Although it was generally recognized that consultative status was not synonymous with legal personality, the impact of the Charter of the United Nations on the legal status of NGOs should not be overlooked. Annex 3: Comments on the Legal Status of International NGOs This includes various texts that explain problems and opportunities from different angles. Since the ratification of the Charter of the United Nations, the ECOSOC Regulations of 1996 and the opening of the United Nations to national NGOs in 1996, the number of NGOs recognized by the United Nations has increased considerably. The crucial role of NGOs within ECOSOC is undeniable and legal personality should therefore be granted by ECOSOC as the starting point of the international system. This could appease both state actors seeking to monitor NGO activities and NGOs seeking to protect themselves from national restrictions that harm civil society. Also note that whenever an intergovernmental organization grants recognition to an international NGO, the NGO actually receives a separate “passport” and identity. This recognition is currently the only mechanism by which international NGOs acquire a very weak form of identity under international law. Since they are governed by separate treaties, recognition by one intergovernmental body is legally different from that of another. Multiple possession of passports is therefore already a reality for some NGOs with multiple consultative status. While traditionally only States have been granted legal personality, it would not be uncommon for legal personality to extend beyond nations in the international legal sphere. For example, in human rights cases, several international tribunals have granted individuals the right to sue in their own name: the European and Inter-American Courts of Human Rights allow individuals to sue directly or indirectly before the courts.
[115] In addition, the World Bank`s Inspection Body allows private parties to file complaints against organizations. [116] Conversely, the ICC prosecutes individuals who have committed crimes against humanity, among others.117 Given the extension of legal personality to individuals by several international tribunals, legal personality appears feasible for NGOs. Although individuals are distinct from NGOs, both have rights under national and international law, which are often minimized by international tribunals that confer legal personality only on nations. (c) Registration under national law Although an essentially private arrangement may be satisfactory in many cases, significant difficulties may arise when the organization as an organization has to interact with other bodies. In particular, the legal acceptance of the statutes may determine whether the international NGO can act in its own name through duly appointed representatives or whether it must rely on individuals to perform legal acts on its behalf in its private capacity and under their personal responsibility. This applies in particular to the management of funds, the opening of accounts, contractual relations with other bodies, liability in the event of legal proceedings, etc. An unincorporated association as such cannot sign a contract or own property, although one or more persons may be responsible for doing these things on its behalf. In addition, the State in which the international NGO has its secretariat or carries out its activities may, in the absence of a legally recognized form, consider the body to be contrary to public policy.
In such circumstances, the international NGO may apply for registration under the law of a particular country, usually the one in which it has its secretariat. This normally requires that the statutes comply with the rules and guidelines defining the eligibility of a body under national law for such registration. These of course vary from country to country and may include strict rules on the influence of “foreigners” on the organization`s politics (proportion of foreigners on the board, voting rules, money transfer, etc.). Most international NGOs have statutes of this type, which are therefore typical of the statutes of this volume. If NGOs do not play such an important role on the international scene, it will be difficult to defend legal personality. However, since the rights and obligations of NGOs had important implications for international law, they should enjoy the status of legal personality. NGOs play a crucial role in the health of the international system as a whole, in addition to their universally recognized role in providing direct assistance to communities in need. NGOs are numerous, continue to play an increasingly influential role in international legal affairs and operate formally and informally.
While the creation and maintenance of a registry, which would likely include reporting obligations for NGOs, is certainly a logistical challenge, it should not be considered insurmountable. In fact, NGOs are no strangers to reporting obligations. Even under the current legal framework, once an NGO acquires consultative status with the Economic and Social Council, it is “required to submit a report on its activities every four years, the so-called quadrennial report”. 148 This is just one example of current reporting obligations. National regulations, funding agency requirements or those of other international governmental organizations may strengthen the reporting obligations of NGOs. Although this is an important consideration, the likely need for a central body for NGOs should not be seen as an obstacle to legal personality as a whole. Unfortunately, the first step in determining which NGOs should be granted observer status hampers the effectiveness of the African system. Since only observer organizations can submit complaints to the ACHPR, the Commission, which accepts requests for observer status, performs an important oversight function. The existence of a monitoring function through the necessary criteria and a register is often considered an important element of any system designed to give legal personality to NGOs. It is therefore not surprising that legal personality depends on observer status. However, as in the case of the Economic and Social Council, there are disturbing consequences when requests for observer status are rejected ostensibly for political reasons. This balancing act leads to a final major challenge for the legal personality of NGOs: establishing the legitimacy and accountability of NGOs in a way that would justify the granting of legal rights.
It is important to remember that NGOs are “not necessarily altruistic and not always a force for good”. 145 That does not constitute an obstacle to legal personality as such; Individuals, States, corporations and other entities with legal personality are not necessarily a force for good. However, the possibility of bad actors raises questions of legitimacy and accountability that must be taken into account when considering the rights and obligations that would be associated with granting legal personality to NGOs. Jurij Daniel Aston, University of Bonn, argued that: Article 71 has served as a model and springboard for other international organizations to establish strong relations with NGOs, including the granting of legal personality. In particular, the African Court on Human and Peoples` Rights allows NGOs with “observer status” with the African Union to apply directly to the Court.69 In addition, in 1999, the Organization of American States (OAS) adopted the Guidelines for the Participation of Civil Society Organizations in OAS Activities, which provide for NGO participation in the OAS similar to that of the United Nations ECOSOC.70 Finally, the Organization for Security and Cooperation in Europe has taken article 71 and the United Nations system of consultative status as a “model for its relations with non-State actors”. 71 The most effective form of legal personality would probably be recognition by the United Nations.
