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21FEATURES OF NON-GOVERNMENTAL ORGANIZATIONS IN INTERNATIONAL LAW
Rustamova J.
1st year master student of the Department of "International Law " L.N. Gumilyov Eurasian National University, Nursultan, Kazakhstan Scientific adviser - Kala Nagima Sunkarbekovna DOI: 10.5281/zenodo.7014233
Abstract
This article examines theoretical approaches of concept development of "non-governmental organization" in international law, also are analyzed non-governmental organizations as an institution of civil society and examined the processes of formation and development of non-governmental organizations. Taking into account the analysis of the above aspects, there have been made an attempted to identify the problem of interaction of NGOs with government agencies.
Keywords: international law, civil society, legal status, non-governmental organization.
We are leaving currently in the environment of global changes. Today more than ever governmental infrastructures and social institutions under the influence of worldwide trends are being modified. Amid these changes we are witnessing new collaborations have been developed between NGOs and governmental agencies and social institutions which gives us a room to analyse the role of international law in this relations. It is well-known that here are socio-economic and socio-cultural public associations of a non-commercial nature who play vital and increasing role in the political systems of foreign countries. They are manifold such as trade unions, "civil initiatives", entrepreneurs unions, consumers, environmental and pacifist organizations and movements, cultural societies, women's movements and organizations, youth associations, associations based on nationality, charitable foundations, etc. It is believed that the more numerous and of different such organizations are the more each individual citizen participates in them, the more stable democracy is. According to S.M. Lipset, "the chances for the stability of democracy grow if groups of people and individual citizens belong to several politically significant public associations at the same time"[1].
The question of the definition of NGOs is complex, since there are a number of different definitions in various fields of international law. There is no generally accepted definition of the term "non-governmental organization" in international law. Each area of law that relates to NGOs establishes its own definition.
A non-governmental organization is a non-governmental and non-municipal, non-profit, non-profitable organization established as a legal entity, which in a particular legal system is not part of a government structure, or its activities are not of a specific nature and therefore are not regulated by special laws, does not work for profit and does not distribute the profits and property received, but uses them in in the interests of public or mutual benefit.
It is interesting to take into account the way the concept of NGO is defined in the publications of the DPI (Department of Public Information of the UN Secretariat):
"A non-governmental organization is any voluntary non-profit union of citizens organized at the local, state or international level."[2]
Another content's version of the term under study is as follows, — non-governmental organizations are non-profitable organizations created by citizens on a voluntary basis to achieve common goals that do not contradict legislation, are one of the mechanisms for regulating public relations, acting as intermediaries between the state and citizens to resolve social problems, in the formation of civil society. The activities of nongovernmental organizations are aspired to develop civic initiative, increasing the role of public organizations in solving social problems, and achieving sustainable development of society.
Consequently, there are common points in these interpretations: this association is of a public and noncommercial nature, does not contradict the existing legislation and works in the interests of society. Moreover, it should be noted that the interpretation indicated by the Department of Public Information of the UN Secretariat includes only the most general aspects of NGOs: voluntary and non-commercial in nature. As we can see, there are a number of differences in the other definitions. In one of the definitions, the existence of an NGO as a legal entity is indicated, in others these points are not discussed. One of the variants defines a number of features of an NGO: 1) it is not part of a government structure; 2) its activities are not specific; 3) it is not regulated by special laws; 4) it does not work for profit; 5) it does not distribute the profits and property received; 6) it uses them in the interests of public or mutual benefit. The analysis of this interpretation makes it possible to determine that such content is usually defined by lawyers who try to immediately identify in the definition not only the legal status of NGOs, but also the range of their rights and powers.
Thus, the concept of "non-governmental organizations", although widely used in international and national practice, is not a legal concept. Often it has quite a different meaning. In the broadest sense, it means non-governmental non-profit organizations, although in Tajikistan, for example, there is even a practice of creating state organizations with the inclusion of the abbreviation "NGO" in their name. Many researchers are of the opinion that non-governmental organizations do not include political parties and religious associations.
Historically, NGOs have the starting point of their existence at the end of the First World War. Since then,
they have gained more space in the global scenario, because their actions have influenced many negotiations related to a wide variety of topics.
For the first time, the term under study was introduced by the UN Charter, adopted in 1945, which began with the formed relations with NGOs. Thus, Article 71 of the UN Charter authorizes the ECOSOC "... to take appropriate measures to consult with non-governmental organizations interested in issues within its competence" [3]. It is in the documents of these international organizations that we encounter the term "international non-governmental organizations" (INGO).
So, in the most generalized sense, a non-governmental organization is a group consisting of people who share common interests, ideologies, cultural preferences outside of formal state bodies. An important feature of NGOs is that people organize themselves, and do not use traditional state structures. NGOs provide services in the fields of education, health, ecology, law, culture and art and a wide range of services to support non-profit activities. These organizations fill the gap between government and business in the provision of humanitarian services, and also open up the opportunity for anyone who wants to participate in topical discussions outside the framework of government and business structures.
Non-Governmental Organizations (NGOs) are becoming more and more influential players in the international arena. Since the end of the Cold War, NGOs have gained greater access to and influence over political processes at the national level. In fact, the growing intensity of their activities over the past decade demonstrates that they have become an integral part of the procedures and structures of global governance. They are often directly involved in policy development and can shape political processes from within official arenas. For example, in the United Nations, NGOs are actively involved in the activities and activities of intergovernmental organizations.
The number of NGOs is growing every day, and it is difficult to say exactly how many there are. Their growth is remarkable, especially in terms of their growing internationalization and how they have become prominent participants alongside nation states in setting international standards.
There are two main directions of NGO interpretation: the sociological approach and the legal approach. The first is based on research on social actors and attempts to capture the term by examining the composition and functions of NGOs in the transnational realm.
On the other hand, the legal approach emphasizes the legal status of NGOs in the national context, as well as the implications for international law. Despite the fact that States are trying to regulate and define important relations in the international context by concluding conventions and treaties, NGOs have not yet been recognized by States as having international legal personality. Despite numerous attempts "... to define NGOs and codify their legal status, there is still no widely accepted international convention on the nature and law of NGOs."
Unlike States and international organizations, NGOs are not legal entities of public international law.
As a rule, they have legal personality in accordance with the national legislation of the State, which grants them legal personality and delegates powers to continue their activities. Thus, its creation is carried out by a national legal act without any hint that it is an act regulated by public international law.
In some areas, the growth of NGOs has coincided with the perceived increase in the influence they can and do exert on Governments. They can facilitate and mediate negotiations on a wide range of international agreements on issues of global concern, such as the environment, public health and human rights issues. For example, in the field of human rights and humanitarian law, NGOs have played an important role in developing proposals, promoting and securing State support for a number of international agreements, such as the UN Convention on the Rights of the Child, the Mine Ban Convention (Ottawa Treaty) and the Rome Statute of the International Criminal Court.
From a formal point of view, there are no international legal standards regulating the establishment and status of NGOs at the global level. The relevant legislation is the legislation of the State in which the NGO is based, and this can cause problems in the case of international activities, since national laws differ.
In international law: ... the term "NGO" is equally confusing in its application... There is no agreement regarding NGOs as subjects of international legal personality. While in many countries domestic legislation on "private associations" serves as the basis for the identification and recognition of NGOs, at the international level, international legal standards for defining and regulating the perception of NGOs have not yet been established.
Although NGOs are increasingly involved in international life and negotiation processes, questions about their status in international law and what characterizes them have not yet been answered enough. Despite the fact that "States welcome the contribution of NGOs to international negotiation processes and have granted "private associations" limited recognition at the national level, they have not yet agreed on a standard for NGOs operating in the transnational sphere." It seems surprising that NGOs can participate and are invited to participate in international affairs, but still have an unclear status and characterization in international law.
Since the term "non-governmental organizations" is often found in parallel with the term "civil society", let us define the content of this definition. Civil society should be understood as a set of non-governmental public institutions and relations that allow individuals and their groups to realize private and group interests that are guaranteed and protected by the Constitution. It should also be noted that civil society is a society of economically and spiritually free citizens and their associations, who, in addition to rights, have obligations to the state, clearly defined in the basic law of the country. The modern era marked the beginning of civil society.
According to a prominent German philosopher and public figure, Ralph Gustav Dahrendorf, civil society is the common denominator of genuine democracy and an effective market economy [4].
The development of non-governmental organizations is an indispensable attribute of a transformed society, directly encouraging and expanding the methods of interaction of civil society institutions with the authorities. Therefore, NGOs have recently found themselves at the center of research aimed at studying viable processes of social, economic and political development.
Non-governmental organizations, which are subjects of the third sector, have been developed and recognized in the last twenty years in many countries of the world community, both in developing and post-industrial and post-socialist [5].
It is known that the developed countries of the world community consider NGOs as the most important element of civil society. The third sector emerged in them as an additional mechanism for regulating public relations. The Governments of these countries encourage the development of the non-governmental sector in order to reduce the budget deficit. Moreover, in developed countries, it is finally recognized that non-governmental organizations are more flexible structures compared to State bodies. As a result, it is often more profitable for the state to transfer funds to independent non-profit organizations, of course, in exchange for clear, specific and controlled obligations on their part, than to create additional organizations itself.
In developed countries, non-governmental organizations perform the following functions: act as an intermediary between the state, various social groups and individual citizens, protecting their rights and interests; prevent the state from monopolizing political, economic and other spheres of society, ensuring public control over the activities of the state and its structures, including compliance with the requirements of domestic and international legislation; contribute to the reduction of arbitrariness in the economic sphere, mitigate negative processes in the social sphere, maintaining social stability in society; without pursuing the goal of profit, redistribute and promote the rational use of resources available in society and in the state, as well as create and attract additional financial, material, intellectual and other resources that are directed to the satisfaction of private and common interests; promote the dissemination of knowledge, norms and values of civil society, the development of pluralism; they convey to the state the opinion of the public on various social, economic and other problems; they are a mechanism for the direct implementation of social initiatives of citizens; they provide training of professional personnel, including for the state.
For example, the United States is currently one of the most developed civil society structures in the world, in which millions of citizens take an active position, participate in the work of many non-governmental organizations, including taking on a number of functions that are carried out by state institutions in European countries. Interestingly, in the United States, almost a
third of all budget expenditures for socio-cultural needs are directed to non-governmental organizations, including more than half of all federal expenditures on social assistance, culture, science and humanitarian purposes. More than 1 million public organizations in the USA have a budget equal to 9% of the national product of the country [6]. Cooperation of the State and local self-government bodies with non-governmental organizations is an important factor in improving the efficiency of the use of funds, especially those allocated for social needs.
In general, approximately 3 million non-governmental organizations and about 100 thousand different foundations operate in 22 European countries, while the total turnover of public organizations is 1.1 trillion US dollars, which is equivalent to the gross national product of countries such as Italy and the United Kingdom.
In Europe, civil society has become an instrument of transformation. The main tasks of European NGOs are to ensure democratic development and protect democratic gains.
In particular, in Germany, non-governmental organizations have historically played the role of a tool for smoothing out contradictions between different segments of the population - poor and rich citizens, since they contribute more to solving social problems than charity and patronage. By the mid-90s of the XX century, more than 2 million German citizens were employed in the non-governmental sector, currently this figure has increased significantly [7].
In the UK, the traditions of non-governmental organizations date back to the XIX century. The third sector is an influential branch of economic activity. The most well-known non-governmental organizations have an income estimated in the tens of millions of pounds. In total, almost 200 thousand charities are registered in the UK.
Historically, non-governmental organizations in the countries of the Islamic world have been mainly engaged in charitable activities - solving social problems of low-income segments of the population. Currently, there are more than 20 thousand non-governmental organizations in Iran alone, among them there are those that have existed for several centuries [8].
In India, the national development plan provides for partnership between NGOs and the Government in the implementation of anti-poverty programs, clearly recognizing that NGOs can initiate such actions, organize charity events and events, involve citizens in the planning and development of socially significant programs, provide the necessary support for the implementation of development programs.
Russian NGOs received a powerful impetus for development in the 80s - 90s of the last century. During this period, the methods of relations between the state, business and civil society were revised. In Russia, on the one hand, there is a fairly developed network of NGOs, but there is no proper feedback, i.e. the opinion of representatives of civil society is listened to, as a rule, when it is beneficial to state structures; if it is not profitable, the problem is simply ignored, and most of the population remains passive. This suggests that with
a fairly active and numerous stratum of a really emerging civil society in Russia, a significant part of the population does not fully understand the importance of solving this task or has the vaguest idea about it [9].
In a number of countries, Governments restrict the activities of NGOs. For example, in Argentina, Ecuador, Japan, South Korea and Taiwan, such an association can be registered only if the relevant ministry decides that the goals for which it is being created will contribute to public welfare [10].
Here are several factors hindering the development of the NGO sector: the imperfection of the regulatory framework governing the interaction of public authorities and public associations; the lack of a mechanism for cooperation between the three sectors of society, the system in the organization of financial assistance, preferential taxation; undeveloped traditions of charity, the absence of the middle class as a financial base for the activities of independent non-profit organizations; insufficient awareness of development programs, the mechanism of their formation, the place of public associations in their implementation; insufficient organizational and methodological assistance from the authorities.
We came to the conclusion that the NGOs provide the population with a huge range of educational and awareness-raising services. A lot of work is being done to improve legal education, tax culture, and electoral literacy. One of the successful examples is the experience of women's organizations in creating a network of socio-crisis centers for psychological assistance and adaptation. Non-governmental associations create alternative structures in the political system, represent a necessary condition for the optimal functioning of social institutions, they complete state structures that have not received sufficient development by their activities, and can also act as an instrument in the hands of the state. Of particular note are the activities of NGOs to promote democratic principles in society. In many ways, they promote liberal values, increase the political culture of the population, and develop democracy.
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