participation of ngo in ieg

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Participation of

Non-Governmental Organisations inInternational Environmental Governance:

Legal Basis and Practical Experience

On behalf of the Umweltbundesamt

Final Report

June 2002


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Contents

SUMMARY ........................................................................................................ 1

I. BACKGROUND: DEFINITION, CLASSIFICATIONS AND FUNCTIONSOFNGOS ................................................................................................... 1

II. THE PARTICIPATION OFNGOS IN INTERNATIONALENVIRONMENTAL POLICY-MAKING TO DATE ............................................ 5

III. OPTIONS FOR ENHANCING THE ROLE OFNGOS ......................................... 9

1. INTRODUCTION ...................................................................................... 17

2. GENERAL ASSESSMENT....................................................................... 21

2.1 DEFINITIONS, CLASSIFICATIONS AND FUNCTIONS OFNGOS .................... 21

2.1.1 Definitions.................................................................................21

2.1.2 Classifications ...........................................................................32

2.1.3 Functions, Activities and Channels of Influence......................40

2.2 PARTICIPATION OFNGOS IN RELEVANT INTERNATIONALINSTITUTIONS........................................................................................... 53

2.2.1 Multilateral Environmental Agreements...................................53

2.2.2 International Economic Institutions..........................................78

2.2.3 Other Relevant International Institutions ...............................100

2.2.4 Conclusion...............................................................................111

3. CASE STUDIES....................................................................................... 117

3.1 THE CLIMATE CHANGE REGIME ............................................................ 117

3.1.1 Overview .................................................................................117

3.1.2 Legal Provisions and Practice of NGO Participation .............125

3.1.3 The Kyoto Procedures and Mechanisms: New Challengesand Opportunities....................................................................135

3.1.4 Problems of NGO Participation and Proposed Solutions.......138

3.2 CONVENTION ON INTERNATIONAL TRADE IN ENDANGEREDSPECIES OF WILD FAUNA AND FLORA (CITES)..................................... 142

3.2.1 Overview .................................................................................142

3.2.2 Legal Provisions and Practice of NGO Participation .............146


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ix

List of Tables and Figures

Table 1: NGOs in international law: selected definitions andcriteria..................................................................................... 26

Box 1: International NGOs as defined in the Yearbook ofInternational Organizations.................................................... 29

Table 2: Assessment of Potential Classifications of NGOs................. 39

Table 3: Functions, Activities and Channels of Influence ofNGOs in International Environmental Co-operation............. 52


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xi

Abbreviations

AOSIS Alliance of Small Islands States

ATCMs Consultative Meetings of the Parties to the Antarc-tic Treaty

ATS Antarctic Treaty System

BIAC Business and Industry Advisory Committee

BINGOs Business and industry NGOs

CAO Compliance Advisor and Ombudsman

CAN Climate Action NetworkCBD Convention on Biological Diversity

CCAMLR Commission for the Conservation of Antarctic Ma-rine Living Resources

CDM Clean Development Mechanism

CIME Committee on International Investment and Multi-lateral Enterprises

CITES Convention on International Trade in EndangeredSpecies of Wild Flora and Fauna

COP Conference of the Parties

CSD Commission on Sustainable Development

EBCDM Executive Board of the Clean Development Mecha-nism

ECOSOC Economic and Social Council

ENGOs Environmental Non-Governmental Organization

FIELD Foundation for International Environmental Lawand Development

GEF Global Environment Facility

IAEA International Atomic Energy Agency

IBRD International Bank for Reconstruction and Devel-opment


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xii

ICSU International Council of Scientific Unions

IDA International Development Association

IEC International Electrotechnical Commission

IFC International Finance Corporation

IGOs International Governmental Organization

ILO International Labour Organisation

IMF International Monetary Fund

INC Intergovernmental Negotiating Committee (for aFCCC)

INEM International Network for Environmental Manage-ment

ISO International Organization for Standardisation

IUCN International Union for the Conservation of Nature

IWC International Whaling Convention

JI JointImplementation

MAI Multilateral Agreement on Investment

MEAs Multilateral Environmental Agreements

MIGA Multilateral International Guarantee Agency

MOP Meeting of the Parties

NAAEC North American Agreement on Environmental Co-operation

NAFTA North American Free Trade Association

NGOs Non-Governmental OrganizationsOECD Organization for Economic Cooperation and De-

velopment

QUANGOs Quasi-Autonomous Non-Governmental Organiza-tions

PINGOs Public Interest Non-Governmental Organizations

PRSPs Poverty Reduction Strategy Papers

xiii

ROP Rules of Procedure

SAP Structural Adjustment Programmes

SAPRIN Structural Adjustment Participatory Review Inter-national Network

SBI Subsidiary Body for Implementation

SBSTA Subsidiary Body on Technological and ScientificAdvice

SCAR Scientific Committee on Antarctic Research

TC 207 ISO Technical Committee 207

TRAFFIC Trade Records Analysis of Flora and Fauna inCommerce

TUAC Trade Union Advisory Committee

UNCCD United Nations Convention to Combat Desertifica-tion

UNCED United Nations Conference on Environment andDevelopment Collection

UNCTAD United Nations Conference on Trade and Develop-ment

UNECE United Nations Economic Commission for Europe

UNEP United Nations Environment Program

UNFCCC United Nations Framework Convention on ClimateChange

UNFF United Nations Forum on Forest

WIPO World Intellectual Property OrganizationWTO World Trade Organization

WWF World Wide Fund for Nature


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Summary

The importance of non-governmental organisations (NGOs) in interna-

tional environmental co-operation has increased tremendously over thelast decades. Accordingly, the participation of non-governmental actorshas become a prominent subject for research, resulting in a dynamicallygrowing body of literature on the subject, especially in the legal and socialsciences. However, only a limited effort has been made to systematicallyanalyse the relationship between the legal basis and the practical influenceof NGOs in different areas of international environmental co-operation.

Against this backdrop, this study first lays a conceptual basis by re-viewing existing definitions of NGOs, elaborating the functions NGOs

perform in international environmental policy-making and examiningvarious criteria that can serve to distinguish different types of NGOs (I). Itthen analyses in more detail the legal basis and the practice of NGO par-ticipation in Multilateral Environmental Agreements (MEAs), economicinstitutions, and other relevant international institutions. Constraints onthe role of NGOs are also identified. On the basis of the state of develop-ment of related principles of international law, this analysis includes anassessment of the extent to which NGO participation in international in-stitutions can be considered legitimate ground (II). Finally, the studyidentifies and discusses a number of options for enhancing the role of

NGOs in international environmental governance (III). The full study alsocontains detailed case studies on the role of NGOs in two environmentaltreaty systems (climate change and trade in endangered species) and twoeconomic institutions (International Organisation for Standardization,ISO; and the World Bank). A total of close to almost 40 representatives ofgovernments and different NGO constituencies as well as secretariat staffwere interviewed in undertaking these case studies.

I. Background: Definition, Classifications and Func-

tions of NGOs

While no commonly applied definition of NGOs exists in internationallegal instruments or in the relevant literature, the review of internationallaw undertaken in this study identifies three minimum criteria that appearto be applied generally in international institutions for purposes of ac-creditation. First, NGOs are distinguished from organisations established

by inter-governmental agreement. Second, NGOs, in order to be accred-ited need to establish an expertise or other interest in the subject matter of


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2. General Assessment

It is generally recognised by the relevant literature on the role of civil so-

ciety in international law and policy that NGOs have become an increas-ingly influential class of actors.1 At the same time, the role of NGOs ininternational environmental policy is still evolving, as reflected in the re-lated rules and practice of various international institutions. Bearing inmind the evolutionary character of the subject, Section 2 of this study at-tempts to take stock of the current status of NGO involvement in interna-tional environmental policy by drawing on both the rules that currentlyexist in relevant international institutions and existing insights from re-search. Section 2.1 lays the basis by reviewing existing definitions andclassifications of NGOs as well as giving an overview of the variousfunctions that NGOs perform in international environmental politics. Insection 2.2, the legal provisions and the practice relating to NGO in-volvement are reviewed with respect to three different areas of interna-tional politics relevant to the environment: multilateral environmentalagreements (MEAs), economic institutions, and other relevant interna-tional institutions.

2.1 Definitions, Classifications and Functions of NGOs

2.1.1 Definitions

While a large number of international legal instruments refer to NGOs2

and the body of literature on the subject is growing, there is no commonlyapplied definition of the term non-governmental organisation.3

However, any study about NGOs needs to delimit its object of researchand thus needs a definition of NGOs. In the following, therefore, a numberof elements of a definition of NGOs as (a) applied in various internationallegal instruments and (b) put forward in the scientific literature areintroduced and discussed in order to derive (c) a working definition for the

purposes of this study. Since our study deals with the legal basis andpractice of NGO participation in a number of different institutions, the

1 E.g. Peterson (1992); Princen and Finger (1994); Risse-Kappen (1995); Smith

et. al. (1997: 74-77); Keck and Sikkink (1998).2 E.g. Article 71 UN-Charta, Chapter 27 of Agenda 21, Article 23 paragraph 5

CBD, Article XI paragraph 7 CITES, Article 7 paragraph 6 UNFCCC.3

Riedinger (2001: 30).


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General Assessment26

Table 1: NGOs in international law: selected definitions and criteria

Institution Instrument(s)/Provision Definition and Criteria Main Aspects

UN

ECOSOC

UN ECOSOC Res. 288 B(X)of 27 February 1950, Review

of Consultative Arrangementswith Non-Governmental

Organizations, Paragraph 8 as

amended by ECOSOC Res.

1296 (XLIV) of 23 May 1968,

Arrangements for

Consultation with Non-

Governmental Organizations,

Paragraph 7.

UN ECOSOC Res. 1996/31 of

25 July 1996, Consultative

relationship between the Unit-

ed Nations and non-govern-

mental organizations, Part I.

Res. 288 B(X) and Res. 1296 (XLIV): Any international organization which isnot established by inter-governmental agreement shall be considered as a non-

governmental organization for the purpose of these arrangements, includingorganizations which accept members designated by government authorities,

provided that such membership does not interfere with the free expression of

views of the organization.

Further criteria applied by Res. 1996/31, Part I: expertise (No.1, No.4, No.9),

support for UNs work and principles (No.2, No.3), representativity (No.9,

No.11), headquarters and executive officer, democratic structure, internal

transparency, accountability (No.10, No.12), funding must come in main part

from contributions of national affiliates or other components or individual

members, other sources of funding must be made transparent (No.13)

i) founding act;

ii) no governmental control over

activities;iii) support for UNs work and

principles;

iv) expertise or representativity;

v) NGO-governance

(headquarters, democratic,

transparent, accountability);

vi) generally non-profit-making,

disclosure of outside funding-

sources.

UNCTAD Arrangements for theparticipation of non-

governmental organizations in

the activities of the United

Nations Conference on Trade

and Development, UNCTAD,

Trade and Development BoardDecision 43 (VII) of 20

September 1968.

1) The organization shall be concerned with matters of trade and of trade as

related to development...

2) Relationship arrangements are to be made...to secure information or advice

from organizations having special competence...[and] to enable organizations

which represent important elements of public opinion to express their views...

3) The aims and purposes of the organization shall be in conformity with the

spirit, purposes and principles of the Charter of the United Nations.

4) ...shall undertake to support the work of UNCTAD....

5) ...shall be of recognized standing and shall represent a substantial proportionof the organized persons within the particular field in which it operates...

6) ...shall have established headquarters with an executive officer [and a] policy-

making body...7) ...shall have authority to speak for its members through its authorized

representatives...

8) ...shall be international in its structure...not established by intergovernmentalagreement..

i) founding act;

ii) support for UNs and

UNCTADs work and

principles;

iii)expertise or representativity;

iv)NGO-governance (headquarters,

policy-making body, authority

to speak for its members);

Definitions, Classifications and Functions of NGOs 27

Institution Instrument(s)/Provision Definition and Criteria Main Aspects

Council of

Europe

Article 1 of the European

Convention on the

Recognition of the LegalPersonality of International

NGOs , Council of Europe,European Treaty Series

No. 124 of 24 April 1986

(entry into force: 1 January

1991).

This Convention shall apply to associations, foundations and other private

institutions (hereinafter referred to as NGOs) which satisfy the following

conditions:

a) have a non-profit-making aim of international utility;

b) have been established by an instrument governed by the internal law of a Party;

c) carry on their activities with effect in at least two States; and

d) have their statutory office in the territory of a Party and the central management

and control in the territory of that Party or of another Party.

i) Founding act;

ii) no governm. control over activ.;

iii)org. base in contracting Party

iv)not-for-profit aim;

v) international activities;

vi)activities must be of benefit to

the intern. community.

1985

Vienna

Convention

Article 6 paragraph 5

Vienna Convention

Any body or agency, whether national or international, governmental or non-

governmental, qualified in fields relating to the protection of the ozone layer which

has informed the secretariat of its wish to be represented at a meeting of the

Conference of the Parties as an observer may be admitted unless at least one third

i) National or international;

ii) Expertise in the area of

protection of the ozone layer.


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3. Case Studies

Part 3 assesses in more detail NGO participation in policy-making in two


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Part 3 assesses in more detail NGO participation in policy-making in twointernational environmental institutions/MEAs (UNFCCC: section 3.1;

CITES: section 3.2) and in two international economic institutions (ISO:section 3.3; World Bank: section 3.4). In each of the cases, the legal basisand practice of NGO participation are investigated in more detail with re-spect to the particular political decision-making process of the institution.In addition, deficits with respect to NGO participation and options for ad-dressing these and enhancing NGO participation are identified with re-spect to the institutions analysed in the case studies.

In addition to official documents and the available literature, the analy-ses in the case studies of Part 3 are based on interviews with relevantstakeholders. Interviews were half-standardised, i.e. they were based onan interview guideline that provided the general topics and questions to be

pursued with the interviewees (but did not determine the exact order andwording of questions). The guidelines for interviews are reproduced inAnnex 1. The interviewees were selected so as to include in particular of-ficials of the relevant secretariats, government representatives and repre-sentatives of the major NGO constituencies active/interested in the re-spective institution. A list of interviewees for each of the case studies iscontained in the reference section. The case studies refer to the interviewsas specifically as possible. No specifics are given where interviewees

asked that information they provided should not be assigned to them.

3.1 The Climate Change Regime

3.1.1 Overview

The following case study is based on the authors personal experience as aNGO and a government delegate during ten years of the negotiation of the1992 UN Framework Convention on Climate Change and its Kyoto Proto-col, supplemented by additional research and interviews conducted with

the seven individuals listed at the end of this report. The interviewees in-clude the NGO liaison official of the UNFCCC Secretariat, leading figuresfrom the ENGO community from both the north and the south, an industrydelegate from an industrialised country, and government officials fromnorth and south who have participated as delegates, chairs and bureaumembers in the negotiation process.


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Interviewees

The following individuals were interviewed in connection with the case studies:

UNFCCC case study

Barbara Black, UNFCCC-SEC, July 2001.

Jennifer Morgan, WWF-International, October 2001.

Bill Hare, Greenpeace International, October 2001.

Agus Sari, CANSEA/Delegation of Malaysia, October 2001.

Tom Jacobs, DuPont, November 2001.

Ambdr John Ashe, Antigua and Barbuda and SBI Chair.

References 285

John Henry, Secretary, TC 207 NGOTG, Standards Australia International, August2001.

Ed Shoener, A L-organisation and NGOTG participant, Ecologia USA, August 2001.

Jason Morrison, US delegation participant and Chair, TC 207 NGOTG, Pacific Insti-tute, August 2001.

Ossie Dodds, UK delegation to ISO/TC 207, for British Standards Institution, August

2001.Dr Abu Bakar Bin Jaafar, Department of Standards Malaysia, August 2001.

Matthias Gelber, International Network for Environmental Management (INEM),August 2001.

Klaus Lingner, ISO Central Secretariat, Geneva, September 2001.

World Bank case study


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Harald Dovland, Norway and SBSTA Chair.

CITES case study

Michael Bean, Environmental Defence, September 2001.

Jon Hutton, Africa Resources Trust, August 2001.

Gerhardt Adams, BMU, September 2001.

David Favre, Detroit College of Law, Michigan State University, August 2001.

Teresa Mulliken, TRAFFIC International, October 2001.

Jacques Berney, IWMC - World Conservation Trust, August 2001.

Manfred Niekisch, University of Greifswald, September 2001.

Peter Sand, University of Munich, August 2001.

Petra Deimer, Gesellschaft zum Schutz der Meeressugetiere e.V., September 2001.

Chris Wold, Centre for International Environmental Law, October 2001.

Julian Newman, Environmental Investigation Agency, September 2001.

James Martin Jones, WWF-UK, September 2001.

Jim Armstrong, CITES Secretariat, November 2001.

John Robinson, Wildlife Conservation Society, August 2001.

ISO case study

Ahmad Husseini, Secretary, ISO/TC 207, Canadian Standards Association, August2001.

World Bank case study

Barbara Unmig, WEED, September 2001.

Bruce Jenkins, Bank Information Centre, October 2001.

Charlotte Streck, World Bank, October 2001.

David Hunter, CIEL, Washington D.C., September 2001.

Doug Hellinger, Development GAP, Washington DC, August 2001.

Dr. Fllenbach, German Federal Ministry for Economic Cooperation, September 2001.

Fernando Carvalho, IBASE (Brazil), October 2001.

Heffa Schcking, Urgewald, September 2001.

Heike Mainhardt, WWF US, October 2001.

Carol Welch, Friends of the Earth US, Washington D.C., USA, October 2001.

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