International Law - New Actors and New Technologies ...

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International Law - New Actors and New Technologies: Center International Law - New Actors and New Technologies: Center

Stage for NGOs Stage for NGOs

John King Gamble

Charlotte Ku Texas A&M University School of Law, [email protected]

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Recommended Citation Recommended Citation John K. Gamble & Charlotte Ku, International Law - New Actors and New Technologies: Center Stage for NGOs, 31 Law & Pol'y Int'l Bus. 221 (2000). Available at: https://scholarship.law.tamu.edu/facscholar/513

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INTERNATIONAL LAW-NEW ACTORS AND NEWTECHNOLOGIES: CENTER STAGE FOR NGOS?*

JOHN KING GAMBLE** AND CHARLOTTE Ku***

I. INTRODUCTION

Anyone whose head is not planted deeply in the sand must recognizethat momentous changes are afoot with this phenomenon called theinformation age. Evidence of sweeping change at the mundane, day-to-day level is undeniable. Five-year-old children manipulate computermice with astounding dexterity. Professors find the World Wide Webhas become the principal research tool used by their students toprepare papers; six years ago neither those students nor their profes-sors had heard of the web.'

Ronald Deibert argues persuasively that "changes in modes ofcommunication-the various media by which information is storedand exchanged-have significant implications for the evolution andcharacter of society and politics at a world level." ' 2 Will the informationage have a significant effect on international law? International law hasshown itself capable of moving along at its own lethargic pace, ofteninfluenced only marginally by the external world for which it is

* The genesis of this piece is unusual. One of us (Gamble) began to investigate how new

information technologies might affect international law. SeeJohn K Gamble, International Law andthe Information Age, 17 MICH.J. INT'L. L. 747 (1996);John King Gamble, New Information Technologiesand the Sources of International Law: Convergence, Divergence, Obsolescence and/or Transformation, 41GERMAN Y.B. INT'L. L. 170 (1998). The other author (Ku), as Executive Vice President of theAmerican Society for International Law, the principal professional organization in the worldhaving international law as its focus, was forced to confront how to bring an establishedassociation into the information age without sacrificing traditional strengths. SeeCharlotte Ku, TheASIL as an Epistemic Community, 90 AM. Soc'Y INT'L. L. PROC. 224, 584 (1996); Charlotte Ku, TheAmerican Society of International Law in the Electronic Age: Challenge and Opportunity, 3 HAGUE JOINTCONF. 142 (1995). We found we were addressing many of the same issues and problems, althoughfrom different vantage points.

** Professor of Political Science and International Law, Pennsylvania State University.*** Executive Director, American Society of International Law.1. As part of an information age needs assessment, in 1997, the ASIL conducted a survey of

its 4300 members, 40% of whom reside outside the U.S. The survey showed that 80% of membersuse e-mail, but 40% had never used the World Wide Web. The general conclusion was that ASILmembers are not technology adverse, but want to guard their most precious resource, their time.See Charlotte Ku & John King Gamble, International Law Communications Network: An ASIL NeedsAssessment (1998) (unpublished manuscript, on file with authors).

2. RONALD J. DEIBERT, PARCHMENT, PRINTING AND HYPERMEDIA: COMMUNICATION IN WORLD

ORDER TRANSFORMATION 2 (1997).

LAW & POLICY IN INTERNATIONAL BUSINESS

developing norms. Behavior occurs at so many individual and institu-tional levels that profound change at the human level can be blunted,distorted, or blocked entirely before its influence is felt on the interna-tional law-making plane. These reservations notwithstanding, evidenceexists that international law and the systems and assumptions thatundergird it will be transformed by the information age.

Technology and the information age are changing the allocation ofpower and authority in the international system with non-state actorssuch as intergovernmental organizations (IGOs) and nongovernmen-tal organizations (NGOs) assuming decision-making roles previouslyreserved primarily to states.3 Professor DavidJohnston sees the informa-tion age as "creating deep and broad disruptive breaches in our society,disruptions equal to those of the agricultural or industrial revolu-tions."' 4 Professors Keohane and Nye believe that the information agewill alter the power structure of governments. 5 Jessica Mathews'sstimulating article in Foreign Affairs argues both that the informationrevolution is shaking the foundations of state authority, the principaltenet of international law since 1648, and that the scholarly communityhas been slow to understand the profound ramifications of thesechanges.

The most powerful engine of change in the relative decline ofstates and the rise of non-state actors is the computer andtelecommunications revolution, whose deep political and socialconsequences have been almost completely ignored. Widelyaccessible and affordable technology has broken governments'monopoly on the collection and management of large amountsof information and deprived governments of the deferencethey enjoyed because of it. In every sphere of activity, instanta-neous access to information and the ability to put it to usemultiplies the number of players who matter and reduces thenumber who command great authority. The effect on theloudest voice-which has been the government's-has beenthe greatest. 6

Mathews's analysis forces us to re-examine our assumptions aboutthe allocation of authority and decision-making in international rela-

3. See David Held, Democracy and Globalization, 3 GLOBAL GOVERNANCE 251, 261 (1997).

4. DavidJohnston, Challenge of the Highway, MACLEAN'S, Oct. 12, 1998, at 58, 58.

5. See Robert O. Keohane &Joseph S. Nye,Jr., Power and Interdependence in the Information Age,

FOREIGN AFF., Sept./Oct. 1998, at 81, 93-94.

6. Jessica T. Mathews, PowerShifl, FOREIGN AFF.,Jan./Feb. 1997, at 50, 51.

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CENTER STAGE FOR NGOS?

tions and international law. The changes she describes have beenaccelerated by the end of the Cold War and the bursting of the bipolardam that for fifty years constrained and simplified the internationalsystem. Observations like these challenge the 300-year-old fundamentaloperating assumption of the international system that the authorityand structure of states will dwarf all other elements. Reacting to thisnew authority structure, ProfessorJames Rosenau recommends movingbeyond governments, which are tied too closely to states, and insteadfocusing on the broader concept of governance, which he thinks will be"transcendent" in the late twentieth century.7

A key element of this challenge to state authority is globalization.Wolfgang Reinicke describes,"the integration of a cross-national dimen-sion into the very nature of the organizational structure and strategicbehavior of individual companies." 8 Because these activities are under-taken to overcome the constraints of national boundaries, they pose adirect challenge to states that derive their authority by maintainingterritorial boundaries to define the reach of their authority. Reinickeforesees a "threat to a government's ability to exercise internal sover-eignty" and perhaps even a threat to democracy itself.9 In response tothis challenge, he proposes a partnership between public and privateentities to formulate a global public policy using "cross-national struc-tures of public interest" and the creation of "more dynamic andresponsive institutions of governance."'O

In presentations we made at the FourthJoint Conference (AmericanSociety of International Law/ Nederlandse Vereniging voor Interna-tionaal Recht) held in The Hague in 1997, we argued that the contextwithin which international law operates has been shaped by two broadforces: (1) the state-centric character of the post-Westphalian interna-tional system; and (2) the Gutenberg global information system domi-nated by the printed word." The former has been analyzed extensively;

7. James N. Rosenau, Governance, Order, and Change in World Politics, in GOVERNANCE WrrHouT

GOVERNMENT: ORDER AND CHANGE IN WORLD PoLTICs 1, 1 (James N. Rosenau & Ernst-Otto Czempieeds., 1992).

8. Wolfgang H. Reinicke, Global Public Policy, FOREIGN AFF., Nov./Dec. 1997, at 127, 127.

9. Id. at 130.

10. Id. at 137.

11. The panel was entitled "The Effect of New Electronic Technologies on the Sources of

International Law," part of the FourthJoint Conference (American Society of International Law/

Nederlandse Vereniging voor Internationaal Recht) held in The Hague. Participants were

ProfessorJohn King Gamble (Pennsylvania State University); Professor Alfred Soons (University

of Utrecht); Judge Gilbert Guillaume (International Court ofJustice); Professor Donald McRae

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the latter, at least so far as it affects international law, largely has beenignored.

A. The Role of Information in the International Arena

Professor Ethan Katsch, one of the first scholars to address broadnormative questions about the information age, explained why therevolution in information would be much more significant than othertechnological changes that have influenced the law:

Other new technologies, such as nuclear power or biotechnol-ogy or medical advances, have caused a reassessment of severalareas of legal doctrine. Yet, information technology is differentand presents the law with a very different challenge. It isdifferent because.., the law runs on information and becausemuch of law is information.... Changes in our informationenvironment are important for all institutions in society. Theymay, however, be particularly important for law. Law is not onlya process that touches all other societal institutions but it is, as Ihave stressed, an institution that is fundamentally orientedaround information and communication. 12

The pace and complexity of life in the late twentieth century has setdramatically higher standards for the amount of information neededfor decision-making. When analyzing the twentieth century from thevantage of the information age that drove its last decade, historians maysee the leitmotif of the development and use of information on thestructures and modes of that information. The NGOs that are our focushave heightened awareness of the information age they helped tocreate in the first place.

The importance of information is hardly limited to recent scholar-ship in international relations, international institutions, and interna-tional law; however, the volume of information and variety of subjectscovered have expanded drastically, demanding new modes to deal withthe information. Further, "privatizing" of the sources of informationhas significant implications for governance and law-making. ProfessorInis Claude's classic treatment of the development of international

(University of Ottawa); Dr. Charlotte Ku (American Society of International Law); and Professor

Rein Mfillerson (King's College London). SeeJohn King Gamble, New Electronic Technologies and the

Sources of International Law: Convergence, Divergence, Obsolescence and/or Transformation, 4 HAGUE

JoINT CoNr. 314, 315 (1998).

12. M. ETHAN KATSH, LAW IN A DIGITAL WoRLD 7, 239-40 (1995).

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organizations noted,

The third major stream of the development in the organizationof international life arose from the creation of public interna-tional unions-agencies concerned with problems in variousessentially nonpolitical fields. Whereas both the Concert [ofEurope] and the Hague [Peace Conferences] reflected thesignificance of the quest for security and the importance ofhigh political issues, this third phenomenon was a manifesta-tion of the increasing complexity of the economic, social,technical, and cultural interconnectedness of the peoples ofthe modern world. 13

The growth of international institutions-both IGOs and NGOs-inthe twentieth century is attributable, in part, to the need for informa-tion necessary for collective action.

In his seminal introduction, Professor HaroldJacobson describes themajor functions of international organizations, the first of which isinformational. The others are normative, rule-creating, rule-supervi-sory, and operational.

Informational functions involve the gathering, analysis, ex-change, and dissemination of data and points of view. Theorganization may use its staff for these purposes, or it maymerely provide a forum where representatives from constituentunits can do these things.

Normative functions involve the definition and declaration ofstandards. This function does not involve instruments that havelegally binding effect, but rather proclamations that are de-signed to affect the milieu in which domestic and world politicsare conducted.

Rule-creating functions similarly involve the definition anddeclaration of standards; however, the purpose is to frameinstruments that can have a legally binding effect. In the case ofIGOs, to have legally binding effect, such instruments usuallymust be signed and ratified by some number of states, and theinstruments generally apply only to those states that have takensuch action. In a few IGOs, however, some decisions can betaken that are legally binding without the necessity of implement-

13. INis L. CLAUDE, JR., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRESS OF INTERNA-

TIONAL ORGANIZATION 34 (4th ed., 1984).

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ing action by member states. Several IGOs can adopt rules thatare binding for the constituent units.

Rule-supervisory functions involve measures taken to insurecompliance with the rules that are in force by those subject tothem. This function could entail steps, ranging from detectionof evidence that a violation has occurred, through verificationof that evidence, to the imposition of sanctions.

Operational functions involve the use of the resources at theorganization's disposal. Financial and technical assistance anddeployment of military forces are examples.14

Given this range of functions, it is hardly surprising NGOsoften seem to possess an amorphous, indeterminate nature, asituation with parallels in the late nineteenth and early twenti-eth century. Public international unions were not segments ofgovernmental apparatus, drawing power from the circuits of apre-established dynamo of sovereignty, but rudimentary piecesof a system of inter-governmental collaboration, dependent fortheir operation upon such power as could be generated in thenew and drastically incomplete plant of international author-ity.... These agencies engaged in a range of activities whichwas something new under the international sun.... On thewhole, however, this was a system for the provision of services togovernments and the facilitation of cooperative relations amonggovernments, not for the management of affairs or the govern-ment of people. 15

This Article focuses on NGOs to test their newly achieved promi-nence in international law-making by examining their role in theLandmines Convention and in the thwarting of the Multilateral Agree-ment on Investment. Are NGOs a manifestation of new governancestructures emerging in the information age? Can they be a checkagainst non-democratic, unaccountable, and aloof intergovernmentalinstitutions that may complicate, rather than solve, problems?16 So thatour discussion will be rooted in international law as usually understood,we examine both international law's encounters with NGOs and howNGOs relate to the sources of international law.

14. HAROLD V_ JACOBSON, NETWORKS OF INTERDEPENDENCE: INTERNATIONAL ORGANIZATION AND

THE GLOBAL POITICAL SYSTEM 83 (2d ed. 1984).

15. Id. at 35-36.

16. Some would say the way the IMF dealt with the Asian financial crises of 1998 falls into this

category.

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B. Defining NGOs

First, this Article defines NGOs and examines some of the assertionsmade about them. There seems to be general agreement about aworking definition for NGOs along with substantial disquiet with thatdefinition. P.J. Simmons examined various definitions, including onepromulgated by the United Nations (UN), and concluded only "pri-vate businesses, revolutionary or terrorist groups, and political parties"are not NGOs.' 7 Professor H. K. Rechenberg's definition is typical:

Nongovernmental organizations are private organizations ...not established by a government or by intergovernmental agree-ment, which are capable of playing a role in internationalaffairs by virtue of their activities, and whose members enjoyindependent voting rights. The members of an NGO may beindividuals ... or bodies corporate.... There is some contro-

versy as to whether an NGO has to be international, permanentand non-profit-making. Proper classification of NGOs is alsolacking. In terms of their activities there are, generally speak-ing, two kinds of NGOs: those with non-profit, i.e., idealistic,objectives, and those with economic aims.... The categoriza-tion of an NGO may pose difficulties, as material and non-material objectives sometimes exist side by side.1 8

Professor Jacobson describes "an early decision of the United Na-tions [to] base the distinction [between NGOs and IGOs] on whetheror not the international organization was established by an agreementamong governments."1 9 The Economic and Social Council defined anNGO as "[a] ny international organization which is not established byinter-governmental agreement."' 20 The UN Charter, in many ways thelogical place to have addressed this issue, mentions NGOs but does notdefine them. "The Economic and Social Council may make suitablearrangements for consultation with nongovernmental organizationswhich are concerned with matters within its competence. Such arrange-ments may be made with international organizations and, where appro-priate, with national organizations after consultation with the Member

17. P.J. Simmons, Learning to Live with NGOs, FOREIGN POL'Y, Fall 1998, at 82, 83.

18. Hermann H-K. Rechenberg, Non-Governmental Organizations, in 5 ENCYCLOPEDIA OF PUBLIC

INTERNATIONAL LAw 612, 612 (Rudolph Bernhardt et al., eds., 1997).

19. Jacobson, supra note 14, at4.

20. E.S.C. Res. 288B, U.N. ESCOR, 10th Sess., Supp. No. 1, at 25 (1950).

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of the United Nations concerned., 21 Despite avoiding NGOs in itsconstitutive document, the UN recognized, within months of its found-ing, the value of NGOs in conveying information about the organiza-tion and building bridges to the public.22 Professor Bruno Simma wenteven further, asserting that NGOs are defined neither in the Charternor in general international law. 23

It is relatively clear what an IGO is, but NGOs have an "everythingelse" character to them, prompting many to turn away from definitiontowards classification. "NGOs includes everything from village associa-tions in developing countries to large multi-faceted organizationsactive around the globe. As a result, the definition provided here is aneffort to specify the range of actors which can be captured by thedimensions offered in the following sections.", 24

One should be suspicious of a definition rooted in the absence of aquality. "NGOs are named in terms of what they are not, rather than interms of what they are." 25 Is the term NGO so imprecise that it shouldbe done away with entirely? Kille, Peterson, and Smith suggestedchanging the term to "civil society organizations."

[C]ivil society organization is preferable to NGO because itprovides a more accurate label of what these organizationsactually are and it is the term which is now being used by partsof the UN System.... [C]ivil society refers to all of thoseinstitutions and associations which exist between the individualand the state. These structures allow groups in society torepresent themselves vis-d-vis other groups and the state. Assuch they form cross-cutting networks which contribute topluralism and balance of power of the state.26

21. U.N. CHARTER art. 71.22. See Farouk Mawlawi, New Conflicts, New Challenges: The Evolving Role for Non-Governmental

Actors, 46 J. INT'L Arr. 391, 393 (1993) ("The U.N. General Assembly quickly recognized theimportance of collaborating with NGOs and called upon the U.N. Department of PublicInformation ... to work with NGOs interested in communicating information about the UnitedNations.").

23. THE CHARTR OF THE UNITED NATIONS: A COMMENTARY 905 (Bruno Simma ed., Oxford

University Press) (1994).24. Kent J. Kille et al., Sinking the Billiard Ball Model in the Corner Pocket: An Analytic

Typology of NGOs and the Implications for IR Research 6, Paper Prepared for Delivery at theInternational Studies Association Annual Convention (April 16-20, 1996) (on file with Law andPolicy in International Business).

25. Id. at 9.26. Id. at 10.

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Professors Leon Gordenker and Thomas Weiss took an interestingand more analytical approach to NGOs. "IT]he prince representsgovernmental power and the maintenance of public order; the mer-chant symbolizes economic power and the production of goods andservices; and the citizen stands for people's power. As such, the growthof NGOs arises from demands by citizens for accountability from theprince and the merchant. ' 27 They concluded that, rather than gettingmired in legal distinctions, it is more productive to examine "goals,relationships among various organisations and operating methods."2 8

This leads them to suggest that NGOs be understood according to fourdimensions: organization, governance, strategy, and output. 29

Even those who make a convincing case for a new umbrella conceptto replace "NGO" realize current usage is probably too firmly en-trenched to be easily dislodged because "it is hard to replace an ideaonce it has become widely accepted." '30 This does not preclude manysub-types of NGOs. Our approach is conventional-we shall use theterm NGO, but try to describe it more precisely in the models wedevelop later.

C. Prospects for the NGO in the Information Age

Especially in the 1990s, NGOs seem to have taken an almost Hege-lian leap in significance. A typical example of this expanded awarenessof NGOs can be seen in the views of former UN Secretary-GeneralBoutros Boutros-Ghali:

Nongovernmental organizations are now considered full partici-pants in international life.... Today, we are well aware that theinternational community must address a human communitythat is transnational in every way.... The movement of people,information, capital, and ideas is as important today as thecontrol of territory was yesterday. . . . "[P]eace in the largestsense cannot be accomplished by the United Nations system orby Governments alone. Nongovernmental organizations, aca-demic institutions, parliamentarians, business and professional

27. Leon Gordenker & Thomas G Weiss, Pluralising global governance: analytical approaches and

dimensions, 16 TmRD WoRLD Q. 357, 359 (1995). The analogy was developed from Marc Nerfin,

Neither Prince nor Merchant: Citizen-An Introduction to the Third System, 56 IFDA DossiER 3-29

(1986).

28. Gordenker, supra note 27, at 377.

29. See id. at 382.30. Nerfin, supra note 27, at 9.

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communities, the media and the public at large must all beinvolved."

3 1

Lester M. Salamon envisions a prominent role for NGOs within thecontext of the globalization occurring in the late twentieth century."The upshot is a global third sector: a massive array of self-governingprivate organizations.... The proliferation of these groups may bepermanently altering the relationship between states and citizens, withan impact extending far beyond the material services they provide. 32

This expanded role for NGOs has produced a voluminous scholarlyliterature most of which is very positive.33 Perhaps the apex of thishyperpositive view is the belief that NGOs may democratize the UN bycreating a world assembly directly elected by the people.3 4 Does such apositive view coupled with a loose definition militate against therigorous analysis necessary for understanding NGOs in their myriadmanifestations and roles? Typical of this juxtaposition of vagueness andpositive view is the approach of Farouk Mawlawi, who wrote, "Thesignificant proliferation of non-governmental organizations ... in re-cent years, and their growing contributions to the improvement of thehuman condition, have led to increased-and long overdue-recogni-tion of the important role they can and do play in preventing andresolving conflicts.

' 3 5

There is agreement that one of the major contributions of NGOs iscommunicating information to governments, individuals, IGOs, andother NGOs.3 6 Recently, information technology has transformed com-

31. Boutros Boutros-Ghali, Foreword to NGOs, THE UN AND GLOBAL GOVERNANCE 7, 7-8

(Thomas G. Weiss & Leon Gordenker eds., Lynne Rienner Publishers, 1996) (quoting BOUTROS

BouI os-GHAL, AN AGENDA FOR PEACE (1995)).

32. Lester M. Salamon, The Rise of the Nonprofit Sector, FOREIGN AFF., July/Aug. 1994, at 109,

109.

33. See, e.g., Dianne Otto, Nongovernmental Organizations in the United Nations System: The

Emerging Role of International Civil Society, 18 HUM. RTs. Q. 107 (1996); Steve Charnovitz, Two

Centuries of Participation: NGOs and International Governance, 18 MICH.J. INT'L. L. 183 (1997); Peter

J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making

Institutions, 18 WASH. U. L.Q. 45 (1995).

34. See ERSKINE CHILDERS & BRIAN URQUHART, RENEWING THE UNITED NATIONS SYSTEM 174-81

(1994).

35. Mawlawi, supra note 22, at 392.

36. A concise description of the range of activities can be found in I ENCYCLOPEDIA OF

ASSOCIATIONS, at vii (Tara E. Sheets & SarahJ. Peters eds., 1995). Among the activities they list are

"[e]ducating their members and the public; ... [i]nforming the public on key issues; ...

[dieveloping and disseminating information;... [e]stablishing forums for the exchange of

information and ideas;... [e]nsuring representation for private interests."

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munications so that it has become possible to mobilize worldwidepolitical networks almost overnight to address specific issues. The mosttangible manifestation of this transformation is the Internet. TheInternet, established in the 1970s by the U.S. military, originally wasdesigned to be "a computer network... that could withstand nuclearattack.",3 7 The decentralized character of the Internet, essential for it tocontinue operating after military conflagration, permitted it to meta-morphose into the global system we know today.38 It can be difficult tograsp the reach and complexity of the Internet because it is a constantlyexpanding group of systems. It has been described as "an enormouscomputer network in which any existing network can participate. Itencompasses satellites, cable, fiber and telephone lines, and it seems tohave grown exponentially.",39 Microsoft co-founder Bill Gates believesthe Internet is the most important development in computing sincethe personal computer was introduced fifteen years ago.4°

In chronicling the development of NGOs, both Lester Salamon andPeter Spiro have recognized the importance of technology. Salamon wrote,

The combined expansion of literacy and communications hasmade it easier for people to organize and mobilize. Communi-cations between capitals and hinterlands that once requireddays now takes only minutes. Authoritarian regimes that hadsuccessfully controlled their own communications networks havegrown powerless to stop the flow of information through satellitedishes and faxes. Isolated activists can therefore more easilystrengthen their resolve, exchange experiences and maintain linkswith sympathetic colleagues in their own countries and abroad.41

In a similar vein, Spiro noted the importance of technology tosupport effective dissemination of information, including politicalpositions and advocacy by NGOs: "Modern communication is muchless dependent on location; increased travel, the fax, and perhaps themost important the Internet have created the possibility of a cohesionthat is not tied to territory. ', 42

37. DEIBERT, supra note 2, at 131.38. See id.39. Robert E. Calem, The Network of All Networks, N.Y. TIMES, Dec. 6,1992, at 12F.

40. See BILL GATES, THE RoAD AHEAD 91 (1995).

41. Salamon, supra note 32, at 117-18.

42. Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International

Decision-Making Institutions, 18 WASH. Q. 45, 47 (1995).

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New technologies such as the Internet have created enormousopportunities for NGOs. Enterprising individuals with little institu-tional infrastructure beyond a computer can mobilize thousands ofpeople over huge distances. The drawing power of computers isenormous because it allows individuals who are similarly equipped (setup with computers) tojoin a cause based on their own interests withoutactive solicitation. Technology permits NGOs to organize large num-bers from multiple sectors, and to do so quickly, empowering NGOs inthe international political and international law-making arenas. Evenassuming good intentions, this new power will not necessarily havepositive results. It may become so cheap to start new NGOs thatcompetition for scarce resources will become more intense. NGOs cancoalesce around many different causes, good and evil.43

II. NEW GOVERNANCE STRUCTURES, NGOs, AND THE

INFORMATION AGE

A. The Evolving Perception of the Role of the NGO

Professor James Rosenau's description of the nature of change canbe applied to NGOs: "Change means the attrition of establishedpatterns, the lessening of order, and the faltering of governance, untilsuch time as new patterns can form and get embedded in the routinesof world politics."4 4 This creates the daunting challenge of discerningwhat "new patterns" will emerge when change is occurring at manylevels and involves many centers of power, actors, and systemic assump-tions.

In 1648, when the current state system emerged, decision-makingauthority in international relations was given to autonomous states thatwere expected to control activities within their borders and to functionas equals on the international plane. A secular, hierarchical model wasrejected-understandable in the context of the religious wars of thatperiod-leaving power in the hands of states. Three hundred and fiftyyears later a new possibility has arisen, that governance which has "beenusurped by governments" needs to expand beyond those govern-ments.

4 5

43. See Simmons, supra note 17, at 88. Simmons takes a very balanced view pointing out manyways NGOs have done harm. Most are not deliberate, and most importantly, "the record for suchNGOs is surely no worse than that of governments." Id.

44. Rosenau, supra note 7, at 1.45. Rajni Kothari, On Human Governance, 12 ALTERNATIVES 277, 277 (1987).

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The new routine of international relations that is emerging will seean expanded and qualitatively different role for NGOs. Networks ofinformation providers are formed by individuals drawn together by ashared interest. The importance of information to contemporarygovernance means those with information will influence political andlegal processes. As Keohane and Nye noted,

Cheap flows of information have enormously expanded thenumber and depth of transnational channels of contact. Non-governmental actors have much greater opportunities to orga-nize and propagate their views.... The future lies neither

exclusively with the state nor with transnational relations: geo-graphically based states will continue to structure politics in theinformation age, but they will rely less on material resourcesand more on their ability to remain credible to a public withincreasingly diverse sources of information.4 6

Rosenau's concept of governance that "embraces governmentalinstitutions, but.., also subsumes informal, non-governmental mecha-nisms whereby those persons and organizations within its purviewmove ahead, satisfy their needs, and fulfill their wants"'47 encapsulatesthe new milieu within which international law will operate. How willinternational law, which has centered on the state as the principal actoras well as the locus of authority and power, respond in this new era?Rosenau asks "whether the emergent, successor order rests on newsystemic foundations or whether it derives from the reconstitution ofthe existing system. ,48 His answer is that it is too early to tell. "[M]uchdepends on how the key concepts are defined, thus enabling differentanalysts to offer different interpretations as they accord greater orlesser weight to the post-Cold War competence of states, the strength oftransnational issues, the power of sub-group dynamics, and the chang-ing skills of citizens." 49

It would be inaccurate to imply that international law-primarily asdescribed by leading scholars-has ignored NGOs. Before World WarII, NGOs were thought to play only a secondary role. Even thoseinternational law scholars who seemed most progressive and willing toextend the reach of the law showed a certain hesitance about NGOs.

46. Keohane & Nye, supra note 5, at 94.

47. Rosenau, supra note 7, at 4.

48. Id. at 22.

49. Id. at 23-24.

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Twenty years ago, Professor Louis Henkin wrote,

While international society today recognizes other entities-intergovernmental and other international organizations (theUnited Nations, the International Committee of the Red Cross),national and multinational companies with major transnationalactivities, even individual human beings-these are normally ofconcern only when, and because, their actions and the effectsof their actions spill over national boundaries. Even to theextent that the individual has become a "subject" of interna-tional law, it is international law he is a subject of. Even the newconcern for the human rights of individuals finds expression todate only through treaties and practices between nations, orthrough organizations of nations or bodies created by na-tions.50

In his more recent writings, Professor Henkin saw new possibilitiespresented as information technology facilitated the extension of inter-national law to the individual. "States can control physical penetration,as by overflight in their airspace, but they cannot easily preventcommunication or exclude information, they cannot prevent inspec-tion by satellite from outer space, and national frontiers can do little tokeep out or combat a growing number of environmental threats." 51

An early theme about NGOs-made even before the term NGO waswidely used-dealt with the formation of groups, often technicalexperts, to assist policy makers. Professor Malcolm Shaw discussed thenineteenth century origins of these groups:

The nineteenth century also witnessed a considerable growthin international nongovernmental associations.... These pri-vate international unions, as they have been called, demon-strated a wide ranging community of interests on specifictopics, and an awareness that co-operation had to be interna-tional to be effective. Such unions created the machinery forregular meetings and many established permanent secretariats.The work done by these organizations was, and remains, ofconsiderable value in influencing governmental activities andstimulating world action. 52

50. Louis HENKIN, How NATIONS BEHAVE: LAW AND FOREIGN POLICY 15 (2d ed.1979).

51. Louis HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 280 (1995).

52. MALcoLM N. SHAW, INTERNATIONAL LAW 743 (3d ed. 1991).

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In describing the immediate post-World War I period, ProfessorEllery Stowell observed that states had expanded the scope of their"voluntary co6peration through the establishment of internationalunions and commissions, and have recently organized the League ofNations and the World Court which give promise of better things tocome.

'' S

A recurring emphasis in scholarly writing about NGO activity hasbeen on groups of experts who provided an objective scientific basis toguide the development of international law. Professor Quincy Wright atthe American Society of International Law's 1960 Annual Meetingdescribed the positive role of NGOs:

Private organizations have many advantages over official organi-zations in the scientific exposition of international law....Today the need for "an eye to the welfare of Society at large" isgreater than ever. Private institutions, whose members combinelegal wisdom with wisdom in the other social disciplines andwho view the problems of the world as a whole, can serve thisneed.54

In this earlier era, the role of NGOs usually was seen as informa-tional. This same 1960 American Society meeting included the observa-tion that "international law is developing as the result of scientificactivities planned by non-governmental groups, not because of theconscious concern of such groups with the development of interna-tional law."

55

Contemporary international law is much less rigid and more inclu-sive-NGOs have benefited from this disposition. This outlook foundearly expression in the work and ideas of Professor (later World Court

53. ELLERY C. STOWELL, INTERNATIONAL LAW XXX (1931).

54. Quincy Wright, Activities of the Institute of International Law, 54 AN1. Soc'v INT'L L. PROC.

194, 196-99 (1960). Wright commented that, as early as 1866, Dr. Francis Lieber wrote: "It would

be much better if a private Congress were established, whose work would stand as an authority by

its excellence, truthfulness,justice, and superiority in every respect." Id. at 197

55. John A. Johnson, Scientiflc Organizations and the Development of International Law, 54 AM.

Soc'v INT'L L. PROC. 206, 211 (1960) (emphasis added). A number of the research and study

activities of the ASIL in the 1970s were meant to channel scientific information to the legal

community through its program on Science, Technology, and International Law. Studies which

came out of this project included ones on ocean dumping, the international telecommunications

union, global fisheries management, direct broadcasting from satellites, deep sea mining and the

environment, regulation of pesticide residues in food, regulation of pharmaceutical drugs, and a

global satellite observation system.

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Judge) Philip Jessup and is captured in the phrase "transnationallaw."

The term "transnational law" [includes] all law which regulatesactions or events that transcend national frontiers. Both publicand private international law are included, as are other ruleswhich do not wholly fit into such standard categories....Transnational situations, then, may involve individuals, corpora-tions, states, organizations of states, or other groups.56

Today, international law scholars and practitioners have taken Jes-sup's concept much further. A good example is the widely-used Weston,Falk, and D'Amato text, which states: "More and more nongovernmen-tal transnational actors.., are becoming primary actors in this humanrights sphere, manifesting their primary allegiance to world ordervalues with no territorial constraints." 57 The most recent version of thistext finds a qualitative change in NGOs reaching the point where they"exert pressures, and [are] increasingly capable of ensuring construc-tive results through direct action." 58

A good example of this broader view is presented by Judge RosalynHiggins, who wrote: "[I] nternational law is not rules. It is a normativesystem ... harnessed to the achievement of common values."' 59 Sherejects the traditional concept of "subjects" and "objects" of interna-tional law as too narrow and prefers the phrase "international legalparticipants," which includes individuals, corporations and NGOs.6 °

The law-making process in which all these participants are engaged isopen and competitive. "Everyone is entitled to participate in theidentification and articulation as to what they perceive the values to bepromoted. Many factors, including the responsive chords struck inthose to whom the argument is made, will determine whether particu-lar suggestions prevail."

6 1

NGOs already engage actively in issue identification and value set-ting, steps towards the "authoritative decision-making" that is defini-tive of international law. However, NGOs have had difficulty finding aseat at the table of authoritative decision-making. This is somewhat

56. PHILIP C.JESSUP, TRANSNATIONAL LAw 2- 3 (1956).

57. Richard A. Falk, Contending Approaches to World Order, 31J. INT'L AFF. 171,192 (1977).

58. BURNS H. WESTON ET AL., INTERNATIONAL LAW AND WORLD ORDER 1-2 (3d ed. 1997).

59. ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND How WE USE IT 1

(1994).

60. Id. at 49-50.

61. Id. at 10.

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ironic because states long have relied on NGOs to provide the informa-.tion that is essential to the entire process of decision-making. Theirinfluence on governments or organs of intergovernmental organiza-tions have brought them closer to the source of authoritative decision-making, but, important as this role has become, NGOs are not yetauthoritative decision-makers. A principal question for this analysis iswhether globalization and technology will elevate the status of NGOs.

B. The Expanding Role of NGOs in the Information Age

Contemporary circumstances have created opportunities for NGOsto play more direct roles in international law-making. This stems in partfrom international law's shift in focus from concerns of the state tothose of the individual. One theory attributes the shift to the fact thatlittle additional progress was being made in the state centric mode. AsProfessor Henkin put it: "More states, diversity of states, have slowedthe movement from state values ('sovereignty') to human values, as inthe law of human rights or law for the environment. ' 62 These are areaswhere states acting alone seemed not only incapable of solving prob-lems, but seemed to have become part of the problem, e.g., in theirfailure to protect the environment, weak economic and political devel-opment, and abuses of human rights. This results in an expanded"band of activism" within which NGOs operate. For example, thesecond report from the International Law Association's Committee onCultural Heritage Law discussed "the role of NGOs ... both in defin-ing the larger process of regulation and in implementing the harderlaw forged by intergovernmental agreement and custom." 63

The technical character of many issues now facing policy-makerscontinues to make them, as they have been for decades, if not centu-ries, receptive to expert information. "New technology and the increas-ingly complex and technical nature of issues of global concern not onlyincrease decision makers' uncertainty about their policy environmentbut also contribute to the diffusion of power, information, and valuesamong states, thereby creating a hospitable environment for epistemiccommunities." 64 Thus, NGOs starting in the 1990s may see their

62. Louis Henkin, Notes from the President, ASIL NEWSL. (Am. Soc'y Int'l L., Washington, D.C.),

Jan.-Feb. 1994, at 1, 2.63. INTERNATIONAL LAw AssOCIATION, REPORT OF THE SIXTY-EIGHTH CONFERENCE 219-20 (1998).

The report goes on to suggests six categories for NGOs: private dealers, auction houses andcollectors; museums and art galleries; anthropologists and archaeologists; indigenous and ethnic

groups; artists; and historic preservationists, archivists and art historians. See id. at 220.

64. Emanuel Adler & Peter M. Haas, Conclusion: Epistemic Communities, World Order and the

Creation of a Reflective Research Program, 46 INT'L ORG. 367, 387 (1992).

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traditional nineteenth century-based role enhanced at the same time astechnology permits a new range of functions that can bypass stateborders.

Intergovernmental organizations have contributed to the promi-nence of NGOs by circumventing governments. As governments seemless able or willing to meet the financial needs of intergovernmentalorganizations, IGOs have tapped the vast private wealth availablethrough the intermediation of NGOs. One result of this practice,however, may be an exaggerated perception of the ability of NGOs tocarry out a wide range of activities. The potential fragmentation ininformation, resources, and decision-making may, in the long run, be aserious threat to the order and authority that are requisite to civilsociety. The hesitancy of international law to accord full participatoryrights to NGOs in the law-making process stems in part from thissituation.

Structurally, international law remains constrained by a preoccupa-tion with territorial states that conduct activities across borders. Changeis occurring, albeit slowly, to accommodate new actors and new voices.Pressure from complex new issues and the intense involvement ofnon-state actors like NGOs accelerate the change. NGOs do notoperate in a vacuum; they often gain stature by cooperating with states.Although there are manifestations of new actors in areas previouslyreserved to states, a new structure for law-making has yet to emerge.Our work here is an assessment of how far the traditional law-makingstructure has been stretched as NGOs operate in a new informationenvironment.

Most scholars acknowledge the positive influence NGOs have had oncontemporary international law in areas such as the well being ofindividuals, human rights, gender and race equality, environmentalprotection, sustainable development, indigenous rights, nonviolentconflict resolution, participatory democracy, social diversity, and socialand economic justice.65 In the broadest sense, we may be movingtowards the point where effective and sustained attention to theseissues requires the political and financial mobilization of resources atall levels from local to global. This is where the voluntary, local, andissue specific character of NGOs make them a useful link between thesub-national community and national and international communitiesand institutions. By providing a link, NGOs supplement the human andfinancial resources of governments and intergovernmental organiza-

65. See, e.g., Otto, supra note 33, at 140-41

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tions. Cynthia Price Cohen described these functions when she wrote,

The primary purpose of consultations with NGOs is to enablegovernments to take advantage of the vast array of expertisethat can be provided by these groups. A secondary purpose is toprovide the necessary connection between the abstract delibera-tions of governments and the practical needs and wishes oftheir citizens.66

Successful NGOs combine enlightened policies with the ability tomobilize constituents and the expertise to add to the competitiondescribed by Judge Higgins. For international law, the contributions ofNGOs need to be tested against this need for authoritative decision-making. "[A] crucial factor in the effectiveness of organizations is theirperceived legitimacy, [which] is linked to participation and transpar-ency in their decision-making processes and to the representativenature of bodies that exercise authority." 67 Although consideration ofthese factors may help to develop a role for NGOs as authoritativedecision-makers, the diffuse and varied structure as well as the processof international law-making makes an across-the-board law-making rolefor NGOs difficult to formulate. Nevertheless, opportunities for NGOinvolvement and their information collection capacities are likely toincrease as international law-making becomes a more continuous,iterative process in moving towards a common objective rather thanmerely establishing a specific, static norm.

NGOs have been extending their activities from issue identificationto the monitoring of state and IGO compliance with and implementa-tion of international legal obligations. Professor Christine Chinkindescribed this new role in terms of soft law: "The international legalorder is an evolving one that requires a wide range of modalities forchange and development, especially into new subject areas. They mustdraw upon the entire continuum of mechanisms ranging from thetraditional international legal forms to the soft law instruments." 68

NGOs have achieved a measure of recognition at UN-sponsoredintergovernmental conferences through participation in preparatory

66. Cynthia Price Cohen, The Role of Nongovernmental Organizations in the Drafting of the

Convention on the Rights of the Child, 12 HUM. RTs. Q. 137 (1990).

67. Spiro, supra note 42, at 53 (quoting a pamphlet from the Commission on Global

Governance)

68. C. M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38

INT'L & COMp. L.Q. 850, 866 (1989).

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activities and, to a degree, the conferences themselves. Participationhas varied with the recent addition of separate NGO fora that paralleland complement the intergovernmental effort. The controversy overthe location and role of the NGO Forum at the Beijing Women'sConference provided a pointed reminder of the ambiguity of the NGOrole in authoritative decision-making. 69

Traditionally, NGOs have helped to mold treaty language, althoughusually working through national delegations. Increasingly, they arealso assisting with monitoring, compliance, and implementation ofthose instruments. 70 NGOs can enter the picture at many points fromcreating pressure-making demands-for norm change, to participat-ing in treaty-drafting conferences. As treaties increasingly are seen notas static statements of norms, but as organic entities constantly chang-ing and meeting new contingencies, NGOs have a wider range ofopportunities to influence norms. This new situation is clear in themyriad of roles for NGOs in the fifty-year history of the InternationalWhaling Commission.71

Proposals to allow NGOs some level of representation in the UNGeneral Assembly illustrate a new mode. UN organs like the GeneralAssembly aid in "the creation and shaping of contemporary interna-tional law." 72 ProfessorJonathan Charney wrote,

Today, major developments in international law often get theirstart or substantial support from proposals, reports, resolutions,treaties or protocols debated in such forums. There, representa-tives of states and other interest groups come together toaddress important international problems of mutual concern.Sometimes these efforts result in a consensus on solving theproblem and express it in normative terms of general applica-tion. At other times, the potential new law is developed throughthe medium of international relations or the practices of special-ized international institutions and at later stages is addressed ininternational forums. The process draws attention to the ruleand helps to shape it and crystallize it.7 3

69. See generally Ann Marie Clark et al., The Sovereign Limits of Global Civil Society: A Comparison

of NGO Participation in UN World Conferences on the Environment, Human Rights, and Women, 51

WORLD POL. 1, 20 (1998).70. See Cohen, supra note 66, at 145.

71. SeeM.J. Peterson, Whalers, Cetologists, Environmentalists, and the International Management of

Whaling, 46 INT'L ORG. 147,147 (1992).

72. Jonathan I. Charney, Universal International Law, 87 AM.J. INT'L L. 529, 543 (1993).73. Id. at 544.

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Professor Oscar Schachter has used a metaphor from architecture todescribe the law-making process. He envisions a three level structure.

On the ground floor, I place the action of states-includingthe demands and goals of the governments and other orga-nized groups in furtherance of their needs, wishes and expecta-tions.

On the second level are the activities of a legal character-the formation and invoking of legal norms, and their applica-tion to particular situations.

On the third level, I would place the broad policy goals,aspirations and ideals that influence governments and theother actors.

Each of these levels exhibits its own values and processes. Butthere is continuous movement from level to level. The sphereof law in the middle level is influenced by the interests ex-pressed below and the ideals and policy manifested above....Legal norms have an impact on the perceptions of interest andneeds in the lower level and on the policies of the top level. Thisimage helps us to see that the UN Legal Order is influenced bythe multitude of political demands and interests from below (asit were) and by the general ideals and principles on the higherlevel. It also reminds us, that law exercises its influence in both

74directions, up and down. The stairways run both ways.

The place of NGOs within this building is a major issue for interna-tional law. How many steps have NGOs taken up from the ground level?Has NGOs' command of information, magnified by the technologicalcapacity to disseminate their message widely and to mobilize politicalforces rapidly, started them up the stairway to Schachter's second level?

III. MODELS OF NGO INFLUENCE ON THE SOURCES

OF INTERNATIONAL LAw

This Section will use the sources of international law to assess theinfluence exerted by NGOs. It examines three case studies of NGOinfluence: (1) the 1982 UN Convention on the Law of the Sea (UNCLOSIII), (2) the 1997 Convention on the Prohibition of the Use, Stock-piling, Production, and Transfer of Anti-Personnel Mines and Their

74. Oscar Schachter, The UN Legal Order: An Overview, in I UNITED NATIONS LEGAL ORDER 31,

(Oscar Schachter & C.Joyner eds., 1995).

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Destruction (the Ottawa Convention), and (3) the "false start" of theMultilateral Agreement on Investment (MAI) in 1998. These threecases demonstrate how technology has enhanced the political capacityand power of NGOs and what might be expected in the future.

A. The Sources of International Law

The four sources of international law, recognized in the Statute ofthe International Court of Justice and taught in every course ininternational law, are:

(a) international conventions, whether general or particular,establishing rules expressly recognized by the contesting states;(b) international custom, as evidence of a general practiceaccepted as law;(c) the general principles of law recognized by civilized nations;and(d) subject to the provisions of Article 59,judicial decisions andthe teachings of the most highly qualified publicists of thevarious nations, as subsidiary means for the determination ofrules of law.7 5

Professor Oscar Schachter explained the centrality of sources:

The principal intellectual instrument in the last century forproviding objective standards of legal validation has been thedoctrine of sources. That doctrine which became dominant inthe nineteenth century and continues to prevail today laysdown verifiable conditions for ascertaining and validating legalprescriptions. The conditions are the observable manifestationsof the "wills" of States as revealed in the processes by which they areformed-namely, treaty and State practice accepted as law.76

Although there is a voluminous literature on the sources of interna-tional law,77 we have found no diagrammatic representation of the

75. Statute of the International Court ofJustice, Article 38(1).76. OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRAcriCE 35 (1991).

77. See, e.g., ANTHONY A. D'AmATo, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAw (1971);

Maarten Bos, Will and Order in the Nation-State System: Observations on Positivism and Positive

International Law, in THE STRucTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSO-

HY DOCrRINE AND THEORY 51 (R. St.J. Macdonald & Douglas M.Johnston eds., 1986) [hereinafter

STRUCTURE & PROCESS].

[Vol. 31


sources, except for a few that do nothing more than list the four.78

Understanding possible interrelationship patterns among the sources,along with the possible information flows and roles for NGOs is greatlyenhanced through the use of diagrams. The four main sources-treaty,custom, general principles of law, and judicial decisions/teachings ofpublicists-do not stand in isolation, as is often implied by a ranked list.While the two pre-eminent sources, treaty and custom, certainly are theclearest and most frequently used, often all four work as an interrelatedsystem to develop international law.

B. The Ability of NGOs to Influence the Sources of International Law

Figure I represents the most general case and illustrates interrelation-ship patterns among states, IGOs, NGOs, and the four main sources ofinternational law. The most important question addressed in thediagram is the directness of the link between NGOs and internationallaw. Is there any instance where NGOs directly influence a source that, inturn, "creates" international law? The answer appears to be "yes," butwith debilitating qualifications. It is almost impossible to make a casefor a direct link between NGOs and the three most important sources,treaty, custom, and general principles. Each of the three sources is castalmost exclusively in terms of state action.

The definition of treaty provided in the 1969 Vienna Convention onthe Law of Treaties, "an international agreement concluded betweenstates in written form and governed by international law,"' 79 does notseem to leave the door open for a direct NGO role. One could arguethat entities other than states are entitled to be parties to treaties, butwhen that envelope has been expanded it almost never has includedNGOs.

Prospects for direct NGO participation through custom are hardlymore promising. Customary international law must meet tworequirements: habituality and a feeling of legal obligation (opiniojuris). A rule of customary international law comes into existencewhen almost all states behave almost exactly the same way for a longtime and feel a legal obligation to do so. Judge Manley 0. Hudson

78. See, e.g., MAARTEN Bos, A METHODOLOGY OF INTERNATIONAL LAw 16 (1984). Professor Bosdoes not attempt to introduce the complexities into the diagram, but he describes them in thenarrative portions of his monograph. See id.

79. Vienna Convention on the Law of Treaties, May 23, 1969, art. 2.1 (a), 1155 U.N.T.S 331,333.

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FIGURE I

GENERAL CASE

provided this excellent description of the essential elements ofcustom:

(a) concordant practice by a number of States with reference toa type of situation falling within the domain of internationalrelations;(b) continuation or repetition of the practice over a consider-able period of time;(c) conception that the practice is required by, or consistentwith, prevailing international law; and(d) general acquiescence in the practice by other States.8°

It is clear that states, and states alone, dominate in the creation andlegitimization of customary international law. This does not mean thatNGOs have no influence, but that they must work through intermedi-ate entities, principally states and IGOs.

A direct link between general principles and NGOs is equally difficultto establish. Professor Georg Schwarzenberger listed general principles

80. M. 0. HUDSON, [1950] 2 Y.B. INT'L L. COMM'N 26, U.N. Doc. A/CN.4/SER.A/1950/

Add.1.

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as the last "subsidiary" of three "law-creating processes,""' with thefollowing three requirements that must be met:

(1) Pit must be a general principle of law as distinct from a legalrule of more limited functional scope;(2) it must be recognized by civilised nations as distinct frombarbarous or savage communities;(3) it must be shared by a fair number of civilised nations, and itis arguable that these must include at least the principal legalsystems of the world.8 2

Perhaps a case could be made that NGOs help to clarify when aprinciple has become general enough to fit within this definition, butagain NGOs, at most, help to apply icing to a cake prepared and bakedby states and IGOs.

Figure I shows a direct link between NGOs and the fourth source,'judicial decisions and the teachings of the most highly qualifiedpublicists." In interpreting this link, one must remember this is a muchless significant source than the first three. Professor Schwarzenbergerwent so far as to call it a "subsidiary law-determining agenc[y]," incontrast to the first three which he characterized as "law-creatingagencies. ' '

83 Within this already devalued category, there is an addi-

tional hierarchy with international courts first, municipal courts sec-ond, and the writings of publicists bringing up the rear.84 It is possibleto conceive of groups of scholars and experts, working through NGOs,having direct access to this fourth source.8 5 But opportunities forNGOs to affect any of the sources directly remain marginal.

C. NGO Participation in Negotiating the1982 UN Convention on the Law of the Sea

Figures II and III illustrate how this model of sources and NGOsmight be applied to a specific situation, the negotiation of the 1982 UNConvention on the Law of the Sea.8 6 UNCLOS III, stretching from

81. GEORG SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAw 28 (5th ed. 1967).

82. Id. at 33-34.

83. Id. at 35.

84. See THE LAW OF NATIONS: CASES, DOCUMENTS AND NOTES 48-50 (Herbert W. Briggs ed., 2d

ed. 1953).

85. SeeTHOMAS BUERGENTHAL & HAROLD G. MAIER, PUBLIC INTERNATIONAL LAW 30 (1985).

86. Convention on the Law of the Sea, Dec. 10, 1982, UN Doc.A/CONF.62/122, reprinted in

21 I.L.M. 1261-1354 (1982).

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FIGURE 11

THE CASE OF THE 1982 UN CONVENTION

ON THE LAW OF THE SEA

Ambassador Pardo's speech in 1967, through a decade-long confer-ence, to the entry into force of the Convention in 1992, was the lastgreat pre-information age, law-making conference. Figure II shows theelements of the model to highlight factors especially important to thistreaty-creating exercise. The NGO portion of the model (far left)identifies six important clusters of NGOs8 7 active in the law of the sea.

In Figure II, the way NGOs exert influence is identical to Figure I,i.e., through states and IGOs. However, there have been major changesto other portions. Although four IGOs have been specified, the UN isthe preeminent IGO because it had administrative responsibility forthis huge conference. 8 Of course, virtually all specialized agencies ofthe UN had some interest in the conference, but two, the Food andAgriculture Organization and the International Maritime Organiza-tion, had the most salient interests. The European Community was alsoactively involved and is included in the diagram.

87. There are of course many others, but these represent some of the most important active

NGOs.88. See Edward L. Miles, An Interpretation of the Negotiating of UNCLOS II, in ESSAYS IN HONOUR

OF WANG TIEYA 551, 551 (Ronald St.J. Macdonald ed., 1994).

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FIGURE III

THE CASE OF THE 1982 UN CONVENTION

ON THE LAW OF THE SEA

(Conference-induced additional opportunities for NGOs)

NQ TREATIES

11551

r- s Ma7) 1982_jen > If(Uf J1 UN Convention

1_9.1982on theLaw of the Sea

nNoal ICOs

inufyFAO M40 f UDICLAL DECISIONSAagioNonegla. F..h-nes (951

1 0Os N' Sea Conetal Shel (969)1.tondic Rbhvnes (974)

The most significant change from Figure I to Figures II and III is theinsertion of the conference that created the 1982 Convention labeled"UNCLOS III." This changed the dynamic completely. The sources ofinternational law-concretized for this example-had a direct impacton the conference in the form of existing international law such as theTruman Proclamation,8 9 the 1958 Geneva Convention on the Continen-tal Shelf,90 and the Icelandic Fisheries Case.91 The model illustratesthat these manifestations of existing international law permeated theconference; after all, existing law has been made, followed, inter-preted, and enforced by the very states negotiating the treaty.

Figure III differs from Figure II principally in that it indicates animportant, direct link between NGOs and UNCLOS III. On what basisdo we infer such a link? Multilateral conferences are strange phenom-ena. Their goal is to negotiate treaties, they have "no regular sessions,no permanent venue and no constitutional infrastructure. ' ' 92 In the

89. Proclamation No. 2667, 10 Fed. Reg. 12,303 (1945).

90. Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311.

91. Fisheries Jurisdiction Case (F.R.G. v. Ice.), 1974 I.C.J. 175

92. M. C. W. Pinto, Modern Conference Techniques: Insights from Social Psychology and Anthropology,

in STRUCrURE & PROCESS, supra note 77, at 305, 308.

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case of UNCLOS III, the conference was so complex, so lengthy, andhad so many participants (at times more than 5,000 people), it devel-oped its own character that was more hospitable to NGOs:

The Third United Nations Conference on the Law of the Sea iscomposed of delegates of some 160 participating states. Theseare the principal actors in the negotiation, exercising full rightsas legislators, including the right to vote, and thus to influencedecisions on issues in a direct or immediate way. Observers havea substantial, if mediate, impact as through the provision ofinformation.93

How was it that NGOs were able to gain access? First, the. size andcomplexity of the conference gave NGOs many points of access tothose charged with deciding on the treaty. Access could come throughthe UN or a specialized agency. Furthermore, NGO representativesoften were part of national delegations. Once access to conferencesessions was achieved, NGOs could exert influence on more than justthe entity (usually a government) that got them through the door. Thehighly technical nature of the conference increased the potential rolefor NGOs.94 For example, when trying to negotiate Part XI, theprovision for mining the deep sea-bed, the parties needed assistance inunderstanding technical issues such as mining operations and geologi-cal factors affecting the distribution of polimetallic nodules. This helpwas available from NGOs representing the mining industries in NorthAmerica, Europe, and Japan. These interests were part of nationaldelegations and could form informal coalitions within the conference.

Two ironies should be acknowledged. First, if NGOs did play a moresignificant, direct role, it was because sources, a major part of themodel, were moved to the periphery. NGOs were important in spite ofsources rather than operating through them. Second, UNCLOS III wasnot an immediate success. It took more than a decade to negotiate,needed another decade to garner the requisite sixty ratifications andaccessions to enter into force, and had to be renegotiated on the fly(essentially suspending most of Part XI) to become widely acceptableto key maritime states.95 It could be argued that the increased accessgiven to NGOs made negotiations less efficient and more protracted.

93. Id. at 310.

94. See Miles, supra note 88, at 552.

95. See Bernard, Oxman, The 1994 Agreement and the Convention, 88 AM. J. INT'L. L. 687, 688

(1994).

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We do not wish to skirt an important issue, to wit, how different is thesituation with UNCLOS III than that occurring constantly within theUN system? A myriad of interests, including those of NGOs, arerepresented every time the UN hosts a meeting or conference and, to alesser extent, during regular sessions of the General Assembly and itscommittees. We believe that the combination of length and size of theconference, the huge number of participants, and the highly technicalsubject matter provided an increased opportunity for NGOs to have afairly direct influence on the formulation of a major treaty. Further,political bargains struck early in the conference, e.g., the package dealand consensus decision-making, helped to produce a lengthy, pro-tracted conference with a concomitant increase in opportunity forNGO influence.9 6

D. NGO Participation in Negotiating the Ottawa Convention

The 1982 UN Convention on the Law of the Sea generally was viewedas involving a massive, highly technical set of issues that were difficultfor governmental leaders to interpret and almost impossible to explainto the general public. One is hard pressed to think of a greater contrastthan the 1997 Ottawa Convention on Land Mines. Professors RameshThakur and William Maley described the process as '.'social networkingacross national frontiers.",9 7 The way massive public support was mobi-lized for this treaty is astounding given the slow pace usually character-izing the treaty-making process. In fact, a panel discussion convened atAmerican University had the title "Is the Experience of the LandminesCampaign Unique or is it a Model for International Law-making?", 98

The Ottawa Convention's final result seems superficially comparableto UNCLOS III in that 120 states went to Ottawa in December 1997 tosign the convention. But the process leading up to this event was muchdifferent. As explained by Professor Kenneth Anderson in materials

96. See, e.g., Miles, supra note 88; Jonathan I. Charney, United States Interest in a Convention onthe Law of the Sea: The Case for Continued Efforts, 11 VAND. J. TRANSNAT'L L. 39, 43 (1978); Barry

Buzan, Negotiatingby Consensus: Developments in Technique at the United Nations Conference on the Law of

the Sea, 75 Am.J. INT'L. L. 324, 328 (1981).97. Ramesh Thakur & William Maley, The Ottawa Convention on Landmines: A Landmark

Humanitarian Treaty in Arms Control?, 5 GLOBAL Gov. 273, 283 (1999).98. The panel was sponsored by the Washington College of Law of American University and

the American Society of International Law. It was held on February 27, 1998. One of the authors,Ku, participated on the panel.

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prepared for the American University/American Society of Interna-tional Law panel, the NGO presence was much more prominent:

The landmines campaign ... combined together from thebeginning several areas of international law and affairs that hadtraditionally been thought of as conceptually very far apart ....Several features of the NGO movement's strategy bear noting.First, much of the campaign's early impetus came from stronglyorganized national campaigns that pushed in the first place fora unilateral governmental or legislative ban.99

Earlier efforts by NGOs to participate in a review conference encoun-tered a traditional roadblock, i.e., "NGOs were excluded from fullparticipation... because conference members considered discussionsto be matters of disarmament and therefore national security." 100 Thesaga of the Ottawa Convention depended on unprecedented coopera-tion and mobilization of political forces that would not have beenpossible before the information age. The international network thatwas created served many functions, the most important of which waslinking activists around the world. Other complementary roles in-cluded "spotlighting recalcitrants, whether they be governments orprivate industries that produce (land)mines."10' A driving force wasMs. Jody Williams, who brought order to an umbrella NGO confedera-tion, the International Campaign to Ban Landmines (ICBL), "makingfull and innovative use of the Internet, prodding coordination betweengroups with agendas that often had no other common ground. °1 0 2 Themagnitude of NGO involvement is astounding; it has been estimatedthat 225 NGOs actively lobbied the U.S. government.10 3 Success camefrom Ms. Williams's effectiveness and commitment, on the one hand,and new technologies on the other:

The other key factor was electronic mail, which enabled Ms.Williams and other campaign workers to keep in regular con-tact with their far-flung ground troops.

99. Kenneth Anderson, Memorandum to Attendees of Roundtable Discussion, A Thumbnail

Sketch of the Landmines Campaign 2 (Feb. 27, 1998) (on file with authors).

100. Richard Price, Reversing the Gun Sights: Transnational Civil Society Targets Land Mines, 52

INT'L. ORG. 613, 624 (1998).

101. Id. at 625.102. Anderson, supra note 99, at 3.

103. SeeJim Wurst, Closing in on a Landmine Ban: The Ottawa Process and U.S. Interests, ARMS

CONTROLToDAYJune/July 1997, at 14, 17.

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Some observers say that such a global campaign involvinghundreds of grassroots groups would have been impossible asrecently as five years ago, when most organizations would havelacked that technical capability.... [B]y using the Internet...organizations could stay in close contact with one another andwith campaign organizers, whether based in Washington or inrural Vermont, which is where Ms. Williams spent much of hertime. Electronic mail also enabled organizations to controlcosts. 104

There was a flurry of activity in national capitals. The Canadianfederal government was a prime mover and is credited with convincingstates not to use the consensus approach so common in international treatymaking.10 5 Within Canada, the principal architect was Foreign MinisterLloyd Axworthy,10 6 although in the early stages it can be assumed Axworthyhad at least the tacit support of Prime Minister Jean Chr6tian. Axworthy'sapproach, which sought to remove landmine issues from the usual secrecyof disarmament negotiations, has been termed "unconventional diplo-macy."' 10 7 As momentum built and public opinion-both in Canada and inmost other countries-became very favorable, Chr~tian was handed adream issue for a Canadian prime minister. Canada legitimately could claimto be a world leader, staking out a position clearly different from theUnited States, but not a position likely to jeopardize the overallbilateral relationship between Ottawa and Washington.

Figure IV is quite complex but still illustrates only a fraction ofactivity that coalesced very quickly to build support for the treaty. Themodel attempts to use the same general elements from the earlierfigures; however, the shoe is not a very good fit, which is probablyindicative of the uniqueness of the landmines issue and the effect ofnew information technologies. NGOs are more prominent than in theUNCLOS III example, having a more substantial and direct influenceon the treaty-making sequence. The group of conferences shown at thebottom of the figure illustrates the mingling of NGO and IGO meetingsthat characterized this process. Further, NGOs were far more impor-

104. Stephen G. Greene, A Campaign to Sweep Away Danger, CHRON. PHILANTHRoPY, Oct. 30,

1997, at 60.

105. Anderson, supra note 99, at 4.

106. SeeWurst, supra note 103, at 14.

107. Price, supra note 100, at 625.

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FIGURE IV

The Case of the Convention on the Prohibition of the Use, Stockpiling,Production and Transfer of Anti-Personnel Mines and on Their Destruction

(The Ottawa Convention)S IGOs (lOOs)

NGOs (1,000S) ()

$,cR C sl [ OAU __iCpledge to sign

Handicap International States (186) UNF EHuman Rights Watch GA GReslution'IEu

Medico International i G R u

Mines Advisory Group IAxoeo IPhysicians for Human Rights UF"Vietnam Veterans of AmericaOA

ILeahy/Hagel Bill ' alsfrI Pentagon

[ Il imin atio

n J

tal ban

l st NGO Conference on Landmines (London, May 1993)

2nd NGO Landmine Conference, 75 organizations attend (Geneva, May 1994

3rd NGO Landmine Conference, 400 participants from 42 states (Cambodia, June 1995)

UN Conference to discuss global ban (Vienna, September, 1995)1

1Conference attended by 76 governments, stipulates urgent need (Ottawa, October, 1996)

4th NGO Landmine Conference, 450 participants from 60 states (Mozambique. February, 1997)

Convention drafted by 100 states (Oslo, September, 1997)1

SOttawa Convention signed by 120 states (Ottawa, December 1997)1

tant at IGO meetings-NGO fora had a more prominent role than everand NGOs came much closer to getting seats at the negotiating table.

The state portion of the model (center) shows only a few examplesfrom a massive amount of activity. Although Canada's lead role isacknowledged, Belgium was the first state to pass legislation compa-

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rable to the provisions that would later be included in the Conven-tion.10 8 United States support was lukewarm. President Clinton tried toreconcile Pentagon pressure with his desire to stay on the comfortableside of public opinion. Senators Patrick Leahy and Chuck Hagel led aneffort in the U.S. Senate to "ban new deployments of antipersonnelmines after January 2000. " 19 While full U.S. support was unlikely, atleast opposition was fragmented.

IGOs were active in myriad ways on many levels. One explanation forNGO success is that human interest issues made issue cohesion easier.110

The contrast between the Ottawa Convention and UNCLOS III is clear.In the latter case, the UN was the driving force. In the instance of theOttawa Convention support was more broadly manifest. The GeneralAssembly and the European Parliament passed resolutions endorsingthe treaty's provisions. In May 1997, the Organization of African Unitypledged their twenty-five members to sign the Ottawa Convention."'Austrian Chancellor (then Foreign Minister) Wolfgang Schussel de-scribed the process in the following terms: "Lessons learned from theOttawa Process are that public opinion must be the driving force andNGOs form with states one team. Their synchronous action will row theboat. Together and amplified by the media we can do it." 112

E. The NGOs'Defeat of the Multilateral Agreement on Investment

A recent example of the influence of information on treaty-making isthe Multilateral Agreement on Investment. 1 3 This is a very compli-cated, lengthy "treaty" in some ways reminiscent of UNCLOS III.Professor Stephen Kobrin wrote an excellent, yet concise, summary ofthe substantive terms of the "treaty:"

A broad definition of investment to include investment instocks and bonds, as well as foreign direct investment and

108. See id. at 625.

109. See id. at 625.

110. See Kathryn Sikkink, Transnational Politics, International Relations Theory, and Human

Rights, 31 PS: POL. Sci. & POL. 517, 520 (1998).

111. See Greene, supra note 104, at 60.

112. Wolfgang Schussel, Editorial Report: Message from H.E. Mr Wolfgang Schussel, LANDMINFS

(Apr. 1998) <http://www.un.org/Depts/Landmine/NewsLetter/3_1/austria.htm>.

113. The Multilateral Agreement on Investment (MAI Negotiating Text) (April 24, 1998)

<http://www.oecd.org//daf/investment/fdi/mai/maitext.pdf>.

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contract rights, intellectual property, real estate, and "claims tomoney.- Very strict limits on "performance requirements"-laws gov-erning such matters as the obligation to have a certain level oflocal content... and domestic equity participation....- Limits on expropriation subject to the "usual" justificationsand conditions: a public purpose; nondiscriminatory applica-tion; due process; and prompt, adequate and effective compen-sation. The phrasing, however, is quite broad, including ..."measures having equivalent effect."- Free transfer or repatriation of capital, profits, interest pay-ments, expropriation settlements, and the like.- Dispute settlement provisions that establish an internationaltribunal to arbitrate between countries and give private inves-tors standing to sue a country in its courts for breach of theagreement or to bring action in an international tribunal.- Provisions that require countries to "roll back" existing lawsor regulations that are not in accordance with the MAI andrefrain from passing new laws that contradict it.- Specific application of nondiscrimination or national treat-ment to privatization, monopoly regulation, and access to min-erals and raw materials.' 1 4

Jumping ahead to the climax (or, more accurately, the anticlimax),in April 1998, after three years of negotiations, the MAI was stoppeddead in its tracks. The Organization for Economic Cooperation andDevelopment (OECD), under whose auspices the MAI was negotiated,tried to put a positive face on developments by asking for a six-monthdelay.115 OECD Secretary-General Donald Johnston, finally realizingthat his organization had been outmaneuvered, remarked, "It's clearwe needed a strategy on information, communication, and explica-tion." 116 Some held out hope the negotiation would be revived.However, on December 3, 1998, the OECD announced that after " [a]ninformal consultation among senior officials .... [n] egotiations on the

114. StephenJ. Kobrin, The MAI and the Clash of Globalizations, FOREIGN POL'Y, Fall 1998, at 97,

101.115. Seeid. at98.

116. Madelaine Drohan, How the Net Killed the MAI: Grassroots Groups Used Their Own

Globalization to Derail Deal GLOBE & MAIL (Toronto), Apr. 29, 1998, at Al (quoting Johnston's

statement at a press conference).

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MAI are no longer taking place." '17 This experience represents one ofthe fastest, most resounding defeats for a treaty-a defeat attributableto the efforts of NGOs. The history of the MAI under the OECD wasonly about three years.

The life of the MAI can be benchmarked between the HalifaxG7 Summit of 1995 and the Birmingham G7 Summit of 1998.At Halifax, in June 1995, the final communique endorsed thenegotiation of a set of multilateral rules for investment (theMAI) at the Paris-based [OECD]. Almost concurrently, minis-ters and delegates at the OECD launched technical and substan-tive discussions, hoping to conclude the MAI within two years,in April 1997. Failure to conclude the agenda at that date led toa one year extension, but by April 1998, it was clear that finalagreement on the MAI was still far off."18

The desirability of negotiating the MAI under OECD auspices wascontroversial. The OECD, based in Paris, represents twenty-nine majoreconomic powers: all of Western Europe plusJapan, the United States,Canada, Korea, Australia, and New Zealand. Reasons for using theOECD include the fact that its membership accounts for about ninetypercent of the world's direct foreign investment.' 19 Further, the OECDhas broad experience in drafting investment treaties. 120 However, manydeveloping countries are suspicious of the OECD, believing it to be aclub of rich countries that would give priority to the interests ofmultinational enterprises headquartered in member countries. 12 Even-tually, the negotiations may be taken over by the WTO, but consensusseems to be that with its membership of 132-five times that ofOECD-it would be even harder to reach agreement.

It is understandable how many "outsiders" might view this process as

117. Press Release by Organisation for Economic Co-opertation and Development, Informal

Consultations on International Investment, 11 1,3 (Dec. 3, 1998) <http://www.oecd.org/

newsand events/release/nw98-114a.htm.>.

118. Alan M. Rugman, The Political Economy of the Multilateral Agreement on Investment 4 (last

modified Aug. 23, 1999) <http://www.library.utoronto.ca/g7/annual/rugmanl998/index.html>.

119. See id. 5.

120. Seeid.

121. See Global Policy Forum, OECD Multilateral Agreement on Investment, Fact Sheet, Friends of

theEarth-US (Feb. 19, 1997) <http:www.igc.org/globalpolicy/socecon/bwi-wto/oecd-mai.htm>.

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secretive and unresponsive to. the needs of developing countries. 2 2

OECD carried on the negotiations largely oblivious to mountingopposition. A notable example occurred in October 1997. The negotia-tions were nearly completed when OECD Secretary-General DonaldJohnston presided over an "informal" consultation with NGOs. 12 3 Mr.Johnston's remarks clearly show that he believed matters were movingalong well. He began by enumerating NGO concerns, including na-tional sovereignty, treatment of foreign personnel, labor practices, andaccommodating the interests of countries not participating in thenegotiations. 124 Although not totally oblivious to opposition, Johnstongrossly underestimated that opposition. He commented that the "OECDhas always taken a balanced approach to foreign direct investment., 125

At the end of his remarks, Johnston announced that "a broad frame-work is now in place" and that he was ready to review the MAI withNGO representatives in attendance. 26 Poor communications, a pro-cess perceived to be secretive, and thisfait accompli attitude set the stagefor opposition to rise up and overwhelm the MAI. 1 2 7

Lawrence Herman, apparently unaware of the Ottawa Convention,wrote: The MAI was the first real Internet negotiation. Never beforewas so much information on an international negotiation availablefrom so many different sources to so many different people. Interestgroups and average citizens came armed with massive amounts ofcyberspace information about the MAI. 128

In this instance, a coalition of groups used the Internet to stop thetreaty cold. Hundreds of advocacy groups, attempting to galvanizeopposition to the MAI, used terms and examples that brought theirmessage home to the public. Their sites on the World Wide Web werecolorful and easy to use, offering primers on the MAI that anyonecould understand.129 The range of NGOs working against the MAI andthe variety and hyperbole of their claims are amazing. The following

122. See Madeline Drohan, MAI Talks Shunted as Trade Ministers Assess Options, GLOBE AND MAIL

(Toronto), Apr. 29, 1998, at B6.

123. See DonaldJ. Johnston, Opening Remarks at the Informal Consultation with NGOs on

the MAI (Oct. 27, 1997) <http://www.oecd.org/daf/cmis/mai/sgngo.htm>.

124. See id. 3.

125. Id. 16.

126. Id. 19.127. See Drohan, supra note 122.

128. Lawrence Herman, Internet Flexed Muscles in MAI Negotiations, FIN. POST, Apr. 30, 1998,

at 21.129. See id.

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examples provided by Professor Kobrin are illustrative:

"The MAI... will serve as a Charter of Rights and Freedoms fortransnational corporations against citizens and the earth, andrepresents a grave threat to democracy in Canada."

-[Canadian activists] Maude Barlow and Tony Clarke"[The MAI is] one of the gravest threats ever to the economicdevelopment and national sovereignty of countries of theSouth."

-Dr. Chandra Muzaffar, director, Just World Trust"If the OECD gets its way, the British government will neveragain be permitted to restrain the rapacity of the privatesector."-Environmental advocate George Monbiot, letter to the Lon-

don Guardian, April 15, 1997"Under [the] MAI, local, regional and federal governmentscould no longer make low-interest loans to local businesses, cuttaxes for businesses that hire members of local communities, orgive minority-owned or environmentally conscious companiespreference in the awarding of public-works contracts."-Gabriel Roth, San Francisco Bay Guardian, October 15, 1997130

The unprecedented influence of a large group of disparate NGOswas due to more than flashy, state-of-the art web sites. Some estimatesplace the number of opposition NGOs at more than 600.131 ProfessorRugman argued convincingly that the United States' failure to passtrade legislation and to give President Clinton fast-track negotiatingauthority created a "vacuum the NGOs were able to step [into] andsteal the agenda." 132

The case of the MAI may presage a new era where justification to awider audience-certainly a democratic principle-will be an essentialpart of treaty making. But it would be simplistic and premature toproclaim global grassroots democracy. Are some issues too complex toexplain to a mass audience? Canada spawned one of the most activeanti-MAI NGO efforts lead by Maude Barlow, head of the Council ofCanadians, a major global influence against the MAI. But Ms. Barlowdid not have broad popular support in Canada. In 1993, she cam-

130. Kobrin, supra note 114, at 103.131. See id. at 97.132. Rugman, supra note 118,1 15.

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paigned actively for a number of candidates in the federal election-those whom she supported receiving less than one percent of the votescast. 133 The situation in Canada confirms the observation of reporterReginald Dale: "NGOs often display none of the transparency theyseek in others, hide the sources of their funding and represent onlynarrow special interests, not the wider public.' 134 The negotiatingprocess for treaties often needs a degree of secrecy to facilitate delicatepolitical bargains. Will Internet diplomacy make this impossible?

We believe these three examples-the MAI, the Ottawa Convention,and UNCLOS III-illustrate important aspects of contemporary NGOinfluence. It may be premature to generalize from only three cases, butthe reasons for NGO influence are telling. In the case of the Law of theSea Convention, the duration of the conference, the complexity of theissues, including the need for technical expertise, created a rareopportunity for NGO influence because states needed informationoften available only from NGOs. In the case of the Ottawa Convention,the issue was concrete, the human dimension palpable, and states hadan existing legal and institutional platform on which to place the issueas soon as popular momentum began to build-the speed and scope ofmobilizing political support through technology was evident. Finally, inthe case of the MAI, political opposition came from a host of issuesranging from human rights to environmental protection. Again, tech-nology permitted fast and broad mobilization of an unprecedentednature.

IV. CONCLUSIONS AND PROSPECTS FOR A SHIFT IN GOVERNANCE

We have argued that an expanded place for NGOs is inevitable andcan be constructive-even decisive-in the development of interna-tional law. Prosaic as it may seem, an enormous amount of analyticalwork on NGOs remains to be done. Our review of existing analyses andconcepts of international law-making suggests areas particularly ripefor study. For example, Professor Dinah Shelton sees an importantfunction for NGOs before courts, providing another access point tointernational law:

Nongovernmental organizations are playing an increasinglyimportant role in international litigation.... International pub-

133. See id. 11.

134. Reginald Dale, The NGO Specter Stalks Trade Talks, INT'L HERasi TM., Mar. 5, 1999, at 11.

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lic interest organizations... may institute cases or intervene asparties, serve as court- or party-appointed experts for factfinding or legal analysis, testify as witnesses, or participate inproceedings as amici curiae. . .. The role of amicus ... isgenerally less costly and time-consuming than mounting a fullcase.

135

A critical look at the accepted definition of NGOs suggests someradical possibilities. For example, important institutions usually as-sumed to fall into the IGO category might arguably be NGOs. Gorden-ker and Weiss speculate about quasi-governmental organizations anddonor-organized nongovernmental organizations. 1 6 What about theInternational Court of Justice, the most important court of interna-tional law? The virtually unchallenged assumption is that the ICJ is anIGO, part of the global IGO, the UN. But can an IGO create an NGO?Because the ICJ "shall be the principal judicial organ of the UnitedNations" 13 7 and "[a]ll Members of the United Nations are ipsofactoparties to the Statute of the International Court of Justice,', 138 is it

inconceivable that the ICJ could be an NGO? States do not belong tothe ICJ in the way they belong to the FAO. Further, the dictates ofjudicial impartiality forced the ICJ to distance itself from states, addingto this impression of quasi-NGO status. 1 3 9 The point, of course, is not toargue literally that the ICJ is an NGO. However, a functional approachemphasizing what NGOs do, not just how they are created, shows howporous the traditional categories have become.

Recent efforts creating international tribunals and courts to enforceinternational standards and norms in areas where national judicialinstitutions are found to be inadequate, e.g., the International Crimi-nal Court and the International Criminal Tribunal for the FormerYugoslavia and Rwanda, suggest that a new era is dawning. This new erais characterized by expanded roles for NGOs contemporaneous withinternational law focusing more on human rights. The notion-virtually unassailable a century ago-that the state is the only subject of

135. Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial

Proceedings, 88 AM.J. INT'L L. 611, 611 (1994).

136. Gordenker, supra note 27.

137. U.N. CHARTER art. 92.138. U.N. CiAmTER art. 93, para. 1.

139. See, e.g., ICJ Statute, Art. 2 (requiring that the court be composed of independent

judges); ICJ Statute, art. 18(1) (requiring unanimous opinion of other judges for dismissal from

the court).

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international law is giving way. NGOs have contributed to this systemicshift.

This Article began with a focus on technology's effect on NGOs,particularly as their work related to the development of internationallaw. The sources of international law helped to demonstrate theworkings of the law-making process. The complexity of an issue, as isthe case with the ten-year negotiation of UNCLOS III, with its 320articles and 9 annexes, plus the number of negotiating parties (160 inthis instance), created a political dynamic more open to influence byprivate parties including NGOs. This influence was wielded throughgovernment representatives, officials of sponsoring organizations, andconference secretariats. NGOs served as sources of information, chan-nels of communication, and purveyors of solutions for the negotiationof stalemates or logjams. The Ottawa Convention illustrates the "accel-eration of history" made possible when NGOs use information-agetechnologies in an international system freed from the constraints ofCold War bipolarity and where states' interests have not fully ripened ina particular issue area.

Technology appears to have made a qualitative difference for NGOsin two primary ways. First, it enhanced their power as informationpurveyors in a complex and information-rich environment. Second,technology has greatly expanded the ability of NGOs to mobilize and toorganize a critical mass of support so that they cannot be ignored theway they were in the MAI negotiations.

The nature and frequency of contacts and interactions across bor-ders have increased drastically, requiring both more complicated aswell as more open-ended international legal obligations and frame-works to support them. This more intense process of making anddeveloping law has moved international law away from a rule orienta-tion towards one that considers values, frameworks, and processes. Inthis context, private actors-corporations, individuals, and NGOs-have an opportunity to help determine which questions should engagethe attention of governments.

Whether NGOs will contribute to better global governance andmore civil society depends on how they are used and how they relate tothe interests and functions of national and international institutions.Recent scholarship and practice demonstrate that NGOs are an impor-tant factor for a full understanding of contemporary internationallegal and political processes and have the potential to advance humanrights and develop international law in myriad ways. The instantaneous

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global reach of the information age provides the means to do so.Professors Thakur and Maley have optimistically stated that, "NGOshave for many years acted as systemic modifiers of state behavior. Thecase of the Ottawa Convention shows that the role of NGOs haschanged from constraining state behavior to setting and driving theinternational agenda."

140

We began this inquiry by speculating about whether information-ageforces that affect individuals will necessarily influence internationallaw. It seems appropriate to conclude by trying to fit international lawinto the new social fabric being woven by the information age. Cana-dian academic DavidJohnston has written eloquently about a "triangleof success" consisting of "wealth creation, social cohesiveness andpolitical liberty."' 41 In 1500, Islam and China both led Western Europein technology, but since then Western Europe has moved far ahead as aresult of a better balance among these three elements. 142 ProfessorJohnston described the present situation in this way: "Today, we arefaced with a parallel challenge: can we use the new tools of informationtechnology to enhance and strengthen the synergy across the threecorners of the same triangle?"' 143

The heightened role of NGOs is pertinent to Johnston's con-ceptualization. NGOs have helped to bolster each side of thetriangle. The Ottawa Convention certainly is an attempt to advancehuman liberty. Some might argue that the MAI was a noble effort atglobal wealth creation, an attempt thwarted by NGOs. The socialcohesiveness side of the triangle can be even more problematic. Theinformation age permits seamless, instant communication across bor-ders, which certainly has the potential to undermine social cohesion.The answer to this apparent contradiction lies in realizing that, whileeach side of the triangle represents a positive value, advancing any oneof the three may come at the expense of the others. This is preciselywhat law is all about, balancing social values when they conflict withone another.

For more than 350 years, states have been the principal actorsapplying law to adjust among competing values. NGOs are now emerg-ing as an additional force in the application of law to adjust amongthese values. The values themselves can be as varied as prohibiting the

140. Thakur & Maley, supra note 97, at 297.

141. Johnston, supra note 4, at 59-60.

142. See id. at 59

143. Id. at 60.

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shouting of "fire" in a crowded theater and outlawing torture previ-ously hidden behind the veil of territorial sovereignty. NGOs haveheightened status and efficacy as part of international law's effort tobalance and advance human values. We live in interesting-cyberspa-cial-times.

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