously) the status of an international NGO in international law, but such interpretations have not been put to the test in any legal proceedings.

Those establishing an international NGO are therefore faced with a choice:

    (a) Informal (unwritten rules)
    They may avoid defining their relationships in any explicit form and simply create a pattern of informal relationships with various unwritten rules. This may be perfectly satisfactory for the kinds of activity they propose to undertake. In recent years one form this approach has taken has lead to the creation of 'international networks' of various kinds. This form may be deliberately chosen to avoid the administrative and political problems which tend to be associated with more formally constituted bodies. Clearly such bodies do not have statutes which could appear in this volume.

    (b) Unregistered contract
    The aims and structure of the organization may be defined, possibly in great detail, in written form. This text is then the basis of the agreement between the members of the organization. The text may be elaborated with the advice of lawyers in order to provide for every eventuality. This text is then taken by the members to be the constituting agreement of their organization. Reference is made to it to resolve any difference of opinion concerning what may or may not be done by the organization and its representatives. Such statutes may be elaborated quite independently of any legal system and may be considered by the members as governing the life of their organization wherever its secretariat is established and wherever it undertakes its activities. This is typically true of international sporting organizations which regulate the rules of competition between countries. Such statutes appear in this volume.

    (c) Registration in accordance with national law
    Whilst an essentially private agreement may be satisfactory in many instances, considerable difficulties can arise when the organization needs to interact as an organization with other bodies. In particular the legal acceptability of the statutes may determine whether the international NGO can act on its own behalf, through duly appointed representatives, or whether it has to rely on individuals to undertake legal acts for it in their private capacity and under their personal responsibility. This applies especially to the handling of funds, opening accounts, contractual relationships with other bodies, responsibility in the event of legal proceedings, etc. An unincorporated association as such cannot sign a contract or own property, though a person or persons may be entrusted to do these things on its behalf. Furthermore, in the absence of any legally recognized form, the state in which the international NGO has its secretariat or conducts its activities may regard the body as contrary to public order. In such circumstances the international NGO may seek registration under the law of a particular state, normally that in which it has its secretariat. This usually requires that the statutes conform to the rules and guidelines defining the acceptability of a body under the national legal provisions for such registration. These of course vary from country to country and may involve strict rules concerning the influence of 'foreigners', on the policies of the organization (proportion of foreigners permissable on the governing board, voting rules, transfer of funds, etc). The majority of international NGOs have statutes of this type, which are therefore typical of the statutes in this volume.

    (d) Operation via a national member
    Members of an international NGO may consider it inconvenient to go through the legal procedures of registering or incorporating under the law of a particular country, especially if the secretariat and office holders rotate between member countries every year. Such rotation would then mean that the organization would have to be legally dissolved and then reconstituted in the country to which the secretariat was being rotated. Since such procedures take time, especially if they have to be published in some official journal in order to become legal, this may be quite impracticable. One alternative is then for the administrative tasks of operating the secretariat to be entrusted to the member organization in the country to which the secretariat is being rotated. The legal responsibility is then that of the national member. Since this body would anyway be legally registered in order to conduct its normal business, this avoids the need to register the international NGO in that country. It is then up to the national member to define accounting procedures which avoid any confusion. In some cases all the administrative procedures and costs of the international NGO are simply 'absorbed' into the operations of the national body in order to avoid unnecessary complications. The statutes of such international NGOs would then define the responsibility of the national member handling such administrative tasks. Such statutes appear in this volume.

    (e) Separation of legal registration and operational base
    Members of an international NGO may consider it unacceptable, as a matter of principle, to formulate their statutes in conformity with the restrictions of the law governing national bodies in the country in which the secretariat is located. They may nevertheless find it necessary to provide themselves with a legally acceptable set of statutes, rather than entrust their operations to a particular member body for whatever period. In such circumstances the organization may register itself in a country which is legally hospitable to international NGOs and then operate a secretariat in whatever country is convenient for operational purposes. In such a case the organization would have two sets of statutes, possibly with only minor differences. Only some countries, such as Belgium, have specific legal provisions for international NGOs to operate in this way. In such a case, when the organization ceased operating in the secretariat country it would be dissolved there and would then fall back on the statutes which permitted it some legal continuity between its operations in successive secretariat countries. Such legal manoeuvres will not be necessary, at least within Europe, if the 1986 European Convention on the Recognition of the Legal Personality of International Non-governmental Organizations (see Appendix 4.11) comes into force. This specifically provides for statutes formulated according to the requirements of one country to be recognized in a second country without further modification.

    (f) Negotiated ad hoc agreement with government
    In some cases, especially when the laws of the country in which the secretariat is to be established make little provision for the establishment of an association, special arrangements may be negotiated with the appropriate government department of the country. Such an ad hoc 'headquarters agreement' then defines the legal status of the organization for the period during which it is established in that country, and often that of the staff of the organization. The agreement may well be distinct from the actual statutes of the organization although the latter may be subject to review during the negotiation of the agreement. This procedure is modelled to some degree on that adopted when the secretariat of an intergovernmental organization is established in a particular country. It is also possible for even major international associations to come to an unwritten agreement with a government whereby its existence is accepted in a legal vacuum, even to the point of avoiding taxation and social security obligations. This privileged status of course carries its own risks.

    (g) Establishment as trust or foundation
    Another option occasionally favoured is the formation of a trust or foundation. The law regarding such bodies tends to be more complex in the differences between countries, especially because of the implied focus on the disbursement of funds (5). There are however many similarities between associations and foundations (6). Both are covered, in relation to national legislation, by the European Convention on the Recognition of the Legal Personality of International Non-governmental Organizations (see Appendix 4.11). No legal provision has as yet been made for international foundations, as such and as distinct from NGOs, although the Netherlands and Switzerland are more hospitable to such bodies than other countries. Improvement in the international legal status of such bodies is a current preoccupation of INTERPHIL (International Standing Conference on Philanthropy). The statutes of such bodies are not, at this stage, included in this volume.

    (h) Legal status within Canon Law
    For the sake of completeness, it should not be forgotten that a completely different approach is open to the many international religious orders. In the case of Catholic orders, for example, these may acquire legal status within Canon Law. Many of these orders function transnationally according to rules which predate, often by centuries, the efforts to elaborate statutes for international organizations (7).

It is somewhat ironical that, despite their own lack of recognition in international law, a significant number of international NGOs have an international tribunicial and a legislative function (8, 9). Also of interest is the regulatory function of many international NGOs, of which the best known examples are those for sports such as football, rugby, and the Olympic games itself, or other games of importance to national prestige, such as chess. Even though some of the members may be government sponsored national representatives, it is within the appropriate organs of the NGO concerned that conflicts of interest are settled. Similarly, the Court of Arbitration of the International Chamber of Commerce is used as a means of settling international disputes in the field of commerce.

r of Commerce is used as a means of settling international disputes in the field of commerce.


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