Chicago Journal of International Law


Those who resist the assertion of NGO power are perhaps most resistant to their participation in formal international decisionmaking. That seems to me exactly the wrong answer to the NGO challenge. Wherever power is exercised, questions of accountability are appropriately posed. One can never assume that power will be deployed in a responsible manner; indeed, where power-shifts have not yet been reflected in the decisionmaking architecture, one can assume the opportunity for abuse. NGOs now garner power independent of states and other entities; international law and international institutions, however, are still largely premised on a world in which states have the last word. Some who question NGO legitimacy would simply wish a return to the old world in which states aggregately held most associational power. That would, indeed, take care of the issue of NGO accountability. But that seems an unrealistic response. Insofar as NGO power is beyond the control of states and their intergovernmental creatures, it cannot be reversed by the policymakers. Rather, in what might be called the inclusion paradox, the accountability challenge may be better answered by formally and fully recognizing NGO power in international institutional architectures. Formal NGO participation in international decisionmaking would have the effect of outing NGO power and advancing a transparency objective. It would also hold NGOs, as repeat players, accountable to institutional bargains. NGOs now participate in international negotiations in hallways or through state surrogates. But because their participation is informal, they are free subsequently to reject results not to their liking. That threatens to keep the international lawmaking process unstable at a crucial juncture in its evolution.