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Statement by L. Kopelmanas on Legal Status of NGOs
Report of the Study Committee on Legal Status to the Conference of Non-Governmental Consultative Organizations (1949: Max Habicht and L Kopelmanas)
Appendix 3.3 of the International Associations Statutes Series vol 1, UIA eds (1988)
Following discussion of a detailed report on the legal status of international non-governmental organizations (see Appendix 3.2), the Deputy Rapporteur of the Study Committee, L Kopelmanas, (Director of Research, CNRS, Paris) prepared the following report on the legal status of international non-governmental organizations in the light of the comments of Max Habicht, Chairman of the Committee (1). The text of a proposed draft international convention appeared together with the report (see Appendix 4.7). Statement by L. Kopelmanas, Deputy Rapporteur, Director of Research at the National Scientific Research Centre In a report to the representatives of non-governmental consultative organizations it would be superfluous to emphasize the fact that non-profit-making international associations are becoming increasingly important in the various fields of international life. Nor can there be any doubt that this is so. Since the end of the last century, increasingly numerous and powerful private groups with objectives other than profit and extending to several countries, or even to the whole of international society, have been formed and are continually being formed in all branches of disinterested human activity, whether charitable or scientific institutions or societies for the defence of professional interests. The value of the contribution that such groups can make to progress in international relations has been clearly recognized by many governments. This attitude of governments with regard to non-governmental international organizations has been most strongly expressed in Article 71 of the United Nations Charter, which permits the general international organization established at San Francisco to associate non-governmental international organizations with the work of international economic and social co-operation on a consultative basis. As in many other spheres of international law, positive legal practice on this point has remained far behind the development of events. In spite of the continually increasing social importance of non-profit-making international associations, it has not so far been possible to endow them with a juridical standing appropriate to their particular private requirements. The result is that their work is subjected to considerable difficulties, some of a specific and permanent nature arising from the lack of a formal legal status, others caused by the general obstacles place in the way of the development of international relations by the present world structure which, it may be hoped, is only temporary. The lack of suitable legal status affects the work of non-profit-making international associations insofar as it may hinder them in the performanceof the everyday legal acts necessary for the accomplishment of the work they have undertaken. Any international association may be called upon, atsome time in its existence, to receive gifts and bequests, to collect contributions, to enter into contracts, to make legal provision for the disposal and administration of its property, to use its property for the attainment of the purposes for which it was created, to defend its rights or be a party to legal proceedings etc., all this in all the countries to which its work extends. In law, therefore, the problem is to give international associations the capacity to have rights and obligations andthus enable them to carry on their work. In positive law, the capacity to possess rights does not automatically belong to all private groups of whatever nature. In principle private social organizations only become juridical persons if they are qualified or recognized as such under the legal system to which they are subject. In order to acquire legal capacity, non-profit-making national associations must be constituted in accordance with the regulations in force in the country in which they propose to carry on their work. The laws of that country will define the extent of the capacity granted to non-profit-making associations and will determine the particular provisions that they must observe in their operation. Moreover, it is understood that national associations must respect the legal provisions applicable, in the country to which they belong, to all persons entitled to rights and that they are also subject to all administrative and judicial regulations designed to ensure maintenance of public order and the enforcement of law. It is clear that the capacity granted to non-profit-making domestic associations only has undisputed legal effect in the countries in which they were constituted. It is true that certain countries recognize associations constituted abroad as being entitled to rights; but this is a voluntary concession which each country is free to grant or not and which, when granted, it may withdraw at any time. The practice in this respect is extremely varied. Certain countries grant no rights to foreign associations, others make recognition subject to individual authorization and yet others give general recognition, but of varying scope. The rights accorded to foreign associations may in fact only comprise the right of being a party to an action at law in respect of legal questions arising abroad, or the right of making certain contracts, or the right of carrying on social activities, the latter right being, of course, exercised subject to local legislation. While granting foreign associations legal capacity on their territory, some countries only grant them the rights they enjoy in their country of origin. Others, on the contrary, after establishing that a foreign association has juridical personality in the country where it was constituted, class it, as regards status within their territory, with their domestic associations, even if such status includes rights refused by the country of origin to the association in question. In view of the multiplicity of national solutions, which may be further aggravated by the freedom left to each country to change its attitude regarding this problem, the legal situation of domestic associations which are obliged to defend their rights or to act abroad, is ill-defined and unstable. But that is the legal system which must now be applied to non-profit-making international organizations. As there is at present no international procedure for constituting private groups, if the non-profit-making international associations wish to acquire legal capacity they have no alternative but to place themselves under a national legal system and to constitute themselves in conformity with the legislative provisions of the legal system they have chosen, either because of the facilities and advantages that may be offered them by such national law on non-profit-making associations, or because of the geographical centre of their interests or because of the needs and material conveniences of their establishment. From the formal point of view, non-profit-making international associations agreeing to place themselves under a specific national regime become, in the view of their adopted country, truly national associations, while in the other countries in which their purposes oblige them to operate, they are legally regarded as foreign associations. But if the uncertainty of their legal position is only a minor inconvenience to ordinary foreign associations, since purely domestic bodies are only called upon to act abroad in exceptional circumstances, international associations whose sphere of activities extends, by definition, to several countries, if not to the whole of international society, cannot in the long run be satisfied with any solution that does not assure them legal capacity and the right to pursue their social aims in all countries with which they are concerned. Consequently, in order to avoid the difficulties of dependence on a single legal system, which might limit their opportunities for international action, international associations may be tempted to adopt the form of national associations in each country in which they wish to be able to act. But the cure would be worse than the disease, for the international associations would thus be transformed into a series of national associations, between which all connection might finally disappear. A less dangerous solution for the international aspect might be that of international associations on the federal plan; legal and social action under legal systems other than that under which the international association itself was constituted could be carried on, when necessary, by the national associations which belonged to the federation. But there are international associations which are not organized on a federal basis, and among international federations of domestic associations there are many which cannot allow legal action affecting the work of the federation to be taken by national members. Such a practice might well result in a shifting of the federal balance to the detriment of the federation's powers. If international associations are to be able to perform their social functions in a satisfactory manner, it therefore appears essential to seeka revision of their existing legal status under ordinary law, so that theymay be able to operate in all countries to which their objectives extend. Some particularly large associations may possibly hope to obtain from States legal privileges which would actually meet all their practical needsfor international operation. But this can only apply to very few international associations and even then political changes may cause the withdrawal of benefits previously granted. In any case the practical needsof the vast majority of international associations can only be fully satisfied by a system which bases their legal capacity and right to act inthe countries to which their work may extend, on an imperative rule of international law, not on an optional concession by States. There are two ways of achieving this result. The most radical solution would be to free international associations from all formal ties with a particular nationallegal system. In this case their juridical personality would derive from registration with an international body. This formality evidently could notdirectly confer rights on international associations under the national laws governing their work, because the capacity to possess rights can onlybe granted by individual national law so far as that law is concerned. Butby signing an international convention, the different States are free to give abstract recognition, under their own law, of the capacity to possessrights, with all the consequences they may wish to derive therefrom, to international associations constituted in accordance with an internationalregistration procedure. In order to be effective, international procedure for constituting non-profit-making international associations should be supplemented by a convention giving some degree of legal capacity under thedomestic laws of contracting States, and possibly the right to carry on their social work, to associations constituted directly on the international level, in accordance with procedure which should, moreover, be determined in the convention itself. The other alternative would be of such a convention to be based on the formal dependence of international associations on a national legal system. This second scheme would retain the obligation now imposed on international associations aspiring to perform legal acts, of being constituted in conformity with the provisionsof a specific State's law. Under the terms of an international convention,the contracting States would nevertheless undertake to grant to international associations constituted in accordance with the domestic lawof another contracting party, the rights necessary for the performance of their work. The system based on international registration of international associations has undeniable advantages. The necessity for placing international associations under a national legal system seems difficult toreconcile with their international character. Being obliged to operate under national law, the association could not avoid being dominated by national influences and traditions. The human factor, the possible predominance in its work of members who were nationals of the country by whose legal system it was governed, would also tend to impair the international character of the association. In addition to this, many persons who would be willing to join an international association or to contribute to it, would hesitate to join a group constituted under foreignlaw. Moreover, political rivalry between States might result in the refusalof certain countries to admit on their territory international associationsconnected with a country of whose system and policy they disapprove; this danger could be avoided if the international associations could be directlygoverned by international law. The truth of these considerations led a certain number of organizations toprefer the absence of any legal status to dependence on an international legal system. But those international associations, and they are many, which are continually called upon to perform the current legal acts of everyday life, cannot afford the luxury, even for the sake of their international integrity, of remaining "itinerant" associations with no legal status. Thus it can easily be understood that the creation of international procedure for constituting international associations has always been one of the main demands of the international associations themselves. This was the objective of such efforts as the work of the Congress of International Associations in 1910 and 1913, the draft submitted in 1912 to the Institute of International Law by von Bar, the twodraft conventions on the legal status of international associations based on the report of Nicolas Politis, the draft of the Institute of International Law in 1923 and the draft of the International Chamber of Commerce in 1928. Up to the present, none of these attempts has led to any practical results. All have suffered from a failure to appreciate the real factors involved. The structure they established was based on the system of confirmation. This means that associations wishing to enjoy international status need only obtain registration by depositing their statutes with an international administrative body specially created for this purpose. The international body is obliged to accept all applications for registration, and may only refuse on the grounds that an application is not in the proper form. Thus any international association could get itself included in the international register, provided only that its statutes were drafted in conformity with the provisions of the Convention establishing this register; this would even apply to associations which were not sufficiently important or useful to deserve special international protection, whose activities might endanger international law and order or public order in different countries, or which were not even truly international. This solution is obviously unacceptable. The registration of internationalassociations actually involves very important legal consequences. The draftConvention establishing it also includes an undertaking by Contracting States to grant registered international associations legal capacity and the right to act on their territory. But it would be impossible to obtain such concessions from States for the benefit of all associations applying for registration. No Government would undertake such an obligation withoutbeing assured that its benefits would only be enjoyed by international associations giving proper guarantees of their importance, usefulness and legitimate purposes. A choice based on these principles should be made fromassociations wishing to enjoy international status, and as it has not beenprovided for in the registration procedure as contemplated in the above mentioned draft Convention, it will have to be made at a later stage. Politis was well aware of this necessity. That is why the drafts based onhis work provide that during a period of four months after ContractingStates have been notified of registration, each State retains the right torefuse admittance to its territory to any registered association whosecomposition or purposes it considers incompatible with law and order. Butin order to avoid sanctioning mere arbitrary action by States, the draftof the Institute of International Law gave the registered associations theright to appeal to the Permanent Court of International Justice againstrefusal by Contracting States. This was going far beyond the present scopeof international law, and perhaps in a direction that is hardly desirable,even from the point of view of private interests, as has been well shownby the experience of various joint arbitration tribunals set up after thefirst World War. Such a solution was soon found to be impracticable. Thedraft of the International Chamber of Commerce abandons it, by maintainingwithout any international control, the right of States to refuse thebenefits of the Convention on their territory to registered associationswhose purposes, or the character of whose leading officers, they considera danger to law and order in their respective countries. But each countrythus remains absolutely free to decide whether or not legal capacityshould be granted on its territory to an international association. Asunder common law, the capacity of international associations to possessrights is here derived, in the last analysis, from a concession by theterritorial State, without any effective international obligation beingimposed on States. Thus the systems based on automatic registration of internationalassociations necessarily lead to an impasse. Either the States arepermitted to make a free choice, insofar as they are concerned, ofregistered associations, which shall enjoy the advantages of theConvention - a solution which offers no real security to the associationsthemselves; or an attempt is made to subject the decisions of States onthis matter to international jurisdiction - a solution which the Statescannot accept. There is only one way out of the difficulty. The system mustbe reversed, and discrimination between associations seeking internationallegal status must be introduced at the beginning of the internationalregistration procedure. The international body responsible for registeringinternational associations should no longer give effect to allapplications. It should examine them thoroughly and be instructed to refuseto register associations which it considers to be of no value or perhapseven detrimental to the development of international relations, and only toaccept those whose international usefulness it can vouch for. Only on thiscondition can States be justifiably required to surrender the right tochoose the registered associations for themselves, and to give generalrecognition, on their territory, to the legal capacity required by allassociations granted the benefits of registration by the competent international body. This solution is not only designed to take account of the distrust withwhich States regard international associations. It also fulfils therequirements of the legal structure of modern societies. The attachment ofprivate groups to a legal system is not a mere formality. It involves realintegration of the group in the social life of the system to which itbelongs and subjection to the laws and administrative and judicialcontrols of the legal system concerned. If it is desired to freeinternational associations from the bonds which now attach them tonational legal systems, it is not sufficient to attach them formally tothe international legal system, leaving them entirely free from any realsubjection to a higher social order of a governmental nature. In this caseit is essential to replace the control new exercised over the existenceand activities of international associations by the domestic legislationto which they are subjected, by an equivalent control by internationallaw. But here domestic legal systems have two different procedures, whichmay, moreover, be combined. Either the groups wishing to constitutethemselves on the territory of a State will be subjected to priorexamination and will only be able to acquire rights by individualauthorisation, or the States will surrender the right to prior examinationand give general authorisation to non-profit-making associations freely toconstitute themselves, because they are certain of being able to controltheir activities by the general procedures applicable to all legal actsperformed on their territory. But this second possibility does not atpresent exist under international law, which has no general organs ofcontrol. Consequently if it is desired effectively to subjectinternational associations to international law, there is no alternativebut to make their constitution dependent on prior examination andauthorisation by a special international body, extending this examinationto supervision of the associations' activities, exercised by the sameinternational body, in order to ensure that the activities of theauthorised association in fact remain in conformity with the conditionsunder which authorisation was granted. Such an important task could certainly not be entrusted to a subordinateadministrative committee, as provided for in the previous draftconventions on the legal status of international associations. Only animportant political body would carry sufficient weight with States for itsdecisions on the qualifications of international associations to enjoyinternational legal status to be accepted by the contracting parties asundeniable authority for the entitlement to rights, under their respectivelegal systems, of associations authorised to constitute themselvesinternationally. Within the existing structure of positive internationalorganization, it is undoubtedly the principal organs of the United Nationswhich best satisfy this requirement. Of these organs, the Economic andSocial Council is already responsible, under Article 71 of the UnitedNations Charter, for arranging consultations with non-profit-makinginternational associations, which the Charter designates asnon-governmental international organisations. Hence it would appearreasonable to make the Economic and Social Council responsible forexamining applications for the registration by these non-governmentalorganisations, for selecting those which should be granted the benefits ofinternational status and for supervising the activities ofnon-governmental organisations enjoying international status. This was the basis of the draft on the international status ofnon-governmental organisations which the writer of this report, byagreement with Professor J.P. Nyboyet, submitted to the Study Committee onthe legal status of non-governmental international organisations, set upby the Conference of Non-Governmental Consultative Organisations. Thisdraft, which is attached as an annex, had two purposes. First, itattempted to define the conditions in which the economic and SocialCouncil would judge the applications of non-governmental organisations forinternational legal status and supervise the activities of organisationswhose applications were approved. Secondly, it attempted to define thescope of the legal status to be conferred, under the legislation ofcontracting States, on non-governmental organisations authorised by theEconomic and Social Council, in order that these organisations shouldreally be in a position to fulfil their social aims. Between these twoequally necessary aspects of the international status of non-governmentalorganisations, our draft was designed to achieve co-ordination based onthe idea that States would only agree to grant non-governmentalinternational organisations sufficient rights on their territory, withoutbeing able to withdraw this concession individually, if they could haveconfidence in the Economic and Social Council's use of its powers ofauthorisation and supervision, under the procedure for internationalconstitution of non-governmental organisations. Insofar as the proposedmethod was intended to stabilise and strengthen the legal position ofnon-governmental international organisations, it inevitably had toemphasise the necessary right of inspection by the Economic and SocialCouncil of the operation of organisations wishing to acquire and retainthe benefits of international legal status. The Study Committee, however, considered that most non-governmentalorganisations would be opposed to such far-reaching intervention in theirinternal affairs by the Economic and Social Council. In order to allow forthis traditional attachment of non-governmental organisations to theprinciples of freedom and independence, it might perhaps be possible toreduce the proposed controls on this or that particular point. The drafton international status submitted to the Study Committee, which was mainlydesigned to point out the various problems presented by the organisationof the international control required to establish an effective legalstatus for non-governmental international organisations, does indeed leavea certain latitude for discussion on the possible solutions of specificproblems. But as to the actual necessity for effective control, there canbe no concession on this point unless the result is to be either aninternational régime for non-governmental organisations that is left tothe discretionary powers of States and consequently offers non realguarantee to the organisations; or a régime that is impossible inpractice, because it provides no real link with any social structure. Andwhatever may be the methods of international control, they will alwaysappear more onerous than the corresponding obligations devolving uponnon-governmental organisations under certain domestic legislations; forsince internal systems have general means of controlling all legal actsperformed on their territory, they can afford to be more liberal in theirsupervision of non-profit-making associations than the international legalsystem, which in view of its general organisation would be obliged tostress the specific measures for controlling the non-governmentalorganisations granted the benefits of international status. In these circumstances, it is perfectly natural that non-governmentalinternational organisations should resign themselves to the practicaldisadvantages of attachment to a domestic legal system, rather than accepta régime which would result in restriction of their freedom of action.Moreover, it may be doubted whether the organs of the United Nations areyet in a position to exercise effective control of the activities ofnon-governmental organisations. Consequently; the Committee decided thatuntil the development of international institutions establishes conditionsin which a more reliable and less objectionable form of internationalcontrol can be envisaged, the sole basis of the system should, for thepresent, be the formal attachment of non-governmental internationalorganisations to the national legal system of their choice, though everyeffort should be made to obtain, by an international convention,recognition on the territory of all contracting parties of the legalstatus acquired by a non-governmental international organisation under thelegislation of any State party to the convention. Having heard the viewsof the non-governmental organisations, the Rapporteurs responsible for thedraft were among the first to propose this solution. But it was not considered possible to apply it to all non-profit-makinginternational associations. However precise a definition may be given tothe concept of "association" or "non-governmental internationalorganisation", it is inevitable that the international character of aprivate group must first of all depend on the intentions of its founders,as expressed in the statutes of the group. Hence, if an internationalconvention grants certain advantages to associations having domestic legalstatus, but international in their purposes and character, it would beonly too tempting and actually very easy for the directors of a purelydomestic association to draft the statutes of their group in such a way asto make it appear international, and to claim the benefits of theconvention. But States which had in theory adopted a convention grantinglegal status under the domestic legislation of all contracting parties tointernational associations constituted in accordance with the nationallaws of any one contracting party, could not allow the rights granted bythe convention to a well-defined class of domestic associations to beextended, by means of a subterfuge, to all foreign associations. Aconvention of this kind must therefore include not only an abstract listof the characteristics required by an association if it is to be regardedas international under the terms of the convention; it must also designatethe authority which will be competent, on the basis of the generaldefinition, to decide, in a given case, whether an association claimingthe benefits of the convention fulfils the required conditions. Such competence could not be granted to any of the States concerned;neither to the State on whose territory an association claiming to beinternational invokes the convention concerning this class of privategroups, nor to the association's country of origin. In the first case, theonly result would be to deprive the convention of all its force as soon asit was possible for States to withdraw all concessions generally grantedby declaring that such and such an association could not be regarded asinternational. In the second case the status granted to an association inits country of origin could not be imposed on foreign States. Thusprovision should be made for an international decision in cases ofdispute, and it would certainly be easier not only to have such a decisionin real disputes, which is a complicated and uncertain solution, but tointroduce it in the form of prior distinction between purely nationalassociations, and those having national legal status but an internationalcharacter, the benefits of the convention being granted only toassociations expressly included in the second category by an internationalbody. The preparation of the list of associations having domestic legal statusand regarded as international for the purposes of a Convention grantinglegal status to such associations on the territory of all contractingStates would not, moreover, require the creation of a new internationalbody or even the introduction of special procedure. For this purpose itwould be possible to make use of the distinction already establishedbetween international and domestic non-governmental organisations by theEconomic and Social Council, as part of its functions under Article 71 ofthe United Nations Charter. There is a further reason for using the listof international non-governemental organisations having consultativestatus with the Economic and Social Council to determine the scope of aConvention on the general legal status of non-profit-making internationalassociations. Indeed, the choice of the Economic and Social Councilensures not only authentic confirmation of the international character ofnon-governemental organisations included in the international category,but also an appreciation of the importance and usefulness of thecontribution they can make to the work of international economic andsocial co-operation. This limitation of the scope of the Convention to beconcluded to non-governemental organisations which have been authenticallydeclared by one of the principal organs of the United Nations to be ofinternational public utility undoubtedly makes it more probable that alarge number of States will accede to the Convention. The same argumentmay be applied to non-governmental organisations which, in theirinternational capacity, have obtained consultative or similar status withone of the specialised agencies of the United Nations. It would thus bejustifiable to include them among the non-governmental organisations comingwithin the scope of the Convention granting international recognition oftheir domestic legal status, without there being any danger of therebyweakening its effect or of reducing the number of acceding States. This was the solution finally agreed on by the Study Committee on thelegal status of international non-governmental organisations and embodiedin the Preliminary Draft Agreement designed to facilitate the work ofthese organisations, which it prepared in accordance with the terms ofreference given to it by the Conference of Non-Governmental ConsultativeOrganisations. The first Article of the Draft in fact stipulates that theproposed Agreement shall apply to non-profit-making associations whichfulfil the following conditions:
But by this formula the authors of the Draft in no way intended to excludeapplication of the system established by the Agreement to associations notconforming to the definition contained in Article I. The acceding Statesnaturally remain free to extend the benefits of the Agreement to allassociations they consider worthy of this privilege. This would have beennecessary even if not stated in the text. The authors of the Draftnevertheless considered it advisable to repeat it expressly in Article I,paragraph 1, in order to show that they thought it desirable to extend theAgreement to associations which, although not coming within the categorydefined in Article I, could provide sufficient guarantees to meritstabilisation of their international legal status. But for the reasonsgiven above, they did not think they could ask States for too extensiveundertakings which could not be defined exactly in advance. Thus theapplication of the legal system rpovided for in the Agreement toassociations not coming under Article I, paragraph 1, is left to thediscretion of acceding States, whereas non-governmental organisationsdefined by the terms of this provision are entitled to it by virtue of aninternational obligation. In determining the legal system to be instituted by the Agreement, theauthors of the Draft had two alternatives. They could define it withreference to the legal position of non-profit-making national associationsin the country of origin of the non-governmental organisation coming underthe Agreement, or in the country in which that organisation wished toperform legal acts or carry on its social activities, by guaranteeing theorganisations coming under the Agreement a minimum of rights which theywould enjoy on the territory of all acceding States, whatever the regimeapplied to national associations in the country of origin or the countryin which they wished to claim the benefits of the Agreement. The second solution seems obviously more advantageous for non-governmentalorganisations. It would certainly facilitate the performance of their workin all countries bound by the Agreement, because it would enable themeverywhere to acquire the rights essential for that purpose, such as thoseof being a party to legal proceedings, making contracts, possessingmovable or immovable property and receiving gifts and bequests undercertain conditions. This status could be extended in countries which grantnational associations more favourable treatment than the minimuminternational status guaranteed to non-governmental organisations comingunder the Agreement. In the opposite case, however, when the domestictreatment of non-profit making associations remains below this minimuminternational standard, non-governmental organisations entitled to thebenefits of the Agreement would enjoy rights expressly conferred as aresult of their international status, even if national associations in thecountry in which they intended to exercise them did not enjoy such fullcapacity. Thus in certain circumstances the system might oblige States togrant international associations constituted on their territory a moreliberal regime than they accord to their own national associations, or totreat those having the legal status of foreign associations morefavourably than national private groups. It is hardly probable that themajority of States would agree to endorse such an arrangement. Theadvantages of the status granted would therefore have to be bought at thecost of reducing the extent of the Agreement's acceptance which, in theend, would be contrary to the real interests of non-governmentalorganisations. Consequently, the Study Committee preferred not to claim,in principle, for non-governmental organisations coming under theAgreement, other rights than those enjoyed by non-profit making nationalassociations under the laws of acceding States. Under this system, non-governmental organisations coming under theAgreement would have exactly the same status in their country of origin asall other associations constituted under the laws of that country. And asthe legal status of non-governmental organisations in other countriesacceding to the Agreement would be based on recognition of their nationallegal status, they would have no claim in those countries to more rightsthan they possessed in their country of origin. But their legal status incountries acceding to the Agreement, other than the country in which theywere constituted, might be inferior to their original legal status. Thiswould be the case, for instance, when the country in which they claimapplication of the Agreement does not grant certain rights, which theyenjoy in their country of origin, to non-profit making nationalassociations; for their status in the different countries acceding to theAgreement must be determined on the basis of domestic treatment. Thus, theinternational status of non-governmental organisations coming under theAgreement would be subject to a twofold limitation. On the one hand itwould be limited by the legal status of non-profit making associations inthe organisation's country of origin, and on the other, by the treatmentgiven to similar national associations by the country in which thebenefits of international status were claimed. Such is the broad outline of the system embodied in Article 2 of the DraftAgreement. But the authors of the Draft did not wish to produce a solutionthat might deprive international associations of advantages now actuallygranted to them under the laws of certain countries. There are, indeed,countries which, for purposes of legal status, place foreign associationson their territory on exactly the same basis as domestic associations,without being deterred by the consideration that complete equality maygive the foreign association certain rights which it does not enjoy in itscountry of origin. Moreover, it may happen that the legal capacity of anon-profit making association, under the laws of the country where it wasconstituted, is fully recognised under certain foreign legal systems whichdo not, however, consider that they need grant their domestic associationssuch extensive rights. The text of Article 2 of the Draft, while based onthe principle of two-fold limitation of the international status ofnon-governmental organisations, both by the legislation of their countryof origin and by that of the country in which they operate, neverthelessattempts to reserve to acceding States, or those that may accede in thefuture, the right to grant to organisations coming under Article 1, ifthey so desire, more extensive rights than would be required by strictapplication of the general principle embodied in the Agreement. Thus Article 2 of the Draft takes as a basis for the international regimefor organisations benefiting under the Agreement, the legal status theyenjoy in the country in which they were constituted. Nevertheless,acceding States retain the right to limit this status, on their territory,to the rights they grant to the most favoured category of similarorganisations. Here the permissive form is intentionally used so as not toexclude the possibility of maintaining the original legal status ofnon-governmental organisations, even under the laws of acceding Stateswhich grant their domestic associations a less favourable status. But asit was not considered possible to impose on States an imperativeobligation to treat non-governmental organisations constituted abroad morefavourably, in certain circumstances, than domestic associations, accedingStates are permitted, on their territory, under Article 2, para 2 of theDraft, to reduce the original status of non-governmental organisationsconstituted abroad to the status they themselves grant to their domesticassociations, if the former is more favourable. It is, however, stipulatedthat this domestic status, which would then constitute one of the upperlimits of the status enjoyed by non-governmental organisations constitutedabroad on the territory of a State applying the powers granted underArticle 2, paragraph 2 of the Draft, must be equivalent to that of themost favoured category of domestic association. This provision is designedfor countries in which there are several different regimes fornon-profit-making associations. The Draft Agreement provides thatnon-governmental organisations coming under this provision shall, inacceding countries other than the country in which they were constituted,be automatically included in the most favoured category of domesticassociations, even if the latter must obtain an individual decision by thecompetent authorities in order to be included in this category. The StudyCommittee considered this inclusion fully justified because it wouldbenefit organisations already authentically declared to be ofinternational public utility by the Economic and Social Council or by oneof the Specialised Agencies of the United Nations. It should also be observed that the formula in Article 2 of the Draft issufficiently wide to include, under the international status oforganizations referred to in Article 1, not only legal capacity but alsothe right to carry on social activities. Here again, each acceding countrymay limit the right of action of organizations constituted abroad by theextent of the rights it grants to the most favoured category of similardomestic associations. Acceding States can naturally extend the legalstatus of non-governmental organizations as established by the foregoingprovisions. This additional right of acceding States is expressly affirmedin Article 2, paragraph 3. At first sight, this provision might appear tobe a mere truism. But it had to be inserted in order to allow Stateswhich, while according foreign associations the benefit of domestictreatment, are even prepared to grant them rights they would not possessunder their original status, to maintain this attitude favouring theactivities of non-governmental organizations. Had this clause not beeninserted, the categorical terms of the first paragraph of Article 2 wouldundoubtedly have prevented any extension of the international regime ororganizations coming under the Agreement, beyond the rights granted tothem under the laws of their country of origin. Certain States will regard Article 2 of the Draft as an attempt to codifypositive customary law. Nevertheless, its adoption would represent someprogress as compared with the present situation. If it appears probablethat the Agreement designed to facilitate the work of non-governmentalorganizations is most likely to be adopted by States which even withoutbeing bound by the retification of an international convention alreadyvoluntarily practise the policies it embodies, it may be allowed, withoutbeing too optimistic, that certain States now hostile or merely reservedin their attitude to international associations, may be persuaded to showmore understanding towards non-governmental organizations when they arerequested to make concessions to only a limited number of organizations,the importance and moral qualities of which have, moreover, beenguaranteed by the granting of consultative status with the economic andSocial Council or one of the Specialized Agencies of the United Nations.The Agreement's chances of success will naturally be still furtherincreased if its adoption is recommended to States by a resolution of theUnited Nations General Assembly. And even as regards States which already grant extensive rights on theirterritory to associations constituted abroad, accession to aninternational agreement that transforms their present voluntary practiceinto fulfilment of an international obligation, would be of undeniablepractical value to organizations coming under this agreement. Accessionwould make it impossible for States to withdraw the status granted tointernational associations unless they denounced the Agreement. Thus theinternational legal position or organizations coming under the Agreementwould have acquired a stability which is now totally lacking. It wouldstill be necessary to prevent this stability from being entirely destroyedby too frequent denunciations. Hence the authors of the Draft Agreementattempted to give the organizations in question certain guarantees in theevent of denunciation of the Agreement by a contracting State. This is thepurpose of Article 8 of the Draft, which makes denunciation subject to sixmonths' notice. During the period of notice, organizations would have theright to liquidate their property in the country entering the denunciationand freely to export all their funds. The effects of denunciations, in sofar as they were detrimental to non-governmental organizations whichsettle in the country relying on the status established by theinternational Agreement, could thus be palliated to a considerable extent.Once the period of notice had expired, organizations which had not takenthis opportunity would have only themselves to blame, and would be subjectto ordinary law. Even then, denunciation would have no retroactive effect.Acts performed by organizations coming under the Agreement before theexpiry of the period of notice, would remain valid and if such actssubsequently gave rise to disputes, the organizations in question wouldstill be entitled to have recourse to the Courts of the State which haddenounced the Agreement. These provisions, and especially the freedom left to organizations comingunder the Agreement to export their funds during the period of notice ofdenunciation without being bound by exchange restrictions, certainlyappear more burdensome to the sovereignty of States than most of the othersolutions proposed by the Study Committee. It is possible, therefore, thatStates will be opposed to them. But if they could not be included in theAgreement, this international instrument would lose much of its value fornon-governmental consultative organizations. In practice, it would dolittle to improve their present position, so that it might legitimately beasked whether negotiation of an agreement of this nature would stillanswer a real need. In these circumstances it would be thenon-governmental consultative organization's first duty towards themselvesto use all the moral influence at their disposal to try to persuade Statesto adopt the clauses governing the right of denunciation. Apart from Article 7 of the Draft, which determines procedure foraccession to the Agreement and the conditions for its entry into force,and Article 9, which provides that the International Court of Justiceshall have jurisdiction in case of disputes over the interpretation orapplication of the Agreement, all other provisions of the Draft, includingArticles 3 to 6, are concerned with the problems raised by the increasingnumber of difficulties now affecting all human relations that extendacross frontiers. At the time when the drafts based on the Politis reportwere prepared, that aspect of the matter could be ignored. Now it appearsmuch more serious than the specific problem of the legal status ofinternational associations. Domestic obstacles to the internationalmovement of property and persons are now such that internationalassociations, whose operation is indissolubly bound up with theinternational circulation of currency, goods, ideas and persons, areliterally threatened with suffocation. If, as the United Nations Charterseems to indicate, there is a real desire to make full use of theassistance that non-governmental consultative organizations can render inthe organization of international society, then a remedy for this situationis urgently required. This raises a series of specific problems defined by the real difficultiesencountered by non-governmental organizations in their internationalactivities. These include difficulties affecting the issue of passports,visas and foreign exchange for official journeys by the directors andrepresentatives of international non-governmental organizations. A furthermajor problem is raised by exchange restrictions preventing the transferfrom one country to another, and sometimes the local use, of the funds oforganizations allocated to cover their operating expenses and financetheir social work. There are also restrictions on the employment offoreign labour and the difficulties and expense of sending publicationsand documents. On all these points, measures should be devised to enablenon-governmental organizations to continue operating internationally inspite of the legal, economic and social isolationism now practised by mostnations of the world. On the basis of their collaboration in the work of inter-governmentalbodies, certain groups among the non-governmental consultativeorganisations consider that they should enjoy real exemption from thedomestic restrictions that hinder their activities. This would meanclaiming for non-governmental organizations real privileges and immunitiesmodelled on those enjoyed by inter-governmental bodies. There seems nochance of this claim being accepted by the States. Moreover, it isentirely unfounded. In law, privileges and immunities can only protect theexercise of State powers. Thus there can be no question of granting themto non-governmental organizations. Non-governmental organizations doinginternational work could at the most emphasise the particular difficultythey encounter, by the very nature of their international activities,under the varhous domestic, legal and administrative restrictions and askStates to grant them some relaxation of the administrative regulationswhich now make the accomplishment of their task almost impossible. Andeven by this more modest request it would be difficult to obtain anyimportant concessions from States, unless they had some guarantee that thebenefits would only be enjoyed by a limited number of non-governmentalorganizations which were of undoubted international utility and could betrusted not to abuse them. Here again, it would therefore be advisable todefine precisely the class of non-governmental organizations to be grantedthe benefits of measures designed to facilitate their internationalrelations, which are at present hampered by domestic, legal andadministrative obstacles. This was the basis on which the Study Committee prepared the provisions ofthe Draft relating to difficulties experienced by non-governmentalorganizations, as a result of the present general domestic obstacles toprogress in international relations. All these provisions apply tonon-governmental organizations coming under Article 1 of the Draft, thatis to organizations having consultative status with the Economic andSocial Council or a similar status with one of the United Nationsspecialised agencies. The text of these provisions is not designed toexempt the organizations in question from domestic restrictions but, withregard to the specific points mentioned above on which it appearedessential to facilitate the work of international non-governmentalorganiza |