The standard approach of international organizations (IOs) makes no formal distinctions between nonprofit private sector associations, known as trade or industry groups, and public interest groups like Amnesty International or Greenpeace. After all, these groups are all organized as nonprofits; they may all be characterized as nongovernmental organizations representing the interests of their memberships; and the groups all seek to advance the agendas of members by offering ideas and expertise to international officials or bodies—classic lobbying activity. Thus, most IOs offer accreditation and access to both private sector and public interest groups on equal terms, without differentiating between them. I will call this approach “interest blind” and use this essay to examine its origins and consequences.
Specifically, the interest blind approach has resulted in robust participation by private sector groups, and their contributions affect the quality of deliberation at international organizations, and of information that international lawmakers receive. While there are dangers, a successful reform will not seek rigid divisions between public interest and private sector groups, as the World Health Organization has recently tried to do,Footnote 1 but will instead capture the informational and practical contributions of all nonstate participants, while introducing more functional registration and disclosure rules.
Interest Blind Access Rules
The United Nations Economic and Social Council (ECOSOC) accreditation system offers a seminal example of how IO access rules work, and has served as a blueprint for other IOs. ECOSOC is empowered by Article 71 of the UN Charter to “make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence.”Footnote 2 ECOSOC has accordingly elaborated regulations enabling NGOs to become accredited to ECOSOC and agencies or bodies within ECOSOC's purview.Footnote 3 Under these regulations, ECOSOC's screening of applicants is not focused on determining which interests the association represents, and whether or not the association's members are for-profit entities. Rather, the criteria principally focus on how well the group represents its membership: A successful applicant must be a nonprofit organization, obtain its funding from its membership, support the United Nations' work, and demonstrate that it has internal governance structures that make it accountable to its membership.Footnote 4 These rules do not offer accreditation to individual businesses, but nonprofit associations advocating for business agendas are eligible.
This interest blind approach did not originate in the United Nations. Rather the United Nations perpetuated the League of Nations practice, which made no distinction between associations that promoted for-profit agendas and those that promoted gender equality, public health, labor rights, and so forth. To some extent this reflected a positive view of links between business and commerce and human flourishing.
Now, private sector groups have registered for accreditation in droves. Examples include:
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• Global sectoral associations, such as the World Coal Association Footnote 5 and the World Nuclear Association;Footnote 6
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• Regional sectoral associations, such as the National Association of Home Builders of the United States,Footnote 7 the European Association of Automotive Suppliers,Footnote 8 and the Association of Latin American Railways;Footnote 9 and
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• Generalist organizations, whether global or regional, such as the International Chamber of Commerce,Footnote 10 the World Union of Small and Medium Enterprises,Footnote 11 and the Turkish Confederation of Businessmen and Industrialists.Footnote 12
Indeed, of the approximately 4,600 organizations that are now accredited with consultative status at ECOSOC,Footnote 13 10 percent self-report “business and industry” as an area of expertise or field of activity.Footnote 14 Because it relies on loosely monitored self-reporting, this figure likely underreports the total number of private sector associations. Many of these organizations have disclosed that their principal organizational purposes include lobbying. For example, the World Coal Association discloses that it aims to “[a]ssist in the creation of a political climate supportive of action by governments” to use coal technologies, and to educate policymakers about the benefits of coal and the coal industry.Footnote 15 The World Nuclear Association “seeks to promote the peaceful worldwide use of nuclear power.”Footnote 16 The National Association of Home Builders of the United States seeks to “[b]alance legislative, regulatory and judicial public policy.”Footnote 17
These business-promoting associations work alongside, and on equal terms with, familiar public interest NGOs like the Sierra Club and Heifer Project International. All of these accredited organizations, public interest and private sector alike, enjoy the same potential menu of access privileges. They can send representatives to sit as observers at meetings of ECOSOC and its commissions and other subsidiary bodies, present written or oral comments, and otherwise advance their agenda items in various contexts, including by direct lobbying.
The interest blind ECOSOC framework has been replicated around the UN system. Some organizations have a parallel to Article 71 in their organizational charters, authorizing a consultation system patterned explicitly on ECOSOC's.Footnote 18 Most, following ECOSOC, will accept input from any association that meets minimal screening criteria. To be clear, ECOSOC's model is by no means the only way for IOs to incorporate outside input. Some IOs do not maintain a standing bench of associational consultants but will instead seek input from associations they invite to consult at particular decision points.Footnote 19 Nevertheless, most IOs with some form of accreditation system admit associations advancing for-profit agendas alongside other NGOs on equal terms.
Consequences
What are the consequences of this interest blind approach? Commentators in law and political science have evaluated the legitimacy and appropriateness of offering accreditation to NGOs,Footnote 20 but these studies have not tended to focus on the private sector. Elsewhere, in developing such an analysis, I have argued that the rules both exclude important business contributions and produce an “astroturf activism” phenomenon whereby businesses covertly use NGOs to advance their agendas.Footnote 21 But covert activity is only one potential way businesses can interact with international organizations. Trade and industry groups are overt champions of business positions at the international level,Footnote 22 and their activity can affect both the quality of the deliberative process and the quality of information that international officials and lawmakers receive.
Quality of deliberative process
The benefits of soliciting input from NGOs and other civil society actors have been broadly observed in domestic literatures on administrative law and in parallel international law literatures,Footnote 23 and many of these benefits are equally applicable in the context of private sector groups. In short, the theory is that robust participation by nonstate groups can enhance democratic values in international forums, which are themselves only derivatively democratic;Footnote 24 can offer “input” legitimacy by facilitating more deliberation and a process that incorporates the views of all potentially affected parties; and can produce greater transparency. Indeed, offering trade and industry groups opportunities to submit input during a rulemaking process can have additional benefits, enhancing the credibility of international rules among those private sector constituents, and building support for the rules among national governments, which may otherwise be subject to disaffected private sector lobbying efforts. Finally, allowing private groups access to the rulemaking process potentially can enhance transparency by allowing those groups to disseminate information about it to their members. In addition to these benefits, Kenneth Abbott and David Gartner particularly celebrate participation by a mix of groups, or “multiple, countervailing interests—such as NGOs, business groups, and technical experts,” as a way of balancing the deliberative process.Footnote 25 Abbott and Gartner see this diversity as a means of preserving equilibrium and preventing capture of lawmakers by any one group.
In organizations like UNIDROIT Footnote 26 and UNCITRAL,Footnote 27 where rules principally govern private sector interests, private sector participation is particularly valuable. For example, a private sector association was instrumental in developing the Cape Town Convention on International Interests in Mobile Equipment,Footnote 28 an important treaty that standardizes financing for aircraft and other mobile equipment.Footnote 29 In particular, the Aviation Working Group,Footnote 30 an association formed by market titans Airbus Industrie Footnote 31 and the Boeing Company,Footnote 32 offered significant feedback to UNIDROIT on the aircraft manufacturing industry's preferred financing rules, and then later launched a major campaign encouraging state governments to adopt the convention and offering best practices for implementation.Footnote 33
At the same time, private sector participation in IO deliberative processes can heighten existing concerns about the representativeness of those processes. Commentators, and the United Nations itself, have long been concerned with the overrepresentation of accredited groups from the Global North to the exclusion of voices from the Global South.Footnote 34 The participation of private sector organizations representing business interests can exacerbate these representational disparities. Beyond North-South disparities, there is the balance of influence between state and nonstate actors at stake. In a recent reform proposal at UNCITRAL, France expressed concern that overly robust participation by private sector associations threatens “dilution of member state control over the decision adopted by UNCITRAL.”Footnote 35 A new WHO Framework of Engagement with nonstate actors airs concerns about conflicts of interest that may arise when nonstate actors, particularly those affiliated with economic, commercial, or financial interests, unduly influence the WHO's independence, objectivity, or professional judgment.Footnote 36 Finally, public-interest NGOs have occasionally expressed surprise and outrage at the idea that industry and trade groups have equal rights, which signals that the interest blind approach can negatively affect the perceived legitimacy of an IO's decisional process.Footnote 37
In sum, private sector participation can enhance the diversity and legitimacy of IO decisionmaking processes, but the case is not unequivocal. If regulatory legitimacy arises in part from the trust that the regulated public has in the process of regulatory decisionmaking, then the presence of private sector consultants has a separate salience than that of the classic NGOs. It is these classic NGOs that international officials and commentators appear to have in mind when they laud the surge in NGO accreditations in the mid-1990s as a “participatory revolution” and expression of “global people power.”Footnote 38
Quality of information
There is clear evidence that, at least in some contexts, private sector associations can enhance the quality of information available to IO decisionmakers. This can, in turn, affect the quality and effectiveness of the rules an organization produces. Private sector associations can contribute to a rule's output legitimacy when they offer expertise about what legal standards might work in a given situation, what alternatives may be available, and what potential externalities may arise. For example, as the Cape Town Convention was being developed, the Aviation Working Group assembled a series of detailed drafts which included extremely technical definitions of aircraft and aircraft engines, which would have only been available to industry insiders.Footnote 39 They also proposed useful default remedies and priority rules, and designed an international online registry to record priority of interests. Another private sector association, the International Air Transport Association (IATA), suggested an innovative treaty design approach that was ultimately adopted in the final text.Footnote 40 Finally, the Aviation Working Group was successful at convincing governmental representatives to adopt a text that would depart in some respects from legal cultural norms that diverged across civil and common law jurisdictions. In short, commentators conclude that this private sector association's participation was “critically important,” and of “inestimable value” to the ultimate success of the treaty.Footnote 41
At the same time, the WHO's experience with tobacco association infiltration demonstrates the potential risks of degradation of information value that flow from the private sector associations when conflicts of interest between the IO agenda and the private sector agenda arise. Phillip Morris and others engaged in “an elaborate, well financed, sophisticated, and usually invisible” campaign to discredit and impede the WHO, “hid[ing] behind a variety of ostensibly independent quasi-academic, public policy, and business organizations,” including “tobacco company-created front groups and trade unions that had obtained consultative status at the WHO.”Footnote 42 As one example among many, the International Tobacco Growers’ Association (ITGA),Footnote 43 a private sector association that originally represented a small group of tobacco farmers, came to be controlled by the larger tobacco industry in order to “serve as a front for [their] third world lobby activities at WHO,” to “undermine WHO tobacco control activities.”Footnote 44
Reforms
The classic interest-blind UN approach to NGOs opens the accreditation process to a pluralistic contest of values and welcomes valuable private sector contributions, but it does not resolve potential legitimacy and conflicts-of-interest challenges. In some IOs, those challenges have become acute, prompting the IOs to rethink this interest-blind model.
For example, in summer 2016, the World Health Assembly adopted a new Framework of Engagement,Footnote 45 which establishes separate rules for the WHO's interactions with two distinct groups: “non-governmental organizations” and “private sector entities and international business associations.” The explanation for this divergence from the classic interest blind approach is historical: it responds to the WHO's embattled history with private sector influences.Footnote 46 For this reason, the rules for private sector entities seek to guard against conflicts of interest and negative impacts on “WHO's integrity, independence, credibility and reputation; and public health mandate.”Footnote 47 The innovative reform flows from an ex ante normative judgment about benefits and risks that attach to private sector participation. What the reform misses, however, is that erecting categorical distinctions for the purpose of balancing representation or quashing conflicts of interest may send some business interests underground—reducing, rather than enhancing, transparency. Moreover, the reforms are likely to overburden already taxed gatekeepers, resulting in application backlogs, incapacity to meaningfully screen applicant associations, and accidental admission of noncompliant groups. Strikingly, under the WHO Framework, officials are charged with independently assessing whether an association may harbor any private sector influences that could potentially cause undue influence over WHO officials and state delegates. This imposes a formidable burden on those institutional gatekeepers in an era where NGOs often have close links and partnerships with the corporate world, and where business actors seek all potential avenues to influence transnational ordering.
A better course may be for IOs to stop examining a group's accountability to its membership, as the ECOSOC approach requires, and to refrain from attempts to police a group's motives, as the WHO reform does. Rather, a better reform might accept input from all sources, presuming that groups will advance a diversity of special interests, some profit motivated, and some unrelated to profit. Potential conflicts-of-interest issues could be mitigated by a structured process drawing from domestic models such as U.S. notice-and-comment procedures or lobbying laws requiring disclosures and implementing other protections.Footnote 48
Open access
