Saturday, October 10, 2015

Managing Civil Society--Next Generation NGO Laws and Resistance to the Internationalization of Civil Society and its Normative Elements

(Pix © Larry Catá Backer 2015)

I have been posting about China's recent release of its draft Foreign NGO law (see, e.g., here and here; and  here for my Commentary on the Draft). My point was that civil society, and especially civil society that operates in one state with funds provided by another, or that represent a local branch of a transnational civil society enterprise, could be helpful, and indeed instrumental, in moving local society forward, but only along the path that society has chosen for itself.  When civil society moves from developing productive forces, or monitoring the effectiveness of governments to do as they have promised, then civil society runs the risk of response from governments that might be sensitive to foreign pressure for political reform.  Flora Sapio put is best in the Chinese context:
Foreign funded NGOs are talking to the Party-state, and the Party-state is listening and responding to them. The message that comes to the Party-state – rather than the whims of individual Party secretaries – is what determines its response. If the message is seen as threatening, the Party-state's response will be defensive, and we know how states defend themselves by arresting or expelling those who are seen as posing a threat to them, even though the threat may often be more imagined than real. Voicing a trivial demand to install more public toilets by referring to the political system of the US or the EU will likely result in an angered response by the state, because the choice of such demands and language carries definite implications. (Flora Sapio on the Chinese Draft Foreign NGO Management Law (中华人民共和国境外非政府组织管理法(草案)(二次审议稿).
But the Chinese response to NGO activity is best viewed in a broader context, and as part of a larger global efforts by states to resist internationalization of politics and retain a greater control of their own internal development within the logic of the politician systems on which they are founded. Russia and Cambodia, for quite distinct reasons have also sought to manage their civil societies more to the liking of the political elites who run those states. The latest state to consider more extensive management of civil society is Kazakhstan, which seeks to deploy the administrative techniques of registration and funding to better align the behavior of civil society to the interests of the state apparatus. 

This post considers the Kazakh NGO law, and the international response to it, int he context of the power balances that these efforts may represent--not just for alignments of power within states, but also for the consequences for the development of global systems of monitoring and disciplining transnational economic activity. 

Within the global context the move toward better control of civil society, and their better management in line with the interests of local governance significant transnational implications--not just for politics, for especially for the management of globalized economic activity and the soft law systems that underlie that management.

First, this next generation of civil society management controls relies on indirect techniques rather than on traditional command based rule systems. Except fore the crudest versions (see, e.g., Russia), these next generation NGO laws use combinations of surveillance (monitoring and reporting) and techniques funding mechanisms to manage the behaviors of civil society. The template looks suspiciously like the mechanisms used to management and control inbound foreign investment to developing states in the 1970s. And, indeed, for the larger states resorting to these tactics, the rationale for management is similar to that which produced a generation of suspicion about direct foreign investment--the view that these organisms, especially those funded by developed states--are in reality a means for projecting the national interests of foreign governments through ostensibly private organizations. But the resort ot regulatory regimes that are founded on conferring substantial discretionary authority to officials may well undermine efforts toward strengthening rule of law int he absence of tight standards for the exercise of discretion and adequate systems for disciplining officials. In any case, the resort to techniques that were discredited as useful tools of macro economic regulation and management may have little better success as tools of  societal control in a global order in which civil society has now assumed an important role--for good or ill.

Second, such a presumption is flawed. The flaw is in the premise that developed states are willing to project power outbound into developing states. That enterprise is well understood, for example through market and investment based interventions (for example, Norway, see here). And even in that context it is becoming better known that the largest developing states--China in particular--have become as adept in projecting power through market mechanisms for the protection of their own outbound investments (see, e.g., here on the Cambodian NGO law). Thus managing NGOs to protect against inward projections of foreign power misses the mark. The flaw comes in mixing up the trend toward the internationalization of normative assumptions about the role of civil society and their utility and function within globalized economic, social and cultural conversations, with the more traditional national efforts to project national interests outbound. NGOs are now far more likely to reflect internationalization of tastes for intervention than the peculiar interests of any one, even very powerful, states. This does not necessarily change a national conclusion that such internationalization is to be resisted, but it ought to change the calculus of that decision in light of its actual characteristic. Truth is derived from fact, not from assumptions, even desired assumptions. The failure to be rigorous in analysis may produce flawed or mistreated national approaches to managing NGOs.

Third, the internationalization is an organic process inherent in the processes of globalization (see, e.g., here).  But it is also a formal process, which has increasingly embedded civil society within the organizational apparatus of public international bodies. Among the most important, of course, is the United Nations and its institutions.  Consider this:
The United Nations is both a participant in and a witness to an increasingly global civil society. More and more, non-governmental organizations (NGOs) and other civil society organizations (CSOs) are UN system partners and valuable UN links to civil society. CSOs play a key role at major United Nations Conferences and are indispensable partners for UN efforts at the country level. NGOs are consulted on UN policy and programme matters. The UN organizes and hosts, on a regular basis, briefings, meetings and conferences for NGO representatives who are accredited to UN offices, programmes and agencies. (UN and Civil Society)
And indeed,  a host of foreign funded NGOs are funded in part through the United Nations itself (see here, and here). But also important are the relevance of international civil society even in the negotiation of large economic treaties like the Trans Pacific Partnership (discussed here) where the actual negotiations remain opaque.
Fourth, it becomes necessary, then, to better understand the character of the principles that are increasingly adopted as the set of internationalized principles that civil society is expected to embrace and further. States like China, by ignoring the development of these international standards for civil society--both as to normative content and as to political role within states--has lost an ability to participate int he development fo those principles and thus in the emerging global perception of the role, utility and legitimate methods of civil society--whether domestic or foreign funded. That will be a costly mistake, especially for states. like China, whose political or normative systems may be grounded in premises not reflected in emerging internationalized norms. But the push back against civil society, and the development of next generation NGO laws also represents an effort to resist both internationalization of NGO normative principles and the legitimacy of civil society as an extra-governmental political force (see, e.g., here). 

Fifth, it is not surprising then, in that context, that efforts to reform the domestic legal orders of states that run counter to these emerging international norms will likely be criticized (and in that criticism weakened with respect to their international legitimacy) by the very international bodies within which such norms have been developed. The case of the current draft Kazakh NGO law is telling in that respect. Consider the following official reaction to Kazakhstan's efforts:
Kazakhstan: Human Rights Office concerned at NGO law

BISHKEK (8 October 2015) - The Office of the High Commissioner for Human Rights (OHCHR) expressed Wednesday its concerns about the draft law passed by the Lower House of the Parliament of Kazakhstan on 23 September, which introduces amendments to several legislative acts.

“If adopted, these amendments could have negative and direct consequences on the activities of non-governmental organizations in the country, including their ability to access funding, in violation of Kazakhstan’s international obligations related to the right to freedom of association,” OHCHR spokesperson Cécile Pouilly said.

On 23 September, the Lower House of the Parliament approved the draft law introducing amendments to the law on non-profit organizations, the law on state social order, and the Code of Administrative Offences. The law is now with the Upper House for approval.

“If adopted, the law will establish a new single grant operator with a monopoly to distribute all governmental and non-governmental grants to NGOs, thus giving it a wide discretionary power,” Pouilly said.

The draft amendments also introduce a new provision to the Code of Administrative Offences, which provides for administrative liability in the form of a fine or a temporary suspension of activities for NGOs failing to submit accurate information to a database. “This provision would place an additional bureaucratic and unnecessary burden on NGOs,” Pouilly said.

“The scope and the vague wording of these amendments leaves room for broad interpretation, especially in terms of grant making, which may result in an arbitrary and discriminatory application of the law,” she added.

Pouilly said she was also concerned that proposals and comments by civil society organizations to bring the draft in conformity with international standards were reportedly largely disregarded during the drafting process.

In 2015, following his official country visit to Kazakhstan, the Special Rapporteur on the rights to freedom of peaceful assembly and of association called upon the State authorities to ensure that “any amendments concerning access to funding do not jeopardize the independence of associations, including by limiting the proposed new grant mechanism to State funds only.”

END - See more at:
It is interesting to note here as well the conflation of internal policy and the use of the techniques of discretionary funding as methods of effecting potentially normative control through the deployment of technique without having to specify either the objective (normative control) or the rules under which decisions might be made (see the first point above).

Sixth,  it may be possible to distinguish the political from the economic work of civil society in the context of globalized economic activity.  Civil society plays a critical role in the management of internationalized standards of business conduct throughout production chains.  They have been increasingly effective, when interlocked with emerging international soft law normative behavior rules for transnational enterprises, in bringing a measure of harmonization to economic conduct otherwise difficult to manage through the assertion of state power (e.g., here). And indeed, cit remains impossible for states, acting alone under the current framework, to have much success in such management without help (see, e.g., here). Indeed, in the economic sphere, resistance or impediments to civil society interventions may weaken the ability of such states to effectively develop their productive forces, and suggest a return to systems in which state management was meant to protect its own national interests and project that orientation outward. Political activity, on the other hand, is better suited to internal management precisely because there is no international consensus on the foundations of legitimate constitutional order (see, e.g., here) and such interference would be destabilizing.  Finding the borders between them will prove a difficult task, but at their cores, they remain two highly distinct projects.

Seventh, the role of civil society will be an important element in current negotiations for a comprehensive treaty on business and human rights.  This is an effort that was supported in part by several of the states which are now moving toward these next generation NGO laws. While international negotiations are no stranger to contradiction, this may be a contradiction too far as civil society was instrumental in invoking public international bodies to engage in this exercise.  Thus the drive toward the internal management of civil society--and especially foreign financed and transnational elements of civil society--will likely have to confront the issue of the international context in which such internal efforts are managed.  It is unlikely that such internal management can now be undertaken in ways that substantially affect flows of cross border economic activity.  Moreover, the development of an increasingly integrated set of networks of like minded globally centered civil society, whose normative baselines are no longer centered entirely within states, and that may affect significant elements of stakeholders int he economic, societal, cultural and political structures of states, may produce in the wake of these next generation NGOs, some costly consequences for their authoring states.  That, though, remains to be seen.

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