Chicago Journal of International Law


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. 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.