Australian Year Book of International Law
There is increasing discussion within the discipline of international law about the desirability and the effect of global civil society on mechanisms of international governance. The interactions between the concepts of globalisation, global civil society, governance and international law raise complex issues about the underlying structures of international law that need further exploration if they are to be of use in new understandings of governance and international law. This article explores the presence and potential of non-governmental organisations (NGOs) in international law and the challenge that this presents to well-established understandings of international law. Traditional state-centric assumptions of international law continue to define and limit the boundaries of the international legal framework, but no longer adequately reflect the extent of NGO involvement in governance that globalisation stories claim is increasingly the reality. This article argues that, as a result, the existing structures and processes of international law are struggling to accommodate the diversity of global civil society actors that are emerging.
Globalisation discourses suggest that the influence of global civil society in the international legal arena is gradually moving from the peripheries, towards greater participation in the formation of international norms and in the operation of international law. The number of NGOs visible at the international level, particularly in United Nations (UN) agencies and processes, continues to increase and structures of international law are slowly adapting to accommodate this phenomenon. However, global civil society remains a controversial concept in international law. The different opportunities that NGOs have to participate in the governance processes of international law throughout the UN illustrate the tensions that exist about the extent, significance and merits of the participation of these actors in the international arena, and the inadequacies of existing structures and processes of international law.
The presence of NGOs in the international arena creates a more complex, multidimensional picture of international law than that of the established state-centred paradigm. This article explores how the conventional picture of international law may begin to be re-imagined by a process that seeks to sketch an alternative map, a description of the terrain of international law that can illuminate the diversity of life in the evolving landscape of international law. By arguing for challenges to existing maps of international law, this article provides some starting-points for a new cartography. Key issues for examination include the roles of global civil society actors in international law, and how they may work productively within and outside international law frameworks. For example, evolving roles for NGOs in international law place particular emphasis on their contributions to the dissemination of knowledge. Diverse networks of global civil society actors in multiple sites appear to establish powerful structures to contest and re-construct traditional structures of international law and to facilitate the necessary diversity and dialogue amongst all actors involved in international governance. An understanding of how these networks function helps to formulate ways to encourage and accommodate the potential that an evolving presence of global civil society might contribute to international governance.
The participation of NGOs in international law is characterised by polemical discussions of the legitimacy of the roles of NGOs in the governance of the international arena, and a lack of consensus remains within international law about the benefits of this evolving phenomenon. This contestation is due partly to the lack of a full understanding of the evolving roles of global civil society actors in international law. The considerable dissent regarding both the significance and the desirability of the involvement of these actors in international law also arises because the emerging presence of global civil society conflicts with the traditional state-centric approach to international law. Therefore, globalisation discourses that discuss the influence of global civil society actors on international law processes may fail to fully appreciate the deeply embedded nature of the state-based international legal landscape. International law based on traditional state-centric assumptions does not provide a sufficient basis for an understanding of the emerging roles of global civil society actors in contemporary international law structures and processes. This suggests that an exploration into these issues also requires a more jurisprudential analysis, which examines the structures and boundaries of international law, and considers issues of law as a mechanism of governance for a diverse international community.
If we are to understand how NGO participation in international law might be changing, it is necessary to analyse the way in which traditional theories of international law define the boundaries of the involvement of state and transnational actors. Traditional ‘maps’ of international law as outlined in key international law commentaries highlight states as the key features of the international legal landscape, and explain that international law is the law made by states to regulate relationships between states. States are the fundamental units of the international legal and political system and form an international community. States are central to the sources of international law, both in terms of state consent to international agreements and treaty-making exercises, and in terms of custom established by the practice of states. These commentaries also emphasise that states are the primary subjects of international law. A focus on states is also obvious in the way international law governs the boundaries and division of territory according to the sovereignty of states. States therefore control the boundaries, the structures and processes, the content of and the actors in the international arena. The resulting system is state-centric and hierarchical.
These theories produce a one-dimensional picture of international law. By privileging states, these constructions play down the presence and participation of ‘other’ actors in the international arena, such as NGOs, international organisations, transnational corporations and minorities (eg indigenous peoples’ groups). The presence of global civil society actors, particularly NGOs, does not fit easily into traditional state-centric structures and processes of international law, and is inevitably prescribed and limited by traditional state-centric structures of international law. The extent of their presence and participation remains under the control of states. This is reflected in the contingent, ad hoc arrangements that are made for NGO involvement in various international bodies and the differing experiences NGOs encounter in various fora. Therefore there is a tension between the aspirations of global civil society actors to participate in the governance of the international system and the formal structures of international law that privilege state-focused mechanisms of governance. As a result, global civil society occupies an uneasy place in the international system, which limits opportunities for emerging changes to international law and preserves the status quo. The extent of the evolution of alternative sites of governance involving participation of NGOs and the practical impact of this on existing structures and processes of international law is therefore limited.
While the international arena remains characterised by these underlying state-centric assumptions, the traditional structures of international law are also constantly evolving and these assumptions are under challenge. For example, states are subject to the authority and scrutiny of inter-governmental organisations, such as the World Trade Organization and the UN, and make use of such organisations to regulate interactions between states. In addition, the international legal concepts of and mechanisms for the protection of individual human rights, challenge state-centrism.
The visibility of NGOs in international law and at the UN also presents a much more complex picture of the international arena that is traditionally perceived as consisting of and being governed by equal sovereign states. Despite the limited opportunities for NGOs in international law, these organisations manage to maintain a presence in international fora that is increasingly noticeable and effective. Globalisation debates have stimulated much useful reflection on the traditional boundaries, structures, processes and governance of international law structures and processes. The growing presence and influence of global civil society actors in different international fora and the commentary supporting these trends show evolving concepts of governance. Globalisation and global civil society discourses present challenges to underlying assumptions of the homogeneity of international law created by traditional state-centric theories by moving beyond debates about the centrality of the state in the international order, to exploring ways to encompass and utilise the diversity of actors and sites of interaction in international governance. Such trends suggest that broader opportunities are emerging for different actors’ voices and interests to be seen as legitimate and appropriate in the governance of the international arena. More inclusive ideas of an international community as consisting of a diversity of actors in international law are developing, challenging and reshaping state-centric boundaries of international law and concepts of governance.
Globalisation discourses indicate that the traditional ‘map’ that describes the dominant features of international law no longer provides the only description of international law structures and processes. By challenging the existing cartography of international law and the assumptions that construct traditional pictures that privilege the state, a new map may be drawn. This map has the potential to illuminate the diversity of life in the international law landscape that globalisation suggests is occurring. This will require acknowledgment that the changing geographies of power are leading to the creation of new spaces for interaction between emerging actors, particularly in terms of formal and informal sites of international law-making.
Exploring the actual and potential roles that global civil society actors might play in the evolving landscapes of international law therefore raises important questions about the rigidities of established boundaries of international law. What do trends of globalisation and emerging global civil society mean for the established boundaries of international law? What will it mean for the governance of the international system to have a new geography of international law that decentres states and accommodates global civil society and other transnational actors? Reflection on these sorts of questions may assist the development of new understandings of roles of global civil society in international governance that move beyond the traditional limits of international law. In exploring ways in which this may occur, it is important to be aware of the assumptions that are embedded in the traditional international law structures that may obscure and limit opportunities for change to our conceptions of the map of the international system. There is a need to bring a critical analysis to concepts of the traditional boundaries of international law and how these parameters might affect how we interpret changes to these structures and to ideas of international governance.
There is increasing critical comment in international law that seeks to challenge the dominant paradigms of international law, critically reflecting on roles, goals, content, structures and processes of international law. One approach argues that interpretations of contemporary international law and change in the international arena rest on assumptions about what factors are legitimate and important in international law and what are ‘background’ considerations. For example, assumptions of traditional international law as a state-centric system privilege state actors. The lack of challenges to these dominant assumptions causes other considerations, such as the participation of transnational actors, to become part of the background of international law. International law is structured accordingly. The map of international law according to what I have characterised as the traditional view of international law tends to privilege state actors as the main features of the terrain, and may therefore reflect only the dominant paradigms of the international order. The weakness of this particular picture is the extent to which it has become the dominant map of the international law landscape. The risk of this dominance is that such a view fails to acknowledge the diversity of life at different levels of the landscape that is nevertheless important to the structure of the whole. This may, for example, result in the removal of international law-making from its background social, political, cultural and economic contexts. It is important that we are aware of how the dominance of particular assumptions, such as the role of the state in traditional international law, serves to structure the international legal landscape and limit opportunities for NGO participation in this system.
The traditional theories of international law also shape our interpretations of the extent and significance of the changes that are taking place in the international arena as a result of globalisation. A critical approach is helpful to explore how traditional assumptions and meanings of international law limit and obscure our understandings of potential change in the international arena. For example, the dominant discussions or ‘stories of globalisation’ often rest on certain assumptions about the international arena. Is globalisation really leading to changes in the roles of NGOs at fundamental levels of international law? While this sort of critical examination aims to understand the realities of change in international law, these approaches also correctly warn against what is referred to as ‘international legal renewalism’. This is characterised as the tendency to interpret changes and developments in international law without also questioning the frameworks and challenging biases inherent in the discipline, an approach that masks the actual continuity of the status quo by interpreting it as change. Marks, for example, argues that projects intended to examine and assess the extent of change may serve largely to maintain the status quo:
[i]s international legal renewalism conducive to overcoming political and economic marginalization and exclusion? Or is it rather geared to entrenching prevailing positions in the international division of power, resources, and opportunities? … [H]ow might we begin to envision an alternative approach to international legal renewal, an approach dedicated not to stabilizing inequalities, but to destabilizing them?
Therefore, in order to challenge the dominant paradigms and present a critical approach to international law, a fundamental starting-point is to explore and question the reasons for the dominance of particular stories over others. This provides useful tools to acknowledge that there are underlying assumptions about the characteristics of the international arena that affect the structures and processes of international law. Assumptions about the homogeneity of state-centric structures and processes of international law contribute to the particular place that global civil society actors have in international law and mean that the roles of NGOs become part of the background of international law. These assumptions, their power and the construction of the international arena that result are important to explore to assist in reconceptualising roles of global civil society in international law. This facilitates the more jurisprudential examination of the structures and boundaries of international law that questioning these traditional theories demands.
Underlying these explorations is the belief that international law ought to be regarded as an arena for change and constant reflection, for dynamic, diffuse, diverse dialogue. The processes of establishing an international legal order are ‘dynamic, not static: interests fade, existing interests change their emphasis, and new interests emerge’. The challenge is to explore how the traditional boundaries of international law might be re-conceptualised to realise the potential of global civil society participation that may subsist beyond the background of international law. Awareness of the assumptions that underlie existing structures enables new challenges to emerge to the status quo, to our thinking about the boundaries of international law, and the roles of the state and global civil society actors in the international law landscape.
This article argues that an analysis of the presence and participation of NGOs in a broad range of international fora presents a more complex, multidimensional picture of international law than that of the traditional state-centred version. This picture indicates that there is a greater diversity of actors, including NGOs, transnational organisations, states and international organisations operating in the international arena than is suggested by paradigms that consist only of sovereign states. The intricacy of this situation is also indicated by the range of interests, agendas, knowledge and capacities that all of these actors have, which results in a complex array of interactions between them. In order to accommodate and facilitate this diversity, mechanisms are needed that move beyond state-centric structures. Networks are one such mechanism. A network approach emphasises how the connections and dialogue that may exist between a plurality of diverse groups can facilitate proactive ways to manage the complexity and accommodate the diversity of these groups within the international arena. The multiplicity of actors in the international arena is inevitably reflected in the diversity of networks that are established. The diversity of these networks indicates that there are a variety of ways in which different network structures might facilitate the participation of NGOs in the international arena.
It is therefore particularly important to explore how networks could be accommodated within the structures and processes of the international arena as a way to utilise productively and manage the complexity that a plurality of actors brings. Key aspects of networks include the management of dialogue between diverse actors, and how this dialogue facilitates the sharing of knowledge between network actors. An exploration of theories of networks will suggest ways to encourage and accommodate the potential of a global civil society presence in international law. I argue that it is by using these understandings of network structures and of how dialogue facilitates knowledge-sharing within networks, that the real contribution of diverse global civil society actors to international law will be understood.
Exploring alternative ways in which global civil society actors might participate in international law involves a jurisprudential focus on the structures and boundaries of international law as outlined above, and also involves a focus on the participation of global civil society actors and the ways in which this might occur, such as through network structures. Part of this reimagining of the cartography of international law involves considering at a more fundamental level the presence and legitimacy of global civil society actors in international law. Just as it is important to closely examine the assumptions underlying structures and boundaries of international law, a key starting-point for reconstructing the map of international law is an examination of the roles of global civil society actors in international law.
The phenomenon of globalisation is widely considered to be a major spur to change in the content, structure and spaces of international law and to the emergence of ideas of global governance. The extent of the transformations that are being wrought to forms of governance by globalisation processes are extensively debated. Some commentators emphasise that the states are still important to the international arena, and should not be treated as ‘mere epiphenomenona’. However, there continues to be much debate that globalisation has led to an erosion of the sovereignty of the state, ‘rendering Westphalian state-centric conceptions of the international system redundant’. By reducing impediments such as distance, borders and time that previously constrained interactions between societies and states, globalisation makes possible the emergence of different forms, levels and patterns of political space and governance.
As a result, globalisation creates opportunities for an intensification of connections and interdependencies at different levels between and within various states and societies. Globalisation processes seem to assist those groups that are able to work at different levels within these new spaces. While the state arguably remains the dominant focus of international law, there has been emergence of spaces for other transnational actors, the foremost being international institutions, international organisations, transnational organisations and NGOs. There is a growing commentary on the role of transnational actors in the development of new, decentred law-making processes in sites independent of states. This leads to the observation that global law is growing largely from the social peripheries, utilising alternative sites of governance, rather than from the traditional political centres of states. These trends lead to arguments that the governance of the international arena should not be left only to states, and that there is potential in allowing different levels of governance to develop from the interdependency of actors from different levels of organisation, including actors from state, civil society and the market. Broader conceptions than those of the traditional state-centric version of international law which emphasise the legitimacy of different actors in international governance processes, are therefore evolving. In particular, an increasing visibility and involvement of global civil society actors at the international level and in international law is attributed to globalisation processes, leading to the extension of concepts of governance.
Global civil society communities are seen as dynamic groups that interact with increasing frequency and intensity in ways that cross traditional state boundaries. Increasingly, these groups demand more access to national and international structures and processes, including in such areas as the development of international human rights and environmental norms, and in evolving concepts of governance. They build on a growing willingness to question the processes of globalisation, arguing that the benefits of globalisation are not received equally and that globalisation reinforces existing power structures. These forces are motivated by ‘a human-centred vision of change and stability’, often referred to as ‘globalisation-from-below’. This view attaches great importance to the presence of diverse transnational actors, and recognises that globalisation has social, cultural, environmental, political and legal dimensions as well as an economic focus.
While the concept of ‘global civil society’ remains contested, this concept is often regarded as indicative of the evolution of a new global consciousness, and the emergence of common understandings that are able to cross state boundaries. The intensification of interactions between diverse groups at different levels within the international arena is seen to lead to a development of ‘a consciousness of the interconnection of issues and interests, and with it complex networks and coalitions operating at the local, microregional, national, macroregional, and international levels’. This global consciousness of civil society is not a search for a single universal set of values or principles with which to govern the international arena. Rather, the role of global civil society is to promote increased accountability and responsibility within the states and institutions that are involved in the governance of the international system, aiming to ensure benefits to a broadly inclusive international community.
The globalisation-from-below and global civil society perspectives encourage a move towards a more complex understanding of how globalisation has affected the governance of the international arena. These approaches acknowledge that globalisation processes are causing social inequalities and tensions, but also emphasise the necessity of working with these processes in imaginative ways to ensure that social disintegration does not become an inevitability of globalisation, working towards the governance of the ‘global economy with a humane face’. This approach moves the debate beyond merely continuing polemical analyses of globalisation to searching for real opportunities for governance, based on empirical evidence and understandings, and utilising globalisation processes to benefit broader humanity.
The emergence of a global civil society as a presence in international governance has therefore been described as involving a reconstruction, a reimagining of world politics on many levels, including at the institutional level and more broadly. Despite the rhetoric of globalisation, the extent of transformation of the international legal system is unclear. Notwithstanding globalisation stories that suggest that global civil society actors are challenging state-based frameworks of international law, more analysis is necessary to determine the degree and depth to which these embedded structures are being confronted. Further work is needed to survey the magnitude of changes that may have been wrought to governance processes and structures as a result of globalisation processes and the influence of global civil society. Exploring the depth of these developments is a necessary first step in any project to reconstruct, and re-map the geographies of governance of the international arena. An important element of such an examination is the roles that global civil society actors such as NGOs play in globalised international legal processes.
NGOs have had a long history of involvement with international law and policy development. In addition to the longevity of the presence of NGOs in the international realm, numbers of NGOs have increased dramatically over the last 50 years, and particularly within the last decade. While the NGOs most prominent at the international level are active in the environmental and human rights fields, NGO activities cover almost every area of international concern, and they work broadly within the UN system. Groups categorised under the umbrella term of NGO demonstrate a vast range of activities, structures, motivations, geographic locations and funding sources. 
NGOs have been characterised as the ‘lynchpins’ of the international system, for their role in mobilising public support and providing information on issues where states cannot or will not act. In international law contexts, activities of NGOs can be divided into four broad areas that encompass a variety of roles. These four areas are: the creation of public consciousness and establishment of issues on the international agenda; presence in international law-making processes, including global conferences and the development and codification of international law; activities involving the interpretation and implementation of international law; and promoting enforcement mechanisms. Many NGOs are highly visible, their activities well-marketed, with their technical expertise and increased funding leading to characterisations of their growing ‘professionalism’. This visibility means NGOs have growing reputations for providing credible, compelling information with which to activate public opinion and pressure state and business actors on particular issues.
NGOs’ use of information is important in the implementation and monitoring of states’ compliance with international law. For example NGOs also have valuable roles in spreading information regarding states’ human rights violations, the enforcement of which relies to some extent on informal methods of shaming and opprobrium to encourage compliance with international standards. NGOs rely on this sort of ‘soft power’ to create public awareness of issues and encourage changes in the behaviour of actors other than states in many ways, which have the potential of becoming an effective form of informal international regulation. Observations about the presence and ‘soft power’ of NGOs in the international arena lead to increasing claims that NGOs, while not officially recognised as participants in processes of international law norm creation, are nevertheless able to influence the behaviour of states and international organisations such as the UN. In this way, the presence and participation of NGOs contributes to evolving concepts of global governance.
NGOs are formally associated with the UN through article 71 of the UN Charter, which gives NGOs consultative status with the United Nations Economic and Social Council (ECOSOC) on matters within ECOSOC’s competence. The ECOSOC requirements state that NGOs must be of recognised standing in their area of competence, or be of a representative nature. NGOs must also have established headquarters, have democratic processes, mechanisms of accountability and transparency, and source their funds from members or affiliation. Consultation is designed to enable ECOSOC to secure expert advice or information from NGOs with special competence in the subject area (and thus likely to make a significant contribution to the work of ECOSOC), or to ensure that NGOs (whether international, regional, subregional or national bodies) that represent important areas of public opinion and interests on the subject, are able to express their views (and thus be a reflection of worldwide opinions).
The ECOSOC provisions appear to be arrangements that facilitate the participation of a diverse group of NGOs in international law and the work of UN agencies. These provisions acknowledge the breadth of the expertise of NGOs and their capacity to contribute to international law processes. The provisions also recognise the importance of the participation of NGOs from all regions, and the desirability that all NGOs promote accountability and transparency in their internal processes. Coupled with the strong support by the UN Secretary-General for an increased NGO presence, these provisions appear to facilitate the effective participation of NGOs in international law.
However, despite the promise of the ECOSOC provisions and globalisation discourses, the presence of NGOs as global civil society actors in international law structures and processes is controversial. Much of the discussion of NGOs and international law tends to present a very rosy picture of the nature and extent of NGO influence on international law. The extent of NGO involvement in international law leads to descriptions of NGOs as ‘partners’ with states and international organisations such as the UN in global governance. The use of this idea of ‘partnership’ is prevalent both within the international NGO community, as well as amongst sympathetic governments, the UN and international organisations, and suggests power sharing, cooperative and consultative arrangements between NGOs and states or international organisations. Anderson comments that the idea of partnership is now ‘the central element in the new template envisioned for international law-making’.
Unease is expressed about this developing involvement and influence of NGOs in international law processes, with different views emerging as to the extent, desirability and legitimacy of the participation of these actors in the international arena. Greater participation by global civil society in international legal processes is welcomed by some, but other commentators contest the extent, legitimacy and significance of this involvement. Some authors question the extent of the reality of ‘partnership’ and therefore challenge its significance. Warning of tendencies towards cooptation of and by NGOs, these authors ask whether the partnership is in fact genuine or merely disguises entrenched power relations. Others comment that NGOs are increasingly victims of their own success. As NGOs have a more visible presence in the international arena, there is increasing focus on the rights and responsibilities of NGOs. As a result, there is emerging commentary that in order to be seen as legitimate participants in international governance, NGOs must demonstrate the same characteristics that they demand of governments and international organisations, for example, transparency, accountability and participatory systems of decision-making. The criteria on which ideas of the legitimacy of NGOs are based need careful scrutiny.
This contestation of the presence of NGOs in international law is reflected in the different opportunities for NGO involvement in the various UN activities. Even among UN agencies there are both differing opinions about the desirability of NGO participation, and different levels of NGO participation. This suggests that the ECOSOC provisions are not sufficient in themselves to promote and ensure opportunities for consistent NGO involvement. These trends also emphasise that the presence of NGOs in different fora is often contingent on state consent. While the ECOSOC provisions seem to provide for a productive interaction of NGOs with UN processes, the differences in the way in which these provisions are implemented in various UN agencies and bodies show that opportunities for NGO participation are rather more ad hoc.
These observations suggest that further empirically-based analysis is necessary to understand more completely the actual extent of NGO involvement and influence in international law that is necessary to assist the re-mapping of existing concepts of governance at the international level. It is clear that global civil society actors are able to have a presence and participate in international law and in global governance in a myriad of ways. However, the diversity of ways in which NGOs participate in international law raises more questions than we currently have answers to. As discussed above, NGOs have established themselves in a variety of roles in the developing governance systems of the international arena. Further analysis of these roles would add a useful dimension to our understanding of NGOs and their effectiveness in terms of change to the international system. The roles ascribed to NGOs are likely to be relevant to both the criteria by which NGOs are judged to be legitimate participants in the international legal system, and their relationships with states. Their roles are also relevant to the diverse ways in which they may interact in international structures to influence states and UN agencies in the governance of the international system.
The relationship between NGOs and the UN is constantly evolving. Descriptions of the ways in which NGOs work within different UN agencies would be useful for exploring the extent of notions of ‘partnership’ between NGOs, states and the UN, and the degree to which such partnerships are genuine or rather represent de facto UN and state control of NGOs. Also helpful for an understanding of the roles of NGOs in the UN would be analysis of what the increasing language of support for NGOs in the UN system indicates in terms of the political nature of the criteria for the legitimation of NGO participation in the UN. This sort of analysis would assist us to move beyond lack of agreement regarding on the one hand, the divided rhetoric of the benefits of global civil society, and on the other hand, the reality of limited international provisions for NGOs. When we have a greater understanding of some of the realities and subtleties of NGO participation in international law, further effort can usefully go into exploring how this new geography of international law may be acknowledged and accommodated in a re-mapping process of the international legal system.
While the nature and extent of global civil society remain contested and under evolution, it is important to reflect on the many underlying assumptions of global civil society that may affect our conceptions of NGO participation in international law. There is increasing recognition of the multifarious characteristics of the phenomenon of civil society, and the complexity of the arena in which global civil society actors participate. The complexity of the phenomenon of global civil society raises issues that need to be carefully examined if the concept is to be useful in reimagining concepts of governance and the international arena.
NGOs face particular difficulties in strengthening their roles in international law and governance. Most of the arguments that challenge the participation of NGOs in the international system focus on the validity and adequacy of their representation of global civil society, and therefore their legitimacy as participants in a democratically-based international community. Questions inevitably arise about how adequately these groups actually represent global civil society and a broader public, with challenges to NGOs’ internal processes, transparency and equality, and their motivations and mandates. It is clear that there are important differences between NGOs. The manifold nature of global civil society is reflected in the many different groups present in the international realm. A single representation of what global civil society stands for is therefore inaccurate. As a result, predominant assumptions of global civil society as a site of solely beneficial democratic activity need to be examined, and the ‘uncivil’ aspect of global civil society acknowledged. An uncritical endorsement of the role of global civil society actors in international law ignores the complexity of the challenges faced. Embracing a diversity of actors in the international arena has important implications for the structures and processes of international law. As explored below, network structures appear to be a productive way to ensure that such diversity is encouraged and facilitated in the structures and processes of international law.
Issues of representativeness of NGOs are multidimensional. Certainly, NGOs need to ensure that their structures and practices reflect goals such as democracy, accountability and transparency that they promote. Nevertheless, the particular characteristics and roles of NGOs, and the sort of access to international law that they seek should determine any requirements regarding their participation. Global civil society groups are different from states, with different roles and capacities, and in general, such groups do not seek or claim the same representation, access or participation as states. Some thought therefore needs to be given to the question of whether or not it is appropriate that the same criteria by which states are judged to be legitimate participants in international law is applied to the diversity of NGOs. This will involve considering whether there are criteria other than representation that may be useful for our conceptions of democratic legitimacy in international law and that would encapsulate the roles of NGOs and new concepts of governance at the international level. Schweitz suggests that in determining the legitimacy of NGO participation in the international system, the roles of NGOs should be examined to determine further criteria for legitimacy. In particular she challenges the criterion of representation, arguing that ‘we must dispel the myth that NGOs must be representative organizations in order to be legitimate participants’. Certainly, representation of a particular group is not necessarily relevant to all activities in which NGOs may engage. NGOs play a number of roles, and not all of these roles require NGOs to be linked with a certain constituency.
As well as rethinking representation in terms of the criteria for involvement of NGOs, it is useful to further examine representation as the basis of an international democratic community. Traditional assumptions of international law restrict the ways in which democracy is usually formulated at the international level. The dominant conceptions of democracy are as a representative rather than participatory process. In particular, it is often argued that concepts of democracy are based in western values, which are not necessarily appropriate for transplant to other societies or at an international level. The result of this focus is ‘an emphasis on democratic form rather than substance and the protection of the inequities of the political status quo from radical democratic challenge’. Despite these criticisms, norms of democracy can be useful tools if used wisely, recognising that it is necessary to reimagine concepts of democracy to make them relevant to all societies and actors within those societies. Alternative ways of viewing democracy at the international level are therefore necessary, for example a focus on participation rather than representation. Reconceiving democracy as broader than the characteristics of states and the politics of representation, as the participation of a diversity of actors in governance, enables useful exploration of the role and opportunities for the participation of members of a diverse international community in international law and governance.
How international law can be further developed by the reliance on the energies of global civil society actors remains open to debate. As Schweitz argues:
We need to find some intelligent way to deal with these challenges, to discover principles upon which to found claims of legitimacy or illegitimacy. This is not the story of good NGOs confronting evil governments. … This is the story of humanity assuming responsibility for its own future, through increasingly representative forms of political organisation and through a fully engaged civil society. From the perspective of world order, it is about finding the proper level (local through supranational) at which to make different sorts of decisions, and who (among government, business and the so-called “third sector”) should make them. It is the story of promoting the unity of humankind while at the same time cherishing its diversity.
The interactions between globalisation, global civil society and international law raise important issues regarding the evolving structures and processes of international law, and may both limit and facilitate potential change to occur in international fora. At the present time, perceptions of interactions and changes are dominated by assumptions about the desirable characteristics of structures and processes of the international arena. Such perceptions serve to reproduce the status quo rather than enabling new understandings and meanings to emerge. It is clear that a traditional state-centric focus of international law limits the way in which NGOs can participate in international law structures and processes. However, it is important to be aware that particular ways of including NGOs in international law can also be limiting if their roles are confined to the criteria of representation. While participation of NGOs is limited by unchallenged assumptions of state power, it is clear that their growing presence and globalisation rhetoric are stimulating opportunities for change. These trends are leading to the emergence of concepts of a broader, inclusive international community made up of global civil society actors in addition to states. Promoting the participation of a diversity of voices in international law-making structures and processes can challenge state-centric boundaries of international law and concepts of democracy, highlighting the limitations of these traditional concepts.
What is now needed is an awareness of and challenge to embedded assumptions in order to reconstruct spaces of international political contestation and reimagine structures and processes of international law. This awareness would promote the exploration of alternative theories that may enable broader concepts of boundaries of international community and democratic legitimacy in international law. The changing role of the state and the changing international political environment, particularly with the emergence of a diversity of global civil society actors, are providing opportunities to engage with these background assumptions, using critical theories to assist in the creation of new broad understandings and options for international law.
Contemporary theorising on the elements and nature of global civil society actors’ presence in international law and the establishment of new frameworks to accommodate this presence will be assisted by empirical work that elucidates trends of NGO participation in international law. Such data further assists our understanding of the influence of actors such as NGOs on international law, providing insights about the characteristics of a reimagined framework for NGO participation. For example, detailed comparative studies that analyse the extent of NGO participation in different fora would be useful to compare the differences and similarities of NGO interactions in different areas of international law. Analyses of the variety of ways in which NGOs work together would be instructive to add further dimensions to our understandings of how a framework could accommodate the diversity of global civil society actors. It is also particularly important to explore the roles of NGOs in international law, to determine what aspects of NGOs are important in their participation in international law, particularly those that are important for state and NGO interactions. These conceptions of the roles of NGOs provide the basis for the legitimacy of NGO involvement in international law, therefore an accurate understanding of these roles is important for the process of reimagining frameworks of international law. The challenge is to discover structures that facilitate the participation of a diversity of global civil society actors, creating spaces in which more inclusive concepts of international community can develop and be reflected in structures and processes of international law. One way that this diversity may be facilitated is through various forms of networks.
A network approach may be the key to exploring practical ways in which to move beyond traditional assumptions of international law such as state-centrism to imagine different ways that the diversity of NGOs can contribute to the formation of alternative mechanisms for global governance in new spaces. In terms of international law, emphasising the plurality of sites acknowledges diversity and complexity, and presents a challenge to the hierarchical, centralised international system traditionally dominated by states. Networks of NGOs and other civil society groups are a growing presence in the international arena and are ‘an increasingly significant phenomenon’. Research suggests that networks are important organisational units of global civil society, facilitating a great range of NGO presence. Networks are useful ways in which NGOs and other civil society groups can coordinate and strategise activities for maximum impact in the international arena. For example, coordination among NGOs is a useful strategy in multilateral fora where there is a need to be able to influence several governments simultaneously. A network approach emphasises the desirability of a plurality of sites of action and the necessity of building strategic alliances between these sites. These sites include formal, established sites of international law and state interaction (such as NGO participation in international treaty-making fora), as well as informal sites of interaction (such as informal lobbying, ‘soft-power’ techniques of NGOs with states).
What do networks consist of? I use ‘networks’ to mean the strategic connections between diverse actors that create structures in which these actors can work both autonomously and in common towards principled outcomes. Networks are fluid entities, whose structure depend on the purposes for which they are formed and the strategies which are employed. A multiplicity of actors (NGOs, states, international organisations, transnational corporations, individuals and other global civil society actors) may be accommodated in an intricate range of network structures. Network structures therefore present a productive way for managing and utilising the plurality and diversity of actors in international law.
One example of a type of network in the international arena is the transnational advocacy network, defined as ‘networks of activists, distinguishable largely by the centrality of principled ideas or values in motivating their formation’. Actors in transnational advocacy networks may include international and domestic non-governmental research and advocacy organisations, local social movements, foundations, the media, churches, trade unions, consumer organisations, academics and individuals (such as transnational norm entrepreneurs), parts of regional and international inter-governmental organisations, and branches of governments. Actors within transnational advocacy networks aim to alter the policies and behaviour of states, international organisations and business actors through strategic action based on defined principles. In this way networks, particularly transnational advocacy networks, are important vehicles for change.
How do network structures facilitate relationships between diverse actors? Networks are composed of the links and relationships that take shape in the strategic and principled interactions of diverse actors. A key feature of the ways that diverse actors in networks are connected and maintain these connections, despite their differences, is the role that dialogue plays. It is important to emphasise that the key characteristics of networks are the connections and relationships that are established between actors, which are facilitated by dialogue. The importance of dialogue is obvious in an international community consisting of diverse actors. Dialogue that involves communication and negotiation is necessary to establish and maintain relationships between a diversity of actors. Dialogue is essential for the identification of common principles and goals among actors and for the exploration of different strategies with which to achieve these common goals or to overcome obstacles.
The example of transnational advocacy networks illustrates the importance of dialogue for the success of networks. By the establishment of network structures, transnational advocacy networks create opportunities for the engagement and interaction of a plurality of different actors and voices in international and domestic political processes, opportunities that are facilitated by dialogue between these actors. Transnational advocacy networks provide access to information, and facilitate access to channels into the international system to assist those actors that might otherwise have more difficulty in participating in the debates of the international arena. For example, transnational advocacy networks may be access points to the international level for domestic NGOs especially from developing countries. Transnational advocacy networks provide a useful structure for facilitating communication and opportunities for inclusive dialogue between diverse actors. The network structures of transnational advocacy networks assist in overcoming inequalities of power concerning access among actors in the network that otherwise limit the voices in the international arena.
Dialogue between network actors is facilitated by developments in global communication technologies. Information technology facilitates networks by lowering the costs of communication, consultation, and coordination, and allowing for the establishment of a space in which diverse actors can interact for different purposes and at different levels. Changes to information technology are seen as an important aspect of globalisation and are arguably powerful contributors to the declining power of the state and rise of non-state actors, particularly through the coordination of networks. Developments in global information technology and communications are clearly important factors in facilitating the increased role of NGOs in information dissemination, and global civil society actors owe an enormous debt to the development of sophisticated means of information-sharing. The ability of NGOs to use technology to source and disseminate information quickly and widely gives them advantages over states in the provision of a vast range of information to a worldwide audience.
Dialogue facilitates another important element of the links in these networks, that is, the flow of knowledge and information between actors centred on the exchange and strategic use of information. Much of the work of networks is about the exchange of information or expert knowledge between actors in a network or to actors outside a network in order to assist in the development or furtherance of issues of concern in the international arena. It is clear that information dissemination promoted by networks also assists in overcoming power inequalities by providing a structure in which all information can be passed through dialogue, regardless of individual network members’ capacities to generate the knowledge.
NGOs as prominent members of global civil society have a particular role to play in the management of information because of their reputation for expert knowledge on international issues. Their diverse practical experiences and ability to focus their resources on researching specific issues to enable the development of specialist knowledge are seen as strengths, which are often perceived as lacking in states, which may have less opportunity, time, and resources to develop specialised knowledge. The role of NGOs as sources of knowledge and as information providers is recognised in the formal ECOSOC provisions for participation of NGOs in the UN. Because of the reputation that civil society groups such as NGOs have as reservoirs of expert knowledge on particular issues, the communication and dissemination of this information to the public and states is also a role traditionally associated with these groups, particularly via global civil society networks. At the international level, one of the major contributions of global civil society groups is the provision of information to states, the UN and international organisations, individuals, civil society groups and the general public.
Despite the reputation of NGOs as experts on particular issues, the issue of expert knowledge of NGOs can be a double-edged sword. NGOs that have a specialised focus often attract criticism for being narrowly focused on single issues, with little acknowledgment of the value of their specialisation. As a result, NGOs are often accused of misuse of information, for example manipulation, oversimplification or sensationalisation of information in order to further their cause. While many NGOs are increasingly cognisant of the need for strong research to enhance their credibility and influence, some NGOs are perceived as lacking the research capacity to present other than ‘highly contested anecdotal evidence’ to support their positions. This leaves their positions open to contestation more easily on grounds of credibility of research, rather than on the merits of the position itself. While recognising the importance of preserving a reputation for being reliable sources of information, NGOs and other civil society groups have struggled to balance activism with the provision of information and analysis. In order to be influential, the knowledge that NGOs seek to rely on, needs to be reliable and credible. This requires knowledge to be backed up by thorough research and analysis.
Obtaining credible information remains a challenge to NGOs that is important to overcome both in terms of the need to maintain reputations as credible, reliable knowledge experts, and in terms of the quality of the information they use to influence international law. The view that non-state actors such as NGOs have expert knowledge in certain issues and are able to distribute this information widely through the use of networks is likely to provide a powerful impetus for their increased inclusion in international processes and fora. The demand from states for information enables the proliferation of groups that can meet these needs.
The importance of civil society groups and networks in providing information to decision-makers in the international legal arena seems clear. However, their participation in decision-making in international law is largely limited to this role. Their future roles are by no means clear. More research is needed into how to maximise the efficacy of networks, to create spaces for global civil society groups in the governance structures and processes of international law. Gamble and Ku suggest that ‘opportunities for NGO involvement and their information collection capacities are likely to increase as international law-making becomes a more continuous, iterative process in moving towards a common objective rather than merely establishing a specific, static norm’.
However, the current realities of NGO participation in international law, which remains largely dependent on states to facilitate spaces, warn against overstating claims of NGOs’ influence in negotiations with states at the international level. There is some argument that, despite the presence of NGOs giving the appearance of greater transparency and accountability to the international legal system, there have been no fundamental changes to the structures and processes of international law. Instead, underlying power relations and inequalities in the international realm are hidden under the veneer of democratic legitimacy that concepts such as partnership imply. These warnings serve to remind us that apparently emancipatory changes to global civil society involvement in international legal structures as a result of globalisation processes cannot be taken for granted. Evolving structures of synergistic networks between states and global civil society actors, as well as among global civil society actors, must be conscious in order not to perpetuate hidden assumptions of international law in seeking new frameworks to encompass the complexity of the contemporary international legal system.
Formal frameworks for the incorporation of NGOs into international law are suggested by some commentators as being a useful way to increase the level of participation of global civil society actors in international law. There is increasing commentary arguing that formal integration of NGOs into structures and processes of international law would be beneficial, supporting the goals of the international community, contributing to accountability of the international legal system through their participation in international organisations, and promoting international peace and stability. As well as being of benefit to international law, Nowrot argues that the establishment of an international framework that includes roles for NGOs would strengthen their position in international law by ensuring their status in the system independent from states. The establishment of an international framework for inclusion of NGOs may also provide some mechanisms for the monitoring of their activities and influence, promoting accountability and transparency among NGOs and within the international system.
The present arrangements regarding NGOs’ access to international law remain variable and contingent on state consent despite the formal ECOSOC provisions. The informality by which NGOs often participate in the international arena does however allow for a variety of NGOs to work together in fluid networks within and outside of formal international law, utilising the diversity of network members’ strengths.
What effect would a formal framework have on the independence of NGOs? Such institutionalisation of NGOs may mean that NGOs direct their energies into political positioning rather than focusing on challenging states’ positions. How would a formal framework affect the diversity and creativity of NGOs? As I have argued further research into the roles and characteristics of NGOs in international law is required to explore what criteria might be developed to shape a framework to govern the participation of NGOs in international law. Given these concerns, I argue that a formal framework for the incorporation of NGOs into the structures and processes of international law is desirable only if it is able to ensure more well-defined NGO participation as well as continuing to maximise the diversity and fluidity that networks demonstrate. A formal framework that provides for greater definition of NGOs access at the expense of the diversity allowed by the informality of networks would not necessarily be more beneficial in terms of NGO influence in international law.
A further consideration is whether a formal legal mechanism for NGO participation would challenge the state-centricity of international law. By seeking further opportunities for participation of NGOs in existing structures of international law, does this not simply change the form of their participation without addressing the substance of the underlying structures and assumptions of international law? By establishing a framework to incorporate NGOs into international law, is this not simply redrawing and reconstructing the boundaries of international law, without challenging the need for boundaries? These considerations leave me uneasy as to the construction of frameworks for NGOs in international law, although, paradoxically, formal frameworks are a useful idea in terms of challenging state-centrism in a concrete way. If the right framework can be found, a formal framework arguably establishes conceptual scaffolding on which further ideas can be built.
While a focus on ways in which to incorporate NGOs into a pre-existing formal international legal framework remains important to challenge the structures of international law directly, another focal point that may be productive is to seek to improve the effectiveness of the current participation of NGOs in international law by emphasising the utility of informal processes involving NGOs. Informal processes such as networks may be independent of formal international law structures, but nevertheless may be able to influence and work within the formal structures, and may also eventually come to be recognised by international law as legitimate processes in themselves. Thus, it is instead a question of greater effectiveness rather than greater input that could usefully be reflected in the search for both formal and informal frameworks of NGO participation. An approach where NGOs continue to participate both within and outside current international law structures is also essentially a pragmatic approach. This approach uses and attempts to enhance the existing formal structures where possible, but also acknowledges the limitation of those structures and the utility of working towards change from outside the structures through multiple sites of contestation. Embracing an informal network approach assists to challenge the state-centrism of the formal international structures, while recognising that the state retains an important role in international law.
More research is needed into how informal sites of network interaction can be accommodated and facilitated in existing international law structures. Recognising the power of international law structures to dominate, there is a danger that arguing for the utilisation of informal sites outside of this structure will not guard against their domination by formal state structures. This points to the necessity for some sort of regulation designed to empower these networks. It is difficult however to envisage a way in which the diversity, uncertainty and multiplicity of network structures could be adequately and beneficially encompassed in a formal framework. It is worth considering that it may be most productive for international legal frameworks to simply facilitate NGO involvement in an informal way as opposed to a formal structure. Rather than establishing formal regulation, it may be more useful simply to recognise the value of global civil society networks, and permit them to work informally within and outside structures of international law in various ways. Otherwise, are we not trying to challenge the boundaries of international law by constructing more?
This article has argued that the existing structures and processes of international law are struggling to accommodate the diversity and fluidity of global civil society actors that are emerging in the international arena. Despite globalisation discourses that suggest the desirability of diverse global civil society actors in international law and evolving methods of international governance, I have argued that the existing frameworks largely fail consistently to include global civil society actors in a way that empowers and promotes the meaningful participation of these actors. A central reason for the difficulties faced by NGOs in their participation in international law is the traditional state-centric basis of international law. The resulting international legal framework continues to define the boundaries of international law but no longer adequately reflects the extent of NGO involvement in governance that globalisation stories claim is increasingly the reality. It is important to be aware of these challenges to interpretations of change in the governance of the international arena.
A theme of the article is the power of dominant assumptions to shape international law, and the power of international law to then determine the realities of the international arena. Arguably, therefore, seeking to reconstruct the boundaries of international law is a necessary exercise, to ensure that the substance and not simply the form of international law is questioned. I argue that these themes hold the key for reimagining structures of international law that would further embrace and facilitate the participation of NGOs in the development of international law. Any reconstruction of international law in terms of a framework for NGO participation must also encompass the plurality and multiplicity of sites of interaction and voice in different areas of international law.
This article has sketched the power of diverse networks of global civil society actors in multiple sites to contest and reconstruct the dominant interpretations of law, so that international law might serve the best interests of a broader construction of the international community. Networks of NGOs and other global civil society actors appear to be key frameworks to facilitate the necessary diversity and dialogue amongst all actors involved in the governance of the international arena. The roles of NGOs as knowledge experts enable them to work productively in international law and governance, often in partnership with states, or among NGO networks. It is clear that the reputation of NGOs as being sources of expert knowledge must be carefully preserved if they are to achieve lasting credibility and be able to participate in the governance of the international arena.
The participation of NGOs in international law is not necessarily uniformly positive. Certainly, there is a need to manage the diversity of the international arena in a way that encourages coherence and discourages chaos and the loss of voices amongst the potential cacophony of competing messages. Communication and knowledge-sharing within and between networks is important and facilitated by developing information technologies. Dialogue is the essential lubricant that assists networks to function. The notion of partnership rather than a struggle between states and non-state actors is an attractive one, allowing the formation of mutually-beneficial relationships between states and networks of civil society actors. Networks at this stage seem to offer an organic structure that allows for both autonomy and connectedness between global civil society groups and the formation of strategic alliances among diverse actors without submerging the individual aspirations.
Ongoing challenges remain for global civil society actors to be welcomed as legitimate and credible actors in international law. Despite these challenges, NGOs remain a significant presence and contribute to evolving concepts of globalisation, civil society, governance and international law. The traditional map of international law no longer provides the only description of international law-making structures and processes. This exercise requires acknowledgment that the changing geographies of power are leading to the creation of new spaces for interaction between established and emerging actors in formal and informal sites of international law. There is much work to be done at an empirical, interdisciplinary level on describing the presence and influence of global civil society actors in international law, discovering the details of this landscape, exploring the characteristics of networks of diverse global civil society actors, the dialogue and languages that exist between them. This work will necessarily be cumulative because the development process of international law is not a static one, and trends such as globalisation will continue to ensure that the landscape of international law is ever-evolving.
Future maps of international law will need to ensure that any boundaries of the landscape of international law do not perpetuate the powerful geographies of exclusion present in traditional structures and processes. Globalisation trends that have served in part to stimulate consciousness about the possibilities of global civil society, can also serve as opportunities to assist in the process of reimagining structures and processes of international law, to embrace the richness of the diverse participants and experiences this offers.
[∗] LLB, LLM(Dist)
(Waikato), PhD (ANU), Barrister and Solicitor of the High Court of New Zealand.
I am greatly indebted to Professor Hilary Charlesworth for her guidance, advice and supervision of the PhD research on which this article is based. The article also benefited from the comments of two reviewers.
 While NGOs are not the only transnational actors regarded as comprising global civil society, they are certainly one of the most numerous and prominent civil society actors, particularly in the international realm, and for this reason, this article focuses on an analysis of NGOs as global civil society actors in international law.
 While there are many terms used to describe the phenomenon of the increasing presence of actors other than states in the international arena, I use the term ‘transnational’ rather than, for example, ‘non-state’, because it describes this phenomenon without perpetuating the assumptions that see such actors characterised as ‘other’ to states. ‘Transnational actors’ therefore encompass actors such as those described below in discussions of global civil society, and transnational corporations. ‘Transnational’ also highlights the border-crossing nature of these actors, see discussion at A M Florini and P J Simmons, ‘What the World Needs Now?’ in A M Florini (ed), The Third Force. The Rise of Transnational Civil Society (2000) 7. For a discussion on terminology see P Willetts, ‘Transnational Actors and International Organizations in Global Politics’ in J B Baylis and S Smith (eds), The Globalisation of World Politics (2nd ed, 2001) 356-58. Also R Devetak and R Higgott, ‘Justice Unbound? Globalization, States and the Transformation of the Social Bond’ (1999) 71 International Affairs 485; P Hamel, H Lustiger-Thaler, J Nederveen Pieterse and S Roseneil, ‘Introduction: the Shifting Frames of Collective Action’ in P Hamel, H Lustiger-Thaler, J Nederveen Pieterse and S Roseneil (eds), Globalization and Social Movements (2001) 1.
 Eg Henkin, Pugh, Schachter and Smit begin their commentary by stating that ‘[t]raditionally, international law is seen as the law of the international community of states, principally governing relations among states, the basic units in the world political system for more than 300 years.’ Henkin et al’s definition encompasses what I characterise as traditional theories of international law. L Henkin, R Crawford Pugh, O Schachter and H Smit (eds), International Law: Cases and Materials (American Casebook) (3rd ed, 1993) xvii.
 I Brownlie, Principles of Public International Law (5th ed, 1998) 1-30; M Dixon and R McCorquodale Cases and Materials on International Law (3rd ed, 2000) 20-57; D J Harris Cases and Materials on International Law (5th ed, 1998) 21-67.
 Brownlie, above n 4, 57-84; Dixon and McCorquodale, above n 4, 138-82; Henkin et al, above n 3, 241.
 Brownlie, above n 4, 105; Dixon and McCorquodale, above n 4, 248-81; Henkin et al, above n 3, 308-43.
 NGOs are involved in the international arena in a variety of ways. Eg NGO activities have been most visible at global conferences on international legal issues, particularly the global environmental and human rights conferences of the 1990s. NGOs have been involved in these conferences in their traditional roles of lobbying states through campaigns, or by providing advice to state delegations. See below n 47 for further discussion on the roles of NGOs in international law.
 Henkin et al, above n 3, xvii, acknowledge this.
 Examples of these trends include the obligations on state parties to international human rights treaties, such as the International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171, to submit reports on human rights protection in their countries to the Committees that monitor these treaties. Regional human rights bodies, such as the European Court of Human Rights, also play a role in the protection of human rights. The establishment of the International Criminal Court is a further example of the extension of international law beyond states to individuals in terms of rights and responsibilities.
 J H Mittleman, ‘How Does Globalization Really Work?’ in J Mittleman (ed), Globalization. Critical Reflections (1997) 237.
 Eg the UN Global Compact and the Millennium Forum are examples of alternative, informal arrangement being developed in the UN system to take into account the presence and potential of transnational actors. The Global Compact is designed to encourage and promote good corporate practices in areas such as human rights, labour standards, and environmental protection, involving the UN, business and civil society <http://www.unglobalcompact.org> . The Millennium Forum involved a meeting of over 1000 civil society organisations from over 100 countries, at the UN Headquarters from 22-26 May 2000, at which the ‘We the Peoples Millennium Forum Declaration and Agenda for Action: Strengthening the UN for the Twenty-First Century’ was adopted. It was later adopted by the UN General Assembly as an official document (UN Doc A/54/959). This document included recommendations by civil society on issues of eradication of poverty, including social development and debt cancellation; peace, security and disarmament; globalisation; human rights; sustainable development and the environment; and strengthening and democratising the UN and international organisations <http://www.un.org/millennium> .
 T M Franck, Fairness in International Law and Institutions (1995) 6. Franck describes this trend as international law entering a ‘post-ontological era’, freed from the necessity to defend international law as ‘real law’ and enabling of self-analysis and critique. For examples of a range of critical comment on international law see the symposium edition addressing method in international law at (1999) 93 American Journal of International Law 291.The editors Stephen Ratner and Anne-Marie Slaughter call upon seven methods: positivism, policy-oriented jurisprudence, international legal process, critical legal studies, international law and international relations, feminist jurisprudence and law and economics. See also B Stark, ‘After/Word(s): “Violations of Human Dignity” and Postmodern International Law’ (2002) 27 Yale Journal of International Law 315. Also S Marks, ‘Guarding the Gates with Two Faces: International Law and Political Reconstruction’ (1999) 6 Global Legal Studies Journal 457.
 D Kennedy, ‘Background Noise? The Underlying Politics of Global Governance’  Harvard International Review 52.
 Ibid 52.
 Marks, above n 12, 470.
 Ibid 459.
 A Watts, ‘The Importance of International Law’ in M Byers (ed), The Role of Law in International Politics. Essays in International Relations and International Law (2000) 15-16.
 This article uses globalisation to mean increased interactions, interconnections and interdependencies at both global and national levels, between and within states and societies, in areas as diverse as economics and human rights. D Held and A McGrew, ‘Globalization and the Liberal Democractic State’ in Y Sakamoto (ed), Global Transformation. Challenges to the State System (1994) 59.
 Eg states still play an important role in enforcing and promoting the rules of the global economy and in influencing other actors, particularly international organisations. J Mittleman, ‘The Dynamics of Globalization’, above n 10, 6. Also see P J Spiro, ‘New Players on the International Stage’ (1997) 2 Hofstra Law and Policy Symposium 19, 24; R W Cox, ‘A Perspective on Globalization’ in Mittleman (ed), above n 10, 27; Mittleman, above n 10, 233; S Strange, The Retreat of the State (1996) iv; S Sassen, Losing Control? Sovereignty in an Age of Globalization (1996) 46; D Held Democracy and the Global Order (1995) 92; D Held, A G McGrew, D Goldblatt and J Perraton, Global Transformations: Politics, Economics and Culture (1999) 441.
 P Hunt, Reclaiming Social Rights (1996) 34; Mittleman, ‘The Dynamics of Globalization’, above n 10, 7; Strange, above n 20, xiv; Spiro, above n 20, 24.
 A Baker, ‘The G-7 as a Global “Ginger Group”: Plurilateralism and Four-Dimensional Diplomacy’ (2000) 6 Global Governance 165.
 A P Jarvis and A J Paolini, ‘Locating the State’ in J Camilleri, A P Jarvis and A J Paolini (eds), The State in Transition. Reimagining Political Space (1995) 15; L Emmerji, ‘Contemporary Challenges for Labour Standards resulting from Globalization’ in W Segenberger and D Campbell (eds), International Labour Standards and Economic Interdependence (1994) 319.
 Held and McGrew, above n 19, 59.
 Eg the global communicative ability of many NGOs and NGO networks is facilitated by the extensive use of information technologies such as the Internet and electronic mail lists. These information technologies are essential for enabling low-cost, effective communication and information exchanges between actors within a network. Groups may use such technology to coordinate global responses to issues, disseminate knowledge and to create a sense of an international community of support for issues. The use of globalised technology was clear in the ways NGOs interacted and coordinated actions during the negotiations to establish an International Criminal Court.
 A Bianchi, ‘Globalization of Human Rights: the Role of Non-State Actors’ in G Teubner (ed), Global Law without a State (1997) 179-80; J B Attanasio, ‘Rapporteur’s Overview and Conclusions’ in T M Franck and G H Fox (eds), International Law Decisions in National Courts (1995) 391.
 The presence and influence of international organisations is thought to have contributed to the displacement of the central role of the state, and the integration, harmonisation and regulation of the world economy. With greater freedom of movement as a result of globalisation, transnational corporations have the ability to move freely around the world to where they can operate most effectively and efficiently, affecting the economic, social and environmental policies of countries and thus becoming increasingly viewed as law-makers. P Alston, ‘Reform of Treaty-Making Processes: Form over Substance?’ in P Alston and M Chiam (eds), Treaty-Making and Australia. Globalisation versus Sovereignty? (1995) 5; A Y Seita, ‘Globalization and the Convergence of Values’ (1997) 30 Cornell International Law Journal 429, 438; J P Robe, ‘Multinational Enterprises: The Constitution of a Pluralistic Legal Order’ in Teubner (ed), above n 26, 46. Also see P Muchlinski, ‘ “Global Bukowina” Examined: Viewing the Multinational Enterprise as a Transnational Law-Making Community’ in Teubner (ed), above n 26, 79-108; and R McCorquodale and R Fairbrother, ‘Globalization and Human Rights’ (1999) 21 Human Rights Quarterly 735, 738, noting the prevalence of transnational corporations amongst the world’s 100 largest economies (51 are corporations).
 Eg Spiro argues ‘[e]xisting conceptions of international law are grounded in the notion that everything begins and ends with the state. That is no longer true as a matter of fact. It should thus no longer gird the framework of the law.’ Spiro, above n 20, 24; Teubner, above n 26, 7; Bianchi, above n 26 180; I R Gunning, ‘Modernizing Customary International Law: The Challenge of Human Rights’ (1991) 31 Virginia Journal of International Law 211; G Teubner, ‘Foreword: Legal Regimes of Global Non-State Actors’ in Teubner (ed), above n 26, xiii; B Conforti, International Law and the Role of Domestic Legal Systems (1993) 3; J Camilleri, ‘State, Civil Society, and Economy’ in Camilleri, Jarvis, and Paolini (eds), above n 23, 222.
 Eg see discussion above n 11 regarding the Millennium Forum and Global Compact initiatives. Jarvis and Paolini, above n 23; Camilleri, above n 28, 222-23; M D Pendleton, ‘A New Human Right – the Right to Globalization’ (1999) 22 Fordham International Law Journal 2052; R Falk, Predatory Globalization (1999) 35.
 The term ‘civil society’ is most often defined as describing the social structures that exist between, and distinct from, the state and the market. While the concept of civil society is itself complex and contested (eg it is important to remember that ‘civil society’ will have different manifestations in different societies and different contexts), it remains a useful concept to describe the phenomenon of the presence of these transnational actors, particularly NGOs, in international law. While the ambiguities of what is meant by civil society cause some difficulties in terms of clarity, the broadness and fluidity of the concept can be useful rather than limiting. Rather than attempting a universal definition, a more useful understanding of civil society would refer more loosely to the notion of a moral community and to issues such as accountability, trust and cooperation that are present in all communities. This notion of community is a fluid one, with vastly different groups motivated by a variety of issues, with different methods of interaction and association. M Walzer, ‘Introduction’ in M Walzer (ed), Toward a Global Civil Society (1995) 3-4; M Walzer, ‘The Concept of Civil Society’ in Walzer (ed), ibid 7; Camilleri, above n 28, 217; J Mertus, ‘Considering Nonstate Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application’ (2000) 32 New York University Journal of International Law and Politics 537, 542; J Ehrenberg, Civil Society. The Critical History of an Idea (1999), 235. The discussions in N L Rosenblum and R C Post (eds), Civil Society and Government (2002) show recognition of the diversity of interpretations of civil society in different contexts, with perspectives of Judaism, Catholicism and Protestantism, Islam, Confucianism, as well as theories from feminist, natural law, and liberalism viewpoints; C Hann, ‘Introduction: Political Society and Civil Anthropology’ in C Hann and E Dunn (eds), Civil Society. Challenging western models (1996) 20; G A Christenson, ‘World Civil Society and the International Rules of Law’ (1997) 19 Human Rights Quarterly 724, 731, noting that the broad conception of world civil society is not exclusively a western idea.
 K Nowrot, ‘Legal Consequences of Globalization: The Status of Non-Governmental Organizations Under International law’ (1999) 6 Indiana Journal of Global Legal Studies 579, 579; J J Shestack, ‘Globalization of Human Rights Law’ (1997) 21 Fordham International Law Journal 558, 562; Mittleman, above n 10, 10; R W Cox, Approaches to World Order (1996) 191; V M Moghadam, ‘Transnational Feminist Networks: Collective Action in an era of Globalization’ in Hamel, Lustiger-Thaler, Nederveen Pieterse and Roseneil (eds), above n 2, 111-39; A Miles, ‘Global Feminist Theorizing and Organizing: Life-Centred and Multi-Centred Alternatives to Neoliberal Globalization’ ibid 140-65. Also R Dwivedi, ‘Environmental Movements in the Global South: Outline of a Critique of the ‘Livelihood’ Approach’ ibid; K Booth and T Dunne, ‘Learning beyond frontiers’ in T Dunne and N Wheeler (eds), Human Rights in Global Politics (1999) 317; M A Bamyeh, The Ends of Globalization (2000) 87.
 Hamel, Lustiger-Thaler, Nederveen Pieterse and Roseneil (eds), above n 2; D Rodrik, Has Globalization Gone too Far? (1997) 3; Devetak and Higgott, above n 2.
 S Gill, ‘Globalization, Democratization and the Politics of Indifference’ in J Mittleman (ed), Globalization, Critical Reflections (1997) 208; Cox, above n 31, 155; R Falk, ‘The Making of Global Citizenship’ in J Brecher, J B Childs and J Cutler (eds), Global Visions: Beyond the New World Order (1993) 39; Falk, above n 29, 106.
 Falk, above n 33, 39; Falk above n 29, 150-51. Also A Appadurai, ‘Grassroots Globalization and the Research Imagination’ in A Appadurai (ed), Globalization (2001) 3.
 J Keane, Civil Society. Old Images, New Visions (1998) 32. There is other terminology used to describe the global civil society phenomenon. Eg Beck refers to this as ‘cosmopolitan democracy’, see U Beck, What is Globalization? (2000) 93. It is also referred to an ‘international civil society’, see H Cullen and K Morrow, ‘International civil society in international law: The growth of NGO participation’ (2001) 1 Non-State Actors and International Law 7; A Colás, International Civil Society (2002) 103-9; and ‘transnational civil society’, see Florini and Simmons, above n 2, 7-8. Furthermore, M E Keck and K Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998) 32-34 distinguish global civil society from their description of ‘transnational advocacy networks’. The alternative terminology noted indicates the differences that exist over the meaning and extent of the global civil society phenomenon. Some commentators prefer the terminology ‘transnational’, arguing that this emphasises the border-crossing nature of links between civil society groups, and that such links are rarely truly global in nature in the sense of involving groups from every part of the world. See eg discussion at Florini and Simmons, above n 2, 7. However, the ‘global civil society’ terminology is pervasive and used extensively, eg in the UN context. For this reason I use this terminology, despite my use of the terminology ‘transnational actors’ above to refer to the broader group of actors present at the international level, and while acknowledging the insights into trends the different terminology provides. ‘Global’ encompasses the diversity of actors, levels at which action and activity is undertaken, and issues in which these civil society actors are involved.
 Keane, above n 35, 33; Walzer, above n 30, 3-4. C Warkentin and K Mingst, ‘International Institutions, the State, and Global Civil Society in the Age of the World Wide Web’ (2000) 6 Global Governance 237, 239.
 Camilleri, above n 28, 217; R Robertson, Globalization. Social Theory and Global Culture (1992) 8. Beck, above n 35, 12-13.
 S Roseneil, ‘The Global, the Local and the Personal: the Dynamics of a Social Movement in Postmodernity’ in Hamel, Lustiger-Thaler, Nederveen Pieterse and Roseneil (eds), above n 2, 90. Also C Eschle, ‘Globalizing Civil Society? Social Movements and the Challenge of Global Politics from Below’ ibid 64-65; Walzer, above n 30, 3-4; Camilleri, above n 28, 218.
 Camilleri, above n 28, 218.
 Rodrik, above n 32, 77.
 Camilleri, above n 28, 218, quoting R D Lipschutz, ‘Reconstructing World Politics: the Emergence of Global Civil Society’ (1992) 21 Millennium 391.
 S Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’ (1997) 18 Michigan Journal of International Law 183, 185; Nowrot, above n 31, 581; H J Steiner and P Alston, International Human Rights in Context (2nd ed, 2000) 940. Also see J Boli and G M Thomas, ‘INGOs and the Organization of World Culture’ in J Boli and G M Thomas (eds), Constructing World Culture. International Nongovernmental Organizations since 1875 (1999) 22-24; and J Smith, R Pagnucco and G A Lopez, ‘Globalizing Human Rights: The Work of Transnational Human Rights NGOs in the 1990s’ (1998) 20 Human Rights Quarterly 379, 386; J Braithwaite and P Drahos, Global Business Regulation (2000) 497.
 Eg the 2001-2002 edition of the Yearbook of International Organizations records 6743 intergovernmental organisations and 47098 non-governmental organisations for a total of well over 50,000 international organisations. See <http://www.un.org/partners/civil_society/document/e_98_43.htm> for an outline of the increase in the number of NGOs in consultative status with ECOSOC. The numbers have grown from 41 NGOs in 1948 to 1356 in 1997, to 2012 in 2001 to 2379 in 2003, showing an exponential increase. Steiner and Alston, above n 42, 940; Smith, Pagnucco, and Lopez, above n 42, 386. Also see Boli and Thomas, above n 42; and A Bichsel, ‘NGOs as agents of public accountability and democratization in intergovernmental forums’ in W M Lafferty and J Meadowcroft (eds), Democracy and the Environment (1996) 234.
 Nowrot, above n 31, 589. Also Boli and Thomas, above n 42, 42-43. Also see P Willetts, ‘From “Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN’ (2000) 6 Global Governance 191.
 It proves difficult to find a generally accepted definition of NGOs, as the term is often used loosely to describe a number of diverse groups with differing characteristics in a variety of circumstances. The diversity of groups that come under the nomenclature of NGO can therefore create ambiguities as to meaning. While a single definition is problematic, it is possible to identify some important characteristics of NGOs that are generally accepted. NGOs are commonly an independent, cooperative association of people, working for common purposes that are not state or market orientated. In international law contexts, the requirements of the United Nations Economic and Social Council (ECOSOC) regarding consultative status of NGOs are also instructive for forming an understanding of a NGO. These include that NGOs’ aims and purposes should be consistent with the UN Charter and the work of the UN, particularly ECOSOC. L Gordenker and T G Weiss, ‘Pluralizing Global Governance: Analytical Approaches and Dimensions’ in T Weiss and L Gordenker (eds), NGOs, the UN and Global Governance (1996) 18; Willetts, above n 44.
 Steiner and Alston, above n 42, 940.
 M L Schweitz, ‘NGO participation in international governance: the question of legitimacy’ (1995) American Society of International Law Proceedings 413, 418. Schweitz sets out some roles commonly engaged in by NGOs: to channel information, lobby and advocate, dispute resolution, implementation of policies and practices of international organisations, collaborate in policy-making and law-making, and to monitor compliance of states and international organisation. C Chinkin, ‘Global Summits: Democratising International Law-making?’ (1996) 7 Public Law Review 208, 209-10; Nowrot, above n 31, 590.
 Steiner and Alston, above n 42, 940
 Nowrot, above n 31, 590. Also Bichsel, above n 43, 248.
 Bianchi, above n 26, 191.
 P J Spiro, ‘New Global Potentates: Nongovernmental Organizations and the “Unregulated” Marketplace’ (1996) 18 Cardozo Law Review 957, 958-62.
 The sources of international law, according to art 38 of the Statute of the International Court of Justice are: international conventions, international custom, general principles of law recognised by civilised nations, and judicial decisions and the teachings of the most highly-qualified publicists.
 Art 71, UN Charter: ‘The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Members of the United Nations concerned.’ There are currently 2379 non-governmental organisations in consultative status with ECOSOC <http://www.un.org/esa/coordination/n go/faq.htm> . A list of these organisations is also available from <http://www.un.org/partners/civil_society/ngo/n-ecosoc.htm#top> . See Appendix A ‘NGOs and the structure of the UN system’ in P Willetts (ed), The Conscience of the World: The Influence of Non-Governmental Organisations in the UN System (1996) 277-89 for a detailed discussion of NGOs in the UN structure.
 See ‘Consultative Relationship between the United Nations and Non-Governmental Organizations’, ECOSOC Res 1996/31, 49th Plenary meeting, 25 July 1996. This is an update of arrangements for NGO consultation set out in ECOSOC Res 1296 (XLIV) of 27 May 1968, 1524th plenary meeting. Willets, ibid 191 at fn 3, notes that in addition to these resolutions, there was an initial revision of art 71 by ECOSOC Res 288B (X) on 27 February 1950. ECOSOC Res 1996/31 updates these arrangements for consultation with NGOs. This Resolution recognises the diversity of NGOs that exist at international, national and regional levels, acknowledges the breadth of the expertise of NGOs and their capacity to support work of the UN, promotes coherence among UN specialised agencies regarding NGO involvement, and gives guidance as to the consultative relationship between NGOs and the UN through ECOSOC, .
 Ibid -. In reality, these characteristics do not necessarily fit every NGO and the boundaries can be blurred. These criteria are open to review by ECOSOC in recognition of the ‘evolving relationship’ between the UN and NGOs, in order to facilitate the contributions of NGOs to the work of the UN. The Resolution is clear on the nature of consultative arrangements with NGOs. NGOs are not accorded the right to vote, . Moreover,  stipulates that the extent of the consultative relationship should not be such so as to transform ECOSOC ‘from a body of coordination of policy and action, as contemplated in the Charter, into a general forum for discussion’. Gordenker and Weiss, above n 45, 20-21.
 Ibid . NGOs may obtain consultative status in one of three categories: general, special or roster.
 See <http://www.un.org/partners/civil_society/home.htm> for links to speeches of the Secretary-General referring to civil society, and for information on how the UN works with civil society groups. An example is the establishment of the Secretary-General’s Panel on Eminent Persons on Civil Society and UN Relationships, set up in 2003 ‘to review past and current practices and recommend improvements for the future in order to make the interaction between civil society and the United Nations more meaningful’. See ‘Strengthening of the United Nations: An Agenda for Further Change’ Report of the Secretary-General A/57/387, 9 September 2002.
 M Ottaway, ‘Corporatism Goes Global: International Organizations, Nongovernmental Organization Networks, and Transnational Business’ (2001) 7 Global Governance 265, 266-67.
 K Anderson, ‘The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations, and the idea of International Civil Society’ (2000) 11 European Journal of International Law 91, 109. Ottaway, above n 59, 273. Willetts, above n 44, 191, 208, notes the shift in language describing NGO interactions with UN bodies from ‘consultative’ to ‘partnership’, and explores the significance of this, concluding that this transformation is evidence of the emergence of a multiactor international system.
 Anderson, above n 60, 109. Partnership is also an idea that has been important in international development and international aid discourses, see A Fowler, Striking a Balance. A Guide to Enhancing the Effectiveness of Non-Governmental Organisations in International Development (1997) generally.
 See eg Gunning, above n 28, 211-47.
 Anderson, above n 60, 112-20, argues that NGOs are pressure groups, and that therefore their value to the international system as legitimate ‘partners’ or as representatives of civil society bringing democratic legitimacy to international law is overestimated.
 Falk, above n 29, 30; Ottaway, above n 59, 267.
 Devetak and Higgott, above n 2, 494.
 Eg compare the information available on the interactions of NGOs between the UN Development Program (UNDP) <http://www.undp.org> and in the UN Conference on Trade and Development (UNCTAD) <http://www.unctad.org> . While there is significant information available regarding the interaction of NGO ‘partners’ with UNDP, UNCTAD appears, from the information available, to have limited contact with NGOs.
 See discussion in text above n 47.
 Eg Anderson, above n 60, 117-18 outlines such concerns.
 Smith, Pagnucco, and Lopez, above n 42, 411-12.
 Ehrenberg, above n 30, 248-49.
 Schweitz, above n 47, 419.
 D Otto, ‘Challenging the “New World Order”: International Law, Global Democracy and the Possibilities for Women’ (1993) 3 Transnational Law and Contemporary Problems 371, 372.
 J Mertus, ‘From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society’ (1999) 14 American University International Law Review 1335, 1361-65.
 Otto, above n 74, 732.
 Mertus, above n 75, 1364.
 Schweitz, above n 47, 417.
 M Kaldor, ‘A Decade of Humanitarian Intervention: The Role of Global Civil Society’ in H Anheier, M Glasius and M Kaldor (eds), Global Civil Society (2001) 111-15. Also see Table R21 ‘Links between international organisations’ ibid 291-92. Keck and Sikkink, above n 35, x, 1-3.
 H Anheier, M Glasius and M Kaldor, ‘Introducing Global Civil Society’ in Anheier, Glasius and Kaldor (eds), above n 79, 4.
 C Eschle, Global Democracy, Social Movements, and Feminism (2001) 218.
 Keck and Sikkink, above n 35.
 Ibid x, 1-3, 8-9.
 E A Nadelmann, ‘Global prohibition regimes: the evolution of norms in international society’ (1990) 44 International Organization 479, 482; H H Koh, ‘Bringing International Law Home’ (1998) 35 Houston Law Review 623, 647-48; H Charlesworth and C Chinkin, The Boundaries of International Law (2000) 93.
 Keck and Sikkink, above n 35, 9; Braithwaite and Drahos, above n 42, 494-97.
 Keck and Sikkink, above n 35, 2-3.
 Braithwaite and Drahos, above n 42, 494-97.
 Ibid 7, 9.
 Keck and Sikkink, above n 35, 1-2, 12-13.
 Ibid 24. J T Mathews, ‘Power Shift’ (1997) 76 Foreign Affairs 50, 52; J Gamble and C Ku, ‘International Law – New Actors and New Technologies: Center Stage for NGOs?’ (2000) 31 Law and Policy in International Business 221, 233.
 Mathews, above n 90, 51.
 Gamble and Ku, above n 90, 232.
 Ibid 2.
 P Willetts, ‘The Impact of Promotional Pressure Groups on Global Politics’ in Willetts (ed), Pressure Groups in the Global System. The Transnational Relations of Issue-Orientated Non-Governmental Organizations (1982) 185; P Nelson, ‘Information, Location, and Legitimacy: The Changing Bases of Civil Society Involvement in International Economic Policy’ in M Edwards and J Gaventa (eds) Global Citizen Action (2001) 59, 63.
 Willetts, above n 94, 186; T Burke, ‘Friends of the Earth and the Conservation of Resources’ in Willetts (ed), above n 94, 112.
 Willetts, above n 94, 185; Gamble and Ku, above n 90, 230; M Ennals, ‘Amnesty International and Human Rights’ in Willetts (ed), above n 94, 78-80; P Haas, ‘Introduction: epistemic communities and international policy coordination’ (1992) 46 International Organization 1, 2, 17.
 M J O Scott, ‘Danger – Landmines! NGO-Government Collaboration in the Ottawa Process’ in Edwards and Gaventa (eds), above n 94, 123.
 C Harper, ‘Do the Facts Matter? NGOs, Research, and International Advocacy’ in Edwards and Gaventa (eds), above n 94, 252.
 Ibid 248.
 M Edwards, ‘Introduction’ in Edwards and Gaventa (eds), above n 94, 14.
 Harper, above n 98, 248. Also see A S Minty, ‘The Anti-Apartheid Movement and Racism in Southern Africa’ in Willetts (ed), above n 94, 43; Ennals, above n 96, 72-76.
 Haas, above n 96, 2.
 Ibid 2.
 Gamble and Ku, above n 90, 236-37.
 Ibid 239.
 Chinkin, above n 47, 211.
 Anderson, above n 60, 95.
 See generally Gunning, above n 28; and Nowrot, above n 31.
 Gunning, above n 28, 221, 227-34.
 Nowrot, above n 31, 601.
 Ibid 601-14.