The Growing Influence of Non-Governmental Organizations: Chances and Risks

• Author: 1. Délber Andrade Lage - 2. Leonardo Nemer Caldeira Brant
• Position: 1. Member of The International Law Center - CEDIN - 2. Professor of Intenational Law, Federal University of Minas Gerais, Brazil; Former Legal Officer of the International Court of Justice; President of The International Law Center - CEDIN
• Pages: 80-93

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Non-Governmental Organizations' performance is pointed to as a major indicator of Civil Society's growing participation in formulating policies, whether they are of a national or an international nature. Ways of tackling new governance mechanisms vary. The focus has been on enabling the Sovereign State's role in determining guidelines for the International Agenda's most relevant issues¹ to be modified. As such, NGOs' influence must be understood from the way they relate with the State and it must be analyzed on the basis of two complementary dimensions: legitimacy and normativity. The need to legitimise the public decision-making process creates a favourable context for performers, who at the outset were only an object of such deliberations, to perform. From the moment they are juridical recognized, and start interfering positively in formulating and implementing policies, there is a new alteration in their relationship pattern with the social medium they act in.

NGOs participation growth has been pointed to as a factor modifying the pattern for exerting political power. In this way, their performance is put forward as an intervening variable in the theoretical models asserting that the classical Westphalian viewpoint, in which States appear as the legitimate performers in this process, is outmoded². This would mean altering how political authority is exerted³. In this regard, States would lose power, and, at the same time, non-state-owned performers would be empowered⁴. Thus, governance structures in which the State has a strategic, but not necessarily dominant, role would be formed⁵. The new challenges set by complex interdependence⁶ and resulting emergence of transnational flows, involve the need to rearrange the political decision-making framework. Studying it, therefore, means considering the way it operates through (and not in) Civil Society. This must be considered a government subject, and not just its mere object⁷.

In this regard, the NGO's start performing a supporting role in formulating and implementing state policies. They often acquire the status of observer in the main government and interstate agencies. In these situations, they must inspect decision- making procedures and the choice of policies, as well as monitor the accountable investment of funds and the progress and outcome of their implementation. Action by a third party, apparently with different interests from those who occupy public offices would, in these cases, confer greater transparency and legitimacy on these initiatives⁸.

Likewise NGOs can play a technical role. In such cases, they offer relevant information to define policies, either at the time they are formulated, or when theyPage 81are implemented (to be sure the actions are effective). On the other hand they can perform directly, after being granted state permission, by actually carrying the policies out. This happens in situations in which the State, for either political⁹ or technical¹⁰reasons, is not able to do it satisfactorily. In cases of humanitarian aid, by not being linked to any State, these organizations can avoid hindrances of a political nature and obtain the consent of those involved for them to perform in certain regions¹¹. Likewise they can provide aid to needy portions of the population, for them to have effective access to the juridical instruments conferred on them¹².

Besides performing through mechanisms conferred on them by the States, NGOs can perform as lobbyists, influencing political decisions that theoretically are privy to the state. As a result, in many circumstances, these organizations serve as an instrument for empowering social groups that, for some reason, are supposed to be excluded from the political process. In these cases, they would be helping to strengthen participative democracy¹³.

In special situations, Non-governmental organisations can be real agents for change. This is because they can make a crucial contribution in publicising issues mistreated in the inter-state sphere, divulge and put scientific discoveries on the agenda¹⁴, and also help set meanings and build consensus around certain issues¹⁵. NGOs are also privileged to enable negotiation and effect solutions in cases where traditional mechanisms for solving conflicts have proved unsuccessful¹⁶. Lastly, in some cases, they manage to raise a dramatic amount of funds that must be destined to a specific type of policies. In this way, they go on to formulate, finance and implement projects regardless of the state seal. These actions can thus complement state political shortfalls and overcome bureaucratic procedure delays¹⁷.

In fact the NGO's actions are normally of five different orders: (i) acclamation of values widely accepted in international society, such as Human Rights; (ii) because of support for their activities, whether because of the number of members or donations of funds; (iii) based on their technical excellence and knowledge of how to solve certain situations; (iv) the span of their actions, for example, many humanitarian NGOs fill spaces in which States would not manage to intervene; and (v) subjectively, because of notions such as trust, integrity and reputation¹⁸.

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But the growing influence of NGO's involves risks. A number of relevant criticisms of these approaches were put forward by studies concerned with a practical perspective, in which the effectiveness of performance by agents from the third sector was discussed¹⁹. The lack of control mechanisms and accountability, as well as the degree of openness to participation by groups from civil society within the NGOs themselves, are pointed to as relevant elements characterizing a legitimacy crisis²⁰.

In a different direction, some authors contest even the idea that NGO's can modified the normative pattern for exerting political power. In a normative basis there is no communication between the third sector and the state-run sphere. Its appearance would be an extra-systemic factor arising along with other elements (internalization of international standards, soft law, etc.) in response to the inability of the traditional legal system to respond in the face of the challenges set by International Society's current dynamics²¹.

The risks

In fact, when observing how NGOs act, three structural dimensions involve risks. The first one concerns the definition of the principle that oriented their scope of activities. Actually, the main reason for NGOs to exist is to do with the belief that they act for collective objectives, which may occasionally be excluded from ordinary public policy formulation procedures. At times they are pointed to as being instruments to support the State, inasmuch as that they are supposed to act in a supplementary capacity, in situations in which the State proved to be inefficient²². In this respect, the definition of the principle that oriented their scope of activities is shown to be essential for them to be legitimate. In practice, however, this can become a problem, for a number of reasons.

The first of them refers to the question of representativeness²³. For example, cases can appear, in which certain strata of society are "contemplated" by several organizations, while others, equally needy, find themselves neglected. This danger is further exponentiated by the fact that the majority of NGOs are from developed countries. In the end, where the resources are applied could be determined by people from those countries, and not those who will be benefited by their actions²⁴. Additionally, there could be a clash of interests between the organizations and the State or the population who are the object of their policies²⁵.

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On the other hand, the effectiveness of the NGOs' actions may not produce the results expected for a series of different reasons, including accidental causes or 'force majeure', that are unpredictable at the time the policies are formulated. What is clear, however, is that in some cases this failing is caused by structural problems, normally linked to lack of planning of the NGOs' joint actions with the States and with other organizations that have the same scope of action²⁶. If, governments opt to leave formulating and implementing policies for a particular point in the agenda in their charge, they run the risk of suffering from programs carried out being dispersed. In this respect, long term actions would be jeopardized, and needs would only be remedied at some points or in regions contemplated by these actions. In an equally problematic situation, lack of planning can mean that two NGOs with similar purposes allocate their resources and efforts to the same area and to the same target public. Apart from the possibility of their clashing, this is a clear demonstration that the resources could have been much better allocated, so they could reach a larger portion of society²⁷.

It can be emphasize, therefore, that the effectiveness problem is closely related to the legitimacy of the NGOs' actions. Conceptualizing legitimacy is a notably complex matter²⁸. On the one hand, an institution's legitimacy is to be understood as a right that it has to create and apply standards; while, on the other hand, the former has to be understood as the generalized belief that it has this right²⁹. So a discussion about this must look at "a combination of procedural constraints on the exercise of power (such as accountability, transparency, democratic decision making, and so forth) and some sort of correspondence...