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Recognition and Protection of NGOs in International Law
by
Frits Hondius

Historical Background
There is no denying the ever growing importance of NGOs. The award of the Nobel Prize 1999 to
« Médecins sans frontières » is a striking example. Hundreds of NGOs were present at the forum
organised in the margin of the WTO conference in Seattle and thousands more are lobbying , for
or against WTO, on the Internet. NGOs are on vo luntary duty in areas torn by human conflict
such as Eastern Timor, Kosovo and Chechnya or by natural disasters such as Turkey or Central
America.

Still, the legal status of NGOs is uncertain and imperfect. The quest of NGOs for recognition of
their status under international law is almost a century old. The first demand to that effect was
voiced in a resolution in Brussels 1910 at the world congress of international associations. Forty
years and 2 World Wars later , the international community gave the beginning of a reply, by
adopting the 1956 Hague Convention on recogniti on of the legal personality of foreign
companies, associations and foundations. However, governments were more than hesitant to
give effect to this private international law instrument. It never entered into force.

A fresh initiative was taken in 1959 by the Union of International Associations, which campaigned
on behalf of international (not just foreign) associations and circulated proposals to various
worldwide organisations. One of these, FAO, which is surrounded by a nebula of NGOs, reacted
positively. Given the fact that many worldw ide IGOs and NGOs are headquartered in Europe,
FAO suggested that the oldest and broadest European organisation, the Council of Europe,
should lead the way. The Council accepted.

The NGOs’ original shopping list was very ambitious and included a demand for tax privileges.
However, the Council of Europe, conscious of the saying « qui trop embrasse mal étreint »,
reduced the proposal to one single item : international legal recognition, the alpha and omega of
NGOs. The tax question was not forgotten however but taken up by another organisation,
Interphil and by the latter’s European branch, Europh il, which is still working on the matter. It is
preparing a round table on taxation of NGOs in Barbados summer 2000).

Convention N° 124
On 24 April 1986, more than 75 years after t he Brussels resolution, the Convention on the
recognition of the legal personality of internatio nal non-governmental organisations, registered in
the European Treaty Series under N° 124, was signed at a ceremony in Strasbourg It entered
into force on 1 January 1991. It consists of 11 shor t articles. Under it, an international NGO duly
incorporated in country A is automatically recognised as such in countries B, C and D.
Convention N° 124 is the world’s first and only international legal instrument on NGOs.

Nine countries have ratified or signed the Conventi on, and it is expected that others will follow,
especially in Central and Eastern Europe. Four countries having a large NGO population : United
Kingdom, Belgium, France and Switzerland, have rati fied it. Two parties in central Europe, Austria
and Slovenia, occupy a bridge function between East and West. Two others have very special
links with foreign NGOs : Greece, where so many foreign archeaological institutes are active and

Portugal which houses the Council of Europe’s North-South Centre for interdependence and
solidarity which assigns a special role to NGOs. Moreover, Cyprus is also in the process of
becoming a party. Its signature is motivated by its strong attachment to Europe.

NGOs for Democracy and Human Rights
Convention N° 124 was prepared before the breakdown of communism. It was geared to
cooperation between NGOs within the West ern world and between these and third World
countries. Nobody had anticipated the formidable rôle of NGOs, such as Solidano śc or Neues
Forum, were soon to play in the process leading to the collapse of communism and the return of
Central and Eastern Europe to democracy, human rights and the rule of law. Also after the fall of
the Berlin wall NGOs in Central and Eastern Europe have remained in the forefront, to fill the gap
left by the retreating State and also as critical partners of government and intergovernmental
organisations The Council of Europe had developed an important programme of assistance and
cooperation with Central and Eastern Europe to help enhance the new legal and political
framework of NGOs . As well as bilateral programme s in all States of the region– and it should
be emphasised here that the Council of Europe has these states as full members, ranging from
Lithuania to Georgia and from Albania to Russia- the Council organises major multilateral
meetings in Strasbourg, such as « Associations and foundations » (November 1996) and « Legal
status of non-governmental organisa tions and their rôle in a pluralist democracy « (March 1998).

In reponse to the desire voiced by NGOs at these meetings, the Council is now drafting a
Charter for the development of a legal framework fo r NGOs in Europe. This will apply not only to
international, but also to national and local NGOs, for the success of international NGOs
depends to a large degree on their national infrastructure. The Council carries out this work in
cooperation with other intergovernmental and non-governmental organisations: the European
Commission, OECD, OSCE , the Royaumont Process, etc..

Recognition
For all international NGOs recognition of their l egal status is a crucial question. Many of them
work closely together with intergovernmental bodies: Unesco in Paris, WHO in Geneva, the
Council of Europe in Strasbourg, the European Co mmission in Brussels, etc NGOs often view
with a certain degree of envy the legal, financial, fiscal and security safeguards of IGOs, their
privileges and immunities. ‘Why they and not us ?’ Whether an organisation is intergovernmental
or non-governmental, ie private and voluntary , is a fundamental choice And there is no
alternative for an NGO but to obtain the status of a private body under the law of a given country.
There is no international status for NGOs. Some countries, such as Belgium, offer a special
status under their law to foreign NGOs but these are and remain Belgian.

An international NGO may of course prefer to remain unattached to a given country. For 50
years the Bureau International du Scoutisme had no given national status. It was suspended in
the air. But sooner or later, an international NGO is simply obliged to acquire status somewhere :
it employs staff, rents o ffices, opens bank accounts. All this can only be done if it exists legally
under the laws of a given country.

Once that status is assured, an NGO wishes to see its legal status in country A recognised in
countries B, C and D. This can be achieved by bilateral treaties A>B, A>C, B>C etc.

It is much however more practical to arrange this by multilateral treaty. A mathematical formula
shows that if ten countries have the choice between bilateral treaties or a multilateral one, the
choice is between 45 treaties or one. The advant age of the multilateral treaty is not only the
single text and one contents, but also that there is one organisation which drafts it and helps to
implement it.

For any international NGO recognition means being able to do its work in different countries
without being encumbered by additional formalities in every single country.

Some countries which are not yet party to Convention N° 124 have argued that there is no need :
our internal law is fully in harmony with Conven tion N° 124, our courts and our administratrion
recognise foreign NGOs no matter their legal form. These arguments miss the crucial point. Even
if a country’s internal law prohibits torture, that should not stop it from joining a treaty against
torture. On the contrary, no country can be party to an international treaty if its internal law is not
in order. But there is more : first , the fact that a country’s law fully respects the status of foreign
NGOs does not guarantee full respect for its own N GOs in other countries. Above all, there is an
ocean of difference between granting something to NGOs under domestic law or accepting a
solemn undertaking before the world community to respect the identity of international NGOs.

NGOS Are Entitled to Protection
The freedoms of NGOs set out in articles 9 ,10 and 11 of the European Human Rights
Convention (freedom of conscience, expression and association ) are fundamental freedoms
which States are bound to respect and protect. In return, many NGOs help to maintain the
international human rights protection system. The International Criminal Court, whose statute was
adopted in 1998 by governments in Rome, would never have come about in that form if it were
not for the relentless campaigning and advocacy by NGOs.

NGOs are entitled to recognition as well as pr otection. An international study on security
problems of humanitarian NGOs conducted last year by Professor Mario Bettati (Paris) under the
aegis of the Brussels based Union of International Associations has produced a grisly catalogue
of aggression committed against NGOs and their sta ffs, ranging from robbery and confiscation to
violence and murder, 45% of these crimes being committed by government people. It comes as
no surprise that many of the organisations interviewed have indicated that they expect a
reinforcement of their protection by governments. Accession to Convention N° 124 is a first but
essential step by governments in the direction of improved legal status and protection

December 1999

The author is former Deputy Director of Human Ri ghts and Legal Affairs of the Council of Europe.
In 1990 he was in attendance as Depositary at the ceremony of ratification of Convention N° 124
by Belgium which led to its entry into force. He is former President of Interphil and member of
the Council of the Union of International A ssociations, the two NGOs which took part as
observers in the drafting of the Convention. He is at present Chief Trustee, The Europhil Trust,
which conducts work on the tax treatment of NGOs .