This paper challenges the scholarly tendency of imposing democratic norms on non-governmental organisations (
Law shapes the lives of individuals, obliging them to undertake certain actions or to refrain from undertaking action by using the right to issue commands and enforce these commands. In democratic societies, the subjects of law traditionally find this far-reaching exercise of authority acceptable, as long as they can equally determine the content of it. Acceptability means here as much as recognising the ‘right to rule’ of a public authority.1 It is upon this condition that laws are deemed democratically legitimate.
International law is often criticised for not living up to the promise of democratic legitimacy.2 One of the proposed remedies for the democratic deficits of international law concerns the participation of
In this paper I assess the validity of this assumption. I aim to substantiate and further develop the work of, among others, Charnovitz and Peruzzotti,5 by discussing different concerns that allow us to question the imposition of democratic norms on
ngo Participation in International Law-making
International law-making knows different stages: norm emergence, norm cascade and norm internalisation.8 The
Since 1948, emergent norms have increasingly become institutionalised in international law. The participation of
During the decade of 1935–1944, international cooperation increased but the call for
In the early 1970s
However, sympathy for
ngo Democratic Legitimacy Thesis
Notwithstanding the ups and downs in intensity of, and attitude towards
It is noteworthy that around the turn of the twentieth century, an increase in critical scholarly work can be witnessed. Scholars, including but not limited to Anderson and Johns, have contested specifically the claimed correlation between the participation of
The increasing participation of
The academic discourse on the
4 The Ideal of a Democratic
A democratic ideal-type of
At first sight it seems perfectly valid to put requirements by law or by other rules on the organisation of
5 The Problem of the Ungeneralisability of
Underlying the imposition of democratic norms on
A large number of studies have empirically examined the activities of global civil society, thereby assuming a broad and shared understanding of what a global civil society or an
The inclination to base conclusions on generalisations, with presumably strong predictive power, gives insight into one of the recurring tendencies in the
Three preliminary remarks can be made in this respect. First, it is clear that
Notwithstanding the obvious variety of groups that are referred to by the term
One can envisage that an expectation concerning the representativeness of an
Interrelated to the contentiousness of determining the role of
There are three manifestations of the controversy surrounding global civil society and
The reason for disagreement concerning the understanding of civil society is that concepts such as civil society and
Besides the questionable success of formulating general normative expectations with regard to
6 The Problem of Governing
The reasons for including
Imposing democratic norms on
There is a fine line between
Besides, undeniably attached to, and reflected in
7 Questionable Merits of using Content-independent Terms
Besides the scholarly desire to place
Such a presentation of
I am not the first to challenge this tendency. Peters refuted the often-heard claim of opponents of the thesis that an undemocratic internal organisation of
Further, notwithstanding the use of content-independent terminology, the scholarly work in favour of the thesis implicitly reveals the tendency to connect
The terms and words used by the proponents of the
Four grounds strengthen the assumption that there is a strong relation between accepting
Although a content-independent vocabulary is used the participation of
In sum, the validity of imposing democratic norms on the organisation of
8 Pitfalls of an Erroneous Prioritisation
The criticism on
The requirement of
As practice and legal documents regarding the accreditation mechanisms taught us,
We should make a clear analytical distinction between what is desired and what is required of
This article obviously invokes many underlying, theoretically challenging, questions. Could the international legal order ever provide the institutional and social preconditions necessary to enable any form of democratic agency? Is democratic legitimacy as such a reasonable concept to evaluate international law? Notwithstanding the apparent daunting task to find answers to them, these pressing concerns require our attention first. Scholarly uncertainty towards the question how to democratically legitimise international law should not lead to the imposition of democratic norms on
Seymour Martin Lipset, “The Social Requisites of Democracy Revisited: 1993 Presidential Address”, 59(1) American Sociological Review (1994) p. 7; Allen Buchanan, “The Legitimacy of International Law” in S. Besson, and J. Tasioulas (eds.), The Philosophy of International Law (2010) p. 79; Joseph Raz, The Morality of Freedom (1986) pp. 25–28.
Philip Allott, “Intergovernmental societies and the idea of constitutionalism”, in J. M. Coicaud and V. Heiskanen (eds.), The Legitimacy of International Organizations (2001) p. 69; Nico Krisch, “International Law in Times of Hegemony: Unequal power and the Shaping of the International Legal Order”, 16(3) European Journal of International Law (2005) p. 369; Eyal Benvenisti, “The Emergence of Global Governance and the Corresponding Need to Regulate it”, 3 The Global Trust Working Paper Series (2014) p. 3, referring to Sabine Cassese, The Global Polity: Global Dimensions Of Democracy And The Rule Of Law (2012). See also David Livshiz, “Updating American Administrative Law: WTO, International Standards, Domestic Implementation and Public Participation”, 24(4) Wisconsin International Law Journal (2006) p. 998; Samantha Besson and John Tasioulas, “Introduction”, The Philosophy of International Law (2010); Ferenc Miszlivetz, “Lost in Transformation: The Crisis of Democracy and Civil Society”, in M. Kaldor, H.L. Moore, S. Selchow, and T. Murray-Leach (eds.), Global Civil Society 2012: Ten Years of Critical Reflection (2012) p. 68; Rob Walker, Inside/Outside: International Relations as Political Theory (1993) p. 143.
See Peter Spiro, “Accounting for
These democratic norms go beyond the general legal obligations
Steve Charnovitz, “Accountability of Nongovernmental Organizations (
Patrick Kilby, “Accountability for Empowerment: Dilemmas Facing Non-Governmental Organizations”, 34(6) World Development (2006) p. 952.
There are many other roles
Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change” 52(4) International Organization (1998).
Finnemore and Sikkink, supra note 8, p. 897.
See Cecilia Albin, “Can
I refrain from a substantive connotation of
For the subsequent brief historical overview I primarily rely on the studies of Charnovitz and Paul.
Steve Charnovitz, “Two Centuries of Participation:
The International Law Association encouraged for example states to develop private international law on shipping. Charnovitz, supra note 13, p. 194 referring to International Law Association, “Report of the Twenty-second Conference” (1906) pp. vii–xiv (summarising impact).
Charnovitz, supra note 13, p. 213, referring to Warren F. Kuehl, Seeking World Order. The United States and International Organisations to 1920 (1969) p. 267.
Charnovitz, supra note 13, p. 214.
An example is the International Radio Conference in Cairo, 1938, during which only a few
James A. Paul, “Civil Society and the United Nations”, in H. Moksnes and M. Melin (eds.), Global Civil Society: Shifting Powers in a Shifting World (2012) pp. 64–82.
The codification of the Law of the Sea in the Convention on the Law of the Sea, Dec. 10, 1982,
Charter of the United Nations, Oct. 24, 1945, 1
See for studies on the involvement of
See Charter of the United Nations, Oct. 24, 1945, 1
Paul, supra note 18, p. 64.
General Assembly Resolution 13 (i) established the
Anne Thompson Feraru, “Transnational Political Interests and the Global Environment” 28(1) International Organization (1974) p. 41. See also Steven Bernstein, “Legitimacy in Global Environmental Governance” 1(1–2) Journal of International Law & International Relations (2004). See generally on the history, context and impact of the Stockholm conference, Nico Schrijver, Development without Destruction. The
Riva Krut, “Globalization and Civil Society:
Willetts, supra note 21, p. 196, referring to
International Law Association, Committee on Non State Actors, “Second Report of the Committee: Non state Actors in International Law: Law Making and Participation Rights” Sofia Conference (2012) p. 12.
See Yearbook of International Organisations 2014, <http://www.uia.be/yearbook-international-organisations-online> (accessed June 2017) 33, fig. 2.9.
Paul, supra note 18, pp. 74–75.
See Jude Howell, Armine Ishkanian, Ebenezer Obadare, Hakan Seckinelgin and Marlies Glasius, “The Backlash against Civil Society in the Wake of the Long War on Terror”, 18(1) Development in Practice (2008); Paul, supra note 18, p. 77.
See Steve Charnovitz, “Nongovernmental Organizations and International Law”, 100(2) American Journal of International Law (2006) pp. 349–366, referring to Simeon Baldwin, “The International Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World”, 1 American Journal of International Law (1907) pp. 565, 576; Georges Scelle, Une Crise De La Société Des Nations, La Reforme Du Conseil et L’Entrée de l’Allemagne A Genève (1927) pp. 144–46; Walter Schücking, “Le développement du Pacte de la Société des Nations”, Recueil Des Cours 20, (1927) pp. 349, 394; Alexandre Berenstein, Les Organisations Ouvrières: Leurs Compétences Et Leur Role Dans La Société Des Nations (1936) p. 277; David Mitrany, “An Advance in Democratic Representation”, 6 International Associations (1954) pp. 136, 188.
See Roland Pierik and Geoffrey Gordon, “Liberal Political Philosophy: The Role of Non-State Actors and Considerations of Global Justice”, in B. Reinalda (ed.), The Ashgate Research Companion to Non-State Actors (2011) p. 5. And see Steve Charnovitz, “The Illegitimacy of preventing
Jan Aart Scholte, “Civil Society and Democratically Accountable Global Governance”, 39(2) Government and Opposition (2004) pp. 217–222.
Especially in the human rights field
Iris Marion Young, Inclusion and Democracy (2000) p. 67.
Marc Nerfin, “Neither Prince nor Merchant: Citizen – An Introduction to the Third System”, in S. J. Patel, K. Ahooja- Patel, A. Gordon Drabek, M. Nerfin (eds.), World Economy in Transition, Essays Presented to Surendra Patel on His Sixtieth Birthday (1986); Victor Bekkers and Arthur Edwards, “Legitimacy and Democracy”, in V. Bekker, G. Dijkstra, A. Edwards, M. Fenger (eds.), Governance and the Democratic Deficit. Assessing the Democratic Legitimacy of Governance Practices (2007) p. 51; Robert Dahl, A Preface to Democratic Theory (1956).
Christoph Görg and Joachim Hirsch, “Is International Democracy Possible?”, 5(4) Review of International Political Economy (1998) p. 599.
(1) Daniel Esty, “Non-Governmental Organizations at the World Trade Organisation: Cooperation, Competition, or Exclusion”, 1 Journal of International Economic Law (1998) p. 135; Alfred Pfaller and Marika Lerch, Challenges of Globalization: New Trends in International Politics and Society (2005) p. 109.
See Jan Martin Witte, Wolfgang Reinicke and Thorsten Benner, Beyond Multilateralism: Global Public Policy Networks (2000).
One of the most explicit endorsements of this claim was made at the 2005 World Summit. See for a brief summary “2005 World Summit: An overview” <www.un.org/ga/documents/overview2005summit.pdf> (accessed January 2018). See also Secretary-General of the United Nations, Report: “In larger freedom: towards development, security and human rights for all”, A/59/2005/Add.3 (2005); Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance (1995) p. 254.
Kenneth Anderson, “Review: What
Oren Perez, “Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law”, 10(2) Indiana Journal of Global Legal Studies (2003) p. 42.
Crawford Young, “In Search of Civil Society”, in J. W. Harbeson, D. Rothchild, and N. Chazan (eds.), Civil Society and the State in Africa (1994) p. 47. See also Julie Mertus, “Doing Democracy ‘Differently’: The Transformative Potential of Human Rights
Gary Johns, “Conspiracies and
Peter Simmons, “Learning to Live with
Hildy Teegen, Jonathan Doh and Sushil Vachani, “The importance of nongovernmental organisations (
Thomas Dichter, “Globalization and Its Effects on
Helmut Anheier, Marlies Glasius, and Mary Kaldor, “The Global Civil Society Yearbook: Lessons and Insights 2001–2011”, in M. Kaldor, H. L. Moore, S. Selchow, Global Civil Society. Ten Years of Critical Reflection (2012) p. 19.
See Steven Wheatley, “A Democratic Account of the Right to Rule in Global Governance”, 18(2) Swiss Political Science Review (2012) pp. 161–162.
Scholars predominantly argue that civil societies and
David W. Kennedy, “The International Human Rights Movement: Part of the Problem?” 15 Harvard Human Rights Journal (2002) p. 121.
Hugo Slim, “By What Authority? The Legitimacy and Accountability of Non-governmental Organisations”, Paper for The International Council on Human Rights Policy International Meeting on Global Trends and Human Rights – Before and after September 11, (2002).
See Cullen and Morrow, supra note 51; Johns, supra note 42.
See Kenneth Anderson, “The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organisations and the Idea of International Civil Society”, 11(1) European Journal for International Law (2000) p. 117.
See Anton Vedder (ed.),
A recent example of the tendency to prioritise
Helmut Anheier, “What Kind of Nonprofit Sector, What kind of Society?: Comparative Policy Reflections”, 52(7) American Behavioral Scientist (2009) p. 1090.
Julia Black, “Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes”, 2(2) Regulation & Governance (2008) p. 148.
Exemplary is the summary of Wheatley in which he dismisses the validity of the
Anderson, supra note 55, p. 117. As a reaction to that criticism, standardisation on independent institutional footing or accountability of
An interesting question in this regard is whether a tension arises between the endogenous precondition to remain independent and the requirements to internally democratise. The latter looses congruence with the former of course when it is not the
Jan Aart Scholte, “Conclusion”, in J. A. Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (2011) p. 333.
Ernst Hirsch Ballin, “Werking en verwerking van grondrechten”, in L. Heyde, J. Leijten, Th. Mertens, B.P. Vermeulen (eds.), Begrensde Vrijheid. Opstellen over mensenrechten aangeboden aan Prof. Dr D.F. Scheltens bij zijn afscheid als hoogleraar aan de Katholieke Universiteit Nijmegen (1989) p. 137, referring to Ernst Hirsch Ballin, “Subsidiëring van het identeitisgebonden particulier initiatief in een pluriforme samenleving: confrontatie met de eisen van een democratische samenleving”, 13(17) Tijdschrift voor Openbaar Bestuur (1987) pp. 351–355.
Charnovitz, supra note 5, p. 14.
See for example Macdonald’s statement, “[b]ut irrespective of the extent of the organizational transformations required, focusing on
Critics have continuously questioned the possibility to uphold the theoretical division between state,
Barbara Woodward, Global Civil Society in International Law-making and Global Governance. Theory and Practice (2010) p. 73.
Debora Spar and James Dail, “Of Measurement and Mission: Accounting for Performance in Non-Governmental Organizations”, 3(1) Chicago Journal of International Law (2002) p. 171.
See Simmons, supra note 46.
There is a diversity in defining
Most scholars and international agencies speak in general terms about the merits of
Frederick Barnard, Democratic Legitimacy, Plural Values and Political Power (2001), p. 149, referring to George Cole, “Conflicting social obligations”, 15 Proceedings of the Aristotelian Society (1915) p. 158.
See Louise Amoore and Paul Langly, “Ambiguities of Global Civil Society”, 30(1) Review of International Studies (2004) pp. 89–110.
My argument is in line with what Skocpol has argued in her study of the history of civil society in the United States. Skocpol has criticised the systemic approach of, among others, civil society theorist Putnam. See Theda Skocpol, Diminished Democracy. From Membership to Management in American Civic Life (2003).
In order to give analytical guidance for international organisations to clarify for what purpose civil society engagement is needed Pedraza-Fariña offers a helpful taxonomy. See Laura Pedraza-Fariña, “Conceptions of Civil Society in International Law-making and Implementation: A Theoretical Framework”, 34(3) Michigan Journal of International Law (2013) pp. 655–656.
Krut, supra note 26, p. 14; Simmons, supra note 46.
Michael Yaziji and Jonathan Doh,
See on the relationship between funding sources and
This fact complicates the analysis of the impact of
See for the possible effects of general associations of
For example, Pedraza-Fariña points out that a new governance conception of civil society understating strategies of collaboration and that views civil society as ‘partners’ of both government and business are often implicit but characteristic for the institutional design of
Also Amoore and Langly detect and criticise “the tendency to equate
Macdonald, supra note 67, pp. 44–45. The distinction between public and private is formally acknowledged, as states have, contrary to
Amoore and Langly, supra note 76, p. 92, referring to Richard Falk, “Global Civil Society: Perspectives, Initiatives, Movements”, 26(1) Oxford Development Studies (1998) p. 100.
MacIntyre argues that the studies of human behaviour cannot offer any general law-like observation, although they often assume to do exactly that. Alasdair MacIntyre, After Virtue (2011) pp. 93–102.
However, case studies are complicated by the fact that the efforts of
MacIntyre, supra note 88, p. 98.
According to Macintyre, studying
MacIntyre, supra note 88, chapter 7 and 8.
Charnovitz, warns us that the lack of common structures, roles of
I borrow the title from the Brooklyn Journal of International law, the Chicago Journal of International Law, and Chicago Kent Law School Symposium, “Governing Civil Society:
The scholarly tendency to focus on
Jan Klabbers, An Introduction to International Institutional Law (2005) p. 341.
Legitimacy is based on the belief of broad sections of the population that political institutions and their equipage are worthy of trust. Weber calls it “Legitimitätsglaube”. Weber put forward a sociological account of legitimacy that focuses primarily on faith, and excludes normative criteria. Weber distinguishes three main sources of legitimacy: tradition, charisma and legal rationality. Max Weber, The Theory of Social and Economic Organisation (1964) p. 382.
These standards are often part of the preconditions of
The complexity of the issue of for example demanding democratic accountability of
As Charnovitz states: “In my view, Pope Leo XIII was right when he warned that the state ‘should not thrust itself’ into societies and citizens banded together in accordance with their rights. Governmental bureaucrats and politicians do not have any special competence to oversee
See for a discussion on these liberal democratic expectations towards associations, Victor Muñiz-Fraticelli, The Structure of Pluralism, On the authority of Associations (2014) p. 245, referring to Rosenblum. Rosenblum considers the hope false and dangerous that “the character of all organisations could be reshaped to conform with principles of liberal and democratic legitimacy”. Rosenblum, supra note 93, pp. 36–42, pp. 57–60.
Ronald Dworkin, Sovereign Virtue: The theory and practice of equality (2000) p. 186.
Nerfin, supra note 37, pp. 54–57; Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000) pp. 113–114.
See Thomas Kelley, “Wait! That’s Not What We Meant by Civil Society: Questioning the
An exception is the International Labour Organisation, the only tripartite
Peters states: “It is precisely a feature of pluralist law-making processes to offer interest groups the opportunity to participate and give input into the process without requiring any democratic mandate”. As Peters concludes, “democratic legitimacy of
In an attempt to explain the bias towards the ‘good’ in scholarly writing concerning
Charnovitz’s selection of seven main tasks of
Amoore and Langly, supra note 76, p. 92, referring to Jeffrey Alexander, “The Paradoxes of Civil Society”, 12(2) International Sociology (1997) pp. 115–133.
Barnard, supra note 75, p. 149, referring to George Cole, “Conflicting Social Obligations”, 15 Proceedings of the Aristotelian Society (1915) p. 158.
As Klabbers states, “[w]hile we expect our statesmen to be democrats, and while we try to sell the blessings of it to those that have hitherto remained deprived of democracy, we simultaneously allow our spirits to be uplifted by the utterly undemocratic politics of civil society, conveniently ignoring the circumstance that civil society not only includes our noblest dreams, but may also include our worst nightmares”. Klabbers, supra note 96, p. 341.
Pedraza-Fariña has made a convincing point and theory to respond to the diversity of scholarly conceptions and scholarly expectations of civil society. Laura Pedraza-Fariña, supra note 78, p. 654.
Johns, supra note 45, p. 2.
Cox states that the possible implication of a biased focus on goodness is that the ‘dark forces’ of extreme right, terrorists, organised crime, and intelligence service remain out of sight, while at the same time further enjoying their ‘covert power’. Robert Cox, “Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order”, 25(1) Review of International Studies (1999) pp. 13–15.
Kenneth Andersson and David Reiff, “Global Civil Society, A Skeptical View”, in H. Anheier, M. Glasius, M. Kaldor (eds.), Global Civil Society (2004–2005) p. 5.
Mustapha Pasha and David Blaney, “Elusive Paradise: The Promise and Peril of Global Civil Society”, 23(4) Alternatives: Global, Local, Political (1998) p. 423.
Brandsen, Van de Donk and Putters, supra note 93, p. 760.
Peruzzotti, supra note 4, p. 164.
This is in stark contrast with the way accountability is a practical matter for states to participate. According to Spiro: “Governments can get away with an awful lot before having to answer to their membership, and yet of course that has supplied no argument against their participation in international institutions”. Spiro, supra note 3, p. 164, referring to the fact that not even democracy is in practice seen as a precondition.
Erika De Wet, “Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review”, in A. Von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions. Advancing International Institutional Law (2010) p. 1988; Eva Erman, “In search of democratic agency in deliberative governance”, European Journal of International Relations (2012) p. 16.
Peruzzotti, supra note 4, pp. 159–160.
See for a comparable argument: Peruzzotti, supra note 4, pp. 166–167.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 17, 1997, I-35597
<https://treaties.un.org/pages/showDetails.aspx?objid=0800000280006d60> (last visited June 2017).
This does not exclude the possible demand of members of specific