First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society

The growing sense that there exists, or ought soon to exist, an international civil society has begun to inspire among its participants and proponents a quest for a more complete articulation of normative principles, perhaps even a kind of constitution, to guide the future development of such a society and to build a sense of coherence and solidarity among its adherents.1 In this short essay I will argue first that an operational code resembling First Amendment liberalism has been the de facto guide in the construction of international civil society, and second that this code encourages voluntaristic non-governmental organizations ("NGOs") but is not well suited to the circumstances of ascriptive groups exercising governmental powers.2 A richer international constitutionalism will be needed in order satisfactorily to address accountability, mandate, representation, and participation in relation to these groups. In the absence of such a theorized constitutional structure for international civil society, I argue that some modest progress on these questions may be made by drawing upon an incipient internationalized public law of indigenous peoples issues. I. THE RELEVANCE OF FIRST AMENDMENT LIBERALISM AND INTERNATIONALIZED PUBLIC LAW At present there exists neither formal agreement on express principles for the construction and regulation of international civil society, nor a strong code of unwritten quasi-constitutional principles among the leading participants. What then is the operational code guiding the developing practice of the most influential NGOs (including NGOs connected with corporations), and of the governmental and intergovernmental agencies and institutions interacting with NGOs, as they take steps directed towards realizing an international civil society and securing their own roles in relation to it? Academic writers and public intellectuals have presented normative arguments for a rich form of cosmopolitan democracy,3 the construction of a global public space through discursive interaction,4 the development of a post-modern global citizenship,5 or an emancipatory international society that repudiates the existing international "unsociety" of state representatives.6 The realization of any of these conceptions, if it is to occur at all, remains far in the future. The role of democratic state sovereignty as a means to organize the collective agency of members of a shared political project and public culture is a role not easily substituted by any set of global institutions, so the displacement or reconstruction of state sovereignty envisaged in some of these projects may for the foreseeable future entail costs that outweigh the attainable benefits. Whether it is practicable to democratize global intergovernmental institutions fully is also open to considerable doubt. It is mistaken to suppose that a world with an influential international civil society will necessarily be more peaceful than a world dominated by sovereign states.7 The functions and attributes of sovereignty are nevertheless changing, intergovernmental institutions are becoming more open, and an uneven but appreciable enlargement and democratization of the global public space can perhaps be discerned. Practice as to the roles and participation of non-state groups in international civil society is rapidly evolving. I suggest that this evolution is guided not by one of the aspirational normative theories just mentioned, but by a seldom articulated sense that the architectural scheme for the further construction of such roles and participation is provided by the global application of liberal principles akin to those associated in the United States with the First Amendment.8 NGOs operating internationally are attracted by the notion in US public law that anyone should be free to form a group, to raise funds for it by any legal means, and to advocate through it virtually any nonviolent political or moral position. Apart from some obligations with regard to the use of funds, taxation, employment law, and occasional tort liability, US law imposes little responsibility or accountability on participants in such groups beyond whatever they undertake through the terms of their own agreements. …