A normative inquiry to a combined theoretical approach of regulating international non-governmental organizations through international law

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L. Noordzij 1

‘A normative inquiry to a combined theoretical approach of regulating

International Non-Governmental Organizations through international law’

“It is time for a more focused discussion about power which would take international law and international relations beyond their current state-centric perceptions and into a level of analysis that is more focused on exploring normative questions central to the promotion of progress across global

communities.”

David Cox and Andre O’Neil, 2008: p. 215

Student:

L. Noordzij

Student Number:

5947545

Lecturer:

Dr. Sara Kendall

Work:

Master Thesis

Field:

International Relations

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international level. Until a few years ago much of the writings on INGOs have been generally positive, regarding them as the embodiment of an increasingly interconnected global society, providing a worldwide mechanism for representing civil society. Their participation in international processes are said to enhance legitimacy and promote democracy. They have been celebrated as ‘concerned citizens’ (Ben-Ari, 2013: p. 1).

The past two years however, the generally positive attitude towards INGOs and their activities is undergoing a change. Carefully, states, companies, newspapers and individuals have been raising questions about the lack of regulation of these ever expanding organizations acting globally in a variety of policy areas. Their involvement in scandals of misconduct,

embezzlement and moral malpractices have directed the attention to the lack of (legal) frameworks resulting in accountability deficits (The Guardian, 2013). Also, a growing number of people is concerned with what can be called the commercialization of INGOs. Tony Blair, former Prime Minister of the United Kingdom, has expressed his concerns with INGOs becoming more and more independent. They have become organizations ‘raising money, marketing themselves and competing with other INGOs in respective fields’ (Blair, 2010). Therefore a more critical standpoint towards INGOs should be taken, no longer treating them to be undisputed benefactors of moral values. Furthermore, others have been eager to point out that even though INGOs are an expanding phenomenon and could therefore logically build upon gathered knowledge, many of their activities are ineffective and lack efficiency (Liket, 2014: p. 75).

In short, malpractices, a lack of adequate conceptualization and inefficiency altogether exemplify the growing concerns of regulation of INGOs. It is therefore the overarching motivation of this thesis to contribute to solutions for the effective international regulation of INGOs.

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L. Noordzij 7 1.b Formulation of the problem

The relevance of the topic at hand is evident when looking at contemporary literature on the matter. Both International Relations (IR) and International Law (IL) scholars have identified the increase in influence of INGOs in important international processes. Even though the reality of INGOs is more than evident and widely accepted, this thesis will demonstrate that both global governance and international law have troubles in adequately addressing them as the international and political actors they are.

The past decades, the field of IR has elaborately explored the gradual transformation of mode of political organization at the international level. It is said to be subject to a shift from interstate cooperation, negotiated by national governments, to more complex forms of

cooperation, involving transnational as well as supranational actors (Jonsson, Tallberg, 2010: p. 4).The past decades, this has been a commonly underwritten conception as demonstrated by writings of many influential scholars in the field of IR (e.g. Nye, Keohane, 1971: p. 329. Martens, 2001: p. 387. Cakmak, 2004: p. 104. Yasuaki, 2006: p. 34. Kelly, 2008: p. 96). Stroup and Wong (2013) provide a concise conclusion of what the field of IR has been

occupied with the past 25 years. According to them there is a growing need for regulating and holding accountable those entities acting globally, as their very foundations and purposes have shown to be political (Stroup, Wong, 2013: p. 164). Furthermore, Regime Theory (RT) has been successful in understanding mutually constituting relations between states and non-state actors on the international level. It provides a backdrop for understanding shifts of power on the international level and holds that regimes and institutions, constituted by changing norms and values, are used by and influencing the actors involved.

The discipline of IR has been effective in interpreting INGOs as meaningful actors on the international level. As a result of their increased importance and informed by IR insights, both the fields of Global Governance (GG) and IL have been occupied with questions related to the international regulation of INGOs. However, despite their occupation, recent concerns with INGO malpractices, their ongoing commercialization and indications of inefficiency signify an inability of sufficient regulation.

In several instances it has been shown that existing voluntary public and self-regulation mechanisms have not been able to provide effective or efficient mechanisms for regulating INGOs. In 2005, Koppel identified a so-called Multiple Accountability Disorder. As a

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consequence of increased (national) public initiatives to hold INGOs accountable, a range of disparate conceptions of accountability has severely undermined INGOs effectiveness (Koppell, 2005: p. 95). Others have noticed INGOs and corporations working together as the result of a lack of universal accountability mechanisms. In order to mutually legitimize their activities, the cooperation of INGOs and corporations leads to the process of Co-Optation, the convergence of ideological goals with, seemingly, incompatible goals driven by commerce and profit (Baur, Schmitz, 2012: p. 10). It seems that the dominant normative appraisal of INGOs as ideological height has until recently forestalled extensive critical theoretical assessments.

IL in turn has been concerned with the topic of INGO regulation as they have been exerting more and more influence in what scholars of IL have conventionally regarded to be an international state-centric framework. In 2001, Prof. Dr. Kersten Martens has already pointed out the lack of a universal understanding of INGOs in IL as internationally operating entities. In 2002, Rebasti and Vierucci continued to show the lack of universal recognition of INGOs before international courts. Both Charnovitz (2006) and Cakmak (2008) have reached similar conclusions. The juridical approach of INGOs is problematic as the status of these entities under international law is still very ambiguous. The field of IL has shown inapt to grasp the full concept of INGOs as a result of its positivist approach and a lack of appreciation of non-state actors (Charnovitz, 2006: p. 359). Reserve some general instances of INGOs being subject under international law, which have been identified by Eduard Szazi in his dissertation (2013), the conclusion of Cakmak that there is currently no universal international

arrangement allowing to regulate their role in a legal setting still holds (Cakmak, 2008). This has been confirmed by the work of IL scholar Rephael Ben-Ari, which has dismissed an international legal approach as viable option to hold INGOs accountable because the discipline is not able to provide a universal concept of what INGOs are (Ben-Ari, 2013: p. 93).

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L. Noordzij 9 1.c Aim of the thesis

In essence, this thesis first aims to demonstrate that both the GG approach and IL seem

currently unable to adequately regulate INGOs on the international level for differing reasons. By emphasizing INGOs ideological importance, GG is caught in a self-legitimizing discourse of self-regulation and public initiatives. Additionally, by being unable to provide a universal conceptualization of INGOs, contemporary writings of IL scholars converge to the same dominant discourse. As a result, contemplations on regulation of INGOs seems to

systematically exclude the framework of international law. By offering a possible, but not definitive, universal interpretation of INGOs based on IR writings, this thesis hopes to demonstrate the fruitfulness of a hypothetical, theoretical inquiry of INGOs regulation

through international law and, by doing so, advance knowledge on and provide new angles for INGO regulation. It has a normative aim to stimulate both fields to find adequate mechanisms for the international regulation of increasingly influential entities.

Although this thesis might take a critical stance towards INGOs, it does not want to deny the very important ideological goals they pursue and the crucial role they play in providing worldwide aid to the needy. Nor does it want to deny the important part they play in worldwide development and relief projects.

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L. Noordzij 10 1.d Structure of the thesis

The first chapter will set off with determining the actual influence of INGOs by taking a constructivist position and applying RT. It will extensively demonstrate the influence of INGOs and provide the underpinnings for the rest of the thesis.

The second chapter continues to address the way in which INGOs are regulated by using a GG backdrop. GG will show to bend on a dominant normative discourse provide regulation for INGOs. In the first place, this leads to concerns regarding the multiplicity of regulations will be identified. As a result of extensive and conflicting accountability demands, existing regulation seems to impede effective conduct. In the second place, it will it will be

demonstrated that inadequate compliance mechanisms, such as self-regulation, may have malpractices and misconduct as a result.

To continue the assessment of current international regulations of INGOs, chapter three will assess INGOs under international law. By discussing the concept of legal personality and drawing upon the status of INGOs under the international legal framework, it will be shown that both practically and theoretically, international law and the field of IL do currently no adequately regulate INGOs. Practically, INGOs are not universally regarded to be subjects under international law and IL shows difficulties to conceptualize non-state actors embodying changing norms and values like INGOs.

As the goal of this thesis is to provide an inquiry which might lead GG to address INGOs as the influential political entities they are and provide IL with a relevant conceptualization of their constitution, chapter four will provide a definition of what INGOs are. By combining existing literature and the insights on their influence and activities from the first chapter, first their characteristics will be emphasized before demonstrating their inherently international character.

Chapter five will then try to combine the insights of both GG and IL in a theoretical inquiry

of a more formal regulation of INGOs through the international legal framework. First some preliminary remarks will be made after which the possibility to address INGOs as subjects under international law will be discussed. To continue, possibilities for compliance

mechanisms as well as universal regulation through international law will be presented. Even though the chapter is highly normative and is aware of the practical implications, it hopes to provide a new angle on the discussion of INGO regulation. Even though the international legal framework might not be the most obvious choice for regulation, the last chapter will

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show that some of the concerns raised earlier in this thesis might need a more vigorous approach of regulation than is currently provided.

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2. Theoretical framework

2.a Overview of the framework

The theoretical framework relied upon is provided by several academic paradigms. At the basis lays a Constructivist approach. It is constructed through a writings on International Relations (IR), Regime Theory (RT), Global Governance (GG) and International Law (IL). The four academic sub-fields are all, inter alia, concerned with the relevance of INGOs as influential actors in international relations. Each body of literature provides different

theoretical insights of INGOs and their role on the international level. In the following I will briefly explain the assumptions of each theory and how they might be applied in the thesis. It will be shown that the Constructivist approach and more specifically the application of Regime Theory offers the possibility of a broadly underpinned argument of why INGOs matter in international relations and why they should need regulation. Additionally, by using Global Governance knowledge, the framework enables a demonstration of the shortcomings of current regulations on the international level by focusing on normative regulations. To provide an assessment of the structural, or positivist, regulation of INGOs on the international level, the thesis will draw upon the knowledge of the field of IL. Thereafter Global

Governance literature will provide the information needed for a conceptualization of INGOs before being able to provide a theoretical inquiry of regulation of INGOs through

international law.

Note 1: Regulation in this theses will generally comprehend all means or abilities to create limits, constrain rights, denote duties, assign responsibilities and facilitate and/or control activities.

When spoken of formal regulation, it denotes any formally institutionalized means of regulation, not (solely) constituted of other INGOs, including an effective compliance

mechanism which embodies some reasonable ability to financially, politically, structurally, or legally enforce or safeguard the regulations at hand.

When spoken of regulation by public initiatives, in this thesis it is meant all initiatives undertaken by the public or the entity at hand, which might be stakeholder groups, peers, beneficiaries, partners, donors or any other form of third party assessment which does not comprehend governmental initiatives stooled upon formal regulations.

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Note 2: When terms are used to signify the representative field of study, the terms will be capitalized, this is not the case if the terms signify the practical or theoretical object of study at hand.

2.b Constructivism

Constructivism is not so much a theory as it is an institutionalized school of thought, or a broad perspective on how to perceive the world and, more specific, international relations. Most important to the political expression of constructivism has been Alexander Wendt’s article Anarchy is what states make of it: Social Construction in Power Politics (1992). Therein, Wendt rejects a de facto stance of materialism as employed by Realist thought and makes the argument that the world, and therefore politics, may be socially constructed (Wendt, 1992: p. 423).

More generally speaking Constructivism believes in the social and historical construction of reality and is therefore concerned with ideas and human consciousness. It is also concerned with a structural-agency debate on how individuals might construct reality, but also how this reality might influence the behavior of these individuals. Central are changing norms and values as driving forces for change (Barnett, 2006: p. 268).

Most importantly to this thesis is the fact that Constructivism enables one to understand INGOs as influential actors as they are a structural embodiment of norms and values. It enables academics to study them as a meaningful objects in international relations besides states, which have generally been regarded as the prime institutions embodying unchangeable, universal interests of power.

Also, as the approach offers the possibility for a deeper understanding of the world and can more easily explain change as a result of changing interests of actors, it will help to explain how and why INGOs have become important actors on the international level and it provides the tools to interpret their influence in several processes with state and non-state actors alike.

2.c Regime Theory

A more specific theoretical expression in IR, partly informed by Constructivism, is provided by Regime Theory (RT). It holds that anarchy is a possible condition in the international system of states, but it is not necessarily so. Instead, relations and interactions may be governed by and shaped through international institutions and regimes which are the xpression of international cooperation between various actors. Institutions are generally defined as ‘principles, norms, rules, and decision making procedures around which actor

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expectations converge in a given issue-area.’ (Krasner, 1982: p. 185). Furthermore, RT holds that different interpretations of interests are possible and values may determine interactions; it can therefore be regarded as a more normative approach as compared to Realism. Regime Theory furthermore holds that regimes structure choices, provide incentives, distribute power and define identities and role (Little, 2006: 373).

By applying RT to INGOs, we can make sense of their position and influence on a variety of actors in international relations. INGOs are a structural representation of large numbers of peoples throughout the world and they articulate norms and values. As will be shown, they exert influence on decision making processes, they produce rules and, as transnational actors, can be said to distribute power over the world. Constructivism enables us to regard INGOs as actors in international relations and, correspondingly, RT provides the theoretical backdrop which may explain how INGOs are influential.

2.d Global Governance

The field of Global Governance is occupied with the political integration of transnational actors on a global scale and is interested in negotiating responses to problems that affect more than one state or region. It has become more relevant in the face of ongoing processes of globalization as a result of which political, economic and environmental problems

increasingly transcend existing states, regions and continents. Consequently, GG has been concerned with shifting forms of power, moving away from centralized states and to transnational public or private networks (Clark, 2006: p. 730). Besides studying global institutions covering political, economic and social areas, GG is very much interested in questions of legitimacy and representativeness as the entities undertaking their activities on the international level are usually no elected bodies. These entities represent different norms and values and are part of civil society, which comprehends all public activities of

individuals, organizations and movements which are not characterized as governments or government activities. The activities can be of economic, social and cultural nature, although the emphasis is usually on political activities (Willetts, 2006: n.p.).

GG will help to signify the increased importance of INGOs and interpret their growth in size, scope of activities and accompanying responsibilities over the past decades. The theory provides tools to firmly establish what can be considered an International NGO (INGO), how they are entangled in international relations and, accordingly, why they matter.

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L. Noordzij 15 2.e International Law

International Law (IL) as a theoretical framework is based upon a positivist tradition. Originally, the tradition of IL is inspired by the idea of state sovereignty. Rules and

regulations may have been implemented to meet state’s purposes but can also be motivated by a drive for facilitation or a need for controlling activities of other actors on the international level (Dixon, 2013: p. 5). From a politics point of view, this focus conveys IL’s Realist underpinnings. Although IL theory is generally stripped from normative values and notions of objectivity prevail those of subjectivity, it cannot be regarded as positivist as its national counterpart. International Law has developed through the years to create patterns of activity which sustain the primary goals of states. The goals may differ but are conventionally informed by interests of security, a sanctity of agreement and the protection of territorial integrity (Reus-Smit, 2006: p. 351).

The theory of International Law as well as its practical expression provide the opportunity to address the current status of INGOs in international legal literature and its reality. As the original purpose of IL is to regulate activities on the international level, it is no more than logical to apply this framework in an assessment of INGOs position in this.

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3. Operationalization and justification of used methods

3.a Operationalization

In general, in order to be able to achieve the aim of the thesis set out in the previous section, this research will be motivated by normative conceptions, with the aim to contribute to a broad body of IR literature and by using critical thought informed, but not bound by, practical reality, to provide a conceptualization of INGOs to enable IL to assess them as subjects under international law and therewith providing the basis for a normative inquiry for combining theoretical knowledge from the field of GG and IL to improve regulation of INGOs through more effective regulation.

Here, I would like to point out that the object of inquiry, INGOs, are seen as truly

internationally operating actors. Some of the theories, concepts or arguments set forth in this thesis do not apply to the European Union. As a heavily integrated region without a global equal it may be said that a different status quo applies to this entity. As such, it is not representative and this thesis is more directed to the world as a global space, which is less regionally integrated than the European Union.

Establishing the influence of INGOs

The formulation of the problem of this thesis begins with the assumption that INGOs are influential actors in international relations. In order to establish this is so, this thesis will rely upon Constructivism, an approach to IR which has proven to be able to address INGOs as objects of study. In order to make sense of the context in which INGOs operate and to be able to interpret how they relate to other actors on the international level, RT is used. This theory makes it possible to address state and non-state actors alike, enabling a conceptualization of INGOs their influence in a comprehensive explanation.

Additionally, as a Constructivist approach comprehends interpretation and, in combination with theorizing, may be difficult to grasp, it is the aim to make the inquiry tangible and insightful through the use of empirical examples where possible or applicable. By doing so, this thesis hopes to contribute to existing knowledge and, more importantly, hopes to given an empirical underpinning of the influence of INGOs as to establish their significance as a given. This should make it more likely for future research on INGOs to address them from a less

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normative and a more positivist angle. One may notice when reading this thesis that the empirical examples used to indicate INGOs influence generally include a positive (in a normative sense) effect. As such, the empirical examples do not function to underpin the concerns of malpractices raised in the introduction of this thesis. The main reason for this is that these positive examples provide pre-eminent proof of their influence. Additionally, finding such effective examples in a negative spirit is harder (the reasons for this will

hopefully be more clear by the end of this thesis) and would take too much time when keeping the timeframe for this thesis in mind.

The empirical examples in this thesis will be mainly provided by extensive reports of the One World Trust. The One World Trust is considered as one of the most prominent INGOs

providing information and research on Global Governance and the INGOs involved. Their information is used in a wide variety of publications and they regularly conduct own research under leading scholars. Another important reason for choosing the One World Trust as a source is the fact that it provides recent data on INGOs. In order to understand the constitution or goal of an INGO, often their own website is used. Additionally, accounts of INGOs their activities may come from prominent newspapers, trusting on their values of professional journalism.

Unveiling the need for regulation

The inquiry in this thesis has been motivated by growing concerns of malpractices and inefficiency of INGOs. In order to adequately assess whether there are (theoretical) concerns of regulation on the international level, both regulation given in by normative as well as positive concerns will be assessed. That is to say, GG initiatives provide a subjective and value-based framework of contemporary regulation of INGOs, whilst IL provides a more objective and empirical framework of INGO regulation.

As the final goal for this thesis is not to provide practical solutions for any potential regulation concerns, but to contemplate on possible theoretical approaches to the question at hand, both for the GG approach as well as for the IL approach, literature will be the primary source of research. Also, it is the aim to address any potential theoretical pitfalls in theorizing the regulation of INGOs. However, when such a pitfall is recognized, there might be reference to a practical expression of such in order to make the inquiry more insightful.

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Conceptualizing the object of inquiry:

In order to be able to give an objective and elaborate definition of what an INGO is, this thesis recognizes the amount of literature already written on the object of inquiry. By combining some of the most authoritative publications on the matter, it seeks to provide a clear but comprehensive conceptualization of INGOs. In order to improve the plausibility for the concept to be useful in fields with a positivist tradition, the definition will also draw upon empirical knowledge. Providing an organizational definition in combination with the extensive evaluation of their influence in an earlier chapter should provide the basis for the intended inquiry of this thesis. Moreover, it might be useful for future research on the subject.

Providing a combined approach:

To eventually arrive at the provision of a combined approach for theorizing the international regulation of INGOs, this thesis aims to theoretically combine, and mutually draw upon, the possibilities given by the frameworks of IR, and more specifically GG, and IL. To this end, mainly literature will be used.

The inquiry is solely theoretical; it does not insist on submitting policy recommendations nor does it want to advocate organizational or structural change. It merely aims to provide another angle on existing assumptions and knowledge on the international regulation of INGOs. However, in order to make a combined approach more plausible and encourage future inquiries of the same kind, some possibly viable, practical applications informed by the approach will be suggested. As such it hopes to encourage normative thinking on INGOs and challenge existing academics from the legal discipline to embark on scientific expeditions.

Note: As the term INGO has not yet been widely accepted to denote an international NGO as significantly different from an ‘ordinary’ NGO, reference to a variety of used sources may comprehend the use of the term NGO. In such instances the term NGO may actually refer to the phenomenon of an INGO and therefore be relevant.

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1. The influence of INGOs in International Relations:

Applying RT

1.a Introduction

An excessive increase in International Non-Governmental Organizations (INGOs) has taken place over the past decades. As a result, international relations are more than ever

characterized by a multilateral and interdependent system of transnational actors. INGOs, as transnational actors said to represent a global civil society, are more and more considered an additional influential actor in international relations, alongside states (Howell, 2012: p. 2). As INGOs have manifested their influence in contemporary global society, they are regarded to be a source of change in the characteristics and emphasis of worldwide politics and mutual relationships (Keohane, 2006: p. 29). The increase of INGOs operating in different fields and wielding power in a large number of policy fields, have led some say the influence of states has diminished in the past decades. This diminishment is labelled by some as a shift from state-centrism and can be seen as the motivation for the effort to ‘achieve a goal of

‘unthinking’ state-centric modes of […] inquiry.’(Brenner, 1999: p. 41). More practically, it can be regarded as a gradual transformation in the dominant mode of political organization at the international level, from interstate cooperation managed by national governments to a more complex form of cooperation on the basis of transnational non-state institutions (Tallberg, 2008: p. 6). This chapter does not aim to deny the significant influence of inter-state relationships and the impact they have on global society. It is, so to say, not the goal to argue for a paradigmatic shift of ontology of international relations, it is merely trying to show how and why INGOs make a rethinking of international political space relevant (Keohane, Nye, 1971, Huntington, 1973, Brenner, 1999: p. 41).

Previous inquiries have established the importance of INGOs as a result of their ideological aims and their inclusion in significant international processes (Kelly, 2008: p. 82). As a result, scholars have focused on the tactics and strategies employed by INGOs in reaching their goals. This has resulted in elaborate accounts of practical activities undertaken by INGOs and the way in which their rise should be interpreted if not contained or responded to (Teegen, Doh and Vachani, 2004: p. 477). Other publications have focused on INGOs as institutions of global civil society, enabling the international representation of groups of people and their political, social, economic, cultural and ideological values. This has motivated scholars to

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focus on stakeholder relationships and the organizational structure of INGOs and how to characterize their human capital (Stroup and Murdie, 2012: p. 444).

This chapter hopes to add to this by providing a strong theoretical underpinning of non-state influence in international relations before embarking on a more empirical interpretation of the influence of INGOs. Although the idea of a Constructivist approach to INGOs is not new, specifically applying RT makes it possible to interpret the intersection of INGOs, states and Intergovernmental Organizations (IGOs) activities on the international level and make plausible the influence exerted by INGOs in these interactions. In this way this chapter may function as a dovetail, bringing together statist and non-statist actors in one meaningful network of influence. As such it builds on the groundwork laid by Keck and Sikkink (1999), who have studied Transnational Advocacy Networks (TNAs) and came to the conclusion that these may play an important role in the emergence of shared norms and values (Keck and Sikkink, 1999: p. 100). The use of practical examples provides substantial insights and connects the theoretical backdrop with empirical reality.

The chapter will set off by introducing RT as an approach to international relations before giving an interpretation of what influence in such relations might be. Then by considering a share of the activities undertaken by INGOs, the chapter will connect RT with conceptual and practical examples of INGOs influence to make insightful their significance in international relations.

1.b Studying International Relations

The study of IR has long been dominated by Realist thought and, as such, has had a focus mainly on unitary rational actors. These actors are in practice considered to be states, seeking to maximize their own security in an international system of anarchy (Brian and Schmidt, 2006: p. 171). This theory of Realism has long remained the ‘central tradition in the study of world politics.’(Keohane, 1989: p. 36). In the 1990s however, New Institutionalism and, more specifically, RT based upon a Constructivist ontology have got foot on the ground in the field of study (Marsh and Stoker, 2002: p. 95). The emergence of such ‘organizing perspectives’ challenging traditional Realist accounts in the discipline of IR opened up new possibilities for looking at non-state actors and their influence on an international level (Gamble, 1990: p. 405).

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RT provides a theoretical framework for such possibilities. It has enabled notions of international cooperation and coordination between states and other actors through meaningful institutions and the creation of regimes. Regimes are defined as ‘principles, norms, rules, and decision making procedures around which actor expectations converge in a given issue-area.’ (Emphasis added) (Krasner, 1982: p. 185). It provides a characterization of international relations in which survival depends on the capacity to regulate global activities through regimes, and it dismisses the Realist precondition of international anarchy. In regimes, principles are to be defined as coherent (theoretical) assumptions about how the world works. Liberalist principles of free trade provide a good example of such principles. Norms relate to generally accepted standards of behavior, and, in regimes, may constitute the rights and obligations of its participants. Rules on their turn are considered more specific and concrete than norms and are generally aimed at reconciling conflicts which may arise between norms and principles. Also, they provide a mechanism for differentiation inside a regime. Decision making procedures finally, regard the formal instructions for behavior inside a regime in order to reach effective outcomes. These mechanisms may change over time as the regime is consolidated or extended (Little, 2006: p. 373). As such, regimes can be said to structure, influence, regulate and comprehend international relations.

RT can be used as an argument for a shift from a so called state-centric to a pluralist model, in which governments and transnational actors coincide with each other multilaterally. This argument mainly depends on denying a one-dimensional concept of power. In other words, it is based upon a rejection of the classical idea of global politics informed by Realist thought, which takes states as the unitary actors in international relations, and security as the main interest (Marsh, Stoker, 2002: p. 70). Subsequently, global politics should be seen not to comprehend separate levels and different dimensions, but as adjacent policy domains in which several actors enter the political process, possessing particular resources and seeking to fulfil their respective goals. Also, the outcomes in international interactions must be examined through the use and possession of variable resources available to actors and to what degree these resources are compatible with the pursued goals of their owners (Willetts, 2006: p. 450).

Furthermore, RT holds that in explaining particular outcomes of interactions, regimes structure the interests of individuals. In turn, regimes are dependent on the individuals that construct them; structure and agency are interdependent and mutually constitutive. In

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particular, regimes may structure choices, provide incentives, distribute power and they play an active role in the construction of identities and roles (Marsh, Stoker, 2002: p. 97).

For the purpose of this thesis, international relations are to be seen as the interplay of internationally operating actors which take place through regimes and institutions. RT is informed by a Constructivist ontology which sees core aspects of international relations as being socially constructed in an ongoing process of practice and interaction (Barnett, 2006: p. 259). It lays the basis for an interpretative and dynamic view of world politics in which a variety of actors, across policy areas and on a multiple number of levels, constitute and influence behavior. Regimes in this thesis are therefore not necessarily state-based.

Furthermore, Constructivism explicitly involves the idea that actors cannot be seen as unitary actors with a universal set of interests. Rather, actors’ interests are constructed through competing beliefs, social interaction, norms and ideas and are therefore subjective and susceptible to change.

1.c Influence

The aforementioned theoretical insights pave the way for an inquiry of INGOs influence on relations between actors on the international level, on policy construction, international regulation formulation and implementation, enforcement mechanisms, information provision and development, and so on and so forth. It allows for an extensive interpretation of INGOs significance in contemporary international relations. Many existing inquiries about the influence or impact of INGOs are notably of a very practical nature. They tend to focus on certain occasions in which INGOs are involved, resulting in subjective and single issue anecdotal evidence (Ahmed, Potter, 2006: n.p.). This inquiry however aims to provide a more general theoretical account of their significance in international relations. As theoretical accounts may be regarded vague or intangible, this chapter will be illustrated with empirical examples to make the inquiry more insightful.

In order to establish INGOs influence in international relations, the remainder of this chapter will use a definition of influence partially informed by the work of Knocke (1990) and Corell and Betsill (2001). In general, on can speak of influence when ‘one actor intentionally

transmits information to another actor that alters the latters’ actions from what would have occurred without that information (Knocke, 1990: p. 3). This definition draws on two important notions. The first notion is the idea that information, in the broadest sense, is

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transmitted intentionally by one actor to another. The second notion is the idea that influence is applied to achieve alterations in the behavior of a particular actor. Hence, the act of

transmitting information can be seen as a deliberate act of influence (Corell, Betsill, 2001: n.p). In order for this definition to be applicable in RT though, it needs to be more abstract in order to comprehend the full scope of activities and characteristics. For a more theoretical and metaphysical application of a definition of influence, ‘information’ may be considered any structural or individual incentive, deliberately or undeliberate, exerted on an actor. Influence then involves a structural or individual incentive which affects an actor and alters its behavior from what would have been without such an incentive. Important to note is that this definition enables a structural form as well as an agency form of influence through regimes.

Practically, regimes can have influence through their procedural rules, according to which the actors in a regime determine their behavior. Actors are like players in a board-game, one can only play as long as one sticks to the rules. Moreover, through universal principles and the expression of certain norms, regimes have influence on the choices which are made by actors subjected to it. When making decisions, constructing and implementing policy or determining strategy, actors are informed by principal beliefs and their normative expression. In addition, regimes influence the distribution of power in international relations as they fragment power through formal mechanisms of control and procedures of decision making. This imposes behavioral limits and grants practical possibilities to actors. Finally, regimes influence the identities in international relations as they act as a forum through which representative actors interact and look after their respective interests. This provides the incentive of a playing field in which actors’ power may grow or diminish and in which represented interests may change.

By using the presented definition of influence and building on the notions of RT, the following will provide evidence of INGOs current interconnectedness in international relations before touching upon four ways in which INGOs as constituent participants of international relations may exert, or be subject to, influence.

1.d INGOs’ influence in international relations

The general contributions of INGOs in international relations are widely recognized in academic literature and their increased presence in global politics has, among other

developments, led to a commonly used term of ‘Global Governance’. It is used to refer to the complex patterns of authority in international relations and it comprehends the study of the

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involvement of a variety of worldwide actors, states and non-states alike, and networks in politics, economy, human aid, development, and other issue areas (Rosenau, Czempiel, 1992; Held, McGrew, 2002). The next section will briefly address how and where INGOs may (practically) exert their influence.

As discussed earlier, traditionally in IR, states are seen as the main actors of relevance. Their capabilities are characterized through their exclusive authority over military and economic resources. Furthermore, they are said to maintain high status, specialist information, widely shared values in support of their goals and access to (global) communications and

interlocutors (Willetts, 2006: p. 445). Recently however, bearing the conceptions of RT in mind, the latter four capabilities are no longer exclusively attributable to the state. The

emergence of INGOs worldwide and their specific characteristics make them important actors in international relations. Consider their financial, economic, demographic and moral impact, in addition to their expertise and political interconnectedness in global politics. Also, they can be recognized to employ large and highly diverse networks, transcending national borders and policy areas. As a result, INGOs are able to rely on a powerful external network when they are trying to change practices or tackle domestic political constraints (Charnovitz, 2006: p. 349). They may rely on expertise of other INGOs or on the political power provided by the government of a supportive state. Some INGOs are formally incorporated in IGOs and they work close to spaces in which policy is formulated and implemented. INGOs have powerful instruments at their disposal, unmatched by many other political actors (Bloodgood, 2011: p. 103).

Furthermore, INGOs are considered to be active as policy experts, service providers and compliance watchdogs. They act as stakeholder representatives and, in general, literature suggests that they are responsible for relief and emergency services in crisis situations. Additionally, they play roles in economic, social and norm development through various programs, investments, policies and manifestations (Steffek, Nanz, 2008: n.p.). Moreover, it is said that INGOs take on the role of raising consciousness among groups about their rights. They shape agendas of states, corporations and IGOs, are engaged in policy implementation and they serve monitoring purposes for national and transnational actors alike. Finally, INGOs are concerned with promoting a wide range of environmental, humanistic and developmental issues (Ahmed, 2011: p. 817, Ahmed, Potter, 2006: n.p.).

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In other words, INGOs are active in a variety of areas which are addressed through

international regimes. They interact with political authorities according to procedural rules. They are involved in regulation, they make and structure choices, distribute power and define identities. They inhabit arenas and networks through which ideas may spread, they fulfill several procedural mechanisms and are, most importantly of all, part of the very regimes they occupy. It is in these areas where INGOs influence can be clearly distilled.

The next section will use the theoretical approach laid at previously for an assessment of the influence INGOs in international relations. For a more extensive account on practical

strategies employed by INGOs in achieving their goals, such as naming and shaming, information advocacy, campaign contributions, lobbying, public education and so on and so forth, I would like to refer to the work of Riva Krut (1997) on behalf of the United Nations Research Institute for Social Development.

The following will first interpret the influence of INGOs in their role of creating, adopting, monitoring and supervising procedural rules. Subsequently it is shown how INGOs may influence actor’s choices through developing economic and social norms. The section then continues to interpret INGOs influence in the distribution of power by their role as

representational entities and, concluding, how this may influence the construction of identities in international relations.

Regulation

In international relations, INGOs may act as compliance watchdogs for Transnational

Companies (TNCs), for IGOs or for governments of states. As compliance watchdogs, INGOs fulfill a monitoring task, checking whether certain actors’ conduct is in compliance with set rules or made agreements. As such, by applying different tactics arranging from public ‘naming and shaming’ to the production of extensive evaluation reports, they may exert influence on the way and the extent to which rules are followed (McCormick, 2010: p. 95). Consequently, when non-compliance occurs, INGO campaigns may raise questions, critical thoughts and re-assessment of policy. As a result, monitoring can achieve economic, social and moral retributions for non-complying actors, persuading them to change their behavior to meet the desirable standards.

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A good example of INGOs influence on the international level by means of monitoring compliance with regulation, is through the institution of Human Rights Watch (HRW). HRW has as its main goal “[…] to defend the rights of people worldwide” (Human Rights Watch,

www.hrw.org, visited on 16th of May 2014). In order to do so, it investigates abuses

worldwide, it exposes facts and it pressures those with power to respect rights and bring justice. Relevant here is the fact that HRW autonomously investigates abuses of human rights worldwide and uses international human rights law as a measure to assess compliance of states, organizations, groups or persons. As an autonomously operating actor providing worldwide monitoring of humanitarian law, HRW can be considered an internationally operating compliance watchdog, employing several tactics to ensure international compliance with humanitarian law (Suy, 2002: p. 6). A sound example of successful monitoring resulting in the change of statist behavior, was the monitoring of the atrocities undertaken by Slobodan Milosevic’ government. Extensive research and reports from HRW provided the evidence needed to get the North Atlantic Treaty Organization (NATO) to intervene in the killings and, later on, the evidence to bring those responsible to justice (Massa, 2006: p. 2). From this example it can be stated that an INGO carrying out a monitoring task has direct influence on international actors, in this case the United States and Europe under the NATO, and,

indirectly, the government of Slobodan Milosevic.

Besides functioning as a monitoring system for existing regulation provided by states or IGOs, INGOs have proven to be able to develop and implement regulation, including procedural rulings, in their own right (Charnovitz, 2006: p. 349). An international regime of INGOs, including HRW, Medico International (MI) and Handicap International (HI), has since 1992 progressed in providing an international regulation framework on the banning of landmines. It has resulted in an internationally legally binding treaty in 1997 (International Campaign to Ban Landmines (ICBL) and has therefore had large influence on the behavior of participating states concerning the use of landmines (Price, 1998: p. 619). Also, in organizing advocacy activities and lobbying for implementation and universalization of rules, the INGOs exert influence through the regime on non-participating states and non-state army groups. The ICBL can be considered an important example to argue against a Realist conception of

international relations. Realism implicitly holds that only states are able to create international institutions, which are in turn at the basis of the creation of International Organizations. In line of this thought, international institutions and, consequently, the International

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Smit, 2006: p. 351). Even though the treaty needs the explicit consent of states, the ICBL

however provides a sound example of the creation of an international institution by INGOs in

their own account, motivated by their own interests and creating tangible outcomes.

Making and structuring choices

A constitutive characteristic of behavior is the making of choices. Whether they be informed by ideas or fundamental interests, at the basis of any form of behavior lays the act of making choices, be it conscious or unconscious. INGOs can have an impact on the choices of

international actors through a variety of their activities. As discussed earlier, RT has provided us with the concept that choices are informed by ideas, and they are therefore susceptible to change. INGOs may influence ideas through economic, social and norm development. By providing educational programs and employing informational politics, investment policies, organizing manifestations and promoting a wide range of environmental, humanistic and developmental issues, INGOs have a large role in the construction of world views, the distribution of ideas and attitudes and they set the agenda in many policy areas for a wide variety of actors (Kelly, 2008: p. 83). Thus, INGOs can be said to influence actors engaging in international regimes deciding on for example monetary issues, the delivery of aid or developmental programs. An example of such influence is the construction of the Kyoto Protocol or the IBL, which have been have been realized with significant input of INGOs.

Even more important for assessing INGOs influence in international relations however, is the fact that they are generally considered to be specialists in the field they operate in. In this capacity they are regularly asked for their opinion. They are offered a preferred position to provide information on specific topics or expert problems, putting them a leverage position. A good example of INGOs having significant impact on the choices made by actors, is through the functional regime of consultative status employed by the United Nations (UN) (Martens, 2001: p. 388).

Distributing power

The most conceptual form of influence of INGOs flows from the fact that they are to be seen as actors representing large populations all over the world. Long have nation states and their governments been considered as the only formal representation of a population on the international level. This exclusive role exercised by governments in transnational relations is considered to be one of the most important concepts of sovereignty (Willetts, 2006: p. 438).

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As a consequence of their contemporary ubiquity however, INGOs herald a diminishment of the conventional concept of sovereign power embodied in the nation state. As INGOs grow in number and size, the fact that they represent ideologies of large groups of stakeholders, be it donors, founders or beneficiaries, and because they are actively involved in international decision making procedures and policy making, they tamper with conventional notions of sovereignty based on exclusive representation.

Hence, INGOs embody a change in the distribution of power on the international level. As one considers the characteristics of INGOs and the role they play in international political, economic and cultural mechanisms, it may be clear that actors who participate in the same arenas as INGOs must adopt new strategies. The conceptual redistribution of power by INGOs is practically expressed by their inclusion in international policy making and

implementation processes. With their financial strength, extensive knowledge and worldwide networks they are to be acknowledged as a powerful player, able to exert influence and having substantial effect on the strategies of other internationally operating actors.

A clear practical example is provided by means of the Forest Stewardship Council (FSC). The FSC is a non-governmental initiative, supported by 850 members, comprising of NGOs, civil society organizations, research organizations and a share of INGOs. As an international regime complex with multiple stakeholders, the FSC acts as a representative of a large group of people worldwide and has as its goal:

“To promote the responsible management of forests, by providing the assistance required to achieve an environmentally appropriate, socially beneficial and economically viable us of natural resources and provision of ecosystem services […]” (Forest Stewardship Council International, FSC AC Statutes, 2014: p. 1).

Its large share of followers all over the globe enables the FSC to employ public purchasing power mechanisms, aimed at applying leverage to create shifts in the forestry industry and to regulate negative environmental consequences of deforestations (Cashore, 2002: p. 512). In practice, it means that the FSC exerts international influence in order to make states,

businesses and people worldwide comply with its progressive regulation. Also, by setting standards and providing certifications, it tries to achieve its goals as set forth in the statutes.

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The FSC is able to redistribute power worldwide through its very institutional organization and consequently influences actors on the international level.

Defining identities

Closely linked to the ability to distribute power is the ability of INGOs to define identities worldwide and the activities related thereto. As representatives of its beneficiaries, INGOs are able to give a face and a tangible structure to previously unrecognized and undetermined groups of people. They may help them construct general norms and values, provide them with aid, institutional support and exposure to the world. By defining identities and promoting the constitution of groups of people worldwide, INGOs transform the very distribution of power in the international playing field. Actors like states, TNCs, national business and IGOs may be affected by INGO policies concerning international identities. Consequently, they may be confronted by new opponents, formally organized and recognized, lobbying, implementing regulations and influencing policy according to their own agenda’s. The emergence of new actors provide the possibility to create new alliances and, fundamentally, constitute new powers to reckon with.

Both the support of INGOs to the Palestinian Liberation Organization (PLO) and numerous activities to support the Palestinian people provide an effective example of how INGOs influence may constitute a new political actor, and, hence, influence behavior on the

international level. The cause of the Palestinian people has been served by many INGOs and their activities in the past decades. INGOs have provided an international forum for the

Palestinians by informing the world about the history of the conflict and the lack of economic, social and humanitarian rights for the Palestinians. Through media coverage, campaigns and information politics, the western world was informed by the characteristics of their culture, their history and the severity of their situation (Falcitelli, Montanarini, 2002: p. 12). INGOs have made large financial contributions and provided institutional support throughout the 1990’s. As a result, INGOs have helped create an engaged society and enabled the PLO to organize itself into a more effective organization (Beinin, Stein, 2006: p. 86). Finally, INGOs have stressed the right of self-determination as applicable in international law in order to provide the Palestinian people with the possibility to represent themselves as a self-governing people in international relations (Falcitelli, Montanarini, 2002: p. 4, 19).

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Partially as a result of INGOs commitment to improve the situation of the Palestinian people, the PLO was granted non-member state observer status by the UN General Assembly (GA) on the 29th_{of November 2012, making it the first time for Palestine to be recognized as a state by}

the GA. It can be said to be doubtful whether the PLO would have been granted non-member observer state status without the interference of INGOs, and as such would not have had the possibility to enter treaties, specialized UN agencies and the International Criminal Court (ICC) (Washington Post, November 30, 2012). INOGs activities aimed at establishing a representative structure for the Palestinian people has had tangible consequences for international relations and its balance of power.

1.e Conclusion

It can be concluded here that INGOs are internationally operating actors. By applying RT it becomes clear that they exert their influence in a wide variety of issue areas and in several ways. By embodying norms and values and actively participating in process on the

international level they may change the interests other entities in international relations. By influencing and initiating international processes on regulation for states, individuals and IGOs, they have actively have an effect on the behavior of others. Moreover, through

advocating certain norms and widely expressing norms, INGOs are said to be able to change the perception of other actors. As such they might influence the choices which are made. Moreover, as representatives of large groups of people, INGOs are capable of transforming existing power relations on the international level as they can be seen as emerging actors alongside states, MNCs and IGOs. To conclude, by advocating the rights of the needy, INGOs are able to construct identities and bring new players to the international playing field. All these activities have tangible consequences and as such are more and more difficult to be ignored.

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2. INGO regulation through Global Governance: A lack

of the right tools

2.a Introduction

Reports of the Huffington post on the taking of bribes and the misuse of funds by Feed the Children founder Larry Jones raise questions of accountability procedures and internal control mechanisms (Huffington Post, www.huffingtonpost.com, visited on the 15th of June 2014). Moreover, an article by Jenny O’Conner (2012) provides an incentive for a more detailed look into INGO performance and regulation. In her article for the New Left Project she identifies the problematic issue of stakeholders influence on INGOs. More specifically she focuses attention to states employing INGOs as a guise to ‘create an illusion of innocent philanthropic activity (O’Conner, 2012: n.p.) To continue, an extensive report of the NGO Monitor (2013) which has brought to light the malpractices of (medical) INGOs in the Arab-Israeli conflict shows the relevance of adequate, active regulations related to INGOs instead of reactive standards (Steinberg, Balanson & Greenberg, 2013: p. 4).

Chapter one has clearly shown that INGOs are internationally operating entities which have a great influence in international processes. Global Governance literature flows from the study of International Relations and is greatly concerned with the political integration of

transnational actors on a global scale. It is interested in the negotiation of responses to international matters and therefore regards INGOs acting in international civil society as an

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important object of study. According to Willetts (2006), civil society comprises of all public activities by any individual, organization or movement, other than government employees acting in a governmental capacity. It may encompass all social, economic, cultural and

political relations but the emphasis is usually on the political aspects of the relations (Willetts, 2006: n.p.). Consequently, GG assesses INGOs to be meaningful entities and their influence is widely recognized in the body of literature.

In order to demonstrate some important concerns of regulation flowing from this approach, the chapter will focus on the consequences of the multiplicity of regulations and a lack of sufficient compliance mechanisms. It will consecutively treat the problematic involvement of stakeholders with INGOs, deficits as a result of multiple and conflicting regulations and the increased competition among INGOs. This chapter will show that currently INGO regulation may prove insufficient in two ways. First, as a result of a focus on public initiatives and a resulting lack of formal, universal mechanisms, there are too many regulations. Second, because of self-regulation and public initiatives, there is no sufficient enforcement mechanism to impose sanctions when responsibilities are not met or fulfilled. The following section does not apply to the U.N. consultative system as this can be considered an effective example of more formalized regulation with apt compliance mechanisms through the involvement of states.

2.b State of the field

Chapter one has extensively shown that INGOs can be regarded as important actors on the international level. There, they exert influence in several policy processes and they are active in a wide variety of issue areas. Their influence and international level of conduct makes INGOs an interesting object of inquiry for the field of Global Governance.

The Global Governance emphasizes INGOs being a transnational expression of public initiative and underscores their representative role in and on behalf of civil society. In line with these conceptions, self-regulation and public initiatives have been encouraged for INGOs giving account to the society they represent (Reiser and Kelly, 2011). The emphasis is on strategies like monitoring, the provision of normative rules of conduct, setting regulations for administrative transparency, stimulating democratic organizational structures and producing yearly (financial) reports (One World Trust, 2012: p. 3). Moreover, focus has been put on mechanisms and processes to answer questions of legitimacy. These have been found

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especially in voluntary initiatives of regulation on the national as well as the international level (e.g. Grant and Keohane, 2005, Bexell et al., 2010) Examples of the informal regulation mechanisms used are improved (peer) accountability through self-appointed watch dogs, voluntary accountability clubs, guidelines, critical reflection and evaluation mechanisms (Schmitz et al., 2012, Ebrahim, 2003). Important to understand is that they are generally informal voluntary practices and public efforts and which do not constitute legal compliance or control mechanisms (One World Trust, 2012: p. 3). GG literature has elaborately discussed regulation mechanisms with the goal to make sure INGOs are able to be held internally, externally, formally, informally, upward, downward, financially and/or operationally accountable to their stakeholders, donors and beneficiaries.

Vital is acknowledging that GG has been marked by a trend of celebrating INGOs, their goals and the importance of their contributions to a better world (Bloodgood, 2011: p. 111). The field addresses INGOs from a normative angle, foremost characterizing them as valuable expressions of international civil society. Additionally, as a result of their private foundations and non-profit aims they are said to be a structural expression of widespread norms and values on the international level, giving body to boundary transcending concerns of political,

environmental or social nature. Although some of these mechanisms have drastically improved INGOs transparency and currently fulfil a role in holding the organizations

internationally accountable, the introduction to this chapter indicates the potential inefficiency and ineffectiveness of these initiatives. The normative approach may have overshadowed a more structural assessment of INGOs and their activities. Their continuous celebration seems to have re-iterated a self-legitimizing discourse on INGOs. This discourse holds them to be important relevant entities of global governance, legitimized through their representation of subordinated people, ideology, and selfless sacrifices made to reach their goals (Lehr-Lehnhardt, 2005: p. 1). The discourse has led the writings to underappreciate objective questions of performance and effective regulation. The following sections aim to convey the troubles sprouting from a lack of universal regulation informed by multiple public initiatives and insufficient control mechanisms (Behnam, MacLean, 2011: p. 46). By invoking literature from more positivist scholars, the current mechanisms regulating INGOs will show to raise several concerns.

A normative inquiry to a combined theoretical approach of regulating international non-governmental organizations through international law