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Tell Us: Are NGOs Instrumentalities?

The first chapter of my thesis analyzed the definitions of “foreign public official” in the FCPA and several international anti-bribery conventions. Included in the definitions are the personnel of public international organizations. But on the day I was questioned by an academic jury, the scholars seemed intrigued by a related issue: What about officials of non-governmental organizations (NGOs), who are not “foreign public officials” under the FCPA or other international texts?

To answer that, let’s use the OECD Anti-Bribery Convention as a starting point. In it, a foreign public official is “any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organization.” Accordingly, the bribery of officials of public international organizations falls within the scope of the OECD convention.

But NGOs aren’t public international organizations and aren’t targeted. Their officials do not, officially, perform public functions. Prima facie, it’s logical that NGOs and their officials fall outside the coverage of the OECD convention.

This literal and limited view, however, has serious shortcomings.

Several prominent scholars (among them P. Daillier, M. Forteau, and A. Pellet) have for years argued that although certain entities are in a legal sense NGOs, they actually carry out tasks in the same way public international organizations do. On this basis, should officials of some NGOs therefore be considered foreign public officials in the way officials of public international organizations are?

Ingeborg Zerbes, in a contribution to The OECD Convention on Bribery: A Commentary (Cambridge University Press 2007), argued that certain NGOs provide very extensive contributions to numerous programs run by international organizations in many vital areas. Therefore, she said, some NGO officials should be considered as foreign public officials. NGOs sometimes implement “the will of the international community, for example as expressed in the mandate of the UN or another international organization,” she wrote. She even compared certain staff members of NGOs “to experts of a working group who assist the Ministry of Justice in preparation of laws or with an expert appointed by a court to give an expert opinion to inform its decision in a particular case.” 

Certain NGOs, then, can be considered to be exercising part of the powers usually reserved to a state authority. Nuanced analysis is, however, necessary. The keys, as with instrumentalities under the FCPA, would be the degree of state influence and the degree to which the NGO officials are performing a public function.

Some of the most influential and powerful sporting NGOs sometimes enjoy vast privileges afforded by host states. Ms Zerbes cites the tax benefits and “diplomatic immunity” received by members of the International Olympic Committee (IOC) and FIFA (soccer’s governing body) in many countries where they have offices. Both the IOC and FIFA have been hit by corruption scandals in recent years: could the international anti-bribery norms represent a way of protecting these giant sporting NGOs from corruption in the future?  

The question isn’t new. In September 1999, after the Salt Lake City scandal, the IOC approached the OECD and asked to be governed by the anti-bribery convention. The OECD said the IOC could not be governed by the convention because it is not a public international organization.

But the question should be revisited. If NGOs can be public international organizations for purposes of the OECD convention and global anti-corruption regimes, the fight against graft would benefit from a very interesting extension to the reach of the current international anti-bribery framework.


Philip Fitzgerald is a contributing editor of the FCPA Blog. He holds a Docteur en droit (doctor of laws) from France’s Université du Sud Toulon Var and an LL.B in Law and French from the University of Edinburgh. He was a member of Scotland’s national rugby union A team and played professional rugby in France for ten years.

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1 Comment

  1. Philip, yr questions are relevant also in humanitarian and development NGOs, guidelines are necessary since the big trend in the last 10 years has been the engagement of the private sector to better drive the sustainability agenda. Not compromising upon NGOs mission, ensuring their credibility is for sure a very important goal

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