Evaluating Transnational NGOs: Legitimacy, Accountability, Representation

Evaluating Transnational NGOs

Also by Jens Steffek EMBEDDED LIBERALISM AND ITS CRITICS: Justifying Global Governance in the American Century LEGITIMACY IN AN AGE OF GLOBAL POLITICS (edited with Achim Hurrelmann and Steffen Schneider) CIVIL SOCIETY PARTICIPATION IN EUROPEAN AND GLOBAL GOVERNANCE: A Cure for the Democratic Deficit? (edited with Claudia Kissling and Patrizia Nanz)

Evaluating Transnational NGOs Legitimacy, Accountability, Representation Edited by

Jens Steffek Professor, Technische Universität Darmstadt, Germany and

Kristina Hahn Senior Research Fellow, Research Centre ‘Transformations of the State’, University of Bremen, Germany

Introduction, selection and editorial matter © Jens Steffek and Kristina Hahn 2010 Individual chapters © contributors 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2010 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–22871–9

hardback

This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Evaluating transnational NGOs : legitimacy, accountability, representation / edited by Jens Steffek, Kristina Hahn. p. cm. Includes bibliographical references and index. ISBN 978–0–230–22871–9 (hardback) 1. Non-governmental organizations. 2. International agencies. I. Steffek, Jens. II. Hahn, Kristina, 1975– JZ4841.E93 2010 341.2—dc22 2009048540 10 9 8 7 6 5 4 3 2 1 19 18 17 16 15 14 13 12 11 10 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents List of Figures

vii

List of Tables

viii

Acknowledgements

ix

Notes on Contributors

x

List of Abbreviations

xii

1 Introduction: Transnational NGOs and Legitimacy, Accountability, Representation Jens Steffek and Kristina Hahn

1

Part I NGO Legitimacy 2 The Debate on NGOs’ Legitimacy: What Can We Learn from the Classics? Lutz Schrader and Tobias Denskus

29

3 Legitimating INGO Advocacy: The Case of Internal Democracies Darren Halpin and Peter McLaverty

55

4 The Link between Standard-Setting NGOs’ Legitimacy and Effectiveness: An Exploration of Social Mechanisms Marianne Beisheim and Klaus Dingwerth

74

5 Assessing the Democratic Legitimacy of Transnational CSOs: Five Criteria Jens Steffek, Ralf Bendrath, Simon Dalferth, Kristina Hahn, Martina Piewitt and Meike Rodekamp

100

Part II NGO Accountability 6 These Pages Have Been Regulated for You: Issues Arising from the Governance of Markets by NGOs Jem Bendell, Phyllida Jay and Mark Bendell 7 Accountability 2.0 – In Search for a New Approach to International Non-Governmental Organisations’ Accountability Marek Havrda and Petr Kutílek v

129

157

vi Contents

Part III

Representation through NGOs?

8 Representing the People? NGOs in International Negotiations Tanja Brühl

181

9 Regulating NGO Participation in the EU; a De-Facto Accreditation System Built on ‘Representativeness’? Justin Greenwood

200

10 NGOs’ Power of Advocacy: The Construction of Identities in UN Counter-Human Trafficking Policies Kristina Hahn

220

Part IV Conclusions 11 Evaluating NGOs: A Practitioner’s Perspective Regula Heggli

245

12 Evaluating NGOs: Prospects for Academic Analysis Jens Steffek and Kristina Hahn

257

Index

265

List of Figures 4.1

From procedural legitimacy to effectiveness

5.1

CSOs as transmission belt between IOs, a global citizenry and the public sphere

103

Five elements of CSO legitimacy

117

5.2

vii

78

List of Tables 3.1 Legitimating advocacy

63

3.2 What would be gained/lost by exclusion of undemocratic INGOs?

69

4.1 Mechanisms that link legitimacy and success of private governance

79

4.2 GRI reports and adherence level by participation level

87

10.1 Typology – NGOs speaking as advocates for others

223

11.1 Features of representation and solidarity groups as distinguished by Halpin and McLaverty (Chapter 3)

254

viii

Acknowledgements The idea of publishing this volume originated at an expert workshop on the ‘Legitimacy and Accountability of NGOs in International Governance’ that we organised at the University of Bremen in October 2007. Our initial plan was to just bring together practitioners and academics from a variety of disciplinary backgrounds for discussion, and not to publish the papers tabled at that meeting. In our debate over the intertwined problems of NGO legitimacy, accountability and representation we realised, however, that a good overview volume on these issues was missing from the literature, and we embarked on this book project. In the end, not all participants of the Bremen workshop were able to contribute to this volume. We therefore wish to express our gratitude to the participants who are not represented here by their own contributions but who shared their ideas and experience with us: Anne Bichsel, Vivienne Collingwood, Wolfgang van den Daele, Marcia Grimes, Thorsten Hüller, Claudia Kissling, Beate Kohler and Johannes Moes. We also wish to thank our student assistants Sven Böhling and Clemens Haug for their invaluable help in preparing the workshop, and the Bremen International Graduate School of Social Sciences (BIGSSS) for providing the infrastructure for the event. We are also indebted to an anonymous reviewer for constructive advice on the book proposal. Viktoria Zipper has helped us greatly in preparing the final manuscript. The publication of this volume is part of our ongoing research project on ‘Legitimation and Participation in International Organisations’ at the Collaborative Research Centre ‘Transformations of the State’ at the University of Bremen. This centre is generously funded by the Deutsche Forschungsgemeinschaft (German Research Foundation) whose financial support is gratefully acknowledged. Bremen, August 2009 Jens Steffek and Kristina Hahn

ix

Notes on Contributors Marianne Beisheim is Assistant Professor at the Otto-Suhr-Institut für Politikwissenschaft, Freie Universität Berlin. Jem Bendell is Adjunct Associate Professor at Griffith University Business School (Australia) and Visiting Fellow at the UN Research Institute for Social Development. Mark Bendell is Senior Lecturer in the Department of Social and Communication Studies, University of Chester. Ralf Bendrath is Policy Advisor on civil liberties and privacy for a MEP at the European Parliament. Tanja Brühl is Professor of International Relations at the University of Frankfurt a. M. Simon Dalferth is Social Science Advisor for the Eurydice Network in Brussels. Tobias Denskus is a Ph.D. student at the Institute of Development Studies, University of Sussex. Klaus Dingwerth is Assistant Professor of International Relations at the University of Bremen and Associate Fellow with the international Global Governance Project (www.glogov.org). Justin Greenwood is Professor of European Public Policy at the Robert Gordon University, Aberdeen (UK) and a visiting professor at the College of Europe. Kristina Hahn is Senior Research Fellow at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Darren Halpin is Reader in the Department of Public Policy, Robert Gordon University, Aberdeen (UK). Marek Havrda is the Chairman at INstrategy, a Prague-based NGO, and Acting Director at Respekt Institute, an independent think-tank in the Czech Republic. Regula Heggli was Coordinator of the EU Civil Society Contact Group (www.act4europe.org) from November 2006 to January 2009. x

Notes on Contributors xi

Phyllida Jay is a doctoral candidate at the Department of Anthropology, University College London. Petr Kutilek is Director of Programme Development at the Respekt Institut in Prague, Czech Republic. Peter McLaverty is Reader in the Department of Public Policy, Robert Gordon University, Aberdeen (UK). Martina Piewitt is Research Associate at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Meike Rodekamp is Research Associate at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Lutz Schrader is Senior Research Fellow at the Institute for Peace and Democracy, Open University of Hagen. Jens Steffek is Professor of Transnational Governance at Technische Universität Darmstadt, Germany.

List of Abbreviations AAMA

American Apparel Manufacturers Association

AEI

American Enterprise Institute

AI

Amnesty International

CATW

Coalition Against Trafficking in Women

CCC

Clean Clothes Campaign

CEDAW

Convention on the Elimination of all Forms of Discrimination Against Women

CERES

Coalition for Environmentally Responsible Economies

CONCORD

European NGO Confederation for Relief and Development

CONECCS

Consultation, the European Commission and Civil Society (EU)

CSO

Civil Society Organisation

CSR

Corporate Social Responsibility

DG

Directorate General (European Commission)

ECAS

European Citizen Action Service

ECOSOC

Economic and Social Council (UN)

EEB

European Environmental Bureau

ETI

European Transparency Initiative

ETSI

European Telecommunications Standards Institute

EU

European Union

FAO

Food and Agriculture Organisation of the United Nations

FSC

Forest Stewardship Council

GAATW

Global Alliance Against Traffic in Women

GATS

General Agreement of Trade in Services (WTO)

GMIES

Salvadoran Independent Monitoring Group

GPPI

Global Public Policy Institute

GRI

Global Reporting Initiative xii

List of Abbreviations xiii

HRC

Human Rights Caucus

IASC

International Accounting Standards Committee

IASB

International Accounting Standards Board

ICANN

Internet Corporation for Assigned Names and Numbers

ICC

International Chamber of Commerce International Criminal Court

ICFTU

International Confederation of Free Trade Unions

ICPR

International Committee for Prostitutes’ Rights

IFOAM

International Federation of Organic Agricultural Movements

IFRC

International Federation or Red Cross and Red Crescent Societies

IGO

International Governmental Organisation

IHRN

International Human Rights Network

IMF

International Monetary Fund

INGO

International Non-Governmental Organisation

IO

International Organisation

IR

International Relations

ISEAL

International Social and Ethical Accreditation and Labelling

ISO

International Organisation for Standardisation

MSC

Marine Stewardship Council

MWG

Measurement Working Group (GRI)

NCVO

National Council for Voluntary Organisations (UK)

NGLS

Non-Governmental Liaison Service (UN)

NGO

Non-Governmental Organisation

NSWP

Network of Sex Work Projects

OECD

Organisation for Economic Co-Operation and Development

OI

Oxfam International

OS

Organisational Stakeholders (GRI)

PCNC

Philippine Council for NGO Certification

Res.

Resolution

xiv List of Abbreviations

SAI

Social Accountability International

SFPs

Structured Feedback Processes (GRI)

TBT

Technical Barriers to Trade

UK

United Kingdom

UN

United Nations

UNEP

United Nations Environment Programme

UNESCO

United Nations Educational, Scientific and Cultural Organisation

US

United States of America

WPG

White Paper on Governance (EU)

WRAP

Worldwide Responsible Accredited Production

WTO

World Trade Organisation

WWF

World Wide Fund For Nature

1 Introduction: Transnational NGOs and Legitimacy, Accountability, Representation Jens Steffek and Kristina Hahn

As non-governmental organisations (NGOs)1 are playing an increasingly important role in international governance, their legitimacy and accountability have become issues of concern to academic researchers, public commentators and activists alike. While early academic studies on the influence of NGOs in world politics saw them as being – at least on some issues – ‘the conscience of the world’ (Willets, 1996, p. 11), attitudes towards these organisations have become much more sceptical. Some empirical examples may illustrate this trend. In 2007, six collaborators of the French humanitarian NGO ‘L’Arche de Zoé’ were arrested in Chad as they were about to put 103 children on a flight to France. They were charged with child abduction and sentenced to eight years hard labour by a Chadian court for the attempted airlift. Following intense diplomatic interaction with France, the President of Chad pardoned them in 2008. The NGO staff argued that the children they were attempting to ‘rescue’ were from the war-torn Darfur region in Sudan, and that they were orphans. However, officials of international aid organisations who investigated the case found most of the children to be Chadian and to have at least one living parent. The French government and other humanitarian NGOs publicly criticised the action by ‘L’Arche de Zoé’ as illegal, irresponsible and amateurish. NGO scandals have, however, not only involved small and dubious organisations such as ‘L’Arche de Zoé’. Some of the highly professionalised transnational NGO giants have also received harsh public criticism for their behaviour. The ‘Brent Spar’ affair is one infamous case that revolved around a disused oil storage platform that the multinational company Shell intended to sink in the North Atlantic in 1995. Greenpeace launched a major campaign against the disposal of the floating storage buoy, citing enormous amounts of toxic residues in its 1

2 Introduction

tanks. It later had to admit, however, that it had grossly exaggerated the amount of pollutants left in Brent Spar, while the data furnished by Shell were by and large accurate. Although the campaign was a political success in that the sinking of oil platforms and storages buoys was stopped in the North Atlantic region, the affair was a severe setback for Greenpeace, both in terms of lost reputation and donations. Transnational NGOs thrive on their noble goals and incorruptible expertise. That reputation is put at risk by public reports of misdemeanours and failure to live up to the high moral standards that they propagate. Over the last few years, many NGOs have become aware of these challenges and have reacted accordingly, formulating codes of conduct or best practice. In June 2006, for example, 11 globally active NGOs launched a joint accountability charter.2 NGOs that subscribe to the charter commit themselves to following principles such as independence from specific governments and the business sector, nondiscrimination, responsible advocacy, good governance, and transparency. Among the signatories are a number of well-known transnational NGOs, such as Oxfam, Amnesty International, and Greenpeace. Moreover, demands with regard to NGO accountability and conformity with certain standards are also formulated by public international organisations (IOs). NGOs that wish to obtain consultative status at the United Nations Economic and Social Council (ECOSOC) and gain privileged access to UN forums and conferences, for example, need to respect the principles laid down in ECOSOC Resolution 1996/31. It requires from NGOs inter alia to be representative of their members, to have democratic and transparent decision-making processes, and to be politically independent. In 2006, the non-governmental liaison service (NGLS) of the UN issued the report ‘Debating INGO Accountability’ that also focused explicitly on the democratic aspects of NGO accountability (Bendell, 2006). The empirical trend towards heightened normative standards is mirrored in the academic literature on NGOs where critical voices are getting louder. While some authors still see NGOs as legitimised by their mission and their achievements, others question their ‘representativeness’, the democratic quality of their internal procedures, and their external accountability (for overviews, see Collingwood and Logister, 2005; Charnovitz, 2006). The conditions under which NGOs can contribute to more legitimate governance on a global scale and the requirements they would have to fulfil in order to do so have been subjects of debate (Scholte, 2007; Nanz and Steffek, 2005). Some scholars contend, however, that the ‘unelected guardians of the global public good’ cannot

Jens Steffek and Kristina Hahn 3

conform to these high expectations (Florini, 2004). Others even argue that normative concepts such as internal democracy should not be criteria for judging the legitimacy of NGOs (Goodin, 2003). Another strand of critical literature looks at the service-delivery and implementation function of NGOs, especially in the North-South context. Scholars have flagged enormous North-South imbalances in NGO activity and questioned the role of transnational NGOs as ‘spokespersons’ of civil society and individuals in developing countries (for example, Edwards, 2000; Nelson, 2002; Hudson, 2000; Fisher, 1997). Against this backdrop the present book aims to provide a broad overview of the state of the art on the evaluation of transnational NGOs, from an academic as well as a practitioner’s perspective. We focus on three cornerstones of the current debate, namely the three key concepts of legitimacy, accountability and representation. The questions to be discussed in this volume are the following: What exactly do the terms legitimacy, accountability and representation mean in the context of transnational NGOs? Why exactly, and for what activities, do NGOs need legitimation? To whom should NGOs be accountable? And should we really expect NGOs to represent a clearly defined constituency? None of the three normative concepts that structure this volume is uncontested in the academic literature, but the degree of fuzziness surrounding them varies, with legitimacy probably being the most ambiguous and ill-defined of the three. As we will point out in the next section of this introductory chapter, the three theoretical concepts are also intimately related, in particular when it comes to the analysis and evaluation of vertical relations between an organisation that claims to act in the name or on behalf of somebody, and its societal constituency. We contend that many contemporary debates on transnational NGOs that come under any of the three headings in essence centre on the possibilities of monitoring and sanctioning powerful organisations ‘from below’. Depending on context, those ‘below’ might be called members, supporters, beneficiaries, stakeholders, affected persons, citizens, or the wider public. Echoing an old theme from political theory, these debates raise the twin issues of how the exercise of power might be justified and how power can be kept in check effectively. But how much power do NGOs really have? And what kind of power is it? Some scholars argue that NGOs lack the power to take authoritative decisions and, hence, they do not need to be democratically accountable, legitimate, or representative. These scholars set forth the argument that ‘as long as private actors do not decide authoritatively on public policy, they neither have to have a democratic structure nor

4 Introduction

do they have to be elected by (sectoral) demoi’ (Brühl, 2002, p. 378, referring to Beisheim, 1997). However, in the literature we also often find the assertion that NGOs exert considerable power, mostly in a more indirect way. Some scholars even speak about a ‘power shift’ between states and NGOs (Mathews, 1997). As there seems to be some disagreement over the very nature of ‘NGO power’ we need to have a closer look at the possible meanings that the concept unfolds with regard to NGOs and their specific modes of action. We may distinguish between ‘direct power’ that one person exerts over another and more diffuse power relations (see Barnett and Duvall, 2005), or between different ‘faces’ of power as – most famously – Steven Lukes has done (Lukes, 1974; see also Digeser, 1992). Lukes refers to Robert Dahl’s concept of power as a ‘first face’. According to Dahl, power means that ‘A has power over B to the extent that he can get B to do something that B would not otherwise do’ (Dahl, 1957, cited in Bell et al., 1969, p. 80). Dahl concentrates on the behaviour of individuals in decision-making processes. The notions of ‘power’ and ‘influence’ are used almost interchangeably here. Dahl sees power/influence at work, if people are able to ‘get their positions through’ in conflicts of interest. In this context, the questions of NGO participation rights and their possibilities to gain access to international decision-making processes are important. For example, by the 1990s, NGOs had secured access to virtually all UN conferences and committees (Sankey, 1996, p. 271). By now we can observe that NGOs are increasingly involved in decisionmaking processes in almost all international organisations (for an overview see Steffek and Nanz, 2008). Compared with what ordinary citizens could do, NGOs have privileged access to international policy processes, even if they do not enjoy voting rights, and their influence may be based on informal lobbying techniques. NGOs get accustomed to the rules of international organisations, and IO staff rely on the collaboration and expertise of NGOs, a process that one may describe as ‘institutionalization’ (Martens, 2005). Furthermore, there is the phenomenon that some have come to call the ‘new transnationalism’ (Dingwerth, 2007). The term refers to the fact that private actors are increasingly setting transnational standards (see Beisheim and Dingwerth; Bendell et al. in this volume). Although the resultant norms and technical prescriptions are usually not legally binding they may become authoritative as public bodies and intergovernmental organisations apply or endorse them. Nevertheless, when compared to states, the direct decision-making power of NGOs still seems to be limited. But, as Lukes explained, a concept focusing on a ‘direct’ exercise of power in decision-making

Jens Steffek and Kristina Hahn 5

processes represents only its ‘first face’ and may be too limited. Bachrach and Baratz state that it is not only revealed policy preferences in decision-making processes that should be taken into account in an analysis of power, but also what they call ‘non-decisions’ (Bachrach and Baratz, 1970). For them, one major exercise of power is to prevent issues from being set on the political agenda. Here, the concept of power shifts from the level of power between individuals and is extended towards the power that is inherent in social institutions. Their ‘second face of power’ perspective sheds light on interesting and so far under-researched aspects of NGO power. In a seminal study, Bob, for instance, analysed how local social movements attract the support of professional Northern advocacy NGOs (Bob, 2005). He showed that transnational NGOs choose the ‘clients’ for their advocacy with a view to the marketability of their cause. As transnational NGOs are ‘agendasetters’ in international politics (see, for example, Keck and Sikkink, 1999) it is important to acknowledge that they have quite some leeway in deciding which and whose concerns they are advocating, and hence are also involved in keeping issues off the international agenda. NGOs’ increasing involvement in standard setting procedures (see above) might be another important aspect in this context since certain standards prevent issues from even being negotiated. But moving on and enlarging the concept of power from the ‘first face of power’-view, Bachrach’s and Baratz’s critique of Dahl’s concept is made even more compelling by Lukes, who suggested there was yet another (third) face of power that had to be discovered. He not only focuses on overt conflicts of interests (first face), or non-decisions and covert conflicts (second face), but also critically investigates how grievances come about. For Lukes, the most important effect of power in society is the way in which people are prevented from recognising what their ‘real interests’ are, and accept the existing order of things. There is a parallel here to the work of Nye who introduced the concept of soft power which is nowadays commonly used with regard to NGOs (see, for example, Sikkink et al., 2002; Florini, 2000). For Nye, ‘soft power’ is the power to persuade and attract others – as opposed to ‘hard power’, based on coercive capacities and material resources (Nye, 1990; for soft power and NGOs, see Nye, 2004). NGOs are often said to exert or dispose of ‘soft power’, because they convince others with arguments and information. NGOs ‘frame’ issues; this term refers to ‘conscious strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action’ (McAdam et al., 1996, p. 6, cited in Keck and Sikkink, 1999, p. 90).

6 Introduction

As part of broader transnational advocacy coalitions, NGOs persuade and socialise other actors (Keck and Sikkink, 1998, p. 16). Despite some differences, the concept of ‘soft power’ and Luke’s ‘third face’ similarly focus on the power exerted over others’ interests and preferences, and not just over their behaviour.3 Seen from a third-face-of-power perspective, NGOs seem to be power ful, at least in certain regards, because they can change others’ perceptions of the world and perceptions of their own interests through persuasion. Pushing this even further, Digeser complemented the three faces of power mentioned so far with the post-structuralist concept of Michel Foucault (Digeser, 1992). By highlighting the power inherent in discourse and language, Foucault adds new aspects to a comprehensive understanding of power. According to Foucault, discourses decide what is ‘right’ and ‘wrong’. But this is not their main function, as he makes clear in his writings on productive power (Foucault, 1976; 1977). Discourses produce the issues which are talked about, as well as the subjects and their identities. Foucault shows in his studies how certain categories evolve, and how people start to understand themselves, and be understood by others, as being ‘different’. For instance, the homosexual is produced as a subject through the discourse on homosexuality; and the sick person is defined in his or her opposition to the healthy. This is implied by Foucault’s concept of ‘subjectivation’ which refers to the production of a person’s identity: people are categorised according to identities which are attached to them (Foucault, 1982). Following Foucault’s lead, one could argue that NGOs are ‘powerful’ also in a fourth dimension. NGOs engage in the discursive production of identities, for example of their ‘clients’. This can be analysed as an instance of a fourth face of power, involving diffuse and indirect power effects (see Hahn in this volume). When looking at the different dimensions of power together, it appears that NGOs can indeed be powerful in many regards, even if much of their social power may be found in diffuse (discursive) processes. Given the link between power and the need for legitimacy mentioned above, this is an argument for at least not excluding the possibility a priori that NGOs should conform to standards with regard to their legitimacy, accountability and representation (even if these might not be the same as those that apply to states). It also makes us wonder whether it is really feasible to retreat to the position that NGOs do not need to face questions of legitimacy at all because what they do is covered entirely by their right to free speech (Bob, 2007). In the three sections that follow we will take issue with each of these three

Jens Steffek and Kristina Hahn 7

normative concepts. We briefly sketch out the general theoretical debates over these concepts, and the way they are applied to the particular empirical context of transnational NGOs. Our discussion starts with the broadest and most encompassing of the three concepts: legitimacy.

Legitimacy The problem of legitimacy, some have argued, is nothing less than the master question of political research (Crick, 1959, p. 150). At the same time, legitimacy is such a multifaceted and fuzzy concept that others doubt whether it should be used at all in academic research (O’Kane, 1993). There is no room in this introductory chapter for a thorough review of the extensive theoretical and conceptual literature on legitimacy and its usages in empirical research (but see Hurrelmann et al., 2007). Nevertheless, some explanatory remarks are in order. First of all, we should recall that in the social sciences the term legitimacy is used both in a normative and an empirical sense (Beetham, 1991). In the normative sense, legitimacy refers to the conditions under which power is rightfully exercised. It is hence the scholar’s yardstick for measuring real-world phenomena against theory-guided expectations. In a purely empirical sense, by contrast, legitimacy refers to the conditions under which persons or institutions in power manage to gain acceptance and support from the people they rule over. Legitimacy in this sense is a concept that captures the beliefs of people and the actions motivated by those beliefs. Since some normative concepts extensively discussed by theorists also inform the judgments of citizens (democracy, for example), the two notions of legitimacy are obviously related. Legitimation is a term that denotes the activity of making a social institution appear to be legitimate. Legitimation often takes place through discourses (Steffek, 2003), but also through symbolic practices (Barker, 2001). Compared to the concepts of accountability and representation that also figure prominently in this book, legitimacy is the broadest and most malleable one. Quite obviously, the normative standards for assessing the legitimacy of government have changed remarkably over time. In the feudal age, legitimacy considerations revolved mainly around the descent of the monarch. In democratic times, the legitimacy of a government is determined by the correct procedures of election or appointment. Empirically, there are also many different grounds for the ascription of legitimacy to governing institutions. Citizens evaluating

8 Introduction

the legitimacy of a government may not only refer to procedures of election and decision-making but also to the concrete results that governing institutions produce. Contemporary political scientists tend to call the latter ‘output-legitimacy’, as opposed to the ‘input-legitimacy’ created by citizen participation and democratic procedure (Scharpf, 1999). It is quite likely that, empirically, both input and output criteria come into play when people assess governing institutions, or the conduct of persons in power. How does legitimacy relate to accountability? Accountability is narrower in scope than legitimacy and a somewhat more technical concept, in the sense that it is often regarded as a matter of appropriate institutional engineering (Ebrahim and Weisband, 2007, pp. 15 et seq.). This is not to suggest that there is consensus on what accountability means in theory and what it requires in practice. As we will see below, there is in fact an extensive theoretical debate on the nature and dimensions of accountability. Generally speaking, accountability refers to a process in which power-holders are required to explain and justify their conduct towards an audience who can pose questions and who have the ability to impose some form of sanction (Bovens, 2007). In the traditional publicpolitical context, accountability has been conceptualised as a relationship between elected politicians and appointed public officials on the one side, and citizens on the other (Dowdle, 2006, p. 3). This idea now brings us to the third concept: representation. In the political sense of the term, representation refers to the interrelationship between one person standing for a larger group of people whose members confer rights and obligations to him or her. Representation hence seems to be the most unambiguous of the three concepts and under certain conditions may be instrumental to both legitimacy and accountability. The three concepts in fact converge in a notion of parliamentary democracy, which stipulates that government is legitimate when it is accountable to freely chosen representatives of the citizenry. Representation in this context is key to electoral accountability and a cornerstone of democratic legitimacy. To summarise, legitimacy certainly is the most vague and ambiguous of the three interrelated normative concepts that structure this volume, and the most encompassing one. The notion of organisational legitimacy (i.e. the legitimacy of an organisation) can provide a conceptual umbrella under which accountability and representation may be subsumed. It is quite clear that accountability and representation are necessary elements, or at least important aspects, of organisational legitimacy, and it makes little sense to argue the reverse, that is, that legitimacy is an aspect of either accountability or representation.4

Jens Steffek and Kristina Hahn 9

Traditionally, the concept of legitimacy was mainly used in the context of state power, most notably when discussing the legitimacy of government (Barker, 1990). The same is true for notions of representation or representativity but not, as we will see below, for accountability. In recent years, however, legitimacy has also been used increasingly as a category for evaluating the internal structures and conduct of non-state actors, such as NGOs, and also firms. The reference to legitimacy in the context of private actors is not really new, however. In his seminal work already mentioned above, Max Weber, the founding father of the empirical approach to legitimacy, referred to many kinds of relationships of power and subordination under this heading, both in the public and private spheres (Weber, 1978, p. 213). In their contribution to this volume, Lutz Schrader and Tobias Denskus, taking Weber as their starting point, scrutinise some of the major scholarly traditions of thinking about legitimacy in order to filter out the implications for the legitimacy of NGOs. This return to the classics is particularly timely as the transnationalisation of governance has already called traditional understandings of politics into question. Despite the fact that democracy is, as they have it, the last ‘great political narrative’, it is very uncertain what democracy should mean in a denationalised, globalised world where political decisions are made at many different levels and in many different settings. They analyse Weber’s classic work on legitimacy in the modern bureaucratic state, moving on to Luhmann’s theory of legitimation as process and Habermas’s account of political legitimacy arising from communication, to Foucault’s analysis of domination and governability. None of these modern sociological and philosophical classics was centrally concerned with the question of NGO legitimacy. Yet all, as Schrader and Denskus show, can offer some interesting insights by directing our attention to the specific role that NGOs and other civil society actors play in the respective models of state and society. Given the different traditions of thinking about NGOs and their role in the political process, it is not so surprising to find that in the specialised literature on NGOs there is also no gold standard of legitimacy that authors converge upon. What is generally agreed is that the concept of legitimacy ‘cuts to the heart of ethical and legal questions about the proper role of NGOs at the international level, and how they should act’ (Collingwood and Logister, 2005, p. 178). In principle, organisational legitimacy can refer to the evaluation of almost all aspects of what an NGO is and does. We do not endeavour to suggest a neat definition of NGO legitimacy in this introductory chapter, but we contend that there

10

Introduction

are three types of issues that can structure an overview of the current debate. Slightly modifying the typology suggested by Collingwood and Logister (2005, p. 189), we distinguish the following potential sources of NGO legitimacy: the goals and principles of NGOs; their societal constituency and its involvement in decision-making; their policies and the effects that these policies have on others. Communication about these sources of legitimacy would of course in many cases be critical, rather than affirmative. Debates over goals and principles focus on the political mission that NGOs have and the values that underpin their work. Some authors see the legitimacy of NGOs as being derived primarily from the noble, altruistic, progressive goals they pursue, or the contribution they make to the common good (Charnovitz, 2006, p. 40; Risse, 2006). In such a view, it is first of all the purpose that legitimates the activity of an organisation. This debate about the legitimating function of goals and principles also extends to some definitional issues pertaining to the nature of transnational NGOs as social actors. A number of authors have conceptualised NGOs as an emancipatory and democratising force in world politics, and a counterweight to state power (van Rooy, 2004; Wapner, 1995). Starting from this presumption there is little reason to worry about the legitimacy of NGOs. Authors working in the Marxist tradition, by contrast, view NGOs as part of the ‘extended state’ (Hirsch, 2003). From such a perspective ‘NGOs contribute to the construction of the internationalised state by helping to build up the internationalised imperialist state network’ (Demirovic, 2003, p. 233). Other critics see transnational NGOs as partners rather than rivals of states when they contribute to global governance activities or create political spaces that make governing the globe possible (Bartelson, 2006; Lipschutz, 2005; Sending and Neumann, 2006). From such a critical perspective, stated noble goals and principles will definitely not suffice to legitimate the activities of NGOs. And even if one accepts that the majority of transnational NGOs are made up of well-meaning activists striving for justice, rights and progress, the thorny question of how to deal with ‘bad civil society’ remains (Chambers and Kopstein, 2001). While their absolute numbers may be small, there are transnational groups constituted of religious fundamentalists, racists, neo-Nazis, and supporters of terrorism. Clearly, not all transnational organisations qualifying, technically, as NGOs would be automatically legitimated by their goals and missions. The second major debate focuses on the constituency of NGOs (i.e. the number and geographical distribution of the persons that NGOs can

Jens Steffek and Kristina Hahn 11

claim to represent), and on the way that this constituency is involved in the decision-making process of the organisation. An underlying assumption is that the more members or supporters an NGO enlists, the more legitimate are its political activities. Critics who question the increasingly important role allotted to NGOs by governments and public administration often target the sensitive issue of representativeness. They argue that NGOs only stand for a very small number of people and their often very particular concerns (Anderson, 2000; Anderson and Rieff, 2005). Especially in global settings, inequitable representation becomes an issue because it is criticised that transnational NGOs have a discernable societal basis only in very few, mostly Northern countries. A related strand of discussion focuses on the role that the societal constituency plays in the decision-making process within an NGO. The underlying assumption is that NGOs should base their decisions on the interests and preferences of their members, and to take due account of the views of those people that they claim to work for (Steffek and Nanz, 2008; see also Hahn in this volume). At times this discussion also appears in terms of accountability, as the ‘vertical’ accountability relations between NGOs and their societal membership are at issue here. From this perspective, the legitimacy of NGOs ultimately derives from a faithful representation of the interests and wishes of their societal constituencies and the accountability of the leading personnel towards these constituencies. One of the most contested questions in the current debate is to what extent, if at all, NGOs can attain such forms of internal democratic legitimacy. In their contribution to this volume, Darren Halpin and Peter McLaverty scrutinise precisely this problem. They come to distinguish between NGOs that enfranchise a constituency whose interests are being advocated for (and who therefore practise representation), and those NGOs that seek to practise solidarity. They argue that it would be a mistake to apply the same criteria regarding internal democratic structures to both types of organisations. Only groups that can represent human constituencies should be internally democratic if they are to play a role in the policy process. Solidarity groups, by contrast, would not need to be organised democratically. Halpin and McLaverty conclude that the nature of an NGO should make a major difference with regard to its participation in global politics, notwithstanding the difficulty of empirically drawing a line between the two types of organisations. They argue that it would be unreasonable to expect solidarity groups to be organised democratically and to make their participation in world politics conditional upon it.

12

Introduction

Legitimacy debates centring on policies of NGOs usually scrutinise their behaviour in political advocacy or service provision. Sceptics often point out in this context that NGOs are strategic and essentially selfinterested actors, despite their altruistic aspirations and noble goals. As such they may choose their campaign topics with a view to their marketability rather than based on any ‘meritocracy of suffering’ (Bob, 2005). NGOs may also be found trying to manipulate the perception of their activities, by for instance, overstating their successes and dwarfing their failures. They may do so in order to win public support or to secure new funding from their donors (Cooley and Ron, 2002). Finally, debates over NGO legitimacy may focus on the effects that their actions have for those people they claim to represent, or to work for. Critics have argued that some NGOs hijack the causes of oppressed or marginalised populations to advocate their own goals. As Mallaby (2004) has argued in the case of a dam project in Africa, that in opposing funding of this project through the World Bank, transnational NGOs disregarded the wishes of the local population that favoured the construction of the dam. NGOs dispute this version and this is not the place to decide who is right. The point is simply to illustrate this particular dimension of legitimacy discourse. From this overview of approaches to NGO legitimacy, two types of questions seem to emerge. Firstly, is there a way of formulating a comprehensive theory of NGO legitimacy? And what benchmarks would we use to evaluate it? The chapter by Jens Steffek et al. in this volume tackles these questions. It is an attempt to provide a comprehensive normative yardstick, grounded in democratic theory, to assess the democratic legitimacy of NGOs. In this chapter the authors first of all defend the view that democratic legitimacy is indeed a relevant category for assessing the conduct of NGOs. They start from the assumption that transnational NGOs should function as ‘transmission belts’ between the transnational citizenry and sites of intergovernmental policymaking. This implies, firstly, that NGOs should consult their members, supporters and beneficiaries on policy-relevant decisions and, secondly, that the leadership of an NGO should be accountable to its constituency. The authors suggest a set of five criteria for analysing NGO capacity to function as transmission belts – participation, inclusion, responsiveness, transparency, and independence – and illustrate their synergistic relationship. They also provide a list of indicators to operationalise these criteria in comparative empirical research. The second major question regarding NGO legitimacy targets the connection between the normative and empirical sides of this Janus-faced

Jens Steffek and Kristina Hahn 13

concept. In the literature on NGOs it is often underscored that legitimacy is not only a normative category but also an empirical phenomenon (Risse, 2006). Legitimacy enables NGOs to successfully mobilise membership adherence, funding, and public support, while a lack of perceived legitimacy leads to disinterest or even resistance against their activities. The political influence of NGOs and their capacity to find support hinges to a good deal on an impeccable reputation and consistency between what they practise and what they preach. This seems to be particularly true for advocacy groups covering the moral high ground. ‘If NGOs are to become social actors in a global world, pushing for justice, equity, democracy and accountability, then clearly these characteristics need to be reflected in their own systems and structures’ (Edwards et al., 1999, p. 133). Thus, the normative standards of good governance that NGOs promote may become the yardstick for assessing their own organisational legitimacy. A crucial question in this respect is raised by Marianne Beisheim and Klaus Dingwerth in their chapter. Are NGOs that respect standards of good governance actually performing better than others? In their chapter they explore if procedural legitimacy of NGOs (defined in terms of inclusiveness, transparency, and deliberativeness) matters in terms of political effectiveness. They discuss three social mechanisms that may potentially produce such an effect. Firstly, feelings of ownership may be fostered when an NGO ensures inclusive, fair and representative participation. Secondly, deliberative procedures may contribute to learning and consensus. Transparency and accountability may facilitate control over the organisation and produce trust. The three mechanisms are subjected to a plausibility probe in an illustrative case study of one NGO, the Global Reporting Initiative (GRI). The GRI belongs to a particular category of NGOs known as transnational standard-setting organisations, in which non-state actors define issues, make rules, and monitor compliance with these rules. In the light of our deliberations on NGO power above, these rule-makers would certainly be organisations in need of legitimacy. The results of the case study suggest that while inclusiveness and deliberation are mostly relevant to gaining legitimacy, transparency and accountability are primarily relevant to maintaining legitimacy.

Accountability The history of the English word accountability dates back to the Middle Ages (Thomas, 2003). While for a long time it has been related to financial accounting in the narrow sense, in contemporary usage the

14

Introduction

term describes a social relationship that is characterised by a specific activity, ‘the giving and demanding of reasons for conduct’ (Roberts and Scapens, 1985, p. 447), with a view to sanctioning misconduct (Mulgan, 2000, p. 556). Accountability is a very versatile concept that may be applied to all types of social relationships, in which the ‘giving and demanding of reasons for conduct’ takes place. It is much less tied to the state and the justification of public power than legitimacy. A central and rather uncontroversial distinction has been made between managerial (or corporate) and political (or public) forms of accountability (Sinclair, 1995; Steffek, 2010). Their respective goals are quite different. In the corporate sphere, managers are held accountable chiefly for substantive outcomes in terms of utility. In the public domain, the accountability exercise is conducted with a view to preventing abuses of power by office holders and the citizens’ control of government (Thomas, 1998, p. 349). This traditional understanding of accountability as a technique for monitoring the conduct of decision-makers has been often couched into a principal-agent framework. The agent is entrusted by the principal with certain tasks and responsibilities and in return remains answerable to the principal(s). Accountability in that traditional sense is a technique of detecting and correcting misconduct or inefficiencies. A new generation of work on accountability has contested this technical, mechanistic understanding and sheds light on the complexities of accountability relationships that escape easy categorisation (Ebrahim, 2003). First of all, many social actors, and in particular transnational NGOs, face multiple accountability relationships and competing demands (Bryant, 2007, p. 170). In addition, the idea of principals and agents blurs when activities take place in networks without clear hierarchies and when actors mutually depend on each other (Ebrahim, 2003; Klijn and Skelcher, 2007). Accountability under such circumstances turns into a process of mutual justification rather than hierarchical control. What does this mean for transnational NGOs? First of all, NGOs seem to constitute an interesting hybrid between a private and a public subject of accountability. They are, as Reinalda put it, ‘private in form, public in purpose’ (Reinalda, 2001). This means that their accountability relations will not be confined to their own members and donors, but that the public at large as well as state authorities may also ask critical questions about their performance. In particular when NGOs are operating transnationally they are dealing with multiple constituencies that might have quite different expectations regarding the accountability of the organisation.

Jens Steffek and Kristina Hahn 15

The chapter by Jem Bendell et al. provides a good illustration of the special position of NGOs at the frontier between the public and the private realm, as it concentrates on the role of non-state actors in transnational standard-setting. A case study of the private International Standards Organisation (ISO) reveals how boundaries between public and private authority blur as its standards and procedures for accreditation are incorporated into public national and international law. Additional case studies focus on corporate-dominated standard setting for labour codes in clothing supply chains, and sustainable forest management in relation to the stakeholder model of the Forest Stewardship Council (FSC). The FSC case highlights the limits of stakeholder participation and accountability, in particular with regard to persistent North-South asymmetries. Taken together, these case studies show that NGOs influence and indeed govern economic activities in ways that raise major accountability problems, particularly in terms of the vertical accountability of decision makers to those affected by their decisions. Two possible remedies for this accountability deficit emerge from their discussion: firstly, there is what they call the statist approach that would give governments and intergovernmental organisations of the UN system a stronger oversight role in the transnational development of standards. Alternatively, business and NGOs could develop principles for the setting and implementation of voluntary standards in close cooperation with those affected. The overview of existing accountability problems in the transnational private context brings us to concrete tools and mechanisms of accountability. The toolkit question is indeed one of the major strands of current debate, especially in the more practically oriented literature. In their contribution to this volume, Marek Havrda and Petr Kutílek discuss possible oversight mechanisms for transnational NGOs, in particular for those that provide services. Such mechanisms of monitoring and control should, first of all, prevent leaders from abusing the non-governmental status of the NGO or the organisation from grossly underperforming in delivering services. Discussing the current state of affairs, they discard the idea that public regulation by state authorities could ever lead to effective oversight. They are equally sceptical of existing attempts at self-regulation by NGOs that outline accountability principles without monitoring their implementation. Drawing on experiences from the business world they propose a novel, web-based accountability tool as an alternative. On such an interactive platform, participating NGOs would be ranked and evaluated on their performance both by their donors and their partners, or cooperators.

16

Introduction

As disputes over the information provided on the portal are quite likely to arise, Havrda and Kutílek suggest an arbitration system to resolve them. The authors anticipate that such an accountability platform on the web would increase transparency of NGO operations and provide stakeholders with relevant and reliable information about their performance. They caution, however, that such a voluntary system would only work in practice if major donors make participation mandatory for NGOs applying for funding.

Representation The concept of representation – similar to legitimacy – is typically applied to questions of state power and government. In its most general sense, representation refers to one person standing for another; in the political context, representation makes citizens’ voices, opinions, and perspectives ‘present’ in public policymaking (Pitkin, 1967). Historically, the debate on representation focused mainly on the question of whether representatives should act as ‘delegates’ or ‘trustees’ (Stanford Encyclopaedia of Philosophy, 2006). Under the delegation model, representatives follow the expressed preferences of their constituents. Under the trustee model, representatives enjoy much more leeway for formulating their own ideas of what should be done. The traditional ‘standard account’ of representative democracy has four main features (Urbinati and Warren, 2008, p. 389). Firstly, representation is often understood as a form of principal-agent relationship. The principals are conceptualised as constituencies formed on a territorial basis, and these constituencies elect their representatives as ‘agents’ who stand for and act on their interests. Secondly, electoral representation makes it possible to identify the sovereignty of the people with state power. Thirdly, electoral mechanisms of representation are said to guarantee some measure of responsiveness to the people’s wishes by their representatives. Fourthly, electoral representation based on the principle of ‘one-person, one-vote’ is crucial for realising political equality. In times of globalisation and political denationalisation, this standard account of electoral representation has come under strain. It is challenged by a redefinition of political constituencies on a functional rather than territorial basis, by new models of transnational network governance and by the increasing complexities of global political problems and interdependencies. Interestingly, intergovernmental and transnational actors such as international organisations and NGOs increasingly make representative claims (Urbinati and Warren, 2008, p. 390).

Jens Steffek and Kristina Hahn 17

These actors very often do not claim to represent territorially defined constituencies, but their constituents consist of ‘groups’ that share different characteristics. In the academic literature on representation, feminist scholars especially highlight the importance of a constituency (like women or minorities) that is not defined by territorial boundaries. Feminists have criticised the standard account of representation for not taking sufficiently into account the question of who the representatives are (women or men, for example) and the inherent discrimination of women (see Phillips, 1998). According to these critiques, the formal understanding of representation fails to take into account the injustices experienced by marginalised groups, and whose members often do not trust representatives who do not share their experiences (Mansbridge, 1999; Williams, 1998). Members of marginalised groups can bring a specific perspective based on their experiences into the political discourse (Williams, 1998). This critique refers to the famous distinction by Hanna Pitkin who complemented the formalistic view on representation (including the notions of electoral authorisation and accountability) with three other models of representation. She introduced the notions of symbolic representation (representation via personification/symbolisation of the constituents by a political leader, for example), descriptive representation (the extent to which a representative resembles those being represented), and, finally, substantive representation that focuses on the activities of the representative and investigates whose interests he or she furthers (Pitkin, 1967). Following this broader concept of representation, feminist scholars mainly refer to the second dimension, namely descriptive representation or ‘mirror representation’, the way in which representatives share the experiences of their constituency and are part of the same ‘group’ (Phillips, 1998, p. 226). This issue is highly relevant with regard to NGOs and the question of their ‘representativeness’, because empirical contestation of NGOs’ right to representation often centres on the notion of descriptive representation. Instead of being elected by formal vote, NGOs often claim to be competent stand-ins for other, vulnerable populations. This claim is challenged when conflict arises between NGOs who act as advocates ‘in the best interest’ of disadvantaged persons and groups that are composed of these persons, such as child workers, prostitutes etc., who may contest being represented by others and claim their own voice, based on common experiences. While not explicitly taking issue with the concept of representation, the chapter by Kristina Hahn deals exactly with such a conflict, albeit from a power-theoretical perspective.

18

Introduction

She suggests turning to a Foucauldian concept of power that critically analyses the identity attributions that take place in every discursive process. These identity attributions of NGOs to their beneficiaries come to the surface when they are contested and even rejected by (parts of) the beneficiaries, which was the case in the discourse on human trafficking within the UN. Here, two big NGO coalitions present the fates of their ‘clients’ differently to the international audience, for example during the negotiations leading to the UN protocol to prevent, suppress and punish trafficking in persons. Whereas one NGO group aims at trafficked persons’ empowerment, the other relies more on a discourse that represents them as ‘vulnerable’ and ‘victims’. This latter representation was contested by self defence groups of prostitutes who criticised their advocates for ‘muting’ them, claiming it should be them (and not the NGOs) whom states consult when drafting new anti-trafficking policies. While feminist scholars extended the concept of representation from a focus on formal representation to include descriptive representation in particular, another strand of critique (often overlapping with the feminist perspective) is rooted in deliberative theory. Deliberative approaches to the concept of representation do not only focus on formal mechanisms through which representatives are conferred rights and obligations by their constituents, but on arguments and positions which are represented in public discourse. Hereby, they do not only challenge the ‘classic’ understanding of the constituency based on territory, but also the classic distinction between the concepts of representation and participation. Traditionally, these two concepts were seen as being in opposition to each other (Stanford Encyclopaedia of Philosophy, 2006). One can speak about a classic ‘division of labour’ between those theorists of democracy who work within the standard account of representation on the one hand and those concerned with participation and inclusion on the other (Urbinati and Warren, 2008, p. 391). This ‘division of labour’ is challenged by those authors who combine elements of participative processes in which deliberation is likely to occur with representative elements (Mansbridge, 1999). As Young puts it, ‘citizens can only legitimately authorise representatives and hold them accountable if there are many avenues and institutions through which they engage both with each other and their representatives’ (Young, 2000, p. 8). The deliberative approaches are better able to cope with new models of governance than approaches focusing only on formal representation because non-state actors’ claims of ‘representativity’ are not based on their assertion to be direct representatives of certain populations,

Jens Steffek and Kristina Hahn 19

but on their reputation as channelling a variety of concerns into international arenas (Sikkink et al., 2002, p. 311). They do not so much claim to be stand-ins for other persons, but for certain viewpoints and arguments and therefore can be referred to as ‘discursive representatives’ (Urbinati and Warren, 2008, pp. 403 et seq.). In this regard, NGOs seem to be particularly important, since they have the reputation of broadening the scope of arguments present in international decisionmaking forums and help to include a variety of voices, from the developed as well as the developing world. More than other actors, they are considered as being stand-ins for the arguments and concerns of disaffected and marginalised populations otherwise excluded from political decision-making. With regard to this widespread assumption Tanja Brühl’s chapter takes a more sceptical perspective on the role of NGOs in international decision-making, investigating the geographical background of NGOs that are accredited to the United Nations institutions. She states that only one third of these NGOs are based in the Global South and that these organisations often face severe problems in terms of resources, access to relevant data and language. She, hence, challenges the role of NGOs as being spokespeople for people in developing countries and maintains that voices of Southern civil societies are often not heard due to this unbalanced representation of NGOs and the prevailing power structures between Southern and Northern NGOs. Brühl also examines how NGOs participate de facto in international decision-making and cautions that NGOs are often excluded when relevant decisions are taken. Brühl thus challenges the idea that NGOs could in any meaningful sense represent ‘the people’ in global politics and contribute to the legitimacy of international governance. While Brühl’s critique targets NGOs and their role as well as the role of international institutions that are often not willing to cooperate fully with NGOs, Justin Greenwood’s chapter concentrates on the latter aspect. He challenges the existing policy of the European Commission to cooperate only with ‘representative’ institutions while excluding those organisations that are not based in a variety of member countries. He contests that ‘representativeness’ can be a standard against which all types of NGOs could be evaluated. He distinguishes those NGOs that represent a geographic constituency of paying members from those that speak for interests derived from causes (such as the environment, human rights etc.). Greenwood maintains that this latter type of NGO is likely to receive secondary treatment under a regime founded on requirements for group representativeness, an outcome which may also emerge from

20

Introduction

settings other than the EU. Greenwood examines an alternative formulation, based on developing norms of external group accountability, including the development of such norms in self-regulatory schemes at the global level and in ‘compact’ formulae in use at the national level. Taking a different perspective to the other two chapters, Greenwood, thus, warns us against raising the standards for NGOs and their representativeness too high, showing the possible dynamics of exclusion associated with such standards once they are implemented in practice. The final two chapters of this volume are intended as a brief reflection on the theoretical issues and practical problems discussed by the contributors. Firstly, Regula Heggli adopts the practitioners’ perspective and discusses the implications for transnational NGOs. Drawing on her practical experience as coordinator of the ‘EU Civil Society Contact Group’ in Brussels, she outlines the contradicting, sometimes even paradoxical demands that NGOs face. She points out, for instance, that the European Commission uses NGO involvement in policymaking to legitimate its own activity, while at the same time repeatedly challenging the legitimacy of NGOs. European institutions also request rapid reactions from NGOs but expect their internal decision-making to be accountable, transparent and democratic. There are, as she points out, tensions between what is desirable and what is feasible in practice. Secondly, Jens Steffek and Kristina Hahn as academic editors of this book identify a number of issues that need further clarification and debate among their colleagues. Given the hybrid character of NGOs that are ‘private in form, but public in purpose’ and given the large variety of activities that NGOs are involved in, the authors plead for refined typologies classifying NGOs. It largely depends upon the ‘type’ of an NGO what kind of normative demands to place on it. Steffek and Hahn furthermore emphasise the necessity of establishing a ‘threshold’ with regard to NGO activities: it makes a difference whether NGOs are involved in activities with far reaching consequences for others (such as the setting of standards) or whether NGOs are merely raising their voices against injustice in the world and therefore doing no more than exerting their right to ‘free speech’.

Notes 1. We understand NGOs to be non-state and non-profit organisations that have clearly stated purposes, legal personality in at least one country, and pursue their goals in non-violent ways. Most of the NGOs under scrutiny in this book are transnational NGOs, which are registered and/or active in more than one state. 2. See www.ingoaccountabilitycharter.org.

Jens Steffek and Kristina Hahn 21 3. In this context, Lukes recently named Nye’s concept a ‘cousin of what I called power’s “third dimension”’ (Lukes, 2007, p. 90). 4. But note that Grant and Keohane (2005, p. 29) argue that accountability works on the assumption that the authority of the parties to the accountability relationship is accepted as legitimate.

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S. Charnovitz (2006) ‘Accountability of Nongovernmental Organizations in Global Governance’ in L. Jordan and P. Van Tuijl (eds) NGO Accountability: Politics, Principles and Innovations (London: Earthscan), pp. 21–41. V. Collingwood and L. Logister (2005) ‘State of the Art: Addressing the INGO “Legitimacy Deficit”’, Political Studies Review, 3, 2, pp. 175–92. A. Cooley and J. Ron (2002) ‘The NGO Scramble: Organizational Insecurity and the Political Economy of Transnational Action’, International Security, 27, 1, pp. 5–39. B. Crick (1959) The American Science of Politics: Its Origins and Conditions (Berkeley: University of California Press). A. Demirovic (2003) ‘NGOs, the State, and Civil Society: The Transformation of Hegemony’, Rethinking Marxism, 15, 2, pp. 214–35. P. Digeser (1992) ‘The Fourth Face of Power’, The Journal of Politicism, 54, 4, pp. 977–1007. K. Dingwerth (2007) The New Transnationalism: Transnational Governance and Democratic Legitimacy (Houndmills, Basingstoke: Palgrave Macmillan). M. W. Dowdle (2006) ‘Public Accountability: Conceptual, Historical, and Epistemic Mappings’ in M. W. Dowdle (ed.) Public Accountability: Designs, Dilemmas and Experiences (Cambridge: Cambridge University Press), pp. 1–29. A. Ebrahim (2003) ‘Accountability in Practice: Mechanisms for NGOs’, World Development, 31, 5, pp. 813–29. A. Ebrahim and E. Weisband (eds) (2007) Global Accountabilities: Participation, Pluralism, and Public Ethics (Cambridge: Cambridge University Press) M. Edwards, D. Hulme and T. Wallace (1999) ‘NGOs in a Global Future: Marrying Local Delivery to Worldwide Leverage’, Public Administration and Development, 19, 2, pp. 117–36. M. Edwards (2000) NGOs Rights and Responsibilities (London: The Foreign Policy Center). W. F. Fisher (1997) ‘Doing Good? The Politics and Anti-Politics of NGO-Practices’, Review of Anthropology, 26, pp. 439–64. A. M. Florini (ed.) (2000) The Third Force. The Rise of Transnational Civil Society (Tokyo: Japan Center for International Exchange and Washington DC: Carnegie Endowment for International Peace). A. M. Florini (2004) ‘Is Global Civil Society a Good Thing?’, New Perspectives Quarterly, 21, 2, pp. 72–6. M. Foucault (1976) Überwachen und Strafen. Die Geburt des Gefängnisses (Frankfurt/ Main: Suhrkamp). M. Foucault (1977) Der Wille zum Wissen. Sexualität und Wahrheit, Band 1 (Frankfurt/Main: Suhrkamp). M. Foucault (1982) ‘The Subject and Power: Afterword’ in H. L. Dreyfus and P. Rabinow (eds) Michel Foucault: Beyond Structuralism and Hermeneutics (London: Harvester Wheatsheaf), pp. 208–26. R. E. Goodin (2003) ‘Democratic Accountability: The Distinctiveness of the Third Sector’, Archives Européennes de Sociologie, 44, 3, pp. 359–96. R. Grant and R. O. Keohane (2005) ‘Accountability and Abuses of Power in World Politics’, American Political Science Review, 99, 1, pp. 29–43. J. Hirsch (2003) ‘The State’s New Clothes: NGOs and the Internationalization of States’, Rethinking Marxism, 15, 2, pp. 238–61.

Jens Steffek and Kristina Hahn 23 A. Hudson (2000) ‘Making the Connection. Legitimacy Claims, Legitimacy Chains and Northern NGOs’ International Advocacy’ in D. Lewis and T. Wallace (eds) New Roles and Relevance: Development NGOs and the Challenge of Change (Bloomfield, CT: Kumarian Press), pp. 89–97. A. Hurrelmann, S. Schneider and J. Steffek (eds) (2007) Legitimacy in an Age of Global Politics (Houndmills, Basingstoke: Palgrave Macmillan). INGO Accountability Charter (2009) available at www.ingoaccountabilitycharter. org (homepage), date accessed 18 August 2009. M. Keck and K. Sikkink (1998) Activists beyond Borders: Transnational Advocacy Networks in International Politics (Ithaca, New York: Cornell University Press). M. Keck and K. Sikkink (1999) Transnational Advocacy Networks in International and Regional Politics (Paris: UNESCO). E.-H. Klijn and C. Skelcher (2007) ‘Democracy and Governance Networks: Compatible or Not?’, Public Administration, 85, 3, pp. 587–608. R. D. Lipschutz (2005) ‘Global Civil Society and Global Governmentality’ in G. Baker and D. Chandler (eds) Global Civil Society: Contested Futures (London: Routledge), pp. 171–85. S. Lukes (1974) Power: A Radical View (London: Macmillan). S. Lukes (2007) ‘Power and the Battle for Hearts and Minds: On the Bluntness of Soft Power’ in F. Berenskoetter and M. J. Williams (eds) Power in World Politics (Abingdon, New York: Routledge), pp. 83–97. S. Mallaby (2004) ‘NGOs: Fighting Poverty, Hurting the Poor’, Foreign Policy, 144, pp. 50–9. J. Mansbridge (1999) ‘Should Blacks Represent Blacks and Women Represent Women? A Contingent Yes’, Journal of Politics, Spring, available at http://www. hks.harvard.edu/wappp/research/working/mansbridge99.pdf, date accessed 10 July 2009. K. Martens (2005) NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (New York: Palgrave Macmillan). J. T. Mathews (1997) ‘Power Shift’, Foreign Affairs, 76, 1, pp. 50–67. R. Mulgan (2000) ‘“Accountability”: An Ever-Expanding Concept’, Public Administration, 78, 3, pp. 555–73. P. Nanz and J. Steffek (2005) ‘Assessing the Democratic Quality of Deliberation in International Governance: Criteria and Research Strategies’, Acta Politica, 40, 3, pp. 368–83. P. J. Nelson (2002) ‘Agendas, Accountability, and Legitimacy among Transnational Networks Lobbying the World Bank’ in K. Sikkink, J. V. Riker and S. Khagram (eds) Restructuring World Politics: Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press), pp. 131–54. J. Nye (1990) ‘Soft Power’, Foreign Policy, 80, pp.153–71. J. Nye (2004) Soft Power: The Means to Succeed in World Politics (New York: Public Affairs). R. O’Kane (1993) ‘Against Legitimacy’, Political Studies, 41, 3, pp. 471–87. A. Phillips (1998) ‘Democracy and Representation: Or, Why Should it Matter Who Our Representatives Are?’ in A. Phillips (ed.) Feminism and Politics (Oxford: Oxford University Press), pp. 224–42. H. F. Pitkin (1967) The Concept of Representation (Berkeley and Los Angeles: University of California Press).

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B. Reinalda (2001) ‘Private in Form, Public in Purpose: NGOs in International Relations Theory’ in B. Arts, B. Reinalda and M. Noortmann (eds) Non-State Actors in International Relations (Aldershot: Ashgate), pp. 11–40. T. Risse (2006) ‘Transnational Governance and Legitimacy’ in A. Benz and Y. Papadopoulos (eds) Governance and Democracy (London: Routledge), pp. 179–99. J. Roberts and R. Scapens (1985) ‘Accounting Systems and Systems of Accountability – Understanding Accounting Practices in their Organisational Contexts’, Accounting, Organizations and Society, 10, 4, pp. 443–56. J. Sankey (1996) ‘Conclusions’ in P. Willets (ed.) The Conscience of the World: The Influence of Non-governmental Organizations in the UN System (Washington DC: Brooking Inst.), pp. 270–6. F. W. Scharpf (1999) Regieren in Europa: Effektiv und demokratisch? (Frankfurt a. M.: Campus). J. A. Scholte (2007) ‘Civil Society and the Legitimation of Global Governance’, Journal of Civil Society, 3, 3, pp. 305–26. O. J. Sending and I. B. Neumann. (2006) ‘Governance to Governmentality: Analyzing NGOs, States, and Power’, International Studies Quarterly, 50, 3, pp. 651–72. K. Sikkink, J. V. Riker and S. Khagram (eds) (2002) Restructuring World Politics. Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press). A. Sinclair (1995) ‘The Chameleon of Accountability: Forms and Discourses’, Accounting, Organizations and Society, 20, 2–3, pp. 219–37. Stanford Encyclopedia of Philosophy, first published on 2 Jan 2006, online available at http://plato.stanford.edu/entries/political-representation/, date accessed 10 July 2009. J. Steffek (2003) ‘The Legitimation of International Governance: A Discourse Approach’, European Journal of International Relations, 9, 2, pp. 249–75. J. Steffek and P. Nanz (2008) ‘Emergent Patterns of Civil Society Participation in Global and European Governance’ in J. Steffek, C. Kissling and P. Nanz (eds) Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Houndmills, Basingstoke: Palgrave Macmillan), pp. 1–29. J. Steffek (2010) ‘Public Accountability and the Public Sphere of International Governance’, Ethics & International Affairs, 24, 1, pp. 45–67. P. G. Thomas (1998) ‘The Changing Nature of Accountability’ in B. G. Peters and D. Savoie (eds) Taking Stock: Assessing Public Sector Reforms (Montreal: McGill-Queen’s University Press), pp. 348–93. P. G. Thomas (2003) ‘Accountability’ in B. G. Peters and J. Pierre (eds) Handbook of Public Administration (London: Sage), pp. 549–66. N. Urbinati and M. E. Warren (2008) ‘The Concept of Representation in Contemporary Democratic Theory’, Annual Review of Political Science, 11, pp. 387–412. A. van Rooy (2004) The Global Legitimacy Game: Civil Society, Globalization and Protest (New York: Palgrave Macmillan). P. Wapner (1995) ‘Politics beyond the State: Environmental Activism in World Politics’, World Politics, 47, 3, pp. 311–40.

Jens Steffek and Kristina Hahn 25 M. Weber (1978) Economy and Society, Vol. I., (eds) Guenther Roth and Claus Wittich (Berkeley: University of California Press). P. Willetts (ed.) (1996) The Conscience of the World: The Influence of NonGovernmental Organizations in the UN System (Washington DC: Brooking Inst.). M. S. Williams (1998) Voice, Trust, and Memory. Marginalized Groups and the Failings of Liberal Representation (Princeton, NJ: Princeton University Press). I. M. Young (2000) Inclusion and Democracy (Oxford: Oxford University Press).

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Part I NGO Legitimacy

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2 The Debate on NGOs’ Legitimacy: What Can We Learn from the Classics? Lutz Schrader and Tobias Denskus

Economic globalisation still determines the current constitution of the world. How the ‘global community’ will be structured politically, that is, normatively, institutionally and judicially, is still a highly contested debate. Rather than following a prefabricated blueprint the future political arrangement of globalisation will be the result of debates and altercations in which not necessarily the most powerful actors alone will be successful, but those with the most convincing arguments and concepts. It seems almost certain that any global order that will count as legitimate, has to comply with democratic principles. In the political struggles of the past decades and centuries, democracy has established itself as the last ‘great political narrative’ that has been able to convey meaning and identity across nations and continents. But what marks a democratic modus of legitimate will-formation and decision-making under the conditions of trans-boundary and global governance and problem-solving? To answer these kinds of key questions at the crossroads of social and political developments, we are used to consult the ‘classics’ of political thought. The reflection of modern societies in the mirror of the theories of the ‘Meisterdenker’ makes it possible to tackle problems and their possible solutions within the horizons of the theoretically conceivable and normatively acceptable. However, the classics would not count as such, if their texts, which have been explored to the last footnote, did not disclose undiscovered solutions and perspectives in the light of new questions. Thus the following chapter will critically revisit some of the most influential theories of legitimacy which, although they approach the 29

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subject matter from very different meta-theoretical, normative and disciplinary perspectives, are nonetheless complimentary: – the empirical legitimisation theory of the understanding or interpretive sociology of Max Weber, – the functional legitimisation concept of the sociological systemic theory of Niklas Luhmann, – the normative communication-theoretical legitimisation theory of Jürgen Habermas, – the legitimisation theory of Michel Foucault, developed by means of historical- and political-philosophical discourse theory. These theories span the entire era from the beginning of modernity until the present day. They stand for different changes of paradigm in politicalsocietal organisation that repeatedly and profoundly changed the conditions of political domination and its legitimisation since the second half of the nineteenth century: from the pre-modern to the modern bureaucratic state (Weber), from hierarchical to the increasingly horizontal societal governance (Luhmann), from the territorially constituted state to communicatively mediated transnational political processes (Habermas) as well as from the hierarchical state to a highly fragmented form of domination and governance extended even into the individual (Foucault). The works of these four authors are only evaluated under the aspect of their explanatory power in regard to the basis and sources of the claim for validity of civil society actors in the trans-boundary and global political processes. For lack of space, a portrayal and appraisal of the different philosophical and sociological conceptual designs and legitimisation theories will not take place. The examination of the individual approaches will be conducted along four questions: (1) Which social and political processes and structures can claim legitimacy? (2) What statements are made with regard to the bases of legitimacy of civil society actors? (3) How are the causes and driving forces of change of the foundations, methods and rules of legitimacy conceptualised? (4) What do the theories say about patterns and modes of construction of legitimacy outside of the national political system? The objective is not to create a new, comprehensive theory. It is rather to try to comprehend a highly complex subject more fully by casting it from different perspectives. It would be a success if it were possible to place future research on legitimacy of civil society actors, which is generally content just to differentiate between input and outputlegitimisation, onto a more substantial theoretical foundation.

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Max Weber – civil society organisations as charismatic agents of change We owe the insight that it is impossible to ascertain the legitimacy of a system in accordance with an external normative measure to Max Weber. He stated that it ‘is guided exclusively by the factual existence of such a power of command’ (Weber, 1968a, p. 948). Domination is legitimate, if ‘the authority which is claimed by somebody is actually heeded to a socially relevant degree’ (ibid.). Prerequisite for this allegiance is that the ‘legend of legitimacy’ (Lemke, 2001, p. 80), that has its source in the ‘generally observable need of any power […] to justify itself’ (Weber, 1968a, p. 953), is believed and internalised by the subjects to such a degree that they experience the authority as ‘natural’ (Weber, 1968a, p. 954). Therefore the test of political legitimacy occurs not according to ‘the truth of the philosopher, but the belief of the people’ (Schabert, 1986, p. 102; quoted in Clark, 2003, p. 80). According to Weber, the legitimacy of political domination in modern civil societies mostly depends on the belief of citizens in the rationality of an order, constituted by agreed or imposed rational rules of positive law (Weber, 1968a, p. 954). This empirical belief in legitimacy is sustained on the one side by the ‘chances of gratification of the interests of the majority of society’ and on the other by the ‘extent of willingly endorsing participation of the populace, which allows for a legally constituted system of authority’ (Heidorn, 1982, p. 49). The belief in the legitimacy of rational and legal domination is additionally supported by traditional and charismatic sources and assets of legitimacy. Weber’s analysis shows that several conceptions of order and legitimacy always coexist, overlap and complement each other, while also competing for validity (Weber, 1968a, pp. 33 et seq.). Heidorn refers to the belief in the legitimacy of a legal authority as a ‘resultant that is composed of the legitimising effects of traditional familiarisation, the charismatic prestige of political “leaders” and “statesmen” and the actual belief in legality’ (Heidorn, 1982, p. 43). Along with the three generally conversant sources of legitimacy, Weber introduces a little recognised fourth: the value-rational legitimisation.1 As examples he names natural law and protestant ethic.2 That makes it possible to assign a congruent facility for substantiation of the legitimacy of an authority or activity to every determining reason of social action defined by Weber (instrumental-rational, affectual, traditional and value-rational) (Heidorn, 1982, p. 42). Weber’s disregard of the dimension of values is grounded in his deep scepticism in regard

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of the development of capitalist society, for which he envisaged a normative ‘loss of soul’ and a ‘mechanised petrification’ (Weber, 1975, pp. 188 et seq.). In the light of the dissolution and fragmentation of the socially binding value basis, he sees the tendency to attempt to guarantee the cohesion and the capacity for action in the political and economic sphere with an invariable enforcement of the law and a drastic bureaucratisation. The ‘devaluation of all values’, therefore, unfailingly leads to the dominance of a new type of legitimacy: legality (Heidorn, 1982, p. 40). Tradition, natural law and Christian ethics are replaced by the allegedly formal, self-perpetuating logic of the law as a value-rational foundation of legitimacy. The rationale of function and value are combined. A characteristic feature of Weber’s theory of authority and legitimacy is his distinctive ambivalence towards the modern bureaucratic authority. On one side, he believes its enforcement to be inescapable; on the other he faces this perspective with unmistakable reluctance. Consequently, he looks for ways and means to evade the general levelling of society according to the imperatives of an ever-present instrumental rationality. As a counterpoint to the widely perceived state- and elite-centred sociologist, another Weber appears. His criticism of the teleological inevitability of the ‘iron cage of bondage’ and his conceptual consideration open an alternative line of view into the inner dynamics of the development of modern capitalist societies. Centring the reflection onto the relationship of citizen and state seems surprisingly normative for such a confirmed empiricist as Weber. It signals a conceptual approach that reaches far beyond his time. The sketch of a theory of civil society exceeds both the liberal and the communitarian project (Kim, 2000, p. 214). It understands civil society not as a quasinatural pendant of an institutionally stabilised democratic state. In fact, a democratically guaranteed civil society, based on emancipated citizens, becomes the indispensable prerequisite to every form of national or transnational state authority prone to bureaucratic exaggeration. Some authors regard these critical reflections even as one of the central themes of Weber’s work (Hennis, 1996; Goldman, 1988; 1992; Strong, 1992). In their understanding, Weber poses the question of whether there is any possibility for the individual to avoid an existence as ‘cog in a machine’ and the retreat into a passive conformism (Kim, 2000, p. 210). Under the massive pressure of legal and bureaucratic rationale to homogenise, Weber sees in the charismatic leader or group the only instance that is capable of facilitating ‘a completely new orientation of all attitudes and directions of action with a completely new orientation

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of all attitudes toward the different problems of the “world”’ (Weber, 1968a, p. 245). In the political sphere he assigns charismatic leaders the task of providing the political apparatus and bureaucracy with values and goals (Heidorn, 1982, p. 59). In his view, leadership personalities possessed of charisma form an indispensable, even ‘revolutionary’ counterbalance and corrective to the bureaucratically settled ruling structures. Therefore, he does not understand charisma primarily as a god-given or natural gift, but as the expression of the willingness of the individual to assert himself against the pressure of subordination and disciplination, and to set morally demanding goals for his own life and that of the group.3 It would be mistaken to read this conclusion as the expression of a pro-mythical, illiberal meander (Kim, 2000, p. 197). In Weber’s line of thought, charisma and ‘individually differentiated conduct’ form the antipole to discipline as universal requirement of the economic and political rationalisation (Weber, 1968a, p. 1156). But behind that is not the intention to celebrate the free, resistant individual as such. His deliberations aim further. He ties the chances of survival of an active democracy to the opportunity for self-determination of a specific type of subject: How is it at all possible to salvage any remnants of individual Bewegungsfreiheit [freedom of movement] in any sense? […] How is democracy even in this restricted sense to be at all possible? (Weber, 1994, pp. 156 et seq., quoted in Kim, 2000, p. 213) The social space in which this could be made possible – Weber hopes – is an ideal type of civil society. He became acquainted with its role model on his travels in the US (1904). As opposed to the conventional and well-adjusted German societal culture, he experienced civil society as a ‘disciplinary and (trans)formative site in which certain moral traits and civic virtues are cultivated via collective emphasis on individual achievements and ethical qualities’ (Kim, 2000, p. 208). In these voluntary associations the individual not only ‘seeks to maintain his own position by becoming a member of the social group’ (Weber, 1985, pp. 10 et seq.), the individual also adjourns to a social surrounding ‘that constantly probes and reinforces the ethical standard that individual members should apply to their everyday life’ (ibid., p. 208). Civil society organisations are, in this manner of understanding, not only shelters in which discerning moral attitudes, bearings and convictions are conservable. In their organisational exclusivity and their normative particularism

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they can generate the capacity to defy the inclusive and universal routine of bureaucratic rule (ibid., p. 199). Weber does not explicitly comment on the legitimatory status of civil society associations. He does, however, leave no doubt that every power, every individual, every group – ‘every chance of life’ – has the need for self-justification and, for the price of self-determination, must be made credible vis-à-vis its social environment (Weber, 1968b, p. 491).4 To associations as a special form of ‘social order’ validity can be ‘attributed’ both by their members and their social environment. The four sources were already mentioned above: a) tradition: valid is that which has always been; b) affectual, especially emotional, faith: valid is that which is newly revealed or exemplary; c) value-rational faith: valid is that which has been deduced as an absolute; d) positive enactment which is believed to be legal. (Weber, 1968a, p. 36) Obviously, with regard to civil society associations of the American type the value-rational faith prevails. The members commit themselves to an ‘ethical rigor(ism)’ (Weber, 1985, p. 579) and a ‘wilfully chosen subjection to an autonomously chosen purpose’ (Kim, 2000, p. 211). Associations effectually require to a much higher degree than state rule an ‘inner’ value-rational guarantee on the part of their members. The inner justification of the associations is based on the actions of the members in accordance with the internal measures of value (Weber, 1975, pp. 132, 191 et seq., quoted in Kim, 2000, p. 210). Looking from the social environment, legitimacy is attributed also primarily by virtue of the ‘ethical qualities’ of the organisation (Kim, 2007, n. 41). Finally, when civil society organisations can rely on a convincing value-rational credibility and exemplary qualities – in short: on a strong group charisma – they have as representatives of ‘negatively privileged groups of human beings’ a good chance to contest the legitimatory ‘myth of the highly privileged’ (Weber, 1968a, p. 953). Starting from the ubiquitous desire for self-justification of every social actor, the reconstruction of Weber’s theory reveals both the aspect of power and reciprocity of every kind of legitimatory arrangement. In the social interaction between different aspirants to power, the party will prevail which achieves to assure validity and credibility for its ‘legitimatory myth’ and ‘principles of legitimisation’. This insight offers a multitude of conceptual toeholds to understanding the processes of formation, crisis and change of legitimate domination and governance

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as they are found nowadays in trans-nationally constituted political processes. Nevertheless, Weber’s theory has also a blind spot. His concept of ideal types does not explain how legitimate political arrangements occur or disappear. It does not answer the question of why some traditions are appropriate to bolster legitimacy and others not, why, in a specific historical constellation, only certain individuals rise to the role of charismatic leader and why a specific system of values finds favour and approval, whereas others remain more or less unnoticed (Heidorn, 1982, p. 50). To answer these questions, the socio-structural conditions and the cultural determinants, among others, must be examined more closely. This aspect of analysis and conceptualisation is noticeably disregarded in Weber’s characteristic preference of the dimension of actors.

Niklas Luhmann – civil society organisations as immune system of modern societies Niklas Luhmann directly connects to Weber. His interests lie in how the ‘binding power’ of the decisions of a few people in the political or judicial system spreads through the entire society (Luhmann, 1983, p. 27). Because he believes that in highly complex modern societies, stability and legitimacy cannot be procured out of a ‘basic stock of rigid, commonly prevalent belief in legislature’, he shifts his focus to the structural and procedural dimension. Variably structured proceedings of political and judicial decision-making (ibid., pp. 252 et seq.) take the place of older rationale of natural law or exchange based methods of consensus forming (ibid., p. 30). Establishing legitimacy turns into a function of the political system. It has to ensure that ‘its decisions are persistently perceived as binding’ (ibid.). This takes place when the political and judicial system provides procedures, which are suitable to effectively restructuring the social expectations of the subjects in relation to authority and thereby transforms ‘variability into stability’ (ibid., p. 252; Schliesky, 2004, p. 157). Incrementally, a social climate is formed which institutionalises acceptance of self-evident binding decisions (Luhmann, 1983, p. 34). However, it is prerequisite that all participants must be able to act on the assumption of a principally ‘fair proceeding, not predetermined by the use of power’, in which there is the ‘prospect of solving controversies by reasonable consensus of all concerned’ (Luhmann, 2000, pp. 124 et seq.). The gap between system and individual is closed by the concept of procedural role. As actors in intra-system procedures, individuals

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become agents of the function- and communication requirements of the respective subsystem. Everybody, whether as professional decision-maker or subject to decision, is forced into a certain rationale of behaviour. For them the participation in the communicative process is only possible upon adoption of the required role. Otherwise – and here, the power of procedure appears – the former would lose their profession or at least their reputation and the latter would fail to achieve their goal or even be excluded from proceedings. But the respective role also protects the participants against possible consequences of their role behaviour from other systems and their accordant roles in it (Luhmann, 1983, p. 48).5 If everything runs according to procedure, even outsiders have to accept the independent legality of the procedure and its results. Participants can only be reproached if they did not comply with the stipulations of the respective social procedure. Therefore, ‘the relative autonomy of the procedure on the level of role and behaviour contributes to the social generalisation of the result’ (ibid., p. 49). Such generalisations are in turn a major condition for the legitimisation of decisions, ‘as the individual can only accept with the help of social support’ (ibid.). From this perspective, legitimacy is a contingent, only empirically detectable social fact, which is reproduced respectively within every subsystem and in the communication between the different subsystems. Luhmann’s narrowly defined production of legitimacy as ‘genuine political substance (power and legality)’ disregards the developments of the political system during the 1970s (Lange, 2003, p. 140). As Luhman (2000) himself describes, the communication between ‘politics’ and ‘judiciary’ and the other subsystems in the increasingly horizontal governance of highly complex Western communities runs no longer hierarchically, but reciprocally and horizontally. The different subsystems are substantially involved in the weakening or strengthening of the legitimacy of the whole societal system by more or less optimised operations (Heidorn, 1982, p. 106). Here, a discrepancy between the legitimisation theory of the earlier and the societal theory of the later Luhmann emerges. The ideal form of equally communicating societal subsystems postulated in the theory of society is depicted by the ‘real type of pure legitimacy of procedure’ (Lange, 2003, p. 140) as a kind of one-way road of communication through the procedure of vote, legislature and jurisdiction. It is only a ‘halved theory of legitimacy’ (ibid., p. 139). To complement this ‘self-legitimisation of politics’ a ‘counter-current of securing legitimacy’ has developed. The ‘unofficial circuit of power’ builds ‘on the direct influence of the organised public

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on the state administration’ (ibid.). Even established proceedings are changed into the interplay of the two power circuits, and new procedures with more open role definitions emerge. Non-state actors change from the side of passive public and subjects to decision-making to that of protesters, experts and co-deciders. Luhmann was made aware of his theory’s shortcomings by the extraparliamentary opposition of the student movement, which reached its peak just in the year of the first edition of his book ‘Legitimation durch Verfahren’. The public was no longer willing to be limited to the role of uncritical subject to decisions, which only ‘condones the institutional process of political-judicial decision-making’ (ibid, p. 138): The reason for this protest was precisely the non-consideration and marginalisation of the political beliefs of the students through the structural specifications and material decisions in the factual proceedings of the constitutional state. [...] The foreshortening of communication of political power to the traditional proceedings of the ‘official’ political system obviously led to the underestimation, if not even to the denial of that political power which can be communicated outside of the political system. (ibid., p. 397) The mature Luhmann has repaired this weak point in his theory through the re-evaluation of social movements and the introduction of the centre-periphery differentiation of the political system (Luhmann, 1996, p. 200). The function of a quasi system-immanent corrective is ascribed to protest movements as parts of the outer periphery of the political system. They trigger learning processes and contribute to immunising the highly functionally differentiated societies against ‘congealing in entrenched, but no longer environmentally adequate patterns of behaviour’6 (Luhmann, 1984, p. 507). As subsystems only observe their environment from a certain point of view, problems that do not fall into their scope of responsibility are not perceived by them7 (Hellmann, 1996, p. 23). Thanks to their capacity of system-wide observation and reflection, protest movements can compensate deficits of regulation of modern societies ‘that do not find regard elsewhere’ (Luhmann, 1993, p. 143). When the superior measurement for the legitimacy of a social system in parts and as a whole is the conservation of its operational and learning capacity, then social movements can claim to be a part of the legitimacy-generating mechanism.

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The emphasis of the systemic dimension in Luhmann’s work goes hand in hand with the disregard for the agency and the normative dimension. Individual and collective actors are only regarded when they, like the new social movements, make an unmistakable appearance on the societal stage. Even if to these new actors is simply assigned the quality of social systems, the hole in Luhmann’s theory is not so easily patched. Especially in times of crisis and change, the neglect of actors and the normative emptying of political legitimacy turn out to be difficult problems to solve within the framework of system theory. The systemic approach leaves open how the system as a whole – apart from a mostly trial-and-error procedure of information selection – can obtain balance and cohesion. Where, in Luhmann’s theory, can the motivation for a change in the system be found? Who determines, and with what arguments, whether procedures with their well-rehearsed distribution of roles are still up to date or, respectively, when the time has come for new procedures with different role descriptions? The disregard for actors with their ideas, convictions and capacities to act, causes the driving force of social change to disappear from the theoretical radar of the researcher (Reese-Schäfer, 1999, p. 94).

Jürgen Habermas – civil society organisations as representatives of the public in the ‘post-national constellation’ In the famous controversy with Luhmann around the legitimacy and legitimability of modern democratic and capitalistic states, Jürgen Habermas’ design of a ‘material democracy’ (Habermas, 1973, p. 55) ties the legitimacy of the modern state to the institutionalised guarantee of a democratic discourse, in which all citizens must be able to participate on an even standing. He follows the tradition of the enlightenment of Rousseau and Kant, who had the intention of founding a ‘formal principle of reason’, through which ‘conditions and procedures of mutual consent themselves receive legitimising power’ (Mittelstraß, 1995, p. 563). For Habermas the process of decision-making turns into the crucial criterion of democracy. While, for Luhmann, democracy and legitimacy arise quasi behind the back of the individuals as a result of successful communication between the subsystems of a society, Habermas ties the democratic quality of procedure down to the free and fair participation of all affected by the subject and the consequences of the deliberation. More than that: the

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discourse constituted in such a way becomes the means to determine what can count as rational in a society. The rationality and therefore the legitimacy of decisions are thereby fed back to the possibility of criticism and justification of claims of validity within the discourse (Habermas, 1997, p. 27). With this universal design of democracy, Habermas responds to the ‘loss of validity of traditional cultural motivation for compliance and performance’ (Mandt, 1998, p. 387) as well as to the governance crisis of the contemporary state. In the search for contemporary legitimatory bases of political order, Habermas widens the conceptual circle of liberal theory, which exclusively recognises elections, referendums and parliaments as institutions producing legitimacy. In his view, there are no longer any good reasons to exclude citizens from the forming of political opinion and will, once the election has ended. Their participation mediated by public debate rather becomes the legitimising quality of the democratic procedure. The aim and goal of this process of public deliberation are the validation of common interest expressed without misrepresentation (Habermas, 1973). With the formulation of an ambitious normative reference, Habermas addresses the political process in the wider sense, which he describes as ‘the interplay of a public sphere based in civil society with the opinion- and will-formation institutionalized in parliamentary bodies’ (Habermas, 1998, p. 371; emphasis in the original). The idea of people’s sovereignty is reformulated discoursetheoretically and materialises through the possibility of the universal and non-repressive inclusion of all concerned and thereby guarantees the input of all positions into the political system. This is because ‘disregarded points of view are liable to deprive rendered decisions of legitimacy’ (Niesen, 2008, p. 8, Fn. 18; Forst, 2001). Civil society functions as a filter of suggestions and as a generator of communicative power in influencing political decisions as well as to limit and control political power. The source of this communicative power is public communication mediated by civil society. It is sustained by a ‘far-flung network of sensors that react to the pressure of societywide problems and stimulate influential opinions’ (Habermas, 1998, p. 300). To the degree that decisions are discussed in the public, they undergo a process of discursive rationalisation: Rationalization means more than mere legitimation but less than the constitution of power. The power available to the administration alters its aggregate condition as long as it remains tied in with a democratic opinion- and will-formation that does not just monitor

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the exercise of political power ex post facto but more or less programs it as well. (ibid.) Therefore, legitimate decisions are generated within the active interplay between political system and the public or civil society. The boundaries between them are clearly and distinctly defined by Habermas. Only the political system can ‘act’ – ‘it is a subsystem specialized for collectively binding decisions’ (ibid.). In contrast, public opinion that ‘is worked up via democratic procedures into communicative power’ can not ‘rule of itself’. It ‘can only point the use of administrative power in specific directions’ (ibid.). Although, according to Habermas, civil societies do not have any executive political power in the strictest sense, referring to Arato and Cohen (1992) he does grant them the possibility to simultaneously pursue ‘offensive and defensive’ goals in a form of ‘dual politics’, which can considerably influence conditions of and possibilities for governmental action, especially in times of crisis and upheaval. ‘Offensively’, they try to bring up issues relevant to the entire society, to define ways of approaching problems, to propose possible solutions, to supply new information, to interpret values differently, to mobilise good reasons and criticise bad ones. Such initiatives are intended to produce a broad shift in public opinion, to alter the parameters of organised political will-formation, and to exert pressure on parliaments, courts, and administrations in favour of specific policies (Habermas, 1998, p. 370). Conversely, they would operate ‘defensively, when they attempted to maintain existing structures of association and public influence, to generate subcultural counter-publics and counter-institutions, to consolidate new collective identities, and to win new terrain in the form of expanded rights and reformed institutions’ (ibid.). The capacity of civil society organisations ‘to act’ is dependent on effective guarantees of constitutional institutions as well as the obligingness of cultural traditions and social patterns, on the political culture of a populace used to freedom (Habermas, 1990, p. 45). Addressing the challenge of globalisation, Habermas has outlined a framework for the transfer of his originally state-centred design of democracy to the emerging ‘post-national constellation’. As an ‘alternative to the forced cheerfulness of a “self-dismantling” neoliberal politics’ (Habermas, 2001, p. 61), he considers a democratically designed multilevel system, which consists of ‘three arenas with three types of collective actors’: supranational or global organisations, continental regimes and

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nation states (Habermas, 2005, pp. 334 et seq., emphasis in original). He counterbalances intergovernmental actors with transnational public and civil societies for the guarantee of democratic self-governance, to bring about a change of direction towards a ‘global domestic policy without a global government’ (Habermas, 2001, p. 62). Transnational constituted parties, interest based associations, NGOs and civil movements should create the normative and institutional conditions for the limitation of global commercial and communicative networks in the sense of ‘democratic self-control’ (ibid.) of society. In search for ‘functional equivalents’ for arrangements of democratic self-governance on the transnational and global level he formulates several entry points (Habermas, 1998): (1) effective public administrations, (2) congruence of decision-making forums through the inclusion of potentially affected persons and regions, (3) efficiently working public and generally accessible deliberative processes of opinion- and will-formation, (4) social integration and common identity of all citizens through an inclusive democratic process,8 as well as (5) the guarantee of social justice and political and judicial equality for all citizens of the state respectively of politically constituted communities. According to Habermas, in such a post-national democratic configuration – conceived as complementing ‘conventional procedures for decision-making and political representation’ (Habermas, 2001, p. 111) – the theoretical requirements for legitimate democratic politics change as well. The conceptual ties ‘between democratic legitimacy and the familiar forms of state organization’ (ibid.) are loosened. The ‘constitutive differences between state and society’ are being eroded. Departing from these theoretical premises, it is possible to conceptualise the ‘change from hierarchical to horizontal, decentral or sectoral models of policy exchange’. The associative modus is becoming apparent as the complement to the traditional national structure of legitimate politics (see Cohen, 1996; Cohen and Sabel, 1997): Supposedly weak forms of legitimation then appear in another light. For example, the institutionalized participation of non-governmental organizations in the deliberations of international negotiating systems would strengthen the legitimacy of the procedure insofar as mid-level transnational decision-making processes could then be rendered transparent for national public spheres and thus be reconnected with decision-making processes at the grassroots level. (Habermas, 2001, p. 111)

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This opens a possible perspective for theorising the democratisation of political structures and institutions on a global scale (Schmalz-Bruns, 2005, pp. 93 et seq.). By widening Habermas’ approach to the analysis and evaluation of trans-boundary and global political processes, an immanent limitation of the concept of deliberative democracy becomes even more visible: adopting a Western understanding of rationality and democracy as universal, incompatible rationalities and democratic modi are – at least implicitly – excluded as irrational and undemocratic. The discourseethical concept of democracy categorically fails in the evaluation of the legitimatory qualities of procedures and decisions which did not originate through deliberatory ways. Experience shows that more deliberation does not necessarily lead to more democracy and legitimacy, that is, acceptance of the subjects of decisions (Jakobi, 2000). For reasons of its normative orientation, the approach does not possess the theoretical-analytical sensorium to appropriately capture and portray the empirical dimension of legitimacy. This includes for example non-cognitive aspects of legitimacy such as charisma or the attribution of authority, for example through aesthetic properties, which are not explainable as the results of rational proceedings and agreements (Peters, 1994, p. 53).

Michel Foucault – civil society organisations as contact points in the network of governmentality Given the specific strengths and shortcomings of the recapitulated theories, a conceptual framework is sought, which can combine their strengths and overcome their blind spots. Such a concept needs to integrate the different aspects and dilemmas of theory formation – actor and structure/system, empiricism and norm, contingency and universality – into a more coherent architecture. A promising framework to satisfy these needs is the political theory of Michel Foucault. The starting point of his approach is the criticism of the dichotomy of individual and system, power and domination, democracy and dictatorship as well as the tendency towards generalising typically Western normative and institutional patterns. He aims to overcome the fixation of the analysis on the state and the political sphere in a narrow sense, which has ‘dragged on’ from Weber ‘to newer concepts of legitimisation theory (such as Luhmann’s and Habermas’)’ (Heidorn, 1982, p. 67). Foucault criticises especially a mostly ‘juridical and negative perception’ of power, which is expressed in terms like law, prohibition, freedom and sovereignty (Foucault, 1977,

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p. 112). Further characteristics of the negative conception of power are – according to Foucault – the strict distinction between the allowed and the forbidden as well as the Christian conditioning of subjectivation (Foucault, 1987a), through which individuals are integrated in relations of power and dominance in order to ensure their compliance. Foucault’s concept blurs the line between relations of power and state of dominance. Domination becomes a particular manifestation of power. In his definition, domination is a lasting asymmetrical exercise of power institutionalised by economic, political and military means. Hence, domination is characterised by blocked relations of power (Foucault, 1985; Lemke, 2001, p. 89). Foucault does not only use power in the negative sense of coercion. It can also manifest within the promotion and structuration of options of action and forms of subjectivation. In this view, ‘government’ changes from a clearly defined institutional place into society-wide ‘contact points’, where ‘the techniques of the self are integrated into structures of coercion or domination’ (Foucault, 1993, p. 203): The contact point, where individuals are driven by others is tied to the way they conduct themselves, is what we can call, I think, government. (ibid.) In that sense the process of governing people is a ‘reciprocal relation of productivity’, where power and domination are linked (Foucault, 1978, p. 134). Thus, power and, respectively, domination are unthinkable without the ‘versatile equilibrium, between techniques which assure coercion and processes through which the self is constructed or modified by himself’ (Foucault, 1993, pp. 203 et seq.).9 For Foucault, the ‘techniques of the self’ and the corresponding ‘techniques of power and domination’ are dependent on culture. Through the change of perspective from a Western influenced normative and substantial understanding of power to a relational form of power,10 Foucault designs a framework of analysis and interpretation suitable for generalisation, within which the alleged universality of the Western model of democracy can be understood as a singular form. To integrate this link between the inner and outer dimension of domination, he creates the term ‘governmentality’ (Foucault, 1991). Accordingly, government is a universal form which is filled depending on culture and mentality. Every action of governance claims rationality for its decisions and results. Thus rationalities are ‘historical practices, in whose context

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strategies of perception and evaluation are created’ (Lemke, 2001, p. 88). They constitute a ‘political-epistemological space’ – a ‘field of possibilities’ – which allows a range of different answers, reactions, manners of conduct et cetera (ibid.). The acceptability of claims of validity is dependent on the respectively prevailing rationalities, that is to say on the respective actual historical practices in whose context strategies of perception and evaluation are generated (ibid.). Foucault, unlike Weber, is not taking the fact of acceptability for granted. He aims at revealing the ‘conditions of acceptability’ (Foucault, 1987b, p. 254, quoted in Lemke, 2001, p. 88). His interest lies in the conditions of the production of this ‘acceptance of legitimacy’ (Weber, 1968b, p. 470). Unlike Habermas he is not concerned with the question of relation of practices and (normative) rationality, its correspondence or non-correspondence in the sense of a ‘distortion of rationality’ (Lemke, 2001, p. 88). It is also not his intention to describe, like Weber, a universal process of rationalisation, but to reconstruct specific rationalities and their historical transformation and mutual relation with regard to concrete subject matters. Foucault’s ‘main problem’ is not whether practices follow the principles of rationality or not, but to find out which type of rationality they adopt (Foucault, 1988, p. 58). Therefore the concept of rationality does not imply a normative valuation, but has above all ‘an instrumental and relative meaning’ (Foucault, 1994a, p. 26). In this view legitimacy is a characteristic of every relationship of power and domination in which the interplay of techniques of rule and power (‘government by others’) on one hand and techniques of the self (‘self-government’) on the other reproduce, transform and combine strategies of perception and evaluation in such a way that the area of tension between possibility and realisation is acceptable for all parties involved. Legitimacy in the sense of social validity of the origin, implementation, constitution, movement and outcome of relations of power and states of domination is no longer given when the parties involved do not accept the applied rationalities any longer, or even oppose them and express the will to not be ruled in such a way (Foucault, 1992, pp. 54 et seq.). Those who succeed in procuring acceptance for the rationalities they claim against antagonistic rationalities, exercise power or domination respectively. Furthermore, they have to succeed in presenting these rationalities with the use of adequate discourse-political strategies (‘politics of truth’) even in the face of conflicting claims as ‘true’ and make them acceptable for those concerned and involved time and again by reproduction and transformation. In this sense, legitimacy is a dynamic social construct.

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The multifaceted concept of power and domination has important implications for the legitimacy of civil society organisations. Environmental, feminist and other initiatives have found a lot of inspiration and encouragement in Foucault’s work of ‘how relations of domination between women and men, and between different peoples, can be changed’ (Flyvbjerg, 1998, p. 225). Starting from his ‘decentred understanding of power’ (ibid., p. 214), Foucault does not bother asking how civil society organisations may participate in the practices of governance, but which possibilities they have to analyse, criticise and control them. He is primarily interested in their ability to prevent ‘every abuse of power, whoever the author, whoever the victims’ (Miller, 1993, p. 316). Civil society engagement must therefore primarily aim towards social change in general and the alteration of specific arrangements of dominance (Dean, 1994). Within this consistently micro-political and bottom-up approach the societal and political legitimacy of civil society organisations accrues according to how and to what degree they succeed in eluding the co-optation by the disciplination- and subjectivationtechniques of state and economic sphere. On their own part, they may contribute towards the limiting of dominance and the strengthening of freedom and democracy both within civil society and in terms of the whole society (Flyvbjerg, 1998, p. 224). This is the reason why Foucault views the ‘state-distant’, ‘civil society’ or ‘informal’ concepts of authority and control, which are mainly based on consensual forms of willforming, ‘rather as a transformation than an abolition of traditional forms of domination’ (Foucault, 2005, pp. 722 et seq., quoted in Lemke, 2006, p. 45). In this way, consensual forms of action and networks formed by relations of power can function so that they cause comprehensive effects of domination and power (Foucault, 1994b, p. 707). Against this theoretical background the liberal concept of parliamentary representation proves itself to be as inappropriate as Habermas’ ideal of a general consensus of those affected by decision-making. Both concepts stand for a state-centred top-down logic. They are not fit to be markers of differentiation between legitimate and illegitimate relations of power and states of domination. The dissolution of the dichotomy of state and individual in the Foucauldian concept creates space for the insight that the activity of governance covers all relations of the society: of self to self, self to others, between institutions and social communities. On all these levels the question of the quality of the (reciprocal) representation of individual and group interests is posed. The rule of measure in a concrete situation and context is just determined by whether an individual or group experiences a gain or loss of freedom and democracy

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through the affiliation with a greater societal body. Thus, a legitimatory dilemma emerges for civil society actors: they can either participate as a part of ‘the government’ in the (re)production of the legitimacy of dominance. Or they can gain their legitimacy from their engagement as a corrective and countervailing power to the political and economic arrangements and instruments of domination. Civil society actors always operate within this field of tension between (co)dominance and independent volition. In the end, it is essential to alter the ways and means of governance and domination in a more democratic direction.

Conclusions Adding up the findings of this journey through the very different, but nevertheless complementary theories on legitimacy of the four classical thinkers, important elements, characteristics and dimensions of the legitimacy of civil society actors and action can be deduced: (1) The political dimension: The gestalt change of political domination from the more or less hierarchical national government to the horizontal, highly fragmented ‘trans-statehood’ of cross-boundary and global governance presents the question of legitimacy in a new light. To the extent to which the boundaries in cross-boundary political networks between ruling positions and positions of power between state and non-state actors are blurring the ubiquitous need of every actor for context-dependent self-justification is strengthened. The particular distinction of legitimacy of state actors proves itself to be a time-contingent expression of primarily nationally and hierarchical constituted political systems. The insight into the common origins of all social and political legitimacy creates a basis for scrutinising the genuine elements of legitimacy of civil society actors. It is suggested in a first approach to distinguish between the ‘weak’ legitimacy of civil society actors and the ‘hard’ legitimacy of governmental institutions and their representatives. ‘Hard’ legitimacy derives primarily from the established political and legal norms, proceedings and institutions, as well as the appropriate conduct of the political, administrative and judicial elites. Looking at the institution-bound state legitimacy, the impression can still arise that their legitimacy is a fixed property of these institutions and their representatives. This perception is quickly dispelled by the example of civil society actors. They are a case in point, that legitimacy can only be granted and revoked within the relation

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of different actors: it is produced and transformed in a specific situation and context. (2) The empirical dimension: To understand when actual, empirical recognition is gained by political leaders and institutions, Weber’s typology of legitimate domination is still authoritative. In general, the approval of legitimacy on part of the subjects to political decision-making occurs when these procedures and institutions act upon normative values and rules regarded as steadfast and binding and when the responsible actors behave accordingly. Additionally, institutions gain legitimacy when they obtain a traditional quality due to long-term successful practice and/or when they are represented, implemented and administered by leaders distinguished by charisma and prestige. The ‘ingredients’ of such a legitimising ‘form’ are always the same: consensus of value, judicial order, traditions, charismatic and exemplary persons and groups which are concurring within a more or less clearly defined constituency. This form is filled with actors from the different societal spheres: business, state and civil society. Connecting to Weber and Foucault, the specific source of legitimisation of civil society actors consists of their capacity for self-management in accordance with the specific context and situation. Civil society activists and organisations can claim and expect legitimacy to the extent that they are successful in formulating and pursuing their own values, aims and goals vis-à-vis to the instrumental-rational logic of state and economy. A measure of this is their self-assertion as well as the pursuit of aims dedicated to individual and collective emancipation, social change and democracy. The guarantee of conditions for development and self-assertion of free autonomous personalities and actors becomes the prerequisite for legitimate democratic states and sustainably administered enterprises. (3) The normative dimension: The concept of distinguished and conflicting normative rationalities that has been introduced by Weber and expanded by Foucault makes it possible to understand both the dependency of the social validity of specific political order upon the dominant political discourse and the dynamic of change of a given form of legitimacy. As a specific order of knowledge, the dominant discursive construction of rule structures and legitimises the techniques of domination, power and subjectivation which are for the most part regarded as normal and without alternative. The discovery of this connection poses the question: why does the belief in the legitimacy of a political rule – on the part of its

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subjects – appear in certain conditions, but not in others? In short, why do different strategies of legitimisation not catch on equally? What had seemed immovable and permanently binding proves to be the result of political altercations and negotiations – especially in times of historical crises and upheaval. The source of change of a discursive dominant pattern emerges. Actors participating in a concrete context of governance come into focus as agents and inventors of distinguished, often clashing rationalities. In contention with the ‘politics of truth’ of governmental and economic institutions, civil society actors can, by using their communicative power, influence and avert the well-rehearsed communication circuitry of the general public. Consequently, the ‘problem solving mode of the entire system’ can change step by step (Habermas, 1992, p. 460). Under their pressure, with their aid and assistance, new patterns of legitimisation introduce themselves by their sequential manifestation and through incremental affirmation. Finally, these patterns can become dominant norms and procedures. Once established as accepted standards and rules of political and economic governance, they unfurl their objectified validity as self-evident procedures of integration and exclusion. (4) The procedural dimension: Notwithstanding their different theoretical approaches, Habermas’ and Luhmann’s theories allow for the formulation of important criteria of the legitimacy of transnational and global political arrangements. Both try to find a new adequate mode of legitimation in a society characterised by deflation and fragmentation of social meanings and values. According to them the only salvation to ensure society-wide acceptance and recognition of processes and results of will-formation and decisionmaking lies in the procedural dimension. Habermas opts for the redemption of the prototypical idea of democracy, whereby the subjects of legislation must understand themselves as its originators. Through participation they have the chance to emphasise relevant perspectives and considerations and in this way facilitate the best rational decision as possible. In contrast, Luhmann sees the potential for stabilisation of social interaction primarily in the entelechy of political and judicial procedures. Because ‘recruitment- and programming decisions’ in the highly complex contexts of transnational and global governance cannot be legitimised by national vote and legislature anymore, the opening of political procedures and role expectancies seems to be inevitable. When governments and international organisations are increasingly forced to admit

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non-state actors within transnational networks of power, the traditional distribution of influence and power between political procedure and its environment must shift. More and more, decision making is turned into a horizontally governed mutual process of negotiating and learning. Civil society actors exert immediate power both through the indirect influence exercised on rules of procedure and role expectations and the direct contribution in decision finding. (5) The (inter-)cultural dimension: Legitimating rationalities applied by political actors always have a cultural dimension. Cultural conditions structure the space of possibilities, in which the instances of legitimisation defined by Weber – tradition, charisma, values and legislature – can produce their effect in concrete implementation. Within the so defined ‘political-epistemological realm’ certain strategies of legitimisation are allowed, supported and reinforced. Others are rejected and marginalised or even banned. Civil society actors, especially in trans-boundary and global contexts, are carriers and co-designers of their own cultures as well as mediators between different cultural and political rationalities. In transnational and global processes of governance they have to meet a huge challenge with regard to their management of legitimacy. Actually, they have to manage the cultural difference between their home country and the country where they work. In concrete terms, this means deciding which role to play and which rationality to use in a project, for example, in international development cooperation or peace processes. Two things need to be considered at the same time. On the one hand, strategies of legitimation and subjectivation encountered in the country of destination may not be judged unilaterally according to one’s own cultural and ethical criteria. On the other, the goal cannot consist of striving opportunistically for legitimacy at any price. A preferable approach would be to determine on the background of one’s own normative criteria and convictions, towards which actors, institutions and political-cultural milieus, acceptance and recognition, that is, legitimacy, are aspired. As a long-term rule, sustainable legitimacy in accordance with the own mandate is preferable over a tempting situational or ‘instant’ legitimacy. This task is so much more difficult because cultures under the influence of trans-boundary communication, economic exchange and migration can no longer be clearly differentiated; instead hybrid constellations formed by the overlap and amalgamation of different cultures prevail (Reckwitz, 2001, pp. 180 et seq.).

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(6) The systemic dimension: In any constellation of rule or power, the involved governmental, economic and civil society actors’ sources and requirements of legitimacy coexist in space and time. This is especially true for cross-boundary and global governance networks. The legitimatory principles and strategies of the actors can strengthen, clash with or neutralise each other. For a certain period of time, they have the tendency to form a more or less consistent legitimatory arrangement.11 Therefore, the democratic legitimisation of trans-boundary political processes requires productive normative and institutional mediation between the highly fragmented rationalities of actors involved (Habermas, 1998, pp. 105 et seq.). Civil society actors contribute in diverse roles to this bargaining (for example monitoring, supplying and ensuring transparency, offering expertise or representing especially marginalised group interests). Functioning networks form a relatively stable, reliable social context which enables the development of mutual trust (Luhmann, 1984, pp. 179 et seq.). Only on this basis, a shared identity and solidarity as well as institutional routines regarded as legitimate can arise (Habermas, 1998, pp. 110 et seq.), which in turn provide for the material and ‘symbolical safeguarding’ of trustworthy relationships (Luhmann, 1984, p. 180). Civil society organisations especially depend on the leap of faith ensured and accumulated jointly with other actors in social networks, which may considerably extend their political weight and influence (ibid.). With the disposal of trust and social capital12 (Bourdieu, 1985, p. 248), civil society actors can deploy power among others in the form of ‘social control’ and ‘rule enforcement’ (Portes, 1998, pp. 9 et seq.). At the same time, the existence of networks provides the social background for the legitimisation of this power.

Notes 1. ‘The actors may ascribe legitimacy to a social order by virtue of […] valuerational faith: valid is that which has been deduced as an absolute’ (Weber, 1968a, p. 36). 2. Lemke observes with a view to the belief in the legitimacy of judicial rule, that people do not adhere to laws simply because ‘they were generated according to formally correct procedure. It takes, more than that, a fundamental “belief” (for example in “ideologies” such as parliamentarianism, constitutional legality or pluralism)’ (2001, p. 93, n. 3). 3. As synonyms for charisma, Weber names ‘prove’, ‘recognition’ and ‘trust’ (Weber, 1968b, p. 242).

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4. Weber used the concept of legitimacy in contexts of life situations when he spoke, for example, of the human need to ‘legitimise’ their own lifestyle and circumstance. He labelled this tendency as ‘a need for psychic comfort about the legitimacy’, for example for the justification of ones own happiness ‘whether this involves political success, superior economic status, bodily health, success in the game of love, or anything else’ (Weber, 1968b, p. 491). 5. An honorary juryman, for example, may not be held responsible for a court ruling he supported by an employer it affected. 6. The system immunises itself ‘not against the “no”, but with the help of the “no”, it protects itself not against changes, but with the help of changes against torpor in entrenched, but no longer environmentally adequate patterns of behaviour. The immune system does not protect the structure, but the autopoiesis, the enclosed self-production of the system’ (Luhmann, 1984, p. 507; emphasis in the original). 7. ‘Science itself can only see something in the context of its own research programs, in the light of its own spotlights, and it is futile to induce it to exceed its own competence […] For politics, therefore, a rather negative rule of confinement is resultant: that it should avoid making decisions in matters where there is the risk that science would know better’ (Luhmann, 1996, p. 173). 8. ‘Thanks to its procedural properties, the democratic process has its own mechanisms for securing legitimacy; it can, when necessary, fill the gaps that open in social integration, and can respond to the changed cultural composition of a population by generating a common political culture’ (Habermas, 2001, p. 74). 9. Foucault formulates this correlation as the two meanings of the word subject: ‘subject to someone else by control and dependence, and tied to his own identity by a conscience or self-knowledge. Both meanings suggest a form of power which subjugates and makes subject to’ (Dreyfus and Rabinow, 1982, p. 212). 10. The characteristic trait of power is that some people can claim more or less total control over other people – but never in an exhaustive or coercive way (Foucault, 1988, p. 66). 11. Foucault defines the reciprocity of legitimising relations with his formula of ‘leading of leaders’ (1987b, p. 255). With this seemingly paradoxical term, he wants to clarify that in democratic rule and power relations leaders’ aspiring to legitimacy are dependent on the disposition of the legitimately led subjects and vice versa. 12. Bourdieu defines trust and social capital respectively as ‘the aggregate of the actual or potential resources which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance or recognition’ (1985, p. 248).

References A. Arato and J. L. Cohen (1992) Civil Society and Political Theory (Cambridge, MA: Cambridge University Press). P. Bourdieu (1985) ‘The Forms of Capital’ in J. G. Richardson (ed.), Handbook of Theory and Research for the Sociology of Educations (New York: Greenwood), pp. 241–58.

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I. Clark (2003) ‘Legitimacy in a Global Order’, Review of International Studies, 29, Special Issue, December, pp. 75–98. J. Cohen (1996) ‘Procedure and Substance in Deliberative Democracy’ in S. Benhabib (ed.), Democracy and Difference: Changing Boundaries of the Political (Princeton: Princeton University Press), pp. 95–119. J. Cohen and C. Sabel (1997) ‘Directly-Deliberative Polyarchy’, European Law Journal, 3, 4, pp. 313–42. M. Dean (1994) Critical and Effective Histories: Foucault’s Methods and Historical Sociology (London: Routledge). H. L. Dreyfus and P. Rabinow (1982) Michel Foucault: Beyond Structuralism and Hermeneutics (Brighton: Harvester Wheatsheaf). B. Flyvbjerg (1998) ‘Habermas and Foucault: Thinkers for Civil Society?’, The British Journal of Sociology, 49, 2, pp. 210–33. R. Forst (2001) ‘The Rule of Reasons: Three Models of Deliberative Democracy’, Ratio Juris, 14, 4, pp. 345–78. M. Foucault (1977) Der Wille zum Wissen. Sexualität und Wahrheit 1 (Frankfurt a. M.: Suhrkamp). M. Foucault (1978) Dispositive der Macht (Berlin: Merve). M. Foucault (1985) Freiheit und Selbstsorge (Frankfurt a. M.: Materalis). M. Foucault (1987a) The Use of Pleasure: The History of Sexuality, Volume 2 (London: Penguin). M. Foucault (1987b) ‘Das Subjekt und die Macht’ in H. L. Dreyfus and P. Rabinow, Michel Foucault: Jenseits von Strukturalismus und Hermeneutik (Frankfurt a. M.: Attenäum), pp. 243–61. M. Foucault (1988) ‘Für eine Kritik der politischen Vernunft’, Lettre Internationale, 1, pp. 58–66. M. Foucault (1991) ‘Governmentality’ in G. Burchell, C. Gordon and P. Miller, The Foucault Effect: Studies in Governmentality (London: Harvester Wheatsheaf), pp. 87–104. M. Foucault (1992) Was ist Kritik? (Berlin: Merve). M. Foucault (1993) ‘About the Beginning of the Hermeneutics of the Self’, Political Theory, 21, 2, pp. 198–227. M. Foucault (1994a) ‘Table ronde du 20 mai 1978’ in M. Foucault, Dits et Ecrits IV (Paris: Gallimard/Seuil), pp. 20–34. M. Foucault (1994b) ‘Politik und Ethik’, Deutsche Zeitschrift für Philosophie, 42, pp. 703–8. M. Foucault (2005) Schriften, Bd. 4: 1980–1988 (Frankfurt a. M.: Suhrkamp). H. Goldman (1988) Max Weber and Thomas Mann: Calling and the Shaping of the Self (Berkeley: University of California Press). H. Goldman (1992) Politics, Death, and the Devil: Self and Power in Max Weber and Thomas Mann (Berkeley: University of California Press). J. Habermas (1973) Legitimationsprobleme im Spätkapitalismus (Frankfurt a. M.: Suhrkamp). J. Habermas (1990) Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft. Mit einem Vorwort zur Neuauflage 1990 (Frankfurt a. M.: Suhrkamp). J. Habermas (1992) ‘Zur Rolle von Zivilgesellschaft und politischer Öffentlichkeit’ in J. Habermas, Faktizität und Geltung (Frankfurt a. M.: Suhrkamp), pp. 399–467.

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J. Habermas (1997) (1981) Theorie des kommunikativen Handelns, Bd. I (Frankfurt a. M.: Suhrkamp). J. Habermas (1998) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: Polity Press). J. Habermas (2001) The Postnational Constellation: Political Essays, translated, edited and with an introduction by Max Pensky (Cambridge, MA: MIT Press). J. Habermas (2005) ‘Eine politische Verfassung für die pluralistische Weltgesellschaft?’ in J. Habermas, Zwischen Naturalismus und Religion (Frankfurt a. M.: Suhrkamp), pp. 324–65. J. Heidorn (1982) Legitimität und Regierbarkeit. Studien zu den Legitimitätstheorien von Max Weber, Niklas Luhmann, Jürgen Habermas und der Unregierbarkeitsforschung (Berlin: Duncker and Humblot). K.-U. Hellmann (1996) ‘Einleitung’ in N. Luhmann, Protest. Systemtheorie und soziale Bewegungen, herausgegeben und eingeleitet von Kai-Uwe Hellmann (Frankfurt a. M.: Suhrkamp), pp. 7–45. W. Hennis (1996) Max Webers Wissenschaft vom Menschen: Neue Studien zur Biographie des Werks (Tübingen: J. C. B. Mohr/Paul Siebeck). T. Jakobi (2000) Ansätze der Theorie deliberativer Demokratie. Arbeit zur Erlangung eines Magister Artium (Heidelberg: Universität Heidelberg). S. H. Kim (2000) ‘“In Affirming Them, He Affirms Himself”. Max Weber’s Politics of Civil Society’, Political Theory, 28, 2, pp. 197–224. S. Lange (2003) Niklas Luhmanns Theorie der Politik. Eine Abklärung der Staatsgesellschaft (Wiesbaden: Westdeutscher Verlag). T. Lemke (2001) ‘Max Weber, Norbert Elias und Michel Foucault über Macht und Subjektivierung’, Berliner Journal für Soziologie, 11, 1, pp. 77–98. T. Lemke (2006) Gouvernementalität und Biopolitik (Wiesbaden: VS Verlag fur Sozialwissenschaften). N. Luhmann (1983) Legitimität durch Verfahren (Frankfurt a. M.: Suhrkamp). N. Luhmann (1984) Soziale Systeme. Grundriß einer allgemeinen Theorie (Frankfurt a. M.: Suhrkamp). N. Luhmann (1993) ‘Protest Movements’ in N. Luhmann, Risk: A Sociological Theory (Berlin: Walter de Gruyter), pp. 125–44. N. Luhmann (1996) ‘Systemtheorie und Protestbewegungen. Ein Interview’ in N. Luhmann, Protest: Systemtheorie und soziale Bewegungen, herausgegeben und eingeleitet von Kai-Uwe Hellmann (Frankfurt a. M.: Suhrkamp), pp. 175–200. N. Luhmann (2000) Die Politik der Gesellschaft, herausgegeben von André Kieserling (Frankfurt a. M.: Suhrkamp). H. Mandt (1998) ‘Stichwort Legitimität’ in D. Nohlen (ed.), Wörterbuch Staat und Politik (Bonn: Bundeszentrale für politische Bildung). J. Miller (1993) The Passion of Michel Foucault (New York: Simon and Schuster). J. Mittelstraß (ed.) (1995) Enzyklopädie Philosophie und Wissenschaftstheorie, Bd. 2 (Stuttgart/Weimar: Verlag J. B. Metzler). P. Niesen (2008) ‘Deliberation ohne Demokratie? Zur Konstruktion von Legitimität jenseits des Nationalstaats’ in R. Kreide and A. Niederberger (eds), Transnationale Verrechtlichung. Nationale Demokratien im Kontext globaler Politik (Frankfurt a. M., New York: Campus), pp. 240–59 B. Peters (1994) ‘Der Sinn von Öffentlichkeit’ in F. Neidhardt (ed.), Öffentlichkeit, öffentliche Meinung, soziale Bewegungen, Sonderheft 34 der Kölner Zeitschrift

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für Soziologie und Sozialpsychologie (Opladen: Westdeutscher Verlag), pp. 42–76. A. Portes (1998) ‘Social Capital: Its Origins and Applications in Modern Sociology’, Annual Review of Sociology, 24, 1, pp. 1–24. A. Reckwitz (2001) ‘Multikulturalismustheorien und der Kulturbegriff: Vom Homogenitätsmodell zum Modell kultureller Interferenzen’, Berliner Journal für Soziologie, 11, 2, pp. 179–200. W. Reese-Schäfer (1999) Niklas Luhmann: Zur Einführung (Hamburg: Junius Verlag). T. Schabert (1986) ‘Power, Legitimacy and Truth: Reflections on the Impossibility to Legitimise Legitimations of Political Order’ in A. Moulakis (ed.), Legitimacy/ Legitimité. Proceedings of the Conference held in Florence, June 3 and 4, 1982 (Berlin: Walter de Gruyter), pp. 96–104. U. Schliesky (2004) Souveränität und Legitimität von Herrschaftsgewalt: Die Weiterentwicklung von Begriffen der Staatslehre und des Staatsrechts im europäischen Mehrebenensystem (Tübingen: Mohr Siebeck). R. Schmalz-Bruns (2005) ‘Demokratie im Prozess der Globalisierung: Zur Demokratieverträglichkeit von Global Governance’ in M. Behrens (ed.), Globalisierung als politische Herausforderung. Global Governance zwischen Utopie und Realität (Wiesbaden: VS Verlag für Sozialwissenschaften), pp. 79–98. T. Strong (1992) ‘What Have We to Do with Morals: Nietzsche and Weber on History and Ethics’, History of Human Sciences, 5, 1, pp. 9–18. M. Weber (1968a) Economy and Society: An Outline of Interpretive Sociology, Volume 1 (Berkeley, CA: University of California Press). M. Weber (1968b) Economy and Society: An Outline of Interpretive Sociology, Volume 2 (Berkeley, CA: University of California Press). M. Weber (1975) Roscher and Knies: The Logical Problems of Historical Economics (New York: Free Press). M. Weber (1985) ‘“Churches” and “Sects” in North America: An Ecclesiastical Socio-Political Sketch’, translated by Colin Loader, Sociological Theory, 3, 1, pp. 7–13 (Orig. pub. 1906). M. Weber (1994) ‘Parliament and Government in Germany under a New Political Order’ in M. Weber, Political Writings, edited and translated by P. Lassmann and R. Speirs (Cambridge: Cambridge University Press), pp. 130–271.

3 Legitimating INGO Advocacy: The Case of Internal Democracies Darren Halpin and Peter McLaverty

While significant debate exists with respect to the historical novelty of contemporary processes of internationalisation and globalisation (cf. Held and McGrew, 2002; Scholte, 2005), there is a general consensus that circumstances have fundamentally altered the way governance is enacted beyond the nation state.1 And, regardless of one’s normative view, the argument that many contemporary issues necessitate coordinated action across national borders is persuasive. Trade relations and human rights issues, for example, can benefit from coordinated action among nation states. Increasing attention is being paid to the way in which the everyday lives and opportunities of the world’s citizens are being shaped by the decisions and deliberations of International Governmental Organisations (IGOs). As such, concerns are being raised about the poor level of democratic accountability of such institutions to those who are affected. One does not have to be a convicted normative cosmopolitan to accept that as key decisions are increasingly hammered out in such global institutions, those same institutions need to demonstrate forms of democratic accountability to the citizens affected. There is some acceptance that the legitimacy afforded IGOs by the mere fact that they are composed of member states – most of which are democratically elected governments – is stretched as the scope of decisions made by such institutions, and their impact, grows (Anderson and Rieff, 2005, p. 34). This is all the more critical as evidence suggests that IGOs act with increasing, albeit modest, levels of autonomy from member states (Scholte et al., 1999, p. 108). While criticism of IGOs, such as the UN, has most often been levelled on performance grounds, it is now shifting to concerns over democratic legitimacy (Falk, 2006). This connects with a broader thread in the literature that diagnoses a ‘democratic deficit’ in most long established Western liberal 55

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democracies; typically on the back of declining voter turnout, falling party memberships and indicators that citizens have lost trust in politicians (Dalton, 2004; 2006; Pattie et al., 2004). Yet, arguably, the problem of democratic legitimacy is more pronounced in global forms of governance. The poor capacity of nation states to govern ‘de-territorialised’ economic flows and social and cultural relations, the absence of ‘nation state-like’ mechanisms to legitimate emerging forms of global governance (an absence of a global government and parliament or global citizenship), and the dominance of large nation states in many IGOs, are all cited as reasons for democratic deficits in global governance. Scholte (2002, p. 289) sums up the mood when he argues that ‘it is no exaggeration to say that contemporary globalization has provoked a crisis of democracy’. He asks, ‘How can post-sovereign conditions be fashioned to yield adequate popular participation, open debate, consultation and representation as well as transparency and democratic accountability?’ (Scholte et al., 1999, p. 108). For the purposes of our discussion in this chapter, we assume that this diagnosis of democratic deficit is established and accepted; but we acknowledge that not everyone will agree. This central question has solicited various responses. With a desire to address the democratic deficit in global governance, some have advocated strengthening IGOs and/or working towards establishing a form of global government (cf. Held, 1995, pp. 267–86). Held has called for the development of mechanisms at the global level that in many ways reflect those found in nation states, such as directly elected parliaments or assemblies. Held suggests the establishment of a popularly elected chamber of the United Nations and a role for directly elected assemblies at the regional level, above the level of the nation state, along with a greater role for regional representatives. He also sees an important role for INGOs beyond the nation state. While accepting, as suggest Anderson and Rieff (2005, p. 34), that the mere participation of nation states in global governance is not enough to plug democratic deficits, others maintain that global governance can be democratised by the reform of nation states themselves. For instance, Colas (2002) favours attributing democratic agency to nation states. But many scholars have also advocated an engagement with (organised) global civil society – or INGOs – as a way to move forward (see for example Falk, 2006; Scholte, 2000; 2002; Keck and Sikkink, 1998; Van Rooy, 2004). Risse (2006, p. 180), for example, argues ‘democratic government beyond the nation state faces serious hurdles. At least, mechanisms to enhance democratic legitimacy cannot simply be transposed from the domestic level onto the international level. The main problem of

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transnational governance concerns the lack of congruence between those who are being governed and those to whom the governing bodies are accountable’. He rejects the impossibility of ‘democratic governance beyond the nation state’; he argues that ‘input legitimacy’ is an important focus for developing global democracy (Risse, 2006, p. 180). He concludes ‘The problem for legitimate governance beyond the nation state is to improve on external accountability, to make sure that the various governance bodies […] can be held responsible by those who are affected by their decisions and rules’. He continues with respect to INGO involvement ‘As a result, transnational governance arrangements ought to include “external stakeholders” as a way of improving both their participatory quality and their effectiveness’ (Risse, 2006, p. 195). This option, endorsing the role of organised global civil society, has garnered a high level of academic interest and debate, and as such we concentrate much of our attention on this proposed resolution to the global democratic deficit.

The ‘Global Civil Society’ option: Is it ‘representation’ or ‘voice’? The growth of INGOs and the increasing level of intensity and frequency of their engagement with IGOs (cf. Gordenker and Weiss, 1996, p. 44; Scholte et al., 1999, p. 109; Glasius et al., 2006a, p. 408), it is argued, provide a base from which to build new forms of democratic accountability and legitimacy (see for example, Keck and Sikkink, 1998; Scholte, 2002; Van Rooy, 2004). As Collingwood and Logister (2005, p. 181) observe, some scholars argue that: INGOs can play a critical role in democratising the global order and achieving greater distributive justice. INGOs can act as agents for change in the reform or radicalisation of current political and economic structures, offering an attractive alternative to the centuriesold rivalry between states. They can hold other state and non-state actors to account; act as democratising agents, giving under-represented peoples a ‘voice’ at the global level; and social and moral issues onto the global agenda. The notion that global civil society, or INGOs, can contribute to plugging the democratic deficit is echoed by many IGOs. Most of these institutions have had long standing arrangements in place to consult with groups of various types. What is unique about the current period is that these relations with groups are being viewed through a different lens.

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For example, the United Nations has reflected on how best to engage with civil society, forming a Panel of Eminent Persons on United Nations-Civil Society Relations which reported in 2004. The Panel’s report argues that the engagement with INGOs ‘could help the United Nations do a better job, further its global goals, become more attuned and responsive to citizens’ (United Nations, 2004, p. 8). Similar noises are evident at the World Trade Organisation (WTO) and at the European Union (EU). We come to the question of the terms on which they engage with INGOs in a moment. The academic and IGO endorsement of INGOs or organised global civil society does raise the question as to precisely ‘how’ their presence in global governing arrangements and processes remedies the democratic deficit. If the primary deficit globally is in the lack of democratic accountability between global citizens affected by global governance and those making decisions, as Risse claims above, how is it that INGOs can constitute such a linkage? While many IGOs seem to endorse the idea that global civil society can address democratic deficits (albeit that they increasingly explore accreditation as a tool to control groups access), commentators and scholars are generally becoming more cautious about the ‘idea of civil society as panacea’ (Glasius et al., 2006b, p. 21). Colas (2002, p. 28) argues that there are several ‘thorny questions’ facing INGOs. He says ‘the democratic claims in favour of global civil society immediately raise thorny questions about its agents: who are the constituents of global civil society? How has their mandate been legitimated? What is the remit of their representation? How can their actions be made accountable?’ In a superb review article, Collingwood and Logister (2005, p. 179) argue there have been three main criticisms levelled at INGOs in this context: (a) that there are conflicts between the constituency that supports them (usually in the North) and the constituency they seek to help (usually in the South), (b) that there is an effectiveness and/or credibility gap – a discrepancy between what they say they do and what they actually do, or between what they say are the facts and what is really going on, and (c) that there are insufficient procedural constraints on INGOs (absence of internal democracy, participation and accountability). In processing these debates, three main positions seem to be emerging about how the democratic role of INGOs – and global civil society – can be retrieved. (a) The democratic ‘representation’ variant The role foreshadowed for organised global civil society by various theorists, global institutions and sometimes groups themselves, has created

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a set of heightened expectations which has attracted critical scrutiny. One of the chief positions emerging is that democratic agents need also to be democratic practitioners: INGOs must have functioning internal democracies. It is important to be clear that we mean democratic representation. In a recent contribution, Rehfeld (2006, p. 2) makes the salient point that one needs to separate out democratic and non-democratic political representation. He concludes that ‘The standard, democratic account [of representation] thus turns out to be merely a special case of the more general phenomenon: political representation arises simply by reference to a relevant audience accepting a person as such. Thus, political representation, per se, is not a particularly democratic phenomenon at all’. We are not in favour of such an ‘integrated’ approach to representation (integration could be a force for conflation of usage – and the democratic connection could become lost) but we come to these other forms of ‘representation’ in the next section. An emerging consensus is that claims for associations contributing to ameliorating democratic deficits – whatever the ‘level’ of governance – rest on a set of assumptions about group practices. The asserted benefits from the enhanced status of groups relies, according to Perczynski (2000), on the accuracy of the assumption that groups are, or at least could be, voluntary, internally democratic, accountable to members and provide arenas for member deliberation. This approach creates an ideal type of ‘democratic’ INGO, and invites comparisons with group practice as a basis for ‘correcting’ imperfections in global civil society. As will become evident, it forms the basis for a powerful critique of INGO legitimacy measured against ‘representation’. It has not taken long for scholars to ‘find’ that many INGOs do not have elaborate internal democracies. McLaverty (2002) observes ‘that there is nothing intrinsically democratic about “civil society organizations”’ (McLaverty, 2002, p. 310; emphasis in the original), and that ‘in reality they often fall short of democratic principles’ (McLaverty, 2002, p. 314). This insight is often repeated for INGOs at all levels of governance (see Lyons, 2001; Warleigh, 2001). Amidst growing criticisms of global civil society as unaccountable and undemocratic, some advocates have conceded the need for change. There are clear concerns that the ‘civil society as panacea’ argument – and its endorsement by some IGOs and INGOs – has been in some respects unhelpful; with a risk that increased scrutiny on the democratic legitimacy of INGOs may well threaten their popular credibility. For some, the finding of poor internal democracy sparks a call for better

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internal democratic practice by INGOs. As regards the role of INGOs in global politics, Sikkink (2002, p. 301) argues that ‘international NGOs and transnational networks, coalitions, and movements enhance deliberation and representation in international institutions by providing voices and ideas that were previously absent. At the same time, NGOs and networks need to address their own asymmetries and questions of accountability and transparency, so they can enhance their internal democracy while helping to democratize international institutions’. As discussed earlier, IGOs are stating that INGOs can assist in addressing their democratic legitimacy deficits. But, the type of approach outlined by Sikkink is also evident in the qualifications IGOs are adding to their endorsement of INGO engagement. Many IGOs have themselves endorsed a view that enhanced access comes with more responsibilities. For example, in its 2001 White Paper on European Governance, the European Commission implies a need to not just engage with any INGO, but with those of a certain quality. It argues that ‘Civil society must itself follow the principles of good governance’ (Commission of the European Communities, 2001, p. 15). Although, as Greenwood and Halpin (2007) suggest, in practice the consensus at the Commission is to operate a system that operationalises ‘representativeness’ in ways that do not insist on internal democracy (such as insisting that associations have a broad coverage across EU member states). Other institutions have been through similar debates. In a connected vein, the report of the UN Panel of Eminent Persons on United Nations-Civil Society Relations called for a ‘more selective and not just increased engagement’ with INGOs (United Nations, 2004, p. 8). Mason (2004) reports a similar debate at the WTO. (b) The ‘voice’ variant Perhaps sensing the difficulties with the above approach – operationalising internal democracies in many INGOs may be difficult or outright impossible (see Halpin, 2006) – some are looking at other ways to retrieve the role of INGOs as democratic agents. At the other end of the spectrum is the view that such groups simply ‘voice’ concerns and as such need no internal checks delivered by way of internal democracy. In this vein, Wolf (2006) argues that in a market place of ideas there is little justification for vetting access for any group – regardless of view, internal structure or funding source. Risse (2006, p. 190) argues that the criticisms of INGOs over input legitimacy problems ‘misses the mark’. He says that ‘All they have to wield influence in world politics is moral authority and expert knowledge in their respective organizations

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“issue-areas” of concern. [I]NGOs’ moral authority however, is directly linked to claims that they represent the common good in global affairs as well as the “voices of the weak and powerless”’. Where others construct democratic legitimacy as based on representation – and thus generated by internal democracies and accountability to constituencies – this position takes an entirely different approach. Underpinning this view is the notion that INGOs should construct ‘external’ chains of accountability. While internal accountability has INGOs being held to account by internal supporters/members, external accountability has groups held to account by those who are affected by decisions (most often presented as the ‘global public’). By the mere fact that the reputations of groups decline if their ‘expert’ knowledge, or their commitment to global values, is found to be base-less the groups are said to be held to account (a form of external accountability). Risse (2006, p. 190) says ‘the influence of [I]NGOs in world politics is directly linked to their external accountability and legitimacy. Their vulnerability to threats to their reputation serves as a powerful control mechanism to keep them honest’. This accountability mechanism justifies the abandonment of the need for internal legitimacy. A related approach emerges in the work of Florini (2000, p. 236, cited in Sikkink, 2002, p. 315), who argues that poor and inaccurate arguments and ideas are eventually noticed by supporters, who will seek change through ‘voice’, or ultimately ‘exit’. As such, a ‘market place for ideas’ is self-regulating. The notion of groups being popularly accountable through a widespread ‘acceptance’ of their arguments, values and activities, associated with the idea of ‘external accountability’ is not one that can simply be dismissed. However, it is based on a very loose idea of accountability, in which, at best, people give implicit support for the groups’ values, aims and so on, rather than explicitly giving their support. It is difficult to know how people collectively would express their lack of support or hostility to any group. Moreover, citizens may accept that a group is doing useful work and tacitly support its activities, without in any sense endorsing its policies or approach on any specific issues. It can at least be suggested that an effective form of democratic accountability demands more active opportunities for people to make their opinions known and control what is happening. In the context of discussions about the role INGOs can play in democratising global governance – dealing with the democracy deficit – Van Rooy advocates a model of ‘supplementary democracy’. This model draws on both the external and internal forms of accountability discussed above. She says ‘The underlying argument is that voice is more valuable

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to democracy than vote. Or in other words, it is more important to guarantee increased participation (a greater variety of voices) in existing structures of global governance than it is to create new elected positions for non-governmental actors’ (Van Rooy, 2004, p. 137). Following Edwards, she says that ‘voice is the bedrock of participatory democracy and voting the bedrock of representative democracy’ (Van Rooy, 2004, p. 138). Van Rooy seems to argue that groups should stick to ‘voice’ legitimated on non-representative grounds and that this is insufficient to address the democratic deficit; that is, we still need representative institutions. Nevertheless she still sees group involvement as enhancing global democracy. She asks ‘Why do I think that supplementary democracy might increase the democratic quality of global governance?’ (Van Rooy, 2004, p. 140). Her response is three-fold. She argues that INGO involvement in policy processes i) delivers more ethical policies ii) makes for better decisions in the public interest – ‘If all voices are heard, there is at least a chance that “good quality” ones will also get their day’ (Van Rooy, 2004, p. 142), and iii) enhance accountability – ‘Still another reason – perhaps the most important reason for democracy – is that increased participation would improve the surveillance of global institutions, thus adding further pressure for improved transparency and accountability in those bodies’ (Van Rooy, 2004, p. 142). Of course, these statements rely to a large extent on a normative definition of which groups constitute global civil society: presumably what Chambers and Kopstein (2001, pp. 844 et seq.) call hate groups, such as the Ku Klux Klan and the Nation of Islam are not going to contribute to ‘ethical’ or ‘good quality’ policy? But what has this – if anything – to do with democratic legitimacy? These legitimacies may in fact generate authority for group advocacy, but not founded on a representative democratic nature. (c) A plurality of legitimacies? It is possible, then, to crudely present the contending views on the issue of legitimating group advocacy into two opposing camps. On the one hand, the ‘representation’ approach implies that internal democracies and opportunities for participation by members/supporters of groups (whether they be citizens or individual businesses) are necessary to legitimate group advocacy. The ‘market place of ideas’ approach disputes the entire notion that groups should conform to the internal democratic standards or that this delivers legitimacy. Of course, the stark option presented above belies a range of alternative perspectives on legitimising INGO advocacy. The better articulated of these gesture

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to internal democracy yet subsume it into a broader plurality of legitimacy(ies). This perspective, as such, does not explicitly confront the issue of whether all groups should be compared to a democratic ideal type, or, at the least, holds it in abeyance. An emerging position is that groups gather democratic legitimacy (simultaneously) from various sources. For instance Wolf (2006) contrasts legitimacy granted by processes of authorisation – such as that delivered by internal democratic decision making – with the acceptance of a group as ‘an authority’ by virtue of other forms of legitimacy. As such, he suggests that INGOs attract and generate legitimacy from a range of sources. He says ‘Obviously, this conceptualization of inputlegitimacy [within groups] does not conform to the liberal notion of democratic legitimacy’ (Wolf, 2006, p. 212). But he seems to reject, along with other writers mentioned above, any notion that representative and majoritarian forms of democratising governance available at the nation state level have any possibility of being reassembled at the global level. Thus, he seems to assume that alternatives are necessary. A good deal of recent scholarship has been about identifying these ‘other’ forms of legitimacy. Scholars such as Van Rooy (2004) highlight diverse sources of legitimacy. She reviews the various ways in which INGOs generate legitimacy. For her, ‘representation’ – she includes within this membership (size, breadth and depth) and internal democracy (election, control, and accountability) – is only one source of legitimacy: and not a dominant one at that. Other bases are as, if not more, important: these include the deployment of ‘victimhood’, ‘expertise’, ‘experiential evidence’, and ‘moral authority’ (Van Rooy, 2004, pp. 63–97) (see Table 3.1). Similarly, Keck and Sikkink (1998, p. 16) elaborate key ‘strategies of influence’, none of which rely on internal democracy for their power or authority.

Table 3.1 Legitimating advocacy • Representation Membership (size, breadth and depth) Internal Democracy (election, control, accountability) • Victimhood • Expertise • Experiential evidence • Moral authority Source: Compiled from Van Rooy (2004)

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Sorting out what sources or types of legitimacy are necessary when is for some related to the extent of policy engagement between groups and governmental organisations. That is, exceptions to internal democracy are granted where the organisations are not involved in actual decision making. For instance, Edwards and Zadek (2002, cited in Van Rooy, 2004, p. 138) say, Any non-state actor is entitled to voice and opinion. This is a basic human right that need only be subject to the minimum amount of regulation required to guard against slander, violence or discrimination. No other legitimacy is required. But negotiating a treaty is a very different matter, in which detailed rules may be essential to preserve genuine democracy in decision making. In this case, legitimacy through representation is essential. The approach concurs that group legitimacy can be gathered from various sources where the group is not directly involved in decision making (as per Van Rooy). While this legitimacy is suitable where policy is being discussed and debated, it is insufficient in terms of decision making. At this point, they argue, internal democracy (accountability and authorisation to constituencies) is necessary. The argument here is that if an INGO seeks only to voice an opinion on the world stage, then it need not require internal democratic processes to be legitimate. Recent work points to INGOs being able to influence the agenda on which IGOs work and also, in some cases, to directly influence policymaking and policy implementation. Increasingly, as shown above, NGOs are involved formally, as well as informally, in the work of bodies such as the EU and the UN. Martens (2005, pp. 45–94), in her study of the relationship between INGOs and the United Nations, has shown how INGOs in the areas of human rights and humanitarian aid are now linked into the whole policy process of the United Nations. As well as providing information, INGOs are involved in policy formation and in policy implementation. Such developments give INGOs an input into the policy process but the question of what this means for democracy still remains. For others, this admission that ‘representation’ is not always a model appropriate to legitimating INGO advocacy offers a suitable rationale to retract the entire ‘global civil society’ project. For example, Anderson and Rieff (2005, p. 29) suggest that INGOs have become imbued with far too weighty a set of expectations. They say that INGOs are not ‘representative’, but are ‘single-minded advocates – organisations with an

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axe to grind and a social mission to accomplish’ (Anderson and Rieff, 2005, p. 29). They simply state, with no hint of surprise, that ‘in the end, [I]NGOs exist to reflect their own principles, not to represent a constituency to whose interests and desires they must respond’ (Anderson and Rieff, 2005, p. 29). This argument prompts them to argue that INGOs should ‘assert themselves on the basis of their expertise and competence and, concomitantly, to give up their claims to intermediation and representation – that is, to give up the claim to constitute global civil society’ (Anderson and Rieff, 2005, p. 35). This insistence that groups lack a constituency highlights the lack of a clear definition of INGO.2 On the narrow (some may say normative) view of the likes of Van Rooy or Sikkink3 – that INGOs by definition pursue voice for the marginalised and righting injustice – this is a generally apt point. But if we take a more broad organisational approach, such as that of Scholte (INGOs meet certain organisational criteria), we could see many INGOs as having identifiable constituencies with attached interests (for example the International Chambers of Commerce). Other voices object to the ‘simple equation of democratization with the “pluralization” of global governance’ (Colas, 2002, p. 158). Colas expands, ‘many grassroots globalization and global governance theorists uncritically equate the global expansion of civil society and its attendant insertion into the processes of global governance with the improved prospects for democratization. Yet, as the discussion thus far has emphasized, there is nothing inherently democratic in the global reproduction of civil society, either within states or internationally through the institutions of global governance’ (Colas, 2002, p. 162). In reflecting on the state of the current debate, Sikkink (2002, p. 315) concludes that ‘It is very likely that there is no single model of either representation or accountability, but rather diverse strategies appropriate to organizations of different sizes and purposes’. The issue we want to focus on for the rest of this chapter relates to the broad question of whether internal democracy via the enfranchisement of the constituency being advocated for is necessary to legitimise INGO advocacy.

Representation and solidarity: Implementing internal democratic accountability As yet, we have treated all groups as though they were engaged in principally the same activity and logically could be treated and judged by the same metric in relation to legitimating advocacy. But is this the case?

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Here we argue that two ‘ideal type’ forms of advocacy are possible: representation and solidarity. Representation implies that group leaders affiliate the constituency they seek to advocate for. Thus, the affiliates (members or supporters) to the group are from the constituency whose interests are being advocated. By contrast, when groups affiliate people to support the interests of a separate constituency, these groups engage in solidarity. Solidarity is where the individuals affiliated to a group as supporters are not the same as the constituency whose interests the group is advocating for. The question is what form of advocacy is suitable and appropriate for what type of group? Here we argue that constituency matters. The problem is that representation is simply not able to be operationalised for some constituencies. Representation is available to constituencies that are human – those that are capable of presence and voice. Thus, groups can affiliate humans into a group, and humans can hold their representatives to account and authorise them to represent their views. However, representation is not available to non-human constituencies and future generations. Animals, plants, ecosystems, and the unborn are not capable of presence or of voice. They cannot hold representatives to account, nor authorise them. Thus, they cannot be democratically represented. This position draws on the work of Hannah Pitkin and John O’Neill. In her foundation work on representation, Hannah Pitkin (1967) distinguished between unattached and attached interests. Attached interests were those cases where people are represented. Representatives ought to then be expected to consult with those to which interests are attached. By contrast, unattached interests were those where no one can claim a privileged basis to represent it. Thus, consultation with individuals is less important. It is this broad approach that O’Neill (2001) identifies when he contrasts how (and if) representation can be operationalised for Human v. Non-human constituencies. For O’Neill, representation requires that a constituency can both authorise and hold accountable representatives. To do this the constituency must have voice and presence. The problem is that living humans (apart from young children) do have voice and presence, and can hold representatives accountable and authorise them – but non-human constituencies cannot. Therefore, he argues that humans can be represented but non-human constituencies can only have us humans organise to show solidarity with them. In sum, we agree with the argument that democratic representation should be a key to legitimating the advocacy of groups. Yet, we argue that some groups – those that advocate for non-humans, young

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children and future generations – are not in the representation game at all. This has implications for how one assesses groups like the WWF or Greenpeace. We suggest these are only capable of solidarity. As such, whether they enfranchise their supporters is not critical for the legitimacy of the group. For, the group must gather its legitimacy from nondemocratic forms: it cannot literally enfranchise nature, so it must draw on ‘epistemic’ forms of legitimacy. For instance, by referring to scientific argument or other expert forms of knowledge that support its claims to ‘know’ what is in the best interests of nature. Insisting on enfranchisement of supporters of solidarity groups is, we argue, not really enhancing the democratic legitimacy of the group – just making it better resourced and perhaps making the cause more electorally significant. This leaves us with groups that advocate for human constituencies. Here, we argue that such groups are capable of representation, and that they should affiliate their constituency and enfranchise them in internal democratic processes. The enfranchisement of constituency members clearly legitimates the advocacy of representation groups. For example, an organisation such as the International Chambers of Commerce can – and does – affiliate national chambers of commerce and related businesses. Its claim to represent the interests of this constituency is legitimated by internal processes that mean the group’s leaders are held to account and authorised by the same constituency. It is to groups capable of representation that the ‘representation’ account of legitimacy ought to apply – not to solidarity groups. Of course, not all groups capable of representation by virtue of advocating for a human constituency actually follow through with democratic representative practices; they do not affiliate their constituency and they do not enfranchise them into internal democratic processes. It is to this small section of groups that the critics of group democratic practices should most logically apply – they are democratic underachievers. Take for instance organisations that advocate for the blind, or for those suffering acute illness or the homeless. Many such groups do not affiliate the constituencies they seek to advocate for – they offer solidarity when they could offer representation. There are of course many practical reasons why such groups do not practise representation (see for instance Baggot et al., 2005 with respect to patient groups for terminally ill). As it happens, this under-achievement charge is probably most apt for global civil society groups. For instance, Amnesty International pursues the human rights of political prisoners, but does not enfranchise this constituency. Similarly, Oxfam, a charity pursuing human

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rights and poverty eradication globally, does not enfranchise the rural poor or those suffering human rights abuses. What little data exists on INGOs, suggest that by and large they are Western based organisations, funded by supporters in the west, to assist people in the south. As writers have commented, the most vociferous or powerful INGOs have a membership or a list of supporters that is dominated by people from the global north (see Glasius et al., 2006a, p. 408). People from poor countries have little input into those INGOs. While many of the INGOs may, therefore, claim either to speak on behalf of all of humanity (and sometimes nonhuman nature as well) or to promote the interests of people from the poor countries, much of humanity is not involved in the leading INGOs. Even within ‘northern’ societies where support for INGOs is stronger there are reasons to question the extent to which the groups represent the opinions of the people in those societies, whether through ‘internal’ or ‘external’ mechanisms.

What would an insistence on democratic representation achieve? As reviewed above, the mood of the literature and of IGOs is to insist that groups prove they are representative, or potentially be excluded from political influence. Leaving to one side the issue of the ‘practicality’ of exclusion (many of these groups actually influence through public opinion shaping and framing at agenda setting stages), such a move would exclude all solidarity groups with one stroke. Alternatively, it may motivate such groups to establish enfranchisement for their supporters – but as we have noted it is not at all clear that doing so would actually legitimate advocacy in any democratic sense. For instance, why would leaders of Greenpeace being held to account by supporters make their advocacy any more democratically legitimate? It may make expenditure more transparent, but this is a different question. The concern is that a focus on democratic representation would come at cross-purposes to the goal of political inclusion. For instance, the many constituencies that are human, but for which significant (perhaps insurmountable) obstacles lie in the way of affiliation and enfranchisement within a group, would be counted as undemocratic. It could be argued that groups such as Amnesty International and Oxfam would fit into this category. As it happens, probably predictably, these constituencies tend to be those with low levels of resources, the socially and economically marginalised, the politically unpalatable and the marginal. We take the view that the benevolent voice of well-meaning

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Table 3.2

What would be gained/lost by exclusion of undemocratic INGOs?

Gained

Lost

• Policy driven by groups that are representative – who do they speak for?

• Groups that spoke for non-humans have internal democracies with no clear purpose

• More certainty of the authority of group leaders

• Absence of many groups for non-humans – and no voice for these interests

• Policy more closely reflects desires of actual citizens

• Absence of many groups showing solidarity with hard to organise constituencies – and no voice for them in policy process

• Policy process more democratic and accountable

• Priority of democratisation may work against political inclusion?

group leaders pursuing a solidarity model is preferable to no voice at all for many groups. The second-best option of informal consultation – employment of constituency members where possible – as a way to foster some (albeit tenuous) forms of accountability are preferable to that exclusion (these points are summarised in Table 3.2). The quick fix of an insistence on representation, we argue, makes no sense to the probable target of the measures – groups that are only capable of solidarity – and then come to penalise groups that fall short of realising their representative potential for obvious organisational reasons.

Conclusion We distinguish between groups that seek support from well-meaning supporters – which we say practise solidarity – versus those that enfranchise the constituency whose interests are being advocated for – which we say practise representation. The first point to make is that the same criteria for their involvement in policy should not be applied to both sorts of groups. It is legitimate to expect groups that can represent human constituencies to be internally democratic if they are to play a role in the policy process. Such groups, through internal democracy, can help to improve decision making at the global level. However, it is unreasonable, from the perspective of enhancing global democracy, to expect solidarity groups to be organised democratically. Indeed, we

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question how such a move could enhance global democracy. We accept that solidarity groups, by promoting what group members and supporters see as the interests of those with whom the group expresses solidarity, can help to raise important issues in international policy forums. Along with other groups, solidarity INGOs can play an important role in the market place of ideas. We have set out the distinction between groups which can operate as the representative of humans and those groups that express solidarity in fairly stark terms. We have suggested that there is a clear distinction between the two types of groups. However, in practice this may not always be the case. We have suggested earlier that it is not unreasonable to expect groups whose constituency comprises living human beings to be organised democratically. Let us return to the examples of human rights groups, such as Amnesty International and anti-poverty groups, such as Oxfam, which we considered earlier. In principle, as their constituencies are living human beings, human rights groups and anti-poverty groups can be organised on democratic lines. In practice, the difficulties in such groups adopting a democratic structure are immense. Amnesty International, among its other activities, works for the release of ‘prisoners of conscience’. Prisoners of conscience are incarcerated and their activities are closely controlled. They are not free to engage in ‘political’ activities, including participating in the work of INGOs. Indeed, Amnesty International organises support for such people because of the constraints on their non-violent political activities. In practice, therefore, the problems of involving prisoners of conscience in the democratic workings of Amnesty International would be overwhelming. The very poorest people in the world who form part of Oxfam’s constituency by their very poverty are not in a position to engage in democratic activity within Oxfam. Such people are struggling to survive and often require urgent help. This is not to deny, however, that, in principle, some of Oxfam’s constituency of poor people, who are not in such dire and immediate need, could be involved in the democratic structures of a democratic INGO. The last points do not undermine the distinction between ‘representation groups’ and ‘solidarity groups’ but they do suggest that the distinction should be applied sensitively and that expectations of when democratic organisation is possible should respect practical circumstances. In summary, we would argue that global policymakers, such as IGOs, should listen to solidarity groups and to groups that represent humans through an internal democratic structure. However, we would be much more cautious about giving INGOs a direct role in international

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decision making. In the final analysis, democracy relates to ideas of government by the people and political equality. INGOs, despite the important role they can play in giving voice to some and in ensuring that issues are included on global governance agendas, do not, and we argue cannot, ensure equal voice for all or be effective vehicles for the global self-government of the people. Achieving democracy at the global level remains an immense task. INGOs have a role to play in improving the outcomes of international policy decisions but they cannot provide the answer to the global democratic deficit.

Notes 1. Global governance itself is a broad concept, and as Risse (2006, p. 180) makes clear, can rightly pertain to private modes of governance (for example governance without the state) such as fair-trade standards and the like. Here we focus upon public regulation pursued through IGOs. 2. For instance, they see Unions as separate from Civil Society – and liken them to political parties. 3. The academic cadre which Anderson and Rieff’s piece has as its audience.

References K. Anderson and D. Rieff (2005) ‘Global Civil Society: A Sceptical View’, in H. Anheier, M. Glasius, and M. Kaldor (eds) Global Civil Society 2004/5 (London: Sage), pp. 26–39. R. Baggot, J. Allsop and K. Jones (2005) Speaking for Patients and Carers: Health Consumer Groups and the Policy Process (Basingstoke: Palgrave Macmillan). S. Chambers and J. Kopstein (2001) ‘Bad Civil Society’, Political Theory, 29, 6, pp. 837–65. A. V. Colas (2002) International Civil Society: Social Movements in World Politics (Malden, MA: Polity Press). V. Collingwood and L. Logister (2005) ‘State of the Art: Addressing the INGO “Legitimacy Deficit”’, Political Studies Review, 3, 2, pp. 175–92. Commission of the European Communities (2001) European Governance: A White Paper, COM (2001) (Brussels: The European Commission). R. J. Dalton (2004) Democratic Challenges Democratic Choices (Oxford: Oxford University Press). R. J. Dalton (2006) Citizen Politics: Public Opinion and Political Parties in Advanced Industrial Democracies (Washington DC: CQ Press). M. Edwards and S. Zadek (2002) ‘Governing the Provision of Public Goods: The Role and Legitimacy of Non-State Actors’ in I. Kaul (ed.) Providing Global Public Goods: Managing Globalization (Oxford: Oxford University Press), pp. 200–25. R. Falk (2006) ‘Reforming the United Nations: Global Civil Society Perspectives and Initiatives’, in M. Glasius, M. Kaldor, and H. Anheier (eds) Global Civil Society Yearbook 2005/06 (London: Sage), pp. 150–86.

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A. Florini (2000) (ed.) The Third Force The Rise of Transnational Civil Society (Washington DC: Carnegie Endowment for International Peace). M. Glasius, M. Kaldor and H. Anheier (2006a) ‘Records’, in M. Glasius, M. Kaldor and H. Anheier (eds) Global Civil Society Yearbook 2005/6 (London: Sage), p. 408. M. Glasius, M. Kaldor and H. Anheier (2006b) ‘Introduction’ in M. Glasius, M. Kaldor, and H. Anheier (eds) Global Civil Society Yearbook 2005/06 (London: Sage), pp. 1–34. L. Gordenker and T. G. Weiss (1996) ‘Pluralizing Global Governance’, in T. G. Weiss and L. Gordenker (eds) NGOs, the UN and Global Governance (London: Lynne Rienner), pp. 17–47. J. Greenwood and D. Halpin (2007) ‘The European Commission and the Public Governance of Interest Groups in the European Union: Seeking a Niche between Accreditation and Laissez-Faire’, Perspectives on European Politics and Society, 8, 2, pp. 189–210. D. Halpin (2006) ‘The Participatory and Democratic Potential and Practice of Interest Groups: Between Solidarity and Representation’, Public Administration, 84, 4, pp. 919–40. D. Held (1995) Democracy and the Global Order (Cambridge: Polity Press). D. Held and A. McGrew (2002) Globalization/Anti-Globalization (Cambridge: Polity Press). M. Keck and H. Sikkink (1998) Activists beyond Borders: Advocacy Network in International Politics (Ithaca, NY: Cornell University Press). M. Lyons (2001) Third Sector: The Contribution of Nonprofit and Co-Operative Enterprise in Australia (St Leonards: Allen and Unwin). K. Martens (2005) NGOs and the United Nations Institutionalization, Professionalization and Adaptation (Basingstoke: Palgrave Macmillan). M. Mason (2004) ‘Representing Transnational Environmental Interests: New Opportunities for Non-Governmental Organisation Access within the World Trade Organisation?’, Environmental Politics, 13, 3, pp. 566–89. P. McLaverty (2002). ‘Civil Society and Democracy’, Contemporary Politics, 8, 4, pp. 303–18. J. O’Neill (2001) ‘Representing People, Representing Nature, Representing the World’, Environment and Planning C: Government and Policy, 19, 4, pp. 483–500. C. Pattie, P. Seyd and P. Whiteley (2004) Citizenship in Britain: Values, Participation and Democracy (Cambridge: Cambridge University Press). P. Perczynski (2000) ‘Active Citizenship and Associative Democracy’, in M. Saward (ed.) Democratic Innovation: Deliberation, Representation, and Association (London: Routledge), pp. 161–71. H. F. Pitkin (1967) The Concept of Representation (Berkeley: University of California Press). A. Rehfeld (2006) ‘Towards a General Theory of Political Representation’, Journal of Politics, 68, 1, pp. 1–21. T. Risse (2006) ‘Transnational Governance and Legitimacy’, in A. Benz and Y. Papadopolous (eds) Governance and Democracy (London: Routledge), pp. 179–99. J. Scholte, R. O’Brien and M. Williams (1999) ‘The WTO and Civil Society’, Journal of World Trade, 33, 1, pp. 107–23.

Darren Halpin and Peter McLaverty 73 J. A. Scholte (2000) ‘Global Civil Society’, in N. Woods (ed.) The Political Economy of Globalization (New York: St Martins Press), pp. 173–201. J. Scholte (2002) ‘Civil Society and Democracy in Global Governance’, Global Governance, 8, pp. 281–304. J. A. Scholte (2005) Globalization: A Critical Introduction, 2nd edn (Basingstoke: Palgrave Macmillan). K. Sikkink (2002) ‘Restructuring World Politics: The Limits and Asymmetries of Soft Power’, in S. Khagram, J. Riker, J. and K. Sikkink (eds) Reconstructing World Politics: Transnational Social Movements and Norms (Minnesota: University of Minnesota Press), pp. 301–17. United Nations (2004) We the Peoples: Civil Society, the United Nations and Global Governance. Report of the Panel of Eminent Persons on United Nations-Civil Society Relations (New York: United Nations). A. Van Rooy (2004) The Global Legitimacy Game: Civil Society, Globalization and Protest (Basingstoke: Palgrave Macmillan). A. Warleigh (2001) ‘“Europeanizing” Civil Society: NGOs as Agents of Political Socialization’, Journal of Common Market Studies, 39, 4, pp. 619–39. K. D. Wolf (2006) ‘Private Actors and the Legitimacy of Governance beyond the State: Conceptual Outlines and Empirical Explorations’ in A. Benz and Y. Papadopoulos (eds) Governance and Democracy (London: Routledge), pp. 200–27.

4 The Link between StandardSetting NGO’s Legitimacy and Effectiveness: An Exploration of Social Mechanisms Marianne Beisheim and Klaus Dingwerth When we talk about NGOs and their legitimacy, it is common to distinguish between advocacy NGOs on the one hand, and service provision NGOs on the other (see Franz and Martens, 2006). While the former are often evaluated in terms of the authenticity of their claim to represent others (Hahn, 2008; Mallaby, 2004), the standard currency for judging the latter are the relative efficiency and effectiveness with which an organisation provides its services and the contribution of its services to the common good (Frantz and Martens, 2006). However – and this volume provides a number of examples – the discussion about NGOs and their legitimacy more and more tends to include an evaluation of NGOs in much broader terms, such as inclusiveness, transparency, or accountability. In a move that some have interpreted as a ‘backlash against civil society’ (Clark, 2003, pp. 169–85), the legitimacy of NGOs is publicly challenged and NGOs that demand democracy or accountability are increasingly asked ‘How democratic are you?’, ‘To whom are you accountable?’ and ‘Who do you speak for and what is your claim to speak for others based on?’. We do not discuss the merits of this particular discourse in this article, but rather point to a third category of NGOs for which the demand for democratic self-organisation may be most convincing. This particular – and arguably more recent – category of NGOs refers to so-called transnational standard-setting organisations – in other words, to organisations in which non-state actors define issues, make rules, and monitor compliance with these rules. Examples of such organisations include the Forest Stewardship Council (FSC), an organisation that runs a certification scheme for responsible forest management; the Marine Stewardship Council (MSC) that manages a similar scheme for sustainable fisheries; the Clean Clothes Campaign (CCC) and the Rugmark Foundation 74

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that make and implement voluntary labour standards for the garment and carpet industries; or the International Accounting Standards Board (IASB) whose accounting standards are applied in a variety of countries around the world. While this third category of NGOs is frequently overlooked in discussions about the democratic credentials of civil society organisations, transnational standard-setting NGOs fit most definitions of nongovernmental organisations we find in the literature, at least as far as their form is concerned. They are – with few exceptions such as the Internet Corporation for Assigned Names and Numbers (ICANN) – formally independent from governmental control, have a clear organisational structure, are non-profit organisations and work for primarily political or societal goals. As far as their output is concerned, transnational standard-setting organisations however differ from ‘conventional’ NGOs like Amnesty International, Human Rights Watch, Greenpeace or the WWF. Their main output is not awareness raising, lobbying or the implementation of particular projects – these were, for instance, the categories that Paul Wapner (1996) used to discuss the activities of environmental NGOs in his seminal work. Instead, the NGOs we refer to in this chapter produce norms, standards and rules as well as the organisational equipment to implement and secure compliance with these norms, rules and standards. While most ‘classical’ non-governmental organisations act as advocacy or interest groups (Beisheim, 1997), this relatively new type of ‘standard-setting NGO’ takes on governance functions and, thus, resembles a private regime in terms of its function and output. Therefore, the call for legitimacy and accountability may be most relevant for these NGOs. Based on this notion, we use this chapter to explore the link between the legitimacy and effectiveness of this particular type of NGOs. In short, we ask to what extent the normative procedural legitimacy of transnational standard-setting NGOs positively affects their effectiveness. To this end, we first discuss the relation between legitimacy and effectiveness in more abstract terms and then apply our theoretical assumptions to a particular standard-setting NGO, namely the Global Reporting Initiative (GRI). The core concepts used in this chapter are relatively straightforward: normative procedural legitimacy refers to an organisation’s performance in terms of four values associated with democratic decision-making, namely inclusiveness, transparency, accountability, and deliberativeness. Empirical legitimacy refers to the actual social recognition of an organisation or its norms, rules and standards as rightful.1 Effectiveness

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refers to a scheme’s capacity, whether directly or indirectly, to guide the behaviour of its addressees in a direction that is compatible with its own stated goals.2 And finally, a transnational standard-setting NGO is a nonprofit organisation in which non-state actors (occasionally together with governmental or business actors) from more than one country devise rule systems for other non-state actors in more than one country.

The link between legitimacy and effectiveness As compliance with rules made through private governance arrangements is voluntary, an often-heard argument is that this quality makes democratic processes redundant. Yet this argument may be disputed not only on normative grounds but also empirically. In contrast, the reverse argument – that private governance institutions need legitimacy precisely because they are legally non-binding – seems more plausible. Unable to draw on the binding force of hard law, the effectiveness of transnational standard-setting NGOs seems to depend on their social acceptance as rightful. The International Relations (IR) literature generally distinguishes between three mechanisms through which the addressees of norms and rules are being pushed and pulled towards compliance. These mechanisms can broadly be summarised as coercion based on power differentials, incentives based on actors’ self-interests, and legitimacy or authority backed by ideas and normative beliefs (Hasenclever, Mayer and Rittberger, 1997). In the context of transnational governance coercion is largely absent. Any norms and rules beyond the state are intrinsically ‘soft’ regulatory instruments. Even intergovernmental regimes are only to a very limited degree backed by the sanctioning power of a central authority. For transnational governance, this even applies to two levels: not only is there no central enforcement agency beyond the state, but within the states themselves, the provisions adopted through private governance arrangements have no legally binding force either. Plus, while societal self-regulation at the domestic level may still take place in a ‘shadow of hierarchy’, this no longer applies to self-regulation beyond the state ( Jachtenfuchs, 2003, pp. 505–6). Given these limited opportunities to enforce compliance, the focus shifts to the individual motivation to comply with private governance rules. The need to convince addressees of the rightfulness of a rule becomes part of a necessary system of compliance management (Chayes and Chayes, 1995) which, in view of the limited opportunities for compliance enforcement, is not only a sensible addition to, but an essential prerequisite for regulatory success

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(see also Franck, 1990; Klosko, 2000, pp. 208–29). Thus, several authors have argued for a link between procedural legitimacy and effectiveness (Bäckstrand, 2006; Bernstein, 2004; Buchanan and Keohane, 2006). Yet procedural legitimacy and effectiveness are also often seen as mutually substitutable or even as competing. For instance, Bäckstrand notes that ‘high output legitimacy in terms of effective collective problem-solving can, on some accounts, compensate for low input legitimacy’ (Bäckstrand, 2006, p. 472). And ‘all-inclusive’ standard-setting processes might lead to a serious lack of efficiency and reduced problemsolving capacity (Börzel and Risse, 2005, p. 212; see also Göbel, 2007). In sum, while contemporary IR scholarship frequently refers to ‘the importance of legitimacy for international order, institutions, and what today we refer to as governance’ (Bernstein, 2004, p. 2), at the same time, the nature of the relation between different conceptions of legitimacy and the functioning of governance mechanisms is contested. And, even more importantly, an explicit discussion of ‘how and why legitimacy operates among international institutions’ (Hurd, 1999, p. 381) is largely absent in the literature. A most interesting question in that context is, thus, how does greater legitimacy improve (or diminish) the prospect for effectiveness? What are the pathways that connect the two variables? These are largely unresolved questions that can best be answered by a detailed analysis of the causal mechanisms underlying the relationship between legitimacy and effectiveness of private governance institutions. While the objective of such a study would ultimately be to ascertain whether the supposed interplay between legitimacy and effectiveness exists at all and to define the conditions under which it becomes relevant, our chapter is confined to the initial step in this larger endeavour. More precisely, in the following we are interested in identifying more specific hypotheses about how normative procedural legitimacy might influence the effectiveness of private transnational governance schemes. We assume a two-step process that links the two variables. In a first step, normative procedural legitimacy – that is, legitimacy based on procedures associated with democratic theory – is expected to lead to better empirical social acceptance of the governance scheme as rightful. In a second step, this empirical recognition of the governance scheme is expected to increase the likelihood that addressees will de facto adapt their behaviour in accordance with the norms and rules that result from the governance process (see Figure 4.1). Evidently, a number of alternative explanations may account for a change in the behaviour of addressees. First, specific problem structures or actor constellations may facilitate the effectiveness of some standard-setting

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The Link between Legitimacy and Effectiveness Alternative explanations (e.g. pragmatic reasons; tradition; routines)

Procedural legitimacy Figure 4.1

Empirical acceptance

Alternative explanations (e.g. pragmatic reasons; tradition; routines)

PTG norms guide the behaviour of target actors

Effectiveness

From procedural legitimacy to effectiveness

NGOs, while constituting a strong impediment in other cases (Zürn, 1992). Second, the specific content of norms and rules or the design of information and monitoring systems may influence the likelihood that target actors will commit and adhere to the standards devised by a particular standard-setting NGO (Mitchell, 1998). Organisations may moreover refer to norms that have already been negotiated in intergovernmental forums. In this case we could speak of a legitimacy transfer from public to private governance arrangements (Bernstein and Cashore, 2004; Wolf, 2006). Third, the responses of other organisations that target actors identify as similar to themselves and/or on whose support they depend may trigger isomorphic dynamics within specific fields of organisational activity (DiMaggio and Powell, 1983; Dingwerth and Pattberg, 2009). And finally, even where legitimacy acts as an important driver, normative procedural legitimacy is not the exclusive basis for conferring legitimacy. Instead, target actors may also accept an organisation as rightful because it promotes their interests (‘pragmatic legitimacy’) or because it conforms to norms they largely take for granted (‘cognitive legitimacy’) (Suchman, 1995). In sum, procedural legitimacy is therefore only one factor among others when we wish to understand the effectiveness of private transnational governance schemes. Yet given that transnational standardsetting NGOs deploy a significant share of their resources to advocate their procedural legitimacy – thereby signalling that they perceive such legitimacy as a key to their own effectiveness – it seems warranted to single out this factor for the purpose of this analysis.

Procedural legitimacy as a success factor for private standard-setting NGOs: Three social mechanisms Following up on the ideas presented in the previous section, the purpose of this section is to identify various social mechanisms that describe how procedural legitimacy translates into effectiveness. Mechanisms

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Table 4.1 Mechanisms that link legitimacy and success of private governance Key elements of normative procedural legitimacy.

Causal mechanisms

(1) Inclusiveness, fairness and representativeness (2) Deliberation

(M1) Ownership Enhanced through participation compliance (M2) Social learning and persuasion (M3) Social control

(3) Transparency and accountability

Success

can generally be thought of as ‘the processes that account for causal relationships among variables’, and the search for causal mechanisms is usually driven by the desire to develop more fine-grained explanations for social phenomena (Campbell, 2005, p. 42, emphasis in original; Checkel, 2006, p. 363; see Tarrow, 2005, pp. 29–34). In following the approach of specifying social mechanisms, our general idea therefore is to theorise about how normatively qualified procedures may be linked to effectiveness and to then empirically check how well these ‘sometimestrue theories’ (Coleman, cited in Davis and Marquis, 2005, p. 336) fare in accounting for the success or failure of specific private governance schemes. In identifying the social mechanisms that can be expected to link the procedural legitimacy of standard-setting NGOs with their effectiveness, we draw on criteria that together constitute the core of most approaches to democratic governance beyond the state: inclusiveness, transparency, accountability and deliberation. The following paragraphs identify three social mechanisms associated with these criteria (see Table 4.1): the development of (1) ‘ownership’ based on inclusive, fair and representative participation; (2) social learning and persuasion based on deliberative process; and (3) social control based on transparency and accountability. Ownership on the basis of inclusive, fair and representative participation The legitimacy of a decision-making process can be established through the inclusion of a broad range of stakeholders. In normative terms, this requirement is firmly embedded in virtually all variants of democratic theory. However, participation per se does not guarantee democratic process. Instead, equal and fair rights of participation are required as a complementary element. Three factors are significant in this context.

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First, all stakeholder interests should be represented effectively to establish congruence between decision-makers and decision-takers (inclusiveness). Second, participation processes should be fair. In other words, all stakeholders should be able to participate in the process either on an equal basis or on the basis of morally justified graduated participation rights (fairness). Third, participants must be sincere and legitimate representatives of their constituencies (representativeness). The causal mechanism that links these aspects of right process to subsequent compliance we label as ownership through participation. ‘Ownership’ is a word frequently used in the discussion on developmental politics, where it refers to the level of identification of stakeholders with projects that concern them. According to this mechanism, it can be assumed that the general support of stakeholders for a norm or rule and their willingness to compromise increase if they have been involved – either directly or through their delegates – in negotiating these norms and rules. As a result of inclusive and fair procedures, stakeholders become ‘owners’ of the process as the duration and quality of their participation increase. Ownership contains both an emotional and a rational component. The emotional component evolves as participants grow ‘attached’ to a project in which they engage substantially together with others. On the other hand, the direct involvement of addressees increases the likelihood that they will be able to gather relevant information and put forward and defend their own interests in the negotiating process. All else being equal, we can assume that organisations are more likely to accept the costs of implementing norms and rules if their representatives have been actively involved in the negotiations. We would like to add, however, that the participation (and thus ownership) of any individual in a negotiation process as such is insufficient. At this point, the ‘representativeness’ of the participating stakeholder spokespersons comes in. It is essential that agents have a sufficient mandate by their principals – all the more, as in the end the drafted norms and rules need to be accepted not only by the agents but by the principals. Mechanisms of ownership through inclusion are also referred to in the recent literature. Marleen van de Kerkhof claims that ‘the involvement of actors from society […] can improve awareness and support for specific policy measures; it can enhance the legitimacy of the decisions taken’ (van de Kerkhof, 2006, pp. 279–80). More specifically, she summarises that ‘involving stakeholders and reaching a mutual agreement among them is assumed to decrease the chance that they will not comply with the policies that result form the process’ (van de Kerkhof, 2006,

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p. 282). Bäckstrand similarly holds that ‘“ownership” of outcomes and agreements by a wider range of stakeholders who are affected by issues and who may be partly responsible for policy implementation […] is desirable on grounds of the efficacy of democracy’ (Bäckstrand, 2006, p. 472). On the other hand, inclusive decision-making also has its downsides inasmuch as it often leads to costly and tedious procedures.3 Social learning and persuasion based on deliberation A second social mechanism can be identified with reference to the deliberative quality of opinion and will formation. This mechanism, which is based in part on the normative and empirical assumptions made in theories of deliberative democracy,4 can be described as social learning and persuasion through arguing. The mechanism is based on the assumption that deliberative elements in the negotiating process help persuade addressees. The quality of deliberative processes can be ensured by placing a premium on rational argument and dismissing weak or unfounded reasoning. Where participants in deliberative processes have adequate opportunities to present their arguments and critically appraise their opponents’ counter-arguments, they are able to recognise the outcomes of this process as ‘reasonable’. Ideally, a consensus is achieved at the end of the deliberative process; stakeholders will thus implement the resulting decisions because they are convinced of their normative and empirical appropriateness. Even where consensus may not be in reach, deliberation may induce learning and behavioural change in accordance with the specific goals of a private governance scheme. In contrast to consensus-oriented multi-stakeholder dialogues, more open-ended deliberative processes may not only help to elicit the value orientations and preferences of different stakeholders, but also lead actors to redefine a given situation in the light of new evidence, new arguments or simply through being able to see the same issue through the eyes of other stakeholders with different value orientations and preferences (van de Kerkhof, 2006, pp. 282–4). Such interpretive shifts may in turn lead to changes in actual behaviour. Yet, it would be naïve to assume that deliberation will automatically lead to effectiveness. Instead, it may also lead to deadlock. In particular, deliberation is unlikely to work ‘in problem situations where the stakeholders have different axioms, assumptions and concepts with regard to the problem under consideration’ (van de Kerkhof, 2006, p. 282). In that case, deliberation may make deep divides visible that, thereby

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instigating or solidifying dissent, opposition and conflict among the parties to a dialogue. Moreover, the consensus orientation of deliberative processes may inhibit good results, for instance, when the ultimate goal shifts ‘from reaching a quality decision […] towards reaching an agreeable one’ (ibid., p. 282) or when the prevailing consensus orientation leads to a selection of only those stakeholders that are willing to reach a consensus, while it excludes others who are more sceptical or have more radical views on the issue at stake. Social control based on transparency and accountability As a third mechanism, the ability to control rule-makers is likely to increase the willingness of target actors to adhere to the outcomes of a rule-making process. This third mechanism does not even necessarily require that rule-takers are actually participating in the rule-making process. Instead, it assumes that audiences may also accept a rule that results from a transparent and accountable process. Transparency and accountability are part of almost any normative account of democratic procedures. Accountability refers to a principalagent relationship ‘in which an individual, group or other entity makes demands on an agent to report on his or her activities, and has the ability to impose costs on the agent’ (Keohane, 2003, p. 139). Keohane distinguishes between internal and external accountability, the first referring to authorisation and support by principals to agents within an institution, the latter to individuals or groups outside the acting entity who are nevertheless affected by its activities. Building on this distinction, Thomas Risse argues that, ‘if the agents involved in governance arrangements are both internally accountable to their “clients” […] and externally accountable to those who are affected by their decisions […] input legitimacy should be insured’ (Risse, 2006, pp. 185–6). For such social control to function properly as a mechanism, the transparency of the decision-making process is an essential prerequisite. Giving stakeholders the opportunity to signal their support or dissatisfaction with specific decision-making options and to intervene when deemed necessary has various effects: in general, it allows individual actors – whether themselves members of the scheme or merely members of an interested public audience – to ‘blame and shame’ those who defect from a scheme once the latter is operational. Such blaming and shaming is most feasible if the norm or rule in question is widely considered as rightful. Transparency and accountability may also serve as proxies for a scheme’s legitimacy since it signals that rule-makers have ‘nothing to hide’ from their addressees or the wider public. This specific

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mechanism works best if the NGO targets well-organised sections of society; in these cases, rule takers may assume that ‘their’ organisations would have challenged the rule-making processes if it had interfered with their group’s specific interests. Yet, transparency and accountability also have a price. In particular, they may conflict with other criteria such as deliberativeness. Thus, representatives are often unable to engage in a sincere exchange of arguments unless meetings occur behind closed doors; moreover, the more control constituencies exert on their representatives, the less they may be persuaded by the arguments of others. And finally, transparency may also increase the danger of de-legitimisation of transnational standardsetting organisations, for instance when information that is made available to the public can be used by critics to challenge the organisation.

Plausibility probe: The global reporting initiative The purpose of this section is to exemplify the three mechanisms identified in the previous section and test their plausibility.5 Does evidence in the actual practice of transnational standard-setting NGOs support the theoretically imagined social dynamics? In doing so, we focus our attention on the Global Reporting Initiative (GRI). The GRI was created in 1997 as a partnership of corporations and environmental groups associated in the Coalition for Environmentally Responsible Economies (CERES). Since its inception, the ambition of the GRI has been to make ‘reporting on economic, social and environmental performance as routine and comparable as financial reporting’ (GRI, 2003a, p. 4). As its main instrument to achieve this aim, the GRI develops and advertises its Sustainability Reporting Guidelines. The Guidelines contain reporting principles and performance indicators intended to provide guidance to reporting organisations on how and what to report. The aim of the Guidelines is to enable report users – rating agencies, investors, shareholders, employees, consumers and local communities – to evaluate a company’s sustainability performance and to compare it to that of its competitors. By making reporting routine and comparable, the GRI also follows the more general aim to improve corporate sustainability performance through identifying best practice and putting pressure on those whose performance deviates from best practice. In terms of its effectiveness, the GRI has managed to position itself as the leading sustainability reporting scheme. A first version of the Guidelines was developed in 2000; revised versions were published

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in 2002 and 2006. The Guidelines themselves are widely considered as a viable compromise between comprehensiveness and feasibility of corporative non-financial reporting. In December 2002, 200 organisations had registered their reports with the GRI; by January 2007 that number had reached close to 1000 and by January 2009, the GRI noted that ‘more than 1,500 companies, including many of the worlds leading brands, have declared their voluntary adoption of the Guidelines worldwide’.6 In terms of its normative pull, the GRI has generated an expectation that ‘good companies’ report on their performance in relation to sustainability and that they base their reports on the GRI framework. Current estimates suggest that roughly 40 per cent of all CSR reporters are using the GRI Guidelines in preparing their reports. In addition, the GRI maintained, already in 2003, that 47 of the top 50 company reports identified by SustainAbility, Standard & Poor’s and UNEP have referenced the GRI Guidelines (GRI, 2003a, p. 8; 2004a). As it has become the leading non-financial reporting standard, the GRI’s implicit (re-)definition of corporate sustainability constitutes a common frame of reference for thinking about sustainable business practice. In sum, the GRI can thus be considered as a relatively effective transnational standard-setting organisation.7 In terms of its normative procedural legitimacy, the GRI also scores relatively high. As we illustrate below, its decision-making process includes a wide range of stakeholders and significant deliberative elements, and is fairly transparent. Given that the GRI is relatively democratic and relatively effective, it lends itself to an examination of our three mechanisms. The following discussion thus investigates to what extent the GRI is effective because it adheres to normatively qualified procedures. More specifically, it investigates whether and how the inclusiveness, deliberation and transparency of decision-making translate into compliance with the reporting framework of the GRI. For each mechanism identified in the previous section, we first give a brief description of the core characteristic – that is, the actual inclusiveness, deliberativeness and transparency of the GRI and its decision-making process – and then discuss to what extent the GRI’s performance on this specific characteristic contributes to the organisation’s effectiveness. Ownership through inclusion The Global Reporting Initiative stresses that it ‘derives its legitimacy from balanced, global, multi-stakeholder participation at all levels’ (GRI, 2003b). According to its self-image, the GRI is ‘one of the few organisations to task stakeholders with the creation of its main product’

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(Dickinson, 2006, p. 1). To live up to this credo, the GRI includes a wide range of stakeholders in the making of its Sustainability Reporting Guidelines and of the associated Technical Protocols and Sector Supplements. In the initial phase of the GRI, the Steering Committee was the central decision-making body of the GRI. Membership in the Steering Committee was by invitation. Decisions about membership were prepared by CERES and the United Nations Environment Programme (UNEP) as a collaborating partner of the GRI and, once it had been set up, approved by the Steering Committee. To gain the support of its stakeholders, the GRI’s ‘global perspective’ required the organisation to secure balanced representation of geographical regions as well as of different stakeholder groups. In the words of a former member of the GRI Steering Committee, such balance was essential to GRI’s credibility: ‘It had to have private sector input; it had to have labour input; it had to have NGO input. Otherwise those stakeholder groups wouldn’t necessarily accept the GRI’.8 Between 2000 and 2002, participation in the development of the Guidelines was therefore extended and organised more systematically. The Steering Committee remained the central body, but redefined its role as primarily a supervisor of the Guidelines revision process. The largest part of the revisions for the 2002 Guidelines was prepared in the Measurement Working Group (MWG), a body of over 130 experts and stakeholders set up in 2001. After several rounds of revisions of the initial documents, a draft version of the 2002 Guidelines was published on the GRI website in March 2002 (GRI, 2002b). At the end of the 60-day public comment period, comments received from over eighty parties amounted to over 300 pages, which the Revisions Working Group analysed before finalising the new Guidelines (GRI, 2002d). The 2002 Guidelines were eventually approved by the new Board of Directors and publicly released at the World Summit on Sustainable Development in Johannesburg in August 2002 (GRI, 2002c). The Structured Feedback Processes (SFPs) and the Stakeholder Council provide further entry points for participation in the development of the Guidelines. SFPs are an institutionalised means to seek comments on GRI documents. Coordinated by the GRI Secretariat, their primary element is ‘a questionnaire that guides participants through a variety of issues and asks for comments and considerations about further improvements to a GRI document’ (GRI, 2004b). SFPs have informed the revision of the 2000, 2002 and 2006 versions of the Guidelines. Their scope has been expanded over the time, and the revision process

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for the 2006 Guidelines also included regional roundtables in different world regions. Finally, the Stakeholder Council formally represents the interests of various constituencies within the GRI. It meets annually to discuss the progress of the GRI and debate ‘key strategic issues’. Moreover, it appoints new Board members, makes strategic recommendations to the Board, gives advice on the GRI’s activities, and participates, through individual members, in GRI working groups (GRI, 2002g, articles 14–17). The 60 seats on the Stakeholder Council are allocated according to stakeholder groups and geographical representation; currently these are business (22 seats), civil society organisations (16), mediating institutions (16), and labour (6) (GRI, undated-a). Stakeholder Council members are elected by the so-called Organisational Stakeholders of the GRI, a category that is open to all parties that support the general ideas behind the GRI and are willing (and able) to pay a modest annual membership fee. The currently over 380 Organisational Stakeholders9 are grouped according to the four GRI constituencies with each constituency electing its own representatives on the Stakeholder Council (GRI, 2002g, articles 12–17). To what extent does this record of inclusiveness generate a sense of ‘ownership’ among participants? At a very general level, the GRI itself communicates that it ‘depends on its wide and diverse engagement with stakeholders to create a growing level of interest in the content of reports, precisely because these stakeholders have been involved in drafting the guidelines and have ownership of the same’ (GRI, 2002a). In a similar vein, a recent article by a GRI associate asks whether the stakeholder-driven decision-making process in the GRI is ‘worth the effort’. Answering in the affirmative, the article suggests a similar dynamic as the abovementioned quotation (Dickinson, 2006, p. 1): It is challenging for GRI to convene these seemingly divergent stakeholder groups and facilitate consensus […]. The GRI’s commitment to realising these challenges means that the Guidelines are a robust product that celebrates significant ownership and applicability for diverse users […]. As a result, many perceive GRI’s reporting infrastructure as the global de facto standard in sustainability reporting practice. When the author cites a staff member of the GRI Secretariat who participated in one of the GRI’s working groups the emotional component of ownership becomes visible (ibid.):

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By the end of the process, the group was passionate. They may have started with different languages, but by the end they shared a common understanding. They gave their own experiences to get others; they gained each other’s respect; and they have more in common than initially thought. The group believes in what they have created. Thus, at least for the organisation itself, this first mechanism seems central – unless, of course, we classify the abovementioned quotations as mere rhetoric. But the words of one external observer seem to endorse those quoted above: ‘The guidelines, thanks to GRI’s massive commitment to inclusiveness, have fast become the leading way for companies to respond to the growing global demand for corporate accountability’.10 A more solid test for the relevance of ownership as a social mechanism lies in the comparison of the reporting practice of organisations represented at different levels of decision-making in the GRI. We would expect Organisational Stakeholders – the quasi-members of the GRI that elect the Stakeholder Council – to adhere more closely to the GRI reporting scheme than non-members. Next, we would expect organisations represented in the Measurement Working Group (MWG) – the group that developed the performance indicators included in the 2002 Guidelines – to be better reporters than mere Organisational Stakeholders. Finally, we would expect organisations represented in the so-called Core MWG – the leaders of subgroups of the MWG – to do better than organisations that are ‘merely’ represented in the MWG itself. The numbers indicated in Table 4.2 support our assumption. Table 4.2

GRI reports and adherence level by participation levela All TNCs

Share of business organisations with GRI reports

1.7% (approx. 1.000 reporters out of 60.000 TNCs)

Organisational Measurement Core MWG stakeholders working group 40%

81%

71%

Adherence level of reports No. of reports

1966

246

61

14

In accordance

15%

32%

38%

43%

Note: a = Numbers are based on the GRI Register (http://www.corporateregister.com/gri/; 17 January 2007) and own calculations based on the information provided by the GRI Register.

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While less than 2 per cent of all transnational corporations have registered sustainability reports with the GRI, the numbers for business members of the Organisational Stakeholders group (40 per cent), of the MWG (81 per cent), and of the Core MWG (71 per cent) are significantly higher. Moreover, the level of adherence to the GRI reporting scheme also rises as participation becomes more meaningful. While only 15 per cent of all sustainability reports registered with the GRI claim the highest of three adherence levels (‘in accordance’), this number rises substantially with participation in the OS group (32 per cent), the MWG (38 per cent) and the Core MWG (43 per cent). Given that organisations in all three groups – Organisational Stakeholders, MWG members and members of the Core MWG – do not seem to differ systematically in terms of their general attitudes towards sustainability reporting, it would thus be fair to assume that the adherence level rises as a result of deeper participation in the GRI. By and large, these illustrations provide some plausibility for the hypothesis that giving representatives of organisations targeted by a standard-setting NGO an appropriate opportunity to provide input to a fair negotiating process increases the likelihood that they will develop ownership of its outcomes and subsequently view these outcomes as binding on the conduct of the organisations they represent.

Social learning and persuasion based on deliberative procedures The GRI rhetoric also gives emphasis to the relevance of deliberation. In his closing remarks at the inauguration ceremony of the permanent GRI in 2002, GRI initiator Robert Massie thus stressed the ‘willingness to listen, to trust, to act in good faith’ that had characterised the GRI from its start (GRI, 2002f, p. 65). In practice, the primary sites of deliberation within the GRI are the Steering Committee (now the Board of Directors) and the various working groups: As a small body operating on the basis of consensus decision-making, the Steering Committee – as the early executive organ of the GRI – fulfils two basic preconditions for deliberations of a high quality. As one member recalls, consensus decision-making implied that, in the actual practice of decision-making, ‘you really have to find out why someone cannot accept something and find a solution that everybody accepts’.11 Moreover, trust among the members of a decision-making body and a commitment to the collective endeavour are further essentials for a deliberative mode of communication. As both of these preconditions cannot

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be expected to be present from the outset, the atmosphere at initial meetings of the committee has been described as ‘tense’ and ‘moderately sceptical’. Tensions resulted from different views on the issue – for instance between campaign groups and business – but also from a lack of familiarity among some of the parties. For instance, as one participant recalls, labour representatives and professional accountants ‘probably had never been in the same room with each other’.12 However, trust building was facilitated by a relatively high level of continuity of membership in the Steering Committee. As a result, a participant recalls that after the first two or three meetings tensions decreased because committee members got to know each other and because of a ‘growing sense that this big bold vision was indeed possible’.13 Over the course of the first year, commitment to this vision increasingly became a motivation for individual members. In addition, it facilitated the establishment of a collective identity and of a constructive atmosphere within the Steering Committee. Overall, the Steering Committee thus provided very favourable conditions for a deliberative style of communication. This general claim also holds for the Board of Directors that replaced the Steering Committee in 2002. Usually, conflicts are resolved without calling for a vote and the Board operates on the basis of ‘sufficient consensus’.14 The Measurement Working Group (MWG) constitutes a second deliberative forum in the development of the Sustainability Reporting Guidelines. Divided into small subgroups of eight to ten individuals whose regular discussions focused on relatively specific aspects of the Guidelines and who were consensus-driven in their internal decisionmaking, the MWG similarly fulfils two basic conditions for a deliberative mode of interaction. In contrast to the Steering Committee, the MWG’s tight schedule, however, impeded a longer trust-building phase. In addition, the subgroups often communicated electronically or through conference calls and only rarely met in person. As a result, no strong collective identity emerged. Moreover, individual subgroup leaders showed varying levels of commitment to the cause of the MWG. Overall, the quality of deliberations was therefore more limited than in the case of the Steering Committee. Accordingly, the atmosphere in the run-up to the 2002 Guidelines has been described as tense. While civil society actors were focused on details of the decision-making process, business representatives preferred to proceed to substantive issues without further delay.15 While time constraints constituted an obstacle to exploiting the full deliberative potential, this example illustrates that the GRI’s governance bodies fulfil at least basic criteria for meaningful deliberation. But

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what causal effects can be ascribed to these deliberative elements of the GRI process? First, deliberations helped participants to understand the issues at stake in different ways and to partially redefine their own interests. When asked if they or their fellow participants in the GRI process had modified their views on sustainability reporting as a result of their involvement with the GRI, interviewees frequently answered in the affirmative. Participants observed a gradual convergence of views as ‘people were able to see things from the perspective of the other side’. For instance, civil society representatives learned about the complexities of implementing sustainability reporting in practice. In turn, business participants learned what issues mattered to the people outside business and to better understand their own footprint in society.16 Second, the deliberative character of the GRI is also reflected in the regular revision of its Guidelines which allows new evidence to be incorporated in the common reporting framework. That the GRI explicitly conceives of itself as a ‘learning organisation’ gives participants in the GRI process a reason to expect that their contribution is desired and that it constitutes a core element of the organisation’s learning process. In sum, these are at least indications that the second mechanism of social learning and persuasion based on deliberative process does have an empirical counterpart in the GRI. On the basis of these indications, we might therefore hypothesise that transnational standard-setting NGOs that link decision-making to meaningful deliberative elements are more likely to ensure compliance with their decisions than comparable organisations without such elements.

Social control based on transparency and accountability Virtually all transnational standard-setting NGOs put a strong rhetorical emphasis on transparency – frequently paired with practical efforts to render decision-making transparent. In the case of the GRI, the articles of association assign clear responsibilities to each governance body. They commit the Board to develop ‘procedures that enhance and ensure the transparency of decisions and decision-making processes’ and the Secretariat to ‘[post] on the Internet minutes of meetings of the Board, Stakeholder Council and Technical Advisory Council’ (GRI, 2002g, article 24.8). In practice, the GRI makes drafts of all relevant documents available to the public in a timely manner and informs stakeholders about how their feedback is dealt with. For the development of the 2000

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Guidelines, a memorandum that outlined the process for the Guidelines revisions was posted on the Internet to inform stakeholders about their opportunities to get engaged. For the development of the 2002 Guidelines, a similar process was in place. As an additional element, all public comments on the draft Guidelines were posted unless feedback companies explicitly asked not to do so (GRI, 2001; 2002e). A number of formal and informal control mechanisms ensure accountability at various levels of the GRI process. First, the relatively complex institutional arrangement provides for checks and balances between governing bodies. Second, the Stakeholder Council serves as a sounding board for the Board and Secretariat. Council members are expected to maintain dialogue with stakeholders in the regions they are representing and to ‘present input to the Stakeholder Council from the constituencies they represent regarding the needs, expectations, and other priority issues related to the GRI and the Guidelines’ (GRI, undated-b). Third, the GRI’s approach to publicly setting its own targets allows stakeholders to evaluate the organisation in terms of its performance vis-à-vis these targets. For example, stakeholders may access all registered reports via a publicly accessible database maintained by the GRI, thereby facilitating the external control of compliance with the GRI Guidelines. Finally, the GRI is keenly aware that ‘any key stakeholders who undertook active advocacy to undermine GRI would create a serious problem’ (Waddell, 2002, p. 7). Critical stakeholder groups such as business, labour or influential civil society organisations thus retain a considerable degree of control over the GRI. How – if at all – does this accountability record translate into effectiveness? Here, hard facts are difficult to obtain without actually asking stakeholders and (potential) reporters what importance they attach to the transparency and accountability of decision-making in GRI. Lacking this information, we can only observe that for the GRI itself, transparency clearly has a strategic dimension. By giving stakeholders the opportunity to comment on draft documents, the GRI integrates potential critics and prevents them from openly challenging the organisation. By being relatively open about how feedback is used, it demonstrates its sincerity and shields itself from higher expectations. By providing a system of checks and balances within the organisation, it publicly demonstrates that no stakeholder group may dominate the process. And by publicly stating its own goals, it gives its audiences a yardstick by which to measure the organisation’s performance. All these can be seen as more or less direct incentives to accepting the GRI and its outcomes as a reasonable consensus and/or as

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disincentives for critics to fundamentally challenge the organisation. While inclusiveness and deliberation serve as a trigger for adherence, transparency and accountability therefore seem relevant primarily as safeguards for achievements realised as a result of inclusive and deliberative decision-making. In other words, we would hypothesise that while inclusiveness and deliberation are important to gaining legitimacy with different audiences, transparency and accountability appear more relevant to maintaining legitimacy. In line with this finding, the GRI is increasingly concerned with transparency and accountability as it is both growing and maturing (Dickinson, 2006, p. 2).

Conclusion Transnational standard-setting NGOs deploy a significant share of their resources to advocate their procedural legitimacy. This suggests that their initiators presume a positive causal link between an organisation’s perception as legitimate and its effectiveness. Based on this observation, this chapter has explored the general hypothesis that the normative procedural legitimacy of transnational governance organisations – defined in terms of inclusiveness, deliberativeness, transparency, and accountability – enhances their prospects for effective governance. Our particular focus was on how right process may translate into compliance and, subsequently, effectiveness. To this end, we have identified three social mechanisms that are supposed to link the two variables: the development of ownership on the basis of inclusive, fair and representative participation; social learning and persuasion based on deliberative procedures; and social control based on transparency and accountability. Having subjected the three mechanisms to a plausibility probe in an illustrative case study of the Global Reporting Initiative, two main conclusions can be drawn. First, at least for the GRI, all three mechanisms appear relevant. The GRI uses different methods of engaging its stakeholders in the decision-making process. Participants in the GRI’s working groups seem to share the organisation’s credo ‘that many of the GRI’s success stories owe to the GRI’s strong investment in the stakeholder engagement process’ (Dickinson, 2006, p. 2). Hence, we may say that the GRI cares for its legitimacy not primarily for moral but for instrumental reasons, most notably to enhance the compliance with its standard. And, as a matter of fact, the data presented in this chapter indicates that those organisations that have been involved more closely in the decision-making process are also reporting more often and adhering more closely to the reporting framework devised by the GRI.

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Second, the characteristics and related mechanisms are relevant at different stages of the GRI process. While inclusiveness and deliberation are primarily relevant to gaining legitimacy, transparency and accountability seem more central to maintaining legitimacy with different audiences. This finding is consistent with Mark Suchman’s argument that empirically, gaining, maintaining and repairing legitimacy are distinct aspects of managing an organisation’s legitimacy (Suchman, 1995). These findings also resonate with evidence from other cases such as environmental certification schemes. For instance, Penny Fowler and Simon Heap (2000) hold that the Forest Stewardship Council (FSC) is more successful than the Marine Stewardship Council (MSC) partly because it is more inclusive. In fact, the MSC only established a stakeholder council when its certification scheme failed to deliver the expected results. In a similar vein, Lars H. Gulbrandsen argues that the ‘lack of ownership felt by many forest owners to the FSC’ is a partial explanation for the proliferation of competing programs dominated by industry (Gulbrandsen, 2004, pp. 94 et seq., emphasis added). Second, transparency and accountability proved crucial when the Forest Stewardship Council’s integrity was challenged by allegations that its certification scheme was not operating in accordance with its own regulations. The FSC could fend off this challenge because member organisations rushed to support the FSC. They asserted that most of the deficits mentioned in the critics’ report had already been addressed by the FSC when the study was published and that control mechanisms were working properly (Pattberg, 2004, pp. 155 et seq.). Finally, deliberative procedures are a crucial factor in accounting for the (partial) effectiveness of the World Commission on Dams in which high quality deliberations and a strong collective identity provided the basis for most commission members to defend the final outcomes vis-à-vis their constituencies as a set of reasonable norms and rules (Dingwerth, 2007, pp. 52–98). In sum, these concluding remarks point us to a number of questions that would seem to follow as the next logical steps in an effort to further explore the link between the procedural quality and political effectiveness of private transnational governance schemes. Four points seem particularly relevant in any effort to pin down more precisely the conditions under which normatively justified procedures contribute to the effectiveness of transnational standard-setting (and possibly also other) NGOs. First, a simple translation of procedural legitimacy into effectiveness clearly underestimates the complexity of private standard setting, in particular when initiatives include stakeholders from different sectors

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of society. Most importantly, it is simplistic in that it does not take into account that different actors may have different reasons for granting legitimacy (Huckel, 2005). While the business community may see inclusiveness and deliberation as instruments for enhancing the epistemic value of decisions, civil society organisations may value them for intrinsic reasons; moreover, they may put more emphasis on additional values such as equality or fairness. Transparency appears relevant to everyone, as no one wishes to lose control over the decision-making process, especially where confidence is low. That inclusiveness, deliberation and transparency appeal to both business and civil society communities – although for different reasons – might thus explain why these concepts are so prominent in standard-setting NGOs that include members of both sectors. Yet, the precise roles of different values for different stakeholder groups will need to be explored in greater depth. Second, our findings suggest that the importance of procedural legitimacy may differ across the various stages of a governance process. It may not be very important at the very beginning of the process (i.e., when some individuals or groups join forces to initiate a standardsetting process), but is likely to become more and more important once the rules are being drafted and later implemented. Specifically at the stage of compliance management, due procedures are likely to gain further relevance. Standard-setters that can build upon accepted structures that have already been implemented during initial negotiations may have an advantage during this later phase. Overall, it therefore seems worthwhile to further investigate how relevant different aspects of procedural legitimacy are at different stages of the policy process. Third, trade-offs between different aspects of procedural legitimacy – and therefore between the mechanisms identified in this chapter – are likely to further increase the complexity of the issue. For example, transparency and deliberation are often seen as mutually exclusive. Moreover, difficulties arise in balancing demands for greater inclusiveness with demands for efficient decision-making procedures. How adequate levels of inclusiveness, transparency, or deliberation are determined, what kind of trade-offs appear in practice, and how and with which consequences they are dealt with are therefore intriguing questions for further research. Fourth, recent comparative case studies indicate that legitimacy and democratic standards of accountability are indeed most relevant for standard-setting organisations. Nevertheless, it would be useful to broaden our discussion of this particular type of NGOs and explore what (similar or different) legitimacy standards are applied to advocacy and

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service provision organisations. It makes sense to interpret the ‘backlash against civil society’ as a product of NGOs’ deepened engagement in the making of global rules and global governance. Accordingly, we should observe variation in the legitimacy standards applied to NGOs that fulfil different public functions. Debating these standards could provide answers to the questioning of the legitimacy and accountability of those who were once seen as the ‘conscience of the world’ (Willetts, 1996).

Notes

1.

2.

3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

For comments on earlier drafts, we thank the anonymous reviewers and our colleagues, especially Tanja Börzel, Magnus Boström, Wolfgang von den Daele, Jörg Friedrichs, Kristina Hahn, Markus Jachtenfuchs, Alexander Kocks, Sebastian Krapohl, Markus Lederer, Rune Premfors, and Klaus Dieter Wolf. An earlier version of this paper has also appeared in the SFB 700 Governance Working Paper Series, Freie Universität Berlin. This conception of NGO legitimacy in global governance is based on similar distinctions and definitions in Beisheim (1997), Bernstein (2004) and Buchanan and Keohane (2006). On the notion of effectiveness, see Young’s distinction between output, outcome and impact (Young, 1999). Our own discussion mainly refers to the outcome dimension of effectiveness and uses compliance with the rules devised by an NGO as the principal indicator. For a discussion, see van de Kerkhof (2006, p. 282). Theories of deliberative democracy are based on the view that ‘legitimacy in complex societies must be thought to result from the free and unconstrained public deliberation of all about matters of common concern’ (Benhabib, 1996). For an overview, see Chambers (2003). Parts of this section draw on Dingwerth (2007, pp. 99–143); on the notion of a plausibility probe, see Eckstein (1975). See http://www.globalreporting.org/AboutGRI/WhatWeDo/, date accessed 15 January 2009. For a critical evaluation of the potential for further growth of the GRI, see however Palenberg et al. (2006). Personal interview with a former member of the GRI Steering Committee, 8 April 2005. See http://www.globalreporting.org/NewsEventsPress/LatestNews/2007/ NewsJan07NewOS.htm, date accessed 1 February 2007. Bill Birchard in Tomorrow, November/December 2000, cited in Corporate Europe Observer (2002, emphasis added). Interview with a former member of the GRI Steering Committee, 8 April 2005. Interview with a former member of the GRI Steering Committee, 11 April 2005. Interview with a former member of the GRI Steering Committee, 11 April 2005. Interview with a member of the GRI Board of Directors, 8 March 2005.

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15. Interview with a former member of the Measurement Working Group, 10 March 2005. 16. Interviews with a member of the GRI Board of Directors, 8 March 2005 and with a former member of the GRI Steering Committee, 11 April 2005.

References K. Bäckstrand (2006) ‘Democratizing Global Environmental Governance? Stakeholder Democracy after the World Summit on Sustainable Development’, European Journal of International Relations, 12, 4, pp. 467–98. M. Beisheim (1997) ‘Nichtregierungsorganisationen und ihre Legitimität’, Aus Politik und Zeitgeschichte, B 43/1997, pp. 21–9. S. Benhabib (1996) ‘Toward a Deliberative Model of Democratic Legitimacy’, in S. Benhabib (ed.) Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press), pp. 67–94. S. Bernstein (2004) The Elusive Basis of Legitimacy in Global Governance: Three Conceptions, Working Paper No. GHC 04/2 of the Institute for Globalization and the Human Condition (Hamilton, ON: McMaster University). S. Bernstein and B. Cashore (2004) ‘Non-State Global Governance: Is Forest Certification a Legitimate Alternative to a Global Forest Convention?’, in J. Kirton and M. Trebilcock (eds) Hard Choices, Soft Law: Combining Trade, Environment and Social Cohesion in Global Governance (Aldershot: Ashgate), pp. 33–63. T. A. Börzel and T. Risse (2005) ‘Public-Private Partnerships: Effective and Legitimate Tools of International Governance?’ in E. Grande and L. W. Pauly (eds) Complex Sovereignty: Reconstituting Political Authority in the Twenty-First Century (Toronto: University of Toronto Press), pp. 195–216. A. Buchanan and R. Keohane (2006) ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs, 20, 4, pp. 405–37. J. L. Campbell (2005) ‘Where Do We Stand? Common Mechanisms in Organizations and Social Movements Research’, in G. F. Davis, D. McAdan, W. R. Scott and M. N. Zald (eds) Social Movements and Organization Theory (Cambridge: Cambridge University Press), pp. 41–68. S. Chambers (2003) ‘Deliberative Democratic Theory’, Annual Review of Political Science, 6, pp. 307–26. A. Chayes and A. Handler Chayes (1995) The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press). J. T. Checkel (2006) ‘Tracing Causal Mechanisms’, International Studies Review, 8, 2, pp. 362–70. J. Clark (2003) Worlds Apart: Civil Society and the Battle for Ethical Globalization (London: Earthscan). Corporate Europe Observer (2002) ‘Rio+10 and the Privatisation of “Sustainable Development”’, Corporate Europe Observer, 11, May 2002. G. F. Davis and C. Marquis (2005) ‘Prospects for Organization Theory in the Early Twenty-First Century: Institutional Fields and Mechanisms’, Organization Science, 16, 4, pp. 332–43. D. Dickinson (2006) ‘Guidelines by Stakeholders for Stakeholder: Is it Worth the Effort?’ SDI Issues – CSR & Accountability No. 18 (Amsterdam: SDI), available

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at http://www.globalreporting.org/NR/rdonlyres/B2E70533-6026-4260-AF2D06C814E860C8/0/DickinsonByStakeholdersForStakeholders.pdf, date accessed 16 January 2009. P. J. DiMaggio and W. W. Powell (1983) ‘The Iron Cage Revisited. Institutional Isomorphism and Collective Rationality in Organizational Fields’, American Sociological Review, 48, 2, pp. 147–60. K. Dingwerth (2007) The New Transnationalism: Transnational Governance and Democratic Legitimacy (Basingstoke: Palgrave Macmillan). K. Dingwerth and P. Pattberg (2009) ‘World Politics and Organizational Fields: The Case of Transnational Sustainability Governance’, European Journal of International Relations, 15, 4, pp. 707–43. H. Eckstein (1975) ‘Case Study and Theory in Political Science’, in F. I. Greenstein and N. W. Polsby (eds) Handbook of Political Science, Vol. 7 (Reading: AddisonWesley), pp. 79–138. P. Fowler and S. Heap (2000) ‘Bridging Troubled Waters: The Marine Stewardship Council’, in J. Bendell (ed.) Terms of Endearment: Business, NGOs and Sustainable Development (Sheffield: Greenleaf), pp. 135–48. T. M. Franck (1990) The Power of Legitimacy among Nations (New York: Oxford University Press). C. Frantz and K. Martens (2006) Nichtregierungsorganisationen (Wiesbaden: VS Verlag). Global Reporting Initiative (GRI) (2001) GRI Update: January 2001 [on file with author]. Global Reporting Initiative (GRI) (2002a) Dialogue on Current and Future Directions: Some Key Issues and Perspectives for and from Our Stakeholders (GRI web archive document) [on file with author]. Global Reporting Initiative (GRI) (2002b) GRI Secretariat Memorandum: Summary of the Revisions Working Group and Related Board (20 March–September 2002) [on file with author]. Global Reporting Initiative (GRI) (2002c) GRI Update: August 2002 [on file with author]. Global Reporting Initiative (GRI) (2002d) GRI Update: June 2002 [on file with author]. Global Reporting Initiative (GRI) (2002e) GRI Update: May 2002 [on file with author]. Global Reporting Initiative (GRI) (2002f) A Historic Collaborative Achievement: Inauguration of the Global Reporting Initiative (4 April 2002) [on file with author]. Global Reporting Initiative (GRI) (2002g) Incorporation of Stitching Global Reporting Initiative (Amsterdam: GRI). Global Reporting Initiative (GRI) (2003a) Business Plan 2003–2005 (Amsterdam: GRI). Global Reporting Initiative (GRI) (2003b) News Update October 2003 [on file with author]. Global Reporting Initiative (GRI) (2004a) News: ‘GRI Rules the Roost’: Benchmarking Report Shows 94% of Best Reporters are Using GRI, available at http://www. globalreporting.org/news/updates/article.asp?ArticleID=366, date accessed 27 December 2004. Global Reporting Initiative (GRI) (2004b) Structured Feedback Process, available at http://www.globalreporting.org/feedback/SFP.asp, date accessed 21 June 2004.

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Global Reporting Initiative (GRI) (2007a) Latest News: New OS this month, available at http://www.globalreporting.org/NewsEventsPress/LatestNews/2007/ NewsJan07NewOS.htm, date accessed 1 February 2007. Global Reporting Initiative (GRI) (2007b) available at http://www. corporateregister.com/gri/ (homepage), date accessed 17.01.2007. Global Reporting Initiative (GRI) (2009) What We Do, available at http://www. globalreporting.org/AboutGRI/WhatWeDo/, date accessed 15 January 2009. Global Reporting Initiative (GRI) (undated-a) Stakeholder Council: Terms of Reference [on file with author]. Global Reporting Initiative (GRI) (undated-b) Stakeholder Council, http://www. globalreporting.org/governance/stakeholdercounc.asp, date accessed 23 March 2004. T. Göbel (2007) Too Many Cooks Spoil the Broth? Some Thoughts on the Role of Inclusiveness in (Private) Transnational Governance (Mimeo, EberhardKarls-Universität Tübingen) (Tübingen: Eberhard-Karls-Universität). L. H. Gulbrandsen (2004) ‘Overlapping Public and Private Governance: Can Forest Certification Fill the Gaps in the Global Forest Regime?’, Global Environmental Politics, 4, 2, pp. 75–99. K. Hahn (2008) NGOs’ Power of Definition: Identity Productions in Counter-Human Trafficking Discourse and the Debates on the UN Protocol, Ph.D. Dissertation (Bremen: University of Bremen). A. Hasenclever, P. Mayer, and V. Rittberger (1997) Theories of International Regimes (Cambridge: Cambridge University Press). C. Huckel (2005) Legitimacy and Global Governance in Managing Global Public Health, Paper presented at the conference ‘Organizing the World: Rules and Rule-Making among Organizations’, Stockholm, 13–15 October. I. Hurd (1999) ‘Legitimacy and Authority in International Politics’, International Organization, 53, 2, pp. 379–408. M. Jachtenfuchs (2003) ‘Regieren jenseits der Staatlichkeit’, in G. Hellmann, K. D. Wolf and M. Zürn (eds) Die Neuen Internationalen Beziehungen: Forschungsstand und Perspektiven in Deutschland (Baden-Baden: Nomos), pp. 495–518. R. O. Keohane (2003) ‘Global Governance and Democratic Accountability’, in D. Held and M. Koenig-Archibugi (eds) Taming Globalization: Frontiers of Governance (Cambridge: Polity), pp. 130–59. G. Klosko (2000) Democratic Procedures and Liberal Consensus (Oxford: Oxford University Press). A. Liese and M. Beisheim (forthcoming) ‘Transnational Public-Private Partnerships and the Provision of Collective Goods in Developing Countries’, in T. Risse and U. Lehmkuhl (eds) Governance without a State? Policies and Politics in Areas of Limited Statehood. S. Mallaby (2004) ‘NGOs: Fighting Poverty, Hurting the Poor’, Foreign Policy, September/October, pp. 50–8. R. B. Mitchell (1998) ‘Sources of Transparency: Information Systems in International Regimes’, International Studies Quarterly, 42, 1, pp. 109–30. M. Palenberg, W. Reinicke, and J. M. Witte (2006) Trends in Non-Financial Reporting, GPPi Research Paper Series No. 6. (Berlin: GPPI). P. Pattberg (2004) ‘“Private-Private Partnerships” als innovative Modelle zur Regel(durch)setzung? Möglichkeiten und Grenzen eines neuen Konzeptes

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am Beispiel des Forest Stewardship Council (FSC)’, in T. Brühl, H. Feldt, B. Hamm, H. Hummel and J. Martens (eds) Unternehmen in der Weltpolitik: Politiknetzwerke, Unternehmensregeln und die Zukunft des Multilateralismus, (Frankfurt a. M.: Dietz), pp. 143–62. T. Risse (2006) ‘Transnational Governance and Legitimacy’, in A. Benz and I. Papadopoulos (eds) Governance and Democracy: Comparing National, European and International Experiences (London: Routledge), pp. 179–99. J. Steets (forthcoming) Partnership Accountability. Defining Accountability Standards for Public Policy Partnerships, unpublished manuscript, Berlin/Erfurt. M. C. Suchman (1995) ‘Managing Legitimacy: Strategic and Institutional Approaches’, Academy of Management Review, 20, 3, pp. 571–610. S. Tarrow (2005) The New Transnational Activism (Cambridge: Cambridge University Press). M. van de Kerkhof (2006) ‘Making a Difference: On the Constraints of Consensus Building and the Relevance of Deliberation in Stakeholder Dialogues’, Policy Sciences 39, 3, pp. 279–99. S. Waddell (2002) The Global Reporting Initiative: Building a Corporate Reporting Strategy Globally (Boston, MA: The Global Action Network Net). P. Wapner (1996) Environmental Activism and World Civic Politics (Albany, NY: SUNY Press). P. Willetts (ed.) (1996) The Conscience of the World: The Influence of NonGovernmental Organisations in the UN System (London: C. Hurst & Co). K. D. Wolf (2006) ‘Private Actors and the Legitimacy of Governance beyond the State. Conceptional Outlines and Empirical Explorations’, in A. Benz and I. Papadopoulos (eds) Governance and Democracy: Comparing National, European and International Experiences (London: Routledge), pp. 200–27. O. R. Young (1999) Governance in World Affairs (Ithaca, NY: Cornell University Press). M. Zürn (1992) Interessen und Institutionen in der internationalen Politik: Grundlegung und Anwendung des situationsstrukturellen Ansatzes (Opladen: Leske + Budrich).

5 Assessing the Democratic Legitimacy of Transnational CSOs: Five Criteria Jens Steffek, Ralf Bendrath, Simon Dalferth, Kristina Hahn, Martina Piewitt and Meike Rodekamp

Civil society organisations (CSOs)1 are on the rise in international politics, certainly in numbers and, many would argue, also in political importance. Transnational civil society now interacts with virtually all international organisations. There are, however, various degrees of institutionalisation and formalisation of this interaction (Charnovitz, 1997; Steffek and Nanz, 2008). The United Nations (UN), for example, made formal arrangements for civil society participation from the very beginning of its existence in the 1940s (Alger, 2002; Willetts, 2000). The European Union (EU) also has a tradition of consultation with a variety of civil society actors, ranging from the social partners to advocacy groups and religious congregations (Greenwood, 2007a; Smismans, 2004). In global economic governance, the World Bank has established extensive contact with civil society for more than two decades, both in Washington DC and in the various countries where its projects are implemented (Brown and Fox, 2001; Acuña and Tuozzo, 2000). The world trade regime and the International Monetary Fund (IMF) traditionally have had much less interaction with civil society, but since the 1990s even these organisations are slowly opening up (Scholte, 2002; Woods and Narlikar, 2001; Esty, 1998). Overall, the frequency and extent of consultation between international organisations and organised civil society have increased greatly. There even seems to be an emergent norm of civil society consultation in global and European governance (Dingwerth, 2007; Reimann, 2006; Saurugger, 2008). The new visibility of CSOs and their presumed influence has sparked debate about their accountability and legitimacy (Bendell, 2006; Johns, 2003; Slim, 2002). The issue is of particular interest since many have claimed that the participation of CSOs in international politics may mitigate the ‘democratic deficit’. One key assumption underlying such 100

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claims is that CSOs are somehow able to embody, represent, or reflect citizens’ interests, anxieties, hopes and ideals. The potential democratisation of world politics through CSO involvement therefore seems to hinge largely on the capacity and willingness of these organisations to voice the concerns of citizens and transport them into the political arena. To use a metaphor, CSOs can be thought of as being ‘transmission belts’ (Steffek and Nanz, 2008, p. 8) between the transnational citizenry and international organisations. This transmission belt bypasses the bottleneck of interest aggregation and representation through the hierarchical structures of the state and channels political demands directly into international forums. For the time being, the existence of the CSO transmission belt remains a hypothesis rather than a certified truth. From the normative point of view there are many reasons to wish that CSOs functioned this way. However, there has been very little empirical research on CSOs that systematically addresses the question of whether or not these organisations really connect citizens and international organisations. The overall aim of our current research is to explore empirically to what extent transnational CSOs conform to the transmission belt ideal. The particular aim of this contribution is to clearly define and discuss our normative expectations, and to develop criteria and indicators for empirical research. We suggest a set of five criteria for analysing the capacity of CSOs to create a direct channel of communication between citizens and international organisations: participation, inclusion, responsiveness, transparency, and independence. As we will explain in this paper, these five criteria add up to a particular vision of CSO legitimacy that focuses on vertical relationships within organisations, that is, the relationships between leaders and managers, and members, supporters and beneficiaries. It envisages some duties of CSOs towards the wider public (external accountability) but the focus clearly is on intra-organisational matters. We are particularly interested in the procedures of decision-making and the consultation of members, supporters and beneficiaries in this process.2 This chapter is organised as follows: in the next section we take issue with democratic theory and discuss the role that CSOs might have to play in the project of democratising international politics. We also clarify why notions of (internal) democratic legitimacy and accountability are adequate categories for the evaluation of CSOs. Such an explicit defence is warranted because the concepts of democracy, legitimacy and public accountability have been developed with regard to the state, not societal non-profit organisations. In sections three to

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seven, we present and discuss in detail each of the five criteria that we suggest as normative yardsticks for empirically assessing the conduct of CSOs. Section eight highlights the synergies between the five criteria we propose, and section nine briefly concludes.

CSOs and their need for democratic legitimacy Why would one expect civil society organisations to feature anything like ‘internal democracy’? After all, CSOs are voluntary associations that do not have the power of jurisdiction or coercion. Would it not be exaggerated to expect CSOs to conform to democratic standards of decision-making that were developed with regard to the state? Goodin, for one, has argued that notions of internal democracy should not be applied to non-governmental organisations of the third sector (Goodin, 2003). In his view, accountability relations of the vertical, controlling type, as they typically occur in the public sector, are inappropriate for non-profits. These organisations should be primarily subject to horizontal monitoring and reputational sanctioning through like-minded peers (Goodin, 2003, pp. 13 et seq.). Goodin’s view is that non-profit organisations do charitable work, based on good intentions, and that they provide public goods. These special characteristics make them susceptible to relatively soft sanctioning mechanisms of the reputational type and may also explain why soft mechanisms are sufficient to hold them to account (although Goodin is not terribly explicit on this point). Against such a view we would present two arguments in favour of requiring internal democratic structures in CSOs: the first argument is based on the considerable power that CSOs have. As Hahn shows in her contribution to this volume, the self-assumed privilege of advocacy groups to speak for or on behalf of someone creates relationships of power and domination. This power should be kept in check, and it should be kept in check by the people affected by it. In our view, therefore, there is a clear normative case to be made for control of these organisations to come ‘from below’. Our second argument in favour of internal democracy requires more elaboration. As we have said in our introductory remarks, many would argue that participation of civil society actors in international governance will contribute to a democratisation of world politics. There are different varieties of this claim (for an overview see Greenwood, 2007b; Kohler-Koch, 2007; Steffek and Ferretti, 2009). Some argue in a broadly pluralist fashion that CSO involvement in international politics may lead to a ‘population increase’ (Van Rooy, 2004, p. 23) at the summit of world politics.

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CSO participation, in this view, promotes political pluralism and gives voice to concerns that governments would otherwise marginalise. Others would stress that CSO participation facilitates the external accountability of global governance (Scholte, 2004). Third, deliberative democratic theorists would highlight that CSOs may voice alternative points of view and promote transnational public debate on international governance (Nanz and Steffek, 2004, p. 323). We have tried to capture these three distinct functions in the normative model of the ‘transmission belt’ between international organisations (as institutional centres of political decision-making beyond the state) and an emerging transnational citizenry. This transmission belt operates vertically and horizontally: in the vertical dimension, CSOs take up citizens’ concerns and channel them ‘upwards’ into the deliberative process of international organisations. In turn it can make internal decision-making processes of international organisations more transparent and transport information ‘downwards’ to citizens. In the horizontal dimension, CSO activities may spark public debate by presenting information on what is going on in international organisations to the media, along with criticism and possible alternatives. Figure 5.1 displays this normative model of the role of organised civil society.

IOs

Take concerns to IOs

Collect information from IOs

Inform wider public about international politics

CSOs

Pass on information to interested citizens

Inform wider public about political alternatives

Gather citizens' concerns

Citizens Figure 5.1 CSOs as transmission belt between IOs, a global citizenry and the public sphere Source: Steffek and Nanz, 2008: 8

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If we believe that CSOs are, or should be, a transmission belt in international governance, and give voice to citizens, we cannot avoid the question of their internal functioning. The model implies a capacity of civil society organisations to somehow represent elements of a global citizenry (Wahl, 1998). Some critics have argued that civil society organisations cannot be representative because most of them only pursue a very limited agenda that appears to matter only to very few people (Anderson, 2000, p. 118; Trachtman and Moremen, 2003, p. 228). But in our model, which emanates from a deliberative conception of democracy, this numerical understanding of representation is not the point. As voluntary associations mobilising around certain themes or problems, CSOs cannot claim to be representative of any constituency beyond that of their group of members and supporters. What CSOs represent is issues, values, or interests, and we would argue that it is precisely for this reason that they are fit to complement the territorial dimension of representation that takes place in intergovernmental diplomacy. In international politics, where every state is required to speak with a single voice, territorially defined interests are aggregated to the extreme. While governmental delegates can legitimately claim to represent a state as a whole (provided the government has been elected democratically) and hence a territory, they cannot claim to represent the variety of political values and interests present within their national constituency. Yet even if we envisage for CSOs the representation of transnational issues and arguments, instead of territorially defined constituencies, we still cannot avoid the problem of representation of specific persons. Political arguments do not float freely. They are often situated in the daily lives, particular experiences and circumstances of certain social groups. In this respect it appears problematic, for example, that Northern CSOs campaign on development issues on behalf of Southern concerns. This is not to say that Northern CSOs should not address questions of socio-economic development. But we should at least expect them to consult the groups in the South they claim to speak for, to listen to them and to be responsive to their views. If they fail to do so, this would be a clear case of illegitimate advocacy by a CSO. However, we can only criticise such practices as illegitimate if we subscribe to some conception of democratic legitimacy of CSOs that assigns importance to the participation of, and accountability to, a CSO’s members, supporters and beneficiaries (see also Guo and Musso, 2007, p. 315). In this section we have now established the need for, and relevance of, democratic legitimacy as a normative category for assessing

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transnational CSOs.3 We defended a notion of democratic legitimacy for CSOs that puts participation of, and accountability to, its members, supporters and beneficiaries centre stage. As will become clear in the following sections, we are not calling for an emulation of representative models of democracy in the non-governmental sphere. Rather, we formulate a set of more abstract and general criteria that we apply in order to evaluate the legitimacy and accountability of CSOs: participation, inclusion, responsiveness, transparency, and independence. In the next section we present and discuss these five criteria.

The criterion of participation Participation is at the core of the democratic idea. The term, ethymologically and conceptually, refers to ‘being part of’ and ‘taking part in’. Only if citizens can participate in politics, however indirectly, can they have influence and give legitimacy to processes and decisions that ultimately affect their lives. Participation can take many forms and is conceptualised differently in different theories of democracy. It may refer to direct voting on issues (direct democracy), elections of representatives (representative democracy), and processes of public reasoning and scrutiny (deliberative democracy). In the more narrow sense used in this paper, participation means the direct involvement of concerned citizens in the political process. It must be ensured through participation ‘that citizens’ concerns feed into the policymaking process and are taken into account when it comes to a decision on binding rules’ (Nanz and Steffek, 2004, p. 320). Citizen participation in CSOs empowers them to become louder and more articulate voices in politics in general, thereby – at least partly – leveling the playing field for the disadvantaged. Lastly, the participation of active citizens in CSOs may also enhance the substantial quality of the organisations’ work by providing them with expertise they cannot normally gather or afford. Participation can refer to different groups – the members, the supporters, and the beneficiaries of an organisation, project, or policy process (Nanz and Steffek, 2004). Members have acquired a formal status and usually pay fees to the CSO. Supporters are individuals who share the aims of the CSO and therefore work with it, or donate money, but without acquiring formal membership status. While the definition of members and supporters is quite straightforward, it is contested who exactly the beneficiaries of a CSO’s work are. In our understanding, beneficiaries are not all the people possibly concerned by the indirect and long-term effects of specific activities and projects, even if many CSOs

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claim to speak for ‘future generations’ or the benefit of ‘all mankind’.4 Rather, we understand beneficiaries to be a discernible, specific group of individuals, for whose benefit the CSO explicitly claims to speak. It is also possible that the CSO’s activities – although intended to bring benefit to these people – in reality prove to be disadvantageous for them. Hence, despite the positive connotation of the word ‘beneficiaries’, these people may not necessarily benefit from the CSO activity. It should also be noted that in practice there might be situations in which members, supporters and beneficiaries of CSOs are more or less identical. In general, all these three groups may have a legitimate interest in being able to participate in the CSO’s activities and raise their concerns in its policymaking processes. There are, however, differences in the specific grounding of such claims and the way in which participation is typically realised. The participation of members can be argued for on the grounds of their pledge to continually support the organisation and identify with it. In practice, members typically have the formal right to elect the board of an organisation and sometimes even directly take decisions at the strategic level. However, participation in our understanding, goes beyond elections or referenda and also includes direct and more informal forms of participation in the decision-making process of a CSO. Such informal modes of participation can enhance the overall quality of the CSO’s work and ensure that members’ preferences and ideas are also reflected in policymaking in between membership assemblies, or elections. Supporters should be able to participate in the work of a CSO for very similar reasons. While members, due to their status, have a more obvious ‘right’ to take part in the work and decision-making of a CSO, the distinction between members and supporters is merely a formal one. There will not be many members who do not support an organisation’s broad goals and activities. In a way, members are just supporters who have acquired a formal status. This may not be possible or affordable for all supporters, though, because of legal, financial, statutory and other constraints. While voting rights are rightfully limited to formal members of an organisation, this limitation is not justified for other forms of participation. Supporters who also donate money and volunteer services to the CSO, which may sometimes be more than the members contribute themselves, should also be heard and be able to participate in the decision-making processes of the CSO. The case for the participation of beneficiaries can be made by referring to the fact that they are directly affected by the advocacy work or service provision of a CSO. Very often CSOs in their campaigns

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explicitly refer to the benefits that the beneficiaries would reap from a certain political decision or allocation of funds in order to buttress their own argument. Therefore, beneficiaries ought to be able to make their voices and opinions heard in the process leading up to such a (policy) decision. By allowing those affected by its advocacy work to participate in its internal decision-making processes and external activities, a CSO can ensure that its activities and lobbying efforts are in line with the interests and needs of those affected.5 A key mechanism of political participation is ‘voice’, or communication. Therefore, participatory courses of action should, first of all, enable communication processes between a decision-making elite and a constituency. Participatory means and instruments include (adapted from Kissling, 2007, pp. 19 et seq.): • consultation on policy, programmatic and financial decisions (for example through hearings, surveys, discussion events, mailing lists, et cetera.); • procedural and institutional safeguards (for example through speaking rights at intra-organizational meetings, representatives included on the board, veto power of important groups); • conflict resolution procedures (for example review panels, juries, ombudsmen). While this list spans most of the conceivable spectrum of participatory means, it focuses on direct forms of consultation that take place clearly within the CSO and its processes. There are also other, more indirect means by which interested individuals can de facto participate and have an impact on internal CSO discussions. This is possible through specialised public spheres like blogs and newsletters that are read by the people in the decision-making bodies of the organisation. Here, even outsiders sometimes have a very powerful channel for injecting their ideas and arguments into the internal processes of a CSO. While this is certainly a relevant factor influencing CSOs’ positions and work, it refers more to aspects of public deliberation and should not be regarded as participation in a specific CSO in the narrow sense. These aspects will therefore not be covered by our concept of participation in CSOs. We also have to distinguish between the formal rules of participation and informal practices. Formal rules are spelled out in the bylaws and other administrative documents, and the executive bodies and staff are expected to follow them. In practice, however, this is not always the case.6 Therefore, we also need to look at the informal practices of

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participation. These include direct contacts such as communicating and consulting with individual members by the CSO staff, informal networks of relevant or experienced members and supporters, and other means. The democratic effects are harder to assess here. While informal consultation can enhance the quality of the CSO’s work and include more voices, arguments and opinions of its members, supporters and beneficiaries, it can also lead to informal power structures and illegitimate partisan networks. Similarly, formal rules for participation do not automatically ensure that all those who actually participate7 can do this on equal grounds. Schattschneider (1960, p. 35) already noted the discrepancy between the ideal and the practice of egalitarian access to pressure groups: ‘[T]he flaw in pluralist heaven is that the heavenly chorus sings with an upper class accent’. Similarly, Schlozman et al. (1997, p. 6) state that ‘voices heard through the medium of citizen participation will be often loud, sometimes clear but rarely equal’. Formal rules and procedures are probably a good first indicator for the energy that a CSO has put into trying to enhance the participation by members, supporters or beneficiaries. But not all who participate are equally able to speak the language of the professional CSO jet-set, and not all have the same social capital and social networks that give power to their arguments.8 Here again, the informal practices of participation need to be monitored closely. Different groups participate differently, and have different abilities to achieve their preferred outcomes. There will most likely be differential outcomes for the criterion of responsiveness with regard to participation by different groups. These may be distinct for members, supporters and beneficiaries; but also within these groups, different individuals will have different kinds of influence. The formal and informal means of participation, therefore, have to be seen not as parallel, but in relation to each other through a sort of net effect they have for the whole constituency. In practice, there probably is a trade-off somewhere. Formal participation rules can enhance the equality of voices and ideas, while too bureaucratic instruments very often lead to their circumvention through informal networks and agreements. Another aspect of formal rules for participation is the availability of sanctions. Formal rules are a serious incentive for staff and executive bodies to encourage participation only if they are also backed by a means of punishment if not obeyed. Kissling (2007, pp. 19 et seq.) rightfully mentions conflict resolution procedures, but falls short with regard to the consequences. The last mile to go here is not ombudsmen

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or juries, but the means they have at hand to enforce their rulings. While members always have the option of not re-electing officers who do not follow prescribed patterns of communication, this option is not available to supporters and beneficiaries. In their case, the existence of potential sanctions are perhaps even more vital. While Goodin (2003) argues that sanctions in the third sector take the form of reputation control and peer accountability, this only applies to each CSO as a whole. In order to ensure that board members and staff individually follow the prescribed rules for participation and grant meaningful access to members, there may also be a need for individual sanctioning mechanisms inside each CSO.

The criterion of inclusion Against the backdrop of the critical remarks on equality of participation mentioned in the previous section, inclusion emerges to be a crucial criterion for assessing the democratic quality of decision-making processes. The process of public reasoning that should take place has to include all possible arguments of those persons whose interests are affected by the decision in a deliberative process. These people should have an equal and effective opportunity to make their interests and the reasons for them known. Whereas the emphasis of our approach is put on the inclusion of arguments and not of the individuals who hold these viewpoints, these two aspects are nonetheless analytically attached: The inclusion of arguments is specifically problematic when certain groups of stakeholders are disadvantaged with regard to their resources and their degree of organization. Therefore, the democratic quality of deliberative procedures hinges upon their capacity to include arguments made by all groups of stakeholders concerned. (Nanz and Steffek, 2005, p. 377) The question is now how this ideal situation of an inclusive deliberative process can be reached. Since it is difficult to evaluate whether all possible arguments have been included in a debate (this would imply the search for arguments that are of concern but have not been voiced; the famous ‘dog that did not bark’), empowerment of individuals as the social carriers of arguments has been suggested as a relevant proxy for inclusion (Nanz and Steffek, 2005, p. 377). We therefore should expect from IOs that they undertake activities in order to empower the most

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disadvantaged groups to participate. But what shall we require from CSOs in order to evaluate them as ‘inclusive’?9 In our view, CSOs – as well as IOs – should undertake empowering strategies towards those groups among their members, supporters and beneficiaries that are most likely to be disadvantaged. However, since CSOs and IOs are fundamentally different organisations, this requirement needs to be adapted to the context. Unlike IOs, CSOs do not issue binding rules or standards but are engaged in advocacy for specific causes and concerns. As we explained above, they can only claim to speak for, or on behalf of, certain groups of persons. Consequently, we do not expect CSOs to empower all potentially disadvantaged addressees of governance but (only) those within their own constituency, that is, among their members, supporters and beneficiaries. The criterion of inclusion refers only to empowering CSOs’ current constituencies. We do not require CSOs to offer open membership or access. While open access is a relevant criterion for IOs, CSOs as political interest groups have a legitimate, and perhaps even functionally necessary, right to pick their own members. Above, we defined our notion of beneficiaries and why CSOs should make attempts to empower them.10 Disadvantaged groups and individuals may come from disadvantaged regions in the world, or from disadvantaged sectors in society. Possible empowerment strategies include: funding or the provision of information to disadvantaged groups; affirmative action; travel grants; capacity building; and the provision of technical assistance. These empowerment strategies are a precondition for effective participation by disadvantaged persons. The two criteria can be distinguished neatly from each other as one (inclusion) requires the empowerment of certain persons in order to enable them to voice their political concerns, whereas the other (participation) requires that these persons are consulted. Still, they are closely linked, since inclusion is a precondition for participation.

The criterion of responsiveness Democratic legitimacy requires that the concerns and interests voiced by citizens are reflected adequately in political decision-making.11 In deliberative-democratic theory, the assessment of democratic legitimacy thus moves beyond questions of procedure, and towards a more substantive conceptualisation that takes into account the extent to which a decision-making process truly reflects the view of citizens. While participation and inclusion are procedural preconditions for democratic

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governance, the criterion of responsiveness concerns the output side of our assessment of the democratic quality of decision-making procedures. Responsiveness is particularly important in conceptions of representative democracy but also applicable to political settings in which traditional modes of representation are hard to accomplish, such as inter- and transnational governance regimes.12 In the model of the ‘transmission belt’, outlined on the first pages of this chapter, CSOs are assigned a key role within such governance regimes, as they transfer the concerns of citizens into international decision-making bodies (Nanz and Steffek, 2004, p. 324). This intermediary role between the citizenry and decision-makers may also lead to the emergence of a transnational public sphere and hence public accountability (Steffek, 2008). Responsiveness is an important criterion here because it would be the ultimate touchstone for us to assess if the transmission belt really works. The criterion of responsiveness pertains to the de facto evaluation of the extent to which CSOs reflect the concerns of their members, supporters, and beneficiaries. In analysing responsiveness, however, we should not only focus on outcomes. The methodology for assessing the extent to which an organisation reflects the arguments and concerns of citizens should also focus on decision-making processes. Before we can turn to the research design for the criterion of responsiveness, some organisational and structural particularities of CSOs should be noted. IOs are characterised by hierarchical structures with a centralised decision-making authority, and decision-making normally follows formalised procedures. Input into these procedures, as well as political output, is therefore available in written form and usually accessible to external observers. Thus, the responsiveness of IOs can be assessed by researchers through a comparative content analysis between decisions as political output and written statements from CSOs as political input (Steffek and Nanz, 2007, pp. 12 et seq.; Dany, 2006, pp. 15 et seq.). In contrast, decision-making within CSOs is often less transparent, as these organisations follow informal and more discursive procedures of decision-making. The argumentative input into CSO policymaking does not always take the form of written statements visible from the outside, but can be carried out within rather informal procedures. Therefore, our object of investigation in assessing CSOs’ responsiveness cannot be solely the political output in the form of written statements and decisions. We also need to analyse all those intra-organisational discursive processes that lead to positions, strategies and arguments placed in international negotiations.

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It follows from the rather informal character of decision-making within CSOs that one will need to assess their responsiveness through participant observation, monitoring en detail how citizens’ arguments and concerns are dealt with in the processes that lead to specific decisions, positions or statements. We assume that a responsive policy-process contains four major phases:13 Phase 1 Acknowledgement that working in partnership with members to fulfil their interests and concerns is possible, even if only partially; Phase 2 Use of communication techniques and skills (cooperative communication techniques) that serve the following functions: • Indicating interest and concern for others; • Indicating willingness to work together and not in opposition; • Indicating acceptance of responsibility for communication and follow-up behaviour; Phase 3 Identification of both explicit (clearly stated) and implicit (unstated or below the surface) concerns of members; Phase 4 Understanding and fulfillment of those concerns, if possible. This framework provides us with a checklist for identifying elements of responsive decision-making procedures that can guide fieldwork on CSOs. It is obvious that such an operationalisation of the criterion of responsiveness goes far beyond the question of whether the positions of members are adopted by a CSO, either in part or as a whole. As elaborated above, responsiveness in our deliberative understanding should not be equated with impact, but rather an adequate and fair treatment of members’ arguments. This investigation into the social practices of dealing with the concerns of members, supporters and beneficiaries therefore can offer the needed insights into the organisational and deliberative culture of a CSO.

The criterion of transparency Transparency is commonly considered to be a necessary element of good governance (Bovens, 2007, p. 449) and thus legitimacy. Only by knowing what organisations do, and how they do it, can chains of accountability be constructed and legitimacy awarded (Grigorescu, 2007, p. 626). Transparency then sheds light on elite processes that would otherwise remain obscure. This has gained in importance as (elite) international organisations have extended their activity to virtually all areas of governance. Transparency also serves to reveal the appropriate timing

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for input, thereby making participation, inclusion, and responsiveness meaningful, and the transmission belt work. Transparency is defined as ‘easy access to accurate and comprehensible information about policy decisions and decision-making processes’ (Naurin, 2002, p. 9; see also Nanz and Steffek, 2005, p. 375). It concerns ‘the ability of B to receive information from A’ (Grigorescu, 2007, p. 626) and emphasises the need for A to make information available in a structured and useable manner. Merely publishing an incomprehensible amount of data does not therefore qualify as transparency. In short, transparency is important for providing information (Bovens, 2007, p. 453) to enable relevant communication processes. Deliberative democracy (for example Dryzek, 2000; Eriksen and Fossum, 2002) attributes transparency an important role in the establishment of public spheres. It is a necessary, but not a sufficient condition to enable arguing in public deliberation (Naurin, 2002, p. 6)14 and for CSOs to be able to take part in deliberations (Nanz and Steffek, 2005, p. 375). The growing demand for transparency has also prompted the emergence of CSOs such as Transparency International or CEE Bankwatch, which advocate transparency as an indispensable element of accountability and legitimacy. IOs need to provide the necessary information to the general public or the participants involved in negotiations. But CSOs not only demand transparency, they also ought to be transparent themselves. As with the other criteria for democratic legitimacy, which were developed in the context of the decision-making processes of IOs (cf. Nanz and Steffek, 2004), the application of transparency to CSOs who participate in public policymaking needs to be clarified. As argued in the first section, their participation in decision-making processes demands external and internal transparency, for only then can the overall transparency of the whole decision-making arena be ensured. Transparency is a precondition for deliberative processes within CSOs (cf. Nanz and Steffek, 2005, p. 375). However, like IOs, CSOs do not need to disseminate information to individuals actively to be considered transparent. It is sufficient to provide the means and procedures for obtaining information. In principle, the concept of transparency means being open and providing information to the general public. How could such a demand be operationalised for empirical research? An empirical approach to transparency consists of two dimensions (cf. Grigorescu, 2007, p. 627): • addressees of transparency; and • extent of transparency.

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The first dimension concerns the group of people who have access to the information published under the organisation’s approach to transparency. Transparency within a private actor such as a CSO can be directed towards the public at large. This is the broadest degree of transparency, where everybody has access to the information provided and there is no intention of withholding any information (Pasquier and Villeneuve, 2007, p. 152). The group of addressees can be legitimately restricted, however, when we consider transparency for internal CSO decision-making. While those organisations that take binding decisions for the general public ought to be accountable to all, private actors with their (usually) more limited scope of action may legitimately choose to address only the transparency needs of their members, supporters and beneficiaries. The second dimension of transparency encompasses the numerous types of information to be made public. One regular demand towards IOs and CSOs alike concerns the way they reach decisions (Anheier and Themudo, 2005, p. 195). CSOs should make the decision-making procedures through which they form their positions clear in an accessible and comprehensible manner. This is most easily achieved by publishing their statutes, bylaws or memoranda of association. In addition to procedures, the products of their advocacy should be available. This may involve position papers, letters, press releases and policy advice. In order that the origin and context of advocacy products can be fully understood, they should also publish documents on their consultation process, such as conference reports, annual reports and general reports. Contributions to the budget of a CSO ought to be transparent, too. This is necessary to assess its independence from government or dominant donors (see below). Ideally, information on the budget should specify contribution sizes and their origin in detail. It can then be presumed that any possibly dominant donors who might co-opt the CSO would be exposed. Making public the use of the budget, that is, how it is spent, is necessary for financial accountability, but also helps to identify organisational priorities through the allocation of funds to specific budget lines. Finally, administrative documents could be made available, such as draft papers, minutes of meetings and histories of previous communications. Their publication would allow for a qualification of formal decision-making procedures and possibly the responsiveness of an organisation to member demands. As they are mainly important for internal decision-making, their availability to the general public is not necessary in order to be externally transparent. In order to be internally transparent, however, members must have access to these documents.

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Such a two-dimensional approach to transparency allows a detailed assessment of how transparent a CSO is. It further allows the differentiation of varying degrees of transparency towards different actor groups.

The criterion of independence If civil society is to be a sphere separate from the state and the market (Anheier et al., 2001, p. 17), the independence of CSOs from the two is an indispensable precondition. Deliberative democratic theory claims that democratic legitimacy can be generated through a process of deliberation by various societal actors. Political decisions are reached through the free exchange of arguments of those participating in the deliberative process, in view of the common good of the given constituency (Nanz and Steffek, 2004, p. 2). If CSOs are to have a role in public deliberation as channels of citizens’ interests and concerns, it has to be ensured that they, too, are free and uncoerced in their expression of interests and arguments. If the independence of CSOs is jeopardised, they are prevented from exercising their function as intermediaries – or ‘transmission belts’ – between citizens and decision-makers. This can happen for various reasons, as follows. The independence of civil society is postulated with regard to two other spheres: the state and the market. CSOs should thus act autonomously from the state and intergovernmental organisations, and they should not be profit-oriented. On closer inspection, the criterion of CSO independence has two dimensions, which are often intertwined: political and financial independence. There are different circumstances which can pose a threat to the political independence of a CSO. The organisational autonomy might be endangered if the founder of the CSO is the state, an intergovernmental institution, or a single profitmaking corporation (see Martens, 2001 for the creation of NGOs by UNESCO). The same is true if an organisation is staffed by political institutions or commercial enterprises. Political and financial independence go hand in hand and it seems that the former can be measured to a certain extent by the latter (Martens, 2001). As non-profit organisations, most CSOs depend to at least some degree on financial support from the outside. If they receive funding from government agencies or one single private company, they are frequently accused of being co-opted. The charge is that political or business actors instrumentalise CSOs for their own purposes (Bichsel, 1996, pp. 236–8; Hirsch, 2003, p. 9). CSO programmes and projects are said to reflect donor views, operating not according to beneficiaries’

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needs but in line with donor interests. It is assumed that because CSOs have to struggle for their financial survival, they might be obligated to make compromises in their political work to take advantage of existing sources of funding. The charge of co-optation is especially compelling if a single donor is found to fund an organisation. We propose to distinguish between project funding and core funding from external donors. Project funding is granted for the implementation of specific tasks. Even though these tasks are often imposed by, or agreed upon with, the donor, the CSO normally does not depend entirely on these earmarked funds and can pursue its main activities independently of them. Core funding, in contrast, refers to the financial means necessary for running expenses, such as office space, infrastructure and equipment, and permanent staff. As opposed to project funding, organisations cannot do without it and the dependence on the donor is therefore stronger. Notwithstanding the close link that frequently exists between financial independence and the degree of political independence, simply checking for the percentage of funding that donors give to a specific CSO can also be misleading: while in some countries government-funded organisations may indeed be government-driven, in others, government funding for CSOs is common practice and the political independence of CSOs is nevertheless ensured. This seems to be true, for instance, in Nordic countries, where CSOs are not only in contractual relationships for project implementation but receive government funding for their core work. In spite of this, they do not usually feel restricted in the activities they pursue or the positions they advocate (Bichsel, 1996, p. 237). Therefore, what is more important than the financial situation is that donor interests do not interfere with the opinion formation and decision-making of the organisation (Kissling, 2007, p. 3).15 The following indicators can be used in empirical research when assessing if a civil society organisation is or is not susceptible to being co-opted: • Founder and circumstances of the foundation: not founded by government/IO; no political and/or financial incentive for foundation; • Staffing: no indirect government or business influence through selective staff recruitment; personnel selected in open and fair application procedures; • Relations to government/IO and private business donors: preferably no contractual relationship; if there is funding by them, it should be unconditional;

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• Budget composition: diverse funding base; no single donor dominating; • Strategies: not unduly diplomatic in its criticism of an IO/a government; no unnecessary non-confrontational (‘cosy’) approach towards certain actors; no different treatment of similar actors. It should be noted that these are indicators for the vulnerability of a CSO to undue external influence and control. The decisive question with regard to the real independence of a CSO is whether it adjusts its decisions, strategies or policies in the face of external pressure or not. This can only be assessed by closely examining concrete practices and processes of individual CSOs.

Synergies The five criteria that we presented in this section are not independent of each other but stand in a synergistic relationship. As Figure 5.2 below shows, responsiveness should be the ultimate aim of democratically legitimate decision-making and should be conceptualised as the decisive measure (Nanz and Steffek, 2005, p. 376). The assumption is that in order for responsiveness to be realised, based on the full participation of well-informed, non-coerced citizens, the four preconditions must be fulfilled. For that reason it is insufficient to measure only responsiveness. Such a research strategy would probably mislead us in that it can only assess responses to demands that were articulated, neglecting those that were never formulated because members were unable to do so in the first place, for lack of transparency, participation rights or empowerment measures. Inclusion and transparency are both preconditions for meaningful participation of members, supporters and beneficiaries Preconditions for

Preconditions for

Transparency

Inclusion

Participation

Independence Figure 5.2

Five elements of CSO legitimacy

Responsiveness

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in a CSO. Opportunities for participation, in turn, are a precondition for the responsiveness of an organisation to the demands of these groups. The independence of an organisation ensures that responsiveness is not distorted by undue influence from powerful actors outside the organisation. Therefore, although being instrumental in creating responsiveness, each criterion has independent normative value and needs to be assessed separately.16 Figure 5.2 shows how the five criteria are connected. How can we empirically measure CSO performance on each of the five criteria? This theory paper clearly is not the right place to discuss methodological details and empirical research strategies for each criterion. However, some remarks on the way we plan to arrive at our judgments are in order here. Since we are suggesting a set of five distinct criteria for assessing the legitimacy of a CSO we need to clarify how we will arrive at an overall picture, emanating from the single measures in the five dimensions. If a CSO ranks averagely on all criteria, is it more or less legitimate than one which ranks, for example, high on transparency or independence, but low on participation or inclusion? With regard to the final assessment, a major question is whether or not one should strive to quantify the results of what essentially is a qualitative analysis, in which interpretation and counterfactual reasoning are pervasive. Generally speaking, the use of numbers instead of verbal descriptions appears to be appealing because it suggests accurate measurement and allows for easy comparisons between cases. However, in their guide to the cross-national study of democracy, Beetham et al. quite correctly warn against the quantification of qualitative data, arguing that ‘judgments then become concealed behind the illusionary authority of a number, and its pretensions to scientific precision’ (2002, p. 33). What is more, the measurement of complex, multidimensional phenomena such as legitimacy raises thorny questions of commensurability and compatibility. A problem of compatibility arises when the indicators used to measure legitimacy are not correlated positively. This can happen when the underlying theory of legitimacy envisages tradeoffs between criteria. For our project we do not foresee problems of compatibility since we do anticipate positive correlations between our five indicators, as explained above. Nevertheless, the question of commensurability remains. Commensurability means that values obtained on different scales can be computed. In our case full commensurability would imply that, for example, high marks in transparency could compensate for limited participation or a lack of inclusion. In extremis,

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a CSO could then still qualify as legitimate although it excludes its members from decision-making processes. To avoid such distortions we decided to scale the findings of our empirical research for each indicator but not to add up scores from different scales. For each indicator of democratic quality we plan to develop an ordinal scale17 on which each CSO under study can attain scores. Moreover, we will introduce thresholds on all scales which operationalise the idea of a minimum standard for all five criteria. The resulting scorecards for every individual organisation will display the performance of a CSO in all five dimensions. Rather than distinguishing ‘good’ from ‘bad’ CSOs, the scorecard system will also allow us to systematically compare strengths and weaknesses across organisations. As a result we may be able to develop a typology of certain organisational forms and organisational cultures among CSOs. These organisational forms will probably each have a distinctive ‘legitimacy profile’ when studied in the light of the five criteria we apply. The possibility of distinctive legitimacy profiles also underscores that the results of our empirical studies are not automatically biased towards CSOs that adopt mechanisms of representative democracy. Internal parliamentary structures and elected representatives may be a suitable model for realising participation in organisations with a large base of formal membership. Participation, however, may be organised much more informally but nonetheless be very frequent, intense and cooperative, and include supporters and beneficiaries that for various reasons are not able to acquire formal membership status. Our criteria are sufficiently abstract and sufficiently flexible to allow for empirical variation without a priori privileging certain organisational models.

Conclusions In this chapter we have taken issue with the democratic legitimacy of transnational CSOs, and aimed to develop appropriate criteria and a research strategy for assessing it. In the first section we defended the claim that internal democracy is a relevant standard for assessing transnational CSOs. We advanced two major arguments in this respect. First, as CSOs in many cases exert considerable social power they should generally conform to basic standards of democracy, such as participatory decision-making processes and accountability of the leadership. Our second argument was more specific and derived from the particular role that CSOs would have to play in proposals of a society-based, deliberative democratisation of international governance. As democratising

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agents, CSOs channel citizens’ concerns into international and supranational organisations. In the second section, five criteria for measuring the core dimensions of democratic legitimacy have been proposed: participation, inclusion, responsiveness, transparency, and independence. We argued that these five criteria stand in a synergistic relationship, with responsiveness of the organisation to its members, supporters and beneficiaries being the ultimate goal. The criteria we have suggested here are designed to facilitate comparative empirical research on transnational CSOs. Such a research project should ascertain whether or not CSOs can rightfully be regarded as ‘transmission belts’ between citizens and intergovernmental organisations. Whether such transmission belts exist or not is subject to much controversy. Future research on the democratic legitimacy of CSOs should deliver the empirical material needed to decide who is actually right in this debate.

Notes 1. We define a civil society organisation as a non-governmental, non-profit organisation that has a clearly stated purpose, legal personality, and pursues its goals in non-violent ways. Apart from activist organisations this definition includes the social partners (for example trade unions and employer associations), consumer associations, charities, grassroots organisations and religious communities. 2. For an overview of the complete project that consists of three different phases of research, please see http://www.sfb597.uni-bremen.de/pages/ forProjektBeschreibung.php?SPRACHE=de&ID=11. 3. Some may wonder why we do not refer to some power-based argument, claiming that legitimacy is conceptually related to power and that CSOs need legitimacy to the extent that they have become more powerful. The problem with this argument is that it is extremely hard to discern how much power a specific CSO wields; what kind of power is relevant in this context; and where exactly the threshold is. Most advocacy CSOs do not have anything more than some form of ‘soft power’. 4. Bluemel (2005, p. 156) suggests requiring CSO legitimacy and accountability for all cases where ‘there is a possible impact upon the choice or rights of beneficiaries’. Based on this suggestion, a CSO’s beneficiaries would be those whose choice or rights are affected by the CSOs’ activities. However, this definition is not precise enough and leaves too much leeway to consider everyone who is affected as being a ‘beneficiary’. 5. Though we do not take this as a core criterion, participation is even more important if the CSO explicitly claims to speak on behalf of the beneficiaries. Participation should be possible for all affected parties, but in cases like these, a CSO that does not ‘walk the talk’ would additionally be guilty of deception.

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6. Some research even shows that in the perception of their members, organisations with formal mechanisms for accountability are not necessarily perceived as more legitimate than those with an emphasis on open structures and wide consultations (Taylor and Warburton, 2003). 7. The prospects for participating in the first place are covered by the criterion of inclusion below. 8. This partially overlaps with the criterion ‘responsiveness’. We suggest looking here only at the actors who participate and how their participation differs, while ‘responsiveness’ addresses the differential impacts they have. 9. Whereas many studies analyse the possibility that CSOs make international decision-making processes and IOs more inclusive, the question of whether CSOs are themselves inclusive has rarely been asked in the literature. However, some recent studies target this issue by criticising CSOs for favouring some of their members (often from Northern, industrialised countries) to the disadvantage of other members (often from Southern, developing countries) and by focusing on power imbalances between CSOs within networks (for example Bob, 2005). In these cases, CSOs are criticised for excluding some of their members. 10. Other cases could be those – as Bluemel suggests with regard to CSOs’ accountability – in which ‘there is a possible impact upon the choice or rights of beneficiaries’ (Bluemel, 2005, p. 156). Based on this suggestion, a CSO’s beneficiaries would be those whose choice or rights are affected by the CSO’s activities. However, this definition is too imprecise and leaves too much leeway to consider labelling everyone who is affected by a CSO their ‘beneficiary’. 11. See also Nanz and Steffek (2005, p. 376). 12. That the concept of responsiveness also provides useful insights into politics within national legislature is demonstrated by Brettschneider (1995). Vern Morgeson (2005) conceptualises it as a legitimising resource of bureaucracy. Nanz and Steffek (2004) outline the application of responsiveness to IOs, as does Dingwerth (2004) for transnational governance regimes. 13. This model is inspired by the ‘Responsiveness Paradigm’ (Bacal, 2000) originally elaborated for management theory as a definitional framework for the term ‘responsiveness’. It has been transformed within our context into a research design with four steps, motivated by the normative idea that concerns of stakeholders should be adequately reflected. 14. For transparency to be effective, it needs to be linked with sanctions (Naurin, 2002, p. 6). 15. A threat to the independence of a CSO can also exist when individual members or member organisations dominate a CSO financially and/or politically and drive it through their standing and reputation, with other members being mere supernumeraries. For instance, this could be the case when one individual is financially so powerful that without its funding the organisation could no longer exist. While a manifest lack of independence is demonstrated in this example, it is fundamentally a problem of inclusion. 16. There is, obviously, a causal dimension implied in the chain of criteria as displayed in Figure 5.2. However, we do not intend to analyse the causality at work in this empirical connection in a comparative fashion.

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17. Ordinal scales permit the measurement of degrees of difference, but not the specific amount of difference.

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J. Nye (1990) ‘Soft Power’, Foreign Policy, 80, pp. 153–71. M. Pasquier and J.-P. Villeneuve (2007) ‘Organizational Barriers to Transparency: A Typology and Analysis of Organizational Behavior Tending to Prevent or Restrict Access to Information’, International Review of Administrative Science, 73, 1, pp. 147–62. Kim D. Reimann (2006) ‘A View from the Top: International Politics, Norms and the Worldwide Growth of NGOs’, International Studies Quarterly, 50, 1, pp. 45–67. Sabine Saurugger (2008) ‘Democracy and Non-State Actors in the EU: Towards a Sociological Research Agenda’, paper presented at the 2nd Global International Studies Conference, Ljubljana, 23–6 July 2008. E. E. Schattschneider (1960) The Semi-Sovereign People: A Realist’s View on Democracy (New York: Harper & Row). K. L. Schlozman, H. E. Brady and S. Verba (1997) ‘The Big Tilt: Participatory Inequality in America’, The American Prospect, 8, 32, pp. 74–80. J. A. Scholte (2002) ‘Civil Society and Democracy in Global Governance’, Global Governance, 8, 3, pp. 281–304. J. A. Scholte (2004) ‘Civil Society and Democratically Accountable Global Governance’, Government and Opposition, 39, 2, pp. 211–33. H. Slim (2002) ‘By What Authority? The Legitimacy and Accountability of NonGovernmental Organisations’, paper presented at the International Council on Human Rights Policy, Geneva, 10–12 January 2002. S. Smismans (2004) Law, Legitimacy and European Governance: Functional Participation in Social Regulation (Oxford: Oxford University Press). J. Steffek (2008) ‘Public Accountability and the Public Sphere of International Governance’, RECON Online Working Paper 2008/03 (Oslo: ARENA). J. Steffek and M. P. Ferretti (2009) ‘Accountability or “Good Decisions”? The Rival Goals of Civil Society Participation in International Governance’, Global Society, 23, 1, pp. 37–57. J. Steffek and P. Nanz (2008) ‘Emergent Patterns of Civil Society Participation in Global and European Governance’, in J. Steffek, C. Kissling and P. Nanz (eds) Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Houndmills, Basingstoke: Palgrave Macmillan), pp. 1–29. M. Taylor and D. Warburton (2003) ‘Legitimacy and the Role of UK Third Sector Organizations in the Policy Process’, Voluntas: International Journal of Voluntary and Nonprofit Organizations, 14, 3, pp. 321–38. J. P. Trachtman and P. M. Moremen (2003) ‘Costs and Benefits of Private Participation in WTO Dispute Settlement: Whose Right Is It Anyway?’, Harvard International Law Journal, 44, 1, pp. 221–50. A. Van Rooy (2004) The Global Legitimacy Game: Civil Society, Globalization, and Protest (Houndmills, Basingstoke: Palgrave Macmillan). F. V. Morgeson (2005) Reconciling Democracy and Bureaucracy: Towards a DeliberativeDemocratic Model of Bureaucratic Accountability (Pittsburgh: University of Pittsburgh). P. Wahl (1998) ‘NGO-Multis, McGreenpeace und Netzwerk-Guerilla: Zu einigen Trends in der internationalen Zivilgesellschaft’, Peripherie, 71, pp. 55–68.

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P. Willetts (2000) ‘From “Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN’, Global Governance, 6, 2, pp. 191–212. N. Woods and A. Narlikar (2001) ‘Governance and the Limits of Accountability: The WTO, the IMF and the World Bank’, International Social Science Journal, 53, 4, pp. 569–84.

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Part II NGO Accountability

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6 These Pages Have Been Regulated for You: Issues Arising from the Governance of Markets by NGOs Jem Bendell, Phyllida Jay and Mark Bendell

The pages you are holding have been regulated for you. Not by government, but by a web of organisations which are not directly accountable to you. If you are reading these words in a book, look at the inside cover. Was the pulp from a forest with socially and environmentally sound management practices? Many responsible publishers now only use paper endorsed by an international not-for-profit and nongovernmental organisation (NGO) called the Forest Stewardship Council (FSC). It may say the book was printed and bound in China, in which case the factories involved may have been certified to meet the labour conditions considered acceptable by another NGO, called Social Accountability International (SAI). If you printed this on your own printer, the longevity of your colour ink cartridge is probably certified to ISO/IEC 24711:2006(E), a standard from another international private organisation, the International Organisation for Standardisation (ISO). If not, then unfortunately it might have run out before you finished printing our conclusions. Which would be a shame, as you would not read how these webs of highly private authority are beginning to govern markets across the globe in ways that are both useful and problematic, and how, in order to enhance both economic efficiencies and democratic principles, we need to open them up to greater public scrutiny and participation. Given that markets are the way that most people’s lives are shaped day-to-day, this growing influence of NGOs is something that is too often overlooked in discussions and initiatives on ‘NGO accountability’. This chapter explores some of the players and problems involved in private standard setting for economic actors and implications for accountability in market governance. Markets are governed by traders and other social actors and not just by government; this governance 129

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determines where the value accrues in transactions and what social and environmental outcomes occur (Gereffi, 1999; Ponte, 2003). Criticism of the multitude of private standards organisations comes from very different colours of the political spectrum: arguments of voluntary organisations, governments from the global South, neo-conservative think tanks and political scientists all raise accountability issues. Beginning with an overview of the broad context for the growth of private standard setting, a case study of the ISO follows. This reveals how some standard setting organisations are becoming more elitist or oligarchic; increasingly blurring the boundaries between public and private authority as their standards and procedures for accreditation are incorporated into national and international law. Additional case studies further expand upon this; firstly through exploration of corporate dominated standard setting for labour codes in clothing supply chains; and secondly, sustainable forest management and the stakeholder model of the FSC. The FSC case highlights questions of stakeholder participation and accountability in processes of private standard setting. The issue of North-South differences in the capacity and influence of civil society, as well as questions of economic power and uneven development are considered in the context of organisational governance. In concluding, we reflect on what these dynamics mean for beginning to deal with accountability in the context of what has been variously called: a governance triangle (Abbott and Snidal, 2006); complex sovereignty (Grande and Pauly, 2005); or, a postmodern world of overlapping authorities (Kobrin, 1998).

Governing without government? Stemming from the myth that the economic and political realms of life are separate, a widely held misconception is that only governments and their intergovernmental institutions regulate markets. Both private and voluntary organisations of all kinds regulate markets and economic activity (Gereffi, 1999). Private regulation has produced ‘Governance without government’ (Vogel, 2008, p. 263). Mechanisms for this include standard setting and enforcement, the control of resources and market access, and monopolistic ownership. In the last decades ‘private regimes’ for governing economic activities have been growing as a response to business’s own needs for regulation and the governance gap between markets and politics which has led to new forms of social action (Haufler, 2001; Cerny, 1999; Cutler, 2001). Pierre (2000) pointed to weaknesses in the capability of governments in technical aspects

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of economic activities as an explanatory factor. In a number of cases, private regulators operate more complete regulatory regimes (in the sense of controlling standard setting, monitoring and enforcement elements) than is true of public regulators (Scott, 2002; Bendell, 2000). This has been something of a blind spot for politics scholars, with most retaining a statist view of public governance (Haufler, 1993; 2001).1 However, there has been a trend towards viewing governance somewhat differently as the processes and institutions, both formal and informal, that guide and restrain the collective activities of a group. Therefore it need not be conducted ‘by governments and the international organizations to which they delegate authority. Private firms, associations of firms [and voluntary organisations], often in association with governmental bodies […] create governance, sometimes without governmental authority’ (Keohane and Nye, 2000, p. 12). Consequently, in global governance research non-state actors are increasingly considered internal, not simply external players in governance (Arts, 2003, p. 8). Most research on the role of non-state governance, sometimes called private regimes (Haufler, 2001), has focused on the role of large corporations (Wolf, 2001). Greater attention was focused on these private regimes of governance when the US based, conservative think tank, the American Enterprise Institute (AEI) included aspects in their erstwhile NGOWatch project; subsequently revamped as ‘Global Governance Watch’. Their website explained that voluntary organisations ‘have created their own rules and regulations’ and demanded that ‘corporations abide by those rules’ (AEI, 2003), a claim which led some to accuse them of being ‘barmy’ (Nader, 2003). Yet voluntary organisations do create their own rules for business, often with, for, and paid by, certain businesses in order to regulate market transactions. Most of these private regimes are found in insurance, banking, shipping, engineering, medicines, arbitration, information communication technology and stock markets (Haufler, 1993). In addition to specialist regulatory bodies in these areas, professional associations exert a significant governance power in a range of professions from medicine and dentistry to accounting and electrical engineering. However, the AEI did not consider all these areas where governance is significant, focusing instead on those voluntary organisations working on social and environmental issues that have become involved in regulation activities much more recently. In this chapter we seek to be more comprehensive and less partisan in our analysis, by considering issues arising from all forms of nongovernmental organisation exerting influence over markets. To this

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analysis we apply concepts of democracy and accountability, beyond the merely electoral, instead focusing on these concepts in what we would argue is their most substantive sense of ‘democratic accountability’. In the following section, we provide a brief overview of the concept of democratic accountability employed in this chapter. Some have argued that although accountability increasingly dominates discourses of development and social progress, its conceptual underpinnings remain unspecific (Newell and Bellour, 2002). Yet concepts like accountability are socially constructed by organisations and people and the context they exist within, and different power relations are at play in the questioning or attribution of accountability, and thus legitimacy, to a particular group or person (Lister, 2003). The case studies presented in this paper illustrate that the accountability of persons or groups is not always beneficial for the outcomes many people would hope for – so there must be a particular form of accountability that merits being regarded as desirable. This comes to light if we are to unpack the concept of accountability in the following way. • Who is accountable? The person or group that affects someone or some group. • To who? To the person or group they are affecting. • For what? For the effect they have on them. • And how? In a way where the affected person can change the behaviour of the effecting person (as long as they themselves are accountable to the people they affect when doing so). This caveat brings us to the realisation that there are diverse (sometimes divergent interests) in society. Therefore the accountability of one organisation or person to another in the way just described might not be positive if the person or group they are accountable to are not themselves accountable to those they affect by demanding that accountability. This articulation of accountability is implicit in some academic analyses and policy positions where an ‘emphasis is on placing a check on the authority of the powerful’ (Goetz and Jenkins, 2002, p. 6). ‘In common usage, then, “accountability” is shorthand for democratic accountability – accountability to ordinary people and to the legal framework through which governance is effected’ (ibid.). This implicitly recognises that organisations can be both agents and subjects of accountability. Nevertheless, an extensive review of literature on global governance, development studies, voluntary sector studies, organisational behaviour

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and management studies does not reveal in-depth consideration of how concepts of accountability relate to concepts of democracy. Some of the contributions of those different disciplines are summarised well by Ebrahim (2003b). Nevertheless the insights from different research, experience and analysis are still largely separated between those who focus on government accountability (for example Goetz and Jenkins, 2002), those who focus on corporate accountability (cf. Bendell, 2004), and those who focus on voluntary organisation accountability (Ebrahim, 2003a), with only some cross-pollination of ideas and analytical frames. Hence there is a great diversity of concepts of accountability and sub-themes relating to it that abounds in the literature (Bakker, 2002). In identifying a total of eleven distinct concepts of accountability found across this literature, Bendell (2004) notes the reductive and often problematic way in which accountability is conceptualised and applied. These different ways of approaching accountability are often seen as being mutually exclusive rather than having the potential to be connected in multi-levelled and interrelated forms. For example, one conceptualisation of accountability is that it can be either vertical or horizontal. This is a distinction that arises from the study of governments. Goetz and Jenkins (2002) describe vertical forms of accountability, ‘in which citizens and their associations play direct roles in holding the powerful to account’ (p. 7). Elections are a classic form of vertical accountability. ‘But also in this camp are the processes through which citizens organize themselves into associations capable of lobbying governments, demanding explanations and threatening less formal sanctions like negative publicity’ (ibid.), or even protests and direct action. Both upwards and downwards accountability can be viewed as forms of vertical accountability, despite work on governmental accountability only considering downwards forms of vertical accountability. This has led analysts to consider vertical accountability in terms of states being held to account by non-states, rather than in terms of power relations between all organisations and people. If we focus on power relations then vertical accountability is about unequal power relations; upwards accountability is accountability to those with more power, and downwards accountability being accountability to those with less power. This immediately raises the issue of what is meant by power, and whether true downwards accountability would radically transform those power relations. Horizontal forms of accountability are where ‘the holding of account is indirect, delegated to other powerful actors’ (Goetz and Jenkins, 2002, p. 7). In some ways it resembles the notion of peer review. Again, it is

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mainly theorised in terms of the state. Thus horizontal accountability ‘exists when one state actor has the formal authority to demand explanations or impose penalties on another state actor’ (ibid.). Examples include the way executive agencies must explain their decisions to legislatures, or civil servants explain their activities to politicians, or the range of regulatory bodies, auditors-general, anti-corruption commissions and so on that normally exist in electoral democracies (Przeworski et al., 1999). This means that ‘governments constrain themselves, at least in theory, through a complex web of accountability relationships’ (ibid., p. 7). At the international level, intergovernmental organisations operate measures of horizontal accountability, as government signatories to conventions and treaties are assessed by panels appointed by other governments. Goetz and Jenkins (2002) identify a growing trend for voluntary organisations to participate in processes of horizontal accountability traditionally the reserve of state officials. They call this hybrid accountability. At the international level, the close involvement of voluntary organisations in intergovernmental processes could be viewed as transnational horizontal accountability, but this raises a number of issues around representation and civil society participation that will be examined through case studies later in this paper. A related way of discussing accountability that appears in debates concerns the distinction between soft and hard accountability. Soft accountability is mentioned when people talk of processes that are either prior to decision making, or mainly about answerability. Examples include participatory budget formulation, such as that employed by the municipality of Porto Alegre, Brazil (Goetz and Jenkins, 2002). The notion of soft or hard is also mentioned in relation to a further way of analysing accountability: whether it is mandatory or voluntary. In recent years more corporations have been said to undertake voluntary accountability activities. Evidence for this includes the growth of new organisations offering services and developing standards relating to an organisation’s relations to those it affects as well as those who affect it. Whether voluntary activities can truly deliver accountability is debated by some as it ignores the power imbalances involved. For such critics ‘hard’ or mandatory accountability is seen as the real form of accountability. This often leads to calls for state involvement, yet non-state pressures are often more mandatory than those coming from states, which problematises the assumption whether these not-state forms are really voluntary or not (Bendell, 2004).

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As we go forward the main lesson from this review of concepts is the essentially ‘multidimensional nature of accountability’ which cannot and should not be reduced ‘to a concept enforced through oversight and regulatory mechanisms’ (Ebrahim, 2003b, p. 208). Instead there are a variety of complex, overlapping, sometimes contradictory, sometimes complementary accountabilities and means of managing them. With this in mind, rather than simply complaining about the influence of private authority on matters that our political persuasions might lead us to question, we recognise that diverse forms of highly private authority are set to grow, and through case studies show that democratic accountability principles should be applied within their organisational processes.

Standards and ratings organisations: What are they, how do they work and what do they do? A standard is a rule on organisational structures and procedures, and a rating is a grading of those structures and procedures against a standard or set of standards. Many have been established by voluntary organisations – in the limited sense of voluntary meaning non-profit and nongovernmental, rather than an examination of from where the funding comes. Some call these ‘voluntary standards’ (Eberlein and Kerwer, 2002). Yet although they are not always mandated by law, many are no longer voluntary. In this chapter we use the terms private standards and ratings.2 Standard setting for industry is chiefly based on two historical models. Firstly, a technical standards model, which originated in Medieval Europe, is concerned with specifying the characteristics and quality of products or the terms under which business can be done (Haufler, 2001). Organisations involved in, for example, banking, shipping or medicine have traditionally followed this kind of model. The second industry model for standard setting originated from environmental and social activism in the 1970s–80s, concerned with bringing governments to account on the deleterious aspects of increasing globalisation and deregulation of the state (Haufler, 2001; Utting, 2002). From the early 1990s, many voluntary organisations became frustrated with the impact of advocacy and lobbying directed at governments and intergovernmental processes and turned their attention directly towards business itself. This coincided with the growing importance of brands to major companies and thus the importance of reputation management. As companies became the targets of campaigns from voluntary

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organisations on all manner of issues from sweatshops to deforestation, some responded by collaborating with voluntary organisations (Murphy and Bendell, 1999; Bendell, 2000; Zadek, 2003). This spurred a phase of corporate self-regulation; with many corporations compelled to adopt measures such as codes of conduct, ostensibly committing them to adhere to certain ethical practices. In some cases, concerns with the credibility of these industry-dominated codes led to the formation of multi-stakeholder initiatives to establish standards of responsible activity in the area concerned. For instance, responsible forestry, responsible apparel manufacture, and so on, and related systems of certifying that production processes abide by these new standards. As these systems are backed up by the threat of consumer campaigns if companies do not comply, while many large retailers now require certification of their suppliers, they can be understood as ‘civil regulation’ (Murphy and Bendell, 1999; Bendell, 2000).3 An example of the technical form of standard setting by NGOs is the Internet Corporation for Assigned Names and Numbers (ICANN) which manages Internet name assignments. Its supporters claim ICANN is an innovative institutional response to the new technology, by bringing together a range of transnational voluntary organisations and businesses, to provide the right level of governance to make the Internet work well. Some suggest this illustrates how the demand for governance by actors in specific sectors can produce the agencies and processes needed in that sector. However a closer study of the economic interests involved has led some to suggest that the arrangement is not necessarily in the interest of users and potential users (McDowell and Steinberg, 2001). When such an organisation has the power to give one company exclusive and hence monopolistic rights to manage a domain name extension like .info, it not only has the power to create a lucrative business for that company, but questions arise about prices users will have to pay, and thus the accountability of ICANN to all users. Standards setting organisations in the second model are structured in different ways, reflecting greater or lesser degrees of civil society participation and formalised channels of accountability to political constituencies outside of industry, such as trade unions, NGO advocates and representatives of community groups. A further concern for accountability is parity of representation between Northern and Southern actors within these organisations. Some, for example, the board of the Worldwide Responsible Accredited Production (WRAP) partnership, is composed entirely of Northern members (WRAP, 2009a). The FSC on

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the other hand, has built parity of North-South representation into its structure and by-laws. Another initiative, one that addresses labour standards, is Social Accountability International (SAI). This is neither a corporate membership organisation, nor a multi-stakeholder initiative, but a standards institute and accreditation agency. Established by a voluntary organisation that worked on corporate responsibility, it oversees a management standard (SA8000), which companies can obtain certification to form one of the SAI-accredited certification companies. Many brand name retailers, particularly in the US, have encouraged their suppliers to obtain this certification. Another example is the International Federation of Organic Agricultural Movements (IFOAM): a worldwide federation of about 750 organisations of producers, consumers and environmental interests from more than 108 countries which has developed norms and standards on organic agriculture, and was even adopted by the EU to shape its own policy on the matter.4 These are just a few examples of the many standards organisations that exist; there are hundreds of such organisations in the area of tourism alone (Bendell and Font, 2004). The existence and growing importance of private standards for governing economic activity raise questions of how legitimate – and therefore how accountable – this privately held power is (Scott, 2002; Cerny, 1999; Scholte, 2003). ‘The governance of global spaces is obviously democratically deficient when it comes to private regulatory mechanisms’, says political scientist Jan Aart Scholte. ‘Nonofficial formulators and implementers of rules like ICANN, the International Accounting Standards Committee (IASC), the Derivatives Policy Group, and the European Telecommunications Standards Institute (ETSI) have no provisions for public participation or consultation […]. As for public transparency, most people (including many democratically elected representatives) have not even heard of private sites of global governance’ (2002, p. 301). The following case studies reflect an evolution in private regulatory mechanisms from technical standards, to industry-dominated codes of conduct, to stakeholder models. They highlight the inherent problems concerning each in terms of representation, legitimacy and accountability. They also demonstrate emergent hybrid forms, such as the ISO, a technical standards body which has moved into areas such as environmental auditing and providing guidelines for CSR practice globally. These hybrid forms further complicate the boundaries between public and private authority, raising new challenges for accountability in governance.

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ISO: Omnipotent octopus? Nothing is omnipotent. Yet, how can something be everywhere and yet few are aware it is anywhere? Answer: if that thing is the ISO. As Wood (2004, p. 7) has said, popular awareness of ISO environmental standards is ‘extremely low’, (for example: where was the last mass public demonstration saying ‘no to the ISO’?). This ignorance of the International Organisation for Standardisation’s very existence, apart from photographic film standards or passing billboards displaying ISO 9001 compliance, may facilitate the radiation of its remit outwards. This section considers whether the tentacles of the ISO, wrapping themselves more tightly round southern sovereign states and voluntary bodies, represent a suckering out of sovereignties, or whether, in fact, the ISO is an equal opportunity octopus – fear of its influence is just so much black ink squirted from the critics’ pen rather than the creature. The case study adumbrates how the ISO touches the most mundane aspects of individuals’ lives; secondly, it charts and comments on selected debates about its growth in scope, growth in purpose, and far from mundane growth in potential impact: critics fear this ever increasing circle of regulatory power represents an authoritarian, even panoptic, imposition of Global North norms, while optimists believe in the value of reputational benefits and the creation a global level playing field. The ISO has not stood still, reinventing itself as a proactive forger of norms (Wood, 2004). It becomes more important as it moves into the terrain of human rights, labour rights and environmental governance. The ISO’s everyday connection to citizens’ lives indicates part of its importance. ISO established over 7000 voluntary standards on business behaviour (Arts, 2003). It brings together national standards institutes such as the British Standards Institute; these are usually membershipbased organisations that develop their own standards for business performance. The members are mainly businesses, their trade associations and specialist ‘conformity assessment’ firms. Government agencies are also members and many governments specify a particular standards institute as the nationally recognised institute. Most of the standards developed are explicitly technical, such as standards on the size of a plug, or the strength of a light bulb, but increasingly they are looking at areas such as quality, environmental management and corporate responsibility. Although most private standards are not mandatory by law, some of them, such as the ISO 9000 standards on quality management have become mandatory for companies that want to trade internationally.

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Adherence to such private standards is often a precondition for the acceptability of products by key consumers and/or distributors. Companies often oblige others to adopt certain policies, not on the basis of formal authority but on the basis of resource dependency, such as when a small firm has to meet the requirements of the company it is supplying (Arts, 2003). Some insurance companies are requesting compliance with standards to reduce product liability exposure (Zarrilli, 1999). Private standards particularly those of the ISO are becoming ever more linked to governmental and intergovernmental regulatory apparatuses. In litigation, a company’s certification or non-certification to a particular standard is sometimes put forward as evidence of due diligence or not (Webb, 2002). Governments have been granting legal status and legitimacy to national standardisation organisations which then have the formal authority to design voluntary standards, as well as to establish private accreditation organisations (Vermeulen, 2000). Particularly in Europe, governments are granting some regulatory relief to firms if they have installed or will install an environmental management system certified to appropriate standards (Gunninghan and Grabowsky, 1998). For example, the Netherlands introduced a ‘framework permit’ for pollution that is simpler than the traditional one. It sets end-goals, leaving design of processes and procedures to the company’s environmental management system. Generally this is one certified to the ISO’s 14001 standard (Arts, 2003). Cumulative reading of these changes may suggest private regulation is, if not de jure, at least de facto, slowly substituting public regulation in determining what characteristics products and production/process methods need to match to be fit for trade (Arts, 2003). In effect, regulation is being privatised. The ISO’s growth has been exponential, with a twenty-fold increase in the number of certifications by the ISO in 20 years with regard to the 9000 series. According to Wood (2004) the growth of the ISO 14001 has been more rapid still, with a thirty-fold increase in six years. Some 118 economies or countries had been touched by its tentacles, with 49, 462 certified organisations certified via 14001 by the start of 2003 (Wood, 2004, p. 21). By December 2007, this growth of 14001 had reached exponential proportions, with around 154, 572 certificated organisations in 148 countries (ISO, 2008). There is an insidious potential about the ISO though, which gives pessimists much to worry about as the tentacles grow. Developments at the intergovernmental level are most important for the growing power of private standards, and represent a new stage of this privatisation of regulation by imposing these private standards on governments.

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This is occurring through the Technical Barriers to Trade (TBT) agreement and GATS at the WTO. If a company considers that a particular technical standard in a country is too strict for it to sell products or provide services to consumers in that country, it might lobby its government to bring a case against that country at the WTO. In determining whether the standards in question are ‘least trade restrictive’ or not, the WTO dispute resolution panel consider ‘relevant international standards’. What is a credible international standard is not mentioned in the agreements; subsequent triennial reviews of the TBT have specified what they look like in a way that reflects the ISO’s approach. Codes have been drafted for the conduct of standards organisations, with the ISO nominated by the WTO as the registrar for acceptable organisations. A company bringing a case at the WTO may have itself helped write the international standard that will then be used to judge appropriateness of a domestic regulation set by government. There is some dispute as to whether this situation applies directly to GATS also, in which case it would mean that domestic regulations on standards of water, education and medical service delivery, among others, would be subordinate to the relevant international private standards (Bendell and Font, 2004). This is not speculation. At the prompting of transnational water companies, the ISO began developing a new standard for ‘service activities relating to drinking water supply and sewerage’ (Pacific Institute, 2002). According to local US water agencies which voted against the ISO developing this standard, standardisation in this area will facilitate global water privatisation by giving transnational companies a common standard they can then suggest governments adopt for, and certainly not exceed, their domestic regulations (ibid.). If business appears to be writing its own rules in this way with the help of ‘voluntary’ organisations like the ISO, and imposing them on governments with the help of intergovernmental organisations like the WTO, immediately accountability issues arise. Some might contend that these are technical issues and best not politicised. This ignores the inherently political nature of standards development. Even technical standards are political: they cover issues such as consumer health and safety and have an impact on access to markets. Standards development is not free from manipulation, power struggles or opportunistic behaviour. Standards empower the organisations that decide their criteria and control their administration, monitoring and certification. Those who control standards have power over users, and not all users have the same influence in the process of standard development and administration. Standards affect where profits are made along a value

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chain. Therefore Stefano Ponte (2003) argues that rather than simply being a technical instrument to decrease transaction costs associated with asymmetry of information, they should be viewed as a strategic instrument of value chain coordination. This process not only affects people economically, but also physically, socially and environmentally because standards involve processes of negotiating to what extent to include negative externalities. The process becomes ever more political as private standards move into less technical areas like environmental management and corporate responsibility. In doing this work, the ISO joins a number of organisations that have developed standards in this area. Many voluntary organisations working on social or environmental issues have criticised those standards bodies established by companies for having weak, inappropriate standards and systems of inspection, and for not involving all those interested in or affected by the issues in question. The ISO has been particularly criticised. Their environmental standard ISO 14001 does not set environmental goals, nor does it oblige parties to report their performance and progress to the larger public. As a result, critics believe it is a weak system from an ecological point of view (Steger, 2000). ‘ISO is an institution that is disproportionately represented by business, and, unless things change dramatically, it will continue to produce standards that favour industry’, says one voluntary organisation (Pacific Institute, 2002, p. 1). Therefore, as it developed a standard on corporate responsibility, called ISO 26000, some voluntary organisations and analysts expressed concern that it would be a weak standard (Clapp, 2008, p. 245). Conscious of some of these concerns, the ISO secretariat created a novel process for stakeholder participation in the elaboration of the draft ISO 26000 standard. However, the representation on those panels was not structured in terms of interest or constituency. The organisation created a trust fund to help fund participation of people coming from low-income countries whom they desired to involve. However, most participants needed to fund their own participation at meetings from Sweden to Sao Paulo, in order to maintain their input, and many were not able to stay involved. In the end, the adoption of a standard is determined by the 160 national technical standards organisations that make up its membership – organisations which themselves have varying degrees of accountability to their national civil societies. Given the focus of this book, we should note that the draft standard evolved from initially applying to ‘corporate social responsibility’ to ‘organisational social responsibility’, mainly because professionals from the conformity

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assessment industry realised the wider potential market if the standard could be applied to NGOs, whose performance and accountability is increasingly challenged. No one with expertise in NGO accountability, or with a mandate from civil society organisations to work on NGO accountability, participated in the development of ISO 26000. Yet the standard could become as influential in shaping NGO accountability worldwide as any other initiative described in this book, if in future donors require the organisations to adopt the standard as part of their accountability. This highlights the challenges posed by the spreading tentacles of the ISO. Given the organisation’s growing role in influencing international and domestic regulation through the relationship with the WTO agreements, the governance of the ISO is something that the organisation, its members, clients and critics will likely need to address. Rather than involving more NGOs on an ad hoc basis, the ISO may need to adopt a new internal governance system that delivers greater accountability to those influenced by the economic activities covered by its standards. Some writers point out the benefits of ISO standards, seeing the sheer scope as fostering fairness and progress, not cause for alarm. ISO 14001 has been deemed a ‘win win’ tool for environmental protection and economic development (Prakash and Potoski, 2006). McKelvey (2001) for example has stated that this move into environmental governance is a positive development for management consultants, and sees a level playing field globally for ethical practice; one should point out that the ethical implications run alongside, and possibly counter to, the idea of personal financial opportunities for the consultancy class. Brodhad (2006) suggests that ISO standards should be integrated, and that more recent developments in environmental governance such as ISO 26000 are positive co-ordinating mechanisms. Prakash and Potoski (2005) points to the reputational benefits of the association of any business with this global standard. Potoski’s analysis of over 3000 facilities regulated as major sources under the US Clean Air Act indicates ISO 14001certified facilities lower their pollution emissions to a greater extent than non-certified facilities. Moving from super powers to micro ones, case studies carried out in newly emerging states, such as Lithuania have confirmed their belief in its symbolic valorisation (Serafinas and Ruzevicius, 2007). Such business studies literature does not explore the legitimacy and appropriateness of ISO standards; instead they are welcomed for the easing of capital accumulation in a globalised economy. This reflects a general lack of political economy pervading business studies.

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There remains then, a split in academic literature between those who see the ISO’s growth as a benign leveller, and others who point more toward the lack of accountability. What both agree on is the sheer multiplying magnitude of the ISO. The ISO in the last analysis is a civil society group dominated by industry interests that has assumed a governance role. Therefore, as it moves out of technical into more political areas, such as labour relations, as with ISO 26000, this contested legitimacy will become more material to the everyday life of social agents – not just in the products they use but the processes of their lives. Although attempts to pluralise participants in ISO 26000 development are worth lauding, unless the governance of the ISO is reworked to adhere, unambiguously, to value-based criteria for legitimate decision-making on societal issues, enhanced stakeholder consultation will not suffice in the longer term. Suggestions for future action include civil society groups who promote corporate accountability, encouraging or compelling the ISO to establish a new governance system for its standards processes that relate to social and environmental issues, and to reconsider the political and economic implications of its standards around auditing methods. In particular, civil society groups could encourage self-reflexivity about how, and why, the ISO privileges certain forms of audit – characterised by reductionist, expensive and detached methods – rather than other more holistic approaches. The ISO’s website (2009) offers child-friendly guides to dealing with global warming, complete with exercises for teacher to use in class. Yet, rather like Ronald McDonald, is this cuddly corporate image hiding something more serious behind it? The friction between the corporate self-identity, apparently rational and benign, and the image, anonymous, welcomed, or feared, looks set to continue. Quite unlike the gleaming golden M arches, though, more recognisable to some children than the cross of Christ, the ISO is busying away potentially reordering the processes that may impact on the practices of our lives, with most people unaware it is even there. The ‘McDonaldization of Society’ was coined by George Ritzer to describe the process by which a society takes on the characteristics of a fast-food restaurant (Ritzer, 1993). He highlighted four primary components of McDonaldisation. Efficiency, understood as the fast way to get from A to B. Calculability, understood as the ability to quantify everything, rather than rely on subjectivity. Predictability, understood as standardised and uniform approaches so that wherever a person goes they will experience the same situation. The fourth major characteristic he identified is ‘control’, involving

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a centralisation of power in hierarchies. The way ISO standards are developed, promoted and implemented, and in whose interests, suggests that it is providing corporations with efficient, calculable, predictable, and controlled regulation that is applicable worldwide. It is serving us McGovernance. The ISO may not be, or may not yet be, an omnipotent octopus, yet with tentacles reaching from your plug to the planet, it is certainly in a hurry to be an omnipresent one.

WRAP: Limiting change? Another criticism of many standards concerns their inherent weakness and the gap between what they say they do, and what, in reality, they achieve. Many believe the source of this gap lies in standards’ bodies monitoring and evaluation procedures. Corporate-dominated codes for labour practices in clothing supply chains have been especially criticised in this regard. Standards that look good on paper but which fail to be properly implemented in practice, may serve to allay concerns over labour rights, while allowing abuses of rights to go further unchecked. Third party auditing organisations frequently fail to uncover what is really happening in factories. These concerns are explored in the following case study of The Worldwide Responsible Accredited Production (WRAP) partnership (formerly known as The Worldwide Responsible Apparel Production partnership). Initiated by the American Apparel Manufacturers Association (AAMA), WRAP states its dedication to ‘the promotion and certification of lawful, humane and ethical manufacturing throughout the world’. In 2000 the AAMA launched WRAP to oversee the Worldwide Responsible Apparel Production Principles, described as ‘basic standards that address labor practices, factory conditions, and environmental and customs compliance’. By 2008 WRAP covered over 1700 factories in around 60 countries and over 1100 certificates awarding the ‘WRAP Good Factory Seal of Approval’ were issued in that year alone (WRAP, 2009d). Soon after its formation, WRAP attracted concerns. ‘Many activists in Central America and elsewhere have pointed out serious flaws in the initiative’s approach’, noted Marina Prieto, then with an organisation that supports women’s groups in the region, the Central American Women’s Network (Prieto, 2002). In April 2000 the NGO Maquila Solidarity Network identified numerous problems with WRAP: these included the partiality of a board dominated by business representatives; weak standards with regard to core labour rights such as freedom of association and the minimum wage; and no mention of gender

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specific issues such as sexual harassment or maternity leave. Additionally, monitoring involving high costs to individual maquilas,5 is carried out by private firms and visits are frequently pre-arranged, meaning companies can ‘clean up’ in advance (Prieto, 2002, p. 6). WRAP’s existence threatens to marginalise work of Southern stakeholders on labour rights issues. For example, WRAP has begun working in El Salvador, thereby competing directly with a local civil society initiative headed by the voluntary organisation Salvadoran Independent Monitoring Group (GMIES). This was the first ever programme of a voluntary organisation to conduct external monitoring of labour conditions in the Maquilas and has since monitored factories supplying both Liz Claiborne and the Gap (Prieto, 2002). Prieto argued that WRAP should not be allowed to become the standard across Central America, as this would result in perpetrating major labour rights violations: ‘Workers and their organisations would lose the struggle to improve labour conditions. And with factory owners even forced to pay for monitoring, US companies and consulting firms would be the only clear winners’ (Prieto, 2002, p. 6). This demonstrates some real concerns; what is the accountability of the organisation to those it claims are the intended beneficiaries of its work most of whom are in the South? One indicator is their participation, or lack of it and WRAP has only in rather partial and limited ways begun to address this issue. For example, in 2002, apart from one business consultancy in El Salvador (Reducción de Riesgos), all auditors accredited to inspect and award factories the WRAP seal were US accounting firms (Prieto, 2002). By 2009 this picture had changed somewhat, with a commitment to more accredited auditors based in Southern countries (WRAP, 2009c). Yet the involvement of Southern NGOs in WRAP auditing processes has yet to be addressed and WRAP currently has no intention of including NGOs as accredited auditors. WRAP’s governance structure also lacks parity in terms of geographical representations. WRAP’s board continues to consist entirely of US citizens (WRAP, 2009a). The chief way Southern stakeholders can relate to WRAP is by unreservedly endorsing its principles, rather than having any say in the organisation’s work. Currently the organisations that have formal participatory status with WRAP are all trade associations, with around 20 of these are from the South (WRAP, 2009b). There is the possibility that in the future WRAP will look to form an NGO advisory panel, in order to bring perspectives from this sector (including Southern organisations) into WRAP’s decision making processes (Avedis Seferian, pers. comm., 2009). However, as it currently stands, WRAP

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has no governance structure for the involvement of non-commercial stakeholders. Organisational governance is the key to how power is used accountably. Not being a membership organisation with voting rights, the organisational governance of WRAP does not provide for accountability to those it affects. The importance of a standard setting organisation being accountable to its intended beneficiaries around the world is something that the NGO in our next case study sought to address from the outset.

The FSC: Stakeholder participation and geographies of certification Over 300 million people live in close association with tropical forests, many of whom are threatened by rapidly degrading and shrinking homelands (Colchester, 1993). Forests provide an estimated 1.6 billion people with basic necessities including food, medicines and fuel (FAO, 2006). Economically, forestlands are major revenue generators for national governments and international business (Viana et al., 1996). Environmentally, forests provide essential climatic functions and can either alleviate or contribute to climate change at regional and global levels, depending on human impact. They are also species-rich, with rainforests purported to contain between 50 and 90 per cent of the world’s creatures, many of which are now threatened (Myers, 1992). Although river damming, mining for oil, metals and aggregates, smelting activities and clearance for agricultural activities such as cattle ranching are key factors in deforestation, commercial logging is seen by some as the main agent of deforestation as it opens up inaccessible forests to other commercial threats (Repetto and Gillis, 1988). One area of particular conflict between companies and the environmental movement by the early 1990s was deforestation and the timber trade. Protests against retailers of wood and wood products in the West created a major problem. Companies such as the home improvement giant B&Q were keen to respond to criticisms as well as ensure their competitive advantage by gaining consumer trust in relation to their supply chains for wood products. One voluntary organisation, the World Wide Fund for Nature (WWF), invited companies to join it in the search for solutions and sign up to a target that by 1995 all their wood would come from sustainably managed forests. A variety of companies, in 1991, signed up to the target and established the ‘1995 Group’ with the WWF-UK. What soon became apparent was the need for a standard

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setting body with a system for verifying product claims. Following 18 months of preparatory work the Forest Stewardship Council (FSC) was launched in 1993. The Founding Group consisted of environmental organisations, forest industry representatives, community forestry groups and forest product certification organisations. The FSC mission statement commits members to ‘promote management of the world’s forests that is environmentally appropriate, socially beneficial and economically viable’ (FSC, 2009a). The FSC accredits certification bodies to ensure that they adhere to FSC principles and criteria when certifying forests as well managed, and allows them to issue the FSC logo once a chain of custody has been recorded from the forest to the company that packages the final product (Murphy and Bendell, 1999). The FSC is a membership organisation, with voting rights structured into chambers of interest (social, environmental, economic) and geographical location (the global North or South), so that balance is maintained between interests arising from each of those groupings. This has led to frequently difficult deliberation and compromise. While this has slowed progress at times, it has meant the organisation has gained significant support from across different parts of society around the world (Bendell, 2000). The stewardship model is seen as key to delivering accountability to affected parties and thus building legitimacy for a private standard. Undoubtedly, the stewardship model adopted by the FSC promotes a more equitable basis for the representation of different actors within its organisational governance. Nonetheless, the FSC has faced its own criticisms surrounding the terms upon which it affords stakeholder participation, as well as its geographical scope for forestry conservation. These problems reflect a wider political economy, which frequently counteracts some of the best efforts of stakeholder models such as the FSC, to address the relationship between accountability in governance and effective outcomes. By the end of 2008, over 100 million hectares of forest, in 79 countries, had been certified in accordance with FSC standards. The value of FSC-labelled sales is currently estimated at around 20 billion USD (FSC, 2009b). It has made significant inroads into Southern forest conservation; for example, buyers of privatised South African forests must commit to FSC certification (Dingwerth, 2008). The scope of successful uptake of FSC certification within the forestry industry masks several areas of concern. Chiefly, these highlight questions of the credibility of mechanisms to ensure Southern participation. This calls into question the FSC’s efficacy as a functioning system

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of multi stakeholder regulation and raises doubts about its ability to protect the world’s most vulnerable forests. Despite the FSC’s success in promoting a stakeholder model with equal voting rights for Northern and Southern countries, concerns that it promotes a Northern-centric model of forestry conservation have been frequently voiced (Dingwerth, 2008; Vogel, 2007; Utting, 2002). A key criticism concerns the issue of geographical stakeholder representation within the FSC. The multi stakeholder model promoted by the FSC is seen by many to exemplify this kind of stewardship model. Nonetheless the FSC has been criticised for the very way in which it defines countries that constitute the ‘North’, as opposed to those making up the global ‘South’. Defining stakeholder categories is a critical, and politically charged, aspect of any stakeholder process (Dingwerth, 2008). FSC by-laws stipulate 50 per cent equal voting power to Northern and Southern organisations. However, they utilise a definition of Northern organisations as those based in High Income countries; and Southern ones as those based in Low, Middle and Upper income countries. This distinction has enormous consequences for the actual parity of representation within the FSC. Stakeholders from High Income countries are effectively afforded 50 per cent overall voting power, despite representing less than 15 per cent of the global population (ibid.). In turn, representation among Southern actors in the FSC tends to be skewed toward Latin America, with significantly less representation of Asian and African countries (Dingwerth, 2008). As a democratic, multi-stakeholder organisation, the FSC ‘functions poorly’ according to Counsell and Loraas (2002). They note the inability of many Southern stakeholders to participate due to lack of capacity; they also voice concern at cumbersome complaints procedures, biased towards commercial clients (ibid.). Of the 100 million hectares certified under the FSC accreditation system, around 80 per cent of these are in the North (Dingwerth, 2008). Just over half the forests endorsed by the FSC are located in four non-tropical countries: Canada, Poland, Russia and Sweden (ibid.). The pressing issue of tropical forest degradation remains unresolved, with just 2.4 per cent of tropical forests endorsed by the FSC, or any other private certification scheme (Vogel, 2008). The geographical skew of certifications has led to criticism from many governments of the South, who question whether such standards constitute a new form of economic protectionism. As we have seen, the standards are predominately developed in the West. Even if they borrow from international standards, the process of operationalising

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these is not simply technical but also political, as it has major effects on the ability of different companies and organisations from different parts of the world to participate. The costs of certification may often be too high for smaller companies. Another factor in the uneven geographical distribution of FSC accreditation may lie in the nature of its certification procedures. Some have criticised these for being geared towards large companies with auditable management systems who do not have complex relationships with local communities (Bendell, 2005). For many of the largest, vertically integrated firms, uptake of FSC certification represents good business sense; for many smaller ones, FSC certification is too ‘expensive and burdensome’ (Vogel, 2007, p. 35). However, some of the criticism of private standards by Southern governments must be understood as a result of those governments’ own unaccountability to all their citizens. Often private standards on social and environmental issues incorporate basic international standards and local laws, so provide a guarantee that things which should already be respected are indeed being respected inside companies. Such standards are not a threat to the environment or workers, indeed they can improve the lives of workers and their families, but it is the exporting companies which fear losing a little competitive advantage and profit who then express their concerns to their governments. Governments that are accountable to all sectors of their society, including the workers within and communities surrounding their factories, would not necessarily be resistant to those private standards that incorporate national regulations and the international norms the government has already committed to. Any assessment of the FSC to date is one of seeing a cup either half empty or half full. This reflects the current lack of consensus on private governance in general. Some may see it as uncomplicatedly encroaching upon state sovereignty and weakening Southern interests; or alternatively, as a process which doesn’t replace states, but which embeds ‘systems of governance in broader global frameworks of social capacity and agency that did not previously exist’ (Ruggie, 2004, p. 519). Greenpeace (2008, p. 3), noting the responsiveness of the FSC to many of its concerns, cautiously calls it ‘an elaborate conflict resolution mechanism for reconciling many differing views and values in relation to forests and some plantations’. Yet Fuchs (2006, p. 11) cautions that while we can be positive that 20 per cent of both US and EU consumer markets are committed to certified wood, this means that a further 80 per cent sold in these markets alone has yet to come under the remit of certification. Undoubtedly the efforts of the FSC in bringing different

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stakeholders to the table on more equitable terms, means it deserves its reputation as perhaps the best global standard setting model of stakeholder civil regulation currently extant (Dingwerth, 2008; Murphy and Bendell, 1999). It cannot be forgotten that the FSC originated directly from the unwillingness of governments themselves to agree an international forest treaty (Clapp, 2005). Yet given the ‘intentional marginalization of the FSC by powerful economic interests and in crucial markets’, perhaps the most realistic assessment is that ‘FSC certification can only play a complementary role in the protection of tropical forests, but is certainly not a sufficient governance institution in pursuit of this goal’ (Fuchs, 2006, p. 12).

Conclusion and recommendations: Averting McGovernance Voluntary organisations influence and indeed govern economic activities in a number of ways that raise accountability dilemmas, particularly in terms of downwards accountability of decision makers to those affected by their decisions. However, some of these initiatives such as the FSC are providing new, if patchwork and faulty, routes through which people can influence those economic activities that affect their lives. This has become more important due to the increasing unaccountability of economic activities to those they affect because of the mismatch between a globalising economy and national governments. If you are interested in NGO accountability, as you appear to be, then the role of non profit organisations in governing markets on economic, technical, social or environmental factors is a major area to explore. The growing range and importance of forms of highly private authority and the various points of criticism that they encounter, means that this is an area of NGO accountability that requires more research, deliberation and initiative. Without it we might wake up to find ‘McGovernance’ has become the global norm. In terms of the specific examples and concerns we have raised there are two approaches that could be considered to encourage more democratic accountability. First is the statist approach; this would involve governments and intergovernmental organisations, such as those of the UN system, developing principles and criteria for credible, voluntary standard setting, and wrestling these determinations away from the WTO-ISO axis. Another approach is for progressive innovators in business and civil society to embrace the concept that voluntary standards should be accountable to those they most affect, and develop such principles themselves, and seek ways to encourage and eventually enforce

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them (which, perhaps, brings us back to the statist approach). The latter approach is highlighted by the International Social and Ethical Accreditation and Labelling (ISEAL) Alliance; established by organisations like the Marine Stewardship Council (MSC), Forest Stewardship Council (FSC) and Social Accountability International (SAI) to not only share best practices but also promote their interests in international trade policy arenas. ISEAL describes itself as providing ‘credibility tools’ to its members in order to ensure best practice in the way member organisations develop and implement their systems of standard setting. ISEAL members must adhere to its Code of Good Practice for Setting Social and Environmental Standards and undertake reviews as well as internal assessments of their compliance to it. The challenge that an organisation like ISEAL faces is that ISO is dominant in the field of conformity assessment, and so they have closely mimicked the guidelines for standards and accreditation development coming from the ISO and the WTO. For instance, in order to meet ISEAL’s standard for best practices in accreditation members must comply with ISO/IEC 17011:2004 (ISEAL, 2009). This results in questionable results for accountability of ISEAL’s members. ISEAL’s replication of technocratic, top-down models of standard setting misses an opportunity to engage with issues of direct accountability to intended beneficiaries. The implications for organisational governance need to be addressed head on in ways that an organisation like the ISO might never do. Ultimately the fate of the growing private governance of markets will depend on the extent to which individuals understand and embrace principles of democracy as being relevant to their professional lives. We must reclaim democracy as an everyday concept applicable to all arenas of our lives. Is that a high ideal with little practical implication? Thankfully the ink of these words, and the bleaching agents used in this paper, are probably not toxic because these pages have been regulated for you. But now that you know more about whose interests were involved in the processes creating and monitoring the relevant regulations for the ink and paper, and that few, if any accountable government officials partook: how tight is your grip?

Notes 1. By ‘public governance’ we mean to distinguish the governance of societies from the internal governance of organisations. 2. Others call those standards that are developed by individual companies private standards, and those developed by other organisations as voluntary (Arts, 2003).

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3. Others have labelled these processes ‘civil accountability’ (Hammond and Lash, 2000), which to others means the accountability of organisations in civil society, rather than the accountability demanded by them (Zadek, 2003). 4. See www.ifoam.org; www.bmelv.de. 5. A maquila is a factory operated in Mexico under preferential tariffs agreed by Mexico and the US. Mexico allows materials to be used as part of products produced in maquilas to enter from the US duty free; in turn when these products are exported back across the border, the U.S. charges Mexico much lower tariffs on these products than from other countries. US companies often prefer to outsource to maquilas due to much lower wage rates in Mexico.

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Jem Bendell, Phyllida Jay and Mark Bendell 155 M. Prieto (2002) ‘US Monitoring Sees No Evil’, in CAWN Central America Report (London: Central American Women’s Network (CAWN)). A. Przeworski, S. Stokes and B. Manin (eds) (1999) Democracy, Accountability and Representation (Cambridge: Cambridge University Press). R. Repetto and M. Gillis (1988) Public Policies and the Misuse of Forest Resources (Cambridge: Cambridge University Press). G. Ritzer (1993) The McDonaldization of Society (Newbury Park: Pine Forge Press). J. G. Ruggie (2004) ‘Reconstituting the Global Public Domain – Issues, Actors, and Practices’, European Journal of International Relations, 10, 4, pp. 499–531. J. A. Scholte (2002) ‘Civil Society and Democracy in Global Governance’, Global Governance, 8, 3, pp. 281–305. J. A. Scholte (2003) Protecting the Rights and Addressing the Responsibilities of Nongovernmental Organisations, summary report, unpublished paper (Conventry, UK: Warwick University). C. Scott (2002) ‘Private Regulation of the Public Sector: A Neglected Facet of Contemporary Governance’, Journal of Law and Society, 29, 1, pp. 56–76. A. Seferian (2009) Telephone interview with Avedis Seferian, Director of Compliance Administration, Worldwide Responsible Accredited Production (WRAP), Arlington, VA, US, 25 Feburary 2009. D. Serafinas and J. Ruzevicius (2007) ‘The Development of Socially Responsible Business in Lithuania’, Engineering Economics, 1, 51, pp. 36–43. U. Steger (2000) ‘Environmental Management Systems: Empirical Evidence and Further Perspectives’, European Management Journal, 18, 1, pp. 23–32. P. Utting (2002) ‘Regulating Business via Multi-stakeholder Initiatives: A Preliminary Assessment’, Voluntary Approaches to Corporate Responsibility: Readings and Resource Guide (Geneva: NGLS/UNRISD). W. Vermeulen (2000) ‘Naar een Schonere Productie’, in P. Driessen and P. Glasbergen (eds) Milieu, Samenleving en Beleid (Den Haag: Elsevier), pp. 329–51. V. Viana, J. Ervin, R. Donovan, C. Elliott and H. Gholz (eds) (1996) Certification of Forest Products: Issues and Perspectives (Washington DC: Island Press). D. Vogel (2007) ‘The Private Regulation of Global Government’, in W. Mattli and N. Woods (eds) The Politics of Global Regulation, forthcoming 2009, 2007 version available at http://www.haas.berkeley.edu/faculty/pdf/vogelarticle2.pdf, date accessed 10 August 2009. D. Vogel (2008) ‘Private Global Business Regulation’, Annual Review of Political Science, 11, pp. 261–82. K. Webb (2002) Voluntary Codes: Private Governance, the Public Interest and Innovation (Ottawa: Carleton University). S. Wood (2004) The Role of the International Organization for Standardization (ISO) in Governing Environmental Conflict and Corporate Social Responsibility in Developing Countries: Questions for Research, presented at International Congress on Environmental Law: Property, Conflict and Environment, Universidad del Rosario, Bogotá, Colombia, 25 May. K. D. Wolf (2001) Private Actors and the Legitimacy of Governance beyond the State, unpublished paper prepared for the Workshop on Governance and Democratic Legitimacy, ECPR Joint Sessions of Workshops, Grenoble, 6–11 April.

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7 Accountability 2.0 – In Search for a New Approach to International Non-Governmental Organisations’ Accountability Marek Havrda and Petr Kutílek

There is an increasing volume of academic literature on the legitimacy and accountability of international non-governmental organisations (INGOs). Although the authors often emphasise the need for a change in the internal processes and structures of INGOs (see for example SustainAbility, 2003a), specific proposals for a workable oversight mechanism which would contribute to the enforcement of much needed change are scarce. This paper addresses the challenge of oversight of international non-governmental organisations which can be carried out by the state only with limited effectiveness in today’s global environment. The probability that all the countries would implement compatible and legitimate regulatory frameworks, or would transfer the oversight capacity to one global authority such as a government network (Slaughter, 2004), is, at least in the near future, relatively low. In the absence of such a global authority, the emergence of global self-regulation seems more plausible. Self-regulation has, however, proven to be problematic on several counts that we discuss below. Drawing on some oversight and selfregulation mechanisms which have formed in both non-governmental as well as business arenas, new oversight arrangements can be derived. These possible arrangements deserve critical examination with regard to their applicability to the non-governmental arena that is characterised by a high number of actors with often conflicting interests as well as legitimate concerns specific to the sector. For a truly functioning system to emerge, it will need to be attractive to governments, institutional and individual donors, and to INGOs themselves. It can be argued that such a framework will need to include transparent performance assessment. As viability, enforceability, and 157

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costs will always be important parameters of potential global regulatory arrangements, they also deserve specific attention and discussion.

Definitions International non-governmental organisations There is no universal definition of international non-governmental organisations in the academic literature. For the purpose of this paper a wide definition of international non-governmental organisation is used. As an INGO is considered any organisation which was established not to generate profit as its primary goal (i.e. not a commercial venture); is not controlled by any state or group of states (thus self-governed and private); does not seek to gain control of the state through standard parliamentary procedures (i.e. not a political party); and operates in more than one state (whether directly through physical presence or indirectly by trying to influence state policies). An INGO might be involved in various areas, such as human rights, environment, development, etc. By and large, INGOs can be divided into two groups. The first group consists of organisations with direct real-world impact (for example development), or on-the-ground action (help in case of natural disaster or war). The second group are the organisations seeking indirect real-world impact, that is, those trying to influence the policies of governments, corporations or even other NGOs, such as interest and advocacy organisations or think tanks. Some authors propose further classification, such as Charnovitz (2006), who divides NGOs1 into three groups: those with delegated responsibilities, those with assumed responsibilities, and those conducting advocacy. While these divisions are useful it is also true that many INGOs operate in more than one mode, with the distinction between these becoming fuzzy and thus calling for a more comprehensive approach to NGO accountability. Oversight By oversight of INGOs, we mean a general capacity to prevent an organisation’s non-governmental status from being abused either in favour of the organisation’s leaders or any other particular stakeholders; or that the whole organisation is used for non-bona fide purposes (for profit generation, criminal activities or the support of terrorism); or that the organisation badly underperforms in delivering the service it is supposed to (or claims to) deliver. In other words, oversight should increase the accountability of both managers of and whole non-governmental organisations as such, while not preventing them from fulfilling their

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bona fide objectives. There are various actors of oversight at national levels, such as the Charity Commission in the UK. However, no global oversight institutions, such as the International Charity Commission or the World Authority for Non-governmental Organisations, exist. In more technical terms, the oversight authority should also ensure that the non-governmental organisations follow the standard requirements of reporting, audit rules, and publish annual reports in a specified structure by a certain date. In addition, there needs to be present, a threat of de-registration in case of non-compliance.

Why accountability needs to be strengthened The number of international non-governmental organisations grew from 176 to 38000 between 1900 and 1996 (Held and McGrew, 2002, p. 7). After the end of the Cold War the pace of growth of INGOs has further increased (see for example Edwards and Hulme, 1995). There are over 1700 INGOs recognised by the United Nations which cover and influence virtually all UN agendas. For an overview of the changes of status, and growing influence of INGOs in Diplomacy at the UN, see Willetts (2000). This is not just true of the UN. The growing power of INGOs has been described and analysed by many authors including Florini and Simmons (2000) and Edwards and Gaventa (2001). Organised civil society is today engaged in policymaking at the global level on a daily basis (Scholte, 2004). INGOs are today also able to influence other institutions of global governance including the Bretton-Woods institutions and the World Trade Organisation (Scholte, 2002, p. 201). In the European Union structures, NGOs are represented in the consultative Economic and Social Committee and, more importantly, NGOs are very active as direct advocacy actors trying to influence various EU policy areas. In addition, the EU applies the so-called partnership principle for all its structural policies and thus NGOs may influence the planning and implementation of structural assistance. INGOs, such as Greenpeace, have managed to change the decisions of large multinational corporations. Apart from clearly global issues such as climate change, some INGOs also address arguably very local issues, such as family abuse or transparency of local political processes. These INGOs are not always registered in all the countries where they operate, which raises questions about their accountability to local constituencies. Over the last 100 years, INGOs have managed to acquire enormous and unprecedented power. Although it is widely understood and

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accepted that INGOs are highly unrepresentative (Held and McGrew, 2002, p. 14), a structured approach to their accountability has not been thoroughly addressed. This deeply contrasts with the heated debates over the regulation of, for example, global finance (regardless of the outcomes of the debate for actual quality of regulation). It is obvious that INGOs do not usually have such a large and direct impact on the wellbeing of millions of people around the world as they did, for example, in the movements in global finance resulting in the 1997–8 financial crisis, or the potentially even more severe repercussions of the financial and economic crisis which unfolded in 2008–9. However, the impact of NGOs is clearly rising, although ‘creeping’ and implicit. Thus there is an increasing need for ensuring that they do not abuse their position. Privatisation of public interest There are several sources for the growing power of INGOs apart from the general growth in the civil society activities worldwide. The socalled privatisation of public interest, which started to gain significantly during the Reagan-Thatcher era, allowed for more and more services traditionally provided by the state to be contracted to NGOs, ranging from local social care to foreign development assistance. Further, INGOs act as monitors of multinational corporations, in particular in the countries with weak states (Woods, 2002, p. 34). In addition, the nongovernmental organisations are increasingly interconnected around the globe (Taylor, 2002, p. 346). Increasingly INGOs operate in contractual environments. In the contractual setting, the relationship is not about the values and mission, but about the fulfilment of contractual obligations, that is, providing agreed service in agreed quality for a certain price (Edwards and Hulme, 1995). Often NGOs portray themselves as more cost-effective than governments in providing various services (for example Fowler, 1988; Meyer 1992). However, there is no ‘bottom line’ based on which it would be possible to judge the performance of NGOs in contrast to the corporate world. This is a well known fact, which makes setting up any performance measurement rather complicated, in particular, at the organisational level and not only the level of individual projects. Different approaches have been developed in order to tackle this challenge. These include social accounting, social auditing (for example Traidcraft, 1994) or the use of the concept of public value (Moore, 1995). Oxfam even used an Oxfam assembly where about 250 diverse stakeholders discussed strategic issues which confront the organisation. Although these mechanisms might have a positive impact on accountability, there are serious

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deficiencies connected with them. Mainly they involve considerable costs which need to be borne by the organisation (i.e. need to be fundraised) and even more importantly it seems impossible to employ them on a larger scale in a global setting where INGOs operate.

NGO environment open to misconduct Many wrongdoings of the leadership of NGOs have been registered (see for example Gibelman and Gelman, 2001). Apart for the leaders’ wrongdoings, INGOs can serve as an institutional cover-up for various illegal activities. For example, non-governmental organisation may make an easier cover for the support of terrorism than traditional forprofit businesses. The NGO does not need to produce profit (at least in medium run), can accept donations, and it is easier for them to claim a higher purpose – such as the protection of human rights. The United Nations Resolution 1737 cited that many NGOs are used to launder money for terrorists (Cohen, 2001). Similar results have been reached by the OECD Financial Action Task Force on Money Laundering (OECD annual reports available at http://www1.oecd.org/fatf/).2 Other similar incidents are documented by Tvedt (2002). Some authors argue that non-governmental organisations themselves do not consider the need for external accountability: ‘because they provide good works, they need not be accountable to anybody – including the donors who support their work’ (Eisenberg 2000, p. 45). From that view, there is no room for oversight. This approach is confirmed by various researchers. For example, although INGOs are often advocates of corporate accountability, only several INGOs have adopted rules similar to those which they advocate in the corporate world (SustainAbility, 2003b). Moreover, by and large INGOs are not very keen on disclosure. According to the pilot Global Accountability Report 2003: the Power without Accountability? (Kovach, Neligan and Burall, 2003) which examined 18 large players in the global arena, including intergovernmental organisations, multinational corporations, and INGOs – the International Federation of Red Cross and Red Crescent Societies (IFRC), International Confederation of Free Trade Unions (ICFTU), International Chamber of Commerce (ICC), Oxfam International (OI), World Wide Fund for Nature (WWF), Amnesty International (AI) and CARE. The study showed that except for IFRC, the INGOs proved to be very bad at information disclosure, not disclosing how they have been spending their money or how well they have been achieving their

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aims. Only half of the INGOs published their annual reports on line and only IFRC, WWF and OI provided financial information in their annual reports. Information about the evaluation of their activities was not consistent either. Apart for IFRC the INGOs scored worse than intergovernmental organisations and multinational corporations! Therefore, often it is not clear whose interests they promote, or who stands behind their initiatives. For example, think tanks might support wider choice in health care, but they do not disclose that the research was funded by pharmaceutical companies. Similarly, various free speech advocacy groups have received funds from the tobacco industry. In addition, the competitive environment increasingly requires the INGOs to treat disclosure of any information as public relations activity, that is, trying to communicate only the good and concealing the problematic (Edwards and Hulme, 1995). This culture obviously also influences the activities of the boards, as board members would not enjoy seeing their name in connection with a troubled NGO or even malpractice. Moreover, the need to compete for financial resources brings about the short-term focus on quick results. As a means to strengthening sound management and also overall accountability, many donors require awarded NGOs to provide resources partly from other sources toward the project or programme (so-called co-financing). Often such requirements bring about ill incentives and lead to irregularities. These irregularities can include inflating certain budget items with the aim to make deals with selected providers later, or attempts to ‘cross-finance’ the project in question by other projects, in particular through labour costs being attributed to another project, than on which they were incurred. In short, it is very difficult for many NGOs to create any institutional reserve funds as most grants do not allow for ‘profit making’, and NGOs are motivated to be creative about getting around this obstacle.

INGOs v. the state The regulation of NGOs differs from country to country. There are different rules for registering a non-governmental organisation as well as in the reporting requirements on existing NGOs. In some cases there are almost no requirements when the organisation is registered under the freedom of assembly principle. The rules that justify the ‘tax evasion’, that is, favourable tax status enjoyed by non-governmental organisations in many countries, are not unified. There are vast differences with regard to reporting requirements. The differences are so substantial,

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that an analogy to the tax havens in the corporate world can be drawn. In the US, with some exceptions, organisations seeking federal tax-exempt status must provide annually, detailed information about their finance, organisational structure and activities (Ebrahim, 2003). In some other countries, it is very easy to register an NGO, to obtain and maintain tax-preferential treatment, and there are, in some cases, even no reporting or audit requirements. For example, some Central European countries can be considered NGO havens from the regulatory perspective. INGOs are characterised by the fact that they operate across state borders, and do not limit themselves to one country. The rapid development and wide availability of communication technology has reduced the cost of organisation and operations, and enabled more NGOs to operate in more than one country. This is not only the case for the development NGOs, but more and more increasingly for advocacy NGOs. As INGOs are not banned from operating in different countries, the power of the state to oversee them is seriously and irreversibly limited. There are additional factors supporting the global approach. Smaller and weaker states of the South are often not able to oversee the NGOs operating on their territory due to external pressure. For example, in 1992, the Bangladeshi oversight body reported serious irregularities including corruption in several leading NGOs and revoked their licences. The governmental decision was overturned within few hours after intervention of several important donors (Choudhury and Ahmed, 2002). Moreover, some very influential groups are even more difficult to oversee, because they do not operate in traditional institutionalised ways. Mekata (2000, p. 172) for example points out, that the very successful International Campaign to Ban Landmines, which linked over 1000 NGOs in around 60 countries, ‘never possessed a bank account or even a street address’. On the other hand, not all states are weak. In many countries INGOs face increasing challenges from some relatively strong and increasingly confident governments, such as Russia under the leadership of Vladimir Putin. It is quite likely, moreover, that under the pressures resulting from the current financial and economic crisis, some governments will be tempted to restart their attacks on the credibility of advocacy INGOs that are critical of them. Today, because of weak international law and varying national jurisdictions, a universally accepted, clear-cut legal distinction is unlikely to emerge as to what is legitimate government oversight. A global approach to accountability could help define that and thus help prevent illegitimate and malevolent government interference.

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INGOs themselves would benefit from increased accountability and performance transparency Currently INGOs employ only very limited measures towards their own accountability (Scholte, 2004). As Scholte points out, the boards are often assembled by friends of the management. In addition, current reporting is only limited. By and large the INGOs do not consult their constituencies. At a very general level, there seems to be a well-known set of factors which can contribute to high standards of NGO operation (Edwards and Hulme, 1995; Riddell and Robinson, 1992; Wils et al., 1993). These factors include: • • • • • • •

strong sense of mission attachment to values effective learning and action research local level involvement effective planning focus on performance skilled and committed staff

It is clear that putting these factors into practice can contribute to higher overall accountability of INGOs. However, the crucial question is how to build such accountability mechanisms which would in turn support the above mentioned factors at the operational level. This seems to be the crucial problem that any useful oversight mechanisms should resolve. The NGO funding issue brings about an additional dimension to the accountability problem. Most resources of NGOs come from governments (see for example Edwards and Hulme, 1995). NGOs as well as public providers of funding thus face legitimate questions regarding the accountability of public resources use. There are, of course, NGOs who draw most of their financing from private donations. A clear and universally accepted accountability and performance-transparency system for NGOs funded by public as well as those funded by private funds needs to be established. With regard to public funding, it would help to legitimise the operations of NGOs and the use of public finance. The system could also support private donations by providing more transparency about the use of resources. In any case, accountability which would be transparently performed and easily visible, would help to justify the implicit public donations to NGOs in the form of various tax-exemptions they enjoy in many countries.

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There might be interesting side effects of the current financial and economic crisis, which broke out in 2008. Not only will the resources become increasingly scarce, but there might be more general consequences for trust in the NGO sector. Among other factors, the crisis was caused by investors who did not fully understand the risks connected with the complex financial instruments they invested in. Similarly, donors often do not completely understand the complexities of the operation of NGOs. Hence more transparency may be necessary to establish a credible environment for funding. If NGOs want to prevent a potential collapse of trust (and thus, revenue), they should find an accountability and performance transparency system useful, and thus support oversight mechanisms which would help to create a more credible environment. During the financial and economic crisis the trust between companies and investors and among companies collapsed; the trust was often lost even in business relationships which lasted for decades. Transposed to the world of INGOs this creates a strong call for better and more efficient regulation in order to prevent this from happening. If trust is lost in a systemic manner, as was the case in the world of global finance in 2008, the outcomes for INGOs would be fatal as finance providers would be reluctant to provide any funds. Nowadays, it is often not clear where INGOs get their resources from, how they spend them and for what purposes, and how efficient their activities are. Although some INGOs might prefer the current fuzzy system of oversight, or better to say the lack of global oversight, since it provides them with more freedom in their operations, to establish a system effective in preventing and monitoring potential wrongdoings would significantly contribute to the general trust of the INGO sector.

Possible solutions Any regulation and oversight mechanisms need to be well designed. There are virtually no limits for bad regulation (Carr, 2008). Inappropriate government intervention can bring about regulatory damage that causes more harm than good to the area of public life it aims to improve. Even the strictest rules and requirements do not guarantee accountability. As in the world of finance where investors must have confidence in investment (Carr, 2008), the donors need to have confidence in the INGOs in order to provide finance. The INGOs need to be motivated to ensure their actions are efficient and in line with their missions. In other words, INGOs need to operate under such an oversight mechanism which will

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ensure their sound financial and general management, but at the same time provide enough freedom to pursue their missions. Various authors have suggested various forms of regulation of the non-profit sector (not unlike the for-profit corporate sector), yet others have already emerged in practice. Principally, these can be divided into three types: • Government/public regulation • Self-regulation • Multi-party system of contributing and mutually checking actors (a proposal of building up such a system is presented below)

Government regulation (and why it won’t work) Should government be the actor that steps in to provide stricter regulation of the NGO sector? Isn’t it, after all, the most natural of regulators, and the guardian of public interest, something that INGOs claim to serve? There are good reasons for government to play an active role, as argued above. However, there are also practical limits to possible government regulation, as well as theoretical (and philosophical) reasons for caution. First of all, government regulation will always be there as a matter of course. Government is the guarantor of the legal environment; it is an actor that provides the framework under which INGOs operate. Government does and will continue to set rules under which INGOs can be incorporated, the financial and accounting requirements that they have to follow, and will also in most cases define basic governance principles that NGOs have to fulfil in their operation. Government should take a role in INGO regulation as it is always a stakeholder in the sense stated above – it grants the INGO its non-profit status, and even if it does not provide direct financial support to the organisation by guaranteeing its status, it de facto channels taxpayer money to INGOs in the form of various tax-breaks. An even more active role is of course legitimate in the case of delegated services, when the government de facto outsources its functions to the INGO. However, government regulation is not a panacea. There are several problems with government regulation that can be identified in the history of the regulation of the corporate sector. Firstly, as we are reminded, writing in the context of the financial and economic crisis that emerged in 2008, it is useful to point out that government regulation hardly ever foresees future problems. On the other hand, it can easily overshoot,

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especially in times of crisis, and be costly and distorting (Carr, 2008). It is quite possible that as governments come under increasing criticism for not having foreseen and managed the global financial crisis, and as this becomes to be seen increasingly as a crisis of accountability of private actors, governments will feel under pressure to increase regulation to score political points; INGOs are in a way an easier sector for governments to try to tame and demonstrate some regulatory activity. The second general problem with government regulation is that it can be distorted by lobbying efforts by dominant actors. Powerful corporate actors are often successful in forming the legal and administrative regulatory framework to serve their interests, frequently raising unsubstantiated entry barriers for smaller and innovative actors (see for example Scholte, 2004). Similarly, in the case of NGO regulation by governments, powerful INGOs could inform government regulation in their favour. Beyond the usual problems with government regulation of the private sector, there are specific concerns that make government regulation of INGOs questionable. Government regulation on transparency and accountability in the area of INGOs always amounts to some limit to freedom of association (Armstrong, 2006). As discussed above, certain governments are keen on abusing legitimate concerns about INGO accountability for their own purposes. In this light, government regulation is not on its own the best way to provide a framework for INGO regulation. Thus a non-state-based system is preferable if not necessary. Additionally, besides the theoretical problems with government regulation of the non-profit sector listed here, government regulation of INGOs is practically difficult precisely because of the reasons listed above: INGOs operate across national borders and jurisdictions. One might speculate about the possibility of a supranational public regulation of INGOs through a UN body. However, because of all the questions about the UN bodies’ own legitimacy and accountability, this alternative avenue can be easily dismissed unless and until the UN develops a more robust accountability mechanism. Self-regulation (and why it won’t work) If government regulation of INGOs is practically difficult and theoretically questionable, what other options are on the table? Traditionally, self-regulation has been a response to perceived needs for regulation in various fields of human enterprise. There are, however, various problems associated with this approach as well.

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The NGO sector has also developed efforts at self-regulation in response to criticism of low accountability. Perhaps the most universal of these attempts has been the INGO Accountability Charter (2006). The Charter sets out important principles as to the organisation’s independence, programming and advocacy principles, transparency (including reporting and auditing), governance requirements, ‘ethical fundraising’ and management principles. The key problem with the Charter is that while it does address some of the key issues of NGO accountability (not only the financial aspect of accountability, but also those relating to governance and performance), it is not operationalised in terms of defining concrete criteria and enforceable standards for implementing outlined principles of accountability. In other words, there is no way the NGOs could effectively hold themselves or be held truly accountable for upholding these principles. This hints at the severe limitations of a self-imposed regulatory framework. In the corporate world, it is often only a way of avoiding stricter government oversight or regulation. Multinational corporations often take this path. An example might be the case of the Code on Pharmaceutical Marketing Practices (Held and Koenig-Archibugi, 2004); this is similarly true in the marketing and advertising arena (Rotfeld, 1992) and other sectors. There is no reason to believe that the self-regulation of INGOs would be immune to such temptations. While the motivation for self-regulation (as opposed to government regulation) can be argued to be more legitimate in the case of NGOs, it does not resolve the general problem with this type of regulation not delivering effectively the need for better oversight of the NGO sector, in particular, in terms of low enforceability which is inherent in all selfregulation models.

In search of a way forward As in any governance setting, accountability can be defined as limits to the decision makers’ freedom. The decision makers do not enjoy complete liberty, but must justify their actions to their stakeholders (Held and Koenig-Archibugi, 2004). In order to be able to evaluate the actions of an INGO, their stakeholders need to have access to user-friendly information about the operations carried out by the INGO. As many INGOs are reluctant to provide such information, the crucial potential of oversight mechanisms would be to require and ensure disclosure. Thus oversight, which brings about more transparency, can be seen as a key tool for ensuring the accountability of INGOs.

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Various academics (for example Kanter, 1979) stress importance of considering the context in which NGOs operate and also suggest that the assessment process should be participatory, that is, it needs to include the various stakeholders of the NGO in question. From a different perspective (Edwards and Hulme, 1996; Ebrahim, 2003), there is a need for both ‘upward’ accountability (to donors and governments) and ‘downward’ accountability (those who are affected by NGO’s work). In addition, there is a desperate need for strategic accountability (in terms of an impact on their operational environment, wider constituencies and long-term planning), which is much more difficult to measure when compared to functional accountability (in terms of the use of resources and short term outputs) (Avina, 1993). In the case of operations funded by large institutional donors, the functional accountability is usually ensured, although often only nominally, at the level of individual projects. Although most institutional donors are rigorous in terms of the concrete grant/project they finance, to ensure even functional accountability is difficult in the case of INGOs financed through long-term individual fundraising, as usually small donors do not have the capacity to assess even short term performance. With regards to the overall organisational operation, even large institutional donors are usually satisfied with reviewing the last official annual report (which often conceals as much as it reveals). The reason might be simply operational, as it is extremely difficult and costly to evaluate the performance of an entire organisation. Last but not least, it is broadly accepted that the nature of NGO work, which is soft, often with intangible effects, makes it highly problematic to even attempt to measure performance. Any well-functioning oversight and accountability system should be able to deal successfully with the above problems. The multi-party system proposed below aims to do so by creating an environment that can aggregate information from a number of various sources. Even in current settings, accountability is often skewed to the most powerful of stakeholders, that is, those who provide financial resources (see for example Tandon, 1994). It seems thus natural that they will need to be at the heart of the quest to establish the operational INGOs accountability system. In other words, the solution does not primarily rest with increased government regulation and oversight, but with responsibility and better care of those who provide financing. However, different types of donors (government, foundations, private donors) have different levels of expertise as well as different approaches to assessing an INGO’s performance. This results in quantitatively and qualitatively inconsistent accountability requirements and, in

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turn, varied managerial response from the side of the INGOs. As a wellperforming non-profit sector is in their common interest, contributing to creating structures that would support the sector’s accountability would seem to be a natural development. The proposed system builds on this argument suggesting that the donors should both sponsor the establishment and operation of the system, as well as require the INGOs they fund to participate in it. Moreover, just as investors should think twice before investing with a fund which is not rigorously audited, anyone providing finance to NGOs should require full disclosure of information as well as at least basic standards of management of both finances and operations. As pure self-regulation does not provide a sufficient solution, there seems to an interesting opportunity to combine it with social auditing as described by Ebrahim (2003), that is, an approach which integrates many accountability mechanisms such as information disclosure, participation, evaluation and standards of conduct. The proposal suggests creating such a framework, which would allow combining selfregulation with social auditing at a global level. It seems useful to take inspiration from existing self-regulatory systems. There are a number of voluntary systems already in place, such as GuideStar and Better Business Bureau, but in general these provide only a few basic types of information (annual reports, executive salaries). One of the self-regulating systems, the Philippine Council for NGO Certification (PCNC), could be a good inspiration for creating a new global system. PCNC was set up originally by two Philippine government agencies largely in response to abuse of the tax system’s loopholes by politicians and others who set up fraudulent organisations (Golub, 2006). The certification system today includes a process of self-assessment, peer review, and a decision by the PCNC’s board to evaluate whether an NGO should be granted tax-exempt status. Golub argues that the process itself, while not set up originally to improve NGO accountability, leads to some improvements and provides a framework for organisational learning. The Philippine system seems to have several strong points that make it a plausible model: • It was initiated and, more importantly, continues to be respected by the government. Even if an international system was not set up by a specific government, if functioning properly, it could gain acceptance by governments and reduce the threat of excessive interference. • It is largely based on peer review by other NGOs; the self-assessment and peer review stages encourage organisational learning, thus adding

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another incentive for NGOs to participate and comply. The involvement of independent reviewers also adds to the legitimacy of the system. • As such, it is also increasingly respected by private donors and foundations. These are the general principles that could apply to the system we are suggesting here and make it attractive to INGOs of various missions and sizes. To properly deliver on its expectations, such a system would need to address not only one-time certification, but also offer a permanent mechanism for monitoring accountability. However, to apply such a system at the global level would be prohibitively costly. Using a web-based portal deploying current available technology could help to tackle the cost issue. The portal would be able to aggregate general, financial and performance information about involved NGOs. The information published on the portal would be publicly accessible without any limitations. In order to ensure source authenticity, it would be necessary to use a digital signature for those who provide input information. Each INGO involved should provide at least basic information and self-assessment (for example based on Drucker, 1993) on the web based portal: • • • • •

What is our business (mission)? Who are our customers/beneficiaries? What does the customer/beneficiary consider valuable? What have been our results? What is our plan?

However, it is not just the provision of information that is required, but, as in the accountability arrangement of any complex entity, the information must be presented in an understandable way. Following from this, the following points need to be considered (based on Scholte, 2004): • Budgets should be presented in readable way which does not conceal real financial operations. • Reports need to be free of technical jargon which can be understood only by limited number of experts. • The use of acronyms needs to be minimized. All information provided by INGOs would need to meet the above requirements.

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In addition, in order to operationalise its specific mission each INGO could select a set of predefined quantitative indicators in order to provide the public with information on its performance. Obviously, the explanatory value of each set of indicators selected by an individual organisation would not be complete as no organisation would tend to select indicators in which they underperform. Nevertheless, the wider constituency could ask the organisation to include any of the indicators they consider relevant. The oversight should include indicators at various levels. In this context Lawrie (1993) suggest four groups of indicators: • • • •

cost (per unit) take-up or ‘occupancy’ impact or result user reaction

Such an integrated approach would help to manage performance internally as well as increase external accountability. The crucial innovation is that the proposed system should benefit from the latest web-based technology. In particular, various tools developed as part of the so-called web 2.0 could be employed. Participating INGOs would be ranked and evaluated on their performance both by their donors and their partners, or cooperators. The authenticity of these assessments would be ensured through digital signatures issued by certification authorities. This would prevent potential malicious attacks by those who would pretend to be someone else. The larger scale and larger number of references would make it possible to reveal the overall satisfaction rate of donors and partners with each INGO. This would allow occasional problems or mistakes to be filtered out, and would show the overall performance of each INGO in a longer term. There will be always the question of how to define those who have access to provide feedback and evaluation on the organisation. Donors seem to be the easiest group to define, but even here it might be difficult, as people donating one dollar could claim the same rights as a larger institutional donor. While partners might also be easy to recognise, provided they have a contractual relationship with the organisation in question, individual users, communities, constituencies, etc. would face severe challenges in terms of their ability to evaluate NGO work. That their opinion is in many perspectives crucial makes this an even more serious problem. Here the oversight mechanisms may consider including a section without authentication, which would allow

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virtually anyone to make a comment. The information coming from this section would need to be separated from the rest of the information used for assessment and would need to be reported separately, in order to control potential bias. However, this kind of information could then be used by donors to verify it and include it in the part of the portal which is authenticated. Inevitably, there will be a need for a ready mechanism in order to resolve various disputes arising from the information provided on the portal. Here inspiration could come from international commerce where arbitration through the International Chamber of Commerce works effectively. Key donors and INGOs could set up a similar arbitration system, which would enable the resolution of disputes out of court and thus at lower cost. In addition, those who would like to use the arbitration mechanisms would be required to meet minimum standards in terms of the transparency of their own conduct. This would create a self-enforcing mechanism. In any case, arbitration would need to be understood as the tool of last resort used only in serious situations such as strong disagreement about a particular evaluation of the INGO provided by its donor. In addition, the web portal could include a section on procurement. This would allow for a comparison of what different organisations pay for comparable products and services purchased in comparable circumstances (place, time, volume, etc.). Such procurement benchmarking mechanisms would also positively contribute to accountability and sound management with regard to the input costs each organisation has to deal with. The overall costs connected with the system described above do not seem prohibitive. The initial costs would be mainly connected with building the web 2.0 website and validating all the initial information provided by INGOs. The operational costs would mostly rest with the need to ensure the authentication of those providing their input to the website. The costs for users of the information would be limited to standard Internet access costs. It is thus conceivable that such a system could be set up with the financial support of several major donors, major INGOs and possibly national oversight institutions, and maintained with the help of small fees of participating INGOs. By involving larger numbers of stakeholders the system would create an assessment tool based on social judgement (as analysed by Fowler, 1996): it would allow for contextualising, hence considering the context and operational environment. In addition, it would help to increase objectivity through bringing together the opinions of various stakeholders.

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Last but not least, it would contribute to capacity building and thus would also be cost-effective at the level of individual organisations. Increased pressure for overall transparency of INGOs’ operations would improve the situation in the whole arena. INGOs operate in a rather competitive environment where they have to compete with other INGOs for financing as well as opportunity to influence governance issues. The multi-party system would allow the INGOs to communicate their achievements based on information validated in the process. Providing all involved stakeholders with relevant and reliable information about the INGOs’ performance would enable the competition mechanisms to have positive effects on the whole sector by increasing pressure on performance and transparency of individual organisations. However, even the best functioning oversight and accountability system will depend on the conduct of key donors. If they do not require the organisations they fund to participate and/or use the system in a rigorous way, for example requiring only new applicants to be fully subject to the oversight while allowing existing ones to be exempted (at least partially), any arrangement will have only limited impact. Since the responsible behaviour of donors seems to be crucial, a question arises with regard to the mechanisms that would help discipline them. This seems even more crucial in the case of public bodies, as most funding used by NGOs comes from public sources. Here, the system proposed above could be used by the general public to access valid information about public donors’ activities, and standard democratic mechanism could help maintain the necessary discipline.

Conclusions Today many INGO practitioners do not hide their scepticism about the need to strengthen the accountability of INGOs. In the current setting they mostly consider the risks and do not see any benefits of being more accountable. They do not realise what they lose by this approach. Unaccountable organisations usually fall short of improving their operational insufficiencies and therefore they underperform (Scholte, 2004). Moreover, efficient donor-supported self-regulation could become a crucial tool in avoiding unnecessary government interference with INGO work. In other words, having a universally recognised system of oversight would also contribute to taming those states that are eager to control any actions of civil society by exaggerating oversight requirements. This position of diminishing the role of accountability will need to be reversed in order to build a new successful oversight mechanism.

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As we have argued in this essay, this can be done in two ways: either by a concerted action of the most important INGOs or by joint requirements imposed by the most important donors. However, a meaningful discussion of the benefits of strengthening accountability will probably need to precede such a change. In addition, further pressure could come from politicians who should be responsible for the oversight of donors and who provide taxpayer’s money to INGOs. Moreover, various national audit institutions could support developing the scheme. Principally, any system of INGO accountability will need to cover two basic elements: financial accountability and performance accountability (similar to Avina’s functional accountability and strategic accountability (1993)). Such an oversight mechanism would not only allow for organisational learning by INGOs, but would also encourage it. Each organisation, and often more importantly its board and other key stakeholders, would have information about its performance and also about the nature of problems it has been encountering. In addition, each organisation could use such a system as a benchmarking tool towards which it could compare its performance in various dimensions. By and large donors do not allow for ‘profit’ or savings to be accumulated in the process of project execution, but often at least some funds without project/grant strings attached are necessary for successful NGO operation. The multiparty system described above would allow for strategic accountability, thus helping donors understand and subsequently find ways of funding the long-term needs of INGOs. The web-based system we have described, aggregating information provided by the INGOs themselves, their institutional and individual donors, beneficiaries and peers within a clearly defined framework of indicators, would enable us to move from the current approach to INGO performance and accountability, based on rhetoric and anecdote, to an evidencebased model. The efficiency of the mechanisms we have described will obviously depend on the quality, inclusiveness and timeliness of the information provided by the actors involved. The enforceability of the mechanism would be self-imposing if the donors, however small, used the information provided for their own decision-making.

Notes 1. Throughout the article we generally refer to the accountability of INGOs at the national level; governments can develop accountability mechanisms more easily. We maintain reference to NGOs wherever we cite other scholarship on related subjects. 2. OECD annual reports are available at http://www.oecd.org.

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References P. Armstrong (2006) ‘The Limits and Risks of Regulation’, in L. Jordan and P. van Tuil (eds) NGO Accountability: Politics, Principles and Innovations (London: Earthscan), pp. 61–80. J. Avina (1993) ‘The Evolutionary Life Cycle of Non-Governmental Development Organizations’, Public Administration and Development, 13, 5, pp. 453–74. E. Carr (2008) ‘Come to Order’, in The World in 2009 (London: The Economist), available at http://www.economist.com/displaystory.cfm?story_id=12494430, date accessed 08 July 2009. S. Charnovitz (2006) ‘Accountability of Non-Governmental Organizations in Global Governance’, in L. Jordan and P. van Tuil (eds) NGO Accountability: Politics, Principles and Innovations (London: Earthscan), pp. 21–42. E. Choudhury and S. Ahmed (2002) ‘The Shifting Meaning of Governance: Public Accountability of Third Sector Organizations in an Emergent Global Regime’, International Journal of Public Administration, 25, 4, pp. 561–88. J. Cohen (2001) Governance by and of NGOs (London: AccountAbility). P. F. Drucker (1993) The Five Most Important Questions You Will Ever Ask about Your Nonprofit Organization: Participant’s Handbook (San Francisco: Drucker Foundation). A. S. Ebrahim (2003) ‘Accountability in Practice: Mechanisms for NGOs’, World Development, 31, 5, pp. 813–29. M. Edwards and D. Hulme (1995) ‘NGO Performance and Accountability in the Post-Cold War World’, Journal of International Development, 7, 6, pp. 849–56. M. Edwards and D. Hulme (1996) ‘Too Close for Comfort? The Impact of Official Aid on Non-Governmental Organizations’, World Development, 24, 6, pp. 961–73. M. Edwards and J. Gaventa (eds) (2001) Global Citizen Action (London: Earthscan). P. Eisenberg (2000) ‘Why Charities Think They Can Regulate Themselves’, Chronicle of Philanthropy, 4 May, pp. 45–7. A. Florini and P. J. Simmons (2000) ‘What the World Needs Now?’, in A. Florini (ed.) The Third Force: The Rise of Transnational Civil Society (Washington DC: Carnegie Endowment for International Peace and Tokyo: Japan Center for International Exchange), pp. 1–16. A. Fowler (1988) NGOs in Africa: Achieving Comparative Advantage in Relief and Microdevelopment, Discussion paper 249 (Brighton: Institute for Development Studies). A. Fowler (1996) ‘Assessing NGO Performance: Difficulties, Dilemmas and a Way Ahead’, in M. Edwards and D. Hulme (eds) Beyond the Magic Bullet: NGO Performance and Accountability in the Post-Cold War World (West Harford: Kumarian Press), pp. 169–86. M. Gibelman and S. R. Gelman (2001) ‘Very Public Scandals: Non-Governmental Organizations in Trouble’, Voluntas: International Journal of Voluntary and Nonprofit Organizations, 12, 1, pp. 49–66. S. Golub (2006) ‘NGO Accountability and the Philippine for NGO Certification: Evolving Roles and Issues’, in L. Jordan and P. van Tuil (eds) NGO Accountability: Politics, Principles and Innovations (London: Earthscan), pp. 93–108. D. Held and A. G. McGrew (2002) ‘Introduction’, in D. Held and A. McGrew Governing Globalization: Power, Authority and Global Governance (Malden, MA: Blackwell), pp.1–21.

Marek Havrda and Petr Kutílek 177 D. Held and M. Koenig-Archibugi (2004) ‘Introduction’, Government and Opposition, 39, 2, pp. 125–31. INGO Accountability Charter (2006) http://www.ingoaccountabilitycharter.org/ (homepage), date accessed 07 July 2009. R. M. Kanter (1979) The Measurement of Organisational Effectiveness, Productivity, Performance and Success: Issues and Dilemmas in Service and Non-Profit Organisations, PONPO working paper 8 (New Haven, CT: Yale University). H. Kovach, C. Neligan and S. Burall (2003) Global Accountability Report 2003: Power without Accountability? (London: One World Trust). A. Lawrie (1993) Quality of Service: Measuring Performance for Voluntary Organisations (London: National Council of Voluntary Organisations). M. Mekata (2000) ‘Building Partnerships toward a Common Goal: Experiences of the International Campaign to Ban Landmines’, in A. Florini (ed.) The Third Force: The Rise of Transnational Civil Society (Washington DC: Carnegie Endowment for International Peace and Tokyo: Japan Center for International Exchange), pp. 143–76. C. A. Meyer (1992) ‘A Step Back As Donors Shift Institutional Building from the Public to the ‘Private’ Sector’, World Development, 20, 8, pp. 1115–26. M. H. Moore (1995) Creating Public Value: Strategic Management in Government (Cambridge: Harvard University Press). OECD (2009) www.oecd.org/ (homepage), date accessed 07 July 2009. R. Riddell and M. Robinson (1992) The Impact of NGO Poverty-Alleviation Projects: Results of the Case Study Evaluation, ODI working paper (London: ODI). H. J. Rotfeld (1992) ‘Power and Limitations of Media Clearance Practices and Advertising Self-Regulation’, Journal of Public Policy & Marketing, 11, 1, pp. 87–95. J. A. Scholte (2002) ‘Governing Global Finance’, in D. Held and A. G. McGrew (eds) Governing Globalization. Power, Authority and Global Governance (Malden, MA: Blackwell), pp. 189–208. J. A. Scholte (2004) ‘Civil Society and Democratically Accountable Global Governance’, Government and Opposition, 39, 2, pp. 211–33. A.-M. Slaughter (2004) A New World Order (Princeton: Princeton University Press). SustainAbility (2003a) The 21st Century NGO: Roles, Rules and Risks, www. sustanability.com (homepage), date accessed 16 July 2009. SustainAbility (2003b) The 21st Century NGO: In the Market for Change, www. Sustainability.com (homepage), date accessed 16 July 2009. R. Tandon (1994) ‘Civil Society, the State and the Role of NGOs’, in I. Serrano (ed.) Civil society in the Asia Pacific region (Washington, DC: CIVICUS), pp. 117–36. R. Taylor (2002) ‘Interpreting Global Civil Society’, Voluntas: International Journal of Voluntary and Nonprofit Organizations, 13, 4, pp. 339–47. Traidcraft (1994) Social Audit Report 1993 (Newcastle upon Tyne: Traidcraft Exchange). T. Tvedt (2002) ‘Development NGOs: Actors in a Global Civil Society or in a New International Social System?’, Voluntas: International Journal of Voluntary and Nonprofit Organizations, 13, 4, pp. 363–75. P. Willetts (2000) ‘From “Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN’, Global Governance, 6, 2, pp. 191–212.

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F. Wils, V. Maddin, K. Alexander and N. Sohoni (1993) AWARE and its Work with Tribals and Harijans in Andhra Pradesh: An Impact Study of AWARE’s Programme among Harijan, Girijan and Mixed Communities, Now Independent from AWARE (The Hague: Institute of Social Studies). N. Woods (2002) ‘Global Governance and the Role of Institutions’, in D. Held and A. G. McGrew (eds) Governing Globalization: Power, Authority and Global Governance (Malden, MA: Blackwell), pp. 25–45.

Part III Representation through NGOs?

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8 Representing the People? NGOs in International Negotiations Tanja Brühl

In the 1990s, NGOs entered the stage of international politics. Since then, hundreds of NGOs have participated in international negotiations and thus gained influence in the realm of international norm evolution. In addition, NGOs affect the norm implementation processes. So far, the increasing involvement of NGOs in international relations has been appreciated as improving the legitimacy and democracy of global governance processes by adding civil society’s standpoints to the discussions. Above that, NGOs are considered to provide issue-specific expertise and thus contribute to a better understanding of the problems at hand. Finally, NGOs are capable of monitoring states policies. To sum up: NGOs seem to enhance the legitimacy of governance processes. This statement may be questioned from two different angles. Firstly, an entirely positive assessment may well be based on an underspecified conceptualisation of NGOs. In most research, they are seen as equivalent to civil society, whose interests are regarded as universal (e.g. Meyers and Frantz, 2002). This view oversimplifies both the actors and their interests, as it neglects not only the geographical background of the organisations but also the power aspect related to the origins of the NGOs. The headquarters of most NGOs are located in industrialised countries; their staff usually enjoyed an education of Western and/or northern academic standards. Although some of the NGOs claim to represent universal human interests, they are still deeply rooted in Western culture and ideas. This gap between geographical background and sets of interests is further deepened by the fact that the few NGOs from the southern hemisphere have to deal with severe difficulties concerning funding, access to relevant data and means of communication. For organisations of that kind the convincing preliminary formulation of their positions as well as the timely reaction to new developments 181

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in negotiations is problematic. Thus, the ability of southern NGOs’ to exert an influence on international negotiations is extremely limited. Above all, the introduction of their interests into the international arena does not necessarily mean southern civil societies’ interests are heard, as many southern NGOs represent the interests of southern elites rather than those of the people. Yet the optimistic assessment of NGOs contributing to a more democratic and legitimate governance system suffers from another weakness: the situations in which NGOs are included usually remain underspecified. The academic literature mostly does not differentiate between formal intergovernmental negotiations, for example in the United Nations main bodies, and informal negotiation settings, such as multi-stakeholder dialogues without any highly sophisticated rules of procedure. For NGOs, it is, of course, much easier to exert influence in the latter than in the former. In addition, the quality of NGOs’ participation calls for further investigation. In some negotiation arenas, NGOs are allowed to bring in their standpoints in deliberations any time and on an individual basis. Other negotiation settings are more restrictive and limit NGO-participation to group statements at the end of the negotiation processes. Whereas individual NGO-statements may contribute to public deliberations and thus to the implementation of a deeper democracy, group statements represent a more aggregated form of the people’s voice. Their impact on legitimacy is thus much less profound than that of individual statements. In order to assess the NGOs’ contribution to democracy and the legitimacy of global governance systems, the different qualities of NGOs’ involvement in international negotiations need to be distinguished. Thereby, eight stages of participatory opportunities, ranging from pure access to the negotiation rooms to being accepted as partners in norm and rule setting processes, may be identified. One can observe that the extent of openness towards NGOs often changes in the course of international negotiations. While NGOs are often included in the beginning of negotiation processes, when the delegates identify the very object of the conflict at hand, they are often excluded from more detailed discussions, especially those dealing with financial and technical transfers (Brühl, 2003). This obviously limits the NGOs’ impact on ‘really important’ issues. Final decisions are still taken by state representatives. Here, the opportunities of NGOs to enhance democracy and legitimacy are obviously rather low. This argument will be further developed in three steps. First, the mainstream literature on NGO-activity since the 1990s will be briefly sketched. It will be shown that the NGO-literature tends to be very

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optimistic, if not naïve in its evaluation of NGOs’ impact on governance processes. Only in the last decade, more critical voices have appeared, pointing to the power structures between governmental and non-governmental actors and the NGOs’ power resources. However, the power structures within the NGO-community itself are still neglected. Therefore, in a second step, the geographical background of the so-called civil society organisations will be examined more closely. It will be seen that the majority of the organisations originate from the northern hemisphere. However, even the NGOs seated in the global south represent the ideas of an elite instead of those of the people. The third part will criticise the mainstream literature and its optimistic assumptions with a focus on the differences between the negotiation settings and the quality of NGOs’ inclusion.

Discovering new actors: Strengths and weaknesses of NGO-literature The discipline of International Relations has been criticised for being too state centric. Although in the 1970s there was a rather intensive debate on transnational politics (for example Keohane and Nye, 1972), it has taken another two decades for intense research on non-state actors to begin. NGO-literature in the early 1990s: Detecting new actors in international relations Since the 1990s, International Relations (IR) scholars have been increasingly interested in the roles that non-state actors play in world politics. This is due to the fact that at that time, countless non-governmental organisations (NGOs) entered the stage of world politics. The occurrence of NGOs in international relations derives from a set of developments. Not only has the number of NGOs grown tremendously over the last decades, but they have also become more visible and gained in standing on the domestic as well as on the international level (Heins, 2008, p. 2). In addition, the social and political functions of NGOs as well as their political roles and what is expected of them has changed (Demirovic, 1996, p. 3). NGOs were, for example, invited to take part in the series of world conferences organised by the United Nations in the 1990s (Clark et al., 1998). In this setting, they were allowed to communicate their views to governmental delegations. Furthermore, NGO representatives spoke in the formal setting. Both, of course, aimed at convincing political actors of their point of view. In the following years, NGOs were increasingly invited to take part in international negotiations such as

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the conferences of the parties of international regimes (Willets, 1996). In the early 1990s, International Relations scholars documented the work of the NGOs and demonstrated that NGOs were not only important actors in development cooperation, but also in the human rights sector or environmental policy. Several case studies illustrated NGOs’ work and stated that they were influential both in norm building as well as norm implementation processes (for example Clark, 1995; Gordenker and Weiss, 1995). The NGO-literature offers two different explanations for the emergence of the new actors in international relations. One strand of literature argues that the more encompassing inclusion of NGOs in formerly intergovernmental negotiations results from globalisation. According to this strand of argument, globalisation processes contribute to the proliferation of transnational problems. Since neither governments nor intergovernmental organisations are able to handle these problems in an adequate manner, new actors such as NGOs and business actors are included in the governance systems (Keohane and Nye, 2000, p. 12). Thus, governance is not limited anymore to governments but is also executed “without government” (Rosenau and Czempiel, 1992). Apart from globalisation, other external factors contribute to the inclusion of non-state actors in governance processes, as research points out. The global ecological crisis in particular has been identified as an important challenge for intergovernmental governance systems (Princen and Finger, 1994). The second strand of literature focuses on the internal factors that contribute to the new roles of NGOs, rather than on the external ones. International Relations scholars argue that the NGOs themselves have changed during the last decades by going through a process of professionalisation. Professionalisation means, for example, that NGOs which are active in the United Nations appoint personnel of an appropriate educational and professional background to represent the organisation in the context of the intergovernmental organisation, establish NGO offices close to UN locations, or set up a special section within their international headquarters dedicated to its UN-relations (Frantz and Martens, 2006; Martens, 2006b). NGO-research at the end of the 1990s: Integrating NGO-research into the debate on governance systems Early NGO-research focussed on the roles and actions of NGOs in order to emphasise the growing importance of these actors in international relations. Most publications were single case studies that investigated the work of a specific NGO or the activities of different NGOs in a

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single-issue area, for example an international regime. In the following years, the focus of NGO research shifted. NGOs’ work was no longer looked at as a separate issue, but rather as part of a more encompassing trend of the so-called diffusion of actors. In other words, research interest broadened, and the new governance systems were investigated comprehensively instead of isolating single aspects like the NGOs. NGO-research became part of the global governance discourse – which might still be conceptualised as a heterogeneous research agenda. Scholars stated that various non-state actors had gained power in the governance systems (for example Keck and Sikkink, 1998). Accordingly, political authority was increasingly dislodged from the sovereign state towards transnational policy-networks and functionally specific ‘spheres of authority’ (Rosenau, 1999; Sending and Neumann, 2006, p. 651). NGOs contributed to the establishment of new governance systems that have shifted from international to global governance (Brühl and Rittberger, 2001). Global governance is characterised by the decreased salience of states and the increased involvement of non-state actors in norm- and rule-setting processes and compliance monitoring (Brühl and Rittberger, 2001, p. 2). In comparison to this, international governance is more state-centric. This shift from international towards global governance was mostly judged positively as enhancing democracy and the legitimacy of governance systems. This assessment was based on two assumptions. Firstly, the limitations of the state-centric system of international governance were underlined (Brühl and Rittberger, 2001). Globalisation processes seemed to impede the attainment of governance goals massively, for example the defence function of governance (the safeguarding of a certain population and territory against war), the ensurance of legal certainty (rule of law) or the distribution of welfare (and thus the reduction of the gap between rich and poor). The international governance systems’ inability to achieve their governance goals mainly derives from four governance gaps. (1) The jurisdictional gap results from the fact that public policymaking is still predominantly national in both focus and scope (Kaul et al., 1999a, p. xxvi), even though many political challenges today are global. (2) The operational gap is created by a lack of policy-relevant knowledge and policy instruments to respond to the daunting complexity of policy issues (Reinicke and Deng, 2000, p. vii). (3) The incentive gap arises from the deficits in the implementation of international agreements due to an insufficient follow-up (Kaul et al. 1999a, p. xxvi). Whereas these three governance gaps undermine the output-dimension of legitimacy, the forth gap reduces its inputdimension. (4) The participatory gap emerges from the exclusion of the

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general public or particular stakeholders from international institutions’ deliberations and decisions. As the number of decisions made at the international level constantly increases, the participatory gap becomes more salient. According to research, the addressees of norm and rule setting processes strive for direct participation on the international level. Secondly, one assumed that NGOs were capable of narrowing the existing governance gaps. By admitting NGO delegates to take part in governance processes, the participatory gap could be diminished. The voice of the people thus would not only be represented by its officials but much more directly by civil society organisations. The inclusion of all possibly affected parties in the process of decision-making would mean a movement towards the core principle of democratic political deliberations. IR-research conceptualised NGOs as the transmission belt between civil society and international organisations that facilitated the inclusion of a wide range of arguments in the deliberations (Florini, 2000; Keck and Sikkink, 1999). Only few authors refer to the NGOs’ various regional backgrounds. Although they acknowledge that southern NGOs are underrepresented in international relations and do not have adequate means of presenting their arguments in the political processes, they highlight that NGOs might contribute to the democratisation of global governance. Generally, they are agreed on the judgement that international organisations’ institutional arrangements for empowering NGOs are appropriate (Steffek and Nanz, 2008, p. 12). Furthermore, NGOs could contribute to narrow the jurisdictional gap by taking part in the so-called jurisdictional loop that connects the national and the international level (Kaul et al., 1999b, p. 466) and the operational gap due to their well-based expertise in specific issue areas. Even the incentive gap might be decreased by the NGOs’ political involvement. If one assumes that non-compliance may derive from the incapacity of fulfilling the norms and rules, NGOs could help to implement the norms adequately. First, they could act as ‘norm teachers’ by reminding the states on existing regulations and helping them to raise the resources needed to act in accordance with the norms. Second, they could interact with other actors (international organisations, like-minded states or other civil society actors) in order to persuade the non-compliant state to change its behaviour (Risse et al., 1999). In both cases, NGOs contribute to socialisation processes and thereby act as agents of the transnational civil society by ‘creating the basis of a global polity: not a world government but something of a common culture with broadly shared values’ (Florini, 2000, p. 237).

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Weaknesses of NGO-research The short summary of the NGO-research of the twentieth century shows that the inclusion of NGOs was assessed as a positive development. NGOs’ participation in international negotiations was assumed to render the governance systems more democratic and effective as it made the voice of the people heard. This exclusively optimistic judgement, however, suffers from two flaws: the lack of accountability of the NGOs and the neglect of power relations in NGOs’ policy. During the last years, NGO accountability has been the subject of controversial discussion. While some authors state that NGOs contribute to the narrowing of governance gaps – as mentioned above – others raise critical questions, the two most important being: ‘To whom are NGOs accountable? Whom do they represent?’ (Martens, 2006a, p. 698). The majority tends to regard NGOs as representatives of the people’s voice as they are civil society organisations. There are, however, far more pessimistic views, too, that judge NGOs as undemocratic and unrepresentative organisations, since ‘they are neither elected nor paid by the population of the countries where they operate and therefore insulated from both electoral and marketplace mechanisms of control’ ( Jarvik, 2007, p. 219). Some sources even doubt any overriding importance of NGOs accountability. These authors argue that only those political actors who take legally binding decisions for a collective community need to be truly accountable to the public (Beisheim, 2001, p. 123). NGOs, in contrast, only try to exert influence on the decision-making processes, but do not decide on specific issues. Therefore the question of accountability may be neglected (e.g. Beisheim, 2004). But the discussion on NGOs’ accountability bears still another problematic aspect: NGOs are treated as units, as black boxes, that might be equated. Thereby the NGO-literature duplicates the shortcomings of the neorealist theory that likewise conceptualised states as ‘units’. Unlike neorealist theory, however, the NGO-literature does not take into account power relations as a relevant factor of political processes. Since power is one of the key concepts of political science, it is surprising that most literature on NGOs omits this concept. This attitude might have its roots in the generally positive connotation of NGOs: ‘When it comes to NGOs, we prefer to immerse ourselves in the warm and comfortable discourse of participation and partnership than to engage with questions of power and politics’ (Michael, 2004, p. 16). Consequently, the dimension of power has only recently entered NGO-research and is mainly rooted in the relationship between states and NGOs (e.g. Dany, 2007). NGOs’ power is characterised as

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agency-centred and based on communicative skills and immaterial resources (knowledge and reputation). This conceptualisation of power obviously differs from the neorealist one which refers to material power resources such as economic and military assets. Studies on the discursive power of non-state actors highlight the relevance of symbolic capital, linguistic rules and social practices in international negotiations. Non-state actors use their non-material power resources and employ it successfully, thereby acting as ‘discursive entrepreneurs’ (Holzscheiter, 2005, p. 738). As the number of matters of insecurity, uncertainty and incomplete knowledge steadily increases, the NGOs’ influence increases, too, so that (material) power relations become more and more indistinct for all actors involved (Holzscheiter, 2005, p. 743). Thus, NGOs manage to persuade decision-making actors to represent their interests, for example to sign the Rome Statute of the International Criminal Court (ICC) (Deitelhoff, 2006).

Conceptualising power relations in the NGO community While the subject of power relations between states and NGOs has gained increasing attention in recent years, power relations within the NGO-community itself are rarely investigated. Most of the research in IR does not differentiate between specific NGOs, thus neglecting, among other aspects, the difference between non-state actors coming from the global south or the northern hemisphere. It is therefore worthwhile to take a look at empirical studies that investigate the different NGO-groups more closely. Contributions focus for example on the issue areas of development and human rights. In development policy, the power relations between northern and southern non-state actors have been discussed in some detail. As NGOs from both parts of the world are supposed to cooperate closely in this field, the discrepancy of power resources becomes obvious. In the 1950s and 1960s, the relationship between northern and southern NGOs was characterised by the dependency of the latter on the former (Fowler, 1998). Southern NGOs, conceptualised as the recipients of development assistance, were dependent on the money coming from northern governments and NGOs (Michael, 2004, p. 1). In the 1980s and 1990s, the concept of partnership between northern and southern NGOs had replaced the donor-recipient model in which one partner gives something and the other receives it (Kajese, 1987, p. 81; Harrison, 2007). Originally influenced by the notion of international solidarity in the 1970s and 1980s, the partnership concept aims at a close

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cooperation of northern and southern NGOs in order to overcome development disparities. Nowadays, partnerships of that kind are attributed to optimise the use of scarce resources, increase sustainability, and improve beneficiary participation in development activities (Lister, 2000, p. 228). In recent years, however, the partnership concept has been criticised for being rather ineffective. Partnership implies a positive interaction between partners. It ‘is a value-laden term with strong normative overtones about what form a relationship between partners should take’ (Harrsion, 2007, p. 397). Instead of functional connections between equal partners, most partnerships were until recently ‘a dialogue of the unequal’, hindered by ‘an asymmetry of power that no amount of well-intentioned dialogue can remove’ (Elliott, 1987, p. 65). Although not all partnerships are strongly hierarchic, at least some power asymmetries do exist (von Freyhold, 1998, p. 15). Today, the power structures in the NGO community seem to have become more sophisticated. Northern NGOs have increasingly moved their strategy from implementing projects directly towards funding local NGOs. These then transfer the money to more informal voluntary organisations and village groups. Thus, a new power relation has arisen in the southern NGO community (Harrison, 2007, p. 390). With a view to this development, it seems to be useful not only to distinguish between northern and southern NGOs, but also between the two subgroups in the south. Apart from development policy, power relations between NGOs have been investigated in the human rights discourse. Time and again the human rights discourse has been criticised for its Eurocentrism. Empirical studies, for example from the women’s rights movement, demonstrated that only northern NGOs were able to act as norm entrepreneurs and thereby put their issues on the agenda ( Joachim, 2001). Thus, NGO-activism has even deepened the power asymmetries between north and south in general. The conceptualisation of human rights as individual rights marginalised other interpretations of human rights such as collective rights. These alternative understandings were formulated by southern NGOs, but were neither taken into account nor implemented adequately (Spivak, 2004). These observations concerning development and human rights discourse may serve as a starting point for the investigation of power relations in the NGO community in general. This includes both the power relations between northern and southern NGOs and the relations among the southern NGOs. In IR, both aspects so far have been mostly neglected (an exception is Holzscheiter and Hahn, 2005).

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Exclusion of southern NGOs from international deliberation fora In order to analyse the power relations in the NGO community adequately, it is necessary to sketch the formal negotiation-settings in which the NGOs interact with one another. As the only legitimate global organisation, the United Nations (UN) may here serve as an informative reference point. The UN was the first intergovernmental organisation to grant nonstate actors official participatory opportunities. Article 71 of the United Nations Charter enabled the Economic and Social Council (ECOSOC), one of the UN’s main bodies, to make appropriate arrangements for consultations with non-governmental organisations. ECOSOC subsequently decided to distinguish between three different groups of NGOs. The broader the focus of an NGO’s work, the more extensive are the participatory opportunities granted (ECOSOC Res. 2/3). The idea of a hierarchy of NGOs and corresponding participatory opportunities is still valid. In the meantime, though, the number of NGOs applying for and receiving accreditation by ECOSOC has increased tremendously. While in 1946 only 41 NGOs were granted consultative status by the council, today more than 3.100 NGOs are officially accredited to ECOSOC. Most of them gained that status in the 1990s and later (Brühl, 2003, p. 61). In comparison to the NGOs accredited before the end of the Cold War, the new ones spring from far more heterogeneous backgrounds. Some come from countries in the global south, others from the western hemisphere and, to a lesser extent, from the Middle East and East European countries. These NGOs were mostly rooted regionally or nationally, whereas the longer accredited organisations mostly worked on an international level. Still, the regional distribution of the NGOs on the whole remains imbalanced. In 2007, 66 per cent of the accredited NGOs came from Europe and North America. The situation has improved in terms of representation: in 1996, 79 per cent of all NGOs were based in these two regions.1 Other UN-arrangements show similar traits of an imbalanced regional representation concerning NGOs. Most of these arrangements are rather new, since other main bodies of the UN, such as the General Assembly or the Security Council only recently opened up to NGOs. Several times the General Assembly invited NGOs to take part in multi-stakeholder dialogues, such as the UN reform process in 2005. In these meetings different representatives of the major groups were allowed to sketch their positions. The Security Council made use of the Arria-Formula to profit

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from the expertise of certain NGOs. The practice of Arria-Formula meetings originates in March 1992 when the then president of the Security Council, Ambassador Diego Arria (Venezuela), invited non-state conflict parties to an informal meeting. Since then, several Arria-Formula meetings have taken place, but they are not official meetings of the Security Council. They are convened at the initiative of a Security Council member in order to get to know the views of individuals, organisations or institutions on matters within the competence of the Security Council. NGOs are often invited to share their standpoints. In both cases, though, most of the NGOs included came from the northern part of the world. The UN itself has officially welcomed its opening-up for non-state actors. The so-called Cardoso-Report on the UN and civil society (United Nations, 2004) proposes inter alia to further strengthen UN civil society engagement through establishing multi-stakeholder approaches and partnerships and opening up the Security Council and General Assembly deliberations for non-state actors. The report, however, neglects the regional contexts of the organisations and does not conceptualise power relations between NGOs and states. Some northern NGOs and governments, however, are aware of the problematic geographic imbalance. Thus, some international conventions’ secretariats, some OECD-states, and even some large international NGOs provide travel grants in order to enhance the southern NGOs’ participation in international relations. Only few IR-scholars refer to the empirical data that clearly demonstrate the imbalanced representation of NGOs with regard to their geographical origin. They point out that the NGO community represents and reproduces the north-south division (Beyer, 2007, p. 532). According to Ngaire Woods, particularly transnational NGOs with their predominantly northern membership distort the inequalities of power and influence in world politics even further (2001, p. 97). She argues that transnational NGOs only add yet another channel of influence to those people and governments who are already powerfully represented. Gary Johns (2004, p. 55) shares her point of view and raises the question: ‘What value do Northern NGOs add to debate, given that they are already articulate within their nations, and they already have access to the media and to private philanthropy?’. He thus puts the assumption of mainstream IR-literature that the input dimension of legitimacy is enhanced by the inclusion of NGOs into question. Other IR-authors highlight the humanitarian intent of NGOs, arguing that the regional background is less important than NGOs’ objectives

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when it comes to assessing their legitimacy (Toulmin, 1999). Again other authors contradict this assumption and underline the negative effects that may accompany a humanitarian intent: ‘This [the humanitarian interest] can result in a paternalistic helper syndrome developing which requires the global problems of poverty and environmental destruction in order to maintain its rationale for existence’ (Demirovic, 1996, p. 6). Furthermore, the aims that NGOs have, seem to correlate with their regional background. According to a survey with nearly 600 NGO leaders southern NGOs are more interested in economic factors such as international trade, capacity building and technological transfer than northern NGOs ( Johns, 2004, p. 56). To sum up the first step of the argument, legitimacy of international decision-making is not enhanced by the sheer inclusion of NGOs in international deliberations, since northern NGOs dominate the discourse in quantitative and qualitative terms. The high percentage of northern NGOs, being active in international settings allows them to be more influential compared to their southern counterparts.

Representational imbalance within the NGOs of the global south Even if the number of NGOs from the global south taking part in international deliberations increased, this would not mean that the voices of the majority of the people would be heard. There are two reasons for this. First of all, southern non-state actors face severe budget constraints. Sometimes these organisations do not have educational, technical, and financial capabilities which would be necessary in order to exert an influence on international relations (Dingwerth, 2007, p. 44) – starting with fundamental matters like expenses for travel to the negotiation settings. Second, and more importantly, the southern NGOs do not necessarily represent the majority of their countries’ population. ‘Like political leaders though, NGOs leaders are an elite’ ( Johns, 2004, p. 52). During the last years, the number of southern NGOs has increased notably. There are two explanations for this development. First, it is argued that the NGOs emerge due to the population’s discontent with their respective country’s politics. Most of the southern NGOs are staffed ‘largely by middle-class professionals who are not satisfied with the performance thus far of governmental or business institutions in reaching and adequately meeting the social and economic needs of the poor’ (Smith, 1987, p. 87). These citizens thus become active themselves, for

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example by founding a NGO and lobbying on the national as well as on the international level. A second approach presumes, by contrast, that southern NGOs are always a product of the politics of the northern hemisphere. They may be regarded as ‘a cadre developed with foreign support in order to replace the existing elite’ ( Jarvik, 2007, p. 223). Though both explanations disagree over the origins of southern NGOs, they share the assumption that civil society is not only a space of representation, but also of exclusion and control, characterised by conflicts about ‘who’ is empowered or ‘what’ is resisted. There are differences between people’s feelings of shared experience, personal well-being and perceptions of risk and reward (Amoore and Langley, 2004, p. 105). Power relations in the southern NGOs as well as in the relationship between NGOs and civil society are thus of high relevance. Post-colonial studies argue that these power relations need to be conceptualised within a historical framework (Loomba et al., 2005). In other words: southern NGOs are a product of colonial history; they represent the southern elite rather than the southern people. According to Gayatri Chakravoty Spivak (1998; 2004), NGOs from the global south are ‘the old colonial subject transformed into the new domestic middle-class urban radical’ (Spivak, 2004, p. 527). Therefore, southern NGOs are out of touch with the rural poor – the majority of the people. Only the urban elites are able ‘to understand and state a problem intelligibly and persuasively for the taste of the North, in itself proof of a sort of epistemical discontinuity with the ill-educated rural poor’ (Spivak, 2004, p. 531). In order to give the rural poor a voice, centuries of oppression and lack of education would have to be undone. Spivak’s argument is based on a close analysis of Indian society where four different societal groups can be distinguished: (1) dominant foreign groups, (2) dominant indigenous groups on the all-India level, (3) dominant indigenous groups at the regional and local levels, and (4) the subaltern class. The latter is very heterogeneous in its composition and its make-up differs from region to region. All subalterns have in common that they are removed from lines of social mobility. The differences among the subalterns ‘could and did create many ambiguities and contradictions in attitudes and alliances’ (Spivak, 1988, p. 284), which is another reason why they are not represented on the international level. Subalterns, as well as the other societal groups which differ in terms of competences and resources, exist in every state. Learning from the insights of post-colonial studies would thus mean to focus more closely on the power structures in southern civil society before stating that the inclusion of southern NGOs enhances the international relations

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legitimacy. On the contrary, NGOs inclusion could even contribute to a further strengthening of the elites instead of a more effective representation of the people.

Uneven inclusion of NGOs in international negotiations Mainstream IR-research has not only been power-blind in terms of assessing the NGOs’ roles and interaction with the people, but has also oversimplified the negotiation settings, into which NGOs are (sometimes) included. In order to draw a more complex picture, it is useful to distinguish in a first step between formal and informal negotiation settings. The former follow definite rules of procedure and strictly define the participatory opportunities. Participation may thus take different forms. Its two extreme forms are that NGOs are allowed to act as ‘normal’ participants in the negotiations on the one side, and to completely exclude them from the deliberations on the other. Whereas the United Nations, as mentioned above, provide NGOs at least with some participatory opportunities, other intergovernmental organisations such as the World Trade Organisation (WTO) do not admit NGOs at all. In other words: the range of different modes of participation for NGOs in the various intergovernmental organisations is enormous. A closer look at the different formal negotiation settings within the UN clearly shows that participatory opportunities here vary widely, too. Sometimes NGOs are only allowed to attend the sittings and listen to the state representatives’ separated from the diplomats (for example on a balcony). Sometimes they are asked to give group statements at the end of the negotiations, and sometimes they are even allowed to give individual speeches whenever they wish to do so. Summed up, there may be eight different forms of participatory opportunities (Brühl, 2003): (1) NGOs do not have the opportunity to take part in the international deliberations at all. They may possess at least some participatory opportunities, namely are allowed to attend the deliberations, either (2) in the same room as the delegates or (3) seated separately on a balcony in the same room. In the latter case, they are not able to distribute their written statements and comments themselves or to interact with the diplomats unofficially. In most UN settings, NGOs are not only allowed to attend the meetings, but to make their position heard. The UN thus grants NGOs expanded participatory opportunities. Here, a distinction between negotiation settings in which NGOs are only allowed to give speeches in a certain phase of the negotiations (mostly at the end of the deliberation) and others in which they may take the floor during

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the entire course of the negotiation process has to be made. In both forms of these expanded participatory opportunities, NGOs might either give group statements (4, 5) or individual speeches (6, 7). Finally, (8) they may be granted the same participatory opportunities as diplomats, that is, to really take part in the decision process at hand. Most NGO-literature neglects these variations in participatory opportunities and generalises them as expanded participatory rights in all negotiation settings. In investigating formal settings, it becomes obvious that this is far from correct. In many negotiation settings, NGOs possess only simple or expanded participatory opportunities up to the giving of group statements. The settings in which NGOs are allowed to speak are not yet optimal either, since more often than not the group statement has to be formulated and negotiated in advance. As the negotiation process between the NGOs is often hierarchical, only the large international NGOs may get their position represented. In addition, IR-literature does not take into account that NGOs with expanded participatory rights may loose that status at any time. An empirical study on participatory rights of NGOs in environmental negotiations demonstrated that chairpersons of negotiation settings often decide to continue deliberations in an informal setting in order to enhance the probability of finding a consensus (Brühl, 2003). Questions regarding the technological and financial transfer between north and south are thus discussed in small groups called ‘Friends of the Chair’ or ‘Friends of the Secretariat’ etc. As NGOs are usually excluded from these informal sittings, they are not able to exert influence in the very last negotiation phase. This means that the overall trend of increased participatory rights is an uneven one. Although an increasing number of negotiation settings have opened up for NGOs, their inclusion is restricted to specific situations. This uneven inclusion of NGOs in international settings may be explained within the framework of resource-dependence models. The diplomats involved depend on certain resources provided by NGOs. The two most important are expertise (especially in environmental issues with their often rather complicated causes and effects) and a legitimisation of negotiations. To meet these needs, diplomats open up the formal sittings in early negotiation situations, but close the doors as soon as the bargaining process on financial and technical issues starts. As a consequence, the voice of the people – even if it was true that NGOs functioned as a mouthpiece of the people – is ignored in the most important phases of negotiation, namely those in which important decisions are taken.

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Conclusion As the reflections above demonstrate, the optimistic assumption of NGOs having a legitimising effect on international negotiations has to be put into question. As the existing literature proves, research has examined the issue from a rather naïve perspective so far and suffers from two deficits. Firstly, NGOs are mostly characterised as a black box; power relations within the NGO-community and in the relationships between NGOs and states are neglected. The massive differences between the various NGOs call for measures to ensure an equal or close to equal representation of both northern and southern NGOs. Here, the development of a system of checks and balances is needed. In this regard, it is important to keep in mind that even a stronger integration of southern NGOs in international negotiations would not necessarily guarantee an adequate representation of the respective people’s interests, since many NGOs are elite organisations. The civil society of the southern countries is in need of better information about the workings of NGOs in order to decide whether the founding of more grassroots organisations serves their purpose. A second critique of the optimistic NGO literature takes the negotiation settings into account and highlights that NGOs are only partly included in the negotiations. Even if NGOs represented the voices of the people, these voices would only be partially heard. Further research on the topic is therefore necessary, and this should focus on the differences between NGOs and the negotiation settings. The idea that NGOs represent the people and therefore contribute to more legitimate governance systems is misleading.

Notes I would like to offer thanks to Carolin Anthes for her support and helpful suggestions. 1. See http://www.globalpolicy.org/tables-and-charts-ql/ngos-tcql/32120.html.

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T. Risse, S. Ropp and K. Sikkink (1999) The Power of Human Rights (Cambridge: Cambridge University Press). J. N. Rosenau and E.-O. Czempiel (eds) (1992) Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press). J. N. Rosenau (1999) ‘Toward an Ontology of Global Governance’, in M. Hewson and T. Sinclair (eds) Approaches to Global Governance Theory (Albany: State University of New York Press), pp. 287–301. O. J. Sending and I. B. Neumann (2006) ‘Governance to Governmentality: Analyzing NGOs, States and Power’, International Studies Quarterly, 50, 3, pp. 651–72. B. H. Smith (1987) ‘An Agenda of Future Tasks for International and Indigenous NGOs: Views From the North’, World Development, 15, Supplement 1, pp. 87–93. G. C. Spivak (1988) ‘Can the Subaltern Speak?’, in C. Nelson and L. Grossberg (eds) Marxism and the Interpretation of Culture (Urbana/Chicago: University of Illinois Press), pp. 271–313. G. C. Spivak (2004) ‘Righting Wrongs’, The South Atlantic Quarterly, 103, 2/3, pp. 523–81. J. Steffek and P. Nanz (2008) ‘Emergent Patterns of Civil Society Participation in Global and European Governance’, in J. Steffek, C. Kissling and P. Nanz (eds) Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Houndmills/Basingstoke: Palgrave Macmillan), pp. 1–29. S. Toulmin (1999) ‘The Ambiguities of Globalization’, Future, 31, 9/10, pp. 905–12. United Nations (2004) We the Peoples: Civil Society, the United Nations, and Global Governance, report of the Panel of the Eminent Persons on United Nations – Civil Society Relations (A/58/817) (UN: New York). M. von Freyhold (1998) ‘Beziehungen zwischen Nicht-Regierungsorganisationen des Nordens und des Südens: Erkenntnisse und Annahmen’, Peripherie, 19, 71, pp. 6–30. P. Willets (ed.) (1996) The Conscience of the World: The Influence of NonGovernmental Organizations in the UN System (London: Hurst & Company). N. Woods (2001) ‘Making the IMF and the World Bank More Accountable’, International Affairs, 77, 1, pp. 83–100.

9 Regulating NGO Participation in the EU; a De-Facto Accreditation System Built on ‘Representativeness’? Justin Greenwood

Expectations and demands often arise that NGOs should be able to demonstrate features of ‘representativeness’, and that their ability to do so is frequently related to the legitimacy of the group in general and in particular to their right to participate in public policymaking (see Halpin and McLaverty in this volume). Raymond Plant1 has argued that Once groups seek to have a direct influence upon the political process and once they are drawn into the circle of consultation over policy they are no longer seen as just civil society organisations, and it is appropriate and important for the health of democratic policy making that searching questions are asked about representativeness and accountability. (Plant, 2003, p. 106) Representativeness may thus become a condition for policy participation, either in de jure or de facto accreditation systems or as part of a wider system of regulating participation. As interest groups perform such an institutionalised part of the wider EU political system, it therefore provides an appropriate setting through which to examine the conditions attached to participation, and in particular expectations surrounding ‘representativeness’. How appropriate is the criterion of ‘representativeness’ in a context where most interest groups are associations of other associations?

The role of interest groups in the EU political system Interest groups in most democratic political systems are utilised for their expert input, as a means of wider civil society participation, and 200

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in pursuit of wider democratic goals, often accompanied by varying rules of engagement aimed at reducing the ‘negative externalities’ popularly associated with ‘lobbying’. The EU political system is no different, except that all of these features are present in heightened measure, arising from resource limitations and from its relatively tenuous democratic connections. The policy initiation, drafting and monitoring powers of the European Commission, in particular, make interest groups their ‘natural constituency’. For the former point, Nugent’s figure of 0.8 staff in the European Commission (responsible, inter alia, for drafting policy proposals and monitoring their implementation) per 10,000 EU inhabitants set against 300 civil servants per 10,000 in the member states (Nugent, 2006) is startling. In these circumstances there is bound to be an increased reliance upon input from outside interests, which in turn raises questions and issues of legitimacy and which is likely to give rise to a set of expectations which may well extend into a regulatory framework underpinning participation. The other reason for the EU’s reliance upon interest groups arises from its tenuous democratic connections, grounded in the absence of any of the usual mechanisms to bring ‘politics to the people’, such as an adversarial system of ‘government and opposition’, recognisable EU political parties, an EU-wide media, the limited powers of the European Parliament, and from the lack of ‘we-feeling’ (Hrbek, 1995) about being European. In consequence, less than half of European citizens turned out in the last European Parliament elections (and around a quarter in the member states eligible to vote for the first time). In such circumstances interest groups are expected to play the role of ‘unofficial opposition’ in the EU political system, and part of the rules of engagement are framed around empowering them with the means to act as proxies for civil society, and as accountability agents upon the EU political system and each-other. Article 11 of the newly consolidated (after the Treaty of Lisbon) Treaty on European Union thus casts interest groups as agents in a democratic role supplementary to that of representative democracy: 1. The institutions shall, by appropriate means, give citizens and representative associations the op portunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

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3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. (Council of the European Union, 2008, p. 26) Interest Groups are highly institutionalised, to the extent that most NGOs organised at EU level receive most (up to as much as 90 per cent) of their funding from EU political institutions (a few notable exceptions refuse to seek it). A good many such groups (and most notably, the lead umbrella groups in their category such as the European Social Platform and the European Environmental Bureau) came into being through the deliberate prompting and support of the European Commission itself, in a purposeful search for partners capable of acting as demand agents for further European integration upon member states, and in pursuit of connections to ‘civil society’. Most NGOs are associations of other associations, and a highly organised system of coordinated ‘families’ of thematic NGOs has emerged, often with a designated or de facto dialogue partner nominated by the European Commission. Even the ‘outsider’ groups are relatively elite and professionalised in approach (Balme and Chabanet, 2008). Some of the Commission services have highly institutionalised ‘dialogues with civil society’ in which a wide range of groups are able to participate in a variety of activities described by officials as ‘decision shaping’ (Michel, 2008), and in one variation even of delegated authority to draft legislative proposals together. There are substantial mechanisms of procedural democracy which rely on interest groups acting as elite guardians of civil society interests to operationalise them, such as, inter alia, access to documents, registers of transparency, and an internet portal for public consultations allowing for open deliberations.

Access, accreditation and representativeness Despite this high degree of institutionalisation, access is relatively easy with a prevailing ‘open doors’ policy. A landmark statement by the European Commission on ‘an open and structured dialogue between the Commission and Special Interest Groups’ records in its opening statement that The Commission has always been an institution open to outside input. The Commission believes this process to be fundamental to the development of its policies. This dialogue has proved valuable

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to both the Commission and to interested outside parties. Commission officials acknowledge the need for such outside input and welcome it. (Commission of the European Communities, 1992, p. 3) On these grounds, the same policy document goes on to link this to an explicit reason not to use any system of accreditation: The Commission has a general policy not to grant privileges to special interest groups, such as the issuing of entry passes and favoured access to information. Nor does it give associations an official endorsement by granting them consultative status. This is because the Commission has always wanted to maintain a dialogue which is as open as possible with all interested parties. (Commission of the European Communities, 1992, p. 4) Similarly, in the run-up to the Commission’s 2008 European Transparency Initiative (ETI) (reviewed in further detail later), the responsible Commissioner commented that I have been very attentive to this danger of giving special privileges to an accredited group of lobbyists. There will be no accreditation. (Kallas, 2007) This position was reinforced by a statement from the European Parliament when the Commission had appeared to waver on the question of accreditation in its White Paper on Governance of that year (European Commission, 2001): however indispensable it may be to consult relevant groups and experts when drafting legislative proposals in particular, it should not be allowed to add a further level of bureaucracy, for instance in the form of ‘accredited organisations’ or ‘organisations with partnership agreements’. (European Parliament, 2001, para 11e) the creation of consultation standards must not be tied to any quid pro quo on the part of organisations of civil society because independent and critical public opinion is essential for a vibrant democracy. (ibid., para. 12)

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Despite these apparently unequivocal statements, there is evidence of a much more equivocal position in the Commission. In the 2001 White Paper on Governance the prospect of ‘more extensive partnership arrangements’ was floated for groups which could meet certain standards cherished by the European Commission, including that of representativity: With better involvement comes greater responsibility. Civil society must itself follow the principles of good governance, which include accountability and openness. The Commission intends to establish a comprehensive on-line database with details of civil society organisations active at European level, which should act as a catalyst to improve their internal organisation. (European Commission, 2001, p. 15) Creating a culture of consultation [...] should be underpinned by a code of conduct that sets minimum standards [...] These standards should improve the representativity of civil society organisations and structure their debate with the Institutions. (op. cit., p. 17) In some policy sectors, where consultative practices are already well established, the Commission could develop more extensive partnership arrangements. On the Commission’s part, this will entail a commitment for additional consultations compared to the minimum standards. In return, the arrangements will prompt civil society organisations to tighten up their internal structures, furnish guarantees of openness and representativity, and prove their capacity to relay information or lead debates in the Member States. (ibid., p. 17) The approach of an explicit system of privileged access for some brought protest not only from the European Parliament but also from the governments of the UK and the US (Greenwood and Halpin, 2007). This emphasis upon the essential role of groups in a vibrant democracy by injecting independent and critical public opinion provides a significant contra-stand to the emphasis upon interest group representativeness as a precondition for participation, and provides a caricature of the opposite ends of the spectrum of the debate on the extent to which policy participation requires conformity to certain standards for interest groups. In response to the criticisms of the Parliament, the

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Commission notably softened its discourse thereafter, although elements of its thinking remain visible in its practice. It appears in a rather modified format in the Commission’s 2002 Communication ‘General principles and minimum standards for consultation of interested parties by the Commission’ (European Commission, 2002): openness and accountability are important principles for the conduct of organisations when they are seeking to contribute to EU policy development. It must be apparent: – which interests they represent – how inclusive that representation is. Interested parties that wish to submit comments on a policy proposal by the Commission must therefore be ready to provide the Commission and the public at large with the information described above [...] if this information is not provided, submissions will be considered as individual contributions. (European Commission, 2002, p. 17; emphasis added) Notable in the above are: the disappearance of the explicit reference to ‘more extensive partnership arrangements’ (considered in further detail below) in return for meeting certain standards; the focus upon inclusive representativeness; and the linkage between representativeness and consultation status. This latter linkage indicates the presence of a de facto system of accreditation, despite the Commission’s explicit denial of a de jure one. The linkage between consultation status and representativeness remains dormantly embedded within the 2008 European Transparency Initiative ‘lobby regulation’ scheme (the subject of later analysis), despite also the explicit denial of its link to accreditation described above. The ambiguity on accreditation is also directly present in the Communication on Consultation statements on the concept of representativeness, and seemingly acknowledging the points emphasised by the European Parliament. This has been surmised by Greenwood and Halpin as the Commission taking an ‘each-way bet’ as to the weight it places upon this characteristic of groups: The Commission would like to underline the importance it attaches to input from representative European organisations [...] however, the issue of representativeness at European level should not be used as the only criterion when assessing the relevance or quality of

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comments. The Commission will avoid consultation processes which could give the impression that ‘Brussels is only talking to Brussels’ as one person put it. In many cases, national and regional viewpoints can be equally important in taking into account the diversity of situations in the member states. Moreover, minority views can also form an essential dimension of open discourse on policies. On the other hand, it is important for the Commission to consider how representative views are when taking a political decision following a consultation process. (European Commission, 2002, pp. 11–12). For further guidance on the significance given to ‘representativeness’ it is necessary to turn to its interpretation in practice. The immediate aftermath of the White Paper on Governance (WPG) saw the launch of the CONECCS (Consultation, the European Commission and Civil Society) internet public access database on interest groups, which ran until 2007 when it was closed in favour of a successor scheme being developed under the European Transparency Initiative. This was aimed initially at informing the Commission services which groups to consult with (and therefore carrying consequences for groups not on the database), and later at translating into practice some of the aspirations expressed in the WPG about upgrading the capacities of groups. Thus, a significant rule was that in order to be accepted onto the database groups needed to have at least three members in EU or candidate member states, thus ruling out access for significant ‘advocacy’ groups like Statewatch. It is notable that geographic representativeness is the feature that is stressed here, to go alongside the characteristic of ‘inclusiveness’ that is stressed in both the 1992 and 2002 Communications (and a general preference in all bureaucracies to speak to groups which are ‘one stop shops’). For the CONECCS scheme, alongside other declarations which groups were required to make of themselves before they were permitted to make an entry on the database, the presence of a set of exclusions implies a de facto accreditation scheme. Partnership arrangements: De-facto accreditation? The established and ongoing tradition of ‘partnership arrangements’ between a number of the Commission services and interest organisations is open to interpretation as a tiered access system. Some of these arrangements are long-standing, such as a formalised partnership between DG Development of the European Commission and CONCORD (European NGO Confederation for Relief and Development), acting as a designated

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umbrella platform of Development NGOs, and which ensures a spread of national member confederations. DG Development publishes a set of ‘guidelines for participation’ in the Dialogue (European Commission, 2004). Also of long standing is the European Consumer Consultative Group (of the European Commission), involving structured dialogue with national and EU consumer organisations, and which carries with it strict eligibility criteria based upon geographic representativeness as well as consumer mission (European Commission, 2003). Of the less formalised (though no less embedded) dialogues, DG Environment has an established and ongoing programme of exchanges with EU environmental groups extending up to Commissioner level, and DG Employment has its dialogue with social and union organisations. DG Employment has nominated organisations to serve on committees on the basis of their representativeness (Michel, 2008). The latter Directorate also hosts the highly formalised EU ‘Social Dialogue’ process in which business and union organisations are empowered to draft legislation under certain circumstances. At the cross-sectoral level, this involves the designation of certain organisations as participants, with periodic probes of ‘representativeness’ conducted by independent evaluators. A more recent (1998) ‘Dialogue with Civil Society’ has been developed by DG (External) Trade of the European Commission, with organisations seeking to participate requiring to pre-register, involving providing details (inter alia) of the number of members (‘encompassingness’) and the regional distribution of members (‘geographic’). Notable features include its breadth (around 800 across producer and citizen oriented organisations), provision for travel expenses to participating organisations, and an inner core ‘contact group’ to help shape the dialogue. A key evaluation report describes the process in the terms the Commission would like to see, that of ‘a voice not a vote’ (ECORYS, 2007), reflecting some of the tensions in the way the dialogue is viewed among its diverse participants, although some have seen in it deliberative overtones (Goehring, 2002). One of the architects of the DG Trade Dialogue took his ideas with him on promotion as the Director General of DG Sanco (Health and Consumer Protection) of the European Commission. He has introduced a ‘structured dialogue’ between organised civil society and DG Sanco’s scientific advisory committees aimed at democratising the provision of technical expertise, and appointed a stakeholder dialogue group to advise it on ways of enhancing stakeholder involvement (Kohler-Koch and Quittkat, 2008). In DG Sanco, the European Health Forum has a mixture of invited

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members and occasional participants drawn from producer and citizen interest organisations, with representativeness of sector a criterion of membership (Kroeger, 2008). Living with representativeness Beyond these ‘sectoral’ dialogues, the ‘usual’ suspects generally turn up as an ‘inner core’ for various functions. The European Social Platform, and the European Citizen Action Service, are prominent among these, although the latter’s niche occasionally involves distancing itself from over institutionalisation. Both of these groups were recruited to support and develop the ‘governance’ reforms introduced by the White Paper on Governance (Michel, 2008). The European Social Platform, meanwhile, enjoys privileged ‘behind the scenes’ high level access to some ‘Social Dialogue’ events, and was designated as the lead organisation for the ‘Forum of Civil Society’ parallel to the Convention preparing the 2004 Constitutional Treaty. Meanwhile, the choice by a Commissioner of the European Citizen Action Group (ECAS) as the venue to launch her new landmark ‘Plan D for Democracy’ initiative was a highly strategic one. It is unsurprising in such circumstances that the heads of ‘family’ umbrella NGOs groups such as the European Social Platform and the European Environmental Bureau see the possibility of consolidating their position through ‘extended partnership arrangements’ embodied in a system of interest group accreditation. The European Social Platform has accepted from the outset of the Commission’s deliberations, the principle of geographic representativeness for EU groups to observe (European Social Platform, 2000; see also European Social Platform 2002). A former Chair of the organisation argued when in office that I personally do believe that we will need to have a system of accreditation for NGOs [...] I believe that NGOs need to establish criteria for transparency in relation to decision making, in relation to membership, accountability and funding. (Alhadeff, 2003, p. 103) The European Environmental Bureau (EEB) is another ‘family’ organisation which has followed its interests by favouring an accreditation system (Fazi and Smith, 2006). Like the Social Platform, the EEB is a creation of the Commission for institutionalised dialogue purposes, and remains the lead player in the formal dialogue between DG Environment

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and the ‘G10’ informal grouping of environmental organisations. Like the Social Platform, accreditation would formalise its status, and give it an institutionalised edge over other members of the EU environmental ‘family’ (mainly European branches of international organisations) as a dedicated EU federation. The European Social Platform has therefore found common cause with Business Europe, the principal EU business group, which has advocated an accreditation scheme with criteria that very closely reflect its own status as a designated principal social partner organisation. These are based upon a high threshold of ‘representativity’ criterion, centred upon geographic coverage and the ability of members to speak in turn for their own constituencies. But there is no business/NGO alliance, because, in addition to these criteria, is Business Europe’s proposal that organisations must be demonstrably independent of public authorities in terms of finance. Because most citizen interest organisations operating at EU level receive funding from EU political institutions, this measure would exclude virtually all of them from accreditation ( Jacobs, 2003). Groups such as Business Europe, the European Social Platform, and the European Environmental Bureau, which are associations of associations, can easily meet criteria for ‘representativeness’ – whether of the geographic, or encompassingness, variety – by reciting their associational members and, in turn, the number of members which these associations represent. Associations in which companies are direct members can also demonstrate how they match up to these measures. For European policy offices of international organisations, such as Greenpeace or Amnesty International, identifying the number of members, and branches in territorial settings, is a means of demonstrating a form of ‘representativity’. There are, however, a significant number of organisations which are unable to satisfy any operationalisation of ‘representativity’, because their mission is simply to raise a cause in public policy debate, and a constituency is virtually impossible to ‘organise’, such as environmental issues, prisoners, or animals (see Halpin and McLaverty in this volume). In these cases, organisations have to rely upon networks of advocates, but given that their raison d’être is issue advocacy, these indicators of ‘representativity’ have little real meaning. An alternative approach geared at finding a path to legitimacy which is not based on representativity is a proposed ‘European Union Concordat’ (NCVO, 2006) to mirror ‘compacts’ developed in a number of national contexts (including Canada, Croatia, Estonia, France, Latvia, Poland and the UK) between national governments and lead voluntary

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sector organisations. These national compacts include statements of mutual obligations and expectations without being legally binding, and commit organisations to indicating how interests were involved in formulating their positions, and to present accurate information based on unbiased research. The proposed EU Concordat version contains a stipulation that civil society organisations should explain how they arrived at their response to policy consultation (NCVO, 2006). This seems to offer a flexible alternative in which groups can apply the criteria appropriate to the type of legitimacy they claim, be it expertise, representativeness, or deliberation. Permitting discretion in application always carries with it problems of unevenness, but such problems may be less than those of a blanket application of criteria which may be inappropriate for groups whose legitimacy is not based around representativeness. Nonetheless, the White Paper on Governance agenda for groups reflects widespread recognition within the Commission that the groups it talks to can be far removed from grassroots levels, and its 2002 Communication on Consultation recognises that the dialogue it has with groups can be seen as little more than ‘Brussels talking to Brussels’ (European Commission, 2002, p. 12). There is evidence in support of these anxieties (see Sudbury, 2003). This is a considerable source of frustration for a system desperate to acquire popular legitimacy, and a constant source of angst to it that its main investment in seeking to acquire it – dialogue with interest groups – pays few dividends in this respect. For this reason, ‘representativeness’ frequently churns up on its agendas in a state of constant doubts. It currently remains in a dormant state while bigger battles are fought over the establishment of the European Transparency initiative, the successor to CONECCS. The 2008 European Transparency Initiative (ETI) and representativeness One plausible interpretation of the development of the ETI is of a new Commissioner coming into office searching for a successful issue to mark his term of office with, and NGOs seeking to put corporate interests on the back foot, eager to provide him (and his key advisors) with one (see, in particular, Cini, 2008; de Clerck, 2007, p. 33). ‘Lobby Transparency’ was always likely to be a success for both parties, with a ready constituency of mutual support (or tough encouragement) capable of mobilisation. Business interests have responded with a counter-agenda in which questions about the funding of NGOs (particularly by EU institutions), and the relationship between

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NGOs and citizens, have placed such organisations on the back foot. The ETI has developed a public Internet database of interest representatives involving (for now) voluntary registration, disclosure of various details, and confirming adherence to a code of conduct. The main political battleground has settled upon how appropriate a voluntary scheme is, and at the current time of writing, there appear to be insufficient organisations of the type the Commissioner seemed to most have in mind (public affairs consultancies) signing up to the scheme. The scheme seems to be creeping towards mandatory provision, which, as explained below, is less open to interpretation as an accreditation scheme than is a voluntary one. The voluntary scheme is linked to incentives for registering (consultation alerts) and negative incentives (responses made to consultation exercises treated as ‘individual contributions’ with the same weight attached to those of a private individual) for failing to register. The ‘Frequently Asked Questions’ section stresses that There are no privileges attached to registration. Registration does not constitute an accreditation and does not lead to access to any privileged information. This is why registered organisations should not present their registration as an accreditation or any form of official recognition by the Commission. (European Commission, 2007) The only access stipulation is that registrants must sign up to a code of conduct limited to seven basic rules and principles. With one exception these are undemanding, and the contents of the code have not been the setting for any significant battles thus far. The most significant item in the code, however, appears to be rule four, which states that interest representatives shall always ensure that, to the best of their knowledge, information which they provide is unbiased, complete, up to date and not misleading. This rule is significant because it raises issues of accountability by civil society organisations for the information placed in front of policymakers. This is an entirely different avenue to pursue from that of ‘representativeness’, and, as is discussed in the concluding section of this chapter, provides a rather more appropriate route to seeking to strengthen the potential for participatory democracy to contribute to

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wider democratic legitimacy. This is because participation in shaping public policy measures requires accountability to the wider set of stakeholders upon whom policy initiatives are addressed. Filling in the registration form for the ETI involves a series of steps of validation, and failure to fulfil certain steps (including details of membership spread for NGOs and other organisations) means that an entry cannot be made. Similarly, false and misleading information entered into the register can result in suspension or exclusion from it. These criteria mean that the scheme does therefore hold accreditation overtones, in that any access controls imply accreditation. The disclosure of information accompany registration includes, inter alia, an invitation to NGOs and ‘other organisations’ to list members and the countries in which membership is held. Registrants are asked to describe the structure of their organisation and to specify the countries where they have members or are represented. If the organisation consists entirely of members that are natural persons, registrants should specify how many. If it consists of member organisations which themselves have members that are natural persons, registrants should specify how many of these organisations there are, their names and the number of their members that are natural persons. (European Commission, 2008) The registration form for trade associations and trade unions, however, includes no such requirement. It is possible to read too much into this distinction, in that the registration scheme has been something of a muddle on a whole variety of issues of detail since its launch in June 2008, and the main interest of the Commission has been the ‘headline’ issue of how many organisations have registered within twelve months of establishment (a threshold date to decide on whether to make the register mandatory). In short, the responsible Commissioner – and his deputy Head of Cabinet who has been closely associated with the scheme from the beginning – has had bigger fish to fry than fretting over the final detail, and in any event the Commissioner will be out of office by the time the twelve-month threshold deadline has passed. There is no cadre of administrators scrutinising and strictly enforcing the detail of every entry, with the scheme relying upon ‘whistle blowing’ to expose any deficiencies. For trade associations there is a form common with that of ‘in-house’ (company) lobbyists for whom the concept of spread and number of members is inapplicable, and it

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seems the simple point of administrative convenience of streamlining forms also helps to explain why trade associations and unions are not required to demonstrate their representativeness. There may even be a general presumption of ‘representativeness’ of such organisations, in that each can easily reel off lists of its members, and where federated, how many are indirectly represented. Nonetheless, to date the ‘representativity’ agenda has been somewhat simmering in the background in the vigorous debate over the ETI, and thus far the CONECCS requirement for membership in three countries has not been taken up in the successor ETI database. The next stage in the ‘lobby regulation’ scheme of the ETI is an inter-institutional code between (at this stage) the European Commission and the European Parliament, and the gradual shift of discourse among those responsible for taking decisions about the scheme seems to be focusing on the question of mandatory registration. It may be some time yet before the spotlight comes back to ‘representativity’, although the present incentive-based scheme makes it an accreditation scheme in all but name. Should the scheme become mandatory then the need for these incentives – and in particular the issue of those not on the database – is removed, and therefore the question arises once more as to whether it constitutes an accreditation scheme. There is a legitimate view which simply sees it as no more than a transparency initiative, but this is contradicted to some extent by the access criteria rehearsed above. Should the scheme further develop access criteria then there can be no doubt in its interpretation as an accreditation scheme, not least because the act of exclusion constitutes de facto provision.

Conclusion: Towards accountability? Once the main battleground over the establishment of the European Transparency Initiative has passed and whether it is to be mandatory or voluntary, the issue of group ‘representativeness’ may come to the fore once again. If it becomes translated into a minimum threshold for participation – or tiers of participation – it becomes an accreditation scheme, the prospects for development of a ‘participatory democracy’ legitimacy strand for the EU seem unlikely to be enhanced, because ‘representativeness’ provides no foundation for equal treatment for groups whose legitimacy is quite reasonably based instead upon raising a cause and injecting it for treatment by public policy. A critical point in the turn of the debate lies in the type of organisations which participate at EU level. A system beyond the national level

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will always tend to have groups which are predominantly associations of other associations, and for whom ‘representativeness’ is not only easy to meet but a ready weapon to use to establish one’s own credentials and to challenge those of others. Producer groups are mainly federated, and are likely to continue to use ‘representativeness’ as a convenient weapon against NGOs. EU NGOs themselves are overwhelmingly federated in nature, and in a power struggle to reach the top of the tree they are likely to become drawn into arguing for a system of accreditation based on who is the most representative – whether of the ‘geographic’ or ‘encompassingness’ type. The larger advocacy organisations, such as Amnesty International and Greenpeace, and even those without a ‘human’ constituency (such as Birdlife International), and which tend to have ‘policy office’ outlets in Brussels, can play the ‘representativeness’ game by pointing to the number of countries in which they are established and the number of individual members they have. This leaves as the most exposed those smaller advocacy groups, which raise perhaps less popular (but nonetheless sharply felt) causes, and which have never needed to build a large constituency of ‘members’. If the representativeness agenda becomes linked once again to participation, then such groups will either be relegated to second status, or need to divert their energies into developing a network of members. This may be difficult to achieve for groups with less ‘popular’ causes and/or very limited funds, and involve significant opportunity costs. If such groups are less able to bring issues to the policy-making table, the quality of democracy itself is likely to be damaged. Finding a boundary point between ‘voice’ and ‘participation’ is elusive, but the issue is solved once regulatory schemes attach to participation certain conditions. The alternative for smaller advocacy groups to conditions based upon representativeness remains a challenge. ‘Representativeness’ is ‘do-able’ in terms of administrative interpretation and will always have powerful constituencies in support of it, and may therefore explain its relative popularity in regulatory schemes. The alternative seems to lie in self-regulatory schemes, or in the type of scheme being developed under a stronger type of regulatory patronage, such as the ‘compact’ scheme reviewed earlier. NGOs themselves have been developing self-regulatory responses, including some aimed at applicability beyond the nation state, such as an ‘International NGO Charter’ which has attracted one prominent EU NGO as a signatory (as well as international NGOs active on the EU scene), but which has yet to establish itself. As a self-regulatory scheme, this has attracted the predictable criticism of a lack of efficacy (see, in particular, Vibert 2006; 2007), relying as it does upon NGOs to

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report upon their own performance in meeting its provisions through their Annual Reports, and lacking in sanctions. The ‘compact’ agenda described earlier seems to be gathering pace, at least at national level, where a number of countries have sought to find a mid-way model between self-regulatory and legal enforcement through mutual endorsement by government and the voluntary sector, and additional mechanisms. The UK, for instance, now has a ‘Commission for the Compact’ with staff and an office, which has raised in a recent discussion paper the prospect of legal enforcement (Commission for the Compact, 2008), while the Conservative opposition has pledged an ‘Office of Civil Society’ as a commitment ahead of the next UK general election. As discussed, the Compact in the UK includes the flexible requirement for voluntary organisations to explain how they arrived at a policy position, allowing for the possibility of drawing upon a range of legitimacies which extend well beyond ‘representativeness’. As with the EU Code of Conduct for Interest Representatives adopted under the ETI, it also contains an undertaking by voluntary organisations (analogous to ‘interest groups’ in the ETI context) to ensure that the information they present to Government is accurate and that any research has been conducted in an objective and unbiased manner. (Commission for the Compact, 2000, p. 4); This appears to concede the duty for public accountability, and in accepting this undertaking, interest groups seem willing to travel this path to strengthening the potential of participatory democracy. Notably, the UK voluntary sector has now moved the prospect of an ‘EU Concordat’ similar in concept to the ‘compact’ idea. This proposes that the European Parliament would be charged with responsibility for scrutinising the Concordat, and continues the provision found in the UK compact that civil society organisations would be obliged to explain how they arrived at their response. This was published by the UK National Council of Voluntary Organisations (NCVO, 2006) in 2006, and, has yet to come to prominence, not least because its present provisions incorporate so many demands of EU institutions as to make it appear one-sided, and difficult in the detail for EU institutions to administratively implement given the various constraints they face. Nonetheless, it has attracted a steady constituency of support, and is championed by federated (including NCVO’s counterpart EU federated organisations) and other types of NGOs (most notably, the European

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Citizen Action Service). In concept it may contain in it the model which becomes a solution, and which represents a ‘half way house’ between regulation based upon representativeness, and laissez-faire. The ‘concordat’ is not a panacea in concept, because it seemingly ‘fudges’ the questions of compliance and sanctions. Any move towards the latter practice then becomes an accreditation scheme, with all the barriers to access associated with that. An accreditation scheme may ultimately be unavoidable, because any type of threshold standard for participation implies a de facto one, although the ‘concordat’ concept is at the lower end of the spectrum. In its present guise, it is notable by avoiding any use of the ‘representativeness’ conundrum, and by the flexible accountability accorded by the obligation upon NGOs to explain how they arrived at their policy positions. Ultimately, it is accountability – rather than representativeness – which seems to be the critical ‘magic bullet’, which in turn raises questions about the constituencies and types of accountabilities, and the degree of sanctions which can be attached (Bovens, 2007). ‘It’s about participation, stupid’ (Edler-Wollstein and Kohler-Koch, 2008, p. 195) – certainly – but the enrichment which participatory democracy may be able to bring to ‘democratic legitimacy’ hinges not so much on ‘representativeness’, but rather upon a range of issues surrounding accountability.

Note 1. Professor of Jurisprudence and Political Philosophy at King’s College, University of London, Master of St Catherine’s College Oxford from 1994–2000 and a Labour Peer in the House of Lords with the title of Lord Plant of Highfield.

References R. Balme and D. Chabanet (2008) European Governance and Democracy; Protest and Power in the EU (Lanham: Rowman and Littlefield). M. Bovens (2007) ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal, 13, 4, pp. 447–68. M. Cini (2008) ‘European Commission Reform and the Origins of the European Transparency Initiative’, Journal of European Public Policy, 15, 5, pp. 743–60. Commission for the Compact (2000) Consultation and Policy Appraisal: A Code of Good Conduct, available at http://www.thecompact.org.uk/shared_asp_files/ gfsr.asp?nodeid=100320, date accessed 17 April 2009. Commission for the Compact (2008) Debating the Future of the Compact, available at http://www.thecompact.org.uk/information/101779/discussionpaper/, date accessed 22 December 2008. Commission of the European Communities (1992) An Open and Structured Dialogue between the Commission and Special Interest Groups, SEC (92) final,

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http://ec.europa.eu/civil_society/interest_groups/index_en.htm, date accessed 17 December 2008. Council of the European Union (2008) Consolidated Versions of the Treaty on European Union and the Treaty of the Functioning of the European Union, 6655/1/08 REV1, available at http://ue.eu.int/uedocs/cmsUpload/st06655-re01.en08.pdf, date accessed 15 June 2009. P. De Clerck (2007) ‘A Matter of Interest’, Public Affairs News, March, p. 33. ECORYS (2007) A Voice not a Vote: Evaluation of the Civil Society Dialogue at DG Trade, available at http://www.acp-eu-trade.org/library/library_detail.php?doc_ language=en&library_detail_id=3638, date accessed 18 December 2008. P. Edler-Wollstein and B. Kohler-Koch (2008) ‘It’s about Participation, Stupid. Is It? – Civil Society Concepts in Comparative Perspective’, in B. Jobert and “B. Kohler-Koch (eds) Changing Images of Civil Society: from protest to government (London: Routledge), pp. 195–214. European Commission (2001) European Governance: A White Paper COM(2001) 428, 25.7.2001, available at http://ec.europa.eu/civil_society/ngo/docs/ communication_en.pdf, date accessed 17 December 2008. European Commission (2002) Communication from the Commission: Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM(2002) 704 final, available at http://ec.europa.eu/civil_society/consultation_standards/index_en.htm, date accessed 17 December 2008. European Commission (2003) ‘Commission Decision of 9 October 2003 setting up a European Consumer Consultative Group’, Official Journal of the European Union, L 258/35, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2003:258:0035:0036:EN:PDF, date accessed 19 December 2008. European Commission (2004) Guidelines on Principles and Good Practices for the Participation of Non-State Actors in the Development Dialogues and Consultations, available at http://ec.europa.eu/development/body/theme/ngo/ngo_usefuldocs_en.htm, date accessed 18 December 2008. European Commission (2007) European Transparency Initiative (ETI) – Frequently Asked Questions (FaQ) on the Commission’s Register for Interest Representatives, available at http://ec.europa.eu/transparency/docs/reg/FAQ_en.pdf, date accessed 19 December 2008. European Commission (2008) How Can You Register Your Organisation?, available at https://webgate.ec.europa.eu/transparency/regrin/infos/howtoregister.do, date accessed 19 December 2008. European Commission (2009) Code of Conduct for Interest Representatives, available at https://webgate.ec.europa.eu/transparency/regrin/infos/codeofconduct.do; REGRINSID=j22mJyTVCTn7QLtkj2wsvPGf7rTvgYTJ3wL1RdClNwfGZQzNpS1 Y!1672003321, date accessed 17 April 2009. European Parliament (2001) Committee on Constitutional Affairs: Final Report on the Commission White Paper on European Governance, A5-0399/2001, available at http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//NONSGML+ REPORT+A5-2001-0399+0+DOC+PDF+V0//EN&L=EN&LEVEL=2&NAV=S&LST DOC=Y, date accessed 17 December 2008. European Social Platform (2000) Response of the Platform of European Social NGOs; The Commission and Non-Governmental Organisations: Building a Stronger

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Partnership, 27 April, available at http://ec.europa.eu/civil_society/ngo/ commun/contributions.htm, date accessed 19 December 2008. European Social Platform (2002) Submission to Consultation Document ‘Towards a Reinforced Culture of Consultation and Dialogue’, 30 July, available at http:// ec.europa.eu/civil_society/ngo/commun/contributions.htm, date accessed 19 December 2008. E. Fazi and J. Smith (2006) Civil Dialogue: Making it Work Better, available at http://act4europe.horus.be/module/FileLib/Civil%20dialogue,%20making%20 it%20work%20better.pdf, date accessed 19 December 2008. R. Goehring (2002) ‘Interest Representation and Legitimacy in the European Union: The New Quest for Civil Society Formation’, in A. Warleigh and J. Fairbrass (eds) Influence and Interests in the EU: The New Politics of Persuasion and Advocacy (London: Europa), pp. 118–37. J. Greenwood and D. Halpin (2007) ‘The European Commission and the Public Governance of Interest Groups in the European Union: Seeking a Niche between Accreditation and Laissez-Faire’, Perspectives on European Politics and Society, 8, 2, pp. 190–211. R. Hrbek (1995) ‘Federal Balance and the Problem of Democratic Legitimacy in the European Union’, Aussenwirtschaft, 50, pp. 43–66. G. Jacobs (2003) Suggestion for Amendment of Article 34, presented to European Convention 2003/4, available at http://european-convention.eu.int/Docs/ Treaty/pdf/34/Art34JacobsEN.pdf, date accessed 19 December 2008. S. Kallas (2007) ‘Lobbying: What Europe can learn from the US’, speech to the American Chamber of Commerce EU Plenary meeting 18 September 2007, speech/07/544 of 18/09/2007, available at http://europa.eu/rapid/ pressReleasesAction.do?reference=SPEECH/07/544&format=HTML&aged=0& language=EN&guiLanguage=en, date accessed 17 December 2008. B. Kohler-Koch and C. Quittkat (2008) Governance with Civil Society – EU Style, paper prepared for presentation to ARENA seminar, University of Oslo, 4 September, available at http://www.arena.uio.no/events/seminarpapers/2008/ kohler-koch.pdf, date accessed 18 December 2008. S. Kroeger (2008) Nothing but Consultation: The Place of Organized Civil Society in EU Policy-Making across Policies, European Governance Papers No. C-08-03, available at www.connex-network.org/eurogov/pdf/egp-connex-C-08-03.pdf, date accessed 19 December 2008. H. Michel (2008) ‘Incantations and Uses of Civil Society by the European Commission’, in B. Jobert and B. Kohler-Koch (eds) Changing Images of Civil Society: From Protest to Governance (London: Routledge), pp. 107–19. NCVO (National Council for Voluntary Organisations) (2006) The European Union Concordat: Proposal of Some Key Principles and Undertakings, available at http://www.ncvo-vol.org.uk/index.asp?id=2810&terms=European%20Union% 20Concordat, date accessed 19 December 2008. N. Nugent (2006) The Government and Politics of the European Union, 6th edn (Basingstoke: Palgrave Macmillan). R. Plant (2003) ‘NGOs – Some Reflections on the Debate’, in European Policy Forum (eds) NGOs, Democratisation and the Regulatory State (London: EPF), pp. 105–6. I. Sudbury (2003) ‘Bridging the Legitimacy Gap in the EU: Can Civil Society Help to Bring the Union Closer to Its Citizens?’, Collegium, 26, Spring, pp. 75–95.

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F. Vibert (2006) International NGOs: An International Code of Conduct. An Approach Paper, available at http://www.epfltd.org/images/Publication%20NGO%20 Approach%20Paper%20March%202006.pdf, date accessed 21 July 2009. F. Vibert (2007) NGO Codes of Conduct: Monitored Self-Regulation? European Policy Forum 2007, available at http://www.epfltd.org/NGO%20CODES%20OF%20 CONDUCT%20MONITORED%20SELF%20REGULATION%20v2.pdf, date accessed 22 December 2008.

10 NGOs’ Power of Advocacy: The Construction of Identities in UN Counter-Human Trafficking Policies Kristina Hahn

Non-governmental organisations (NGOs) have become increasingly influential in international politics, particularly since the ‘world conferences’ within the framework of the United Nations (UN). Some scholars even speak about a ‘power shift’ between states and NGOs (Mathews, 1997). The still growing strand of NGO-literature within the field of international relations most often focuses on the ways in which NGOs can influence states or international organisations. The academic interest in NGOs has not decreased since the 1990s, but the tendency towards more critical and sceptical accounts of the work and influence of NGOs can be observed. Even though early studies on the influence of NGOs in world politics point at certain critical aspects related to their work, NGOs, in general, are seen here as moral players fighting for a common good. Attempts were made to evaluate the influence that they had in international policymaking, the general assumption being that their influence was something positive which contributed to better or more democratic international governance. Willetts concedes that this assumption may be somewhat heroic, but he nevertheless claims it to be true in the area of human rights: There is a widespread attitude that NGOs consist of altruistic people campaigning in the general public interest, while governments consist of self-serving politicians. On some issues, such as human rights, this may be generally valid and NGOs are ‘the conscience of the world’. (Willetts, 1996, p. 11) NGOs were considered to speak for the underserved, disenfranchised, or otherwise disempowered populations (Bluemel, 2005, p. 157): 220

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‘International NGOs claim to speak on behalf of affected communities and thus bring into international institutions perspectives from people affected by international policies and projects, but normally excluded from global or national policy making’ (Sikkink et al., 2002, p. 312). However, the critical voices are getting louder. It is doubted that NGOs are always ‘doing good’. It is also doubted that they represent the voices of disenfranchised populations. New and critical perspectives on the activities of NGOs in international politics have developed. In particular, the North/South relations within networks have proven to be a thorny issue which has provoked much discussion, in academia as well as in ‘real life’; scholars have analysed the North/South imbalances between NGOs (for example, Edwards, 2000), and Southern NGOs challenge the role of international NGO spokespersons (Nelson, 2002, p. 150; Hudson, 2000). Increasingly, the internal decision-making processes in NGOs are also focused on. Scholars raise questions regarding NGOs’ legitimacy and accountability (for example, Aamore and Langley, 2004; Collingwood and Logister, 2005; Edwards and Hulme, 1996; Fox and Brown, 1998; Beisheim, 2001; Florini, 2004; Scholte, 2004; Vedder, 2003; for an overview, see Charnovitz, 2005). This academic turn is mirrored by activities in the NGO-sector where – increasingly – initiatives emerge which critically evaluate the activities and accountability of NGOs.1 NGOs’ ‘codes of conduct’ are developed inside and outside the NGO-community,2 and international organisations are increasingly investigating the accountability of NGOs (Hudson, 2000, p. 3). Since NGOs base their activities, to a large extent, upon the claim that they are speaking for disempowered populations, some authors question whether they are, in fact, acting for the benefit of these persons, especially when the NGOs’ beneficiaries are in the developing world and the NGOs are based in industrialised countries (Hudson, 2000). In this context, the relationship between NGOs and those persons they claim to speak for is much more critically addressed, raising inter alia questions of NGOs’ ‘right to representation’, especially with regard to the North/South-context of NGO-campaigns: ‘While international NGOs often work as agents on behalf of disadvantaged people in developing countries, how can we be sure that the outcomes are to the liking and benefit of the intended beneficiaries?’ (Courville, 2006, p. 274; see also Hudson, 2000; ICHRP, 2003). In the framework of this new and critical strand of literature, innovative perspectives on NGOs’ power also evolved. These studies focus on different power relationships to those of NGOs with states, international organisations etc. and analyse, for example, the power relations

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and imbalances within NGO-networks (aspects which Keck and Sikkink mention in several concluding remarks, but do not address systematically). Bob (2005), for example, evaluates the ways in which local social movements attract the attention and support of their Northern NGOcounterparts. He compares successful cases of local movements which established ties with transnational ally-NGOs with unsuccessful cases within the same regions of the world. Contesting the assumption that NGOs and local movements engage each other on an equal footing, he shows that international NGOs choose their clients on a market model of supply and demand, which emphasises the power dynamics among non-governmental actors, hidden structures and hierarchies (Bob, 2005). In a similar direction, Hertel analyses how activists within a network manage to influence the way in which human rights are framed in transnational campaigns. She explores strategies by which actors – who are materially and politically less powerful – are able to transform the normative context of these campaigns (Hertel, 2006). Hertel states that ‘leading scholars have pioneered in identifying transnational networks and explaining the puzzle of why they emerge, but they have spent less time exploring the material and normative differences among actors within the same network’ (Hertel, 2006, p. 9). Both authors move away from focussing exclusively on the possible influence of NGOs on states, towards a broader understanding of the power relations within NGO networks (see, also, Aamore and Langley, 2004). In this paper, I concentrate on one very specific case – the open claim of NGOs to act as advocates for their beneficiaries while participating in policymaking processes. I argue that this case deserves special attention since here, relations of power are involved between the persons concerned and their ‘advocates’. In this context, it is necessary to introduce some clarification with regard to the objects of my study which are advocacy NGOs and their beneficiaries. The definition of advocacy NGOs and their beneficiaries Various types of NGOs exist, ranging from small, local groups to large multinational entities that manage large budgets and employ hundreds of people. To make a first differentiation, it is common to distinguish between those NGOs that mainly provide services versus those whose main function is advocacy (see Martens, 2005; Teegen et al., 2004). Service NGOs provide their target groups with support and resources (relief, shelter, food or technical assistance) whereas advocacy groups try to influence political processes and to introduce their objectives to decision-makers. Most groups struggling for rights can be subsumed

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under the latter label (Martens, 2005, pp. 30f.).3 Advocacy NGOs work on behalf of others who lack the voice or access needed to promote their own interests. Therefore, advocacy NGOs have certain imaginary or real ‘clients’ whom they serve and the improvement of whose fates is the driving-force of NGO-formation. According to some authors, examples of these clients include ‘people afflicted with HIV/AIDS, ethnic minorities threatened with genocide, certain animal and plant species facing extinction, and women denied access to public services and opportunities for advancement’ (Teegen et al., 2004, p. 466). Underlying my argument is a distinction between ‘mute clients’ like plants or animals on the one hand, and people who are theoretically in a position to speak for themselves on the other hand.4 The first group may be named ‘social purpose’ or ‘public interest’ NGOs whereas the latter are those speaking for their intended ‘beneficiaries’.5 In the following, I will focus on advocacy NGOs speaking for beneficiaries and who are involved in political activities, be this through agenda-setting, norm and rule formulation (for example through incorporation in official delegations) or through general participation and lobbying. These groups can typically be found in the area of human rights policy and in defending the causes of a specific populace, for example women, child-workers etc. Such groups openly claim to speak for these ‘others’ who are not included in the political decision-making process and therefore need the NGOs as advocates. I argue that this case deserves special attention because the way in which advocacy NGOs speak for their ‘clients’ has important power effects on their beneficiaries. These power effects are quite difficult to detect, since they do not result from a ‘classic’ direct exercise of power, but from ‘soft’ and diffuse discursive processes. These power effects become visible if one underlies a Foucauldian concept that focuses on the productive force of discourses. I will illustrate this with an example of NGOs active in the anti-human trafficking field. Table 10.1

Typology – NGOs speaking as advocates for others

NGOs Advocacy NGOs

Social purpose groups (e.g. environmental NGOs)

Service NGOs

NGOs acting as advocates for beneficiaries (e.g. children, women, prisoners)

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NGOs’ power of advocacy: Discursive power and its ‘political effect’ The definition of power that is most common today and underlies most studies, in particular in international relations, is Dahl’s definition of power as ‘A’s ability to get B to do what he otherwise would not have done’ (Dahl, 1957). Studies dealing with NGOs’ power – which most often focus on their possible influence on states – go beyond that definition by analysing NGOs’ ‘soft power’. The idea of ‘soft power’ developed by Nye (1990) constitutes an extension of Dahl’s power definition that concentrates on people’s behaviour, since with the concept of ‘soft power’ one considers cases in which one actor gets another ‘to want something else’ and thus on power effects on people’s preferences, wants and convictions and not (only) on their actions. This extension is important in order to grasp NGOs’ power on states or international organisations that rely on their ability to persuade, and framing activities (for example Keck and Sikkink, 1998; Sikkink et al., 2002). However, if one wants to grasp the discursive power relation between advocacy groups and their beneficiaries, I argue that this perspective on power is not broad enough. The power effects involved in the relationship between NGOs and their beneficiaries become particularly visible against the backdrop of a concept that takes the discursive power effects on the subjects and their identity-constitution into account. Such a concept has been brought forward by M. Foucault. Foucault acknowledges power effects that are not controlled by any single individual, but, instead, work through ‘capillaries’ and reside in networks, in structures and discourses. According to Foucault, discourses are the main carriers of power. Discourses produce the issues which are talked about (Foucault, 1977, p. 86) as well as the subjects and their identities. Foucault elaborates on this in many ways when he shows – in his studies – how certain categories evolve and persons start to understand themselves and to be understood by others as being ‘different’, as belonging to a specific category of persons. Through the discourse on homosexuality, for example, the homosexual is produced as a special subject ‘à part’ – and the sick person is defined in his or her opposition to the healthy. Here, the link between power and norm becomes pertinent, since the productive power shapes the subjects according to the norm (Foucault, 1977, p. 172). This does not imply that the subject as a person (his or her physical existence) is produced, only the subject as a kind, his or her identity in the meaning of a certain (social) classification of the individual is produced (Hacking,

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1999, p. 10). However, while the individual will always be exposed to power that imposes certain rules on him or her and ascribes certain identities to him or her, the individual still has a certain freedom to decide on how he or she leads his or her own life, which, in itself, can constitute an act of resistance.6 In studies on international relations, Foucault’s concept increasingly finds resonance, and current approaches take it into account (see, for example, Guzzini, 1993; Barnett and Duvall, 2005b; Berenskoetter, 2007). As Barnett and Duvall put it, these approaches ‘refer to the discursive production of the subjects, the fixing of meanings, and the terms of action, of world politics’ (Barnett and Duvall, 2005a, p. 56). With regard to the power of non-state actors, Foucault’s concept is also used (Sending and Neumann, 2006; Lipschutz, 2007; Aamore and Langley, 2004; Ebrahim, 2005). Sending and Neumann, for example, state that the current ‘governmentality’ implies the increasing involvement of non-state actors, which redefines civil society ‘from a passive object of government to be acted upon into an entity that is both an object and a subject of government’ (Sending and Neumann, 2006, p. 651). In this paper, in contrast, I focus on the ‘micro-level’ of NGOs’ activity: Foucault’s power concept is highly relevant for the discussion of the relationship between NGOs and their beneficiaries, since it helps us to analyse the productive power effects of NGOs’ discourses on their beneficiaries as the persons about whom they speak. Inspired by Foucault, I can analyse how the identities (understood as ‘discursive classifications’) of their beneficiaries are produced in NGOs’ discourses. As explained above, this does not exclude the possibility of resistance: NGO-beneficiaries, for example, as those to whom certain identities are attributed, can resist these attributions, but they always do this vis-à-vis the classifications that are available to them. In addition, Hacking states – elaborating further Foucault’s ideas – that ‘classifications [do] not exist only in the empty space of language but in institutions, practices, material interactions with things and other people’ (Hacking, 1999, p. 31). Classifications are enshrined in institutions and have an impact on persons’ legal status, et cetera, and, therefore, have strong implications for the way that these persons are dealt with (which Hacking describes as the ‘political effect’ of identity productions). In the present case, it is crucial to see what the implications of NGOs’ identityproductions are on the level of concrete policymaking. One can say that NGOs’ identity-productions have a political effect once they are ‘institutionalised’ through their introduction into high-level political forums, such as a UN negotiation.

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Applying Foucault’s concept to the case of NGOs active against human trafficking, I will, hence, in the following, investigate the identityproduction of their beneficiaries by the NGOs and the way in which these beneficiaries resist their classifications. Furthermore, I will focus on the ‘political effect’ of these identity-attributions once they enter official decision-making processes and are enshrined in international documents, such as the UN Protocol to prevent, suppress and punish trafficking in persons (adopted in 2000). I will conclude with some remarks on the possible link between the portrayal of the NGOs’ beneficiaries by their advocates and these persons’ exclusion from decisionmaking forums.

NGOs’ power of advocacy in the case of anti-human trafficking policies Anti-human trafficking policies have always been a hotly debated issue in international forums such as the UN – some even speak about an ‘ideological minefield’ (Friesendorf, 2007, p. 396). One particularly contested issue is how to deal with prostitution and its link to trafficking. Historically, since the first international concern with ‘white slavery’ at the end of the nineteenth century, human trafficking has always been associated with prostitution (see, for example, de Vries, 2005). Often, trafficking was only considered as occurring for the purpose of prostitution, and no distinction between trafficking and prostitution was made.7 This understanding of trafficking persisted during many years in several international conventions that dealt with the issue (such as CEDAW,8 for instance). However, in 1994 (with the UN Declaration on Violence against Women) a decisive step away from this understanding of trafficking was taken. The Declaration introduced a distinction between ‘forced’ and ‘voluntary’ prostitution and linked only the former to trafficking. But, this ‘new’ distinction and the separation of the issues of trafficking and prostitution did not imply that the ‘old’ understanding had been abandoned. Both viewpoints continued to exist at UN level as well as among the NGOs which were concerned with trafficking. The question of how to deal with the link between trafficking and prostitution became very controversial among anti-human trafficking NGOs and also became an issue of ardent controversy between the NGOs and (parts of their) beneficiaries, organised in prostitutes’ activists groups. NGOs continue to be divided over the issue of trafficking in persons: this conflict is particularly strong between the liberal ‘Global Alliance against Traffic in Women’ (GAATW, ‘the Alliance’) and the conservative-feminist

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‘Coalition against Trafficking in Women’ (CATW, ‘the Coalition’). The Coalition was founded in 1988 out of feminist movements that were active in the UN Decade on Women (1975–85). The Coalition was strongly influenced by one of its founders, the feminist academic Kathleen Barry and her book ‘Female Sexual Slavery’ published in 1984. In conformity with Barry’s approach, the Coalition strongly condemns prostitution which it sees as female sexual slavery. It strives for the prohibition of prostitution and sees human trafficking as being associated with prostitution. In order to combat it, the Coalition puts an emphasis on the criminal prosecution of traffickers. While the Coalition claims to act for the benefit of prostitutes and trafficked women, from the beginning, the feminists organised in the Coalition entered into strong disagreement with prostitutes’ activists. Although not morally condemning the individual woman engaged in prostitution, for them, prostitution per se was violence against women that had devastating societal consequences, devalued all women and reduced them to sex (Barry, 1984a, p. 28). Prostitutes would not be able to perceive correctly the exploitation to which they were subjected. In order to survive the situation, they would even identify themselves with their exploiters (Barry, 1984b, p. 43). In contrast to the Coalition and also as a reaction to its rising conflict with prostitutes’ groups, in 1994, the ‘Global Alliance against Traffic in Women’ was founded. It formed out of cooperation among local service-providing groups. The basic idea of the Alliance-activists was that the involvement of grassroots women should be strengthened: women who had been trafficked and prostitutes’ activists were invited to their workshops (VENA, 1994, p. 15). In opposition to the Coalition, the Alliance did not, in principal, oppose prostitution, but it strictly distinguished between trafficking and forced prostitution on the one hand, and voluntary prostitution on the other, and put an emphasis on the empowerment of trafficked persons. Besides these two NGOs, the third group that claims to have a say in the field of anti-human trafficking policies are the already mentioned self-organised prostitutes’ groups. Before and parallel to the feminist organising against trafficking during the 1980s, in several countries, especially in North America and Western Europe, women have started to organise nationally in prostitutes’ rights groups.9 The first international organising took place as well, such as the first and second ‘world whore congresses’ in 1985 and 1986 in Amsterdam and Brussels, organised by the International Committee for Prostitutes’ Rights (Pheterson, 1989). Nowadays, global networks of sex workers’ organisations10 that, in particular, include women from ‘third world’

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countries, have consolidated and continue to grow and solidify, among them the International Union of sex workers and the Network of sex work projects (NSWP). These groups aim at a decriminalisation of prostitution and an amelioration of prostitutes’ working conditions, putting a special emphasis on their recognition as workers. Regarding the issue of trafficking, the prostitutes’ organisations’ viewpoint is that many problems currently dealt with within the framework of ‘trafficking’ should be regarded as abusive working conditions in specific sectors in society, among them the sex industry, and that anti-trafficking laws should not have a negative impact on their work. They strongly contest a direct link between trafficking and prostitution. These groups are in strong disagreement with their abolitionist feminist advocates such as the Coalition (CATW). The prostitutes’ activists request to be heard in international forums and claim that it should be them (and not the NGOs) whom states should consult when drafting new anti-trafficking documents. The three groups do not only hold different viewpoints on the issue of trafficking, but also differ considerably with regard to their discursive portrayal of the persons concerned, namely, trafficked persons and prostitutes. Disputed identity-constructions: Which characterisations of trafficked persons and their ‘advocates’? The two NGO-coalitions, the Alliance as well as the Coalition, claim to be the advocates of trafficked persons, a group that is not (always) in a position to claim its own voice. However, the way in which the two groups portray their beneficiaries and describe their own roles as advocates differs considerably from each other.11 As has already been mentioned, for the Coalition the main problem behind trafficking is prostitution and it strives for the prohibition of this activity. According to the Coalition, ‘sex trafficking’ is part of the wider practice of women’s sexual exploitation which includes inter alia sex tourism, marriage markets, rape, and pornography (CATW, 1997a, p. 2). The Coalition characterises the trafficked persons’ situation with a whole bundle of factors such as ‘poverty, refugee status, ethnic conflict and war, racial discrimination, substance abuse, sexual trauma, and other social conditions’ (for example, CATW 1997b, p. 2). According to the Coalition, it is through these factors that the women are ‘driven into prostitution’. (CATW, 1998–2000, p. 7). In this context, the Coalition describes the trafficked person as a victim whose ‘bonds are not shackles of iron, but poverty’ (CATW, 1997a, p. 2). For the Coalition, prostitution and trafficking are intrinsically linked to each other and no

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difference exists between the trafficking/prostitution of adult women and children. The Coalition emphasises the trafficked persons’ extreme vulnerability. It highlights that many trafficked persons have been sexually abused before. For the Coalition, sexual abuse is one of the major factors that lead to trafficking and prostitution (for example, CATW, 2000a, p. 7). In addition, according to the Coalition, trafficked persons and prostitutes are often traumatised and drug-addicted, sometimes against their will. The Coalition, hence, portrays their beneficiaries as vulnerable and helpless victims. In contrast, the Alliance emphasises their beneficiaries’ agency – their attempt to leave the country, to migrate or work as prostitutes – which, however, may lead to situations in which these persons become vulnerable and become trafficked (see, also, GAATW 1999b, p. 22). But, even when they become ‘trapped’ in a situation which leads to trafficking, the Alliance describes cases in which women have successfully escaped (GAATW, 1999a, p. 19; 1999b, p. 22). It also emphasises women’s activities, once the trafficking situation is over, and describes their attempts to build ‘a new life’. (GAATW, 1999b, p. 12). While for the Coalition the ultimate goal is to abolish prostitution, the Alliance considers trafficking as a practice involving force, deception, and the transport of a person, and that takes place in a variety of industries. The Alliance strictly distinguishes between forced and voluntary prostitution and only understands the former as trafficking. In contrast with the Coalition for whom ‘all women’ are degraded by prostitution (CATW 1998–2000: p. 16) and no woman ever works voluntarily in prostitution (CATW 1998, p. 1), the Alliance emphasises the variety of the life realities of the persons concerned. According to the Alliance, prostitutes enter the sex industry for varied reasons and some want to stay and work there, while others wish to leave (for example, GAATW, 2000, p. 8). The same applies to trafficked people: people leave their own countries for many reasons (GAATW, 1999b, p. 17) and while some are successful, others encounter a lot of abuse and violence (for example, GAATW, 2000, p. 13). The Alliance underlines the ‘heterogeneity of realities’ regarding the women’s (and also some men’s) life situations (GAATW, 1999b, p. 26). The Alliance explicitly rejects mentioning adult women and children together: in their opinion, ‘clubbing women and children together’ would ‘fail to recognise women’s agency’ (GAATW, 1999/2000, p. 5) and ‘infantilise’ the women. Another conflicting viewpoint between the Alliance and the Coalition concerns the term ‘victim’. While both groups use the term, the Alliance has, in several instances, rejected both its usage and its implications when they state, for example,

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that ‘We work to empower women rather than treat them as victims’ (GAATW, 2000, p. 52; 1999/2000, p. 32; 1997, p. 23). The Alliance, therefore, tries to avoid the ‘victimisation’ of their beneficiaries. In contrast, they portray their beneficiaries as active persons with a variety of life experiences. The differing discursive classifications of their beneficiaries go along with a differing understanding of the groups’ own roles. The Alliance highlights that it wants to ‘empower’ the people concerned and to enter into a dialogue with them (GAATW 1999/2000, p. 20). It finds it important to facilitate gatherings of the prostitutes’ groups that are not able to set up such meetings by themselves. In sum, the Alliance understands its own role as ‘facilitator’. In contrast, the Coalition emphasises that it is important to ‘help’ those women who are often unable to help themselves or to get out of the situation by their own initiative. The Coalition thinks it ‘aids’ trafficked persons and prostitutes and ‘rescues’ them from abusive situations (CATW, 1995, p. 4). This perception of their own role can be labelled as ‘saviour’.12 The prostitutes’ groups, as the third group, in particular, oppose their portrayal by groups such as the Coalition. They highlight in their publications their important roles in society, since they are ‘engaged in an income-earning occupation which supports themselves and their extended families’ (NSWP, 1997, p. 4), thus using an activating and positive description.13 They point to the similarity of their situation with that of other workers employed in precarious jobs (for example, ICPR, 1989, p. 2), as can be illustrated by a quote from the Indian prostitutes’ group: ‘Our stories are not fundamentally different from the labourer who pulls a rickshaw in Calcutta, or the workers from Calcutta who work part-time in a factory in Bombay’ (NSWP, 1997, p. 7). In this regard, they highlight the occupational character of prostitution by naming themselves ‘sex workers’ and insist on their viewpoint that prostitution for them is a profession and not an identity. The prostitutes’ groups reject the characteristics that are ascribed to them, for example, by some NGOs. The prostitutes’ groups refuse to be seen as ‘forced’ and ‘victims’, and say that this image would only mirror the moral stance that sexual services should not be sold (NSWP, 1994, p. 1). They also reject the perception that ‘all prostitutes’ are the victims of child abuse and that these victims have no possibility of recovery (Second World Whore Congress, 1989, p. 195). According to the prostitutes’ groups, the identities that are ascribed to them lead to their exclusion from society and result in them being seen as objects of pity. Instead of being seen as a ‘homogenised’ category that shares certain characteristics,

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the prostitutes’ groups highlight the variety of their life experiences. In this context, they also acknowledge that while some women engage in prostitution voluntarily, others ‘end up in prostitution unwillingly’ or get sold into the industry (NSWP, 1997, p. 7). For the prostitutes’ group, the problems labelled as ‘trafficking’ should be understood as abusive working conditions in the context of migration, because antitrafficking policies often led to the discriminatory treatment of prostitutes who wished to migrate and rendered these persons even more dependent. The conflict between the groups became particularly ardent during the debates on an international definition of human trafficking in the UN Protocol against trafficking in persons. During the debates for the Protocol and with regard to the final document, the ‘political effect’ of NGOs’ identity productions becomes visible. Negotiating the UN Protocol against trafficking: The ‘political effect’ of the NGOs’ identity constructions The ‘UN Protocol to prevent, suppress and punish trafficking in persons’ supplementing the United Nations Convention against transnational organised crime was adopted in 2000 (entry into force in 2003). In this document, for the first time, an international definition of trafficking was established. Given the importance of the Protocol, many nongovernmental actors participated in the negotiations that took place in ad hoc committee sessions from January 1999 to October 2000. All three groups mentioned above issued statements with regard to the Protocol. The Coalition and the Alliance took part in the negotiations14 and lobbied the delegates in order to convince them to adopt their respective viewpoints on trafficking and prostitution. The NGOs raised awareness on several issues and were quite visible in the negotiation process. The statements of the three groups with regard to the Protocol mirrored the same viewpoints and identity-productions that have been elaborated on above and their conflicting viewpoints led to ardent controversy among them during the negotiations. The Coalition, for example, insisted on the focus on ‘women and children’ in the title of the Protocol and said that trafficked persons should be referred to as victims and that this term should be used in the Protocol (IHRN, 1999).15 The Alliance, in contrast, argued in favour a ‘gender-neutral language’ with no specific reference to women and children. It advocated for a strict distinction between women and children as victims of traffickers: ‘The Protocol should distinguish between adults, especially women, and children. It should also avoid adopting a patronising stance that reduces women

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to the level of children, in the name of “protecting” women. Such a stance historically has “protected” women from the ability to exercise their rights’ (GAATW and others, July 1999). In addition, the Alliance also lobbied in favour of using the terminology of ‘trafficked persons’ instead of victims in order to emphasise that trafficked persons were only victims for a certain period of time. Otherwise, as the Alliance states ‘Consistent use of the term “victim” in the context of trafficking often results in well-meaning persons proposing policies and laws aimed more at “protecting” than “empowering” trafficked persons’ (GAATW and others, July 1999). These contrasting viewpoints corresponded to the way in which the two groups portrayed their beneficiaries, by either mentioning women and children together and insisting on their status as ‘victims’ or by rejecting the ‘victimisation’ and emphasising a difference between adults and children. The viewpoints reflected in the different nominations had important consequences for the policy recommendations of the groups. The Coalition insisted on a criminal prosecution approach towards trafficking and requested a focus on ‘sexual exploitation’, in particular prostitution, as the main goals for which women are trafficked that should be mentioned in the Protocol’s definition (IHRN, 1999). According to the Coalition, only by adopting the definition of trafficking that they suggested could the ‘largest number of trafficked victims’ be protected (IHRN, 1999). This goal of ‘protection’ is often mentioned and always in the context of the punishment and prosecution of the criminals which would be the most effective way of protecting the victims from being re-trafficked (IHRN, June 2000; IHRN, October 2000). In contrast, the Alliance’s scope was wider suggesting a broader definition of trafficking that should include the wording ‘forced labour, servitude and slavery-like practices’ (HRC, without date). One of the Alliance’s main lobbying goals was to avoid the mentioning of ‘sexual exploitation’ in the Protocol definition, since they considered this term to be unspecific and misleading (HRC, without date). Instead of focusing on criminal prosecution, the Alliance highlighted the importance of an approach towards trafficking that put the human rights of trafficked persons centre stage. The Alliance, therefore, tried to convince the delegates to proscribe mandatory assistance and empowerment measures with regard to trafficked persons in the Protocol – not in order to ‘protect’ these persons or to act out of charity and ‘good will’, but due to the status of trafficked persons as ‘beholders of rights’ (GAATW and others, July 1999). The recommendations of the Alliance and the Coalition were taken into account by the state delegates and had an influence at least on the

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debate among them. State delegates who participated at the negotiations said that the NGOs were important in the process (Interview state delegate A, 2006; Interview state delegate B, 2007) and that it was also due to NGOs that the focus of the Protocol changed from a mere criminal-prosecution approach to a stronger human-rights focus (Interview UNODC, 2006, p.4). However, in terms of the concrete outcome of the negotiations, the final Protocol text, the Coalition’s positions seem to have found more resonance than the recommendations of the Alliance. While the Protocol includes some victim protection provisions, these are not mandatory for the states and the overall approach of the text is oriented towards criminal prosecution. In addition, the term ‘sexual exploitation’ that the Coalition wanted to introduce and that the Alliance rejected, was included in the definition of trafficking. This is why – overall – the two NGOs evaluated their lobbying success in the Protocol negotiations very differently. While the Alliance evaluated the Protocol as a ‘lost opportunity to protect the rights of trafficked persons’ (HRC, October 2000) and complained that ‘valuable time was lost’ when debating the definition, with the result that the issue of mandatory victim provisions were not included in the final Protocol, the Coalition spoke of a ‘victory in Vienna’ (CATW, 2000b). Apparently, the NGO that was most contested by some of its beneficiaries, namely the Coalition, in the end was most satisfied with the final Protocol, and saw most of its recommendations adopted. In this context, it is important to see that the criminal prosecution approach that the Coalition pursued resonated better with the viewpoints that most of the state delegates held than the human rights approach pursued by the Alliance. The production of their beneficiaries’ identities as ‘victims’ was equally more fitting to this setting focusing on ‘organised crime’prevention than the Alliance’s discourse focusing on human rights and empowerment. In addition, the clear message of the Coalition (abolish all prostitution) was apparently also easier to transmit to the states than the more complex message of the Alliance (Interview GAATW, 2006, p. 7). In this context, the NGOs’ role is also seen in an ambivalent way by some of the state delegates. On the one hand, they emphasised that the NGOs’ role was important in order to make the delegates recognise the trafficked persons’ needs beyond their role as witnesses in criminal proceedings (Interview state delegate B, 2007). On the other hand, the violent conflict around the definition of trafficking seemed to have complicated the debate among the delegates in such a way that there was little time left for the debate on (mandatory) victim protection. As a state delegate put it, the abolitionist NGOs had stirred up the

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debate on the definition, which had further consequences, particularly at the national level, and it was because of them that the debate on the definition took such a long time (Interview state delegate A, 2006). The identity productions of the NGOs, thus, had a ‘political effect’. They were introduced in the high-level official UN forum and even if one cannot exactly discern their influence on the final conference outcome, they at least had an impact on the negotiation process and the debates among the states. Therefore, they became further ‘institutionalised’ and via their indirect effect on the final Protocol, influenced legislation on the issue for years to come. Hence, I argue that it is not only in the relationship between NGOs and their beneficiaries that discursive power was involved, but that this productive power had a very direct (‘political’) effect on the lives of these beneficiaries. As regards the prostitutes’ groups, the NSWP published only one draft of the Protocol at the beginning of the negotiations and declared its opposition to the Protocol because of the fear that anti-trafficking measures would be an obstacle for prostitutes to practice their profession, and that the Protocol was an inadequate solution to a problem which for the NSWP consisted of abusive working conditions. As the NSWP claimed, the new draft Protocol would be ‘antithetical to efforts to protect the human rights of sex industry workers’ (NSWP, 1999, p. 2) in the same way that the previous anti-trafficking legislation was ‘more concerned with the protection of women’s “purity” than with ensuring the human rights of those in the sex industry’ (NSWP, 1999, p. 1). According to the NSWP, the new Protocol would facilitate state policies against prostitutes and against illegal migration, and would, therefore, only strengthen the interests of states to protect their borders (NSWP, 1999, p. 3). These ‘wrong’ foci of the existing anti-trafficking law and of the new draft anti-trafficking Protocol would even endanger the same persons that it allegedly purports to protect instead of guarantying their human rights. The NSWP equally rejected the identities that were attributed to them by some of their advocates, refusing to be portrayed as vulnerable victims, unable to exert any control over their fate. The prostitutes’ groups did not officially take part in the negotiations. They rejected the drafting of a new anti-trafficking Protocol altogether, since in their eyes this would have conflated prostitution with trafficking once again, and therefore undermine their efforts to struggle for prostitutes’ recognition and rights as workers. Some of their members aligned in the Protocol negotiations with the GAATW in order to struggle for what they considered to be a ‘lesser evil’, a Protocol that would not adopt an anti-prostitution stance. But they only did this as

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individuals under the umbrella of other NGOs, such as Anti-Slavery and not as an organised group with its own agenda (Doezema, 2005). These activists did not identify themselves as prostitutes and their presence was somehow ‘hidden’ (Doezema, 2005). The recommendations of the NSWP were not even negotiated by the state delegates. Neither the NSWP’s claim to understand the problem as something that should be regulated through labour standards, nor its concern with states’ efforts to strengthen border controls were taken into account by the states. As we have seen, the prostitutes’ exclusion from the UN Protocol negotiations was partially due to their own choice, since they opposed the Protocol negotiations. However, the prostitutes’ exclusion was also a consequence of their marginalisation in the anti-trafficking discourse within the UN to that date. Whereas groups such as the GAATW and the CATW had established close ties with different UN organs and therefore influenced the UN discourse on trafficking in multiple ways, the prostitutes’ groups have never been seen as important players within these settings, nor did they gain official recognition as accredited NGOs with the UN. In addition, one has to consider the low standing of prostitutes in society and their particularly low standing during the negotiations. The criminal-prosecution framework proved disadvantageous for them, since many delegates (given their prosecution-background) considered them as falling into the ‘grey zone’ between legality and illegality (Interview State delegate B, 2007, p. 8). While the participation of NGOs was permitted, the participation of self-organised prostitutes was never foreseen by the organisers of the negotiation meetings. In this context, the portrayal of their beneficiaries by some NGOs may have legitimated ex post this exclusion of the prostitutes from the decision-making process. While the Coalition described themselves as moral agents acting on behalf of others (and in an altruistic way), they characterised their beneficiaries as helpless, passive and unable to speak for themselves. The Coalition’s discourse even implicitly included the assumption (put forward by the Coalition’s founder, Kathleen Barry) that prostitutes are sometimes in such a vulnerable situation that they are unable to judge their situation in an adequate way. Moreover, the Coalition tried to delegitimise their adversaries, among them the prostitutes’ groups, by claiming that ‘the sex industry’ and procurers in particular were the (only) profiteers of the policies that these groups suggested and that, in fact, it was they who tried to lobby the delegates via these groups (IHRN, March 2000) in order to ‘make pimping legitimate’ (IHRN, 1999). In sum, the Coalition completely negated the viewpoint of the

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self-organised prostitutes’ groups, such as the NSWP. This discursive ‘muting’ of the prostitutes in the discourse of the Coalition (in which they were portrayed as helpless and speechless victims) was mirrored in the actual negotiation process in which the prostitutes’ groups were not listened to.

Conclusion The conflict between anti-trafficking NGOs and (parts of their) beneficiaries demonstrates that NGOs’ ‘right to representation’ is not only a question of academic interest, but an issue of empirical relevance. The question of whom NGOs can claim to speak for was a matter of dispute between the anti-trafficking NGOs, in particular the abolitionist Coalition, and the self-organised prostitutes’ organisations. Self organised groups of the people affected encountered many obstacles with regard to their participation at international decision-making processes. While the status of NGOs as self-proclaimed advocates is seldom questioned, their discourse may have disempowering effects on their beneficiaries. The case of prostitution and trafficking is particularly striking, since an open conflict between advocacy NGOs and (parts of their) beneficiaries could be observed, and prostitutes, in addition, have a very low standing in society. But other cases may well also involve this ‘benevolent power’ by well-meaning advocates. One may think, for instance, of disabled persons who are equally often portrayed as helpless, ill etc. In particular, deaf people have objected to their portrayal as being disabled and helpless and, in contrast, defended their viewpoint that they constitute a ‘linguistic minority’.16 Although I would not go so far as to say that ‘speaking on behalf of others is in itself disempowering for the intended beneficiaries’ (Hudson, 2000, p. 4) in every circumstance, caution at least is required when the voices of the intended beneficiaries of NGO advocacy are dismissed, and when their advocates attribute identities to these beneficiaries which they reject. Here the ‘power of advocacy’ exerted by the NGOs has to be carefully examined, since it involves the risk of paternalism and may be used by NGOs that want to pursue their own political goals. Acting on behalf of others, especially when these others are portrayed as helpless and vulnerable, transfers a lot of reputation to the alleged advocates which makes it even more necessary to ask for the sources and the adequacy of this reputation. Otherwise, advocacy NGOs, instead of being the ‘mouthpiece’ of their beneficiaries, may even contribute to the silencing of those affected by their work.

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Notes 1. For example, the initiative ‘AccountAbility’, see www.accountability21.net. 2. In June 2006, for example, 11 of the world’s most well-known NGOs agreed on a common accountability charter for the non-profit sector, among others Oxfam, Amnesty International, Greenpeace, Consumers International, Transparency International etc., see Press release Oxfam 6 June 2006, available at http://www.oxfam.org/en/news/pressreleases2006/pr060606_ngo_ charter. 3. According to another typology, NGOs are distinguished from each other according to the function they have in global governance, be these political activities, administrative duties or enforcement measures (Bluemel, 2005). Service NGOs would mainly take over administrative duties whereas advocacy NGOs would be mainly involved in political activities (Bluemel, 2005, pp. 161 et seq.). 4. Halpin and McLaverty introduce a similar distinction between groups that claim to speak in solidarity and those that base their legitimacy claims on representation (see Halpin and McLaverty in this book). 5. Other possible nominations for these people would be NGOs’ ‘stakeholders’ or ‘clients’. Although the effect of the NGOs acting as advocates for other persons may be disadvantageous for these, I nevertheless keep the term ‘beneficiaries’ since this corresponds to the NGOs’ own claim. It shows a more immediate connection than the general term ‘persons concerned’ and avoids confusion between NGOs’ beneficiaries and members, such as the term ‘NGO constituency’ could provoke. 6. The idea of how power, resistance and freedom are linked with regard to the subject’s identities becomes clearer in Foucault’s work on the ethos (see, especially, Foucault, 1986a; 1986b). 7. This link is, for example, enshrined in the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, which was adopted in 1949. 8. See Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979. 9. Examples for these groups are COYOTE in San Francisco founded by the famous prostitutes’ rights activist Margo St James in 1973, De Rode Draad in Amsterdam (1984) or HYDRA in West Germany (1983). In 1987 the first national conference of prostitutes took place in Brazil (Pheterson, 1989, p. 6). 10. These groups refer to themselves as either ‘prostitutes’ or ‘sex workers’. The latter term situates prostitution clearly within a labour context and highlights that the groups understand their occupation as ‘work’. This term is contested among the different NGOs under scrutiny and it alludes to different identity constructions which I will elaborate on in the following. 11. In the following, the quotes are taken from the (bi- or triennial) newsletters of the two NGOs, namely the ‘Coalition Reports’ and the ‘Alliance News’. 12. Another important difference concerns the question of whom the groups actually claim to speak for. Since for the Coalition ‘trafficked persons’ encompasses all prostitutes, they also claim to speak on behalf of these persons, while the Alliance only partially considers itself to be spokespersons for them and rather wants to facilitate their own organising.

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13. The following quotes are taken from the publications of different prostitutes’ organisations, such as the globally operating Network on Sex Work Projects (NSWP), the International Committee on Prostitutes’ Rights (ICPR), and the statements of the First and Second World Whore Congresses. 14. The Coalition aligned with other NGOs and formed the International Human Rights Network (IHRN) for the negotiations; the Alliance was part of the Human Rights Caucus (HRC), another network of NGOs that was created for the Protocol negotiations. 15. The following references are made to the lobbying documents and drafts, published by the two major NGO-networks to which the Coalition and the Alliance belonged, namely the IHRN and the HRC (see footnote above). 16. While not explicitly taking issue with the NGOs active in the field, deaf rights advocate Harlan Lane reports that deaf people perceive the efforts of ‘benevolent’ people to ‘help’ them as disempowering and, instead, strive for self-determination (Lane, 1994, p. 62 et seq.).

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K. Martens (2005) NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (Houndmills, Basingstoke, Hampshire and New York: Palgrave Macmillan). J. T. Mathews (1997) ‘Power Shift’, Foreign Affairs, 76, 1, pp. 50–67. P. J. Nelson (2002) ‘Agendas, Accountability, and Legitimacy among Transnational Networks Lobbying the World Bank’, in K. Sikkink, J. V. Riker and S. Khagram (eds) Restructuring World Politics: Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press), pp. 131–54. Network of Sex Work Projects (NSWP) (1994) Sex Work and Human Rights, European Symposium on Health and the Sex Industry, Edinburgh, available at http://www.bayswan.org/NSP.html, date accessed 27 February 2007. Network of Sex Work Projects (NSWP) (1997) Sex Workers’ Manifesto, First National Conference of Sex Workers in India, 14–16 November 1997, Calcutta. Network of sex work projects (NSWP) (1999) Commentary on the Draft Protocol to Combat International Trafficking in Women and Children Supplementary to the Drafts Convention on Transnational Organized Crime. J. Nye (1990) ‘Soft Power’, Foreign Policy, 80, p. 153–71. Oxfam (2006) NGOs Lead by Example: World’s International NGOs Endorse Accountability Charter, available at http://www.oxfam.org/en/news/ pressreleases2006/pr060606_ngo_charter, date accessed 02 July 2009. G. Pheterson (1989) A Vindication for the Rights of Whores (Seattle: Seal Press). J. A. Scholte (2004) ‘Civil Society and Democratically Accountable Global Governance’, Government and Opposition, 39, 2, pp. 211–33. Second World Whore Congress (1989) ‘Statement on Prostitution and Feminism’, in G. Pheterson (ed.) A Vindication for the Rights of Whores (Seattle: Seal Press), pp. 192–7. O. J. Sending and I. B. Neumann (2006) ‘Governance to Governmentality: Analyzing NGOs, States, and Power’, International Studies Quarterly, 50, 3, pp. 651–72. K. Sikkink, J. V. Riker and S. Khagram (eds) (2002) Restructuring World Politics: Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press). H. Teegen, J. P. Dohand and S. Vachani (2004) ‘The Importance of Nongovernmental Organizations (NGOs) in Global Governance and Value Creation: An International Business Research Agenda’, Journal of International Business Studies 35, 6, pp. 463–83. United Nations (1950) UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (Lake Success, NY: United Nations). United Nations (1979) Convention on the Elimination of All Forms of Discrimination against Women (New York: United Nations). A. Vedder (2003) ‘“Non-State Actors” Interference in the International Debate on Moral Issues – Legitimacy and Accountability’, in A. Vedder (ed.) The WTO and Concerns Regarding Animals and Nature (Nijmegen: Wolf Legal Publishers), pp. 173–82. P. Willetts (1996) ‘Introduction’, in P. Willetts (ed.) The Conscience of the World (Washington DC: Brooking Inst.), pp. 1–14. Women and Autonomy Centre (VENA) (1994) International Workshop on International Migration and Traffic in Women (Leiden: VENA).

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Part IV Conclusions

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11 Evaluating NGOs: A Practitioner’s Perspective Regula Heggli

This book is published under the title ‘Evaluating Transnational NGOs: Legitimacy, Accountability, Representation’. On the one hand the title invites us to look at the legitimacy, accountability, and representativeness of NGOs. On the other hand it provides space to examine the role that NGOs play in holding other actors, especially the state or intergovernmental actors, accountable. NGOs do so by looking at how people and their interests are represented in decision-making and policy implementation. Talking about NGOs I follow the working definition of Fazi and Smith (2006, p. 17) by which NGOs are ‘organisations which share most (if not all) of the following features’: • Non-State actors; • Non-profit making organisations; • Democratic organisations (joining is voluntary and free, the functioning of the organisation is based upon democratic rules); • Independent from the government; • Act in the public interest; • Rely on voluntary work and activists’ involvement, but often also employ professionals • Have a mandate from their constituency. Many people perceive that NGOs have gained or should gain importance in holding decision makers accountable. This is particularly true in the context of globalisation that requires innovative forms of accountability. This is part of the reasons why NGOs are themselves increasingly confronted with political demands to prove their accountability, legitimacy and representativeness. 245

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I believe that it is of utmost importance that the contributions in this volume are seen in their political context. For that reason I will in this chapter describe the conflicting conditions and expectations which constitute the working environment of European NGO Networks. Before I do so, I want to point out that just because the political institutions (and academics) talk about NGOs’ responsibility, this does not mean NGOs have not been responsible up until now. NGOs and NGO networks pay a lot of attention to making decisions in an inclusive, participatory and democratic way. European NGO networks have elected boards, working groups in which members jointly develop positions, and general assemblies where members decide on strategy, approve work programmes and elect representatives. As most European NGO networks consist of either other European networks with national and regional affiliation or themselves have members in most EU member states, the opinion and decision making process is a relatively long one in order to ensure inclusiveness and ownership of positions and decisions by members. Democracy and responsibility is at the heart of NGOs’ raison d’être. On what grounds do I write these conclusions? I contribute against the backdrop of my experience of having worked over the last three years in Brussels for European NGO platforms active at EU level. I have coordinated the cooperation of eight of the big European NGO platforms in the EU Civil Society Contact Group1 for more than two years. In this role I have participated in many discussions among NGO representatives, representatives of the European institutions and academics on the role of NGOs in European democracy. What I want to add to the wide range of approaches in this book is the description of the daily constraints in which NGOs act at EU level. Questions around the legitimacy, accountability and representation of NGOs have gained importance, and it is, therefore, all the more necessary to recall the working environment of NGOs in order to put the debate into perspective. I will argue that NGO networks at EU level are confronted with contradictory expectations, attitudes and action patterns related to their accountability and legitimacy. I will outline four aspects of this paradoxical working environment: • Firstly, the European Commission uses NGO involvement in policymaking as a legitimising factor of its proposals; at the same time it repeatedly challenges NGOs legitimacy; • Secondly, the European institutions expect NGOs to demonstrate that they are accountable, transparent and democratic, while regularly requesting rapid reactions;

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• Thirdly, the legitimacy and validity of citizens’ project recommendations are rarely questioned; • Fourthly, the legitimacy of business influence in policymaking is questioned far less by the EU institutions than is NGO legitimacy. As a fifth element, I will refer to Greenwood’s (Chapter 9) analysis of the European Commission’s stance on an accreditation system for interest representatives. I will then conclude with more general reflections about NGO legitimacy, accountability and representation linked to the chapters in this book. By pointing to other actors, I do in no way want to argue that NGOs’ role should not be questioned and discussed, or that NGOs themselves should not take the time to explain who they are and how they work. However, I hope that describing the paradoxical environment in which the debates about NGO legitimacy take place contributes to keeping things in proportion.

The European Commission as heterogeneous and self-contradicting actor The European institutions, and specially the European Commission, use consultation with NGOs (and other stakeholders) to legitimise their proposals and decisions. (I could also put it differently: NGOs, by engaging with EU institutions, contribute to legitimising their decisions.) At the same time, the very same institutions regularly question the legitimacy of NGOs. Representatives of the European Commission on different occasions questioned the legitimacy of NGO representatives, for example, by complaining that they always meet the same people and see the same faces. Instead of interpreting this as a sign of professionalism, it is perceived as a lack of contact with the ‘real’ citizen and the grassroots. Knowing that the creation and professionalisation of European NGO platforms in the 1990s was encouraged by the Commission this seems even more paradoxical. Of course this situation can be partly explained by the fact that the European Commission is a heterogeneous actor. The European Commission embraces more than 40 Directorate Generals, 27 Commissioners and their cabinets, and about 25,000 civil servants. The employees come from at least 27 different countries, speak and think in at least 21 different languages. The individuals that make up the European Commission come with very different ideas and experiences of civil society. Their views about what role NGOs can and should play

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in the EU depend on their personal experience, national and local traditions and their service’s culture. But it still clearly shows the lack of a coherent approach to NGOs within the institution. Hence some parts of the European Commission see NGO participation as legitimising their proposals, while other parts of the same institution delegitimise NGOs as not being accountable, representative and transparent enough. By doing so, Commission proposals claimed to be based on NGO participation are put into question too. This is one of the elements constituting a paradoxical context for NGO activity at EU level.

European Transparency Initiative versus unbureaucratic cooperation One striking example of the contradictions described above can be shown in relation to the European Transparency Initiative.2 The European Commission has in recent years constantly called and continues to call for NGO accountability and transparency, for example as part of the European Transparency Initiative. NGOs are expected to have democratic governance structures, to be transparent about how they develop positions and take decisions, and about how they are financed. The expectations towards the accountability and internal democracy of NGOs – and I do not want to discuss their relevance and appropriateness here – by the European institutions are in contradiction to some practices in the European institutions. Short consultation periods and requests for immediate feedback addressed to secretariats of European NGO networks do put NGOs in a dilemma. They have to choose between developing their positions with limited inclusiveness, or renouncing completely to contribute. Their credibility is at risk either way. Another element of the paradoxical context for NGO activity at EU level, therefore, is that the European institutions expect NGOs to demonstrate that they are accountable, transparent and democratic while at the same time requesting rapid reactions from NGO secretariats.

Real citizens versus the ‘usual suspects’ After the majority of French and Dutch voters in 2005 refused to ratify the proposed constitution for the EU, the European Council in June 2005 called for a ‘period of reflection’. The Commission’s contribution to the period of reflection was called Plan D (for democracy, dialogue,

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debate). In the European Commission papers on the Plan D, a range of purposes and objectives can be found: • Plan D is proposed ‘to stimulate a wider debate between the European Union’s democratic institutions and citizens’ (European Commission, 2005, p. 2). • Together with other initiatives Plan D sets out ‘a long term plan to reinvigorate European democracy and help the emergence of a European public sphere’ (European Commission, 2005, p. 2). • Plan D is ‘a listening exercise so that the European Union can act on the concerns expressed by its citizens’ (European Commission, 2005, p. 4). • ‘Plan D must seek to clarify, deepen and legitimise a new consensus on Europe ’ (European Commission 2005, p. 11). • ‘Plan D is a starting point for a long term democratic reform process’ (European Commission, 2005, p. 3). As part of Plan D the European Commission supported ’new forms of citizens’ involvement’ by financing six pan-European projects.3 ‘Randomly selected’ citizens were brought together to discuss European policies and their expectations towards the European Union. The outcomes of these projects were presented as the expectations and recommendations of the ‘real citizens’. Interestingly, the legitimacy of these recommendations as input into policy making has not (yet) been questioned by the European institutions. The random selection of the participants is stressed as increasing the trustworthiness and legitimacy of the deliberations and resulting policy recommendations. What is not discussed is that some people are more likely to accept the invitation to such events than others. The participants are being presented as ‘real citizens’ and as something completely different from ‘usual suspects’, that is, NGO representatives. The random selection is taken as a guarantee for the representativeness of the participants. In contrast to NGOs, which normally do not claim to represent anything more than their members’ views and values, the recommendations resulting from the Plan D projects are presented as having been elaborated in a group that is representative of the EU population. Furthermore, I find it arguable to link randomness to (active) citizenship. We should work much harder towards developing in our communities an enabling environment for everyone to take action without leaving it to coincidence. While such projects that bring together European citizens from different member states and different

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backgrounds may be valuable ways of educating people about the EU and of contributing to the development of European citizenship and a sense of European belonging, I would be more critical in judging their input into policymaking. Participants are under pressure to reach conclusions in a very limited timeframe, and questions proposed to the participants may be biased. The fact that the aim, role and value of the Plan D projects have not been publicly and critically discussed, constitutes another element of the paradoxical context in which the legitimacy of NGOs is addressed in the EU. Different standards seem to apply in judging the representativeness and legitimacy of NGOs contributions and the recommendations resulting from Plan D projects.

Business representatives in policymaking While different actors (including business and business associations) regularly question the legitimacy of NGOs, it is difficult to draw attention to the fact that business associations and private sector companies have a major influence on policymaking without having to justify their legitimacy.4 Business representatives have a major say in European policymaking. Their expertise in a certain domain combined with their (potential) economic weight seems to be enough to justify their involvement in policymaking. I find this curious considering all that has been described above. Was there equal treatment one could think that the expertise and economic and societal value of NGOs topped by their democratic and transparent structures as well as their value base were enough to justify their involvement in policymaking too. Unequal treatment of actors is also described by Greenwood (Chapter 9) in relation to the representativity criteria in the European Commission register of interest representatives, which is indeed a very striking example. While NGOs are invited to ‘list [their] members and the countries in which membership is held’ (Greenwood in this volume, p. 212), ‘[f]or trade associations there is a form common with that of “in-house” (company) lobbyists for whom the concept of spread and number of members is inapplicable, and it seems the simple point of administrative convenience of streamlining forms also helps to explain why trade associations and unions are not required to demonstrate their representativeness. There may even be a general presumption of “representativeness” of such organisations, in that each can easily reel off lists of its members, and where federated, how many are indirectly represented’ (Greenwood in this volume, p. 212f.).

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It is part of the paradoxical context I am describing here that the same expectations do not apply to all actors equally. The legitimacy of business influence in policymaking is much less put into question by representatives of the EU institutions than the legitimacy of NGOs’ participation.

De facto accreditation versus denial of de jure accreditation Further to the four points I described above, Greenwood points to another element of the paradoxical context in which NGOs act at EU level: the European Commission’s ambiguity about an accreditation scheme for NGOs/stakeholders. ‘This emphasis upon the essential role of groups in a vibrant democracy by injecting independent and critical public opinion provides a significant contra-stand to the emphasis upon interest group representativeness as a pre-condition for participation, and provides a caricature of the opposite ends of the spectrum of the debate on the extent to which policy participation requires conformity to certain standards for interest groups’. This ‘linkage between representativeness and consultation status […] indicates the presence of a de facto system of accreditation, despite the Commission’s explicit denial of a de jure one.’. (Greenwood in this volume, p. 205). The European Commission’s denial of an accreditation system for interest representatives while using the criteria of representativeness for NGOs is part of the paradoxical context described above.

Conclusions Following the structure of this book, I will try to summarise my thoughts on NGO legitimacy, accountability and representations before adding some more general reflections. NGO legitimacy: ‘Legitimacy to do what?’ is the first question that comes to my mind, and I feel that there is one distinction that lies behind the chapters in this book more or less explicitly. On the one hand, legitimacy is referred to in terms of voicing and defending certain concerns, values and opinions in the decision-making process (Greenwood). On the other hand, legitimacy to negotiate (Halpin and McLaverty), co-decide and regulate (Bendell et al.) is analysed. The first part is easy to answer: the legitimacy of NGOs to voice concerns, opinions and ideas, to advocate for them, to contribute to a public

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debate and to take part in consultations, derives from fundamental rights enshrined in international law such as the freedom of association and the freedom of speech (Bode, 2003, p. 161). The second part is more difficult and this book is an attempt to clarify certain aspects of it. My spontaneous reaction was to say that there are two elements we need to keep in mind when debating the legitimacy of NGOs to negotiate, co-decide and regulate. Firstly, cases where NGOs negotiate binding rules, co-decide and regulate a field of activity, are rare. Secondly, it is crucial that for this situation, criteria and procedures for participation are set up and that the objective of the undertaking is transparent. Reading the chapters by Beisheim and Dingwerth, and Bendell et al. in this volume, I realise that it is more complicated than that. I take the point that a key question in this context is when a decision crosses the threshold of being ‘binding’. It seems useful to conceptualise the binding nature of decisions not as a dichotomy (i.e., either binding or non-binding), but rather as a continuum (i.e., more or less binding). Moreover, a decision may not only become binding by law (i.e., be legally binding), but also in social terms (i.e., be socially or non-legally binding) (Beisheim and Dingwerth in this volume). Therefore, to say that it is rare that NGOs are involved in developing binding rules is not helpful. I would also have thought that it is rare that NGOs are involved at all in regulating. But Bendell et al. make clear that many regulatory bodies (such as the Forest Stewardship Council (FSC) and the International Organisation for Standardisation (ISO)) are indeed set up as non-governmental, not for profit, membership organisations. This shows that my first point is not a valid contextualisation. All the more my second point gains importance. But calling for clear criteria and internal democratic structures is not enough when analysing what Bendell et al. call the privatisation of regulation. More importantly one needs to analyse, as Bendell et al. do, for whom the regulations are advantageous and for whom they are disadvantageous. It also reveals problems with the term NGO. It seems to me that one line of thought that needs further elaboration is the distinction between organisations that have for-profit members and organisation that exclusively have not-for-profit members. Last but not least, I agree with Bode (2003, p. 161) that it is the legitimacy of governmental and international activities that is problematic. Why? Because the common good is not well enough represented by the state or state-like actors such as the EU. The state or any state-like actor such as the EU and all who represent them must act in the general interest

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and defend the common good. The duty of all officials is to strive for the common good. NGOs as experts of the common good can therefore be a support to the state and state-like actors in defending the common good (Bode, 2003, p. 159). I am very much in favour of other actors – ‘stakeholders’ is the word used by the European Commission – to contribute their expertise to decision-making. Still I believe that NGOs have a distinct role to play in a democracy. This is especially true when people feel that national and international governance institutions do not defend the common good (Bode, 2003, p. 158). NGO Accountability: ‘Accountability to whom?’ is what I feel most tempted to address. There are multiple accountability relations. Inside an organisation, different people are accountable to different bodies. They act in accountability webs. Within an organisation it is often quite easy to say who is accountable to whom: the director to the board and the general assembly, the staff to the director, the board to the general assembly. It is also clear that the director and board of an NGO are accountable to certain donors (foundations, state). The accountability relations depend on the organisational structure and are linked to the question: accountable for what? Here too, we could understand accountability in a broader sense. Are NGOs accountable to society as a whole? I would argue that NGOs have a moral responsibility for their acts in society. But I would not equal this with accountability. Moral responsibility remains rather vague, a philosophical question while I understand accountability as a more structured responsibility, and a question of organisational theory and practice. Finally, I agree with Beate Kohler5 that the core question remains: How can civil society/NGOs contribute to democratic accountability? Looking at NGO’s own accountability relations for me is only interesting if it helps to answer this question. NGO Representation: ‘Representing who or what?’ is what interests me here. And again it seems easy to answer. NGOs need to be transparent about whom they represent and that should be it. It will most often be their members and/or supporters. More precisely it is their members’/ supporters’ values and opinions. In that respect it is interesting to look a bit closer at the distinction made by Halpin and McLaverty between representation and solidarity groups (see Table 11.1). For me this distinction raises more questions than it answers: Halpin and McLaverty assess an environmental NGO with individual supporters and/or members as a solidarity group. They describe it as a group of people showing solidarity with, for example, biodiversity, the birds or endangered animals. Why not conceive environmental NGOs as

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Table 11.1 Features of representation and solidarity groups as distinguished by Halpin and McLaverty (Chapter 3) Representation

Solidarity

• group leaders affiliate the • groups affiliate people to support the constituency they seek to interest of a separate constituency advocate for • the affiliates (members or supporters) • individuals affiliated to a group as to the group are from the supporters are not the same as the constituency whose interests are constituency whose interests the being advocated group is advocating • available to constituencies that are • non-human constituencies and human – those that are capable of future generations. Animals, plants, presence and voice ecosystems, young children and the unborn are not capable of presence and voice • requires that a constituency can both • applies to groups like the WWF or authorise and hold accountable Greenpeace representatives

representing the interests of their human constituency (members, supporters)? (Another discussion would then be if they still act in the public interest). In my view the individuals affiliated to an environmental organisation can very well be conceived as their constituency whose interests the group is advocating for. The organisation could then be seen to simply represent its affiliates’ interests. It is necessary to clearly distinguish the issues of NGO representation and (e.g. geographical) representativeness. The discussion of the representativeness of NGOs will further gain importance in the EU as article 11 of the Lisbon Treaty came into force on December 1 2009. It refers to representative associations: 1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. (Council of the European Union, 2008, p. 26) For the operationalisation of this article it will be important to take into account that ‘“representativeness” provides no foundation for

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equal treatment for groups whose legitimacy is quite reasonably based instead upon raising a cause and injecting it for treatment by public policy’ (Greenwood in this volume, p. 213). I agree with Greenwood that ‘[p]ermitting discretion in application always carries with it problems of unevenness, but such problems may be less than those of a blanket application of criteria which may be inappropriate for groups whose legitimacy is not based around representativeness’ (p. 210). It will be interesting to see how the EU institutions will operationalise the notion of ‘representative associations’ as it is used in Article 11 of the Lisbon Treaty. To conclude I want to stress that evaluating NGOs, transnational or not, should neither start nor end with looking at their legitimacy, accountability and representation/representativeness. For me the really important question in evaluating NGOs is: How do NGOs contribute to creating, developing and maintaining a democratic society? This means looking at the work they do, the quality of the work, and the effects of this work both on specific target groups and on society at large. In my own professional and voluntary work within NGOs, it helped me, especially in moments of frustration, to ask myself: How would the situation look if we were not doing what we are doing? I want to end with a short but telling anecdote. I participated in a seminar organised by an NGO on the possibility of establishing a contract between the European institutions and civil society, clarifying their relation as inspired by the British Compact.6 Participants were NGO representatives from different European countries and one representative of the Secretariat-General of the European Commission. In a discussion, the Commission official said, ‘Well you know, it is really hard to know who is defending the common good’. I still admire the quick reaction of a director of a European NGO platform, ‘Dear Mister, I still hope it is you, it is the European Commission’. The fact that a representative of the European Commission is in doubt about who defends the common good is in my view enough to justify NGO engagement in EU policymaking.

Notes 1. For more information, visit www.act4europe.org, 27 January 2010. 2. Read more about the European Transparency Initiative on http://ec.europa .eu/transparency/eti/index_en.htm, 29 December 2008. 3. Find more information about the projects on http://ec.europa.eu/ commission_barroso/wallstrom/communicating/conference/dialogue/sixpan-european-projects/index_en.htm, 28 December 2008.

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4. Interesting in that regard is the study ‘Secrecy and Corporate Dominance – A Study on the Compositions and Transparency of European Commission Expert Groups’ on http://www.alter-eu.org/en/system/files/publications/ expertgroupsreport.pdf. 29 December 2008. 5. In her presentation at the expert workshop on the issue at the University of Bremen, 12/13 October 2007. 6. Read more about the compact http://www.ncvo-vol.org.uk/compactadvocacy/index.asp?id=1947 on 29 December 2008 or http://www.ncvo-vol.org. uk/compactadvocacy on 02 February 2010.

References ALTER-EU (2008) Secrecy and Corporate Dominance – a Study on the Compositions and Transparency of European Commission Expert Groups, available at http:// www.alter-eu.org/en/system/files/publications/expertgroupsreport.pdf, date accessed 29 December 2009. T. Bode (2003) Die Demokratie verrät ihre Kinder (Stuttgart/München: Deutsche Verlags-Anstalt). Council of the European Union (2008) Consolidated Versions of the Treaty on European Union and the Treaty of the Functioning of the European Union, 6655/1/08 REV1, available at http://ue.eu.int/uedocs/cmsUpload/st06655-re01.en08.pdf, date accessed 28 July 2009. EU Civil Society Contact Group (2009) www.act4europe.org (homepage), date accessed 08 July 2009. European Commission (2005) Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions. The Commission’s Contribution to the Period of Reflection and beyond: Plan-D for Democracy, Dialogue and Debate, COM (2006) 212 final, available at http://ec.europa.eu/commission_barroso/wallstrom/pdf/ communication_planD_en.pdf, date accessed 28 July 2009. E. Fazi and J. Smith (2006) Civil Dialogue. Making it Work Better, available at http://act4europe.horus.be/module/FileLib/Civil%20dialogue%2C%20making %20it%20work%20better.pdf, date accessed 29 December 2008.

12 Evaluating NGOs: Prospects for Academic Analysis Jens Steffek and Kristina Hahn

Do non-governmental organisations need legitimacy? To whom should they be accountable? Can they be expected to be representative, and if so, of whom? Should they feature mechanisms of internal democracy in the sense of making their members, supporters, or beneficiaries participate in their decision-making processes? As the contributions to this volume have shown, the answers to such questions diverge enormously. This is interesting since, at least in the West, there is far more consensus on the normative requirements concerning other types of social actors. It is generally assumed that states, but also their subunits, such as regions, provinces and municipalities, should be organised democratically. Nobody would dispute that public government needs legitimacy and accountability. And most analysts would agree, by contrast, that private companies do not need to feature internal democracy, let alone represent a constituency. For non-governmental organisations this is all contested, and, as we argued in the introduction, this might have to do with their specific position on the edge between the public and the private realm. NGOs are definitely private in form, but most of them are definitely public in purpose. They claim to advance the common good rather than some narrowly defined self-interest. Due to this hybrid character, in evaluating the internal organisation and conduct of NGOs we might come to draw on standards derived from the areas of public and private governance, and both moves seem plausible. These diverging starting points are reflected also in the contributions to this volume. As Schrader and Denskus convincingly demonstrated, the role of organised civil society and its link to the concept of legitimacy have already been of concern to some classic thinkers of modern social and political theory, like Weber, Luhmann, Habermas and Foucault. Although these authors 257

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have developed very different conceptions of legitimacy and the political role of civil society, all of them were interested in the possible function that civil society actors can have in political processes, also outside the nation state. Which normative requirements and expectations are addressed to civil society actors depends on the specific role that analysts foresee for them in political and social life. In this volume, Steffek et al. based their account of NGO legitimacy on the assumption that NGOs are, in principle, in a position to function as a ‘transmission belt’ between the global level (international organisations in particular) and those citizens who are their members, supporters and beneficiaries. They hence by analogy, transferred notions of democratic legitimacy and representation from the context of public governance to the NGO realm. Havrda and Kutilek in their chapter took the opposite route and suggested accountability mechanisms for NGOs that originate from the business sector. These diverging starting points, it appears, can be explained not only by the different disciplinary backgrounds of the authors, but also by their particular views of what NGOs are and what they predominantly do. While Steffek et al., but also Halpin and McLaverty, Greenwood, and Brühl focus mainly on the advocacy function of transnational NGOs, Havrda and Kutilek put their emphasis on the implementation of projects through NGOs. In the former view, NGOs are political actors that seek to influence public policymaking; in the latter they appear as functional agencies performing delegated tasks from which they make a living. It is obvious that the image of what NGOs are and do will influence our choice of normative standards for assessing their activities. One might hence attempt to settle the issue in the sense that standards of NGO legitimacy, accountability and representativeness would need to be contextualised, depending on the type of NGO under scrutiny. A first distinction to be made would be the one between advocacy NGOs and those engaged in service provision. What complicates this strategy, however, is the fact that, particularly in the transnational arena, many NGOs are doing both: political advocacy for a more or less well-defined constituency and implementing projects on behalf of donors. An alternative distinction is suggested in this volume by Halpin and McLaverty who claim that ‘internal democracy’ is a standard that should not be applied to all NGOs in the same way. They distinguish NGOs whose advocacy is based on a claim to represent a constituency from others that practice solidarity – with inanimate things, for example, or with groups unable to organise, such as political prisoners. Only the former type of NGO, they argue, should conform to principles of internal

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democracy. However, as Halpin and McLaverty admit, the distinction between groups based on solidarity and groups based on representation may sometimes also be difficult to draw, particularly when NGOs advocate for groups whose members are, in principle, in a position to speak for themselves. Transnational NGOs, it appears, are not easy to classify. In our view, this should not lead analysts to give up on the project, however. We contend that future research on NGO legitimacy and accountability should seek to develop more refined and empirically grounded typologies of NGOs, and then specify and contextualise the normative demands placed on them. Next to the contested issue of what NGOs are ‘like’ and what they seem to be doing predominantly, there is another disagreement that affects the choice of standards when evaluating transnational NGOs. How much power do we think that NGOs actually wield? This question is as crucial as the concept of legitimacy, but questions of representation and accountability are also intimately tied to the exercise of power and authority. The traditional standard view seems to have been that NGOs are by default powerless actors in the transnational realm, especially when compared to states. If this were so, nagging questions about their legitimacy would be out of place. Who would want to criticise the ‘guardians of the common good’ who have not much more than their voices to raise against injustice in the world? The contributions in this volume have questioned the idea that NGOs are well-meaning but powerless. Bendell et al. and Beisheim and Dingwerth have shown how organisations that qualify as transnational NGOs can act as ‘standard setters’ and hence exert governance functions. Some transnational NGOs are increasingly taking decisions with binding effects for a wide range of actors. ‘Standards empower the organisations that decide their criteria and control their administration, monitoring and certification. Those who control standards have power over users, and not all users have the same influence in the process of standard development and administration. Standards affect where profits are made along a value chain’ (Bendell et al. in this volume, pp. 140 et seq.). Standard-setting NGOs may not have any authorisation from public intergovernmental bodies to do so, and technically speaking, their standards are not legally binding. For instance, no manufacturer is required to use wood produced according to standards set by the Forest Stewardship Council (FSC) or similar bodies, and consumers are not forced to buy their products. Yet these standards may become powerful in more indirect ways. For example, in Germany many public bodies are required to exclusively procure certified wood products. Although not legally binding, NGO standards

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are becoming constraints via endorsement by other actors, public and private. This sort of rule-making competence falls short of any formal entitlement to make authoritative decisions in the public policy sense, but NGOs do have considerable influence here. As formally private NGO standards may become de facto authoritative through endorsement, the question of whether NGOs take binding decisions cannot be answered by a simple ‘yes’ or ‘no’. We support Heggli’s suggestion that rather than speaking of a dichotomy between formally binding and non-binding decisions, we should consider a continuum and also take the socially binding nature of decisions into account. Given this continuum of more and less binding decisions that NGOs produce or to which they contribute, we may broaden our perspective and scrutinise in more general terms the effects that NGO activities have on others. In this context, we are confronted with the question of threshold: When are NGOs (in one way or another) involved in decision-making activities that have such important consequences that they need to respond to certain legitimacy requirements? This volume cannot give a straightforward answer to this question, but its contributions span the complexity of this issue, insisting on a variety of NGO types and activities. As we highlighted in the introduction when discussing different dimensions or ‘faces’ of social power, NGOs often seem to exert power in a rather diffuse manner. In her chapter, Hahn elucidates which power effects are involved when NGOs speak for others and attribute certain identities and classifications to them, for example as ‘victims’. Taking the case of trafficked persons and prostitutes as an example, she shows how NGOs’ ‘right to representation’ (accorded by an intergovernmental conference) led to conflicts between advocacy NGOs and intended beneficiaries who felt that their portrayal as helpless victims contributed to their further disempowerment and exclusion from policymaking. Cases like this demonstrate that NGOs can wield ‘soft’ forms of social power that play out in altering the identities of groups and persons, or in formulating political demands on their behalf. This is not just a captious academic point. Such power effects have manifest political consequences when NGOs participate as advisors and lobbyists in public policymaking. NGOs wield power not only when they make decisions themselves but also when they represent people and define issues and problems. In our view, such diffuse and indirect forms of social power should be taken more seriously in the future than they have been taken in much of the past literature on transnational NGOs. Transnational NGOs have often been said to exert influence through the subtle technique of framing issues and political options (Joachim,

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2003). What we would like to stress is that framing is not an innocent activity, especially when the respective political demands are formulated on behalf of marginalised persons. Cases such as the one presented by Hahn also bring us to the thorny issue of representation. First of all, and as Brühl pointed out in her chapter, it would be naive to assume that NGOs are able to represent entire populations. This is particularly problematic in the North-South context where asymmetries in resources and opportunities for societal self-organisation persist. The question of what or whom exactly NGOs are representing is normatively consequential. Any claim to represent people and their concerns almost automatically raises the question of what role these very people play in the internal decision-making processes of the respective NGOs. Can the leaders and spokespersons of such an NGO point to any process of entitlement or authorisation? Can they at least show that affected populations are being consulted? In our own study of modes of representation and internal participation in some 60 transnational NGOs, we found that most organisations do in fact claim to be representing the concerns of a constituency (Steffek et al., 2009). We also found that the idea of participation may suggest very different meanings, depending on the type of NGO making such claims. There are membership organisations that emulate traditional models of democracy internally, with representative assemblies and elected delegates. Others, especially small advocacy groups with few or no formal members, feature informal practices of consulting with the people that they seek to help, or whose concerns they seek to promote. Both models of participation, we found, have their advantages, but may not be easy to combine in practice. This needs to be explored further by more focussed empirical studies that scrutinise in detail how representation and participation actually function in transnational NGOs. We would also profit from a more focussed theoretical discussion of what one might call the congruence problem in this context. As members of an NGO are not necessarily equal to the persons affected by their work, we need to reflect on the relative importance that should be given to the concerns of both groups, and the rights that they should have respectively in holding the NGO and its leadership to account. As Heggli emphasised in her conclusions, it is also crucial to investigate the practical implications of the theoretical issues discussed by the contributors to this volume. In this regard, the chapter by Greenwood is particularly instructive. It demonstrates how a criterion such as geographical representativeness favoured by the EU, may contribute to a

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de facto system of accreditation for only those NGOs that dispose of members in many EU countries, to the disadvantage of other, smaller, groups that nevertheless have important claims to make. In this regard, Greenwood points out the negative repercussions that the insistence on representativeness can have once it is used by an intergovernmental organisation as a criterion for choosing cooperation partners from civil society. Greenwood doubts that NGO consultation can add to the democratic credentials of an IO, claiming instead that ‘[…] the enrichment which participatory democracy may be able to bring to “democratic legitimacy” hinges not so much on “representativeness”, but rather upon a range of issues surrounding accountability’ (Greenwood in this volume, p. 216). Generally speaking, we conclude that the evolution of standards imposed by states and public international organisations on NGOs that wish to be consulted would be another worthwhile topic for comparative academic research. It is especially puzzling in this context that different views on NGOs – as a threat or an asset to democracy – seem to coexist within the same organisation (Kohler-Koch, 2009). In a similar vein, we should also investigate empirically what happens when NGOs seek to fulfil all the requirements regarding legitimacy, accountability and representation that theorists devise. Heggli warned us against raising expectations too highly by pointing to the often paradoxical demands placed on NGOs by international organisations. Internal democracy, she cautions, is not easy to reconcile with the expectation to quickly formulate positions on political issues presented by IOs. She also contends that most NGOs are already much more aware of critical aspects of their work than business. Furthermore, and alluding to the title of our book, it remains questionable who should evaluate NGOs and their activities: researchers, donors, government or IO officials, or the NGOs themselves? Havrda and Kutilek’s chapter is particularly interesting in this regard, since the authors explore the existing self-regulatory accountability schemes already present in the NGO-sector and then suggest a more encompassing accountability tool, involving all relevant stakeholders. If we agree that all NGOs should conform to some basic normative requirements pertaining to their conduct and internal organisation, we need to ask how possible misconduct may be sanctioned. How and by whom can transnational NGOs be held to account? In this volume, Havrda and Kutilek draw inspiration from the private sector, exploring the reputational effects that can be exploited when details of NGO performance are made public on the web. The information provided would be used by peers and the general public, but especially by donors

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who are in a contractual relationship with NGOs. They are in a good position to hold underperforming NGOs accountable as they may sanction them through the withdrawal of project funding. Bendell et al. frame the issue somewhat differently, in that they are particularly interested in how those affected by the standards developed by NGOs could hold them to account. In this regard, Bendell et al. extend the concept of NGO accountability towards organisations that set norms and do not implement projects. We should acknowledge, however, that there is a crucial difference between the two cases. While dissatisfied donors have an ‘exit’ option in the sense that they can stop collaborating with a particular NGO partner, parties affected by an NGO-developed norm can often do little more than seek to voice their discontent. At this point, it seems, opportunities for internal participation become important for the external accountability of NGOs. In summary, we can identify three major cross-cutting topics that feature prominently in the debates on all three normative concepts that structure this volume. The first is the question of NGO types and the appropriateness of standards. Can there be one standard of normative evaluation that fits all NGOs? Secondly, there is the important issue of NGO power and the related problem of measurement and thresholds. Under what conditions do NGOs exert so much social power that questions of legitimacy, accountability and representation become pressing? Thirdly, there is the complex relationship of NGOs with their beneficiaries and those affected by their work. How and under what conditions should NGOs take the interests of non-members into account? Although we have not been able to answer such questions definitively in the framework of this volume, we trust that the contributions taken together were able to flag up the key issues of an emergent debate, and to map the different theoretical positions as well as the practical options at our disposal.

References J. Joachim (2003) ‘Framing Issues and Seizing Opportunities: The UN, NGOs, and Women’s Rights’, International Studies Quarterly, 47, 2, pp. 247–74. B. Kohler-Koch (2009) ‘The Three Worlds of European Civil Society – What Role for Civil Society for What Kind of Europe?’, Policy and Society, 28, 1, pp. 47–57. J. Steffek, K. Hahn, M. Rodekamp and M. Piewitt (2009) ‘Whose Voice? Transnational CSOs and their Relations with Members, Supporters and Beneficiaries’, TranState Working Paper (Bremen: University of Bremen).

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Index accountability corporate 14, 87, 133, 143, 161, 201 deficits of 15 democratic 8, 55, 56–8, 61, 65, 101, 132, 150–1, 262 dimensions of 8, 135, 253 downward 133, 150, 169 external 2, 20, 57, 61, 82, 103, 161, 172, 221, 263 financial 13, 114, 175 forms of 14, 61, 69, 133 functional 169, 175 internal 61, 82, 101, 221 mechanisms of 15, 61, 91, 164, 170, 257, 258 performance-based 175 public 8, 14, 101, 111, 215, 216 relations 11, 14, 21, 82, 102, 134, 147 standards of 2, 94, 204, 205, 258, 211, 212 strategic 169, 175 upward 133, 169 accreditation 15, 58, 130, 137, 139, 148–9, 151, 190, 200, 251, 262 activists 10, 47 advocacy and representation 66–7, 69–70, 209, 214 and solidarity 66–7, 68–70 coalitions 6 groups 5, 12–13, 62, 66, 75, 100, 102, 162, 206, 209, 214, 222, 223, 236, 261 types of 66 agenda-setting 40, 64 agreements, international 140, 142, 185 Amnesty International 2, 67–8, 70, 75, 161, 209, 214 annual reporting 159, 162, 169 anti-globalisation network 210

argument 5, 18–19, 61, 81, 83, 108–9, 112, 186, see also deliberation; deliberative process Arria-Formula (UN) 190–1 authority and legitimacy 21, 31–2, 63, 76, 259 concept of 31, 45 moral 60–1, 63 spheres of 15, 135, 185 autonomy (of NGOs) 115, see also independence awareness raising, see NGOs, output of beneficiaries 3, 12, 18, 105–7, 108–9, 110, 119, 145–6, 151, 171, 175, 221–36 Birdlife International 214 Bretton Woods institutions 159 budget (of NGOs) 114, 117, 134, 162, 171, 192, see also funding of NGOs bureaucratisation 30, 30–4, 248 business associations 209 Business Europe 209 campaigns 1–2, 12, 135–6, 163, 221, 222, see also advocacy; advocacy groups capacity building 110, 174 capitalist society 31–2 Cardoso report 191 CARE 161 checks and balances 91, 196 civil society 31–5, 38–40, 42, 45–50, 56–60, 62, 65, 100, 103, 115–16, 130, 134, 136, 142–3, 145, 150, 159–60, 174, 181, 186, 193, 200–16, 204, 207, 210, 257, 258 civil society organization (CSO) definition of 120 typology of 119 climate change 146, 159 265

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Index

codes of conduct 2, 136, 137, 140, 221 coercion 43 Cold War 159, 190 colonial history 193 common good 10, 61, 115, 220, 252, 253, 257 communication and technology 131, 163 channel of 101 public 39 companies 84, 87, 91, 135–41, 145–6, 149, 151–2, 162, 165, 209, 250, 257 compliance 75–6, 80, 84, 90–2, 94, 138–9, 151, 159, 216 constituency 10–12, 17–19, 47, 58, 65, 104, 110 human 3, 66, 68, 70, 209, 210, 214, 215, 254 non-human 66, 201, 209, 210, 214, 215 consultation (of NGOs) 56, 66, 69, 100, 143, 190, 200–6, 210, 211 consultative status 2, 190, 203 decision-making actors in 4, 19, 37, 45, 69, 188, 223 internal 2, 11, 20, 103, 107, 226 international 4, 19, 41, 71, 192 power of NGOs 4–5, 71 deliberation 13, 18, 38–42, 60, 81–2, 88–90, 107, 113, 115, 147, 150, 186, 192, 194, 195 deliberative process 13, 41, 79, 81, 90, 93, 103, 109, 113, 115 democracy and legitimacy 3, 12, 38, 213, 216 crisis of 56 in CSOs 3, 58–60, 62–5, 69, 102–5, 119 deficit of 55–61, 100–1, 137 deliberative 42, 81, 104–5, 113 global 57, 69–70 participatory 62, 211, 213, 215, 216 representative 62, 105, 111, 119, 201, 202, 208, 211, 213–16

supplementary 61–2, 201 Western 42–3, 55–6 democratisation 42, 57, 69, 101, 102, 119, 186 developing countries 3, 19 dialogue (between IOs and NGOs), 182, 190, 201–10 diplomacy 159, 194 discourse theory 30, 39 domination 9, 43–6, 47 donation 2, 161, 164 donor individual 157, 169–70, 174–5 institutional 157, 169–70, 172, 174–5 relation with recipients 142, 188 economic crisis 160, 163, 165, 166 Economic and Social Council (UN), see UN effectiveness 13, 57, 58, 75–9, 81, 83–4, 93–4, 157 efficacy 81, 147, 214 efficiency 74, 77, 143, 175 elections 39, 133, 201 elites 32, 46, 182, 192–4 empowerment 18, 105, 109–10, 193, 201, 220–1, 227, 230–4, 236–8 Enlightenment 38 environment 19, 45, 130–1, 135, 137–9, 141–4, 146–51, 157–8, 160–2, 165–6, 169, 173–4, 207–9 equality judicial 41 political 16, 41, 71 Eurocentrism 189 European Environmental Bureau 202, 208, 209 European Union Civil Society Contact Group 20, 207, 246 Commission 19–20, 60, 201–16, 246–51, 254 CONECCS (database) 206, 210, 213 Constitutional Treaty 208 Council 202

Index European Union – Continued Economic and Social Committee 159 integration history 202 NGO Networks 209 Parliament 201–6, 215 partnership principle 159, 205, 208 ‘Plan D for Democracy’ initiative 208, 248–50 Social Platform 202, 208, 209 Transparency Initiative 203, 205, 206, 210–13, 248 White Paper on Governance 60, 203, 204, 206, 208, 210 exclusion 20, 48, 68–9, 185, 190–2, 193, 206, 213, 226 expertise issue-specific 60–1, 142, 181, 186 of NGOs 2, 4, 50, 63, 65, 186, 191, 195 provision of 63, 105, 250 fairness 79, 80, 94, 142 feminists 17, 18, 45, 226–28 financial crisis 160, 163, 165, 166–7 Foucault, Michel 6, 9, 30, 42–7, 51, 224, 225, see also power, discursive FSC (Forest Stewardship Council) 15, 74, 93, 129, 130, 136, 146–51 funding of NGOs 12, 13, 60, 115, 116, 135, 164–5, 174, 175, 189, 202, 208, 209, see also budget of NGOs GATS 140 genocide 223 globalisation 16, 29, 40, 55, 135, 184–5 governance economic 48, 100, 203, 206, 208, 210 European 100 global 2, 10, 29, 46, 48–50, 56, 61–2, 65, 71, 95, 100, 103, 131–2, 137, 159, 181, 182, 185–6, 220 good 13, 60, 112, 220 hierarchical 30

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horizontal 30, 36 private 76–8, 79, 93, 149, 151 public 78, 131 social acceptance of 77 transnational 16, 57, 76, 92–3, 111 governmentality 42–4, 225, see also Foucault, Michel government, global 56 grassroots organisations 196, 227 Greenpeace 1–2, 67, 68, 75, 149, 159, 209, 214, 254 GRI (Global Reporting Initiative) 13, 75, 83–93 Habermas, Jürgen 9, 30, 38–42, 44, 45, 48 HIV/AIDS 223 human rights 55, 64, 67–8, 138, 158, 161, 189, 220, 222, 223, 232–4 Human Rights Watch 75 human trafficking 18, 220–36 ICC (International Criminal Court) 188 identity construction of 6, 18, 51, 228, 231, see also discourse theory production by NGOs 6, 224–6, 231, 234 IFRC (International Federation of Red Cross and Red Crescent Societies) 161–2 IMF (International Monetary Fund) 100 implementation of projects 3, 15, 64, 75, see also NGOs: function of inclusion 12, 18, 39, 41, 68–9, 79, 84, 109–10, 117–18, 184, 186, 194, 195 inclusiveness 13, 74, 80, 86–7, 92–4, 175, 206 independence political 2, 115–16 financial 115–16 industrialised countries 181 information disclosure 161–62, 168, 170, 212

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institutionalisation of interaction (between IOs and NGOs) 4, 41, 100 interest groups 200–4, 206, 208, 210, 215, 251 interests of constituency attached 65–6 unattached 66–7 International Chamber of Commerce 161, 173 international conventions 134, 191, 226 International Governmental Organisations (IGOs) 4, 15, 55–60, 64, 68, 70 international law 15, 130, 163 International Monetary Fund, see IMF International NGO Charter 2, 20, 168 international politics 5, 181, 220, 221 ISO (International Standards Organisation) 15, 129, 130, 138–44, 150–1 jurisdiction 36, 163, 167 justice (distributive) 13, 41, 57 Kant, Immanuel 38 Ku Klux Klan 62 laissez-faire 216 legality 31, 32, 36, 50 legitimacy cognitive 42, 78 criteria of 48, 105–20, 209, 210, 213, 255 democratic 7, 8, 11, 12, 38, 41, 51, 55–63, 67, 102–5, 212, 213, 216 dilemmas of 46, 201 dimensions of 12, 46–50, 62–3, 209 empirical 7, 9, 13, 30–6, 42, 47, 75–6, 116, 118–19 input 8, 57, 60, 63, 75, 77, 82, 185, 191, 201 normative 7, 13, 78, 84, 104 organisational 8, 9, 13 output 8, 77, 185 pragmatic 78

procedural 13, 35–8, 41, 77, 78–83, 84 sources of 10, 31, 34, 47, 50, 63–4 theories of 29–30, 46 transfer of 78 types of 32, 64, 67, 210 Lisbon Treaty 254–5 lobbying activities 4, 133, 135, 232 regulation of 201 Lobby Transparency (NGO) 210 local social movements 5, 222 Luhmann, Niklas 9, 30, 35–8, 48, 50–1 MSC (Marine Stewardship Council) 74, 93, 151 mediation 50 members (of NGOs) commitment of 34, 88, 89, 147 consultation of 12, 69, 101, 107, 209 inclusion of 67, 246 interests of 11, 19, 70, 254 mobilisation of 13, 214 participation of 62, 69, 106, 108–9, 147, 151, 207, 209 minority views 206 modern state 38 monitoring of compliance 13, 78, 185 of implementation 15 of NGOs 3, 15, 102 of state behaviour 50, 181 multinational corporations 159–62, 168 multi-party system 166, 169, 174 Nation of Islam 62 nation state 41, 55–7, 63 negotiation process 18, 80, 94, 111, 231, 233–6 settings 182–3, 190–1, 192, 194–5, 196, 235 neorealism (IR theory) 187–8 networks in society 14, 39, 45–6, 50, 108, 224

Index of NGOs 3, 42, 60, 108, 121, 144, 209, 221, 222, 246 NGOs advocacy of 5, 12, 62–8, 74–5, 104–7, 114, 120, 158, 159, 163, 168, 220–34 and human rights 19, 64, 67–8, 70, 158, 161, 184, 188–9, 222, 223 assessment of 12–13, 67, 100–20, 170–3, 182 board 106, 107, 109, 162, 164, 170, 175, 253 in development aid 104, 188–9 environmentalist 75, 131, 135 function of 3, 12, 75, 95, 101–3, 183, 200, 222 general assembly 253 headquarters 181, 184 influence of 1, 4, 13, 15, 61, 64, 100, 129, 138, 150, 158–60 , 174, 181–2, 187, 195, 200, 220, 222, 224 internal structure of 9, 57, 60, 157, 204, 221, 246, 248 output of 75 political goals of 10, 232, 236 power resources 183, 188, 222 resources of 3–5, 15, 78, 92, 164, 222 responsibility 138, 158 , 246, 253 service provision through 12, 74, 95, 106, 160 standard setting 5, 13, 15, 74–95, 129–52 types of 11, 19, 20, 66–71, 158, 222, 223 working groups 86, 88, 92, 246 norm entrepreneurs 189 evolution 181 implementation 80, 149, 181, 184 North/South relations 3, 5, 11, 15, 19, 58, 68, 104, 121, 130, 136–8, 147–8, 189, 191, 221 OECD-states 191 opportunity costs 214

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opposition 37, 81, 201 oversight 15, 135, 157–8, 161–5, 168–9, 172, 174–5 ownership (concept) 13, 79–81, 84–8, 166–8, 92–3 Oxfam 2, 67–8, 70, 160, 161–2 participation in global politics 11, 56, 62, 84, 100, 102–3, 194–5, 235, 236, 248, 251 in NGOs 13, 16, 41, 62, 70, 101, 104, 105–10, 117–20, 141, 254 rights 4, 80, 100, 195 rules 79–80, 107–9, 201 parties (political) 71, 201 partnership (concept) 83, 112, 159, 188–9, 206–8 paternalism 192, 236 persuasion 5, 6, 79, 81, 88, 90, 92 policy decision 12, 71, 107, 113 formation 64, 137, 200, 201, 204, 205 implementation 64, 81 instruments 185 making 12, 16, 20, 64, 70, 105–6, 111, 159, 185, 186, 113, 214, 221, 250 network 185 power communicative 39–40, 48, 107 discursive 6, 188, 223–6, 234, 236 faces of 4–6 relations 4, 43–5, 132–4, 187, 188, 196, 220–5, 234 soft 5–6, 120, 223, 224 theories of 5, 6, 220–37 principal-agent theory 14, 16, 80, 82 private regulation 130, 139 privatisation 139, 140, 160–1 problem-solving 48, 77 producer groups 214 professionalism 1, 5, 108, 184, 247 prostitution 17–8, 226–36 public debate 39, 103, 204, 209 public opinion 40, 68, 203, 204 public value (concept) 160 Putin, Vladimir 163

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rating organisations 135, 83 rationality 31, 32, 39, 42, 43–6, 49, 80–1 Reagan-Thatcher era 160, see also privatisation regime international 76, 111, 184, 185 private 75, 130, 131 transnational 111, 121 world trade 100 registration (of NGOs) 211–13 regulation of non-profit sector 162–3, 165–7 public 15, 37, 71, 131, 139 self- 15, 20, 61, 76, 131, 136, 157, 166, 167–8, 170, 174 representativeness criteria of 20, 59, 202–13, 249, 250, 251, 255 encompassingness as 207, 209, 214 geographic 18, 19, 206–9, 214, 254–5, 261 representation and delegation 16–18 dimensions of 16–18, 65–6, 205, 253, 254, 255 through trustees 16 reputation 2, 13, 19, 36, 61, 102, 109, 121, 135, 138, 142, 150, 236 resistance 13, 33, 225 responsiveness 16, 58, 104–5, 108, 110–12, 114, 117–18, 149 Rousseau, Jean-Jacques 38 rule making process 82, 83 rural poor 68, 193

social partners 100, 120 South, Global 3, 15, 19, 58, 68, 104, 121, 130, 145, 148–9, 163, 181–2, 183, 188–90, 192–3 sovereignty 16, 39, 42, 130, 149 stakeholders 3, 15–16, 57, 79–84, 87, 89–91, 92–3, 109, 121, 146–50, 158, 168–9, 173–5, 247, 251, 253 standard-setting 4, 5, 13, 15, 20, 74–95, 129–52 Statewatch 206 Steering Committee 85, 88–9 strategy of Northern NGOs 189 subjectivation 6, 43, 45, 47, 49 supporters of NGOs 3, 11–12, 61–2, 66–70, 101, 104–6, 108–12, 114, 117, 119, 136, 253, 254, see also constituency; members of NGOs system theory 38

sanctions 3, 8, 14, 76, 102, 108–9, 121, 133, 215, 216 self-justification 34, 46 self-regulation, see regulation shadow of hierarchy 76 social capital 50–1, 108 social control 50, 79, 82–3, 90–2 social justice 41 social learning 79, 81–2, 88–90 social mobility 193 social movement 5, 37–8, 222

umbrella groups 202, 207, 208, 235 UN (United Nations) General Assembly 190, 191 Economic and Social Council 2, 190 negotiation in 182, 191 organs of 19, 58, 60, 190–1 reform of 56, 190–1 Security Council 190–1 UNEP (UN Environment Programme) 84, 85

target groups 78, 82, 222 technology transfer 182, 195 trade associations 120, 138, 145, 212, 213, 250 trade, international 55, 100, 151, 192 trade unions 120, 136, 212, 213, 250 transnationalism 4, 9–10, 12, 15–16, 41, 48–9, 56–7, 74–8, 92–3, 100–3, 111, 121 transparency addressees of 113–14, 137 dimensions of 91, 113–15 extent of 94, 113, 114, 248 Transparency International 113

Index victims 18, 45, 229–36 victimhood 63 victimisation 18 Weber, Max 9, 30, 31–5, 42, 44, 47, 49 welfare 185 Western hemisphere 190 women’s rights movement 189 World Bank 12, 100 world conferences 183

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world politics 1, 10, 11, 60, 61, 101, 102, 183, 191, 220–36 World Summit on Sustainable Development 85 WTO (World Trade Organisation) 58, 60, 140, 142, 150, 151, 159, 194 WWF (World Wide Fund for Nature) 67, 75, 146, 161, 162