The International Journal
of Not-for-Profit Law

Volume 2, Issue 3, March 2000

A quarterly publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Articles

Introduction: "Codes of Conduct for Partnership in Governance: Texts and Commentaries"
By Tatsuro Kunugi and Martha Schweitz

On the Establishment of Social Organizations Under Chinese Law
By Ge Yunsong

Australia's Nonprofit Taxation Reforms
By Myles McGregor-Lowndes

Reviews

Codes of Conduct for Partnerships in Governance: Text and Comments
Edited by Tatsuro Kunugi and Martha Schweitz
Reviewed by Catherine Shea

Case Notes

Central and Eastern Europe: Croatia | Poland | Serbia

Middle East and North Africa: Egypt

Newly Independent States: Azerbaijan

North America:
the United States

South Asia:
India

Country Reports

Asia Pacific:
Australia
| East Timor |
New Zealand
| the Philippines | Vietnam

Central and Eastern Europe: Regional | Kosovo | Romania

Latin America:
Regional | Belize | Brazil | Venezuela

Newly Independent States:
Russia | Ukraine

Middles East and North Africa: Sudan

North America:
Canada
| Mexico |
the United States

South Asia:
India

Sub-Saharan Africa:
Cameroon | Kenya |
Sierra Leone
| South Africa | Tanzania | Zimbabwe

Western Europe:
France | Germany |
the United Kingdom

Self Governance

Law and Governance-- A Lesson in Limits
By Leon Irish and Karla Simon

Trends in Self-Regulation and Transparency of Nonprofits in the U.S.
By Robert O. Bothwell

The Role of Governing Boards in Fostering Accountability
By Crispin Gregoire

Financial Implications Affecting Nonprofit Nongovernmental Organizations Today
By Michael A. Freedman

International Grantmaking

Grantmaking by U.S. Foundations in Canada: A Canadian Lawyer Provides a Plain Language Primer
By Blake Bromley

Community Philanthropy

Community Philanthropy Initiative of the European Foundation Centre

Transatlantic Community Foundation Network

New Website Buergerstiftung.de

Partnerships

General | Brazil | Kenya | Russia

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Editorial Board

Subscription Information

Previous Issues

ICNL Homepage

Introduction: "Codes of Conduct for Partnership in Governance: Texts and Commentaries"

By Tatsuro Kunugi[1] and Martha Schweitz[2]

Editor’s Note: The following article is a reprint of the introduction to the book "Codes of Conduct for Partnership in Governance: Texts and Commentaries” (Kunugi & Schweitz, eds.). The provisional text of the book, prepared under the aegis of the United Nations University, was presented in conjunction with the World Civil Society Conference, which met in Montreal, December 7-11, 1999. The final version of the book will be available from United Nations University later this year.

This is a collection of selected documents, mostly in abridged form, that have a bearing on partnerships among various actors for global governance. In order to set the documents in their developmental context, many are accompanied by commentaries written by persons involved in their drafting, adoption or implementation. The present publication is issued in a provisional form to facilitate discussions at the World Civil Society Conference: Building Global Governance Partnerships [WOCSOC], 7-11 December 1999, Montreal. Its revised version, reflecting the results of workshops during WOCSOC and including several analytical chapters, will be published in time for the Millennium NGO Forum and the UN Millennium Assembly in the year 2000.

During the past 25 years or so, notably since the Stockholm Conference on the Human Environment in 1972, there has been a massive emergence of NGO activities in international affairs throughout the world. These activities encompass not only the promotion of human rights, humanitarian relief, development cooperation and environmental action, but also cooperation in various phases of conflict resolution. NGOs are not a new phenomenon. However, the weight of their activities in world politics is significantly changing as they supplement or even, in some cases, partially substitute for traditional politics of the state.

As a result, both the substance and the processes of global governance are being transformed in profound ways. While we cannot foresee all of the forms and outcomes of this evolutionary stage, we can identify many of its characteristics and the challenges presented.

The nation-state as the central organizing structure of modern human civilization is proving to be both too large and too small to address effectively many of our most pressing contemporary problems. In response, and in order to find ways through or around these limitations, people -- organizing themselves in a vast array of forms and styles that we refer to collectively as "civil society" -- are trying to make a difference. By far most of the efforts of civil society organizations are carried out at the local level. But when the nature of the problems confronted so require, nongovernmental groups must encounter and deal with governmental structures from the local through international levels. To the extent that these disparate actors endeavor to create a constructive working relationship (as distinguished from an essentially confrontational one), we refer to the relationship as a "partnership."

As the term "partnership" generally connotes a certain degree of equality or equivalence between the partners, it may be a euphemism at best in many cases of governmental/nongovernmental relationships. Nevertheless, it accurately conveys the intent to collaborate for shared goals while capitalizing on the unique identity and characteristics of each partner. The concept of governmental/nongovernmental partnership is a starting point for experimenting in creating new structures and processes for better, more human governance at all levels.

These partnership dynamics, however, are not only about how to evolve institutions and make decisions. They bear most profoundly on figuring out what the goals and cardinal principles of governance itself should be in our highly pluralistic, dangerous, and radically unequal world. The ethical foundations of global governance are undergoing a shift which may, with a century of hindsight, be viewed as that which finally allowed humanity to come of age as a social being on a worldwide scale.

The present collection of documents is no more than the tip of an iceberg, but hopefully it is sufficient to indicate what lies below as well. This collection illustrates the early stage we have reached in partnership-building among various actors and also suggests where we may go from here.

The Collection

The documents presented in Part I. NGO Self-Regulation go by various titles, including "code of conduct", "code of ethics", "guidelines", "code of practice" or "standards." Section A. National Codes is intended to be a nearly complete collection of self-regulatory instruments adopted by national networks or groups of NGOs devoted to development, most broadly defined. Section B. Regional and Transregional Codes presents several similar documents adopted by groups of organizations beyond the national level, addressing general issues of practice, ethics and organizational relationships.  Section C. Specialized Codes presents documents which are also for transnational application, but they have been adopted by one or more network organizations that focus on a particular sector of activity: charities, cooperatives, credit unions, disaster relief, and funders. Section D. Proposed Codes for the Voluntary Sector is a small but diverse collection of codes drafted not by a group of NGOs for their own immediate use but as suggested standards and guidelines.

Given their origins and the wide array of organizations from which these documents have emerged, they naturally differ in many respects. What is more surprising, and highly promising in terms of establishing patterns for new forms and foundations in governance, is that they are so similar in their treatment of many common themes. Although the texts and contents of these documents are important, what may be more valuable in the long term is the highly participatory process each adopting network or group has gone through in the course of reaching agreement on the text. In many cases, as explained in the accompanying commentaries, this has been an unparalleled exercise in self-identification of the groups of organizations, as they collectively try to define their purposes, their methods, standards, and values. This process can be extremely empowering.

Achievements in self-regulation also mark a significant stage in NGO development, when organizations can give up jealous attachment to their own claims of uniqueness, recognize shared values and the benefits of collaborative action, and learn to preserve whatever level of autonomy they choose while pursuing joint action for common good. These codes describe desired types of partnership or collaborative relationships, with governmental as well as other nongovernmental actors, and set forth substantive principles and goals for directing such collaborative work.

One essential and very practical purpose of Part I is to serve as a resource and reference for NGOs and networks in the earlier stages of adopting self-regulatory standards. These codes are generally kept under review by their adopting organizations, especially as their experience with implementation grows. Contact information is given for most of the organizations, so that readers can get the most recent or additional information directly.

The four documents in Part II. National Law present a few perspectives on national legal regulation of NGOs, a subject intimately related to self-regulation. Doc. 31, the Agreement between the nongovernmental Philippine Council for NGO Certification and the Philippine Department of Finance is a novel partnership arrangement, in which the government confers on an NGO the responsibility for accrediting organizations to receive certain tax benefits, subject to a few explicit guidelines.

Among the seven documents presented in Part III. Business, seven were drafted and agreed upon by business councils, federations or groups. Of the remaining two, i.e., Doc. 32 and 36, one is proposed for the business sector by the Global NGO Forum at the Rio Summit and the other by a university research group. They contain statements indicating the recognition of public functions and social responsibilities on the part of business groups and the willingness to work jointly with other actors in dealing with such issues as environment and development. Doc. 39 on "alternative trade" represents the code of practice of business organizations and networks which are devoted to promoting the well-being of marginalized producers in developing countries. While there are many other documents that could be included in this Part, these are intended to indicate directions of thinking in the for-profit world.

The enhanced role in world affairs performed by NGOs and other civil society organizations in recent years has been generally welcomed by the United Nations and its agencies. This trend is clearly discernible in a number of UN General Assembly resolutions, statements by the UN Secretary-General and declarations on partnership in action between UN agencies and civil society actors. The two UN General Assembly resolutions, one on human rights and the other on a culture of peace, included in Part IV. United Nations and Civil Society, specifically refer to the role, right and responsibility of individuals, peoples, groups, organs of society, NGOs and civil society. The responsibility of the state is specified but the state is no longer the only actor the resolutions are addressed to. Secretary-General Boutros Boutros-Ghali in 1996 stressed "strengthened legitimacy" and the "democratizing potential" which the NGO phenomenon can bring to international organizations, and in 1997 Secretary-General Kofi Annan supported an innovative proposal that a reconstituted Trusteeship Council should deal with the global commons as the policy domain which requires the active contribution of public, private, and voluntary sectors. The joint statement of July 1999 on a "Global Compact" between the UN and the International Chamber of Commerce is also noteworthy.

UNESCO’s World Commission on Culture and Development, headed by former Secretary-General Javier Pérez de Cuéllar, proposed in 1995 that the United Nations in the next century should become a "people-centered" organization and "a visionary beacon for younger generations," and that civil society organizations "need to participate if the UN is to deal with such interlinked problems as peace, culture, poverty, environment, gender issues, media and technological development." A most impressive set of guidelines for NGO - UNHCR Partnership in Action (PARinAC) was adopted by the Global NGO and UNHCR Conference held in Oslo, 6-9 June 1994. The Oslo Declaration and Plan of Action containing 25 Recommendations were symbolically signed by the representatives of UNHCR and ICVA (International Council of Voluntary Agencies). Examples in different form but in similar vein are also cited in relation to UNICEF and UNFPA.

In Part V. United Nations Conferences, excerpts from the six major UN Conferences starting with the Rio Summit show the recognition of the importance of active and full participation of the relevant groups of civil society in the implementation of the Programmes of Action. To enable such participation, the empowerment of those groups is also stressed. Furthermore, in connection with the "plus 5 review" process of Rio, Vienna and Cairo, the role of these groups in monitoring progress in the implementation of Programmes is emphasized. At the Copenhagen Social Summit in 1995, involvement of civil society, including the private sector, was considered essential, and specific measures were recommended for enabling their participation in the implementation of the Programme and enhancing their contribution to it. On the other hand, the Copenhagen Alternative Declaration of Civil Society Organizations (March 1995) stated that the economic framework adopted in the summit document is "in basic contradiction with the objectives of equitable and sustainable social development."

The six documents presented in Part VI. Codes for Specialized Activities address, among others, political issues that are essentially within the jurisdiction of governmental authorities. Yet it is noted that the resolution of problems such as arms transfers require cooperation of nongovernmental actors, including business corporations, in particular arms suppliers and recipients. The code of conduct initiated by Dr. Oscar Arias with the wide support of Nobel Peace laureates is a radicalist approach designed to deal with the root causes and far-reaching consequences of the current resurgence of arms build-up in various parts of the world. It is also a multi-faceted approach linked to, inter alia, international human rights and humanitarian law, democratic governance, peace and security and human development. Likewise, the Declaration of a Moratorium on Light Weapons in West Africa combines several approaches and associated measures with the support of ECOWAS (Economic Community of West African States), the OAU (Organization of African Unity), the UN Security Council, the Programme for Coordination and Assistance for Security and Development (PCASED), the Norwegian Initiative on Small Arms Transfer (NISAT) and many NGOs in West Africa.

The People’s Communication Charter and the Milan Declaration on Communication and Human Rights both focus on communication as a human right, not just the right to receive information but the right to participate in its generation. These documents and commentaries call for mobilization of people to shape the quality of our cultural environment and for the strengthening of the community broadcasting sector.

The work for adopting the International Code of Marketing of Breast-milk Substitutes was formally initiated by the joint WHO/UNICEF consultative meeting in 1979 where representatives from governments and the food industry, health experts and NGO and consumer activists took part. The extensive involvement of all major actors indeed contributed to the development of meaningful regulations based on consensual knowledge. The implementation of the 1981 Code, in the form of a WHO recommendation, at the level of health ministries, hospitals, health professionals and the transnational food industry has also been facilitated by NGOs and consumer organizations, although its full implementation depends on the political commitment of governments to establish a monitoring system and to impose sanctions against non-compliance. The development of two codes of conduct as universal minimum standards for ethical and professional observations and administration of elections is another example of success derived from a meeting jointly organized by the UN and an international NGO, namely the International Institute for Democracy and Electoral Assistance (International IDEA).

The ten documents presented in Part VII. Global Framework Documents are a diverse selection but they have certain characteristics in common. As compared with the documents in earlier Parts, they are generally broader and take a very long-term perspective, emphasizing the universal principles and ethics pertaining to the attitudinal dimensions for all actors in the community of humankind. In most of these documents, it is recognized that rights as the foundation of freedom, peace and justice must be joined with responsibilities and accountability. Although with varying degrees of emphasis on areas of main concern, they also propose a policy-oriented agenda to be pursued on the basis of mutual respect and partnerships among individuals, groups and organs of society.

The UN University’s Advisory Committee for the Project on International Law, Common Patrimony and Intergenerational Justice, in 1988, identified as major challenges for the functional development of international law: intergenerational equity; global commons; and conservation and development of natural and cultural resources. The two Declarations on a Global Ethic and Human Responsibilities urge commitment to fundamental principles for humanity and justice based on mutual responsibility, solidarity, tolerance and partnership. In 1997, the InterAction Council proposed the adoption of the Universal Declaration of Human Responsibilities by the UN General Assembly.

The Citizens Conference on NGO-UN Relations, held in June 1995 at San Francisco on the occasion of the 50th anniversary of the signing of theUN Charter, likewise proposed that a Declaration of Accountability for Global Governance be adopted by the UN General Assembly. In that document, major global issues are strategically divided into two categories and an attempt is made to draw a distinction between responsibility of all partners to each other and their accountability to the global community, both at present and in the future. The Citizens’ Public Trust treaty is also proposed for General Assembly adoption, setting out the implications of holding states accountable for carrying out all of the public trust obligations they have undertaken in binding international agreements.

The Earth Charter campaign has three processes: the valuing process, the drafting process and the intergovernmental process. It seeks through people’s dialogue a process of transformation toward an ethical framework for sustainable development. Such process is defined as a "pedagogical task" aimed at fostering a capacity for connectedness, mutuality and accountability.

The objectives of the three civil society conferences, in the final three documents, are result-oriented. These conferences aim at a long-term outcome from discussions of agendas focused on what are considered to be the most important challenges. Thus, the World Civil Society Conference aims at enhancing and broadening cooperation among civil society actors by formulating practical proposals for increased cross-cultural, cross-sectoral, gender-balanced partnership, to open up new spaces for civil society, and to strengthen their support for and collaboration with the UN system. The Global People’s Assembly pursues an agenda for realizing a permanent global people’s assembly to ensure an effective and ongoing voice for the world’s people in global problem-solving and decision-making. The Hague Appeal for Peace process has articulated a set of 50 agenda items, which identify specific groups and organs of society that are most directly involved, recognizing their role, urging their empowerment or holding them accountable for the impact of their activities. With regard to agenda item 50 for the abolition of war, the Hague Appeal "envisions a world without violence through a new code of international conduct, which restricts military power and embraces nonviolence and adherence to international law."

The Purpose

The purpose of this publication is, first, to collect and systematically present these scattered and widely diverse documents of recent origin (namely, codes, guidelines, principles, standards, charters, declarations, statements, etc.) that bear on partnerships for global governance, so that the significance of these documents can be more widely known and understood.

The second purpose is to facilitate the thematic analysis of the documents presented, comparing and contrasting them along the lines of common themes and issues addressed. These include method, form, range of constituencies, and inter-actoral (namely, between actors of different categories) as well as inter-sectoral relations (namely, between different issue sectors, such as peace, human rights, development, environment). The analytical chapters to be added in the final version of this publication will make a start in this direction.

Third, we seek to step back from the specific documents presented in this collection and more deeply examine the code approach itself for building partnerships, the concepts of responsibility and accountability, and other underlying principles that may appropriately be reflected in codes and other documents suitable for global governance partnerships. The use of "codes" that lay down standards and prescribe action but are not legally binding or mandatory is not a new phenomenon in the practice of international organizations. In the field of human rights in the administration of justice, the UN General Assembly, ECOSOC and the UN Congress on the Prevention of Crime and the Treatment of Offenders have since 1955 adopted a number of basic principles, standard minimum rules, codes of conduct and declarations concerning protection of persons subjected to detention or imprisonment. The International Labour Code consists of many codes, guidelines and declarations, as well as conventions and recommendations, covering a wide range of subject matters. The ILO, the OECD (Organization for Economic Cooperation and Development) and the European Union have adopted standards or guidelines on multinational or transnational enterprises. The Codex Alimentarius Commission established in 1962 under a joint FAO/WHO project has adopted a large number of standards. Since the 1970s attempts have also been made to complete and adopt the ECOSOC-sponsored draft Code of Conduct on Transnational Corporations, as well as the UNCTAD-sponsored draft Code of Conduct on Transfer of Technology. Against this background, reasons for new interest in the code approach to building and managing partnerships in governance may appropriately be studied. For instance, an inquiry may be made as to whether the code approach is particularly suitable for promoting global governance, given the multi-centric and multi-layered nature of its processes.

Finally, it is hoped that the documents and commentaries collected in the present publication will provide relevant data for an inquiry into the concept of partnership among different actors. This requires considerable further thought. The obstacles to creating a partnership between actors of dramatically unequal power, influence and wealth, and of seemingly incompatible organizational styles or operational principles, are a challenge to all. They are increasingly a focus of study in the relevant social science literature. At best, such a partnership may be one built on substantial independence and interdependence with explicit recognition that each partner contributes to mutual benefit through the partnership. In the context of global governance, however, the ultimate purpose should not be mutual benefit of the actors themselves (the government, the NGO, the business, etc.), but the well-being of humanity, service in the public interest, and global public good.

Civil society has been described as a mosaic. Viewed close up the individual stones (or organizations) are small and irregular. Viewed with the perspective of some distance, transcendent designs and patterns emerge. The co-editors hope that the beginnings of new patterns in governance may be visible in the mosaic of this collection of documents.

The co-editors wish to express deep gratitude to all those who kindly contributed written commentaries, and to express appreciation to organizations for their permission to reprint copyrighted material. Warmest thanks are addressed to Mr. Cyril Ritchie, who greatly encouraged and helped the preparation of this publication by generously sharing his wisdom, wealth of knowledge and experience as an eminent leader for many years in international NGO circles.

Notes

[1] Tatsuro Kunugi, Ph.D., has been Professor of International Administration and Cooperation at International Christian University, Tokyo, since 1990. Previously, he was UN Assistant Secretary-General for humanitarian assistance to the Cambodian people (1984-87) and for population activities (1987-90). He is Representative of the International Cooperation Research Association, Tokyo, which he co-founded in 1991. He is also Special Coordinator of WOCSOC (World Civil Society Conference) for the UN University. E-mail: kunugi@parkcity.ne.jp

[2] Martha L. Schweitz, J.D., has been Professor International Law at Seinan Gakuin University, Fukuoka, Japan, since 1990, after teaching in Japan as a Fulbright lecturer the year before. Previously, she taught international law at the University of Oregon (1986-89) and practiced international business law with a Chicago firm (1981-86). Her research in recent years has focused on civil society participation in intergovernmental institutions. She is also a member of the Steering Committee of WOCSOC (World Civil Society Conference). E-mail: schweitz@seinan-gu.ac.jp, or, while a Visiting Professor at Chicago-Kent College of Law until April 2000: mschweit@kentlaw.edu

 

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