How Not to Engage in Broadcast Warfare: On TV Martí as Failure and (Limited) Success

In 1979, John Spicer Nichols explored the power of broadcasting as a weapon in warfare. The object of his study was the insurgency that would, after 1959, be known as the Cuban Revolution.

WHEN CUBAN REVOLUTIONARIES Fidel Castro and Ernesto (Ché) Guevara dis­cussed Guevara's proposal for establishing a rebel radio station, the guerrilla movement was faltering. Castro's troops were not properly fed and equipped and were desperately short of weapons. They had suffered a succession of mili­tary setbacks and could not break out of their rebel stronghold in the Sierra Maestra, a mountain range in the southeastern part of the island.

The purchase of even a small, dilapidated radio transmitter would be a major investment for the revolutionary forces. It would mean the continued shortage of arms and other basics. But Castro, having a keen sense for the value of propaganda, concluded that in the long run a radio station might be more critical to the success of the rebellion than guns and ammunition. Guevara was authorized to start the station.

. . . . But on February 24, 1958, most of the technical problems had been solved and, preceded by the tune of "Invaders' Hymn," Radio Rebelde officially went on the air. "This is Radio Rebelde, voice of the 26th of July Revolutionary Movement and the Rebel Army, transmitting from Free Territory of Cuba in the Sierra Maestra."

Before the end of the year, Radio Rebelde could be heard throughout the country and much of the Caribbean. Each night, eager to hear something not censored by the incumbent government of Fulgencio Batista, a growing number of Cubans would listen to a barrage of bulletins recounting the military vic­tories of the guerrillas, manifestos, and patriotic poems and music on Radio Rebelde. Castro frequently polished his oratorical skills over the air, and by the time the revolutionaries took control of the government, he had refined his abil­ity to the point that many analysts already considered him the greatest political speaker of this era. John Spicer Nichols, Cuba: Right Arm of Revolution, in Keeping the Flame: Media and Government in Latin America, 80 (Robert N. Pierce and John Spicer Nichols; New York: Hastings House., 1979).

This much of the story is well known. The Castro forces understood the importance of propaganda, the utility of modern transmissions vehicles for its distribution, and the sensibilities and needs of its market. They, like others before and after them, successfully used radio as an important weapon in their insurgency campaigns. And, indeed, Cuba after 1959 continued to refine and utilize media transmission for what became the very successful business of the projection of ideas on a global basis. They continue to be a world leader in the use of the media for the exportation of ideas. Many continue to consume the product of these Cuban efforts, especially in the Caribbean and Latin America.

Thirty years later, the same John Spicer Nichols could examine another great propaganda effort and pronounce it a failure. TV Marti Has Virtually No Audience, Violates International Law, And Should Be Closed, Prepared Statement Of John S. Nichols Before the Subcommittee on International Organizations, Human Rights and Oversight Committee on Foreign Affairs, U.S. House of Representatives, Hearings on "TV Marti: A Station in Search of an Audience?', June 17, 2009. Professor Spicer's arguments are straightforward, and from the perspective of American abilities in the art of cultural and political warfare, a cautionary commentary on the failure of what can only be described as symbolic action in the service of half hearted efforts more notable for its form than its function. "

Television Marti has virtually no audience in Cuba and has little relevance in the Cuban domestic dialogue about the historic political transition currently taking place there. Although estimates vary, the total expenditures - including both direct federal appropriations and the substantial indirect costs -- to operate TV Marti since it went on the air in 1990 probably exceed a half-billion dollars of taxpayer money." Id.

Professor Nichols starts with the question considered by the House Committee: Does TV Martí have an audience on the Island? For that purpose he raises and answers two questions. The first is whether TV Martí can be seen on the Island.

The answer to the first sub-question is: the broadcast version of TV Marti is not seen in populated areas of Cuba and, almost without exception, has not been seen since the station went on the air in 1990. Despite the many expensive technological gimmicks funded by Congress, such moving from VHF to UHF broadcasts and changing the transmitter platform from an aerostat to an airplane, the basic physical properties of television broadcasting prevent TV Marti from delivering a signal to the island that is sufficiently strong to compete with Cuban counter-broadcasts and that can be seen by any significant number of people there. Id.

Professor Nichols emphasized: "Therefore, unless TV Marti figures out a way to overcome the laws of physics (which I seriously doubt), its broadcasts cannot be seen on the island without the compliance of the Cuban government - no matter how many more expensive technologies the U.S. government invests in." Id. At first blush it sounds silly to expend funds for television transmission that will failure to reach its audience. But perhaps it does. TV Martí, conventioanlly broadcast does reach a significant target audience--people living in the UNited States, many of whom might be interested in the existence of the programming, and even more of whom vote. . . in thre United States. Still, TV Martí does manage to reach Cuba. Professor Nichols explained:

the transmissions of the two satellite services that simultaneously carry TV Marti programming can be seen in Cuba. The coverage area of the Hispasat satellite blankets the entire island, and Direct TV local spot beam reaches the North Central portion of the country with a high-grade signal. In addition, there are an unknown - but probably significant - number of satellite dishes in use in Cuba. As a result, TV Marti - along with scores of other television programming options - is easily available to those who are connected to these bootleg satellite reception networks. Although it is much easier to jam a satellite circuit than an over-the-air broadcast signal, to do the former would be a serious violation of international telecommunication regulations and, as a result, Cuba has not hindered the satellite transmission of TV Marti. Id.

The question, then, beyond the obvious one of service delivery, is on meeting market needs, at least those of the people in Cuba potentially interested in listening to the American position on those matters transmitted in TV Martí. Here again, Professor Nichols suggests, the American effort falls far short of the success of ther far more primitive efforts of the Cuban insurgents in the 1950s.

Of those Cubans who can view U.S. programming via an illegal satellite dish connection, how many choose TV Marti over the wealth of programming options, including Spanish-language content from Miami commercial stations and other countries in the region? While it is nearly impossible to precisely quantify the number, the answer to the question is that the audience of the satellite version of TV Marti is very small. Surveys by both the U.S. and Cuban governments, in-country reporting by foreign journalists, and anecdotal evidence all indicate that the overwhelming majority of Cubans with access to satellite dish television strongly prefer other - primarily entertainment - programming. My Cuban friends, for example, regularly watch House and CSI-Miami. Id.

There is substantial irony in this conclusion. American television penetration of the Island is strong. The power of American broadcasting may be significant. But those efforts are most successful when exercised by the commercial sectors--including its informational arm, than by government supported programs. But of course, this should come as no surprise to those who have sought to support public involvement in television through subsidies to efforts like PBS. And indeed, I would suspect that the cultural, and values laden programming of the commercial stations available not only from the United States but also from Latin America might pose a greater risk to the project of ideology culture building in Cuba than the programming available through the fertile imaginings of TV Martí--and available at substantially negligible cost to the state.

But the irony is compounded, suggests Professor Nichols, because the TV Martí project appears to violate the substantive norms of the International Telecommunications Convention very treaty system the United States helped put in place to prevent the uncontrolled use of TV aggression of the type it now indulges through TV Martí. "The very provisions that TV Marti flouts were adopted as international law in the late 1940s at the insistence of the United States - and over the stiff opposition of the Soviet Union - because they not only ensure the most efficient use of the international airwaves for the benefit of all countries but also are critical in protecting the U.S. domestic broadcast system from external interference." Id. On the other hand, these suggestions of violation of "law" do not necessarily capture the complications flowing from the way in which international law is understood and incorporated into the American legal order, at least as "law." Generally treaties do not create law in the United States unless they are deemed to be "self-executing. Most treaties tend not to be self-executing, either because they explicitly so state or because under principles of American jurisprudence, they do not meet the standards for treatment as self-executing instruments. Such treaty obligations become "law" within the United States only when their provisions are transposed into the domestic legal order--through the passage of appropiate legislation or the actions and acquiescence of federal officials with the constitutional authority to act. But, transposition into domestically binding law does not produce a special status for international law obligations. Instead, international law domestically enacted has no higher status as law than ordinary statute, at least as a general matter. As a consequence, treaty obligations, and other aspects of international law is binding in the United States only to the same extent that other federal law is binding. Such law is always subject to further modification and repeal by subsequently passed legislation. To the extent that such subsequently passed legislation effectively breaches the understanding of the state parties ot international agreements, that becomes a matter between states, but at least within the United States, does not affect the status of otherwise validly passed legislation. Violations of international law, when directly connected to constitutionally valid enactment of subsequent inconsist legislation, then, constitutes no violation of law domestically and from the internal perspective of the United States, is best understood as political rather than legal flouting. of obligations. See Medellin v. Texas, 552 U.S. -- (March 25, 2008).

As such, the creation and maintenance of TV Martí, as a valid exercise of federal constitutional authority is perfectly valid as "law" within the United States, even if it has the effect of substantially modifying (or perhaps even undoing) the internal effect prior provisions, including those derived from the International Telecommunications Convention. That the effect might be to breach the obligations of the United States under this Convention is, then, a political matter between the United States and the other state parties to that Convention. Those states may argue a breach of international law, as such. But that breach is between the United States and the other parties ot the Convention, and can be effectively dealt with only by recourse to the remedial provisions of that Convention, or through resort to the usual arsenal of techniques available to manage the relations between states. Those who would seek a "higher" place for the domestic effect of international law might find this distressing, and seek to change it. But there is no "law" that an American court can enforce in those circumstances, at leats within the United States. That, for the the moment, at least, that is effectively the way the United States operates.

However, the irony becomes perverse when Professor Nichols must look to the Cuban government to supply him with information about Radio Martí that the American government refused to supply.

I have filed numerous Freedom of Information Act requests for relevant unclassified documents, but almost all of those requests have been ignored or inappropriately denied. It is equally ironic that most of the three-way correspondence among the United States, Cuba, and the International Telecommunication Union was supplied to me by Cuban officials. (I wish to acknowledge in particular the cooperation of Carlos Martinez Albuerne, the director of the Cuban counterpart to the Federal Communications Commission, for releasing considerable documentary evidence to me. Id.

And thus two very different models of the us eof technology for th eprojection of propaganda and the influencing of cultural or nornative beliefs, leading to political action. On the one hand, the success of the Cuban insurgents in the 1950s,and American commercial television today. On the other hand, the expensive oddity of TV Martí.

And yet, there is something wrong with this analysis. I am not sure that TV Martí is a failure , even on its own terms. It is possible to think about the success of TV Martí from a different perspective when one looks to the operations of TV Martí rather than its self proaganda. If one considers TV Martí as an effort to influence the American population by appearing to influence the Cuban population on the Island, it might then be possible to argue that its efforts are a success. It may also be a way to aid the Cuban community in the United States in the development of a unified and coherent ideological stance to be deployed, at some point, against the current government in Cuba. Thus, as an internal device, TV Martí may well serve important goals, but they are hardly the goals for which the enterprise was said to have been funded. TV Martí, like Radio Rebelde, may have a limited range, but each appears to have successfully tuned in successfully to a limited political market segment. The only trouble with TV Martí is that the real object of its broadcast activities may be less obvious.

All of this may be coming to an end. It has been rumored that TV Martí may fall victim to the change in Administration. Phil Peters, TV Martí Funds Cut, The Cuban Triangle, July 9, 2009. "The Senate committee also struck $15 million for the U.S. television service it beams into Cuba, known as TV Marti, after Democratic Senator Byron Dorgan said the signal was jammed by the Communist government so no one there could see it." Jeremy Pelofsky and Susan Cornwell, U.S. House backs $48.8 billion foreign aid funding bill, The Washington Post, July 9, 2009. In the end, as Fidel Castro himself has taught, a well conceived and executed program of directed propaganda, used to develop and project a coherent ideological position in a way that appeals to a targeted audience, can be instrumental in political struggles. That is a lesson the Americans thought they had learned after 1945. But apparently not well enough with TV Martí. Of course, Radio Martí and Radio Martí on twitter may be another story. Yet even here, the direct target appears to be the population of Florida, rather then the people of Cuba. Even Cuban dissidents complain that the content of the programs of these efforts appear to serve the local political agendas of South Florida rather than the purported goal of effecting political dialogue within Cuba. See, Juan Carlos Chavez, Disidentes cubanos piden cambios de programación en Radio Martí, El Nuevo Herald, Jan. 16, 2009 (""Nosotros esperamos que se haga un análisis de todo lo que ha sucedido, porque la programación es tan mala y tan poco interesante para el pueblo cubano que nadie la escucha'', afirmó Vladimiro Roca, portavoz de la agrupación durante una entrevista telefónica con El Nuevo Herald. Roca enfatizó que la reclamación tocó la puerta al más alto nivel en Washington, debido a que la emisora radial está más en sintonía con las políticas locales del exilio en Miami, 'lo que ocasiona que el cubano de a pie no tenga motivación ni interés''." Id.). As a weapon against the current Cuban state apparatus, the TV Martí efforts might be a failure. It is substantially irrelevant, except for its power to sid the Cuban state in its own efforts to convince global opinion of American overreaching. To that extent it is unfortunate that the American government insists on funding propaganda efforts turned against it. Yet, as a tool for the disciplining of the American political community and the development of its position as against the current Cuban state apparatus, it appears to have achieved a measure of success.

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Opening Up the Process of Reforming China's State Secrets Law

I have written recently on the use of China's state secrets law to project public regulatory power in private market economic relations, especially where economic contests involve state owned enterprises. See Larry Catá Backer, State Owned Enterprises and the Integrity of Private Markets and Commercial Activity: On the Arrest of the Rio Tinto Executive, Law at the End of the Day, July 10, 2009. I have suggested that the conflation of state roles evidenced by the use of the state secrets law in furtherance of Chinalco's business might have strategic consequences, whether inadvertent or deliberate.

The role of the state secrets law in the regulation of economic activity appears to be in a dynamic stage. M. Ulrich Killion, of Shanghai International Studies University, 620 Gubei Road, Shanghai, China, has recently posted (China seeks public opinion on draft of new State Secrets Law , July 6, 2009) the following:

In a move toward what is no less than a possible greater transparency in the mainland, China's government has made available to the public its "People's Republic of China State Secrets Law (Revised Draft)" [保守国家秘密法(修订草案)向社会公开征集意见], and is seeking public opinions on the new draft of the State Secrets Law.

Chinese citizens are instructed that they can log on directly to the National People's Congress Network at www.npc.gov.cn and submit their opinions regarding the draft or they can submit their opinions by mail to the following address: NPC Standing Committee (West Xicheng District, Beijing on the 23rd Lane, Postcode: 100805. The cut-off date for submitting opinions is July 31, 2009.

The text of the public notice reads as follows:

保守国家秘密法(修订草案)向社会公开征集意见

新华网消息 日前，《中华人民共和国保守国家秘密法(修订草案)》在中国人大网全文公布，向社会公开征集意见。

中国人大网的消息说，十一届全国人大常委会第九次会议初次审议了《中华人民共和国保守国家秘密法(修订草案)》。现将《 中华人民共和国保守国家秘密法(修订草案)》及草案说明在中国人大网公布，向社会公开征集意见。社会各界群众可以直接登录中国人大网(www.npc.gov.cn)提出意见，也可以将意见寄送全国人大常委会法制工作委员会(北京市西城区西交民巷23号，邮编：100805，信封上请注明保守国家秘密法修订草案征集意见)。意见征集截止日期：2009年7月31日。

Source (来源): 保守国家秘密法(修订草案)向社会公开征集意见, 2009年07月01日, 新华网.

You can follow Mr. Killion's work at his blog site and at M. Ulric Killion's Space.

Of course, transparency comes in small steps, and has consequences for those willing to access the system. In order to post comments on the State Secrets Law draft, one needs to fill out a form on line to provide your name, address, phone number and e-mail , and only then is it possible to access the system to post your comments. For a critical discussion of the State Secrets Law, with links the the English translation of the current version, see, China's State Secrets Law to Focus on Internet Leaks, China Journal, Wall Street Journal Blogs, June 23, 2009 ("China’s state secrets law . . .has long been the subject of criticism for its vagueness and broad sweep. . . . A lengthy 2007 report by the New York-based Human Rights in China tracked how China’s complex system of state secrets laws has been used to keep a variety of statistics - on issues such as occupational diseases, human trafficking, and pollution - under wraps. . . . Legal experts who have viewed drafts of the new state secrets law say that the new law doesn’t provide additional support for the open government regulations, and may in fact have the effect of strengthening the government’s grip on information, the South China Morning Post reports" Id.). The Chinese authorities, on the other hand, appear to be targetting the mechanics of transmissions of secrets, rather than the scope of what can constitutte a state secret--and thus a political wrong.

Xia Yong, head of the National Administration for the Protection of State Secrets (NAPSS), said parts of the existing secrets law had become obsolete. The current law took effect on May 1, 1989. "New situations and problems have emerged in guarding state secrets as the country's social and economic development advances rapidly, especially with the introduction and development of information technology and the application of e-government." The materials to preserve and handle state secrets have changed from paper to acoustic, optical, electronic and magnetic forms, which created the need for corresponding policies, according to the official. China to Amend State Secrets Law, to Avoid Internet Leaks, Xinhua News Agency, June 22, 2009.

It seems that the conflation of politics and economics remains undisturbed; business torts become acts against the state itself. If this approach becomes the standard, then the projection of economic power by state owned enterprises may well serve to extend state political power as well, and not just with respect to state secrets.

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The Other Side of State Manipulation of Economic Markets: The United States, Israel and India

I have suggested that state owned enterprises continue to affect the development of normative frameworks through which private markets are conceived and thus regulated. The role of state owned enterprises in such markets suggest the leading edge of what may be the merger of politics and economics in the construction of future markets for goods and services. A sense of the resulting public-private market construct is very much in evidence in the markets for armaments and arms technology. A recent example provides a window on the way these markets function.

Under pressure from the Pentagon, Israel Aerospace Industries (IAI) has been forced to back out of a joint partnership with a Swedish aerospace company to compete in a multi-billion dollar tender to sell new multi-role fighter jets to the Indian Air Force. The deal, estimated at a whopping $12 billion for over 120 new aircraft, is being fought over by Lockheed Martin's F-16, Boeing's F-18/Hornet, Russia's MiG-35 and BAE's Eurofighter. IAI was asked by Saab, manufacturer of the Gripen, to jointly develop an advanced model which would compete for the deal. The Defense Ministry ordered IAI to back out of the deal after the Pentagon expressed concern that American technology, used by Israel, would be integrated into the Gripen offered to the Indians. Yaakov Katz, IAI Forced Out of Indian Jet Fighter Bid, Jerusalem Post, July 5, 2009.

The heavy handedness was very much in evidence. Elements of the American government, using their relationships and positions within the federal government used issues of national security to affect the competitive framework in the global market for jet fighters and jet fighter development. The parallels to the almost simultaneous actions by the Chinese government in creating a political element in the framework for the operation of private global markets in natural resources are quite striking. See Larry Catá Backer, State Owned Enterprises and the Integrity of Private Markets and Commercial Activity: On the Arrest of the Rio Tinto Executive, Law at the End of the Day, July 10, 2009. It suggests that what had been more commonly accepted in the elaboration of markets for armaments might now become the standard for other sectors of economic activity.

The conflation of public and private interests in the American actions to intervene in the competition was quite open.

"The stated concern was that Western technology in Israeli hands would make its way to the Indians," one Israeli official said. What was strange with the American request was that Boeing and Lockheed Martin - the two largest US defense contractors - are also competing for the Indian deal. For this reason, Israeli officials said it was more likely that the Americans were concerned that if IAI competed for the deal with Saab, it would force the American companies to lower their prices. Yaakov Katz, IAI Forced Out of Indian Jet Fighter Bid,supra.

Moreover, it is well known that the Israeli partner on the proposed bid, SAAB, had been an American owned company until very recently. Indeed, the timing of the American pressure was suspicious, coming within weeks of the announcement of the sale by General Motors of its interests in SAAB to foreign interests. David Jolly, GM Sells SAAB to Swedish Automaker, New York Times, June 16, 2009. It seems that the Israeli participation became a problem only when it ceased partnering with an American owned firm. And worse, the new SAAB would have been in some sense an instrumentality of the Swedish state, if only indirectly. "The companies said a deal was contingent on $600 million of financing from the European Investment Bank that is to be guaranteed by the Swedish government. They did not release further financial details of the deal, which is expected to close in the third quarter." Id. Not that the Gripen entry is dead--it is just that the Americans have ensured that SAAB will have to scramble for a new partner , likely raising the cost of their bid. In the name of secrecy, the American state has ensured that those secrets will be shared only through planes developed by American based enterprises with significant relationship to the American military establishment--if such planes are actually chosen by the Indian military.

The focus on the SAAB-Israel partnership could be understood in terms of power relationships at the political level. The Americans could effectively project its political power on the Israeli State in ways that would have been more difficult with respect to the governments of the other competitors for the Indian jet. At any rate, with the SAAB-Israel jet bid more crippled, the American government increased the changes that an American firm would win at least a part of the contract. It also reduces the possibility that BAE, another competitor, will win part of the bid through its association with the Gripen. State intervention, then, was used to reduce competition and to "nudge" the results to make it more likely that American private interests would profit. And this was done in the name of political, secrecy, concerns.

This is not the first time that an Israeli company has been forced out of a deal due to concerns that competing with American companies would endanger Israeli-US relations. Last summer, the MoD ordered Israel Military Industries (IMI) to back down from submitting a bid for a half-a-billion dollar deal to develop and manufacture a new tank for the Turkish Armed Forces. At the time, Turkey had informed the MoD of its interest in developing a new tank and asked if IMI would want to submit a bid. SIBAT - the MOD's Foreign Defense Assistance and Defense Export Organization - decided not to submit an Israeli offer so not to compete with the Americans and endanger Israeli-US defense relations. Yaakov Katz, IAI Forced Out of Indian Jet Fighter Bid,supra.

And thus a possible template for regulated markets of the future, where economics and politics are amalgamated. People may be complaining about Chinese heavy handedness in the Rio Tinto drama, but that may well be little more than a harbinger of the future of global markets. When states become market actors, it will be difficult for them to refrain from using sovereign power in aid of market strategies.

In the market for armaments, this conflation has already been internalized within its framework. This is well brought out n a recent analysis of the competitors for the Indian fighter order. India’s MMRCA Fighter Competition, Defense Industry Daily, May 25, 2009. The report noted: "Recent changes in India’s needs and the contest participants are changing the relative rankings of the contenders. Geopolitical considerations are also intruding, as most of these choices have the potential to improve relations with an important potential ally. Standardization arguments will also carry weight. As of January 2006, India’s Air Force operated 26 different aircraft types, and the IAF is not eager to add to its support headaches." Id. With respect to the Gripen, the Report concluded: "The Gripen’s acceptance carries no spin-off geopolitical benefits, however, and that last weakness may prove to be the plane’s most critical hindrance in this competition." Id.

The idea that economics is political, and that politics is economics, and that direct state interventions in all sectors of market activity is necessary, cannot be far behind. But understand, this is not a reversion to the Stalinism of the last century that passed for political economics. That model clearly remains discredited. Instead, it might be better understood as a modern, and globalized normative framework of a pre-Stalinist conception of the unity of the legal order.

In the eyes of the Marxists the economic structure of society is the fundamental factor for regulating social relationships. 'Private law' is therefore wholly dependent on public law because the latter gives legal form to this economic structure. To deny the distinction between public law and private law is therefor to affirm the unity of law, and this unity results form the fact that law, in all its branches, is essentially a reflection of the economic organization of society. René David and John E.C. Brierley, Major Legal Systems in the World Today (New York: Free Press, 1978), at 265.

But these are not merely Marxist notions. They conflate with a stream of fascism well understood before its erasure in the mutual triumph of capitalism and Marxist Leninism in 1945. Fascism suggests the merger of of state and enterprise.

Fascism, rejecting the distributionist preoccupations of socialism, advocated a program of national industrial development. Its focus was productionist . . . Fascist thought turned on two constants: production and the nation. The nation required rapid industrial expansion and to this end all the productive categories were to cooperate.A. James Gregor, The Ideology of Fascism: The Rationale of Totalitarianism (New York: Free OPress, 1969), at 161-162.

But this was not a 20th century re-articulation of 19th century economic liberalism. Rather it pointed to the conflation of state and economy within a context in which economic actors were autonomous but subject to the political will of the state, to the extent, at least, that the state could enforce that will. Id., at 162. "Because the functions of the private merchant and industrialist are functions of national concern, they are obliged to execute them in conformity with the national interest and in the direction of production they are responsible before the state. Id., at 295 (quoting La Carta del Lavro, Guiseppe Bottai, ed., Rome, 1928 (commentary)). This appears to find echos in recent actions by many major political players.

While these notions might have been laughable, and unworkable, or frightening, within traditional states--where power and territorial control provided a distinctive fundamental organizing principle of the state--it appears to have acquired some power, in fact (if not in form), at the transnational level. Here, there is governance without government, and government without a state, a global order in which states and enterprises govern through networks of power that are not tied to territory but to function. Economic globalization may therefore provide the only context in which it is possible to elaborate systems grounded in (1) the unity of law, as traditionally understood, but in which public law is not limited to assertions by the apparatus of states and (2) the episodic and partial merger of state and enterprise within a global context in which no state and no enterprise can assert a monopoly of economic or political power sufficient to dominate globally. Governance without government, then, may produce a revolution in the way in which legal frameworks are conceived.

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State Owned Enterprises and the Integrity of Private Markets and Commercial Activity: On the Arrest of the Rio Tinto Executive

Over the last decade states have aggressively projection of state power into private markets. But they have also evidenced a desire to preserve the legal and political divisions between their role as sovereigns and as actors in private markets. The object, of course, is to preserve a monopoly of political power in states while allowing the leaking of this state power within the private markets in which individuals and juridical persons (corporations and other aggregate entities) might assert power. This has been most apparent in recent moves to create a soft regulatory environment for the outbound investment activities of sovereign wealth funds. See Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment, Georgetown Journal of International Law, Vol. 41, No. 2, 2009. Available at SSRN: http://ssrn.com/abstract=1398835

But the ability, or even the willingness, of states to preserve this division between public and private power has proven to be hard to maintain. This is especially the case, it seems, when a melding of the private and sovereign roles of the state suit its particular purposes. Consider the following as a harbinger of things to come:

China confirmed Thursday that it had detained an Australian executive and three Chinese employees of the Anglo-Australian mining giant Rio Tinto on suspicion of spying on China, stealing state secrets and causing the country “enormous economic losses.” The executive, Stern Hu, is believed to be one of the highest ranking Western executives ever accused of spying on China. “The Chinese government has gained strong evidence to prove they were spying and stealing China’s state secrets,” Qin Gang, a spokesman for the foreign ministry, said at a press briefing in Beijing on Thursday. David Barboza, China Said to Arrest Rio Tinto Executive, The New York Times, July 10, 2009.

What makes the case interesting is the conflation of a state and market activities. When the state is participant in private market activities, actions that might be considered good or bad business practice can be transformed from economic to political criminality. The stakes become much higher for private market participants, but only in their interactions with states as private actors in markets.

The case sent shock waves through the global mining industry, and Australian politicians suggested the detentions were retaliatory. Rio Tinto scrapped plans last month to accept a $19.5 billion investment from Chinalco, a Chinese state-owned company. Rio Tinto chose instead to raise money from existing shareholders and form a joint venture with another Anglo-Australian company, BHP Billiton. Barboza, supra.

When the character of commercial activity, even wrongly activity, changes character from an economic to a political crime, the distinction between private and public spheres is more likely to collapses. Thus, "Rio Tinto made no comment Thursday, but a day earlier, it issued a statement saying the company did not believe any of its employees in China had engaged in espionage." And that may be true enough--the actions were not directed against the state, as sovereign. But it does appear that the activity was intended to advantage Rio Tinto in its dealings with competitor enterprises in markets that touched on Chinese state economic policies affecting enterprises controlled by the state. That had the effect of transforming competitive market activity into anti state activities. That is certainly how the Chinese officially saw it.

Qin confirmed that four employees from Australian firm Rio Tinto Group’s Shanghai office, including Stern Hu, general manager of the office, were detained on the evening of July 5 by China’s state security department, on suspicion of espionage and stealing national state secrets for other countries. Qin said that the suspects were arrested once relevant departments had obtained conclusive evidence proving that they had been working as spies and had stolen national state secrets, severely damaging China’s economic interests and security. Rio Tinto Spy Case Should Not Affect China-Australia Relations, People's Daily Online, July 10, 2009.

And indeed, from the Chinese perspective, the issues were state to state rather than market commerce oriented.

"Qin pointed out that this is just one individual judicial case that should not affect overall China-Australia economic and trade cooperation, adding that China-Australia economic and trade cooperation is win-win. China will continue to positively support China-Australia economic and trade cooperation, including cooperation between enterprises of the two countries, because these activities are not only beneficial to China, but also to Australia. Relevant parties should not exaggerate or politicize the case." Rio Tinto Spy Case Should Not Affect China-Australia Relations, supra.

Yet that transformation might well produce collateral effects--from a suspicion of the integrity of markets, to the inability of the Chinese state apparatus to convince others that its enterprises are not public interventions in otherwise private markets. Moreover, the privileging of this political transformation also hides the commercial issues underlying the events--recent attempts to purchase a large stake in Rio Tinto by Chinalco, a Chinese State Owned Enterprise, had been resisted. And on the eve of the arrest, Chinalco was again attempting to increase its stake in Rio Tinto.

Aluminum Corporation of China (Chinalco) confirmed Thursday it had bought 1.5 billion U.S. dollars of Rio Tinto shares to cement its 9 percent shareholding in the miner. The deal was made to maximize the interests of Chinalco, Lu Youqing, Chinalco's vice president, told Xinhua. If Chinalco did not made the deal, its shareholding in the miner would decrease from 9.3 percent to about 6 percent. The deal came after Chinalco's 19.5 billion U.S. dollars bid failed last month to raise its stake in Rio Tinto. Chinalco confirms buying $1.5 bln of Rio Tinto shares, People's Daily Online, July 2, 2009.

"Chinalco was established in 2001 when 12 Chinese enterprises and institutions in the aluminum industry were consolidated into Chinalco." Chinalco, History. And indeed, "Chinalco maintains an ongoing global expansion strategy and has made significant steps towards its goal of being a leading globally diversified mining company. . . . Aluminum Corporation of China Limited (“Chalco”), a subsidiary of Chinalco (38.56% owned), is listed in New York, Hong Kong and Shanghai and has a BBB+ credit rating from Standard & Poor’s. Chinalco also indirectly owns 26.61% of Yunnan Copper Co. Ltd, a Shenzhen-listed company." Chinalco, Key Facts and Numbers.

The implications are difficult to avoid. The suspicion of the use of state power, and the politization of maneuverings among commercial enterprises can only raise the suspicion that private market activity is "rigged." Or, perhaps worse, that states will use their sovereign power to aid their state owned or privileged enterprises in their commercial dealings with other private enterprises. In the context of the Rio Tinto episode, this has been a long time coming.

Within China, there is plenty of speculation that Beijing had a hand in the Chinalco-Rio deal, which has cast uncertainty over Anglo-Australian resources giant BHP Billiton's plan to complete a hostile takeover of Rio Tinto for $100 billion. BHP must make a formal offer by Feb. 6 or withdraw its bid for at least six months (BusinessWeek.com, 2/1/08). The assumption among some observers is that China is raising a warning flag to alert BHP that any move to take over Rio will not go unchallenged. "From what we understand, [Chinalco] is representing the Chinese government in this deal," says Ren Baifeng, an analyst with Antaike, a market research firm focused on the metals industry. "Two Fridays ago, there was word that Rio Tinto's management was secretly in Beijing for talks about this deal," he adds. Dexter Roberts and Chi-Chu Tschang,Why Chinalco's Buying Into Rio Tinto: The Chinese giant's new stake in the mining outfit is seen as Beijing's attempt to head off a BHP Billiton takeover, to protect the mainland's supply of ores, Business Week, February 5, 2008.

But that sort of conflation of public and private activity--projection of political power abroad indirectly through private state owned enterprises to mask (and not all that well) for the purposes of executing political goals also tends to affect perceptions of the integrity of markets. And it can produce reciprocal action, all to the detriment of the private in economic activity. This has been the great fear of sovereign wealth fund activity. But it seems that the greater danger might well come form the investment activities of state owned enterprises acting as surrogates for the state. For some, especially those who believe that all economic activity is essentially political, and that political activity ought to be exercised by ort through the state, this is a positive development in the destruction of the global system of private and private activity privileging markets. Yet, it appears to contradict the collective policies that have produced the ground rules of economic globalization. Perhaps it also signals the need to extend enterprises like those that produced the Santiago Principles for sovereign wealth fund behavior, as flaws as I have suggested they might be (See Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: supra), to state owned enterprises as well. And the OECD Guidelines on Corporate Governance of State-Owned Enterprises might also serve that purpose (more on this in a later post). But the arrest of the Rio Tinto executive suggests the difficulty of maintaining the wall of separation between state sovereign and participatory activity especially in the conduct of the activities of its state owned enterprises.

And what applies to China today might well apply to that nearly constituted giant American state owned enterprise--General Motors. "The new General Motors Co. was born this morning in the offices of a bankruptcy lawyer in New York, a quiet moment after a year of turmoil for the nation's largest automaker, as GM's CEO vowed that "business as usual is over." . . . The documents creating the sale of most of the old GM's assets to a new company owned chiefly by the U.S. government were executed about 6:30 a.m." Justin Hyde and Tim Higgins, Henderson: 'Business as Usual' Over is at GM, Detroit Free Press, July 10, 2009. The irony and double meaning is likely lost on most. And indeed, the hand of its new owners were already very much in evidence in discussions about the labor relaitons issues tied to the GM restructuring. "Steve Rattner, the head of the Obama administration's autos task force, said earlier this week that it would be "natural" for Henderson to cut layers of management to make the company "a bit closer to the ground, leaner and meaner."" Kevin Kroliki, With good assets sold, "New GM" exits bankruptcy, News Daily, July 10, 2009.

States have been at some pains to construct for the assurance of each other (as they project economic power into each others' territories) and for the assurance of private economic actors (as they seek to distinguish between regulatory actions meant to protect the integrity of markets from participatory actions meant to protect their investments like other private actors). See Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law, Tulane Law Review, Vol. 82(1):1801-1868, 2008. . Now that distinction between states as sovereigns and states as participants has been exposed as less an accomplishment (or even a desire among states) than as a potentially empty assurance, especially in the hard cases.

With the rise of great sovereign industrial giants under the framework rules of economic globalization, including the United States and China, the haphazard amalgamation of sovereign and market power, when directed to the benefit of sovereigns as market participants, bodes ill for the preservation of market integrity and the maintenance of level playing fields in the economic sphere. States, it seems, may as easily regulate and control private markets indirectly, by displacing private actors in private markets, as by direct regulation, even as they regulate those markets directly in the traditional manner (through law and other expressions of public power). But when sovereigns use sovereign power for the economic advantage of their forays into markets under the guise of acting like other private participants in markets, which they might not directly regulate, while using sovereign authority to regulate those portions of markets under their political control, then the notion of the private in markets may lose all current meaning. What emerges remains to be seen. But for a hint of one possibility of the direction of drift, see, Larry Catá Backer and Augusto Molina, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas, University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010 (forthcoming).

Sphere: Related Content

Reflections on the Declaration of Independence: From a Crisis of U.K. Constitutionalism in the Americas to a Global Constitutional Crisis in Honduras

The 4th of July is traditionally used as a day to celebrate the first formal acknowledgment of a rupture within a nation state, one that led to violent separation and the recognition of the autonomy of one territorial unit from out of what had been an integrated territorial kingdom, formed in a manner that was conventional for the time. But those who celebrate have always been cautious in the way in which the focus of the event is directed. And that, in part, is because unconstrained by a vigilant elite serving as mediators and interpreters of the document, the Declaration of Independence can easily spill its banks and serve as a basis for unruliness of all kinds. It has as easily served to justify the secession of the short lived Confederate States of America as it has for the revolutionary change in the constitutional settlement of 1789. See Larry Catá Backer, Some Thoughts on the American Declaration of Independence and the Irish Easter Proclamation, 8 Tulsa Journal of Comparative & International Law 1 (2000). It has been used to advance the cause of constructing plural societies where different communities live in equal dignity as well as the cause of separation of communities living side by side based on these very differences. See Larry Catá Backer, Kosovo: A Threat to China and Russia; a Great Benefit to Israel, Law at the End of the Day, March 14, 2008. And it has been a source of reflections on rule of law.

The Declaration of Independence is, in fact, a protean document, whose thrust can serve those with the will and the fortitude to see things through. And it has come to serve as a proxy for all sorts of endeavors. It quickly lost its historical ties to the context in which it was fashioned. And within several generations it even lost its necessary connection with political revolution. No longer merely a justification for wars of separation of territorially discrete areas, it had come to serve as a foundation for internal revolutions--from the abolition of slavery in the United States, to the emancipation of women to the construction of pluralist societies--or their tearing asunder.
Frederick Douglas famously put the utility of the Declaration of Independence within its modern framework in 1852:

Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to understand? How should I look today in the presence of Americans, dividing and subdividing a discourse, to show that men have a natural right to freedom, speaking of it relatively and positively, negatively and affirmatively? . . . .
What to the American slave is your Fourth of July? I answer, a day that reveals to him more than all other days of the year, the gross injustice and cruelty to which he is the constant victim. To him your celebration is a sham; your boasted liberty an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your shouts of liberty and equality, hollow mock; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him mere bombast, fraud, deception, impiety, and hypocrisy - a thin veil to cover up crimes which would disgrace a nation of savages. Frederick Douglas, Speech on the 4th of July, 1852 Sponsored by the Ladies' Anti-Slavery Society of Rochester, New York.

The Declaration of Independence thus has become more than a mere pronouncement with no legal effect. It has been transformed, much like the Universal Declaration of Human Rights centuries later, into a legitimating framework for political action and the constitution of its communities. It is now the revolutionary smelter within which constitutional orders are tested, as well as the normative foundation for reordering political settlements.

It's methodological and legitimating essence, however, is not moral or ethical. It is not found in its normative manifesto, the ambiguous but nicely worded and often quoted sentence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Declaration of Independence para. 2.

Rather, it is better understood in its closing:

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor. Declaration of Independence para. 32.

It is with this in mind that it might be useful to consider the Honduran Revolutions. I say two revolutions because the expulsion of former President Zelaya masked the complexity of the revolutionary situation in Honduras immediately before his translation outside the country. Both revolutionary movements are transnational in character. Both, though steeped in local desires, are also to a great extent a creature of and captive to the desires and impositions of the community of nations aligned in various camps. On the one hand there is the revolution slyly instigated by the recently removed and now former president of Honduras, Mr. Manuel Zelaya. As representative of the executive power of the state, and of the people, he sought, through use of the extra constitutional tactics of increasingly popular mass democratic politics to insinuate himself in power by reforming the state to suit his purposes. The Zelaya Revolution would subvert the Honduran constitutional order by rejecting the constitutional order's fundamental norms and replacing them with a system that would dramatically increase his power in a new constitutional order. But like many new Latin American leaders, he has suggested the traditional constitutional order is not worth keeping, and that irrespective of its language and its embrace of fundamental norms deemed irrevocable, neither can stand in the way of the popular will exercised whenever it can be mobilized for the purpose. See, e.g., Latin America: Coups and Constitutions, BBC News On Line , June 30, 2009.

Mr Zelaya planned to hold a non-binding public consultation on 28 June to ask people whether they supported moves to change the constitution. . . . Mr Zelaya's critics said the move was aimed at removing the current one-term limit on serving as president, and paving the way for his possible re-election. The consultation was ruled illegal by the Supreme Court and Congress, and was opposed by the army. . . . Mr Zelaya sacked the head of the armed forces, who refused to give logistical support for the 28 June vote. The Supreme Court overruled him, saying the army chief should be reinstated. When Mr Zelaya insisted the referendum would go ahead, Congress voted to remove him for what it called "repeated violations of the constitution and the law", and the Supreme Court said it had ordered the president to be removed from office to protect law and order. Q&A: Crisis in Honduras, BBC News On Line, July 5, 2009.

But what appears benign on it surface acquires a more complex dimension when considered in context. First, the political context was ambiguous. "Despite his centre-right credentials, the former businessman moved Honduras away from its traditional ally the US, winning the support of Venezuelan President Hugo Chavez and other leftist leaders. . . . Publicly backed by such leftists as Mr Chavez, Bolivian President Evo Morales and former Cuban leader Fidel Castro, Mr Zelaya began to lose the support of his own party."Profile: Hondura's Manuel Zelaya, BBC News Online, July 2, 2009. He began imitating his mentors, raising the spectre of authoritarianism in the face of the difficult problem of drug trafficking and poverty in Honduras. "In May 2007, Mr Zelaya ordered all of the country's TV and radio stations to carry government propaganda for two hours a day, accusing them of giving his government unfair coverage. In August 2008, he took Honduras into the Bolivarian Alternative for the Americas (Alba)." Id. On ALBA, see, Larry Catá Backer and Augusto Molina, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas, University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010 (forthcoming).

Second, the constitutional issues were serious and Mr. Zelaya's actions subject to varying characterizations, not all of them benign. While it appeared unproblematic for Mr. Zelaya to seek to test the will of the people by public consultation or other means, under Honduran constitutional law, that effort, when ordered by the President in his official capacity, raised potentially serious constitutional issues. Whatever one thinks of its value in a constitutional order, the people of Honduras had bound themselves to a specific provision that appeared to cover Mr. Zelaya's conduct:

ARTICULO 239.- El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Vicepresidente de la República.

El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos y quedarán inhabilitados por diez (10) años para el ejercicio de toda función pública. (""No citizen who has already served as titular head of the Executive Power can be President or Vice-President of the Republic. Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years."")

It is possible to suggest that the Honduran Constitution has provided that where a person seeks to change the provision of the Constitution dealing with the term of the President, that action itself results in an immiate and self executing removal from office--not at the instance of the legislative or judicial branches, but by operation of law. The only task for whether the legislative or judicial branch would be to determine that in fact, Mr. Zelaya had proposed such a reform. And that is precisely what the legislature did on the basis of the findings of a special commission constituted for the purpose of investigating such violation. Congreso destituye a Zelaya y Roberto Micheletti asume como nuevo Presidente, Noticias 24, June 28, 2009. Moreover, the Honduran Constitution provided for a particular method of constitutional amendment, and made certain constitutional provisions inviolate--that is not subject to ordinary constitutional amendment.

ARTICULO 373.- La reforma de esta Constitución podrá decretarse por el Congreso Nacional, en sesiones ordinarias, con dos tercios de votos de la totalidad de sus miembros. El decreto señalará al efecto el artículo o artículos que hayan de reformarse, debiendo ratificarse por la subsiguiente legislatura ordinaria, por igual número de votos, para que entre en vigencia. Artículo interpretado por Decreto 169/1986

ARTICULO 374.- No podrán reformarse, en ningún caso, el artículo anterior, el presente artículo, los artículos constitucionales que se refieren a la forma de gobierno, al territorio nacional, al período presidencial, a la prohibición para ser nuevamente Presidente de la República, el ciudadano que lo haya desempeñado bajo cualquier título y el referente a quienes no pueden ser Presidentes de la República por el período subsiguiente.

Taken together, it might have been possible to construe Mr. Zelaya's acton as a movement to the effectuation of an unconstitutional reform of the constitutional order. Such a move, in the context of the political actions taken before June 28, 2009 and potentially sanctioned by something that appeared to manifest the will of the people in a pseudo-plebiscite might appear as a subversion of the constitution and actions sufficiently serious to warrant the invocation of procedures in the legislative and judicial branches for the equivalent of impeachment and removal. Mr. Zelaya was not just an ordinary president going about his ordinary business. He was working diligently to undo the Honduran constitution in a way that was at best provocative and at worst illegitimate. Left to his own devices, Mr. Zelaya appears to have been playing fast and loose with the Honduran political system. He would undo the constitution because he finds it inconvenient. And for that purpose he would mobilize the sovereign will, but would do so precisely in the manner forbidden him as the President of the Republic, though not as a privatre individual. That is an irony--Mr. Zelaya was free to do as he pleased as a private citizen; he knew that he was disabled from seekin the changes he sought as a sitting President. He could have resibned and sought a constitutional convention, but his chances of mobilizing the popular will as a private citizen was substantially smaller than as a sitting President controlling the machinery of executive power. And that, perhaps, is precisely why the constitution disabled a sitting President from using his authority to upend the constitutional order. The consequences ought to be a matter of Honduran law, determined by those democratically elected or appointed for the purpose. And those determinations would have to be made by the Honduran legislature and judiciary in accordance with Honduran law.

On the other hand there is the revolution of the Congress and the Courts, also representing the people of Honduras, in their legislative and judicial authority. The proponents of the Juridico-Legislative Revolution would subvert the Honduran constitutional order by the methods chosen to "save" it. They removed Mr. Zelaya and ordered the military, acting as the domestic police force, to physically effect that removal, on the grounds that Mr. Zelaya had betrayed his oath to uphold the constitution and maintain the integrity of the constitutional system on which the state was founded. Congreso destituye a Zelaya y Roberto Micheletti asume como nuevo Presidente, Noticias 24, June 28, 2009 ("el Congreso Nacional aprobó primero el informe de una comisión especial nombrada el pasado jueves para investigar las actuaciones del gobernante y luego la resolución de su separación. La comisión estableció que Zelaya incurrió en dichas violaciones durante el proceso que pretendía culminar precisamente hoy con una consulta promovida por él para instalar una Asamblea Constituyente que reformara la actual Constitución, vigente desde 1982 o emitir una nueva." Id.). The impeachment and remova were effected in summary fashion--the Congreso de Diputados met in session to consider a hastily put together report of a special commission, which deteremined that the President had violated his duties. They then immediately voted to remove the President. "Tras la lectura del informe, el secretario del Parlamento presentó el decreto de separación de Zelaya, que fue aprobado de inmediato por los diputados, que luego abrieron un debate sobre la decisión recién asumida." (Id.).

The Honduran Constitution provides, among the powers of the legislature, the following:

ARTICULO 205.- Corresponde al Congreso Nacional, las atribuciones siguientes:

10. Interpretar la Constitución de la República en sesiones ordinarias, en una sola legislatura, con dos tercios de votos de la totalidad de sus miembros. Por este procedimiento no podrán interpretarse los Artículos 373 y 374 Constitucionales.

12. Recibir la promesa constitucional al Presidente y Vicepresidente de la República, declarados elegidos, y a los demás funcionarios que elija; concederles licencias y admitirles o no su renuncia y llenar las vacantes en caso de falta absoluta de alguno de ellos;

21. Nombrar comisiones especiales para la investigación de asuntos de interés nacional. La comparecencia a requerimiento de dichas comisiones, será obligatorio bajo los mismos apremios que se observan en el procedimiento judicial;

In addition, the Honduran Constitution includes self protective provisions against its illegitimate modification.

ARTICULO 375.- Esta Constitución no pierde su vigencia ni deja de cumplirse por acto de fuerza o cuando fuere supuestamente derogada o modificada por cualquier otro medio y procedimiento distintos del que ella mismo dispone. En estos casos, todo ciudadano investido o no de autoridad, tiene el deber de colaborar en el mantenimiento o restablecimiento de su afectiva vigencia.

Serán juzgados, según esta misma constitución y las leyes expedidas en conformidad con ella, los responsables de los hechos señalados en la primera parte del párrafo anterior, lo mismo que los principales funcionarios de los gobiernos que se organicen subsecuentemente, si no han contribuido a restablecer inmediatamente el imperio de esta Constitución y a las autoridades constituidas conforme a ella. El Congreso puede decretar con el voto de la mayoría absoluta de sus miembros, la incautación de todo o parte de los bienes de esas mismas personas y de quienes se hayan enriquecido al amparo de la suplantación.

But these provisions do not suggest either removal or expulsion from the nation. And, indeed, the Constitutional oversight of this function has disappeared. See Honduras Constitution of 1982, Art. 205:15 (which vested impeachment powers in the Congreso de Diputados and was abrogated in 2003).

On the other hand, the extensive provisions treating the responsibility of the state and its servants, Honduras, Constitution of 1982, arts. 321-327, might provide abasis both for the removal of President Zelaya and for the positive obligation of the Congreso de Diputados do actively remove him from office on a finding of violation of Mr. Zelaya's "constitutional promise" (Honduras Constitution art. 322).

CAPITULO XIII
DE LA RESPONSABILIDAD DEL ESTADO Y DE SUS SERVIDORES

ARTICULO 321.- Los servidores del Estado no tiene más facultades que las que expresamente les confiere la ley. Todo acto que ejecuten fuera de la ley es nulo e implica responsabilidad.

ARTICULO 322.- Todo funcionario público al tomar posesión de su cargo prestará la siguiente promesa de ley: "Prometo ser fiel a la República, cumplir y hacer cumplir la Constitución y las leyes".

ARTICULO 323.- Los funcionarios son depositarios de la autoridad, responsables legalmente por su conducta oficial, sujetos a la ley y jamás superiores a ella. Ningún funcionario o empleado, civil o militar, está obligado a cumplir órdenes ilegales o que impliquen la comisión de delito.

ARTICULO 324.- Si el servidor público en el ejercicio de su cargo, infringe la ley en perjuicio de particulares, será civil y solidariamente responsable junto con el Estado o con la institución estatal a cuyo servicio se encuentre, sin perjuicio de la acción de repetición que éstos pueden ejercitar contra el servidor responsable, en los casos de culpa o dolo. La responsabilidad civil no excluye la deducción de las responsabilidades administrativa y penal contra el infractor.

ARTICULO 325.- Las acciones para deducir responsabilidad civil a los servidores del Estado, prescriben en el término de diez años; y para deducir responsabilidad penal en el doble del tiempo señalado por la ley penal. En ambos casos, el término de prescripción comenzará a contarse desde la fecha en que el servidor público haya cesado en el cargo en el cual incurrió en responsabilidad. No hay prescripción en los casos en que por acción u omisión dolosa y por motivos políticos se causare la muerte de una o más personas.

ARTICULO 326.- Es pública la acción para perseguir a los infractores de los derechos y garantías establecidas en esta Constitución, y se ejercitará sin caución ni formalidad alguna y por simple denuncia.

ARTICULO 327.- La Ley regulará la responsabilidad civil del Estado, así como la responsabilidad civil solidaria, penal y administrativa de los servidores del Estado.

But this is a stretch as well, since the thrust of the provisions are meant to protect against administrative overreaching and damages resulting therefrom. t also appears to contemplate judicial rather than legislative action. (see id., art. 326). But there are relevant provisions--For example, Article 323 prohibits any state functionary, civil or military, from carrying out illegal or criminal orders. It is possible that the removal was the way in which the legislature, in its wisdom, determined to avoid complicity with Mr. Zelaya's illegal acts (and determined to be illegal by the legislature and Judiciary). On the other hand, the provision cuts both ways, and it might have serve to inhibit the military from putting Mr. Zelaya on a plane, though not from refusing to obey orders that the other branches of government have determined to be illegitimate. Critical to a discussion of legitimacy, of course, are those statutes and legislative decrees that may be applicable, but there has been little discussion about these.

In the absence of a satisfacxtory internal resolution of these constitutional issues, the internal dispute has been removed to the court of internaitonal opinion. And it is here that things get interesting. Both camps have accused the other of institgating a "coup" and thus violating the core parameters of the constitutional order of Honduras. Both are right, to some extent,; Honduras is undergoing what might euphemistically be understood as a constitutional moment. But, these are not coups in the conventional sense. This is not a set of coups designed to overturn the rule of law. Instead, these are maneuverings to either replace or to retain the current constitutional order by means that either retain a fidelity to or betray the current constitutional order. In slinging about the term "coup", outsiders tend to forget that both sides of this conflict are made up of the democratically elected representatives of the people of Honduras. Both represent the people within the constitutional order of Honduras. There's is a clash among the democratically elected representatives of the people. One of the the principals in this struggle, representing the combined legislative and judicual power of the state, was acting to avoidthe subversion of the current constitutional order, though its own methods may well have exceeded their collective asuthority. The other, representing the executive power of the state, was using his office to mobilize the popular will to replace the current constitutional system with something more to his liking--a task fiorbidden him, it seems, while in office. While that limitation might appear silly or worse, to outsiders, it is part of the rule fo law order in Honduras. To beocme complicit its its subversion, in the name of protecting rule fo law constitutionalism, is an awkward position to take, at best.

In that contest both sides have sought to manipulate legitimate constitutional process and meaning so much that they would, each in their own way, tear the Honduran system to pieces. Thus, I do not share the globally generated sympathy for Mr. Zelaya in his almost steretypical and pathetic role as an opportunitstic and underhanded manipultor of fundamental changes in the Honduran constittuional order for his own benefit, and the benefit of his masters abroad. There is a case to be made for the legitimacy of his removal within the Honduran constitutional framework. But neither do I find much that is sympathetic in the actions of the Congress and judiciary. Their own fidelity to the Honduran constitution, as they maneuvered to save it, evidences a singular lack of respect for its integrity. These branches of government did not invoke the processes for removal of a president acting lawlessly. Rather, they determined that this must be so and without more removed him from the country. An arrest and trial might have been more in accord with the rule fo law as set forth in the Honduran constitution. But that was not forthcoming. One cannot pick and chose what is worth saving in rescuing the constitutional order from attack, even from attack by the man holding the presidency.

In both cases, then, ironically enough, each actor relies on normative concepts of the Declaration of Independence for their extra constitutional excesses. The legislative and judicial organs rely on the first part of that normative framework--"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." To preserve the government and the rights preserved thereby, an individual had to be removed from office. The supporters of the legisltive and judicial branches aregue the conformity to meta-constitutional norms by analogizing the actions of those branches to the English Glorious Revolution of 1688, the constitutional use of extra constitutional powers to preserve the constitutional order. See Carlos Pineda Pinel, On a Path to Distatorship, Philadelphia Inquierer, July 5, 2009 (Commentary authored by a former justice vice minister of Honduras). Mr. Zelaya relies on the more revolutionary second part of the normative principles of the Declaration of Independence, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Mr. Zelaya invokes the power of mass democracy exercised directly by the people under the guidance of those who understand the direction of and can articulate these manifestaitons of the popular will. He looks to the Continental Congress of the 1770s and eventually to something like the work of the Constitutional Convention of the 1780s. It is in this form that key ouside actors understand the nature of Presidential power; for example, Fidel Castro. Speaking of Mr. Zelaya, Mr. Castro declared:

Fue impresionante verlo a través de Telesur, arengando al pueblo de Honduras. Denunciaba enérgicamente la burda negativa reaccionaria de impedir una importante consulta popular. Esa es la "democracia" que defiende el imperialismo. Zelaya no ha cometido la menor violación de la ley. No realizó un acto de fuerza. Es el Presidente y Comandante General de las Fuerzas Armadas de Honduras. Lo que allí ocurra será una prueba para la OEA y para la actual administración de Estados Unidos. Fidel Castro Ruz, Un gesto que no se olvidará, Reflexiones del Compañero Fidel, June 25, 2009 ("It was impressive to see him on Telesur, exhorting the people of Honduras. He was strongly denouncing the crude reactionary refusal to stop an important popular consultation. That is the sort of "democracy" that is protected by imperialism. Zelaya has not committed the slightest violation of the law. He has not undertaken an act of force. He is President and General Commander of the Armed Forces of Honduras. What happens there will be a test for the OAS and the current U.S. administration.").

This view of the relaitonship of the popular will to constitutionalism, and of the executive to the other branches of state power, is incompatible with the view underlying the actions of the legislative and judicial branches. But both have been legitimately invoked in the past to support action.

Mr. Zelaya has appeared to have won the propaganda war in the combat between Executive, legislature and the judicial branches. And, indeed, the theatricality of his position, as well as of those Latin American leaders who sought to exploit it for their own purposes, has delighted the press in the developed world. Honduras to Stop Zelaya Plane, BBC News On Line July 5, 2009.

Mr Zelaya says he will fly back to the country from Washington, arriving between 1300 and 1400 local time (1900 - 2000GMT). "I ask all farmers, residents, Indians, young people and all workers' groups, businessmen and friends... to accompany me on my return to Honduras," he said in a taped statement sent to media outlets. "Do not bring weapons. Practice what I have always preached, which is non-violence. Let them be the ones who use violence, weapons and repression." Mr Zelaya says he will be accompanied by the leaders of Ecuador and Argentina. It has also been suggested that officials from the Organization of American States could go with him.

Id. It is not clear, though, whether these dranatics are meant for the manipulaiton of opinion through media interventions or refer to actual plans to physically return ot Honduras. See, e.g., Manuel Zelaya asegura que regresará a Honduras el próximo jueves, el economista.es, June 30, 2009 (suggesting a return on Thursday in the company of the Secretary General of the OAS). Whatever the outcome of this "human shields" strategy or its legitimacy as something other than extra legal maneuvering, there are more remarkable events. Among the more significant has been the way in which a president, losing popular support at home, has, by the theatrics of simultaneous Revolutions also managed to mask complicated constitutional issues that deserve some exposition. "The BBC's Stephen Gibbs, in the Honduran capital, Tegucigalpa, says Mr Zelaya, whose popularity in Honduras had been plummeting in recent months, has garnered impressive support since his exile. " UN Backs Honduran Leader's Return, BBC News Online, June 30, 2009.

More remarkable still has been the way the ignorant have marched fearlessly into judgment on the constitutional and statutory issues involved. And by pronouncing on the nature, character and issues involved within Honduras, lend legitimacy to determinations with respect to which they have neither competence (in all its senses nor jurisdiction), as well as to their actions outside that state. "Our correspondent notes that even US President Barack Obama and his Venezuelan counterpart Hugo Chavez have found themselves in rare agreement over the issue - with both declaring that his expulsion was illegal. " UN Backs Honduran Leader's Return, BBC News Online, June 30, 2009. While Mr. Zelaya's exile is questionable, it is not clear that the judicial and legislative branches are disabled form performing their constitutional duties and removing Mr. Zelaya from office. Even in the United States, a Congress and judicial brach willing to bear the consequences of their decision, may impeach and remove a President for what they considers to be high crimes and misdemeanors, without a prior judicial determination of criminal conduct.

Yet the call to lofty ideal and emotion, to the emotive stance of the Declaration of Independence, seems to have prevailed. And more to the point, the critical understanding of that document has come into play. Both Mr. Zelaya and the rest of the constitutionally legitimate government of Honduras who stand in opposition to him, have decided to "pledge their lives, fortunes and sacred honor" to their respective causes. This is no longer a matter of constitutional law but one of international power. In this, the course of the Honduran Revolutions follows that of its American predessor, whose complection changed decisively when it was transformed from an internal issue of the nature of the constitutional order of the governmental system presided over by the King in Parliament in Westminster to an international dispute over the legitimacy of control over defined territorial units.

This time, it was not a matter of presuading the French monarch and wooing its aristocracy and intelligenstia, but of wooing the international political community, global civil society and its shills, and the global media that appears to have made all the difference. And indeed, without much of a glance at the complicated internal rule of law issues that brought the two Revolutions to a head, the international political community has quickly taken sides. "The United Nations General Assembly has approved a resolution calling for the reinstatement of ousted Honduran President Manuel Zelaya. Mr Zelaya's expulsion by the army on Sunday has been criticised in Europe, Washington and Latin America as a coup." UN Backs Honduran Leader's Return, BBC News Online, June 30, 2009. In addition, the Organization of American States has moved swiftly to seek the return of Mr. Zelaya and apparaently the continuation of his brand of revolutionary struggle. Americas Group Suspends Honduras, BBC News On Line, July 5, 2009. This last was effected without a nod to its irony. "The OAS approved suspending Honduras by 33 votes to zero, with Honduras itself not voting.It was the first time the organisation had taken such a measure since Cuba was suspended in 1962, when it allied itself with the USSR." Id. And, like France in the 1770s, the international community has done so for a variety of reasons few of which are related at all to the internal conflict that brought either the removal of Mr. Zelaya, or the undoing of the Honduran constitutional order (whichever prevails).

In the end, there is very little that may be Honduran about the ultimate result of those Revolutions. That quesiton will be decoded by forces outside of the state and serving the geo-political, ideological and strategic interests of others. Post modern sensitivity developing nations has produced a variety of post colonialisms form the left and the right and from the developing and developed centers of power. Hugo Chavez, the leader of Venezuela, in the days before the removal of Mr. Zelaya, suggested intervention in the defense of the Honduran President and his efforts ot mobilize popular will.

El mandatario venezolano advirtió de que los gobiernos “revolucionarios” de la región no se van a quedar de brazos cruzados ante el eventual intento de derrocar a Zelaya, al que calificó como un “líder que surge y asume su responsabilidad”. “Estamos dispuestos a hacer lo que haya que hacer para que se respete la soberanía de Honduras y la voluntad del pueblo de Honduras”, afirmó Chávez después de revelar que en las últimas horas ha hablado sobre la situación hondureña con sus colegas de Bolivia, Evo Morales, y de Nicaragua, Daniel Ortega. Hugo Chevez Amanaza a Honduras, La Prensa, June 26, 2009 ("The Venezuelan leader warned that "revolutionary" governments of the region will not remain passive in the face of any attempt to overthrow Zelaya, who he described as a "leader who emerges and assumes its responsibility." "We are willing to do all that is required so that the sovereignty of Honduras and the will of the people of Honduras are respected," Chavez said after revealing that he had recently talked about the Honduran situation with his colleagues in Bolivia, Evo Morales, and Nicaragua, Daniel Ortega.").

There is irony, of course. For it is less than clear that Venezuela and its allies, in this situation, have not been using their former master's tools as effectively as they once bitterly complained they had been used against them. And masking national interests behind international organizations, as the Americans are doing, does little to veil the continuing managerial aspirations of the developed world, now more appropriately clothed in the values of the day, and an abiding embrace of democratic formalism. "Mrs. Clinton has piled on as well. Yesterday she accused Honduras of violating "the precepts of the Interamerican Democratic Charter" and said it "should be condemned by all." Fidel Castro did just that. Mr. Chávez pledged to overthrow the new government." Honduras Defends Its Democracy, Wall Street Journal, June 29, 2009.

I do not mean to suggest support for one or the other version of the recent Honduran Revolutions. Neither do I mean to suggest that one or the other side is in the right. I do mean to suggest, however, that those issues no longer matter, at least as the Revolutionary movements have become internationalized, and that this is an old pattern, which reflection on the American Declaration of Independence reminds us with some force. It appears that the lessons of the American Declaration remain aspirational, supra national and ultimately grounded in power., though not necessarily in the power of the people directly involved (except perhaps as useful props). Whether there is much room for Honduras within it, either way, remains to be seen. But what appears clear is that, whatever its current form, there appears less change than one might imagine in the dynamic of aspirations and global relations that marked the world which gave us the American Declaration of Independence.

And that brings us to the most interesting transformation of the American Declaration of Independence--its renewed connection with constitutionalism, now in its manifestation as transnational constitutionalism. See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, Mississippi Law Review, Vol. 27, 2008; Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, Penn State Law Review, Vol. 113, No. 3, 2009. It appears that the American efforts to create a basis for restraining constitutional excesses, put in place after 1945 has borne fruit. Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for measuring others. Transnational constitutionalism looks to the common constitutional traditions of the community of states buttressed by international norms and organizations. Constitutional Law is no longer a matter for the people of the state subject to its strictures. Instead, the international community now appears to have a say. That, at any rate seems to be the case with respect to small states, against which action may be undertaken without much risk of retribution. The constitutional crisis in Honduras reminds us both that the community of nations now has reached consensus on the substantive principles it can invoke when it seeks to intervene in managing the constitutional actions of any of its members,and that, as the Founders knew, constitutional legitimacy is, ultimately, a matter to which its adherents must "pledge their lives, fortunes and sacred honor."

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Governance Without Law: Assessment and Transparency in the Construction of Social and Political Institutions

I have suggested that regulatory power has become fractured. Its assertion both by public and private bodies is well known. Less well recognized is that the expression of this regulatory power has been fracturing as well. No longer confined to positive regulation or judicial decision, the techniques for enforcing regulation are substituting for regulation itself. In Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15:101-148 (2008) I examined surveillance as a mechanism through which power is asserted and regulation effected in a world of shared public/private governance. For this purpose, understanding the nature of surveillance as a technique of governance, and as a substitute for governance itself, is a key element for understanding political authority as it is developing. The article focused on surveillance as a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are not relevant. It explored the ways in which the construction of complex systems of conscious and permanent visibility affects the power relationships among states, economic entities and individuals. To understand the complexities and vectors of surveillance is to grasp the shape of converging public/private governance in this century. But that project required the unbundling of the normative and methodological assumptions of surveillance. The approach adopted in that paper was founded on the division of surveillance into four of its key aspects, normative, informatics, control, and governance, each of which was developed in turn. Drawing on Foucault's theories of gouvernmentalité, I suggested the ways in which governance is increasingly elaborated through the techniques of its own power. My focus was on transnational surveillance systems.

These systems all share something in common— the effectuation of broadly based behavior aspirational goals with very specific and concrete application through regimes of monitoring, disclosure, observation, intervention, and open textured stakeholder intervention. Information is used by the principals to the governance relationship but is dependent on the participation of multiple actors in monitoring, reporting and reshaping. Thus, the IMF’s lending programs require the active participation of governments, business, civil society, and the media to create an open textured constant state of vigilance grounded in the norms that constitute the conditions to the loan. Id., at 147.

And thus, I posed, surveillance has morphed from an incidence of governance to the basis of governance itself. Id., at 107.

But the techniques of control through surveillance and transparency are not limited to macro phenomena, like the structuring of states. It's utility may be even more pronounced as it affects those social relationships and institutions form which political, cultural, religious and economic parameters for conduct and values are produced. One gets a sense of the disciplinary power of surveillance and its regulatory effects in the disciplining of the construction of law itself through the control of the evaluation of law schools. This relationship between the production of the culture of law, the development of a substantive set of values for evaluating law schools and law school ranking through programs of monitoring were examined in the excellent recent work, Michael Sauder and Wendy Nelson Espeland, "The Discipline of Rankings: Tight Coupling and Organizational Change," American Sociological Review 74:63-82 (2009). Their abstract nicely describes the project:

This article demonstrates the value of Foucault’s conception of discipline for understanding organizational responses to rankings. Using a case study of law schools, we explain why rankings have permeated law schools so extensively and why these organizations have been unable to buffer these institutional pressures. Foucault’s depiction of two important processes, surveillance and normalization, show how rankings change perceptions of legal education through both coercive and seductive means. This approach advances organizational theory by highlighting conditions that affect the prevalence and effectiveness of buffering. Decoupling is not determined solely by the external enforcement of institutional pressures or the capacity of organizational actors to buffer or hide some activities. Members’ tendency to internalize these pressures, to become self-disciplining, is also salient. Internalization is fostered by the anxiety that rankings produce, by their allure for the administrators who try to manipulate them, and by the resistance they provoke. Rankings are just one example of the public measures of performance that are becoming increasingly influential in many institutional environments, and understanding how organizations respond to these measures is a crucial task for scholars. Id., at 63.

Sauder and Espeland remind us that disciplinary governance works in ways that mimic law--both rely to a substantial extent on the internalization of values and conduct rules inherent in each of them. That they are sourced differently--one the product of an expression of democratic theory applied to a legitimated state apparatus and the other in a seemingly ministerial and neutral project of information production, retrieval, dissemination and analysis--their effects are similar in terms of the ordering of social conduct and the construction and preservation of asocial values. When applied to the institutions from which social and political values are created and legitimated, the power of governance assumes a paramount position. That, effectively is what Suader and Espeland suggest in the constitution of the institutions principally responsible for the production of legitimating forms and values for law and political structures--the law schools. Those who control the values on which these institutions are grounded can indirectly control the shape of the product created--lawyers, judges, politicians and the language, values, forms and codes through which these actors operate (and embrace as "normal"). And that is the critical lesson that Sauder ans Espeland teach.

Drawing on an intensive case study of law school rankings, this article explains the value of Michel Foucault’s concept of discipline for understanding why these organizations are unable to buffer themselves from this new institutional pressure. Analyzing rankings as a form of disciplinary power reveals that rankings, through processes of surveillance and normalization, change how internal and external constituencies think about the field of legal education. These new understandings of legal education, in turn, encourage schools to self impose the discipline that rankings foster. Rankings also offer external audiences a means for compelling law schools to meet their demands. Rankings change perceptions of legal education through incentives that are simultaneously seductive and coercive. Id., at 64.

Control of the institutions that discipline the forms of political, economic, cultural or religious power can effectively shape the products and functioning of those institutions; and that control of those institutions are much more effectively undertaken through the disciplinary power of "benchmarking" than through an elaborate system of positive regulations. Sauder and Espeland conclude: "In addition, this approach helps explain how efforts to control rankings, whether through strategic manipulation or resistance, propel the institutionalization of rankings and extend their power." Id. I add a consequence of this insight: those who can control the content of benchmarking, and the apparatus of information gathering, dissemination and evaluation, can effectively assert a substantial control over the institutions and their products.

Surveillance, then, functions as more than a descriptor of methodology. Surveillance is a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are made irrelevant. The construction of complex systems of conscious and permanent visibility, as both normative systems and bundles of specific techniques, affects the power relationships among states, economic entities, and individuals. It represents modalities of fractures and complications in assertions of regulatory power, replicating its forms and effects throughout society.

Backer, supra, at 106.

Sauder and Espeland suggest that organizational theory's focus on the way in which organizations protect their autonomy fails to perceive the importance of the metghodologies by which autonomy might be divided between its form and its function. Formal autonomy, through strategies of buffering and decoupling, may not suggst the tight coupling and difficulties of buffering against external pressures. They seek to "explore factors that precipitate tight coupling and discourage buffering. This shift in perspective emphasizes the significance of the characteristics of institutional pressures on members’ capacity to enact buffering. Instead of asking why some organizations in some environments can decouple from institutional pressures, we ask why some environmental pressures are less “decouple-able” than others." Sauder and Espeland, supra at 65. They focus on ranking as a methodological discipline against which institutions may not effectively buffer their operations or normative structures. "A general insight of this work is that contemporary institutional theory understands institutions primarily as broad macro-symbolic systems encompassing many organizations." Id., at 66. But this approach neglects the subsystems and actors who mediate institutional formation and norms. "Law schools’ reactions to rankings are best understood as the evolving responses of an assortment of actors who struggle to reconcile their sense of themselves as professional educators with an imposed market-based logic of accountability." Id.

"To analyze how rankings discipline, one needs intimate knowledge of organizational practice. We thus conducted an in-depth case study of the effects of [U.S. News and World Report] rankings in one educational field: law schools. We selected law schools because the disciplinary effects are especially clear there." Id., at 66. Sauder and Espeland naturalize the law school ranking system in the United States within the analytical framework of Foucault.

Disciplinary power is a central, constitutive feature of modern selves. In investigations of mental institutions, medicine, prisons, schools, and sexuality, Foucault describes an array of disciplinary techniques through which people become the objects of particular kinds of knowledge that construct them as mad, ill, criminal, sexual, or, most generally, as individuals. The creation of ranks is one such technique. . . . An analysis of surveillance and normalization, two of Foucault’s central disciplinary techniques, shows how these cognitive changes encourage a tight coupling between rankings and organizational activity. Id., at 69.

Sauder and Espeland describe the continuous surveillance that is at the heart of the U.S. News and World Report law school ranking system.

The publicity and trepidation accompanying the annual release of rankings may be episodic, but the scrutiny they promote is continuous. According to one dean, “Obsessed may be an overstatement, but it’s not much of an overstatement. Law school deans are obsessed with those rankings. None of us like them but all of us are obsessed.” One manifestation of this obsession is that rankings become a key reference point in decision making. Id., at 70.

But surveillance is not merely continuous, and substantively effective, it is quite detailed in the scope of its disciplinary power. "Rankings force people to examine details that were previously ignored. One manifestation of this “eminence of detail” is the meticulous recordkeeping that rankings encourage. Schools create intricate rules about how to conform to USN criteria." Id. Details, then serve not merely to privilege certain types of informaiton, but by so privileging, it shapes the hierarchy of values in the construction and development of the institution itslef. "Schools analyze these details because even small changes in rankings criteria can change their rank. As one administrator said, “It’s time consuming, and the punishment for not doing it is really high.”" Id., at 70-71. Surveillance thus transforms even as it reports. It is not merely passive and ministerial, but aggressively positive in its regulatory (and self disciplining) program. "Discipline becomes embedded in schools’ administrative routines through schools’ ongoing production of statistics. The new “facts” generated by these routines become the object of intense internal inspection." Id., at 71. And critically affect resource allocation. Id.

The effects of surveillance are not merely internal--but they become critical factors in the ability of law schools to access markets, both for students and for prospective employers willing to hiure their students. It also affects the competitiveness of law schools to attract talent for their faculties, and ultimately of access to money.

Prospective students around the globe use rankings to quickly gauge a school’s status; student law review editors use rankings to vet professors’ manuscripts; faculty use rankings when considering job prospects; law firms use them to determine where to conduct campus interviews or which class ranking to use as a threshold for interviews; university presidents, trustees, and boards of visitors use rankings to evaluate a dean’s performance, allocate resources, and create strategic plans; and alumni use rankings to monitor the trajectory of their alma maters, whether for bragging rights or concern over the value of their degrees. Id., at 71.

The effect, ironically, is consonent with the movement of power from elites to the masses in political theory. "The easy scrutiny that rankings create makes evaluating law schools a more populist project, just as USN intended. Disparate, dispersed, and sometimes ill-informed audiences now feel qualified to assess the performance of each law school over time and in relation to other schools." Id. Mass politics, in effect, is reflected in the character and consequences of the disciplinary techniques of surveillance and reporting. But the irony is that while formal power to judge is now devolved to the masses, control over what is judges, that is control over what is deemed important (and the value assumptions inherent in those juidgments) remain firmly tied to elites (in this case the small group of people that develop the criteria for monitoring).

The effectiveness of this system of surveillance is made stronger by its normalization. "Disciplinary power is based on normalization. For Foucault, “the penalty of the norm” functions, paradoxically, by defining a class of subjects as the same and then using normative criteria to establish individual differences. This process of simultaneously linking and distinguishing is a distinctively modern form of power." Id., at 72.

Rankings, in commensurating law schools, shape organizational cognition, changing how people notice and what they notice. Differences among schools are expressed solely as intervals on a shared metric. The number of books in a law library is directly connected to the percentage of students employed at graduation, which is linked to faculty salaries, and so on. Id.

And, of course, incentives to normalization are made more powerful by its connection to flows of power. At its heart is the substantive power of comparison. Something passive, the comparison of two or more like things, is made active when through it differences are both highlighted, privileged and consequences are made to flow from them. It is not merely difference at the heart of comparison but a values judgement in herent in rank that make it both useful and regulatory. "In combining, weighting, and ranking differences among law schools on many dimensions, USN creates an “optimal” law school against which all others are compared. Rankings make clear which schools are at the top and the bottom and the exact difference between all schools." Id., at 73. The effect of hierarchy and the construction of values thus critically affect the values inherent in legitimate law schools (and thus the production of legitimate legal knowledge). We have moved from simple information gathering and comparison, to a complex system of judging and regulatring the constitution of law schools and the legitimation of the production of only certain types of knowledge therein.

Schools that stray too far from the optimum set by USN are stigmatized and punished. Law schools with missions promoting public service or schools serving disadvantaged students, for example, must either compromise their missions or be excluded from the category of “good law school.” Sauder and Espeland, supra, at 73.

And, all of this, of course, is nicvely veiled beneath the neutrality of science (data and data analysis) and the silence of discussion of values and policies underlying assumptions and choices made to produce the data and its analysis.

Data issues center on recognition. The principle variable involves the constitution of data. The foundational issues of data revolve around the questions: What is raw information? What is judgment or conclusion? An easy example of this problem is “race”: is it raw data or is it a judgment? The answer may depend on factors outside of, but informing, the constitution of the data itself. The same applies to other data markers—for example, what constitutes corruption? What constitutes sexual deviance? Backer, supra, at 124.

Politics has moved from the legislature to the offices of those who purport to create neutral systems of ministerial functions.

Sauder and Espeland then turn to the factors that promote a strong internalization of surveillance at least in the context of constituting the community of law schools, their power and hierarchy. "Internalization is mediated through people’s emotional and cognitive responses to rankings, and through their distinctive and evolving interpretations of rankings. To support this claim, we show how three interpretations of rankings, each with a particular emotional tenor, are important conduits of internalization: rankings as sources of anxiety, as objects to resist, and as pressure that becomes, for some, peculiarly seductive." Sauder and Espeland, supra, at 74.

Anxiety produces incentives to conform. It is not merely the rankings but he power to control its determination that produces both an anxierty about the preservaiton of status but also serves as avector for the preservation of power in the miontoring institution.

Priding itself on remaining accessible and responsive to law schools, USN willingly listens to complaints, answers questions, and sometimes alters its measures. USN presents these changes as part of a continual effort to improve the rankings in response to feedback, but many educators interpret these adjustments as intentional efforts to “shake up” the rankings to maintain their marketability and newsworthiness. No matter the motive, these changing evaluative criteria make it difficult to craft coherent strategic responses, heightening administrators’ anxiety. Id., at 75.

Resistance suggests a capitulation. One resists only what one determines is a legitimate and credible threat. To resist is to consent to engagement and thus to step into the conceptual universe of the entity against which one resists. By resisting, institutions and individuals both concede the substantive power of surveillance systems and incorporate its methodological frameworks. "Resistance facilitates the internalization of discipline because it expresses an investment in a relationship, one that can be simultaneously resented and alluring. By making rankings a point of reference around which action and beliefs are organized, resistance helps internalize the discipline of rankings." Id., at 76.

Allure suggests a capitulation of a different sort. This involves a willingness to game the system, a cynical embrace of the underlying values and a reorganization of behavior in order to maximize rewards under the conceptual framework of the system of surveillance itself. "Complicity in the game involves accepting the competitive terms of this status hierarchy, where one school’s ascent requires another’s descent. Many deans described how rankings exacerbate competition among law schools in ways they find disturbing." Id., at 77. Gaming the surveillance system, with its analogue in the gaming of law, serves both to induce loyalty and increase resources devoted to the operation and deepening of the system. It also serves to strengthen the values privileged in the choices made for disclosure.

And thus the regulatory universe of law school disciplinary systems is complete. A ssytem of governance without government, its effects are as rigid and exacting as any system of positive regulation. And in the context of producing hierarchies of legitimate factories for the production of legal knowledge it may be more effective. Its greatest triumph, though, may well be in the way in which the assumptions underlying the system also produce a set of values about appropriate forms of knowledge that ought to be cultivated and the form of product (in terms of students and knowledge) that are to be valued. It is not just a ranking of law schools that is being produced, but a powerful system for the production of the culture of law that is the product of this system.

We move here from power to its sociology. Pierre Bourdieu reminds us that

Legal qualifications comprise a specific power that allows control of entry into the juridical field by deciding which conflicts deserve entry, and determining the specific form in which they must be clothed to be constituted as properly legal argument. Such qualifications alone can provide the necessary resources to accompliosh the work of construction which. . . .allows reality to be reduced to the useful fiction we term its judicial definition. The body of professionals is defined by their monopoly of the tools necessary for legal construction. This monopoly is itself an appropriation: the size of the profits of that monopoly of the market guarantees to each professional depends upon the degree to which the monopoly can control the production of its members, the training and above all the licensing of juridical actors authorized to sell legal servics. Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," 38 Hastings Law Journal 805, 835 (1987).

Bourdieu also reminds us that "sociology, which the guardians of the public order tend to see as indivisible from socialism itself, is conceived as the pernicious reconciler of science and social reality, against which the pure exegeses of abstract theory becomes the best protection." Id., at 851. Sauder and Espeland illuminate the way in which what I have called "information farming," (Backer, supra at 122-123), can serve as the basis for control of the institutions that serve as gatekeeper to the production both of the law that serves as the grounding of the juridical field and the professionals whose monopoly of the tools necessary for the construction of these law frameworks. "Information is power. That is well understood. But information farming is more power still. The control of those farming operations provides a source of power. It also provides a technique for controlling challenges to such power. The great contribution of twentieth century totalitarian systems to American democracy, perversely enough, has been its understanding of the utility of information as a means to power and its retention." (Backer, supra, at 148).

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Yelling Loudly and Carrying a Small Stick: The Nation State and the Enforcement of Global Human Rights

Nation states continue to jealously guard their authority to discipline the juridical persons subject to their control. Many of them also encourage the incorporation of human rights, environmental and other social concerns in the operation of multinational corporations. On that basis, some states have resisted the move to impose something other than voluntary frameworks of corporate obligations for activities that touch on international human rights standards. Other states resist the incorporation of international law directly within their territory, without at least some mediation by the democratically elected representatives of the people of the state. And many states are wary of the direct imposition of international standards, hard or soft, on corporations or other entities over which they seek to assert national law. But as Anna Triponel reminds us, the result is not necessarily a vigorous development of either national law that elaborates human rights standards applicable to corporate entities, or the inclination to enforcement international standards in their courts against corporations, especially with respect to activities occurring outside the territory of the nation states or involving actions of subsidiaries or other entities with which the defendant corporation might have had a relationship. Anna Triponel, "Business and Human Rights Law: Diverging Trends in the United States and France", 23 American University International Law Review 855 (2008).

The application of human rights standards to the activities of transnational corporations has become an increasingly prominent debate in the international law and business arenas. As the international community moves forward in elaborating a framework for accountability for corporate acts, it will be crucial that this framework reflect the existing differences between legal systems in applying human rights law to corporations' operations. This article sets out the differences between the United States and France as two examples of fundamentally different approaches in addressing corporate compliance of human rights. Ultimately, these two different state approaches towards the role of business, government interventionism, stockholders and shareholders, and international law, should be taken into account in tailoring a true international consensus on corporate responsibility, accepted by both sides of the Atlantic. Triponel, supra, abstract.

Triponel suggests the substantial distinctions between France and the United States--both in the conceptualization of corporate social responsibility and its its implementation in the courts and through law. Both start from similar jurisprudential positions. The United States and France are parties to the host of international treaties setting minimum human rights standards, plus a host of declarations and other soft law. It is bound to incorporate those that bind and to be mindful of those that don't. But in both cases that might be harder done than said. "Both France and the United States benefit from clear guidance by the international community of which human rights are to be specifically targeted when regulating corporate activity. In practice, however, it can be difficult for the state to assert the contents of certain rights and therefore protect them." Triponel, supra at 874.

Yet while both states have not been aggressive in implementing international obligations within their national legal orders, they have been much more aggressive in asserting their rights over their own entities wherever they might operate.

In the United States, the nationality principle, which applies to juridical as well as natural persons, enables it to regulate corporations’ activities abroad. The U.S. Congress has used this principle to enact laws regulating the overseas conduct of U.S. corporations, such as to prohibit these companies from complying with the Arab boycott of Israel and engaging in corrupt practices. As for France, international mandatory rules called “Lois de police” enable the application of French law to corporate activities abroad. Indeed, these laws are considered so important for the country that their extraterritorial application is necessary. Triponel, supra, at 857.

The territorial principal, even in its extraterritorial application, is tethered more to domestic than international legal frameworks. "It is primarily through domestic law suits that individuals will seek to hold TNCs accountable for abusive practices. The ways in which American and French TNCs can be held accountable for their human rights violations overseas varies widely." Id., at 904. But Triponel reminds us that while the approach to the extraterritorial application of domestic law is different in France and the United States, the effect is substantially the same. In both states, the use of domestic legal regimes to reach human rights abuses is quite limited. Id., at 904-912.

A vivid example is the difference in treatment afforded to Burmese plaintiffs complaining against the American company Unocal and those complaining against the French company Total. Total was one of the partners of the joint venture between Unocal and the Burmese government. Total was initially one of the defendants in the American lawsuit launched in California, but an amicus curiae brief from France convinced the judge of its inaptitude to involve Total in the litigation, namely due to the principle of sovereignty. As France does not have the equivalent of the American ATCA, the plaintiffs used French criminal law to bring a suit against Total in France. The difficulty is that the criminal code prohibits only certain crimes committed abroad and additionally requires that the perpetrator be French. Therefore, in contrast to the Unocal plaintiffs, who managed to create an incentive for the company to settle, plaintiffs in French courts have no similar remedy under the same set of facts. Id., at 909.

At the same time, both states set high bars to reaching corporate groups for the liabilities incurred by a juridically autonomous corporate person. Id., at 909-910. "Furthermore, in the United States, the doctrine of forum non conveniens allows judges to refuse a case when it deems itself not a suitable forum. Forum non conveniens is said to “shield multinationals from liability for injuries abroad.” Id., at 910 (quoting in part JAMIE CASSELS, THE UNCERTAIN PROMISE OF LAW: LESSONS FROM BHOPAL 144 (1993)).

Both states also approach the issue implementing corporate social responsibility in distinct ways. "CSR in France aims at “integrat[ing] social and environmental concerns” into business operations.110 However, in the United States, CSR has a larger scope and is aimed at enhancing “business decision-making linked to ethical values . . . and respect for people, communities and the environment” around the world." Id., at 877 (citing in part, Yale Global Online, http://yaleglobal.yale.edu/display.article?id=1339 (last visited May 15, 2008) (quoting Business for Social Responsibility’s definition)).

In the United States, this movement has resulted in an explosion since the late 1990s of voluntary corporate initiatives undertaken by companies themselves. The fact that there has been increased government regulation of corporate disclosure in the United States is not, however, a direct result of this second CSR movement, but instead has stemmed from the need to protect American investors in the wake of financial scandals. In France, this CSR movement has, on the contrary, resulted directly in increased regulation of French companies without an increase in voluntary corporate initiatives. . . . France passed a law which mandated the disclosure of social, environmental, and profit performance. This law applies to all French companies listed on the French Stock Exchange and therefore to TNCs as well. French companies now have the obligation to describe to all stakeholders the social and environmental consequences of their activities in their annual reports. However, the companies have no further obligation to act upon these consequences. Id., at 878.

But these changes have collided with the fundamental structure of national law, and the limits of the territorial principle applied to global enterprises. All of these are well known and well articulated, in accordance with their respective national legal cultures, by the French and the Americans. But despite cultural differences in the form of law, the principles applied, and the effects, are the same.

Triponel reminds us that though international actors have been attempting to change global legal culture to embrace the notion of state liability for complicity in the human rights violations of private actors, "it is improbable that France or the United States would be held liable under this standard." Id., at 879. On the other hand, French courts will enforce supra national law directly in French courts to a much greater extent than American courts. But those direct obligations generally extend to the specific obligations of France under the European Convention on Human Rights, and the legal framework of the European Union. For Americans, the pickings are slim. For example, Triponel points to "a NAFTA side agreement [which] allows individuals and NGOs to submit complaints to a national administrative office in each country when one of the countries fails to enforce its labor laws." Id., at 885. Beyond that there are voluntary codes., but enforcement is private and subject to substantial criticism among civil society actors eager to impose more direct obligations on corporate entities. Id., at 885-891.

More interesting is the emergence of a framework for liability stemming form corporate complicity in human rights abuse. ID., at 898-904. The National Contacts Point in the UK has taken this up recently under the OECD Guidelines for Multinationals. See Larry Catá Backer, Rights and Accountability in Development (‘Raid’) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law Vol 10 (forthcoming 2009).
Triponel notes that "plaintiffs increasingly use the theory of corporate complicity in domestic law suits against corporations. As such, defining the parameters of corporate complicity is especially important." Triponel, supra, at 904 ("The International Commission for Jurists, for example, was created in 2006 to 'develop the legal and public policy meaning of corporate complicity in the worst violations of international human rights and humanitarian law that amount to international crimes.'” Id (quoting in part Business & Human Rights Resource Centre, International Commission of Jurists - Expert Legal Panel on Corporate Complicity in International Crimes)).

Triponel nicely highlights both the movement toward an acceptance of corporate social responsibility by developed states. Though its meaning is different in the United States and France, the notion is taking root that corporations have to adhere to substantive behavior norms. But beyond that, translating these aspirations into either a national or international system of rules in the traditional manner--through positive law enforced by national courts--continues to founder on the territorial principle. In this context, it makes sense for people seeking such a framework to turn from a singular reliance of conventional positive law and state (or international) systems and focus on the construction of governance outside the state. Triponel reminds us that the construction of national legal approaches to the regulation of transnational human rights within national legal orders is a difficult task. Moreover, it is a task that is in some respect inconsistent with the fundamental principle on which national legal orders are founded. Much of the gyrations Triponel relates reflects efforts to work around these conceptual restraints without undoing the state. None of these are likely to succeed. Either states will lose control of multinational corporations, or national legal orders will have to become more receptive to harmonized or global systems for their regulation. In the absence of these changes, the current system, which has worked well enough for dominant economic public and private powers, may continue to provide the basis for legal recourse for some time.

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