With interminable discussion about the TRIPS Waiver in mind it's interesting to see 'New Responses to the Legitimacy Crisis of International Institutions: The Role of ‘Civil Society’ and the Rise of the Principle of Participation of ‘The Most Affected’ in International Institutional Law' by Jochen von Bernstorff in (2021) 32(1) European Journal of International Law 125–157 -
a description and assessment of the most important discursive strategies used to enhance and justify various models of ‘civil-society participation’ in international institutions since the late 19th century. It starts from the assumption that the two main rationales for, or concepts of, ‘civil-society’ participation are functionalism and democratization. The article also notes that, as an offshoot of the democratization rationale, a new empirical and discursive 21st-century trend has partially replaced classic non-governmental organizations (NGOs) with so-called ‘affected person’s organizations’ in international institutions. In this context, the article claims that the field of international institutional law is currently witnessing the rise of a principle of participation of ‘the most affected’. This shift arguably is an institutional strategy to respond to a profound legitimacy crisis of both international NGOs and the so-called ‘global governance’ structures shaped over the last 30 years. Against the backdrop of various theoretical approaches to the problem of representation and affectedness in political philosophy and international law, the article critically assesses if, and to what extent, the involvement of ‘the most affected’ in international organizations can alter the legitimacy resources of international law and its institutions.
Von Bernstorff comments
In the 1990s, ‘civil-society’ participation in ‘global governance’ through the involvement of non-governmental organizations (NGOs) was seen as a panacea-like concept meant to ‘democratize’ international institutions and to facilitate the realization of ‘common interests’ in international law. This article starts from the empirical assumption that the idea of NGO representation of abstract common interests, such as environmental protection or fighting impunity from human rights violations, has given way to the more recent principle of participation of ‘the most affected’ in international institutions. Classic NGOs in various fields of law- and policy-making are increasingly being replaced by local and transnational social movements, so-called ‘affected persons’ organizations’ (APOs), in reaction to a perceived crisis of legitimacy and a backlash against both international institutions and international NGOs. This trend has, over the last 10 years, already transformed rules of civil-society participation in at least 20 prominent international organizations.
For example, members of indigenous groups and peasant organizations have successfully lobbied for new rights instruments and institutional reform to ensure protection, participation and influence. Persons affected by HIV/AIDS, tuberculosis and malaria have been accorded designated seats on decision-making bodies in the Global Fund, UNITAID and other institutions of global health governance. Organizations that represent disabled people took on a strong role in the negotiations of the UN’s Convention on the Rights of Persons with Disabilities. Working children movements from the Global South challenged the Western understandings of child labour at various intergovernmental organizations (IOs). Among the first institutions which modified their rules of procedure accordingly were the Committee on World Food Security (CFS) in Rome, the Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities (CRPD) and the World Health Organization (WHO). In the fight against climate change, international institutions are also experimenting with new forms of participation of the most affected in the form of APOs. Over the last 10 years, powerful global networks of social movements have been created. Via Campesina, a global network of local peasant movements and perhaps the most influential non-state and non-business actor in the UN Food and Agriculture Organization (FAO), is a salient example of a social movement claiming the status of an affected persons’ organization. Classic international NGOs are now forced to co-operate with social movements representing ‘the most affected’, or else they increasingly lose influence. Another example from a different field are the ‘White Helmets’, a volunteer organization of rescue workers providing help to those affected by the civil war in Syria, who have emerged as a new actor in international humanitarian law.
Activists involved in these movements do not want to exercise formalized decision-making powers. Rather, the general idea is to participate in institutionalized deliberation in order to influence the content of adopted decisions. For social movements, participation in international institutions is one strategy among others aimed at fostering the transnational mobilization of social resistance against perceived hegemonic networks of powerful national administrations, scientific expertise and influential corporate actors. The status of speaking, if credible and well-coordinated, for those who are being negatively affected on the ground by certain norms and policies can give these voices a high moral and empirical persuasiveness in these institutional settings. Usually, however, positions taken by APOs are more radical and uncompromising than those of classic NGO representatives. Even without formal voting rights, APOs can have a considerable impact on the content of new international norms, standards and decisions; one striking example being the negotiations on the UN Convention on the Rights of Persons with Disabilities, during which many persons with disabilities representing disability APOs participated under the motto ‘nothing about us without us!’ and exerted considerable influence on the content of the new document.
The general concept of affectedness is, of course, not new; nor has it remained unobserved by researchers in social sciences. To start with, it is a basic and longstanding democratic ideal that those affected should have a say on issues that concern them. In traditional Western democratic theory, from Kant to Rawls, being affected by rules enforced in a certain delimited territory has been conceptualized as requiring elections of representative bodies on a ‘one citizen, one vote’ basis to ensure equal influence of affected individuals on the composition of parliaments and executive bodies. More recently, global justice scholars have sought to conceptualize an ‘all-affected principle’ (AAP) as a normative expectation for law- and policy-making with transnational effects and extensively discussed its potential implications from the perspective of political philosophy. More relevant to the specific phenomenon under scrutiny here, Nancy Fraser proposed to replace the ‘all-affected principle’ with a more specific principle of involving all those groups ‘subjected’ to a given transnational governance structure (‘all-subjected principle’). Legal scholars in this context have framed new forms of participatory and multi-level policy-making as ‘global experimentalist governance’, or, like Richard Stewart, have developed normative frameworks from a global administrative law (GAL) perspective in order to scan institutional access norms for unjustified ‘disregard’ of affected interests.
While building on some of these strands of scholarship in law and political philosophy dealing with the involvement of social movements in current global governance structures, this article attempts to go beyond the current state of the debate. It starts from the empirical finding that a considerable number of IOs have already changed their rules of procedure in order to involve APOs in their work. Second, this trend will be contextualized with the help of broader historical narratives of civil-society participation in international law. And, lastly, the observed move to involve APOs in current governance structures is interpreted and will be assessed as a reaction to a current legitimacy crisis of international institutions. The system of global governance structures, which was erected over the last 30 years, has proven to be quite efficient in creating globalized market structures, but is increasingly seen as being more or less dysfunctional with regard to the protection of central social and environmental values of the human beings and other living species inhabiting our planet. Moreover, and despite the high post-1990s hopes connected to NGO participation in global governance structures, this arguably asymmetrical institutional set-up has, all in all, reduced the space for local and national democratic contestation of the ‘iron cage’ (Max Weber) of globalized market structures. In this context, involving APOs in international organizations is presented by institutional actors as a potential cure for these illnesses.
The remainder of this article will be structured around a historically informed ‘grille de lecture’ (interpretative framework) presenting two central concepts of civil-society participation in international law – the functionalist concept (Section 2) and the democratization concept (Section 3) – the latter of which has, more recently, arguably also ushered in the quest for the participation of APOs or ‘the most affected’ (Section 4). The last and concluding section seeks to assess whether, and to what extent, the rise of the involvement of affected persons’ organizations (APOs) will actually alter the contested legitimacy resources of international law and its institutions (Section 5). All concepts presented here are discursive structures which scholars and international institutions use to legitimize the involvement of civil-society actors; these concepts do not necessarily correspond to the understanding or self-description on the part of NGOs or social movements seeking access to international law-based organizations. The following broader narratives of civil-society participation, including their conceptual emanations over time, are portrayed neither as mutually exclusive nor as an overall progress narrative. Instead, these concepts (functionalist, democratic and most-affected) have temporarily co-existed in the scholarly and political discourse, as well as in the legal constitutions, resolutions and rules of procedure of international institutions. Their first appearance on the international scene can, however, be chronologically ordered.
While presenting the changing empirical and normative conceptual landscape of civil-society participation over time, this article will also look into the complex relationship between NGOs and social movements, business organizations and member states within international institutions under the different concepts. The term ‘international civil society’ will, for the purposes of this article, be understood as an antagonistic space of human association and relational networks – formed for the sake of economic, cultural and political interests and ideologies; it is both a space and an instrument of political battles for leadership and rule within and through international institutions. According to this understanding of an ‘international civil society’, there is a focus on private associations but no water-tight separation between private actors, markets and public institutions at the various levels of governance. Instead, their respective actions and utterances are considered to constitute a common, potentially embattled political space. The ability to dominate or influence this space is considered essential to restructuring domestic and transnational socio-economic relationships around the globe.
