Non-Governmental Organisations and the United Nations Human Rights System

Fiona McGaughey

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429781643
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Non-governmental Organisations (NGOs) have become important, although sometimes overlooked, actors in international human rights law. Although NGOs are not generally provided for in the hard law of treaties, they use the UN human rights system to hold Governments to account. A key way in which they do so is using State reporting mechanisms, initially the UN treaty bodies, but more recently supplemented by the Human Rights Council's Universal Periodic Review. In doing so, NGOs provide information and contribute to developing recommendations. NGOs also lobby for new treaties, contribute to the drafting of these treaties, and bring individual's complaints to the UN human rights bodies.

This book charts the historical development of the NGO role in the UN. It examines the UN regulation of NGOs but the largely informal nature of the role, and an exploration of the various types of NGOs, including some less benign actors such as GONGOs (Governmental NGOs). It also draws on empirical data to illustrate NGO influence on UN human rights bodies and gives voice to stakeholders both inside and outside the UN. The book concludes that the current UN human rights system is heavily reliant on NGOs and that they play an essential fact-finding role and contribute to global democratisation and governance.

1 Introduction

1 Introduction

There has been a growing interest in non-state actors in international law,¹ and in international human rights law, it has become clear that non-governmental organisations (NGOs) play a significant role.² In a largely voluntary system, bereft of enforcement mechanisms, NGOs hold Governments to account on their human rights obligations – monitoring ‘from below’, often using mechanisms of the United Nations (‘UN’) which monitors ‘from above’. Yet, despite the critical role played by NGOs, in the past it has often been overlooked in traditional doctrinal scholarship. That it is overlooked by lawyers is perhaps not surprising as with the exception of the limited opportunities provided for ‘consultation’ with NGOs in Article 71 of the UN Charter,³ there are almost no hard law provisions for the NGO role in subsequent human rights treaties. A theme in doctrinal scholarship on NGOs has been on the question of whether they have international legal personality and there is a lack of consensus on the answer to this question.⁴ This book is more concerned with fully understanding the nature of the NGO role and influence in international human rights law and, in particular, the UN human rights system.

1See, e.g. Math Noortmann, August Reinisch and Cedric Ryngaert (eds), Non-State Actors in International Law (Hart Publishing, 2015).

2David P Forsythe, Human Rights in International Relations (Cambridge University Press, 2006) 203–4; Michael Freeman, Human Rights: An Interdisciplinary Approach (Polity Press, 2011) 152; Laurie S Wiseberg, ‘The Role of Non-Governmental Organizations (NGOs) in the Protection and Enforcement of Human Rights’ in Janusz Symonides (ed), Human Rights: International Protection, Monitoring, Enforcement (UNESCO Publishing, 2003) 347, 350 (‘Role of NGOs in Protection of Human Rights’).

3Charter of the United Nations.

4See, e.g. Christine Bakker and Luisa Vierucci, ‘Introduction: A Normative or Pragmatic Definition of NGOs?’ in Pierre-Marie Dupuy and Luisa Vierucci (eds), NGOs in International Law: Efficiency in Flexibility (Edward Elgar Publishing, 2008) 1 (‘NGOs in International Law’).

NGOs began as almost extraneous to this system but have carved out a role for themselves in the international human rights framework, welcomed by the UN,⁵ but often resisted by States.⁶ In the last 70 years, they have become increasingly important. In 1994, the UN Secretary General noted that ‘NGO involvement has not only justified the inclusion of Article 71 [of the UN Charter] … but that it has far exceeded the original scope of these legal provisions’.⁷ NGOs have been influential in drafting international legislation,⁸ in bringing individual complaints to treaty bodies,⁹ and in the State-reporting processes of the UN human rights treaty bodies and the Human Rights Council’s Universal Periodic Review.¹⁰ The UN human rights treaties as a primary source of international human rights law are germane to the analysis of the human rights work of NGOs. There are nine core human rights treaties at the time of writing, with discussions underway on at least a further two.¹¹

5Strengthening of the United Nations System, 58th sess, Agenda Item 59, UN Doc A/58/817 (11 June 2004).

6Eduard Jordaan, ‘South Africa and the United Nations Human Rights Council’ (2014) 36(1) Human Rights Quarterly 90.

7General Review of Arrangements for Consultations with Non-Governmental Organisations: Report of the Secretary General, 1st sess, Agenda Item 3, UN Doc E/AC.70/1994/5 (26 May 1994).

8Cynthia Price Cohen, ‘The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child’ (1990) 12(1) Human Rights Quarterly 137–47; Zoe N Pearson, Global Civil Society and International Law-Making: Mapping the Boundaries (PhD Thesis, Australian National University, 2002).

9Hurst Hannum (ed), Guide to International Human Rights Practice (University of Philadelphia Press, 1984); Loveday Hodson, NGOs and the Struggle for Human Rights in Europe (Hart Publishing, 2011).

10Fiona McGaughey, ‘Advancing, Retreating or Stepping on Each Other’s Toes? The Role of Non-Governmental Organisations in United Nations Human Rights Treaty Body Reporting and the Universal Periodic Review’ (2017) 35 Australian Yearbook of International Law 187; Fiona McGaughey, ‘The Role and Influence of Non-Governmental Organisations in the Universal Periodic Review – International Context and Australian Case Study’ (2017) 17(3) Human Rights Law Review 421.

11The nine core treaties are, ordered by date of adoption by the General Assembly: International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’); International Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRoC’); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003); International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010); Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

Despite this influential NGO role, international law has traditionally been understood as the law primarily governing relations among States. Similarly, States have traditionally been viewed as the primary, if not only, actors in, and subjects of, international law.¹² A key limitation of the State-centrism of international law is in understanding the role of non-State actors, including NGOs.¹³ State-centric theories of international law remain influential but are subject to challenges. Slaughter, for example, reimagines State sovereignty as a disaggregated sovereignty and argues that the concept of the unitary State is a useful myth.¹⁴

12See, e.g. Malcolm N Shaw, International Law (Cambridge University Press, 2008) 1; Donald R Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2nd ed, 2014) 1.

13Pearson (n 8) 87.

14Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004).

In practice, it is clear that NGOs play an expansive role in contemporary society, at grassroots level, globally, and in between. They are significant actors in international development,¹⁵ in peacebuilding,¹⁶ in providing supports and services at a local level,¹⁷ and in ‘naming and shaming’ governments and businesses who breach human rights.¹⁸ They are also instrumental in mobilising the public to take action regarding human rights abuses,¹⁹ in carrying out research on human rights issues,²⁰ in influencing policy development,²¹ in lobbying for people’s rights, in taking cases on behalf of those whose rights have been breached, and in acting as amicus curiae for courts.²² Th...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Acknowledgements
• 1 Introduction
• 2 History of the NGO role in the UN human rights system
• 3 UN regulation of NGOs
• 4 NGOs, treaties, and treaty bodies
• 5 NGOs and the Human Rights Council
• 6 Conclusion
• Index