Appendix 3.3 of the International Associations Statutes Series vol 1, UIA eds (1988)
Following discussion of a detailed report on the legal status of international non-governmental organizations (see Appendix 4.7).
In a report to the representatives of non-governmental consultative organizations it would be superfluous to emphasize the fact that non-profit-making international associations are becoming increasingly important in the various fields of international life. Nor can there be any doubt that this is so. Since the end of the last century, increasingly numerous and powerful private groups with objectives other than profit and extending to several countries, or even to the whole of international society, have been formed and are continually being formed in all branches of disinterested human activity, whether charitable or scientific institutions or societies for the defence of professional interests. The value of the contribution that such groups can make to progress in international relations has been clearly recognized by many governments. This attitude of governments with regard to non-governmental international organizations has been most strongly expressed in Article 71 of the United Nations Charter, which permits the general international organization established at San Francisco to associate non-governmental international organizations with the work of international economic and social co-operation on a consultative basis.
As in many other spheres of international law, positive legal practice on this point has remained far behind the development of events. In spite of the continually increasing social importance of non-profit-making international associations, it has not so far been possible to endow them with a juridical standing appropriate to their particular private requirements. The result is that their work is subjected to considerable difficulties, some of a specific and permanent nature arising from the lack of a formal legal status, others caused by the general obstacles place in the way of the development of international relations by the present world structure which, it may be hoped, is only temporary./
The lack of suitable legal status affects the work of non-profit-making international associations insofar as it may hinder them in the performance of the everyday legal acts necessary for the accomplishment of the work they have undertaken. Any international association may be called upon, at some time in its existence, to receive gifts and bequests, to collect contributions, to enter into contracts, to make legal provision for the disposal and administration of its property, to use its property for the attainment of the purposes for which it was created, to defend its rights or be a party to legal proceedings etc., all this in all the countries to which its work extends. In law, therefore, the problem is to give international associations the capacity to have rights and obligations and thus enable them to carry on their work.
In positive law, the capacity to possess rights does not automatically belong to all private groups of whatever nature. In principle private social organizations only become juridical persons if they are qualified or recognized as such under the legal system to which they are subject. In order to acquire legal capacity, non-profit-making national associations must be constituted in accordance with the regulations in force in the country in which they propose to carry on their work. The laws of that country will define the extent of the capacity granted to non-profit-making associations and will determine the particular provisions that they must observe in their operation. Moreover, it is understood that national associations must respect the legal provisions applicable, in the country to which they belong, to all persons entitled to rights and that they are also subject to all administrative and judicial regulations designed to ensure maintenance of public order and the enforcement of law.
It is clear that the capacity granted to non-profit-making domestic associations only has undisputed legal effect in the countries in which they were constituted. It is true that certain countries recognize associations constituted abroad as being entitled to rights; but this is a voluntary concession which each country is free to grant or not and which, when granted, it may withdraw at any time. The practice in this respect is extremely varied. Certain countries grant no rights to foreign associations, others make recognition subject to individual authorization and yet others give general recognition, but of varying scope. The rights accorded to foreign associations may in fact only comprise the right of being a party to an action at law in respect of legal questions arising abroad, or the right of making certain contracts, or the right of carrying on social activities, the latter right being, of course, exercised subject to local legislation. While granting foreign associations legal capacity on their territory, some countries only grant them the rights they enjoy in their country of origin. Others, on the contrary, after establishing that a foreign association has juridical personality in the country where it was constituted, class it, as regards status within their territory, with their domestic associations, even if such status includes rights refused by the country of origin to the association in question. In view of the multiplicity of national solutions, which may be further aggravated by the freedom left to each country to change its attitude regarding this problem, the legal situation of domestic associations which are obliged to defend their rights or to act abroad, is ill-defined and unstable. But that is the legal system which must now be applied to non-profit-making international organizations. As there is at present no international procedure for constituting private groups, if the non-profit-making international associations wish to acquire legal capacity they have no alternative but to place themselves under a national legal system and to constitute themselves in conformity with the legislative provisions of the legal system they have chosen, either because of the facilities and advantages that may be offered them by such national law on non-profit-making associations, or because of the geographical centre of their interests or because of the needs and material conveniences of their establishment. From the formal point of view, non-profit-making international associations agreeing to place themselves under a specific national regime become, in the view of their adopted country, truly national associations, while in the other countries in which their purposes oblige them to operate, they are legally regarded as foreign associations.
But if the uncertainty of their legal position is only a minor inconvenience to ordinary foreign associations, since purely domestic bodies are only called upon to act abroad in exceptional circumstances, international associations whose sphere of activities extends, by definition, to several countries, if not to the whole of international society, cannot in the long run be satisfied with any solution that does not assure them legal capacity and the right to pursue their social aims in all countries with which they are concerned. Consequently, in order to avoid the difficulties of dependence on a single legal system, which might limit their opportunities for international action, international associations may be tempted to adopt the form of national associations in each country in which they wish to be able to act. But the cure would be worse than the disease, for the international associations would thus be transformed into a series of national associations, between which all connection might finally disappear. A less dangerous solution for the international aspect might be that of international associations on the federal plan; legal and social action under legal systems other than that under which the international association itself was constituted could be carried on, when necessary, by the national associations which belonged to the federation. But there are international associations which are not organized on a federal basis, and among international federations of domestic associations there are many which cannot allow legal action affecting the work of the federation to be taken by national members. Such a practice might well result in a shifting of the federal balance to the detriment of the federation's powers.
If international associations are to be able to perform their social functions in a satisfactory manner, it therefore appears essential to seek a revision of their existing legal status under ordinary law, so that they may be able to operate in all countries to which their objectives extend. Some particularly large associations may possibly hope to obtain from States legal privileges which would actually meet all their practical needs for international operation. But this can only apply to very few international associations and even then political changes may cause the withdrawal of benefits previously granted. In any case the practical needs of the vast majority of international associations can only be fully satisfied by a system which bases their legal capacity and right to act in the countries to which their work may extend, on an imperative rule of international law, not on an optional concession by States. There are two ways of achieving this result. The most radical solution would be to free international associations from all formal ties with a particular national legal system. In this case their juridical personality would derive from registration with an international body. This formality evidently could not directly confer rights on international associations under the national laws governing their work, because the capacity to possess rights can only be granted by individual national law so far as that law is concerned. But by signing an international convention, the different States are free to give abstract recognition, under their own law, of the capacity to possess rights, with all the consequences they may wish to derive therefrom, to international associations constituted in accordance with an international registration procedure. In order to be effective, international procedure for constituting non-profit-making international associations should be supplemented by a convention giving some degree of legal capacity under the domestic laws of contracting States, and possibly the right to carry on their social work, to associations constituted directly on the international level, in accordance with procedure which should, moreover, be determined in the convention itself. The other alternative would be of such a convention to be based on the formal dependence of international associations on a national legal system. This second scheme would retain the obligation now imposed on international associations aspiring to perform legal acts, of being constituted in conformity with the provisions of a specific State's law. Under the terms of an international convention,the contracting States would nevertheless undertake to grant to international associations constituted in accordance with the domestic law of another contracting party, the rights necessary for the performance of their work.
The system based on international registration of international associations has undeniable advantages. The necessity for placing international associations under a national legal system seems difficult to reconcile with their international character. Being obliged to operate under national law, the association could not avoid being dominated by national influences and traditions. The human factor, the possible predominance in its work of members who were nationals of the country by whose legal system it was governed, would also tend to impair the international character of the association. In addition to this, many persons who would be willing to join an international association or to contribute to it, would hesitate to join a group constituted under foreign law. Moreover, political rivalry between States might result in the refusal of certain countries to admit on their territory international associations connected with a country of whose system and policy they disapprove; this danger could be avoided if the international associations could be directly governed by international law.
The truth of these considerations led a certain number of organizations top refer the absence of any legal status to dependence on an international legal system. But those international associations, and they are many, which are continually called upon to perform the current legal acts of everyday life, cannot afford the luxury, even for the sake of their international integrity, of remaining "itinerant" associations with no legal status. Thus it can easily be understood that the creation of international procedure for constituting international associations has always been one of the main demands of the international associations themselves. This was the objective of such efforts as the work of the Congress of International Associations in 1910 and 1913, the draft submitted in 1912 to the Institute of International Law by von Bar, the two draft conventions on the legal status of international associations based on the report of Nicolas Politis, the draft of the Institute of International Law in 1923 and the draft of the International Chamber of Commerce in 1928.
Up to the present, none of these attempts has led to any practical results. All have suffered from a failure to appreciate the real factors involved. The structure they established was based on the system of confirmation. This means that associations wishing to enjoy international status need only obtain registration by depositing their statutes with an international administrative body specially created for this purpose. The international body is obliged to accept all applications for registration, and may only refuse on the grounds that an application is not in the proper form. Thus any international association could get itself included in the international register, provided only that its statutes were drafted in conformity with the provisions of the Convention establishing this register; this would even apply to associations which were not sufficiently important or useful to deserve special international protection, whose activities might endanger international law and order or public order in different countries, or which were not even truly international.
This solution is obviously unacceptable. The registration of international associations actually involves very important legal consequences. The draft Convention establishing it also includes an undertaking by Contracting States to grant registered international associations legal capacity and the right to act on their territory. But it would be impossible to obtain such concessions from States for the benefit of all associations applying for registration. No Government would undertake such an obligation without being assured that its benefits would only be enjoyed by international associations giving proper guarantees of their importance, usefulness and legitimate purposes. A choice based on these principles should be made from associations wishing to enjoy international status, and as it has not been provided for in the registration procedure as contemplated in the above mentioned draft Convention, it will have to be made at a later stage.
Politis was well aware of this necessity. That is why the drafts based on his work provide that during a period of four months after Contracting States have been notified of registration, each State retains the right to refuse admittance to its territory to any registered association whose composition or purposes it considers incompatible with law and order. But in order to avoid sanctioning mere arbitrary action by States, the draft of the Institute of International Law gave the registered associations the right to appeal to the Permanent Court of International Justice against refusal by Contracting States. This was going far beyond the present scope of international law, and perhaps in a direction that is hardly desirable,even from the point of view of private interests, as has been well shown by the experience of various joint arbitration tribunals set up after the first World War. Such a solution was soon found to be impracticable. The draft of the International Chamber of Commerce abandons it, by maintaining without any international control, the right of States to refuse the benefits of the Convention on their territory to registered associations whose purposes, or the character of whose leading officers, they consider a danger to law and order in their respective countries. But each country thus remains absolutely free to decide whether or not legal capacity should be granted on its territory to an international association. Asunder common law, the capacity of international associations to possess rights is here derived, in the last analysis, from a concession by the territorial State, without any effective international obligation being imposed on States.
Thus the systems based on automatic registration of international associations necessarily lead to an impasse. Either the States are permitted to make a free choice, insofar as they are concerned, of registered associations, which shall enjoy the advantages of the Convention - a solution which offers no real security to the associations themselves; or an attempt is made to subject the decisions of States on this matter to international jurisdiction - a solution which the States cannot accept. There is only one way out of the difficulty. The system must be reversed, and discrimination between associations seeking international legal status must be introduced at the beginning of the international registration procedure. The international body responsible for registering international associations should no longer give effect to all applications. It should examine them thoroughly and be instructed to refuse to register associations which it considers to be of no value or perhaps even detrimental to the development of international relations, and only to accept those whose international usefulness it can vouch for. Only on this condition can States be justifiably required to surrender the right to choose the registered associations for themselves, and to give general recognition, on their territory, to the legal capacity required by all associations granted the benefits of registration by the competent international body.
This solution is not only designed to take account of the distrust with which States regard international associations. It also fulfils the requirements of the legal structure of modern societies. The attachment of private groups to a legal system is not a mere formality. It involves real integration of the group in the social life of the system to which it belongs and subjection to the laws and administrative and judicial controls of the legal system concerned. If it is desired to free international associations from the bonds which now attach them to national legal systems, it is not sufficient to attach them formally to the international legal system, leaving them entirely free from any real subjection to a higher social order of a governmental nature. In this case it is essential to replace the control new exercised over the existence and activities of international associations by the domestic legislation to which they are subjected, by an equivalent control by international law. But here domestic legal systems have two different procedures, which may, moreover, be combined. Either the groups wishing to constitute themselves on the territory of a State will be subjected to prior examination and will only be able to acquire rights by individual authorisation, or the States will surrender the right to prior examination and give general authorisation to non-profit-making associations freely to constitute themselves, because they are certain of being able to control their activities by the general procedures applicable to all legal acts performed on their territory. But this second possibility does not at present exist under international law, which has no general organs of control. Consequently if it is desired effectively to subject international associations to international law, there is no alternative but to make their constitution dependent on prior examination and authorisation by a special international body, extending this examination to supervision of the associations' activities, exercised by the same international body, in order to ensure that the activities of the authorised association in fact remain in conformity with the conditions under which authorisation was granted.
Such an important task could certainly not be entrusted to a subordinate administrative committee, as provided for in the previous draft conventions on the legal status of international associations. Only an important political body would carry sufficient weight with States for its decisions on the qualifications of international associations to enjoy international legal status to be accepted by the contracting parties as undeniable authority for the entitlement to rights, under their respective legal systems, of associations authorised to constitute themselves internationally. Within the existing structure of positive international organization, it is undoubtedly the principal organs of the United Nations which best satisfy this requirement. Of these organs, the Economic and Social Council is already responsible, under Article 71 of the United Nations Charter, for arranging consultations with non-profit-making international associations, which the Charter designates as non-governmental international organisations. Hence it would appear reasonable to make the Economic and Social Council responsible for examining applications for the registration by these non-governmental organisations, for selecting those which should be granted the benefits of international status and for supervising the activities of non-governmental organisations enjoying international status.
This was the basis of the draft on the international status of non-governmental organisations which the writer of this report, by agreement with Professor J.P. Nyboyet, submitted to the Study Committee on the legal status of non-governmental international organisations, set up by the Conference of Non-Governmental Consultative Organisations. This draft, which is attached as an annex, had two purposes. First, it attempted to define the conditions in which the economic and Social Council would judge the applications of non-governmental organisations for international legal status and supervise the activities of organisations whose applications were approved. Secondly, it attempted to define the scope of the legal status to be conferred, under the legislation of contracting States, on non-governmental organisations authorised by the Economic and Social Council, in order that these organisations should really be in a position to fulfil their social aims. Between these two equally necessary aspects of the international status of non-governmental organisations, our draft was designed to achieve co-ordination based on the idea that States would only agree to grant non-governmental international organisations sufficient rights on their territory, without being able to withdraw this concession individually, if they could have confidence in the Economic and Social Council's use of its powers of authorisation and supervision, under the procedure for international constitution of non-governmental organisations. Insofar as the proposed method was intended to stabilise and strengthen the legal position of non-governmental international organisations, it inevitably had to emphasise the necessary right of inspection by the Economic and Social Council of the operation of organisations wishing to acquire and retain the benefits of international legal status.
The Study Committee, however, considered that most non-governmental organisations would be opposed to such far-reaching intervention in their internal affairs by the Economic and Social Council. In order to allow for this traditional attachment of non-governmental organisations to the principles of freedom and independence, it might perhaps be possible to reduce the proposed controls on this or that particular point. The draft on international status submitted to the Study Committee, which was mainly designed to point out the various problems presented by the organisation of the international control required to establish an effective legal status for non-governmental international organisations, does indeed leave a certain latitude for discussion on the possible solutions of specific problems. But as to the actual necessity for effective control, there can be no concession on this point unless the result is to be either an international régime for non-governmental organisations that is left to the discretionary powers of States and consequently offers non real guarantee to the organisations; or a régime that is impossible in practice, because it provides no real link with any social structure. And whatever may be the methods of international control, they will always appear more onerous than the corresponding obligations devolving upon non-governmental organisations under certain domestic legislations; for since internal systems have general means of controlling all legal acts performed on their territory, they can afford to be more liberal in their supervision of non-profit-making associations than the international legal system, which in view of its general organisation would be obliged to stress the specific measures for controlling the non-governmental organisations granted the benefits of international status.
In these circumstances, it is perfectly natural that non-governmental international organisations should resign themselves to the practical disadvantages of attachment to a domestic legal system, rather than accept a régime which would result in restriction of their freedom of action.Moreover, it may be doubted whether the organs of the United Nations are yet in a position to exercise effective control of the activities of non-governmental organisations. Consequently; the Committee decided that until the development of international institutions establishes conditions in which a more reliable and less objectionable form of international control can be envisaged, the sole basis of the system should, for the present, be the formal attachment of non-governmental international organisations to the national legal system of their choice, though every effort should be made to obtain, by an international convention,recognition on the territory of all contracting parties of the legal status acquired by a non-governmental international organisation under the legislation of any State party to the convention. Having heard the views of the non-governmental organisations, the Rapporteurs responsible for the draft were among the first to propose this solution.
But it was not considered possible to apply it to all non-profit-making international associations. However precise a definition may be given to the concept of "association" or "non-governmental international organisation", it is inevitable that the international character of a private group must first of all depend on the intentions of its founders,as expressed in the statutes of the group. Hence, if an international convention grants certain advantages to associations having domestic legal status, but international in their purposes and character, it would be only too tempting and actually very easy for the directors of a purely domestic association to draft the statutes of their group in such a way as to make it appear international, and to claim the benefits of the convention. But States which had in theory adopted a convention granting legal status under the domestic legislation of all contracting parties to international associations constituted in accordance with the national laws of any one contracting party, could not allow the rights granted by the convention to a well-defined class of domestic associations to be extended, by means of a subterfuge, to all foreign associations. A convention of this kind must therefore include not only an abstract list of the characteristics required by an association if it is to be regarded as international under the terms of the convention; it must also designate the authority which will be competent, on the basis of the general definition, to decide, in a given case, whether an association claimingthe benefits of the convention fulfils the required conditions.
Such competence could not be granted to any of the States concerned;neither to the State on whose territory an association claiming to be international invokes the convention concerning this class of private groups, nor to the association's country of origin. In the first case, the only result would be to deprive the convention of all its force as soon as it was possible for States to withdraw all concessions generally granted by declaring that such and such an association could not be regarded as international. In the second case the status granted to an association in its country of origin could not be imposed on foreign States. Thus provision should be made for an international decision in cases of dispute, and it would certainly be easier not only to have such a decision in real disputes, which is a complicated and uncertain solution, but to introduce it in the form of prior distinction between purely national associations, and those having national legal status but an international character, the benefits of the convention being granted only to associations expressly included in the second category by an international body.
The preparation of the list of associations having domestic legal status and regarded as international for the purposes of a Convention granting legal status to such associations on the territory of all contracting States would not, moreover, require the creation of a new international body or even the introduction of special procedure. For this purpose it would be possible to make use of the distinction already established between international and domestic non-governmental organisations by the Economic and Social Council, as part of its functions under Article 71 of the United Nations Charter. There is a further reason for using the list of international non-governmental organisations having consultative status with the Economic and Social Council to determine the scope of a Convention on the general legal status of non-profit-making international associations. Indeed, the choice of the Economic and Social Council ensures not only authentic confirmation of the international character of non-governmental organisations included in the international category,but also an appreciation of the importance and usefulness of the contribution they can make to the work of international economic and social co-operation. This limitation of the scope of the Convention to be concluded to non-governmental organisations which have been authentically declared by one of the principal organs of the United Nations to be of international public utility undoubtedly makes it more probable that a large number of States will accede to the Convention. The same argument may be applied to non-governmental organisations which, in their international capacity, have obtained consultative or similar status with one of the specialised agencies of the United Nations. It would thus be justifiable to include them among the non-governmental organisations coming within the scope of the Convention granting international recognition of their domestic legal status, without there being any danger of thereby weakening its effect or of reducing the number of acceding States.
This was the solution finally agreed on by the Study Committee on the legal status of international non-governmental organisations and embodied in the Preliminary Draft Agreement designed to facilitate the work of these organisations, which it prepared in accordance with the terms of reference given to it by the Conference of Non-Governmental Consultative Organisations. The first Article of the Draft in fact stipulates that the proposed Agreement shall apply to non-profit-making associations which fulfil the following conditions:
(a) that they shall have been constituted in the territory of one of the acceding States and in conformity with its laws; and
(b) that they shall have been granted consultative status with the economic and Social Council or an equivalent status with one or other of the Specialized Agencies.
But by this formula the authors of the Draft in no way intended to exclude application of the system established by the Agreement to associations not conforming to the definition contained in Article I. The acceding States naturally remain free to extend the benefits of the Agreement to all associations they consider worthy of this privilege. This would have been necessary even if not stated in the text. The authors of the Draft nevertheless considered it advisable to repeat it expressly in Article I,paragraph 1, in order to show that they thought it desirable to extend the Agreement to associations which, although not coming within the category defined in Article I, could provide sufficient guarantees to merit stabilisation of their international legal status. But for the reasons given above, they did not think they could ask States for too extensive undertakings which could not be defined exactly in advance. Thus the application of the legal system provided for in the Agreement to associations not coming under Article I, paragraph 1, is left to the discretion of acceding States, whereas non-governmental organisations defined by the terms of this provision are entitled to it by virtue of an international obligation.
In determining the legal system to be instituted by the Agreement, the authors of the Draft had two alternatives. They could define it with reference to the legal position of non-profit-making national associations in the country of origin of the non-governmental organisation coming under the Agreement, or in the country in which that organisation wished to perform legal acts or carry on its social activities, by guaranteeing the organisations coming under the Agreement a minimum of rights which they would enjoy on the territory of all acceding States, whatever the regime applied to national associations in the country of origin or the country in which they wished to claim the benefits of the Agreement.
The second solution seems obviously more advantageous for non-governmental organisations. It would certainly facilitate the performance of their work in all countries bound by the Agreement, because it would enable them everywhere to acquire the rights essential for that purpose, such as those of being a party to legal proceedings, making contracts, possessing movable or immovable property and receiving gifts and bequests under certain conditions. This status could be extended in countries which grant national associations more favourable treatment than the minimum international status guaranteed to non-governmental organisations coming under the Agreement. In the opposite case, however, when the domestic treatment of non-profit making associations remains below this minimum international standard, non-governmental organisations entitled to the benefits of the Agreement would enjoy rights expressly conferred as a result of their international status, even if national associations in the country in which they intended to exercise them did not enjoy such full capacity. Thus in certain circumstances the system might oblige States to grant international associations constituted on their territory a more liberal regime than they accord to their own national associations, or to treat those having the legal status of foreign associations more favourably than national private groups. It is hardly probable that the majority of States would agree to endorse such an arrangement. The advantages of the status granted would therefore have to be bought at the cost of reducing the extent of the Agreement's acceptance which, in the end, would be contrary to the real interests of non-governmental organisations. Consequently, the Study Committee preferred not to claim,in principle, for non-governmental organisations coming under the Agreement, other rights than those enjoyed by non-profit making national associations under the laws of acceding States.
Under this system, non-governmental organisations coming under the Agreement would have exactly the same status in their country of origin as all other associations constituted under the laws of that country. And as the legal status of non-governmental organisations in other countries acceding to the Agreement would be based on recognition of their national legal status, they would have no claim in those countries to more rights than they possessed in their country of origin. But their legal status in countries acceding to the Agreement, other than the country in which they were constituted, might be inferior to their original legal status. This would be the case, for instance, when the country in which they claim application of the Agreement does not grant certain rights, which they enjoy in their country of origin, to non-profit making national associations; for their status in the different countries acceding to the Agreement must be determined on the basis of domestic treatment. Thus, the international status of non-governmental organisations coming under the Agreement would be subject to a twofold limitation. On the one hand it would be limited by the legal status of non-profit making associations in the organisation's country of origin, and on the other, by the treatment given to similar national associations by the country in which the benefits of international status were claimed.
Such is the broad outline of the system embodied in Article 2 of the Draft Agreement. But the authors of the Draft did not wish to produce a solution that might deprive international associations of advantages now actually granted to them under the laws of certain countries. There are, indeed,countries which, for purposes of legal status, place foreign associations on their territory on exactly the same basis as domestic associations,without being deterred by the consideration that complete equality may give the foreign association certain rights which it does not enjoy in its country of origin. Moreover, it may happen that the legal capacity of anon-profit making association, under the laws of the country where it was constituted, is fully recognised under certain foreign legal systems which do not, however, consider that they need grant their domestic associations such extensive rights. The text of Article 2 of the Draft, while based on the principle of two-fold limitation of the international status of non-governmental organisations, both by the legislation of their country of origin and by that of the country in which they operate, nevertheless attempts to reserve to acceding States, or those that may accede in the future, the right to grant to organisations coming under Article 1, if they so desire, more extensive rights than would be required by strict application of the general principle embodied in the Agreement.
Thus Article 2 of the Draft takes as a basis for the international regime for organisations benefiting under the Agreement, the legal status they enjoy in the country in which they were constituted. Nevertheless,acceding States retain the right to limit this status, on their territory,to the rights they grant to the most favoured category of similar organisations. Here the permissive form is intentionally used so as not to exclude the possibility of maintaining the original legal status of non-governmental organisations, even under the laws of acceding States which grant their domestic associations a less favourable status. But as it was not considered possible to impose on States an imperative obligation to treat non-governmental organisations constituted abroad more favourably, in certain circumstances, than domestic associations, acceding States are permitted, on their territory, under Article 2, para 2 of the Draft, to reduce the original status of non-governmental organisations constituted abroad to the status they themselves grant to their domestic associations, if the former is more favourable. It is, however, stipulated that this domestic status, which would then constitute one of the upper limits of the status enjoyed by non-governmental organisations constituted abroad on the territory of a State applying the powers granted under Article 2, paragraph 2 of the Draft, must be equivalent to that of the most favoured category of domestic association. This provision is designed for countries in which there are several different regimes for non-profit-making associations. The Draft Agreement provides that non-governmental organisations coming under this provision shall, in acceding countries other than the country in which they were constituted,be automatically included in the most favoured category of domestic associations, even if the latter must obtain an individual decision by the competent authorities in order to be included in this category. The Study Committee considered this inclusion fully justified because it would benefit organisations already authentically declared to be of international public utility by the Economic and Social Council or by one of the Specialised Agencies of the United Nations.
It should also be observed that the formula in Article 2 of the Draft is sufficiently wide to include, under the international status of organizations referred to in Article 1, not only legal capacity but also the right to carry on social activities. Here again, each acceding country may limit the right of action of organizations constituted abroad by the extent of the rights it grants to the most favoured category of similar domestic associations. Acceding States can naturally extend the legal status of non-governmental organizations as established by the foregoing provisions. This additional right of acceding States is expressly affirmed in Article 2, paragraph 3. At first sight, this provision might appear to be a mere truism. But it had to be inserted in order to allow States which, while according foreign associations the benefit of domestic treatment, are even prepared to grant them rights they would not possess under their original status, to maintain this attitude favouring the activities of non-governmental organizations. Had this clause not been inserted, the categorical terms of the first paragraph of Article 2 would undoubtedly have prevented any extension of the international regime or organizations coming under the Agreement, beyond the rights granted to them under the laws of their country of origin.
Certain States will regard Article 2 of the Draft as an attempt to codify positive customary law. Nevertheless, its adoption would represent some progress as compared with the present situation. If it appears probable that the Agreement designed to facilitate the work of non-governmental organizations is most likely to be adopted by States which even without being bound by the rectification of an international convention already voluntarily practise the policies it embodies, it may be allowed, without being too optimistic, that certain States now hostile or merely reserved in their attitude to international associations, may be persuaded to show more understanding towards non-governmental organizations when they are requested to make concessions to only a limited number of organizations,the importance and moral qualities of which have, moreover, been guaranteed by the granting of consultative status with the economic and Social Council or one of the Specialized Agencies of the United Nations.The Agreement's chances of success will naturally be still further increased if its adoption is recommended to States by a resolution of the United Nations General Assembly.
And even as regards States which already grant extensive rights on their territory to associations constituted abroad, accession to an international agreement that transforms their present voluntary practice into fulfilment of an international obligation, would be of undeniable practical value to organizations coming under this agreement. Accession would make it impossible for States to withdraw the status granted to international associations unless they denounced the Agreement. Thus the international legal position or organizations coming under the Agreement would have acquired a stability which is now totally lacking. It would still be necessary to prevent this stability from being entirely destroyed by too frequent denunciations. Hence the authors of the Draft Agreement attempted to give the organizations in question certain guarantees in the event of denunciation of the Agreement by a contracting State. This is the purpose of Article 8 of the Draft, which makes denunciation subject to six months' notice. During the period of notice, organizations would have the right to liquidate their property in the country entering the denunciation and freely to export all their funds. The effects of denunciations, in so far as they were detrimental to non-governmental organizations which settle in the country relying on the status established by the international Agreement, could thus be palliated to a considerable extent.Once the period of notice had expired, organizations which had not taken this opportunity would have only themselves to blame, and would be subject to ordinary law. Even then, denunciation would have no retroactive effect.Acts performed by organizations coming under the Agreement before the expiry of the period of notice, would remain valid and if such acts subsequently gave rise to disputes, the organizations in question would still be entitled to have recourse to the Courts of the State which had denounced the Agreement.
These provisions, and especially the freedom left to organizations coming under the Agreement to export their funds during the period of notice of denunciation without being bound by exchange restrictions, certainly appear more burdensome to the sovereignty of States than most of the other solutions proposed by the Study Committee. It is possible, therefore, that States will be opposed to them. But if they could not be included in the Agreement, this international instrument would lose much of its value for non-governmental consultative organizations. In practice, it would do little to improve their present position, so that it might legitimately be asked whether negotiation of an agreement of this nature would still answer a real need. In these circumstances it would be the non-governmental consultative organization's first duty towards themselves to use all the moral influence at their disposal to try to persuade States to adopt the clauses governing the right of denunciation.
Apart from Article 7 of the Draft, which determines procedure for accession to the Agreement and the conditions for its entry into force,and Article 9, which provides that the International Court of Justice shall have jurisdiction in case of disputes over the interpretation or application of the Agreement, all other provisions of the Draft, including Articles 3 to 6, are concerned with the problems raised by the increasing number of difficulties now affecting all human relations that extend across frontiers. At the time when the drafts based on the Politis report were prepared, that aspect of the matter could be ignored. Now it appears much more serious than the specific problem of the legal status of international associations. Domestic obstacles to the international movement of property and persons are now such that international associations, whose operation is indissolubly bound up with the international circulation of currency, goods, ideas and persons, are literally threatened with suffocation. If, as the United Nations Charter seems to indicate, there is a real desire to make full use of the assistance that non-governmental consultative organizations can render in the organization of international society, then a remedy for this situation is urgently required.
This raises a series of specific problems defined by the real difficulties encountered by non-governmental organizations in their international activities. These include difficulties affecting the issue of passports,visas and foreign exchange for official journeys by the directors and representatives of international non-governmental organizations. A further major problem is raised by exchange restrictions preventing the transfer from one country to another, and sometimes the local use, of the funds of organizations allocated to cover their operating expenses and finance their social work. There are also restrictions on the employment of foreign labour and the difficulties and expense of sending publications and documents. On all these points, measures should be devised to enable non-governmental organizations to continue operating internationally in spite of the legal, economic and social isolationism now practised by most nations of the world.
On the basis of their collaboration in the work of inter-governmental bodies, certain groups among the non-governmental consultative organisations consider that they should enjoy real exemption from the domestic restrictions that hinder their activities. This would mean claiming for non-governmental organizations real privileges and immunities modelled on those enjoyed by inter-governmental bodies. There seems no chance of this claim being accepted by the States. Moreover, it is entirely unfounded. In law, privileges and immunities can only protect the exercise of State powers. Thus there can be no question of granting them to non-governmental organizations. Non-governmental organizations doing international work could at the most emphasise the particular difficulty they encounter, by the very nature of their international activities, under the various domestic, legal and administrative restrictions and ask States to grant them some relaxation of the administrative regulations which now make the accomplishment of their task almost impossible. And even by this more modest request it would be difficult to obtain any important concessions from States, unless they had some guarantee that the benefits would only be enjoyed by a limited number of non-governmental organizations which were of undoubted international utility and could be trusted not to abuse them. Here again, it would therefore be advisable to define precisely the class of non-governmental organizations to be granted the benefits of measures designed to facilitate their international relations, which are at present hampered by domestic, legal and administrative obstacles.
This was the basis on which the Study Committee prepared the provisions of the Draft relating to difficulties experienced by non-governmental organizations, as a result of the present general domestic obstacles to progress in international relations. All these provisions apply to non-governmental organizations coming under Article 1 of the Draft, that is to organizations having consultative status with the Economic and Social Council or a similar status with one of the United Nations specialised agencies. The text of these provisions is not designed to exempt the organizations in question from domestic restrictions but, with regard to the specific points mentioned above on which it appeared essential to facilitate the work of international non-governmental organizations, it attempts to arrange domestic regulations so as to permit international transactions on the scale that is essential if non-governmental organizations are to accomplish their international task.In view of the complexity and diversity of domestic regulations in this field, it was not considered possible to produce precise technical solutions covering all these points calculated to remove all difficulties that might arise and which in any case could not be provided against in advance. For this reason the Study Committee preferred to insert in the Draft, for each class of problems raised by restrictions on private international relations, an undertaking by States to grant organizations coming under the Agreement the most favourable treatment within the general scope of their domestic regulations. If acceding States faithfully fulfil this undertaking - and are not all international obligations subject to such a reservation? - that will be sufficient to facilitate the international operation of non-governmental organizations to a considerable extent.
A more precise technical solution, independent of, and supplementing the provisions of the Agreement, might have been found for the problem of transferring funds, which now weighs heaviest on international non-governmental organizations. But the solution of this problem would require a very deep technical study, for which only the most general data can be indicated here. When considering the international distribution of funds belonging to non-governmental organizations, it may easily be concluded that transfer of such funds from one country to another as required by each organization, can be carried out by clearing on the total funds in different countries belonging to international non-governmental organizations. But this concession to non-governmental organizations might lead to evasion of domestic exchange regulations, so that States could not agree to it unless they had sufficient guarantee of proper control and that, to be effective, would have to cover each individual clearing operation. It would have to be shown that each such operation really concerned funds belonging to non-governmental organizations granted clearing facilities, that the purpose of the operation was to satisfy needs really arising from the statutory activities of these organizations,and that the use of the funds obtained by the operation was in conformity with the purpose for which clearing privileges were claimed. It would therefore be necessary to establish special clearing machinery to provide such control.
An ingenious proposal on these lines was made to the Study Committee by Mr. W. Harvey Moore. His proposal was to form an international company of which non-governmental consultative organizations could become members and which would have juridical personality on the territory of all countries acceding to the convention instituting it. This company would administer,as an international trust, the property entrusted to it by members and could thus automatically carry out international clearing operations. But on closer examination the proposal did not appear acceptable either to non-governmental organizations or to States. Non-governmental organizations could not agree to the administration of their property by the proposed fund, which would undoubtedly amount to control of their internal operation by a small private organization. And States would certainly not have sufficient guarantees if exchange operations were controlled by the very body that administered the property affected by the clearing operations. In addition to this, the legal form of a trust would be hard to establish in countries which do not recognise this institution.For these reasons the Study Committee did not feel that it could adopt Mr.Harvey Moore's proposal.
It is evident that the need for controlling clearing operations cannot be satisfied unless the operations are supervised by an inter-governmental body, or at least made part of an inter-State exchange control system.This determines the choice of the body that might be made responsible, in the present circumstances, for carrying out and supervising the international transfer of funds belonging to non-governmental organizations through clearing between the Bank for International Settlements and the International Monetary Fund. The precise conditions and technical procedure for such an international arrangement for transfer of funds belonging to non-governmental organizations through the Fund or the Bank, would have to be determined by negotiation with these two bodies. Mr. Habicht, the Chairman, was therefore instructed by the Study Committee to discuss this problem with the Bank for International Settlements at Basle. He twice took part in discussions on this subject at the headquarters of the Bank. These exchanges of views have not so far resulted in any concrete proposals. Before deciding their attitude on this or that technical solution, non-governmental organizations should realize that any real control of their international financial transactions will necessarily entail extensive control of their activities. Consequently, it will be for them to decide, first of all, whether they are prepared to surrender what may be an important part of their internal autonomy in order to obtain advantages for the international transfer of their funds,or whether they prefer to retain their autonomy of operation at the cost of continued financial difficulties.
1. Conference of Non-Governmental Consultative Organizations, Study Committee on Legal Status. (Statement by L Kopelmanas, Deputy Rapporteur). Geneva, 1 June 1949, MNGO/7/49