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Practice what you Preach? Limitations to Imposing Democratic Norms on NGOs

This paper challenges the scholarly tendency of imposing democratic norms on nongovernmental organisations (NGOs). For decades there has been a strong debate among International Relations and International Law scholars on the question of whether or not NGOs contribute to the democratic legitimacy of international law. Notwithstanding different arguments, both critics of and adherents seem to be primarily occupied with theorising and criticising the internal democratic legitimacy of NGOs. In this article I question whether this is justifiable. Imposed democratic norms conflict with the inherent unpredictable character of NGOs. Whereas the unpredictability of NGOs in terms of form and content is often perceived as unreliable, it characterises their essential voluntariness, which can be considered their main contribution to democracy.


Introduction
Law shapes the lives of individuals, obliging them to undertake certain actions or to refrain from undertaking action by using the right to issue commands and International Community Law Review 20 (2018) 3-29 enforce these commands. In democratic societies, the subjects of law traditionally find this far-reaching exercise of authority acceptable, as long as they can equally determine the content of it. Acceptability means here as much as recognising the 'right to rule' of a public authority.1 It is upon this condition that laws are deemed democratically legitimate. International law is often criticised for not living up to the promise of democratic legitimacy.2 One of the proposed remedies for the democratic deficits of international law concerns the participation of NGOs in international lawmaking.3 For the sake of this article, I call this proposition the 'NGO democratic legitimacy thesis' . Interestingly, together with the claim that NGOs contribute to the democratic legitimacy of international law comes the assumption that they only can do so, when they are democratically organised themselves.4 International Community Law Review 20 (2018) 3-29 In this paper I assess the validity of this assumption. I aim to substantiate and further develop the work of, among others, Charnovitz and Peruzzotti,5 by discussing different concerns that allow us to question the imposition of democratic norms on NGOs. Section 2 introduces the practice of NGO participation in international law-making. Section 3 addresses some of the core elements of the NGO democratic legitimacy thesis. Section 4 sets out the democratic expectations towards NGOs that dominate the debate on the NGO democratic legitimacy thesis. Section 5 argues that an external standardisation is complicated by the inherent voluntariness and indeterminacy of NGOs. Section 6 discusses the consequences of scholarly attempts to 'govern' NGOs by imposing democratic norms. Section 7 further specifies these governing attempts by focusing on the tendency to describe NGOs in content-independent procedural terms. Section 8 touches upon the pitfalls of prioritising a focus on NGOs' democratic legitimacy, compared to the relative silence on what is required of the international political constellation in terms of institutional and social preconditions for any democratic legitimation of international law is possible.

NGO Participation in International Law-making
NGOs form a heterogeneous object of study, organised in different ways and set up with different aims and functions. Therefore, I take some of their common similarities in 'form' as a starting point: NGOs are a collective of individuals by people who have voluntarily formed an organisation, not for profit, independent from governments. They are formally registered by a state, and adopt non-violent approaches to their work.6 The specific type of NGO that is object of inquiry here exercises influence on international law-making processes by strategically persuading states and international organisations to enact new norms or to change old ones. There are many other roles NGOs take up in international governance. NGOs carry out many services that government and the private sector are ill equipped or disinclined to do. In this article, I limit myself to NGOs involvement in international law-making, as this capacity is central to the NGO democratic legitimacy thesis.
International Community Law Review 20 (2018) 3-29 International law-making knows different stages: norm emergence, norm cascade and norm internalisation.8 The NGO democratic legitimacy thesis oscillates between the first two stages. First the actors object of the thesis are the NGOs, led by norm entrepreneurs, that push the adoption of a certain norm, out of humanity concerns or out of commitment to specific beliefs. Often, they have to compete with, and contest other norms. The switch from norm emergence and norm cascade might take up more than eighty years, as the domestic and international advocacy for women's suffrage has taught us.9 The intended norm cascade by NGOs occurs under the auspices of states and international organisations that, after embracing the new norm, instigate other states to do so as well. NGOs try to assure the support of states in different ways, using different tactics, including but not limited to agenda setting, problem definition, information provision, advocacy and mobilisation, lobbying, direct participation in the formulation of new norms, and monitoring nation-state enforcement of principles and norms.10 NGOs engage both their supporters and their constituency by their concerns and values that generally are presented to have a public benefit purpose.11 Since 1948, emergent norms have increasingly become institutionalised in international law. The participation of NGOs in international law-making itself is nothing new.12 One of the frontrunners was the Institut de Droit International, founded in 1873, that presented the idea to establish a court of arbitration and prepared several significant treaties.13 Furthermore, the International Law Association has been actively engaging in international lawmaking and codification for more than a century.14 The Paris Peace Conference of 1919 is considered one of the early milestones for NGOs' participation in adopted a practice of organising 'interactive hearings' with civil society organisations before major UN events.28 NGOs' presence has been particularly evident in the specialised conferences, which increased in scope and number during the early 1990s. Examples are the UN Conference on Environment and Development in Rio de Janeiro in 1992 and the Fifth World Conference on Women in Beijing in 1995. In the last three decades the number of civil society organisations engaged in international law-making has increased at an unprecedented pace.29 However, sympathy for NGO participation in international law-making seems to have weakened in recent decades. This could be partly explained by the increased attempts of international organisations to attract corporate actors, characterising a new paradigm called the 'multi-stakeholder dialogue' . These corporate actors often have, due to their size and the impact of their decisions on society, a better bargaining position than many NGOs.30 Besides, particularly after the attacks of September 11, 2001 and the consequential increased tensions in world politics, states are less tolerant of civil society actors and seek to retain their tight grip on UN law-making processes.31

The NGO Democratic Legitimacy Thesis
Notwithstanding the ups and downs in intensity of, and attitude towards NGO involvement in international law-making, the thesis that their involvement contributes to the democratic legitimacy of international law has been defended for over a century.32 Strong claims have been advanced that the participation of NGOs, often captured in the broad term of 'civil society' , is essential for a democratically legitimate international order.33 NGOs allegedly advance the possibilities of participation and control in global governance through pushing for more transparency, policy monitoring, and review, and promotion of formal accountability mechanisms.34 Scholars present NGOs as representatives of marginalised people.35 In this view, states are considered to be imperfect representatives of public opinion as they disregard minority viewpoints. The participation of NGOs allegedly meets the shortcomings of states by giving a platform to otherwise neglected voices.36 NGOs are considered especially sensitive to these outcast voices. They can help people to assert their won power and make efforts to listen to those who are never or rarely heard, rather than seeking governmental or economic power.37 NGOs are also often understood as facilitators of a flourishing global public sphere,38 and as contributors to the strengthening of deliberations taking place during international law-making processes.39 The NGO democratic legitimacy thesis is generally accompanied by a call for institutional innovations to connect governments, international organisations, civil society, and corporate actors,40 which have been endorsed by many international organisations.41 It is noteworthy that around the turn of the twentieth century, an increase in critical scholarly work can be witnessed. Scholars, including but not limited to Anderson and Johns, have contested specifically the claimed correlation between the participation of NGOs in international law-making and democratic legitimacy of international law.42 Democratic expectations regarding NGOs are considered naïve and optimistic.43 These critical notes might represent something of an adverse reaction towards the scholarly fascination with the 'innate goodness' of NGOs. argue that the information spread by NGOs distorts, rather than enlightens, public opinion.46 Others claim that the large number of NGOs active in the international legal order creates an 'excess of civil society' .47 The competition with each other for access to resources and means to influence international law-making distracts most NGOs from their social purpose.48 NGOs are assumed to have an inherently biased position, and the risk of NGOs forming dominant factions is considered to increase with their participation in international law-making forums.
The increasing participation of NGOs in international law-making, that was most unprecedented around 2000 and recently plateaued,49 has fuelled scholarly debate not only about their contribution to the democratic status of international law-making, but also about the democratic legitimacy of NGOs themselves.50 Critics argue that NGOS are unrepresentative and unaccountable.51 The detachment between NGOs and the people they purport to represent is considered to reinforce a global divide of wealth, mobility, The academic discourse on the NGO democratic legitimacy thesis demonstrates an interesting dynamic. On one hand, NGOs are considered ideologically committed to participation, political equality and freedom as a strategy for emancipation and empowerment and therefore apt to contribute to the democratic legitimacy of international law. On the other hand, both proponents of the thesis and its critics see this contribution as only operational when NGOs are democratically organised. The focus of the debate shifts back and forth from the question whether NGOs can be used as a cure for the current undemocratic domination by international law to the possible domination exercised by NGOs themselves.

The Ideal of a Democratic NGO
Apparently NGOs' limited representativeness,54 their elitist character,55 their lack of accountability, and the dependency of NGOs on states are assumed to preclude the NGO democratic legitimacy thesis. 56 The argument is based on a certain urge for reciprocity. 57 Anheier's statement is exemplary: " [I]f a nonprofit seeks to promote democracy and the rule of law, must it not itself be democratically organized and soundly governed?"58 Also, Black's reasoning International Community Law Review 20 (2018) 3-29 characterises the NGO democratic legitimacy debate: "Enrolment can potentially enhance a regulator's legitimacy within a legitimacy community, but if the actor enrolled is not considered legitimate, it may well erode it".59 A democratic ideal-type of NGOs is constructed.60 NGOs should prove that they are authentic intermediaries of the interests of the 'people' .61 Their democratic deficits affect the authority of international law as they lead to the degradation of the democratic processes to the detriment of the people truly affected by global legal developments.62 Equally resilient in academic discussions is the argument that NGOs only have democratic effect as long as they are capable of remaining independent of state organs.63 Further, in more general terms, scholars require civil society at large to be a transparent sphere in order to be able to create space for consultation, evaluation, and revision by interested and affected people.64 At first sight it seems perfectly valid to put requirements by law or by other rules on the organisation of NGOs in order to prevent that NGOs obstruct instead of contribute to democratisation.65 Evidently there could be tensions the typologies70 or taxonomies71 of NGOs. The characterisations of NGOs vary according to the writer72 as well as the definitions held73 and the selection of NGOs as the subjects of their research. However, the existing diversity of organisations that are covered by the notion 'NGO' is not perceived to be an obstruction to a general discussion of their pre-determined merits for international law-making.74 NGOs, under such a general account, are assumed to be able to have a standard form and offer an organised will.75 However, the same generality in expectations continues to change in terms of content according to the different normative perspectives of the respective scholar.76 The inclination to base conclusions on generalisations, with presumably strong predictive power, gives insight into one of the recurring tendencies in the NGO democratic legitimacy thesis: the assumption of structural systematics in global civil society. Scholars engaged in the debate imply that the sum of all NGOs, although different from one another, can be defined as a coherent, bound, identifiable object of theory. One can question the persuasiveness of considering NGOs as an object of a law-like generalisation, given their formlessness and variety of manifestations.77 Three preliminary remarks can be made in this respect. First, it is clear that NGOs differ from one another.78 This observation is in line with the most common criticism on any attempt to define the NGO. Although there is a certain level of consensus regarding the importance of associations for democratic political processes as well as the virtuous role that the participation of citizens might play or have played in democracies, the same consensus hides a significant disagreement over how to understand and select specific actors who are part of the broad term 'associations' . The term NGO can be used quite freely to label any association of people, which may be operational, providing services, advocacy oriented, or protesting. NGOs might be large, small, rich, representing the voice of liberal or left wing activists.79 NGOs might be organised to attain goals beneficial to the self, such as football clubs or chambers of commerce, or to strive for aims that are altruistic, such as the World Wildlife Fund or Amnesty International.80 Different NGOs have different levels of independence. The donor structure of an NGO might be made up of private companies, states, a few well-to-do individuals, or a large group of disadvantaged people.81 In addition to the clear-cut financial support of members, most NGOs maintain donor relationships with philanthropic foundations, private companies, or governments. The financial dependence of NGOs on many actors with divergent institutional settings obfuscates thinking in general terms about how, to whom, and on the basis of which standards NGOs should be held accountable. Notwithstanding the obvious variety of groups that are referred to by the term NGO, it is not so much the empirical fact of diversity that I consider problematic for their generalised contribution to the democratic legitimacy of international law. The fact that NGOs can easily change internally in terms of constituency, purpose, activity, and donor construction is more puzzling. This brings me to my second hesitation with regard to the common generalisations of form and functioning of NGOs. When one mentions NGOs, one refers to a body of organisations with a prismatic variety of content.82 Their manifestations -their position taken towards other actors and roles in a society -are subject to unpredictable change. The argumentative power of the generalisations concerning NGOs is flawed by NGOs' indeterminacy, partly by the fact that 'NGO' might mean anything, but more importantly, that tomorrow's NGOs might be complete different entities than they are today. 83 One can envisage that an expectation concerning the representativeness of an NGO that was primarily based on individual donors as part of a marginalised group does not hold when the same NGO is flourishing five years later on the basis of a substantial gift from one individual donor. The way an NGO works might change according to context, which is sometimes aimed at cooperation with states and international organisations,84 and sometimes in opposition, and sometimes on their own initiative, mobilising the 'excluded' in order to give voice to topics that are otherwise neglected. Because of the fact that an NGO originates from a private initiative, there are no guarantees concerning the consistency of its policy, financial structure, or even its existence. This is not a bad thing per se, but it is problematic for the validity of the ante hoc normative expectations that underlie the NGO democratic legitimacy thesis. Interrelated to the contentiousness of determining the role of NGOs in international law-making is the question of whether NGOs can be generalised as an equivalent for, or part of, (global) civil society is correct,85 which takes us to my third hesitation. The collection of NGOs, often equated with civil society, is far from a constant and uncontested factor. Many biases are hidden behind the assumingly 'neutral' connection between NGOs and global civil society. The analytical terms used in current writings on NGO involvement are permeated by a distinction between public and private actors, in which public is state and private is non-state. For example, from a linguistic (and consequently political) point of view, placing the NGO within civil society prevents thinking of NGOs as participants in the exercise of public authority.86 There are three manifestations of the controversy surrounding global civil society and NGOs. First, the actual existence of an international public or civil society is highly contentious. Second, there is debate concerning the alleged benefits that a global civil society might bring to the democratic legitimacy of international politics. Third, there is no agreement over the boundaries of the concept: whether the generally shared ideal or typical representation of global civil society can be perceived as an identifiable sphere, space, or 'third system' .87 The reason for disagreement concerning the understanding of civil society is that concepts such as civil society and NGOs are, less than complex in terms of definition, inherently fluid and dynamic. The fragmentation in terms of what is implied by the term NGO excludes a priori conclusions with regard to the NGO democratic legitimacy thesis.88 Upholding a thesis based on whatever contribution of NGO to international law requires empirical studies to learn case by case what role is performed by which organisation, and in 85 Also Amoore and Langly detect and criticise "the tendency to equate GSC (red: Global Civil Society) with the practices of voluntary associations". "In short GCS becomes defined as voluntary associations and vice versa." Amoore  what political setting.89 Empirical studies should refer to intentions, purposes, and reasons for actions of NGOs engaged in international law-making, to "purify [the] descriptive vocabulary" of the current NGO democratic legitimacy debate.90 The fulfilment of the pre-determined responsibility, which is assumed with the NGO democratic legitimacy thesis, can be empirically tested ex post, or ad hoc. However, notwithstanding its explanatory power,91 even a generalisation based on empirical studies still lacks predictive power.92 In sum, the diffuse and ever-changing characteristics of NGOs in terms of structure, content, organisation, and membership exclude any ante hoc conceptual expectation.93 Besides the questionable success of formulating general normative expectations with regard to NGOs, it is dubious if one should subject NGOs, which are primarily content-driven, to content-independent democratic norms. In the subsequent sections, I will first discuss the general problem of governing NGOs,94 and second, I question the merits of describing NGO involvement in content-independent terms. 89 However, case studies are complicated by the fact that the efforts of NGOs to change the law often spread out over more than two decades. Only at a reflexive moment after a culmination of interactions initiated and driven by NGOs, one might be able to indicate that NGOs did have actual impact on the law. 90 MacIntyre, supra note 88, p. 98. 91 According to Macintyre, studying NGOs role empirically will not do the trick. Predictability in human affairs is systematically obstructed. MacIntyre, supra note 88, p. 98; p. 106 International Community Law Review 20 (2018) 3-29

The Problem of Governing NGOs
The reasons for including NGOs in international organisations are manifold. The most obvious one is that the working area of NGOs and governmental actors often overlap. The values on which NGOs base their activities and their existence is often related to governmental activities, which makes it mutually beneficial for NGOs and governmental actors to work together. Interestingly, not only scholars prescribe an internal democratisation of NGOs before their contribution to international law can be considered justifiable, but also some legal documents concerning the accreditation of NGO participation in international organisations consider it a prerequisite for their involvement.95 Also many NGOs are themselves involved in a similar effort of independent standardisation regarding their internal organisation. Imposing democratic norms on NGOs is often understood as an attempt to assess and ensure NGOs trustworthiness.96 Trust is a fundamental element of legitimacy.97 Therefore trust in international law, because NGOs are involved in the making of it, inherently implies trust in NGOs, which must be grounded. However, there is evidently a difference between applying standards to prevent NGOs from engaging in wrongdoing, corruption, or illicit behaviour,98 and requiring an NGO to be organised in the way 'we' think an NGO should be organised.99 When standards are imposed on NGOs, they are pushed towards becoming particular organisations they might just not be, want to be, or have 95 The scholarly tendency to focus on NGOs organisation can be mirrored with the institutional practice of the accreditation mechanisms. ECOSOC Resolution 1996/31 mentions strong endogenous requirements towards the organisations that require consultative status (see para. 10, 11, and 12). Interesting in this regard is the fact that European rules on accreditation deliberatively leave aside the requirement of democratic adopted constitutions for NGOs. Participatory  There is a fine line between NGOs maintaining their usefulness towards governmental organisations, which increases their chances of participating in international law-making, and maintaining their own identity and independence. To prevent NGOs from becoming the fourth arm of governmental organisations, one should abstain from too many regulations. Any formulated requirement by the international organisation concerning the internal organisation of NGOs would lead to the undesirable situation in which the demandidentity of international organisations or states is unilaterally made a decisive factor for the form, function, and characteristics of an NGO. Consequently, social-political conceptions will start to function as a substitute for the specific purpose-relevant identity of an association initiated by citizens.
Besides, undeniably attached to, and reflected in NGOs' work, is their vision of humankind and its place in society. The imposition of democratic norms requires an adaptation of democratic decision-making that subsequently leads to the arbitrary interchangeability of their vision of life and politics. Such interchangeability is, in the case of governmental actors, the primary reason to democratise them because it gives individuals the opportunity to equally steer the course of government and to prevent them being subjected to unwanted domination. However, in the case of NGOs one can argue that such subjection to democratic norms about decision-making might, in effect, be more intolerant than accepting NGOs' openly marketed signature. These remarks touch upon a whole complex of issues concerning the difficulty of striking a balance between integrity, independence, the financial support of NGOs, and interference by other actors that one can trace back to the NGO democratic legitimacy debate that will not be further discussed at this stage.101 My main aim here is to show the possible risks of ascribing content-independent standards to content-driven actors, which is what NGOs ultimately are.

Questionable Merits of using Content-independent Terms
Besides the scholarly desire to place NGOs under content-neutralising government-like procedures, one can also notice a theoretical tendency to explain NGOs as actors that contribute to a detached conception of democracy.102 Scholars suggest that NGOs' involvement brings inclusiveness, and representation. 103 The proposed manifestations of NGOs as facilitators of the public sphere and as representatives are presented as content-independent roles that manifest the interests and the will of citizens. These concepts and manifestations are related to the so-called input legitimacy. Such a presentation of NGOs leads to the assumption that regardless of what opinion is formed by individuals or groups, NGOs facilitate the formulation of opinions, the provision of information, and the mobilisation of individuals to think, speak, and discuss, and enable the representation of opinions on the international stage. The extent to which NGOs make the legislative process inclusive and contribute to the legitimacy of input, which one assumes to be neutral with regard to the interests and groups and individuals represented by NGOs, is in practice, however, often directly or indirectly associated with the content of the message of the NGO. This, contrary to the suggestions made, implies a dependent conception of democratic legitimacy, focusing on the output of law-making.104 There is apparently a gap between these common contentneutral, procedural expectations and the reality of the motives of governmental actors to include NGOs in international legislative practices, which can be, in most cases, traced back to the primary value of NGOs' substantive input. Although I have not undertaken empirical studies to substantiate this assumption, one finds support in, for example, the requirements of the accreditation procedure of ECOSOC that states that the work of NGOs should be in line with the objectives of the UN. 105 I am not the first to challenge this tendency. Peters refuted the often-heard claim of opponents of the thesis that an undemocratic internal organisation of International Community Law Review 20 (2018) 3-29 NGOs should lead to the conclusion that they cannot contribute to the overall democratic legitimacy of international law. According to Peters, the relative uncertainty about the democratically legitimate character of NGOs should not lead to a strict appraisal of their internal legitimacy, but should lead to the conclusion that NGOs are limited to a voice in law-making processes, not to a vote, which is the case in practically all of the international organisations.106 A voice might be sufficiently justified by the reputation and moral compass of NGOs, and does not need to be backed up by democratic procedures. 107 Further, notwithstanding the use of content-independent terminology, the scholarly work in favour of the thesis implicitly reveals the tendency to connect NGOs with a subjective level of goodness.108 An example is Charnovitz's exploration of NGOs in which he focuses on the procedural democratic contributions of NGOs and at the same time views NGOs as correctors "for the pathologies of governments and IOs".109 Other scholars envision the global civil society in which NGOs take part as a 'solidarity sphere' , where all are working towards "progressive transformation through collective association".110 NGOs are ' "called upon to serve the 'developmental' function of moulding the habits and attitudes of their members in the direction of overall cooperation".111 These scholars expect a commitment of NGOs to finding acceptable terms of international political cooperation. This however requires a consensus of reasonably comprehensive views, and there seems to exist a certain underlying bias in defining what can be understood as 'reasonably comprehensive' .
International Community Law Review 20 (2018) 3-29 The terms and words used by the proponents of the NGO democratic legitimacy thesis refer to value-laden perceptions of what is supposedly good or bad. This is difficult to rhyme with their inclination towards understanding NGOs' participation as a contribution to the democratic legitimacy of international law that, to the contrary, suggests a preference for opening up the political space to individuals to decide for themselves what is good or bad. Besides, not all NGOs are good. Sometimes it seems that academics involved in the NGO democratic legitimacy debate have a blind spot with regard to the miscellaneous manifestations of NGOs and civil society.112 To construct a suitable theory of democratic legitimacy with the NGO as the dominant building block, there is a risk that scholars select specific NGOs that fit their theoretical mind-set, while leaving out others.113 Four grounds strengthen the assumption that there is a strong relation between accepting NGOs and the content of their message. Firstly, any accreditation system indirectly encourages the involvement of the ones that are activists by nature, the ones that feel engaged to influence international law-making.114 Secondly, with regard to the legal framework for involvement, one discovers that the international governance seems to be conceptualised as 'working together' for the common good.115 Thirdly, the NGOs that are predominantly active in what from a Western perspective would be labelled normatively desirable working areas, such as human rights and environmental law, seem to play a major role in the theory of NGOs' contribution to the democratic legitimacy of international law. Fourthly, a link is often presumed between NGOs and democratic legitimacy when NGOs help specific minority groups with voicing their issues, for example indigenous peoples.116 112 As Klabbers states, "[w]hile we expect our statesmen to be democrats, and while we try to sell the blessings of it to those that have hitherto remained deprived of democracy, we simultaneously allow our spirits to be uplifted by the utterly undemocratic politics of civil society, conveniently ignoring the circumstance that civil society not only includes our noblest dreams, but may also include our worst nightmares". Although a content-independent vocabulary is used the participation of NGOs seems to be predominantly appreciated for their substantive contribution (expertise, standards of justice, ability to protect the minority interest). As Pasha and Blaney point out, "NGOs in their most exalted form (and there are many hybrid exceptions) exist to convince people of the rightness of their ideals and invite people to become constituents of those ideals, not to advocate for whatever ideals people already happen to have".117 NGOs' wider legitimacy seems to be morally derived, more than politically derived, and has exclusive characteristics.118 Most NGOs are driven by specific values, the desire to work not-for-profit, voluntarily, and for, in their specific views, a better society.119 A content bias towards NGOs' 'goodness' is therefore in itself intelligible. However, such a bias should simultaneously be reflected in any understanding of NGOs' contribution to international law-making.
In sum, the validity of imposing democratic norms on the organisation of NGOs as prerequisite for understanding their contribution as democratically legitimising international law is questionable on different grounds. First, one cannot formulate ante hoc expectations of NGOs, due to their inherent dynamic and prismatic character, which underscores their unpredictability in organisational structure and behaviour. Second, externally subjecting NGOs to democratic governing structures, which is often suggested as a response to the criticism of NGOs' lack of representation, negatively affects the inherent voluntariness of NGOs. Third, there is a mismatch between the scholarly inclination to describe NGOs in procedural content-independent terms such as representation, transparency, or inclusion, whereas practice and legal documents suggest that NGOs are primarily valued for their content-dependent contributions. There is a fourth objection to make against the scholarly tendency to prioritise NGOs' internal democratisation, which will be discussed in the concluding section. Prioritising NGOs' democratisation over the democratisation of the international law-making processes leads to the paradoxical situation in which NGOs are required to be internally democratised, but there is little attention paid to the lack of opportunities for democratic agency in international law-making.

Pitfalls of an Erroneous Prioritisation
The criticism on NGOs' accountability is closely tied to an understanding of NGOs as democratic representatives of groups of peoples.120 To question the democratic legitimacy of NGOs based on the lack of accountability mechanisms is really to ask whether NGOs are representative of those they claim (or once claimed) to represent.121 In this light, it seems obvious that NGOs need to prove the existence and support of their alleged constituency. However, only a particular political conduct requires such a relationship between a political actor and a forum (constituency): the democratic exercise of public authority.122 Democratic accountability regulates the exercise of public authority by subjecting its exercisers to constitutional, legal, and administrative norms to ensure that the activities of representatives are both legally and politically accountable.123 Demanding NGOs' accountability as a precondition for their democratically legitimising role suggests that there is a political role to play for NGOs in international law-making. The requirement of NGOs' democratic legitimacy seems to be a matter of erroneous prioritisation. Although I have refuted the relevance of democratic norms for NGOs in the previous sections, even if relevant, the question of the democratic legitimacy of NGOs can only become appropriate when one is assured that the system in which NGOs are involved offers actual opportunities to democratically legitimise law-making. Thus scholars pleading for an internal democratic legitimation of NGOs should at least equally engage in theorising a political space for NGOs to be able to function as political representatives (apart from the question whether such function would fit NGOs).124 Remarkably, scholars who criticise NGOs for their lack of democratic accountability rarely address the question of whether NGOs have sufficient rights and means to be in the position to truly represent individuals.
As practice and legal documents regarding the accreditation mechanisms taught us, NGOs have no means to engage in decision-making. Take for example the coming into existence of the Ottawa Landmine Convention that in many scholarly works functions as an illustration of what power of NGOs can bring about.125 The Convention gained 122 country signatures when it opened for signing on 3 December 1997 in Ottawa, Canada. Thirty-five countries have not signed the treaty, including a majority of the permanent members of the United Nations Security Council: China, the United States and Russia. Although the norm creation by different coalitions of NGOs is an inspiring example of what the bundling of social power can achieve, it cannot be equated with the exercise of political power. 126 We should make a clear analytical distinction between what is desired and what is required of NGOs from a democratic legitimacy perspective. The substantive impact of NGOs on the political course of international law-making is in some instances huge which intuitively leads to a desire for democratic accountability. However, any influence of NGOs on international law-making is conditional upon the goodwill of states. The non-existent room for the exercise of political power by NGOs in international law-making makes it simply redundant to subject NGOs to strict, general appraisal of their democratic accountability structure.127 This article obviously invokes many underlying, theoretically challenging, questions. Could the international legal order ever provide the institutional and social preconditions necessary to enable any form of democratic agency? Is democratic legitimacy as such a reasonable concept to evaluate international law? Notwithstanding the apparent daunting task to find answers to them, these pressing concerns require our attention first. Scholarly uncertainty towards the question how to democratically legitimise international law should not lead to the imposition of democratic norms on NGOs. Striving for an equal