reading dec 5 - non-state actors in global governance Flashcards
Enforcers Beyond Borders: Transnational NGOs and the Enforcement of International Law
intro
Mette Eilstrup-Sangiovanni and J.C. Sharman (2021)
aim = establish nature and significance of transnational NGO enforcement + explore factors behind its rise
NGO enforcement = spectrum of practices from indirect (monitoring, investigation) and direct (prosecution and interdiction)
factors behind its rise:
- rapid diffusion international laws -> growing demand for enforcement national and international level (+ limited state capacity)
- new surveillance + data-gathering tech allows NGOs to monitor and investigate more extensively, effectively and cheaply + changes procedural laws in many jurisdictions have widened access NGOs to international and domestic courts
case studies: environment + anti-corruption sector
!article is exploratory + theory construction rather than testing
“Even in a context where the participation of NGOs in global governance is now widely accepted, lingering state-centrism means that scholars have been slow to appreciate NGOs’ roles in the pluralization and decentralization of international enforcement. Our contribution here is thus both conceptual as well as empirical in highlighting this important but so far neglected aspect of contemporary global governance”
enforcement of international law
= conventionally seen as responsibility of the state
but NGOs have assumed important, growing AUTONOMOUS role in various forms of cross-border law enforcement
- patrolling, surveillance, investigation, confiscation, destruction of illegal equipment, litigation and prosecution
NGOs decentralize and pluralize international law enforcement
NGO enforcement = Autonomous monitoring, investigation, and prosecution by NGOs as part of a strategy to hold violators of international law accountable
- !! is diff from private military/security companies bc they are seconded or controlled by govs, NGOs aren’t
NGOs and global governance
- NGOs contribute to 3 stages global policy-making:
- pre-negotiation / agenda-setting stage = NGOs promote new norms
- policy formulation stage = NGOs provide technical and policy-relevant info to states and IGOs
- policy implementation stage = NGOs assist with implementation: operational functions (e..g. education or health services, monitoring, analysis, persuasion, naming and shaming)
- states often rely on NGOs to monitor environmental regimes
= primary roles of NGOs are to call attention to problems, to instigate new norms, and to put pressure on states to translate these into law
some NGOs focus more on their advocating role, other NGOs are engaged in transnational enforcement (seek to compel compliance through calculated and autonomous engagement with formal law enforcement agencies and the legal system)
- human rights = often a bridge between these two roles/understandings: they advocate for human rights + collect evidence and investigate
although NGOs enforcing domestic human rights are bolstering international law, sometimes acting through international courts, environmental and anti-corruption NGO enforcers more clearly epitomize the transnational, global governance aspect of this role
conceptualizing transnational enforcement - different strategies
law enforcement = actions aimed at compelling compliance with the law
- includes both criminal and civil law actions
- involves detection, investigation, arrest, indictment, prosecution, conviction and punishment
- usually done by police, public prosecutors and other state-mandated law enforcement authorities, but increasingly NGOs contribute
not all actors do all elements of law enforcement (e.g. police does detect and investigate, but not prosecute or convict)
historically: law enforcement by private parties rule rather than exception + recently sharp increase in climate litigation cases brought by NGOs against govs and corporations
!also: growing tendency of international law to be enforced in domestic courts
- transnational litigation = legal proces before a domestic court involving a foreign element and brought by a non-gov actor
focus on hard law
the enforcement spectrum: indirect and direct action
indirect action = focus on monitoring, surveillance and investigation
- carried out autonomously of particular govs (even if it ultimately relies on state-created law and courts)
- directly aimed at specific violators, to make sure they are subject to formal legal penalties
*rather than focus on monitoring overall compliance
direct action = including civil litigation, criminal prosecution and interdiction
- NGOs can take direct preventive or punitive actions against law-breakers:
e.g. The Sea Shepherds Conservation Society + The Black Fish = confiscated/sabotaged equipment used for illegal fishing + instituted maritime blockades - civil or criminal litigation: initiate legal proceedings
many direct enforcement actions have indirect effects in the form of demonstration effects or by provoking government action
main diff = direct effects have an effect even if states choose not to react at all
explaining the rise of NGO enforcement
transnational enforcement = relatively recent + increasing as international law is increasing
demand: rapid proliferation of international laws without corresponding increase in state enforcement capacities -> enforcement gap to be filled by NGOs
supply: technological and legal advances have reduced the costs for NGOs to supply transnational enforcement
- declining cost remote-sensing technologie (e.g. GPS) + new aerial surveillance tools (drones) + online tools: google, screenscraping software (financial data from the web)
- international treaties widen the scope for NGO participation (e.g. Aarhus and Alpine Conventions), extending locus standi to NGOs to sue on behalf of underrepresented third-parties or the public as a whole
- growing trend international tribunals addressing questions of a collective/public nature (e.g. environmental law)
cases and expectations
environmental protection + anti-corruption
these areas bc: recent expansion international laws + new tools that facilitate independent NGO enforcement + expand earlier coverage of enforcement actions by human rights groups
both cases = plausibility probe of causal argument regarding changing demand and supply factors
key expectation = changing demand and supply factors lead to growing NGO enforcement
environmental enforcement
among the fastest growing areas of international law BUT detection and punishment for environmental crimes remain low as states lack capacity or will
technological advances: GPS, drones etc. extend monitoring and surveillance, declining costs for tech as satellites, radar etc. mean they are also available to NGOs
legal advances: allowed environmental NGOs to gain the status of injured parties before international and national courts
- EU: UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Mattes 2001 -> NGOs legal standing in national courts
indirect and direct enforcement
- independent monitoring -> supply evidence to gov authorities to facilitate arrests and prosecution: e.g. SkyTruth uses satellite imagery to document oil-spills
- indirect enforcement e.g. WJC (wildlife justice commission), Environmental Justice Foundation (EJF) 2001 = to expose illegal fishing and human rights abuses using remote sensing tech
- litigation: e.g. Greenpeace private prosecution against Albright&Wilson for an outflow pipe + sued Norwegian gov for contribution to climate change
- direct enforcement = e.g. Sea Shepherd Conservation Society (SSCS) combats illegal fishing, explicitly a policing organization = ramming/scuttling whaling ships, destroying illlegal fishing nets etc. = walks strict line between law enforcement and vigilantism
e.g. Nigerian-flagged ship ‘Thunder’ accused of illegal toothfish fishing, wanted by Interpol but no gov did anything -> SSCS sank the ship, seized evidence and rescued the crew that could be prosecuted afterwards
anti-corruption enforcement
growing legalization and enforcement gap: treaties and conventions proliferated since the mid 90s (e.g. Inter-American Convention against Corruption 1996 + OECD Anti-Bribery Convention 1997 + UN Convention against Corruption 2005)
- corresponding increase in domestic anti-corruption legislation as international law was translated into national law
- low effectiveness bc international corruption cases are slow and legally complex
technological and legal advances:
- privatization financial surveillance in the 90s (banks made responsible for anti-money laundering monitoring)
- falling price computing power and free/cheap analytical software -> small NGOs can use it
- private parties can increasingly use civil law remedies to forcibly obtain evidence, freeze funds and confiscate assets
- new law like UN Convention against Transnational Organized Crime (2003) and Corruption (2005) -> give/expand right of non-state actors to bring private criminal prosecutions
indirect and direct enforcement:
- investigative group ‘Global Witness’ builds detailed accounts of individual corruption offences (e.g. leaders from Congo, Liberia, Angola and Turkmenistan) + naming banks laundering the proceeds
!gets funding from state dev. agencies, investigations are independent - NGOs campaign against Teodorin Obiang (vice president Equatorial Guinea) -> convicted in French court (bc money was laundered in France) + faces another NGO-led prosecution in Spain
!France gov fought the NGOs bc hostility to unauthorized enforcement, but lost - Corner House specializes in corruption in the arms trade, challenges attempts to freeze alleged corruption proceeds in Britain
conclusions - benefits of NGO enforcement
- multiplies resources devoted to investigating and prosecuting international crime
- shifts costs from gov to non-profit sector
- NGOs can focus enforcement effort on specific areas and countries of concern
- official monitoring and verification systems have to monitor compliance with treaties universally - NGOs can bring expertise and capacity
- when independently funded, NGOs subject to fewer domestic political pressures than govs -> can be more aggresive/consistent enforces of international norms and standards
- NGO enforcement can serve as check on unresponsive states
conclusions - concern NGO enforcement
is there enough protection of innocent parties from being falsely accused and punished?
NGOs may be less impartial than state officials + make selection to focus based on strategic aim with wider societal impact (-> selective and biased enforcement)
may weaken executive and legislative oversight of policing -> reducing democratic legitimacy and accountability
recalls common criticism NGOs as partial, unrepresentative and unaccountable
- but: state unresponsivness also not unbiased
if states shirk their enforcement responsibilities bc NGOs do it, the net effect may be zero or negative (NGOs reduce incentives for states to enforce)
