The International Journal
of Not-for-Profit Law

Volume 12, Issue 1, November 2009

Eduardo Szazi1

1. General Overview

The strong democratic winds that have been sweeping the world since 1989 have ushered in an unprecedented situation, in which electoral democracies now constitute the predominant form of government in the world. They have also given birth to a steady increase in the people’s participation in public affairs, either at the national or international levels, through private bodies, the so-called non-governmental organizations (NGOs).

The expression “non-governmental organizations” was coined by the UN Charter, which, by establishing consultative procedures with NGOs (article 71), assumed that the public sphere was larger than the governmental one and that not only States had the legitimacy to be heard in matters affecting the needs and aspirations of citizens. This hard law recognition of the importance of NGOs was followed by several similar provisions in the constitutive acts of intergovernmental organizations, both at the universal or regional levels, in UN programs and funds, as well as in other innumerous soft law instruments of interaction between governmental bodies and NGOs.

Hence, one could affirm that, at the international level, pluralism is admitted by the UN Charter not only between States, but also beyond States, since the Charter acknowledged that individuals could interact with the United Nations not only through governmental organizations but also through non-governmental organizations. Some authors suggest that since 1945, the world has been living in a neo-Grotian era insofar as the principles of solidarity have been invigorated.2 Not coincidentally, this is the same period in which we observed the appearance of NGOs, which experienced a particularly explosive growth after the adoption of the International Covenant of Civil and Political Rights (1966) and the end of the Cold War (1991), both pivotal moments for civil society at large. NGOs are new forms of people’s participation in public affairs, which, at the international level, is based on the international legal personality of individuals and the right of people to self-determination, which has expanded way beyond the de-colonization process of the last century to encompass the right to democracy.

However, if democracy provides the contractual arrangement framework for the participation of people in public affairs through periodic elections, it is currently not capable of ensuring the same participation in the operation of the “social contract,”3 the Weberian bureaucracy that controls the State and has replaced parliament as the main norm-creator. Civil society must control the State. Liberalism has adopted rationalism to ensure fundamental freedoms, hence, it is civil society that commands the State and not the other way around. The primacy of individual rights over State rights was acknowledged by international law when it accepted restrictions to the States’ sovereignty if this proved necessary to ensure human rights. Hence, bearing in mind Thomas Franck’s ideas on Democratic Governance,4 it is necessary to add another building block to his model, through mechanisms of civil participation to hold bureaucracy accountable for its acts and decisions.

One aspect merits attention: Even in solid democracies, while NGOs cannot be regarded as being equal to civil society,5 they are relevant non-state actors in the contemporary world that have demonstrated a great capacity for gathering collaborators and financial supporters.6 Any survey will show that NGOs are actively involved in the shaping of public policies, whether at a local, national, or international level, addressing a broad range of issues, sometimes as supporters but also—and more often—as critics.7

At the domestic level, NGOs are energizing the public sphere and improving the pluralist debate within the States in order to ensure the best fulfillment of the “social contract.” In several States, public policies are now being discussed between State officials and civil society representatives in official fora, such as thematic councils and cyclical conferences.8 NGOs can encourage local political processes that support democracy with the purpose to strengthen civil society in general, without becoming partisan in a political party’s sense.9 Fostering such civil participation in the public arena is essential for the health of democracy: it ensures the rights of freedom of thought and participation in public affairs remaining aligned with the rational-legal structure of the State. It preserves the structure while it improves it. Moreover, it allows an effective counterbalance against self-oriented bureaucracies that might undermine democracy. Such measures have proven their efficiency by destroying the most powerful bureaucracy of the 20th century: the Soviet Union.10

That is why, in our opinion, some States’ bureaucracies desperately want to control NGOs.

2. State Bureaucracy: democracy’s degenerative illness?

States, as abstract bodies, cannot operate by themselves. They need to be structured, and for that purpose, together with the creation of the modern State, bureaucracy flourished. Hegel’s Philosophy of Right dedicated considerable efforts to justifying the desirability of a “universal” class of civil servants to provide the organic character of a legal order, the State, sowing the seed that would later grow in Weber’s work, who once wrote that

Experience tends universally to show that the purely bureaucratic type of administrative organization is, from a purely technical point of view, capable of attaining the highest degree of efficiency and is in this sense formally the most rational known means of carrying out imperative control over human beings.11

When Weber wrote his seminal book on the economic and social order, he was impacted by the transformations that were occurring in Russia and, particularly, in Germany at the beginning of the 20th century. He was unable to foresee that the rational-legal machinery that he had so precisely conceptualized would degenerate in his homeland to such an extent that it would be able to bureaucratically control the murder of millions of people, including German citizens, as described by Hannah Arendt.12

However, Weber’s perception of the power of bureaucracies is noteworthy: when asked how those subjected to bureaucratic control could seek to escape from its apparatus, he answered that this would happen “normally” by their establishing an organization of their own, which would be equally subjected to the process of bureaucratization!
Although apparently outrageous, his assertion has found an echo in reality: when a large group of people decide to challenge the apparatus of one State, they create another State; when a small group decides to do so, they create an NGO. Regardless of this, there is an aspect of Weber’s theory that cannot go unnoticed: the undeniable purpose of bureaucracy is control, which is exercised on the basis of knowledge. He makes no reference to any other relevant purpose.

If the purpose of bureaucracy is control, then, in order to avoid its degeneration, it is fundamental to control the controller and this can be done only to the extent that people possess the power to enforce the fulfillment of the “social contract” entered into with the States. It is only possible in democracy and, moreover, in those democratic regimes that have adopted mechanisms of civil participation.

If civil society cannot hold States’ bureaucracies accountable for their decisions, relying on loose controls established by the State itself,13 that control will be nothing more than a formal, fictional and ineffective one, giving room to democracy’s degeneration.

Schumpeter said that

Revolution need not mean an attempt by a minority to impose its will upon a recalcitrant people; it may mean no more than the removal of obstructions opposed to the will of the people by outworn institutions controlled by groups interested in their preservation.14

3. NGOs: an antibiotic against democracy’s degenerative illness?

Democracy has become the political orthodoxy, and some are tempted to say, the political religion of the West.15 But, democracy is a method16 and if it is the only existing remedy to protect the abstract States and respective “social contracts” with their nations against the illnesses caused by self-oriented bureaucracies, then it is important to appraise what instruments are at our disposal. The parliament is the classical antibiotic, but it is losing effectiveness. For that reason, it is important to enhance the performance of the immunological system with a new, fourth generation of “participatory rights.” McDougal and Reisman argued that

The core demand for the availability of genuine individual participation [in public affairs] may be made comprehensively explicit in an overriding policy of inclusivity.17

NGOs have provided evidence that they are structures capable of increasing political density in societies, fostering the plurality of ideas and debate, exercising oversight and monitoring the bureaucracy. As phrased by Lindahl, “who is affected and what is the problem to be solved are matters of substance that require deliberation, yet deliberation cannot kick off without a prior determination of the members and the problem of the deliberative body.”18 If democratic governance requires continuous improvement, then it is necessary to appraise who is making the decisions, a task that necessarily drives our mind back to bureaucracy and its control.

Individualism is a key element in liberal thought. The more individual freedoms a given regime has, the more liberal it is; the more sovereign the people, the more liberal the State. It follows that liberal individualism is expressed in the realm of law in the form of fundamental freedoms and rights and democratic participation in the decision-making processes of public affairs. Hence, to add a fourth building block to Franck’s “right to democratic governance,” it is necessary to remove “obstructions opposed to the will of the people by outworn institutions,” a measure which necessarily takes into account accepting the fact that new antibiotics must be widely used.

When Franck presented his building-block theory on the right to democratic governance, he focused on democratic elections, which imply choosing hundreds of thousands of peoples’ representatives to the parliaments around the world and, comparably, a handful of Heads of State in presidential republics. But, as is well-known, rule-making is mostly concentrated in the hands of bureaucrats, following that the major condotieri of public affairs do not have, themselves, a democratic pedigree.

If one compares NGOs to bureaucracy, remarkable differences can be observed. Large NGOs, for instance, can reach thousands, even millions, of supporters. These civil society roots imply transparency and accountability, simply because NGOs traditionally depend on private funding. If individuals are not satisfied with the performance of a given NGO, they will not contribute to it or volunteer to participate in its activities, and the entity will suffer. Of course, one can argue that NGOs’ transparency and accountability is not that good and that it demands improvement. Yes, that is right, and, fortunately, such criticism evidences the strength of NGOs: the more an organization represents people, the more it is scrutinized. No one would care about accountability if representativeness were not at stake. These are the two sides of the same coin. This duality is the very reason for NGO criticism to a State’s lack of transparency and accountability, or, in more common words, “democratic deficit.” If States are in charge of delivering “services” to people, they have to be held accountable.

Bureaucracy often claims that NGOs were not elected by the people. In a narrow interpretation of an “election” as a cyclical democratic process where people go to the polls to choose representatives within a set of candidates, this is unequivocally true. But, if one interprets elected as supported by a large group of people, the result is different.

The International Covenant of Civil and Political Rights, for instance, ensured to every citizen, without distinctions of any kind and without unreasonable restrictions, the right and opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives (article 25). If the Covenant ensured the right to direct participation in public affairs, which can be performed by freely chosen representatives, without unreasonable restrictions, then, international law does not impose any limitations whatsoever that such participation be carried out through NGOs.19

Democracy necessarily requires the engagement of several constituencies presenting their opinions and debating the issue at stake. The NGOs’ role is to enhance the debate with different points of view, concerns, and alternative models, qualifying the decision that will be made by the State’s bureaucracy. However, participatory rights are not enough, because NGOs are closer to the people than any State. The improvement of the right to democratic governance requires access to information with the purpose of holding those who have made the decisions or executed them accountable for their performance.

And it is precisely to avoid such accountability that some States’ bureaucracies have taken legislative actions to regulate the nature and scope of NGOs’ activities.

4. Turnstiles: an antidote to antibiotics?

Would it be possible to counter the effects of antibiotics with turnstiles? I doubt any doctor would say so. However, in a legal sphere, that it is exactly what some States’ bureaucracies are trying to do, by enacting measures attempting to limit NGOs’ work. Fortunately, it doesn’t seem like such remedies will succeed as long as democracy is enshrined in the souls and hearts of people.

A brief survey of the legal framework of major Latin America and Caribbean countries will show that freedom of association is guaranteed by the Constitution in Argentina, Brazil, Chile, Colombia, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, San Domingo, Uruguay, and Venezuela. However, the freedom of association is not absolute, because all States can exercise control over the legal entities and individuals that are within their boundaries, appraising to what extent they are complying with the Law.

One must understand such control as necessary. As a result of the 11 September attacks, certain malfeasance practices came to light, in which charitable fundraising and institutions had been used as coverage for financing terrorism, which included shelter to terrorists, logistical support, and illicit weapons. Those circumstances led the OECD Financial Action Task Force on Money Laundering (FATF-GAFI) to study and propose international best practices to combat the abuse of non-profit organizations, focusing on their financial transparency, programmatic verification, administration, oversight bodies, and sanctions.20

However, considering that Latin American bureaucratic culture and overwhelming structures can prolifically enact an extensive net of often dubious norms, capable of entangling even the most organized and serious entity, NGOs can easily be declared non-compliant entities and, therefore, submitted to heavy penalties and administrative measures, including the suspension of their operations.

An example of what may become an insidious trap is the widely observed periodic renewal of accreditation before public bodies, often a prerequisite for tax exemptions. Once the NGO fails to renew its accreditation, its tax benefit is cancelled and past taxes become due immediately, with heavy penalties. A similar practice can be observed with regards to international NGOs, which in the eyes of old-fashioned leftist governmental officials also carry the burden of being instruments of foreign interference in the country’s internal affairs (see, for example, the triennial renewal in Bolivia and Ecuador).

Hence, if one acknowledges that either NGOs or terrorist groups have roots in civil society and, also, in their supporters’ dissatisfaction with the world’s current state of affairs and/or government strategies to deal with them, it is therefore important to implement a set of rules and procedures capable of enhancing civil participation in policy decision-making processes in order to address the manifold issues at stake and counterbalance the appealing “The end justifies the means!” call of certain groups before the deafness (disdain?) of States.

5. A wise treatment: democratic control

Some Latin American countries have understood the contemporary challenge and enacted new legislation focused either on democratic control and access to policy making in a clear attempt to compromise all needs at stake. This was the case of Colombia21 in 2001, Mexico22 in 2000, and Brazil in 1999.

Brazil, after a comprehensive survey on the shortcomings of the legislation concerning NGOs involved in broad consultation with civil society, enacted a law qualifying NGOs as Public Interest Civil Society Organizations (commonly known by the Portuguese acronym OSCIP).

According to the law, the qualification will be given to private law, nonprofit legal entities whose purposes comprehend public interest objectives such as social welfare, culture, education, health, environmental protection, economic, and social development, human rights, peace, and democracy, provided that the considered entity’s statutes and bylaws have clear rules with regard to

1. The observance of the principles of legality, impersonality, morality, public disclosure, economy, and efficiency;
2. The adoption of managerial practices necessary and sufficient to prevent individuals or groups that participate in the respective decision-making processes from obtaining benefits or personal advantages;
3. The establishment of an Audit Committee or equivalent body with the power to comment on financial and accounting activity reports and on operations carried out with an organization’s assets, including the power to submit written and oral opinions to the higher bodies in the organization;
4. The provision that, in the event that the organization is dissolved, its net assets be transferred to another legal entity holding the status described in the Law;
5. The provision that, in the event that the legal entity loses its status, as established by the Law, the assets acquired with public resources during the period in which said status was in effect be transferred to another legal entity holding the status described in the Law;
6. The possibility of establishing remuneration for officers who effectively manage the entity and for those persons who provide specific services to it, provided that in both cases the said remuneration be limited to the market rate in the entity’s respective region and operational area;
7. Publicly disseminating, by any efficient means, a report of the organization’s activities and its financial statements, including certification of no outstanding social security debts, at the end of each fiscal year, to be available for examination by any citizen;
8. Conducting an audit by outside, independent auditors, in those situations where public resources funded the activities of the organization.

Also according to the law, the qualification may be lost following a request for or the decision of an administrative or judicial proceeding, originating either from a popular initiative or with the Public Attorney, with the right to ample defense ensured. If solid indications of misuse of public resources or assets arise, the Public Attorney and the Federal Solicitor General’s Office may act and request a court order to freeze the assets of the entity as well as those of its officers and any public agents or third parties who may have illegally enriched themselves or otherwise harmed the public treasury.

The OSCIP law, briefly outlined above, together with the quoted Colombian and Mexican initiatives, provide evidence that there is plenty of room for improvement in the legal framework of Latin America and the Caribbean in circumstances that can address either the need for public scrutiny of NGOs or the right to public participation, through NGOs, in the conduct of public affairs, holding bureaucracy accountable for their acts in the eyes of civil society and enforcing the entitlement to democratic governance beyond the fallacious social speech of Bolivarianism.

It is always worth remembering that democratic governments represent civil society but cannot be regarded as its substitute, because the principles enshrined in the UN Charter admitted pluralism beyond States, through non-governmental organizations. Any attempt to silence NGOs is a threat to civil society and must be fiercely fought, or democracy will be killed.

Notes

1 Eduardo Szazi is Professor of Law, Getulio Vergas Foundation, Brazil.

2 R Jackson, The Global Covenant: Human Conduct in a World of States (OUP, Oxford, 2000), 385.

3 J Locke, Two Treatises of Government, 2nd Treatise, Chapter VIII (Rethinking the Western Tradition series, Yale University Press, New Haven, 2003), 142.

4 T Franck, The Emerging Right to Democratic Governance (1992) AJIL v 86, 50.

5 For a critical commentary on the belief that international NGOs constitute a kind of international civil society, see K Anderson, “The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society” (2000) EJIL v 11 n 1, 91.

6 A remarkable aspect is nonprofit sector employment as a percent of total nonagricultural employment. A research study released in 1998 identified that 12.4% of Dutch employees were working for nonprofit organizations, this being the highest rate among the 22 countries under study. See L Salomon and HK Anheiner, The Emerging Sector Revisited: A Summary (Johns Hopkins Institute for Policy Studies, Baltimore, 1998).

7 The implications of an often witnessed situation—where NGOs start working as “watchdogs” to become “working dogs” under financial agreements—regarding the capacity of NGOs to remain independent from the state, has been addressed at the UK national level. See, D Morris, Charities and the Contract Culture: Partners or Contractors? Law and Practice in Conflict (Charity Law Unit, Liverpool, 1999).

8 In Brazil, for example, several issues such as Health, Education, Environmental Protection, Social Security, Childhood and Elderly Protection, and Tourism have their decision-making, monitoring, and implementation processes executed through thematic councils maintaining equal representation of State and civil society.

9 A Clayton (ed.), Governance, Democracy and Conditionality: What role for NGOs? (Intrac, Oxford, 1994), 117.

10 How could such a bureaucratic stronghold fall without a single shot having been fired? The answer is simple: democracy.

11 M Weber, The Theory of Social and Economic Organization (The Free Press, New York, 1964), 337.

12 H Arendt, Eichmann in Jerusalem: a Report on the Banality of Evil (Penguin, New York, 1992).

13 These practices vary from State to State and comprise, for instance, the Executive budget’s control by the Parliament, External Oversight governmental bodies and the publication of budget and execution reports in official gazettes or their posting on the internet, just to name a few. The problem with all these mechanisms is their emphasis on cash (which definitely is important) and their frequent incapacity to ensure that, albeit expended according to the norms, these resources have been used in order to effectively fulfill the covenant.

14 J A Schumpeter, Capitalism, Socialism and Democracy (Harper, New York, 1975), 236.

15 R Jackson, The Global Covenant: Human Conduct in a World of States (OUP, Oxford, 2000), 340.

16 J A Schumpeter, Capitalism, Socialism and Democracy (n 13), 242.

17 MS McDougal and WM Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective (Foundation Press, New York, 1981), 201.

18 H Lindahl, “Sovereignty and Representation in the European Union” in N Walker (ed.) Sovereignty in Transition (Hart, Oxford, 2003), 93.

19 Along the same lines of our claim, see J Crawford, “Democracy and the Body of International Law, in GH Fox and BR Roth, Democratic Governance and International Law (CUP, Cambridge, 2000), 91.

20 FATF-GAFI, Combating the Abuse of Non-Profit Organizations: International Best Practices (report) (11 October 2002) <https://www.fatf-gafi.org/dataoecd/39/19/34033761.pdf> accessed 21 August 2009.

21 Law 720, of 29 December 2001, addressing the involvement of citizens in public affairs through voluntary work (Ley por medio de la cual se reconoce, promueve y regula la acción voluntaria de los ciudadanos colombianos).

22 Law of 23 May 2000, addressing the fostering of social development activities of civil society organizations (LEY DE FOMENTO A LAS ACTIVIDADES DE DESARROLLO SOCIAL DE LAS ORGANIZACIONES CIVILES PARA EL DISTRITO FEDERAL).