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1996

Legal status of international NGOs: overview and options

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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

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:

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.

Multiple legal forms: a radical solution?

In creating new organizations there need be little sympathy for the niceties of legal status under particular regimes. Nonprofit organizations need to learn from their commercial brethren, the 'transnational corporations' who are also international 'outlaws'.

Such corporations have learnt to distinguish between their legal form in a particular country and the operational form which transcends national frontiers. Nonprofit organizations have given excessive attention to providing themselves with a single legal form, carefully choosing the country in which to do so, and accepting whatever structural compromises this forced upon them.

If organizations can distinguish between their existence as social realities and their existence as legal realities then they can follow, and improve upon, the approach taken by transnational corporations. In some countries it is possible to have de facto organizations which are not legally registered in any way. In this sense the organization's members must depend upon themselves, rather than any legal regulations, to be self-regulating.

The crucial step is to operate from this social reality, creating legal realities of whatever form, wherever it is appropriate. Since in most cases the social reality does not exist for the law, it is only through some legal 'mask' that the organization becomes visible in whatever legal system the organization chooses to operate.

In practice this means that the organization can constitute itself legally in different ways, in different countries, for different purposes. As noted above, transnational corporations can take the form of 'nonprofit' organizations in certain countries if this meets their needs. There is no reason why nonprofit organizations should not take a profit- making form where it suits them. In fact some organizations, even within a single country, choose to adopt a triple form of: nonprofit membership organization; foundation; and profit-making corporation. The only bond between them is a cross-linking directorship that guarantees the coherence of the underlying social reality.

The possibility is in fact analogous to that of multiple passport holders who choose which passport to present when they have to deal with any legal system. Since the legal system can only recognize the piece of paper, this creates no problems. Organizations should consider becoming, in effect, 'multiple passport holders'. If a particular country does not have adequate provision for nonprofit organizations, then set up the organization there as a profit-making corporation. If it requires that only nationals of the country should be on the board, then arrange matters in that way for that country.

Note also that on each occasion that an intergovernmental organization accords recognition to an international NGO, the NGO is in effect being given a separate 'passport' and identity. For such recognition is currently the only mechanism through which international NGOs acquire some very weak form of identity within the framework of international law. Governed as they are by separate treaties, the recognition by one intergovernmental body is legally distinct from that by another. Multiple 'passport holding' is therefore already a reality for some NGOs with multiple consultative status.

It may be argued that provision of national legal status, where it is supportive rather than deliberately obstructive, provides many guarantees, notably in the event of any abuse of power or funds. Whilst this may be of significance within a particular country, it is quite impractical for an organization operating in a number of countries, whose secretariat and accounts may not even be in the country where it is legally registered. In fact, unless the organization is self-regulating, so that abuse is avoided or internally controlled, it is unlikely that recourse to any national legal system would be worth the effort. And there are few documented cases of successful legal pursuit of abuse within international NGOs.

Of course some countries have taken advantage of the absurdities of the international legal system by setting themselves up as 'off-shore havens'. Transnational corporations have been very skilled in using the opportunities that these create. Is it not possible that some countries could similarly set themselves up as 'havens' for international nonprofit organizations? It could offer a lucrative opportunity for an island economy with no other resources -- provided telecommunication links were good. Note that this is primarily a question of financial transfers, not necessarily a question of having a secretariat there. And even then, as Liechtenstein has so admirably demonstrated, even grocery shops are willing to put up a brass-plate indicating that they are the 'headquarters' of some corporation. Why not of an international NGO?

Then there is the question of the name of the organization. Again provided the internal social reality is well articulated, the organization can even adopt different names in different contexts without creating any threat to its identity.

Faced with an unsympathetic international legal system, international nonprofit organizations should be encouraged to explore these possibilities with the aid of sympathetic lawyers. In fact it might be asked why lawyers (and especially international associations of lawyers with a strong social commitment) have not taken the lead in articulating these possibilities. For make no mistake, these techniques are already used by some nonprofit organizations, notably those with something to hide. But an innovative approach to legal status can be taken without engaging in any procedures that might be considered unethical.

Proposals to improve legal status of international associations

Despite the present ambiguity and confusion, international NGOs are in general able to conduct their activities in a reasonably satisfactory manner, at least in those countries which are traditionally hospitable to association action. Many problems arise however where international NGOs need to interact with national authorities, especially those in countries where the NGO is not legally established and where it may wish to extend its activities. Some NGOs, even those with non-controversial activities, are severely hindered in the extension of their activities. This is especially the case with those countries whose legal systems make little provision for association action.

Since the beginning of the century, a number of proposals have been formulated to improve the legal, fiscal and administrative facilities of international NGOs. These are reviewed in some of the following Appendices:

This collection of texts and documents presents many initiatives over the past 80 years. It does not however include those initiatives specifically focussed on the tax treatment of non-profit organizations, namely the 1971 Draft Convention on the Tax Treatment in respect of certain Non-Profit Organizations proposed by the International Standing Conference on Philanthropy (10), or the 1972 Recommendation (No. 656) of the Council of Europe. The latter emphasized the differences between the tax treatment applicable and invited 'the member governments to study the possibility of removing the judicial and fiscal obstacles to an increase in international activities by non-profit organizations, with a view to promoting European solidarity'.

The initiatives presented in the following Appendices do appear to be bearing fruit in the current initiative of the Council of Europe (see Appendix 4.11) and in the proposals for the European Community (see Appendix 4.12). This is arguably more a consequence of the pressures towards the integration of Europe into a single economic unity rather than a genuine response to the conditions of organizations operating across the more usual type of national boundaries. There is also the possibility of conflict between the potential openness of the European Convention (see Appendix 4.11, Art. 7) and the EEC-limited focus currently envisaged for the Community proposals (which make no mention of posssible implications for ACP and other associated groups of countries).

After 80 years, it remains to be seen whether such proposals come into force in Western Europe and whether they prove satisfactory in practice. It is regretable that any success will have been bought at the price of limiting application to a single region and possibly to those categories of association fulfilling special criteria. At this point in time it is unclear whether the current initiatives will offer opportunities for effective discrimination against certain types of organization, if only by privileging those more closely associated with the economic aims of the EEC. The harmonization of approach may, for example, deprive international associations of the privileges they currently enjoy under Belgian law (see Appendix 6.1) for no provisions have been made in these proposals for the status in European countries of international associations which are not specially concerned with Europe or European priorities. The very success of these proposals may effectively discriminate against such bodies, even when they have their headquarters in Europe. Unfortunately no intergovernmental effort has yet been made to recommend a more enlightened approach to the status of associations, whether national or international, outside Western Europe.


References

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