The Role of Non-Governmental Organisations in International Economic Law.
Introduction
International economic law is a legal regime and or a system of rules that seeks to offer a global framework for sovereign states, with reference to their conduct and regulation thereto in international economic relations, and their private parties’ rights and duties in cross- border economic and business transactions.
Whereas this legal regime is developed for sovereign governments through international institutions, particularly those concern with trade, financial law, economic integration, international investment, development law, business regulation and intellectual property, it’s the role of non-governmental Organisations that this paper seeks to explore, examine and analyse in the context of the sovereign interests, while aiming to establish the justification and legal underpinnings to that role.
Non-Governmental Organisations Establishments
The Non-Governmental Organizations Co-ordination Act, 1990 under section 2 defines “Non-Governmental Organization” to mean a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry and the supply of amenities and services.[1]
They are presumed to be independent entities from the state and other international government Organisations with diverse interests.
Non-Governmental Organisations and International Governmental Organisations Relationships
International economic law is largely developed by the World Trade Organisation (WTO) an international governmental organisation created in 1995 by the Uruguay Round Negotiations 1986-1994. Run by member governments, the WTO provides the common institutional framework for the conduct of trade relations among its Members and their legal trade agreements. It works to facilitate the implementation, administration and operation, and further the objectives, of trade, services and intellectual property agreements of member states by creating forum platforms for negotiations among its Members and a framework for the implementation of the results of such negotiations, as may be decided by the Ministerial Conference.[2]
This is by administering the Understanding on Rules and Procedures Governing the Settlement of Disputes, the Trade Policy Review Mechanism with a view to achieving greater coherence in global economic policy-making while cooperating, as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies.
International economics and trade in various aspects require a transboundary approach. This is so to ensure maximum liberal democratic participation of the people upon whom the trade negotiations and their resultant agreements impact on. This approach may take the form of transnational coalitions, international non-governmental organisations and global trade unions and various community based initiatives.
Given the complexity and diversity of interests in negotiating international trade agreements, there is need for regulators to be neutral, accountable and transparent in view of public concern. Non-governmental organisations are therefore, given their impact and influence in public societies, morally obligated to play a determinate role in international economic law affairs either directly or indirectly while also ensuring the rule of law and public policy of respective sovereign states and their social contracts of self-determination are upheld.
Advocacy and Awareness Role
Non-governmental organizations (NGOs) play an important role in the production and dissemination of knowledge about international trade. They can act as representatives of the people in advocating for their social-economic rights through researching, analyzing and informing the public on international economic issues while also lobbying the various positions of the public on trade negotiations and the policies derived from such decisions.[3]
Farmers in rural Kenya for instance may choose to address their issues on the intersection of policy and practice to ensure fair and sustainable food, farm and trade systems through the Institute of Agriculture and Trade (IATP) if they feel the position adopted by their government in the negotiations does not reflect grassroots consensus or even entirely lacks consultation.
The IATP can then research on the issues raised, analyse and upon conclusion disseminate information to both the public and international economic organisations on the issue. This information can be used to determine or influence the decision reached by both entities. The public may be made aware of their government negotiations and agreements and therefore use legal provisions to seek remedies while the WTO may be enlightened by this information in making its decisions.
Intermediary and Representative Role
Non-Governmental Organisations acts as links between the public, market and International Governmental Organisations. Established in 1964, for instance, the International Trade Centre (ITC) is the joint agency of the World Trade Organization and the United Nations. It is a development agency that is fully dedicated to supporting the internationalization of small and medium-sized enterprises (SMEs) by inclusive and sustainable economic development.
Through this, it not only contributes to achieving the United Nations Global Goals for Sustainable Development but also works towards creating trade impact for good and in so doing it not only represents SMEs and guarantees access to international trade and markets by interpreting and applying international economic law, but also ensures they are aware of the rules governing and regulating this markets as developed by WTO.
Fig 1. Relationship of Non-governmental institutions to International Governmental Institutions. Courtesy ITC.
W hile working to strengthen the integration of the business sector of developing countries and economies in transition into the global economy, improving the performance of trade and investment support institutions for the benefit of SMEs and improving the international competitiveness of SMEs, not only does the ITC represent the interests of the UN on research but as well help in the implementation of WTO rules of Trade within the SMEs.
Conflict and Dispute Resolution Role
According to Nelson[4], Non-governmental organisations can act as mediators and facilitators among disputing parties in trade conflicts. Given that they can monitor and assess conflict based on resources, they are better placed to identify causes of conflicts and therefore potentially prevent conflicts before they occur or in case of inevitability aid in resolving them. Developed for coordinating specific objectives and activities, they have a profound understanding of issues and therefore able to offer insights and resolutions on possible mitigation of potential problems that have or may arise.
Article V section 2 of the WTO Agreement provides that The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO. Given , as noted earlier, the trust NGOs gain and garner from the communities they seek to benefit and their understanding on feasibility of WTO undertakings they can therefore bridge and link the policy-making institutions and the people due to their understanding and knowledge on the lives, capabilities , attitudes and cultural characteristics of the people at the local level. This is important since it can help map out potential conflicts that may arise due to implementation of the policies of WTO or other international trade organisations while also, in case the conflict has already occurred, an informative basis for what possible action can be taken.
NGOs can facilitate communication upward from people to the government and downward from the government to the people. This linking role can therefore be key when it comes to facilitation of dialogue in trade conflicts. Further also they can engage the WTO thus underpinning their significance in arbitrating trade conflicts among international economic players. International Chamber of Commerce, the International Organization of Employers are two major UN NGOs that have played a significant role in solving trade disputes on the international arena underscoring the role of NGOs in interpreting international economic law.
Capacity Building Role
By providing educational programmes, training workshops and access to information portals, NGOs help in building the capacity of communities in International economics and trade. International economic trade being a complex undertaking, there is need for experts to aid in its understanding especially to developing countries and their local communities in order to facilitate for informed decision making in negotiations and agreements.
The International Confederation of Free Trade Unions responded positively to a UN initiative of promoting good trade and business ethics by adopting measures that are geared towards enhancing capacity building in their membership portfolio especially on sustainable economic trade practices.
While implementing the regulations adopted by international governmental organisations on economic trade, NGOs train and equip governments and communities with skills on various expectations as to rules and regulations governing international economic trade. They also finance small businesses subscribing to this training and thus further facilitating in their capacity building and development.
Undertaking this role, NGOs progress with the assumption of trade as a means to development. Action International for instance, Campaigns while lobbying on change to trade rules and cutting agricultural subsidies and in doing so it provides women with credit, working tools and skills training information with a view that such capacity will enable women to participate competitively in international economics and trade arrangements. On the other hand, Consumer International Advocates and campaigns for trade-related issues affecting consumers worldwide, including: Agricultural trade, Liberalization of services, competition policy, intellectual property rules, international finance, standards and transparency while ensuring accountability of institutions such as WTO. From replacing the state to reinvigorating education, NGOs play a key role in enabling public communities to gaining insights in international economic law and its operations.
Evaluation and Monitoring Role.
As an independent neutral party, NGOs play an oversight and watchdog role to governmental, international governmental organisations and other corporations engaged in development of international economic law and trade. They monitor and evaluate programmes, implementation on and of rules and regulations governing international trade while also providing feedback necessarily.
In so doing, they ensure transparency and accountability in international economic developments especially in trade negotiations and agreements that are of public concern. NGOs being specialized agencies can ands are able to track performance in various commitments of member states in the case of WTO. They can be involved in the trade policy and review mechanisms of international governmental organisations or be engaged by governments to carry out trade assessment reports and surveys in order to establish the impact of various policies regulating or enhancing trade with an aim to determine the effective issues in such matters.
As a statement of fact, specialized non-governmental organisations are highly involved in the implementation of trade policies and regulations and due to this participation, they are able to comprehend at first hand the impact and outcomes of such policies and therefore generate reports that may point out the weaknesses or strengths of such policies thus offering a chance to develop international economic law further to cater for the identified policy gaps or in some cases occasion deregulation from and for the concern parties.
By publishing their findings, NGOs aid and facilitate transparency in operations of International economic law development and its implementation and therefore creating reliable channels and sources for accountability in international economics policy makers and regulators to the public while also providing information to concern agencies or persons for further verification and clarification.
Casing the International Centre for Trade and Sustainable Development (ICTSD), as a good apotheosis, the goal of the organisation is to advance sustainable development through trade-related policymaking. It acknowledges the importance of trade related policy frameworks, particularly on a global scale, and how they impact on sustainable development and therefore engages trade negotiations by incorporating knowledge on economic, environmental and social issues and by so doing it ensures outcomes and agreements on trade negotiations reflect mutually acceptable solutions that are environmentally friendly and as well as economically empowering under the principle of intergenerational equity. ICTSD therefore acts as a watchdog on sustainable economic development which may or could have been ignored in trade negotiations.
Experts and Technocrats Role
International government organisations and governments rely on NGOs experts in developing, implementing and enforcement of international economic law. This role is undertaken while confronting controversial trade policies and agreements, communicating their outcomes and implications, consulting on how various trade policies and laws can be formulated and helping trading members to cooperate towards agreements.
NGOs being highly specialized in their areas of interest, they are well equipped and staffed with experts that are resourceful in understanding various trade issues and therefore better placed to advice international economic policy makers and regulators on trade law issues.
They can be engaged to prepare draft agreements, reports on disputed issues upon assessment of prevailing conditions, and implementation of agreements and policies. Currently, in the panel proceedings of the WTO, NGOs participate as observers with their right for submission in dispute settlements still debatable but expanding especially after two precedent cases, in particular, opened the door for NGOs to weigh in on trade agreements on the basis of environmental issues. Amicus curiae briefs were submitted in the very first case brought before the WTO Panel and Appellate Body, the U.S. – Gasoline case. The Panel, however, decided to follow the practice of the old GATT and did not consider these briefs.2 it was the U.S.-Shrimp case that opened the WTO door to amicus curiae.
Provisions have since then been provided for participation of NGOs in international economic law development under the WTO. DSU Article 13 grants the Panel the authority to accept and consider amicus briefs; The Appellate Body also has authority to accept and consider amicus briefs under Article 17.9 of the DSU and Article 16.1 of the Working Procedures.
However
the legal basis for this authority is somewhat uncertain based on article 17.9
of the DSU and article 16.1 of the Working Procedures.
This role
also encompasses and envisions NGOs as Agenda setters prior to negotiation or
on contentious agreements, and in other cases negotiating agreement outcomes on
behalf of trading parties while also legitimizing this trade outcomes given
that their judgments can be influential and decisive in public and political
support.
Given the broad and intensive engagement in development of international economic law, they also translate international economic law into domestic realities that are comprehendable and applicable in a context specific approach.
Conclusion
And so as international governmental organisations on economic law and trade expand to include other spheres of social life, NGOs have an important role to play in processes of rulemaking, implementation, and dispute resolution mechanisms and trade policy review mechanisms. NGOs being guided by the social consent of respective publics or their mandated institutions will continue, and legitimately so, to make new demands for participation in these aforementioned processes with an aim to ensure there is transparency and verifiable accountability in International economic trade, policies and regulations provided their neutrality remains and is not subject to question based on conflicting interests..
Bibliography
1. The Non-Governmental Organizations Co-ordination Act, 1990.
2. World Trade Organisation Agreement, 1994.
3. Nelson Jane, “The operation of Non-Governmental Organisations in the world of corporate and other codes of conduct”, Corporate Social Responsibility Initiative, Working Paper No. 34, Cambridge, MA: J.F Kennedy Scholl of Government, Harvard University, 2007.
4.
www.wto.org
[1] The Non-Governmental Organizations Co-ordination Act, 1990
[2] World Trade Organisation Agreement
[3] The operation of Non-Governmental Organisations in the world of corporate and other codes of conduct
[4] The operation of Non-Governmental Organisations in the world of corporate and other codes of conduct
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