Mainstreaming Human Rights in International Economic Organisations: Improving Judicial Access for NGOs to the World Trade Organization
| Author | Nicola Jägers |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| DOI | http://doi.org/10.1177/016934410602400203 |
| Subject Matter | Part A: Article |
MAINSTREAMING HUMAN RIGHTS
IN INTERNATIONAL
ECONOMIC ORGANISATIONS:
IMPROVING JUDICIAL ACCESS FOR NGOs
TO THE WORLD TRADE ORGANIZATION
NICOLA JA
¨GERS*
Abstract
In January 2006 the World Trade Organization (WTO) published the report entitled The
Future of the WTO
1
– known as the Sutherland report after the chairman of the
commission that drafted the report – which reflects on the state of the WTO and the
challenges ahead. An entire chapter of this nine-chapter report is devoted to ‘transparency
and dialogue with civil society’.
2
This demonstrates the importance of this relationship for
the future of the WTO. In this article the role of civil society in the WTO is discussed.
3
It is
argued that the approach in the report is too cautious and a more far-reaching judicial
role for civil society in the future is necessary. It is submitted that enhancing the role of civil
society within the WTO is particularly important in light of mainstreaming human rights.
Netherlands Quarterly of Human Rights, Vol. 24/2, 229-270, 2006. 229
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
* Researcher/lecturer Public International Law, Center for Transboundary Legal Development, Tilburg
University, the Netherlands. In March 2006, Nicola Ja
¨gers joined the Board of Editors of the NQHR.
Prior to her joining the Board, her article was reviewed and approved by the Board of Editors on the
basis of anonimity in accordance with the refereeing procedure of the NQHR. The author is greatly
indebted to Professor W.J.M. van Genugten and Professor P.R. Baehr for their willingness to read
earlier drafts. Their comments have enriched the article. However, the views expressed are purely
personal and the author is responsible for any errors.
1
WTO Consultative Board, The Future of the WTO. Addressing challenges in the new millennium, 2004
(hereinafter: Sutherland report), available at: www.wto.org (accessed on 20 March 2006).
2
See Chapter V.
3
This article is part of an ongoing project carried out with the support of the Netherlands
Organisation for Scientific Research at several universities in the Netherlands on the conceptual and
practical impact of international human rights law on international law in general. The focus of the
research conducted at Tilburg University is on the question whether enhancing judicial participation
of NGOs may help in the mainstreaming of human rights.
230
The evolution towards judicial NGO participation in international human rights law may
serve as a source of inspiration.
1. INTRODUCTION
Traditionally, there is a strong focus on the State as the main actor in international law.
The role of other actors, such as individuals, international organisations, non-
governmental organisations (NGOs) and multinational corporations,
4
have however,
expanded over the years challenging a strict statist approach to international law. A
particular challenge to the traditional perspective is the increasing confrontation with
the concept of civil society acquiring juridical force. Especially in relatively new areas
of international law, such as the protection and promotion of international human
rights and the protection of the environment, NGOs have come to the fore as strong,
influential participants. In these fields (semi) legal possibilities have been created for
NGOs to participate in proceedings and to bring complaints.
The focus of this article is on the avenues for NGO participation that have been
established in the field of human rights. Firstly, the article explores the principle of
public participation in international law. The focus is on the evolution of NGO
participation in the human rights field from informal contacts to formal, judicial
participation.
5
This process shows an increased acknowledgement of the valuable role
NGOs can play in international governance, tapping into the expertise offered by
NGOs and elevating these organisations from mere ‘debating-clubs’ to serious
participants with legal standing.
The evolution that has taken place regarding NGO participation in international
human rights law is in stark contrast with the role NGOs are granted in international
economic law. Despite growing awareness of the linkages between trade and human
Nicola Ja
¨gers
4
See Ja
¨gers, Nicola, Corporate Human Rights Obligations. In search of accountability, Intersentia,
Antwerp, 2002.
5
NGOs are regularly considered to be the backbone of the international system for the protection of
human rights. For more on the role of NGOs in international human rights law see, inter alia, Brett,
Rachel, ‘Role of NGOs, An Overview’, in: Alfredson, Gudmundur et al. (eds), International Human
Rights Mechanisms: Essays in Honour of Jakob Th. Mo
¨ller, Martinus Nijhoff Publishers, The Hague,
2001, pp. 845-854; Baehr, Peter R., ‘Mobilization of the Conscience of Mankind: Conditions of
Effectiveness of Human Rights NGOs’, in: Denters, E. and Schrijver, N. (eds), Reflections on
International Law from the Low Countries, Kluwer Law International, The Hague, 1998, pp. 135-155;
Chinkin, Christine, ‘The Role of Non-Governmental Organisations in Standard Setting, Monitoring
and Implementation of Human Rights’, in: Norton, Joseph J. et al. (eds), The Changing World of
International Law in the Twenty-first Century: A Tribute to the Late Kenneth R. Simmonds, Kluwer Law
International, The Hague, 1998, pp. 45-66; Van Boven, Theo C., ‘The Role of Non-Governmental
Organizations in International Human Rights Standard-Setting: A Prerequisite of Democracy’,
California Western International Law Journal, Vol. 20, 1990, pp. 207-225.
rights
6
a comparable evolution of NGO participation in the main international
economic institutions has not (yet) occurred. Even though certain international
economic institutions –such as the World Bank –have provided limited space for
NGO participation, such possibilities are virtually absent from most. Notably, the
World Trade Organization (WTO) is recurrently perceived as being especially
unreceptive to NGO participation. The second part of this article focuses therefore on
the current state of affairs regarding NGO participation in the WTO, particularly in
the dispute settlement mechanism. The question arises whether the process, that has
taken place in the field of human rights, can serve as a source of inspiration for public
participation in international economic institutions such as the WTO. The underlying
hypothesis is that stronger participation of NGOs will assist in improving the
promotion and protection of human rights, enhance transparency and legitimacy of
international economic institutions such as the WTO and, in the final analysis, will
strengthen the rule of law in international trade.
Before discussing the role NGOs play on the international stage, it is necessary to
define the subject of this article: what is meant by an NGO?
7
Definitions regarding the
specific features of an NGO are rarely found or are very broad and formulated in
negative language; NGOs are usually defined by what they are not. For example, within
the UN system an NGO is ‘any such organization that is not established by a
governmental entity or intergovernmental agreement’.
8
Such a general definition
offers little guidance. In addition, NGOs are often defined for a specific purpose.
Frequently, the decisive factor is whether the particular organisation meets the criteria
for consultative status in the UN. However, all sorts of entities, also outside of the UN
Mainstreaming Human Rights in International Economic Organisations
Netherlands Quarterly of Human Rights, Vol. 24/2 (2006) 231
6
There is a growing body of scholarly writing on the issue. For a special focus on the WTO, see for
example, Petersmann, Ernst-Ulrich, ‘The ‘‘Human Rights Approach’’ advocated by the UN High
Commissioner for Human Rights and the International Labour Organization; is it relevant for WTO
law and policy?’, Journal of International Economic Law, Vol. 7, No. 3, 2004, pp. 605-627; Marceau,
Gabrielle, ‘WTO Dispute Settlement and Human Rights’, European Journal of International Law, Vol.
13, No. 4, 2002, pp. 753-815; Lim, Hoe, ‘Trade and Human Rights. What’s the issue?’, Journal of World
Trade, Vol. 35, No. 2, 2001, pp. 275-300; Howse, Robert and Mutua, Makua, ‘Protecting Human Rights
in a Global Economy, Challenges for the World Trade Organization’, 2000, available at: www.ichrdd.ca/
english/commdoc/publications/globalization/wtoRightsGlob.html (accessed on 20 March 2006).
7
For more on the issue of defining NGOs see, inter alia, Martens, K., ‘Mission impossible? Defining
NGOs’, Voluntas: International Journal of Voluntary & Nonprofit Organisations, Vol. 13, No. 3, 2002,
pp. 271-285; Kamminga, Menno T., ‘The Evolving Status of NGOs under International Law: a threat
to the inter-state system?’, in: Kreijen, Gerard (ed.), State, Sovereignty and International Governance,
Oxford University Press, New York, 2002, pp. 387-406; Baehr, loc.cit. (note 5); Charnovitz, Steve,
‘Two Centuries of Participation: NGOs and International Governance’, Michigan Journal of
International Law, Vol. 18, No. 2, 1997, pp. 186- 286.
8
Resolution 1996/31, 25 July 1996, para. 12. The UN was the first international organisation to afford
NGOs with an official position. Based on Article 71 of the UN Charter, NGOs can apply for
consultative status. The UN has developed certain standards that an NGO must live up to in order to
obtain consultative status but has failed to come up with a precise definition. The criteria can be
found in Resolution 1996/31.
To continue reading
Request your trial