(Pix © Larry Catá Backer 2015)
I have been writing about recent efforts to manage civil society by states. I have considered China's recent release of its draft Foreign NGO law (see, e.g., here and here; and here for my Commentary on the Draft), and its Charity Law (here). I have also examined ideas about the character of emerging forms of civil society in Cuba (here).
These efforts are parts of a larger movement toward the management of civil society (here). have suggested that the reflex toward management of NGOs is
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." (Managing Civil Society--Next Generation NGO Laws and Resistance to the Internationalization of Civil Society and its Normative Elements Oct. 10, 2015)
And indeed, one can understand the move toward the management of NGOs in even broader terms. It represents a counter by states against what they see as the trans-nationalization of politics. That trans-nationalization runs parallel to the trans-nationalization of economic enterprise, represented by the globalization of production and supply chains. In a world in which production chains represent the most advanced forms of globalized economic regimes--regimes that exist beyond the state--it should come as no surprise that politics would seek to catch up.
Indeed, one can understand the move toward control of civil society as an expression--a rear guard action--that recognizes that, like economic activity in the decades immediately proceeding this one, political activity is no longer a matter for a polity encased within a territorial state. Rather, internationalization of politics is an organic process inherent in the processes of globalization itself.
Globalization thus has produced not only a devolution of power to autonomous economic units that operate across borders, but also given rise to a set of autonomous organizations whose business is to provide one or another sort of services across borders. Both aspects of globalization invoke public power to effect their operations. Yet both also seek to avoid the limits of territory in their operations. Both rely on market and market efficiency ideas, a rhetoric of welfare maximization, to diminish the significance of political borders. Privatization of this sort effectively shifts power down and out of the political sphere to the private sector, just as surely as it does when economic enterprises seek to stand in for the state. (Neo Colonialism in Civil Society Clothing or the Rise of Human Dignity as the First Supra National Principle of International Law?, May 13, 2008)
At the international level, this globalization of politics is most clearly felt in the area of business and human rights. The recent push for a comprehensive treaty for business and human rights represents is profoundly important, not because of the possibility that such a treaty will be negotiated successfully (see, e.g., here), but because the politics of that drive was itself in large measure driven by autonomous global civil society actors operating in concert and in alliance with some smaller states (e.g., here). But the internationalization of politics has also been approved, in some forms at least, through the United Naitons system.
The UN Human Rights Council has adopted several resolutions of particular importance for civil society, such as freedom of expression, freedom of association and peaceful assembly, intimidation and reprisals, and human rights defenders. In 2013 and 2014, it adopted resolutions 27/31, and 24/21 on civil society space, acknowledging the “crucial importance of the active involvement of civil society, at all levels, in processes of governance and in promoting good governance, including through transparency and accountability, at all levels, which is indispensable for building peaceful, prosperous and democratic societies.” (Civil Society Space and the United Nations Human Rights System: A Practical Guide for Civil Society United Nations Office of the High Commissioner for Human Rights, 2015).
This is quite understandable as the United Nations and other international organizations (for example, and importantly regional human rights organizations) might see in these transnational organizations, and in their autonomy, a means of developing a direct connection between international organizations and people that make it easier to mobilize mass sentiment without having to rely on the member states of these global communities.
This activity is merely a harbinger of things to come, as civil society--and the political forces they represent--free themselves from the constraints both of the state and of the sovereign polities that once provided their foundation in legitimacy. Civil society no longer needs to be nestled within a sovereign community; nor need it serve merely as an expression of organized mass opinion within a state. Functionally organized communities of political actors, like functionally differentiated communities of economic actors in production chains, are now poised to organize themselves for the projection of global group power into all states. Global NGOs, like global MNEs, are poised to become significant global actors and to engage with states--not always as equals, but as autonomous participants in the development of global governance.
For states this presents both an opportunity and a threat. The opportunity comes from the value of NGOs as a "soft" mechanism for bridging governance gaps and as an instrument of legal harmonization. They serve to develop societal rules--they can manage mass politics and societal practices in ways that makes it easier to develop governance practices with similar effects across national territories. And, indeed, in their most benign form, this is the value of NGOs that drive states to welcome transnational autonomous actors to operate within their borders. But the threat comes form the very power of NGOs to mobilize mass opinion--for that mass opinion, once mobilized within states, acts directly as a sovereign power that affects the authority and power of national governments. Where NGO mobilization is directed in opposition to the practices, beliefs and policies of state organs, states might begin to view these NGO organs as a very threat to their power to manage for themselves their own masses. This is particularly important in democratic states--where mass mobilization can affect elections (though not appointment to powerful bureaucracies that may remain substantially insulated from popular pressure) and where that mobilization paints NGO activity as directly political, though with no loyalty to any particuylat state (only to their program of action). But it is also important in Party-State systems, at leats to the extent that NGOs are seen as subverting the relationship between the leadership responsibilities of a party in power and the people to which they are obliged.
The threat and opportunity is augmented precisely by the transnational character of transnational NGO autonomy. On the one hand such trans-nationalization provides a means through which peoples may be socialized to the best of the common political, economic, societal and cultural traditions of the people of the nations of the Earth. No political society today can remain insulated from the currents of change and from global discourse about those changes, and avoid ossification, decadence and ultimately irrelevance. Cultural and political emancipation of the mind--exposure to global ideas, is essential for states which intend to remain vitally in the world. A strong and happy people are the least susceptible to the blandishments of transnational agendas that might not serve their collective best interests. And that should be protection enough--state governments or leadership parties that comply with their national responsibilities might then make use of these transnational communications for the national good.
On the other hand, civil society instrumentalism necessarily threatens the national status quo. At some level these instrumental objectives can pass from engagement for good governance (a positive accountability function) and societal progress (which might also challenge religious, cultural and traditional practices) to challenges for control of the polity itself. Where civil society moves form engagement to active opposition to the state apparatus, where it moves from participation in to activities designed to overthrow regimes, then civil society becomes a threat to the state. Just as there is a difference between a global criminal organization engaged in illicit human trafficking from Apple, Inc., so there is a significant difference between a labor rights NGO and an organization seeking to overthrow the state to establish a religious theocracy.
But where to draw the line? Opportunism is never far from the interests of states--and the cultural, religious, bureaucratic and economic elites dependent on it. And it is all too tempting to avoid useful criticism by painting legitimate political internationalism as threats to the social or political order. That, of course, has been the basis of the criticism of recent efforts of states to respond to the rise of both transnational politics and of the organizations that challenge states.
But the U.N. Human Rights Commission has itself proven to be ambiguous about where to draw the line between necessary engagement across borders and the authority to protect the state against threat (The U.N. Human Rights Commission Issues its "OHCHR Management Plan for 2014-2017", April 14, 2014). The internal politics of the United Nations, of course, might explain this flexibility in line drawing. But the political constraints on U.N. institutional analysis ought not to be taken as a necessary constraint on a rigorous approach to the issue.UN expert raises alarm at global trend of restricting civil society space on pretext of national security and counter-terrorism
NEW YORK (26 October 2015) – United Nations human rights expert Ben Emmerson today urged governments across the world to ensure that the NGO sector be allowed to continue to play an indispensable role in co-ordinated efforts to counter the spread of terrorism.
“A functioning civil society is an essential cornerstone of an open society,” he stressed. “The abuse of counter-terrorism measures to stifle legitimate opposition and to choke public interest and human rights organisations around world is gathering pace, and has become a first rank priority for the UN human rights mechanisms,” he noted.
“In the past three years, this ideological pandemic has started to spread.
More than 60 States have proposed or passed laws during that time restricting freedom of assembly, or prohibiting the foreign funding and activities of civil society organisations,” he warned.
“The international crackdown on civil society space has not been confined to those States that have adopted repressive legislation directly targeting the NGO sector,” said Mr. Emmerson in his latest report to the UN General Assembly. “Many of the international and national measures aimed at countering terrorist financing and the provision of material support have also had a direct and chilling impact on public interest groups, restricting the ability of entirely lawful organisations to secure funding or to operate effectively,” he noted.
“NGOs must be formally recognised as indispensable partners in effective and intelligent counter-terrorism initiatives. They have the unique ability to reach out to local communities; to provide assistance in protecting and promoting human rights; to give a voice to the disaffected and marginalised sections of society; to promote the needs of those who are politically, economically or socially excluded; to deliver humanitarian relief in areas affected by conflict; and to play an integral part in the realisation of longer term development goals,” said Mr Emmerson.
“The message of today’s report is that States that make up the UN need to back off and let lawful public interest organisations get on with the vitally important work they do”.
“States need to recognise, in all the regulation that is adopted, that lawful civil society organisations are not enemies of democracy and the rule of law, but key allies,” Mr. Emmerson concluded.
What does pose the largest problem is the contradiction that necessarily arises from the reality of political internationalization through civil society actors, and the formal structures of a state based system in which "States have the primary responsibility to promote and protect freedoms of expression, association, peaceful assembly and the right to participate in public affairs. CSAs, together with the UN human rights system and other actors can help States meet these obligations." (Civil Society Space and the United Nations Human Rights System: A Practical Guide for Civil Society supra, p. 27). Where civil society assumes an autonomy and independence within global political discourse that is similar to that of enterprises in global production chains, it is hard to see how that can fit into the territorially limited scope of action that is at the base of the state system--and the United Nations systems itself. Civil society might work with states, but it deals directly with its constituents. Those constituents now engage in multiple roles--as citizens of a traditional state, as members of diverse global communities, as part of global religious communities, and as stakeholders in global production chains. These roles overlap in many respects. Their objectives might be harmonized; they generally do not pose threats to the integrity of each other. But they do affect the power of any one of them to dominate the individual--and to more easily manage their socialization within power systems that each of these communities represent.
Yet at their limit, however, these civil society organizations--like economic organizations--threaten the state's monopoly of power and can compete for authority over individuals and the development of productive forces broadly understood. This was understood in the 20th century when state power was at its apogee. No state, however, has been successful, thus far, in imposing a governance structure in which all civil society organizations, indeed in which all organizations other than those of the state itself, are prohibited. European Marxist states of the 20th century attempted something like that. but that effort failed. Even that partial effort in Cuba appears unlikely to survive (e.g., here). And it has proven impossible, even in theocratic states, to eliminate all forms of mass organization other than those under the control of those who dominate the political structures of the state itself. And globalization--and with it its weakening of the effectiveness of territorial borders as either physical or conceptual barrier (e.g. here)--has made it impossible for states to isolate its civil society structures and to manage them indirectly. Theocratic states have learned this lesson hard, but its greatest effects have been on states more open to the global cross currents of popular movements.
Perhaps, and for the moment--only a functional approach is possible to reconcile the contradictions posed by a global state system interacting with an emerging system of global political organizations. That is, management might turn on the objectives and actions of civil society, even international civil society, within national territory, but not on the "residence" of such organization. But even this standard is of little help when states are free to define acceptable objectives instrumentally either to suppress activity or to eliminate the foreign element in civil society activity.And thus the contradiction stands-- and the threat. The threat to the integrity of the state in the hands of civil society is met at every turn by the threat to the integrity of globalized orders, now deeply enmeshed within national economic life, by the actions of government apparatus to protect themselves against, in the final analysis, their own people.
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