Saturday, October 31, 2009

Transnational Constitutionalism Triumphant: The End of the Honduran Constitutional Crisis

“A constitution without legitimacy is no constitution at all. It is outside the law in the sense that it ought to be respected by the community against which it is applied. . . . Legitimacy is a function of values, which in turn serve as the foundation of constitutionalism.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009).
Constitutionalism has come to be understood as a complex systemic ideology of the construction of governance. In its simplest reduction, it can be understood as consisting of five elements: (1) a system of classification, (2) the object of which is to define the key characteristics of constitutions, (3) for the purpose of determining the legitimacy of a constitutional system as conceived or as implemented to provide a principled basis for outsiders (foreign states, entities, individuals) to judge the lawfulness of the constitutional order created and for insiders (citizens) to judge the distance between the ideals of their constitutional system and its reality (and to act thereon), (4) based on the fundamental postulate that the use of governmental power is subject to rule of law limits that are in turn (5) grounded on values derived from a source beyond the control of any individual. (Id.). Constitutionalism rejects the idea that any systematization of governance through a written document styled a “constitution” can legitimate the state apparatus created thereby. At its most basic form, constitutionalism provides a means for erect a high wall between, on the one hand, governance grounded in institutional values and actions centered on the common good, and on the other hand, governance grounded in personal power of individual or ruling cliques centered on the perpetuation of personal or group power. Larry Catá Backer, The Party as Polity, The Communist Party and the Chinese Constitutional State: A Theory of Party-State Constitutionalism 16 Journal of Chinese and Comparative Law -- (forthcoming 2009), at Part II.

The value of constitutionalism as a legitimating device, and therefore, as a lens through which the actions of others against a state may be evaluated, is at the heart of constitutionalist ideology. “This is a crucial evaluation. As Robert Nozick noted, “those legitimately wielding power are entitled, are specially entitled, to wield it.” It follows that the evaluation implicit in constitutionalism has legal and political consequences for the obligations of individuals to conform and other states to respect the organization and actions of a particular entity.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009) (citing in part Robert Nozick, Anarchy, State and Utopia 134(1974)).

The source of constitutionalist valies has been changing in the last century. “Once upon a time it was unnecessary to look beyond constitutions. Each represented the highest expression of the individual will of a political community, sovereign to the extent it could defend (and project) that sovereignty among the community of nations.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009). I have suggested that a sort of transnational constitutionalism has sought to claim the privilege of arbitrating constitutional values (and thus constitutional legitimacy). That system is transnational and secular. It is grounded in the development of a single system designed to give authoritative expression to the customary values of the community of nations that together make up the values systems of constitutionalism and constitutional legitimacy. Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Miss. C. L. Rev. 11, 34-37 (2008). A key element of transnational constitutionalism is “democracy.” Indeed, in the United States, it is not uncommon to understand that there is an important role for “constitutionalism in stabilizing democratic governance in . . . fractured societies. . . because of the limitations it imposes on democratic choice.” Samuel Issacharoff, Constitutonalizing Democracy in Fractured Societies, 82 Tex. L. Rev. 1861 (2004).

The deepening of a culture of transnational constitutionalism within the community of nations is providing an institutional and principled basis permit intervention into the internal affairs of other states where their governments are seen to violate either their own international constitutional orders or the limits on the application of any internal constitutional order suggested by transnational constitutionalist substantive norms. The key element was its power to define legitimate constitutional states in a way that provided both inside stakeholders (citizens) and outsiders (the community of states) with a principled basis for ordering their relations with a government deemed illegitimate.

The Honduran constitutional crisis has proven to be a crucible of the basic parameters of transnational constitutionalism. I have written of this elsewhere. See Larry Catá Backer, The Other Shoe Drops--Brazilian Interventionism in Honduras, Law at the End of the Day, September 23, 2009; Larry Catá Backer, Democracy Part XVIII-- Constitutional Caudillismo: End Games in Honduras, Law at the End of the Day, Sept. 22, 2009; Larry Catá Backer, Reflections on the Declaration of Independence: From a Crisis of U.K. Constitutionalism in the Americas to a Global Constitutional Crisis in Honduras, Law at the End of the Day, July 4, 2009. It has been especially potent in its role as providing a legitimate basis for other states to intervene to preserve the democratic character of the Honduran constitutional order as they (collectively) see it. See, Doug Cassel, Honduras: Coup d’Etat in Constitutional Clothing?, American Society of International Law ASIL Insight 13(9) July 29, 2009, available . That crisis is swiftly coming to an end. Its resolution is greater evidence that transnational constitutionalism in its consequentialist form—as a principle justifying intervention and serving as a basis for judging the legitimacy of a government through “rule of law” analytics—is becoming a more important as a form or methodology of international relations. Politics, like war, becoming to an increasing degree contained by the language and concepts of law.

The end of the crisis was preceded by an announcement, trumpeted in the press. It was announced that “Honduras’ de facto government has bowed to U.S: pressure, accepting a deal that stands to end the four month political crisis and possibly even reinstate Manuel Zelaya as the country’s president.” Adam Thompson, Honduras Accepts Deal to Allow Return of Ousted President, Financial Times, Oct. 31, 2009 at A-4. The driving force for the agreement was neither the Cubans nor the Organization of American States, that had each placed no small role in shaping events. Noticeably absent as well was Brazil—missing its opportunity fr leadership by overplaying its hand near the end. Instead, it was, to some extent, business as usual in Central America-the deal was brokered by Tom Shannon, U.S. Assistant Secretary of State on the basis of credible threats of cutting off (and restarting) the considerable U.S. aid to this small and poor state. Id. Mr. Zelaya gets some of what eh wants—reinstatement as President, for as long as it takes to hold the elections scheduled for the end of November and in due course install the successor President. But he loses tremendously, by agreeing to refrain from “attempting to change the constitution,” the issue that precipitated his ouster this past summer. “On the day he was ousted, Mr. Zelaya had tried to hold a referendum on constitutional changes.” Id. The deal would also require both Mr. Zelaya and his successor, Mr. Micheletti, “to respect the results of presidential elections which are scheduled for November 29.” Id.

Mr. Zelaya and the outsiders who brokered the deal have all hailed the agreement as a triumph. . . .for democracy. Mr. Zelaya “hailed the agreement as a breakthrough. ‘It is a triumph for Honduran democracy,’ he said.” Id. Mrs. Clinton “called the agreement a victory for Latin American democracy.” Id. More telling she acknowledged the pivotal role of transnational constitutional principles as a structural factor for assessing the legitimacy of the intervention on behalf of Mr. Zelaya. “’this is a big step forward for the Inter-American system and for its commitment to democracy,’ she said.” Id. Of course, this sort of triumphalism might encounter a different reaction should it ever be turned in the direction of the United States. Though of course, Honduras will be distinguished; power tends to provide the great exception to any rule. And Mr. Michelleti was more pragmatic. He “told reporters that the deal marked “the beginning of the end of the country’s political situation.” Id.

In the end there was compromise all around—the successors to Mr. Zelaya to ensure the legitimacy of their re-election and the return of aid monies; Mr. Zelaya s that he might return and have the legitimacy of the end of his tenure affirmed; the international community to affirm the authority of its oversight role in the governance of its Member States; and to some extent, the autonomy of the constitutional order of Honduras. But the latter, of course, is the critical element marking the success of regimes of transnational constitutionalism; international norms now more strongly cabin the constitutional orders of nation states—or at least small one in Central America. But importantly, the Honduran constitutional crisis and its resolution also evidences what is emerging as the greatest cure to constitutionalist defect, however induced. . . elections. In this case, all sides see elections as the great crucible from out of which legitimacy will emerge.

Wednesday, October 28, 2009

Curriculum Reform and Emerging Class Structures in Legal Education

Curriculum reform continues to occupy much thinking within the American legal academy. For a review of some contemporary issues and distinct approaches to resolving them, see, e.g., Larry Catá Backer, Georgia State University Hosts International Conference on the Future of Legal Education, Law at the End of the Day, Feb. 22, 2008. I have suggested my own perspective recently. See, Larry Catá Backer, Some Thoughts at the Start of Curriculum Reform Season in American Law Schools, Law at the End of the Day, Aug. 3, 2009; Larry Catá Backer. These issues have become more acute with the internationalization of the law school curriculum, at least within the elite law schools. See, Larry Catá Backer, Parallel Tracks? Internationalizing the American Law School Curriculum in Light of the Principles in the Carnegie Foundation's 'Educating Lawyers'. Comparative Perspectives on Law and Justice, Vol. 2. These differences in approach will, more than many other factors, begin to deepen the distinctions between elite law schools and the rest. The former will continue to target larger opportunities to its students while its faculties continue to expand the reach of their scholarship and scholarly conversations,. The rest will be expected to supply the needs of local and regional markets--a worthy and important role, but one with diminishing prospects of more meaningful participation in the higher levels of academic and policy discourse. The importance point is not about the value of serving a particular market for lawyers or legal knowledge, but instead about the increasing trend toward stratification and the diminution of broad opportunities across the legal academy. That stratification's, in turn, reflected in approaches to the curriculum. One can, in effect, begin to judge the place of a law school in the status hierarchy as much by its curriculum as one can by the "reputation" of its faculty among its peers.

Chatting with colleagues across the American legal academy over these past several months, has revealed that in many institutions, the focus of curriculum reform is on the first year or 1-L curriculum. It is possible to describe three broadly defined approaches to the construction of a 1-L curriculum that nicely illustrates the way status differences among law schools may be implemented in the form of distinct approaches to curriculum. The Conventional Approach is animated by a traditionalist principle; the 1-L curriculum should be composed entirely of required courses in the substantive areas traditionally taught in the first year. Courses drive this curricular approach, and justifications beyond tradition follow. The Limited Flex Approach is driven by the principle of controlled variety: the 1-L curriculum should include one or more elective options in addition to required courses in the substantive areas traditionally taught in the first year. With this approach traditional courses drive the curriculum but spaces are made available to a limited range of alternative offerings. Yet lacking legitimacy in tradition, some or all possible emerging courses contending for a place within the canon of mandatory courses. Lastly, the Objectives Based Approach inverts the traditional approaches. It starts with objectives and then seeks to find courses that fulfill those objectives irrespective of their prior privileged place within the curricular canon. Applying an objectives principle, the approach incorporates the idea that an appropriate 1-L curriculum ought to be judged by its ability to teach students particular approaches to law rather than a collection of specific substantive fields.

An elaboration of these approaches suggests both their contours and limitations. It suggests that even the most conventional curricular approaches involves a choice that can have effects beyond curriculum.

I. Conventional Approach.

It is relatively easy to generate a typical form of conventional first year curriculum using this approach. It builds on principles and understandings that have been closely guarded by faculties seeking to retain the form of model approaches popular a generation or more ago. It is not merely a conventional approach, but one that permits significant ties to local communities and can leverage off a century's worth of pedagogy. It is, in this sense, the most inexpensive and thoughtless of the variations, that is a variation requiring little thought. It is also the most likely to produce something acceptable to the greatest number of people. It might be usefully referred to as the "good enough" or "respectable" (in a Babbitt kind of sense) approach; both worthy and well worn.

A typical application of this approach might include a set of offerings familiar t all lawyers: Civil Procedure (3-6 credits); Torts (3-4 credits); Criminal Law (3-4 credits); Writing, Research Program (3/4 Plus 3/4 credits); Contracts (4-6 credits); Property (4-5 credits); Constitutional Law (4 credits or 3 Plus 3 credits).

One could, of course, substitute a number of other courses for some of those listed and vary the allotted credits. The end product would still look substantially similar to the usual conventional course of study common among "middle class" law schools. Thus, for example, it might be possible to allocate fewer credits to the "legal practice" course, add or substitute courses in Sales or Criminal Procedure, increase the number of credits allocated to Civil Procedure and extend the course over two semesters (something quite common before the 1990s), or nod to changes in contemporary law by adding "special" courses in Statutory/Regulatory Interpretation (an effort with a spotty track record i many schools over the last twenty years or so), and, of course, the course in some sort of International/Transnational/Comparative Law hybrid.

III. Flexible Approach

An important recent variant of the conventional program of 1-L instruction, increasingly popular with this generation of law faculty offers more flexibility. This provides a nod both to the realities of legal practice and the increasingly dispersed interests of law faculty. Flexibility is built into the program by reducing the number of required 1-L courses and permitting student choice among other offerings. Further variation is possible by either contracting a separate stable of exclusively 1-L electives (this tends to tax faculty resources) or designating one or more upper level courses as suitable for 1-L elective enrollment. Sometimes, the list of eligible courses are limited to "core courses" as such things are understood within the culture and reference frame of a particular faculty. Sometimes the opposite is true--eligible courses include everything but core courses.

These considerations raise of number of issues that tend to serve as barriers to adoption of flexible programs of this kind, or at least they tend to raise the transaction costs of adoption and the administrative costs of running programs like this. These issues, in turn, suggest the reasons that this variant tends to be a "rich school's" program. It also suggests a marker that separates schools fearful that variation in curriculum will adversely affect employment markers for their students, from those with reputations sufficiently well established so that such flexibility will be read as enrichment rather than dissipation of resources. As such, ability to indulge these sorts of programs can be said to be a proxy for approximate position within academic status hierarchies.

Issues raised include; (1) the politics of designating "core courses"; (2) grading; (3) issues of administrative convenience--everything from registration to decisions about course offerings; (4) work load equity and other fairness issues; and (5) resource issues--some faculties have neither have the number of faculty required, nor a sufficient number of faculty qualified to provide a rich and constant offering of these course.

IV. Objectives Based Approach

This approach is quite new and suggests a rethinking of the curriculum in terms of objectives. Those objectives, in turn tend to represent the end product of a hard look at the reality of law practice at the highest levels and its ramifications for the production of law graduates able to operate at any level of `practice. The starting point for this approach are objectives. That is, courses are valuable to the extent they serve the overarching objectives of 1-L legal education. Those objectives, in turn, reflect the sort of legal work that attorneys are now likely to encounter. For many faculties unable to undertake this sort of analysis on their own, or those others that need the validation of "pack leaders", there are the programs being developed at high tier or academically vetted "progress leaders." Among these are the usual suspects, for example, Harvard Law School or the University of California--Irvine tend to provide comfort or validation, but other elite schools with benchmark leader reputations (that is those that non leader faculties might safely follow) will do as well.

Among pedagogical objectives sometimes privileged in this analysis are procedural analysis; common law analysis; statutory analysis; constitutional analysis; and legal research and writing. For more sophisticated faculties, international/transnational systems and analysis are also sometimes included. The latter, depending on the experience and abilities of the faculty might constitute either its own separate objective category or be deemed "immanent"--that is to be folded into other objectives to the best ability of those assigned that task. Additional objectives can include: problem solving; private ordering systems; governmental regulation of private relationships; criminal wrongs; written forms of analysis; interpretation of positive law; interdisciplinary analysis; professional Responsibility; constitutional limits on investigation and prosecution of criminal cases; written and oral communication; practical skills; client communication; multicultural competence; values.; experiential learning; and interpersonal skills.

One can see how easy it might be to get carried away--a constant danger among faculties trained in that art form. The process comes full circle in some places where included among these objective based curriculum design programs are things like bar passage, sometimes thought to be the animating objective underlying the Conventional Approach. More interesting still, though is the possibility that an objectives based approach might be used to mask traditional faculty disputes about course ordering. The larger and vaguer the objectives, of course, the more likely that virtually any course or no course will fit the bill. Thus this approach might reduce itself to anarchy or to a cloak over the reaffirmation of more traditional curricula. For all that, I remain a fan, in appropriate circumstances and within appropriately constituted faculties. See, Larry Catá Backer, Some Thoughts at the Start of Curriculum Reform Season in American Law Schools, Law at the End of the Day, Aug. 3, 2009. Yet, the Objectives Based Approach is not for all faculties, nor for all Law Schools. The choice is as much a proxy for status, and therefore repetitional horizon as are LSAT and GPA scores of students or some third party ranking system.

But then, that is my fundamental point. Legal education is fracturing along "class" lines. Elite schools will have the greatest opportunity to develop and implement new programs without sanction. Other schools with fewer resources will have trouble catching up. And eventually it may be possible to segregate schools as much by the curriculum they (have the means to) adopt as by any other marker. And as law schools fracture in this way, the opportunities for students and faculties to participate in the life of the law--as lawyers, academics, and policy, or to serve in the judiciary or government, will also fracture. In ways that are informally true enough today but will be more explicit in the future, the choice of a law school to study or teach will also increasingly serve to define the parameters (and limits) of a career.

Saturday, October 24, 2009

Remodeling Kenya's Political System on a Chinese Foundation

I have suggested the importance of the Chinese model of state organization for both constitutionalist theory and the organization of states on the basis of a rule of law order quite distinct from that natural in the West. See, Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006; Larry Catá Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism (January 10, 2009). Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009. For an oral summary, see the recently posted, Larry Catá Backer, Podcast of Presentation at Penn State: "The Party as Polity", Law at the End of the Day, Oct. 21, 2009.

It is clear that China's political model is potentially transposable to other states, assuming the right conditions and capacity for absorption within indigenous political culture. China's recent projection of economic power appears to have also increased interest in the transposition of China's political system to Africa. Recently Kenyan political elites from Kenya's Orange Democratic Movement have begun considering the potential for transposing elements of the Chinese system to Kenya.
Musalia Mudavadi, a senior leader of Kenya's Orange Democratic Movement (ODM) party, said here Tuesday that his party wants to learn from the ruling experience of the Communist Party of China (CPC).

Invited by the CPC, a delegation from ODM, led by Mudavadi, is visiting China from Oct. 14 to 21.

The ODM, which was founded in 2005, became one of the ruling parties in Kenya in 2008, with Raila Odinga, leader of the ODM as prime minister in a grand coalition government, and Mudavadi as deputy prime minister. Kenyan ODM party leader says hopes to learn from CPC's ruling experience, News of the Communist Party of China, Oct. 21, 2009.
This is an interesting development. On the one hand, it is possible that there is value in trans posing the Chinese state organization system to African states. A system based on a division of authority between the state organs, responsible for the administration of the state apparatus, and a "party in power" asserting political leadership within the rule of law framework of its own internal organization and the legal ordering of the state as whole, memorialized in a constitution, may be a useful disciplinary framework for African politics.

On the other hand, Africa has a sad history of following a Stalinist path in the conversion of Marxist Leninist theory to the construciton of state organs. Sadly, that transformation of political theory into cults of personality applied as well to transposition of Western democratic systems as well. It was not so long ago that African states started to rid themselves of their "big men." See, e.g., Alec Russell, Big Men, Little People: The Leaders Who Defined Africa (New York: NYU Press, 2000). And that form of political organization has attracted a substantial amount of international disapproval and juridical consequences.

Since the re-birth of the demands for greater democracy around 1990, Africa has moved unsteadily away from the single-party, single-leader model of rule even if free and fair elections have not been warmly embraced by many of its leaders. If [former Kenyan] President Moi's retirement and his acceptance, so far, of the result of the election, means Kenya is moving in the direction of those African countries where leaders do step down before they are pushed or before they die. But a political process is underway in Africa that hardly existed 15 or 20 years ago. Parties can campaign vigorously; presidents do accept defeat in votes and step down; and chosen successors do not always allow their previous leaders to pull the strings from behind the scenes - all examples that Africa has changed and is still changing. There might be a long way to go - but 20 years ago there would have been no question of President Moi stepping down and having to accept the defeat of his chosen heir.Keith Sumerville, Africa's Big Men and the Ballot, BBC News Online, Dec. 31, 2002.
More importantly, prior failed attempts at single party rule through big personalities has brought a measure of corruption and a consequential judicial condemnation, especially in Kenya. All of this is well captured in a recent corruption case out of Kenya, World Duty Free, Ltd. V. Republic of Kenya (ICSID, Oct. 2006) (holding at ¶¶ 180-182). The arbitral tribunal of the International Center for Settlement of Investment Disputes (ICSID) determined that an individual businessman (a citizen of Canada based in Dubai) could not enforce a contract with the Republic of Kenya that he had secured by paying $2 million to former President Daniel arap Moi.

So, one can only hope that if Kenya means to abandon the sort of Western style transnational constitutonalist framework within which its political system has been developing for some time and embrace a "party in power" system, that it take the time to adequately absorb the lessons of the Chinese system, and not merely pander to China for the purpose of securing more favorable trade terms. It is noteworthy that the ODM mixed politics and economic organization with trade talks. "Besides Beijing, the delegation also visited Hunan Province in central China to see the CPC's organizing structures in rural areas. The delegation also visited farms and agricultural machinery companies in Hunan. He hoped that Kenya could cooperate with China National Hybrid Rice R&D Center to product more rice in Africa." Kenyan ODM party leader says hopes to learn from CPC's ruling experience, supra.

More disastrous still would be the use of a Chinese political form as a cover for the reintroduction of systems of personal rule. Still more important, it is not clear that any move toward "party in power" governance and the separation of political leadership from the organization of government will be possible while political parties represent ethnic factions rather than class or other national elements. For an interesting suggestion along those lines see, Karega-Mûnene, Polarisation of politics in Kenya along ethnic lines, 18(1-2) Wajibu (May-July 2003); Godfrey Mwakikagile, Ethnic Politics in Kenya and Nigeria (Nova Science Publishers, Incorporated, 2001). The importance of the ethnic element in what passes for politics in Kenya is not something to be lightly dismissed. Nor is the violence that is grounded in political divisions that mirror ethnic-national loyalties. See, Larry Catá Backer, Democracy Part IX: Participation and Ethnic Rifts in Kenya, Law at the End of the Day, Jan. 28, 2008.

For China there is an additional danger as well. Association with known foreign elements of ethnic politics can cause embarrassment and ill affect Chinese foreign policy. Under the guise of interest in its political systems, Kenyan political/ethnic parties might seek to draw China into Kenya's divisive internal ethnic wars. In that warfare, it is not clear that there are any clear good choices for China. Indeed, it was not so long ago that members of both the ruling party and the ODM were accused of participation in ethnic fragmentation politics and the violence associated with it.
A government-sponsored commission in Kenya has accused a number of top-level officials of inciting and funding ethnic violence in the country that left thousands dead and hundreds of thousands displaced following disputed elections late last year. . . .It makes allegations against 219 persons, including many government ministers. . . . Most of the accused are supporters of the Orange Democratic Movement, or ODM, whose leader, Raila Odinga, nonetheless supported the establishment of a tribunal to try those politicians responsible for inciting the post-election violence. Odinga, who is not accused, belongs to the Luo tribe. In the run-up to the elections, the ODM forged a multitribal alliance against the Kikuyu, who have been regarded as economically and politically powerful since the 1960s. In last December’s elections, the Kikuyu mainly supported the incumbent president, Mwai Kibaki, whose Party of National Unity was thought by many Kenyans and outside observers to have rigged the polls. Their names are included in the "Schedule of Alleged Perpetrators," a 54-page appendix to the report of the Kenya National Commission on Human Rights, or KNCHR, on violence related to the country’s December 2007. Travis Kabulla, Report Accuses Top Officials for Post-Elections Ethnic Violence in Kenya, Fox News, Oct. 25, 2008.

So something as simple, and as appealing, as interest in transposing a political model, might, in reality, pose substantial dangers and raise complex issues of politics, internal relations, and the unsolved problems of Africa. On the one hand, the ODM may see in the Chinese model a way to construct a multi-ethnic state by shifting the hierarchy of power from ethnic membership to Party membership. While this is inconsistent with Western models of mass democratic states, it may provide a basis for shifting power hierarchies necessary for the construction of a single political state from the amalgamation of pre-colonial tribal-nations now forced to live with each other in a single state. But that movement by the ODM appears to exclude the ruling Kikuyu and thus provide a cover for ethnic violence and division by other means.

At the same time, others are seeking to apply traditional Western theories to construct a traditionally legitimate multi party state system of political culture from out of the ethnic divisions in Kenya. See, for example, the work of the Netherlands Institute for Multi-Party Democracy ("In the aftermath of the troubled 2007 elections, NIMD’s Kenyan partner, the Centre for Multiparty Democracy (CMD-K) played a visible and constructive role in fostering a multi-actor dialogue. The centre brings together political and civil society around a democratic reform agenda, and is currently working to build consensus for constitutional reforms." Id.). What this suggests is the possibility of competition for control of the fundamental framework for political organization in Kenya that may also acquire an ethnic dimension. In any case, China may soon discover these difficulties first hand in ways that will mirror the road to similar discovery experienced by the Soviets, British and Americans in the last century. In order to adopt a state-party model with Kenyan characteristics, transposing the potentially valuable and system-legitimating lessons of Chinese political forms, one first needs a state rather than a collection of ethnic states vying with each other for control of the state apparatus. To use the Chinese State-Party political framework to disguise efforts by one ethnic group (reconstituted as a party in power) to dominate others and control the state for the benefit of their own ethnic "nation" would exacerbate the political fracture in Kenya in a way that would weaken the legitimacy of the Chinese model.

Wednesday, October 21, 2009

Podcast of Presentation at Penn State: "The Party as Polity"

I recently presented my paper, “The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism,” as part of Pennsylvania State University Law School's Scholarly Dialogue's program. In this work I sought to apply emerging principles of constitutional theory to the party-state model of governance in China, and to articulate a way that state-party governance and the traditional western understanding of a constitutional guarantee of the rule of law can co-exist.

A podcast of the presentation be accessed by clicking HERE.

The abstract of the work follows:

The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism
Larry Catá Backer
Pennsylvania State University - Dickinson School of Law

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. The article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its reception in China in the 1920s, and its modern transformation “under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'” (PRC Constitution 2004, Preamble). Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. This argument is based on an understanding of the relationship between state and Party grounded in (1) a division between economic and social citizenship, which is the right of all persons, and political citizenship, which can be exercised through the Party though not exclusively in the Party, (2) an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law.

自 前苏联 成立以来,宪政理论始终试图以怀疑的目光审视一党专政之下的马克思列宁主义国家政权。当国家的最高权力被授予某一个机构,而这个机构受制于一种超越宪法的 外力,并且这种外力意味着个人统治的面具,这时,这个国家的宪法被认为是不合法并且是虚伪的。当国家受制于政党,而政党成为个人权力博弈的平台,那么这种 “党国”体系逐渐被理解为专制与暴政的傀儡、个人或小集团统治的面纱。这样的“党国”体系由暴力机关和内部恐怖机构的强制力支持着,依照个人或小集团反复 无常的念头统治着国家。在这种背景下,宪政是不可理解的。同样的,这些评判形成了分析中国宪政的基础。特别是在看待邓小平和他1989年以后的继任者们的 改革方面,这些评判已作为批评中国宪政的基础理论。然而,这些批评成立、并且普遍适用于1989年之后的中国社会现实吗?本文将探讨这些问题,并提出一种 理论基础——遵循一定的路线,如何使建立在“党国”模式之上的国家的宪政法制化。本文关注中国1989年之后的“党国”宪政的演进,并首先回顾现代宪政理 论的基本原则,以及它作为评判国家组织形式、政府官员行为的国际意识形态标准的重要性。接下来,本文将目光投向“党国”模式的演进——从它的源头,十九世 纪欧洲的马克思列宁主义思想,到它被二十世界二十年代的中国接受,再到它在当今中国“马列主义毛泽东思想、邓小平理论以及三个代表重要思想引导下” (摘自2004年中华人民共和国宪法,序言)发生的转变。根据这样的演进,本文指出,在理论上构建一个以依法治国为基础的“党国”模式的政权,并不悖宪政 原则,是可行的。中国的“党国”宪政理论需要重新定义宪法——这样的宪法需要囊括组织国家政权的文件,同时也囊括组织一个平行与国家权力的政党的文件。这 同样建立在对于共产党属性的不同理解上——不是一个政党或私人行为者,而是政府结构的内部组成部分,更重要的是,作为政治公民权的持有人。本文最后将使用 全球的宪政标准来衡量中国的宪政,并依据以上观点得出结论。这些包括对于“党国”结构的思考:(1)划分不同的公民权—— 不同于社会与经济公民权,政治公民权由政党来支配;(2)国家权力和制度从属于政治权威;(3)多党制被作为实现宪政价值的资源与渠道;(4)在这个体制 中,法制依靠国家于党的自律。中国的宪政,作为“党国”的宪政,可以用来理解依法治国。在这样的依法治国概念中,宪政约束的重点不是国家机器,而是政党组 织。由此,中国的宪政法制,应当理解为“党国”的宪政。从而,“党国”体系可以被称为一种合法的宪政体系,虽然它的实质价值有别世俗的、国际的宪政。这就 是有中国特色的宪政。

Tuesday, October 13, 2009

On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva

"On 5-6 October 2009, the Office of the UN High Commissioner for Human Rights (OHCHR) held a consultation: "Operationalizing the framework for business and human rights presented by the Special Representative" -- the "Protect, Respect, Remedy" framework [PDF] proposed by Special Representative Ruggie in his 2008 report to the UN Human Rights Council." Business and Human Rights Resource Center, Consultation on Operationalizing the Ruggie Framework--Geneva, 5-6 October 2009.

The Background to the Consultation was explained in the Draft Program:

In resolution 8/7 the Human Rights Council requested that the Office of the United Nations High Commissioner for Human Rights to organize a two day consultation, bringing together the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, business representatives and all relevant stakeholders, including non-governmental organizations and representatives of victims of corporate abuse, to discuss ways and means to operationalize the “Protect, Respect, and Remedy” framework on business and human rights put forward by the Special Representative. Each session will be addressed by 3-4 panelists who will make brief presentations, followed by interventions from the floor. It is anticipated that there will be around one hour of open discussion and interventions from participants during each panel session. The consultation is open to all individuals and organisations who registers in advance . . . Non-governmental organizations without ECOSOC accreditation need to submit the accreditation form. (Draft agenda & registration details)

Most interesting and worth reflection were the remarks of John Ruggie, Opening remarks by UN Special Representative John Ruggie, October 5, 2009, and those of Opening statement by UN High Commissioner for Human Rights Navanethem Pillay, Oct. 5, 2009. Stakeholder contributions may be accessed as well. This essay will briefly consider Mr. Ruggie's remarks.

After setting the stage, Mr. Ruggie focused on two significant issues facing an effort to implement any system of governance of business enterprises at the supra-national level--(1) implementation challenges; and (2) alternative approaches.

Mr. Ruggie identified five key challenges to the framework he has been developing. The first touches on the issue of framework scope. Here the great difficulty is defining the scope of the obligations to be imposed, formally and socially, on enterprises. There is a great tension between the need for precision and certainty--the great foundation of law systems--and the reality that in practice all activity is intimately interconnected--the foundation of systems of social or customary norm systems.
Therefore, the quest to construct ex ante a delimited list of business-specific rights for which companies would have some responsibility is a fool’s errand. Virtually all rights are relevant, though some may be more so than others in particular circumstances. This fact needs to inform the policies of states and companies alike. Opening remarks by UN Special Representative John Ruggie, October 5, 2009, at 2.
Mr. Ruggie rejects legal formalism as the sole basis for the construction of the social framework for business conduct.

The second challenge flows from the first. If the normative basis of law systems is fundamentally inadequate, those political systems grounded solely in such systems must, by definition, also share the similar inadequacies. The principal inadequacy identified by Mr. Ruggie was what he termed legal and policy incoherence. "Governments currently lack adequate policies and regulatory arrangements for fully managing the complex business and human rights agenda. Although some states are moving in the right direction, overall their practices exhibit substantial legal and policy incoherence. " Id. More particularly, Mr. Ruggie points to the ease with which governments have become trapped by the complexity of its operations in a global environment, what he terms "horizontal incoherence. The point was driven home with an example:
Not long ago, the government of South Africa was confronted with a startling instance of how serious this lack of policy coherence can be when investors from Italy and Luxembourg took it to binding international arbitration under a bilateral investment treaty. The investors claim that certain mining provisions of the Black Economic Empowerment Act amount to expropriation, entitling them to compensation. Why did the government sign up in the first place to an investment agreement that could threaten the country’s post-apartheid foundational principle of social justice? An official policy review explains that, among other reasons, “the Executive had not been fully apprised of all the possible consequences of BITs,” including for human rights. Id., at 2-3.
All the same, it is interesting that governments appear to suffer from this horizontal regulatory incoherence to an extent significantly greater than other large organizations--for example the large multinational enterprises that appear to be able to take advantage of sloppy government and the structural limitations of law based systems. But that is not the case universally. Large , rich, well run multinationals, like states with well developed and expensive-to-maintain governmental bureaucracies, are better able to avoid incoherence, than either poorer multinational enterprises or poorer or less developed states. That provides an irony of sorts--large multinational enterprises are more similar in their organization and operation to more developed states than either are to their poorer and less well developed counterparts.

The third challenge flows from this insight. If at least the most advanced multinational enterprises are the functional equivalent of states, then they ought to undertake burdens commensurate with their power and effects.
With rare exceptions, even large multinational companies lack fully- fledged internal governance and management systems for conducting adequate human rights due diligence. Their approach in a sense has been highly “legalistic”: focused on the requirements of their legal license to operate, and only slowly discovering that in many situations meeting legal requirements alone may fall short of the universal expectation that they operate with respect for human rights—especially, but not only, where laws are inadequate or not enforced. Respecting rights is the very foundation of a company’s social license to operate. Id., at 3.
Mr. Ruggie makes the quite sensible point that large and powerful enterprises cannot on the one hand protect their power to operate unhampered within a framework of social norm systems, and at the same time invoke their formalist subordination to states under legal norm systems. Yet the consequences may be profound for the relationship between state based law systems and transnational norm systems (and the related social license construct). This tension is most profoundly felt in efforts like the
OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones (2006).

If multinational enterprises are bound by a social norm, rather than merely a law, structure, Mr,Ruggie suggests in his fourth challenge, then such enterprises are bound to provide an adequate mechanism for enforcing its norm obligations. "In effect, this replicates the “legalistic” approach I’ve just described: if it isn’t required by law, we don’t need to do it. Companies thereby deny those who are adversely affected by their activities an opportunity to resolve issues that may be readily remediable." Id., at 3.

This brings Mr. Ruggie to his last challenge, one that embraces the implication that there is a greater difference between developed and developing states than may be between developed states and advanced multinational enterprises. "The incidence of corporate-related human rights abuse is higher in countries with weak governance institutions: local laws either do not exist or are not enforced, even where the country in question may have ratified all the relevant international human rights conventions. The worst cases occur amid armed conflict over the control of territory or of the government itself." Id., at 3. The insights from the OECD Risk Awareness Tool now better reveal their governance implications. That is meant to substitute multinational governance, through self governance in its relationship with others, for law systems within territories in which the state is largely marginal. This is meant to avoid the problem of a blind adherence to a hierarchy of rule system that always posits the supremacy of law systems even where the state is effectively absent. "Such contexts attract marginal and illicit enterprises, which treat them as law-free zones." Id.

Yet the state is not absent from this analysis--rather, Mr. Ruggie suggests a more horizontal relationship among governance institutions, again grounded in the necessary relations between law systems (the state) and norm systems (the enterprise). "The use of extraterritorial jurisdiction might be one way to close such impunity gaps, but it also raises legitimate concerns on the part of states and business. In the absence of other widely applicable tools, the U.S. Alien Tort Statute has become a de facto ultimate recourse. . . This is far from a systemic solution— which needs to include greater enforcement of existing laws, clearer standards and more innovative policy responses by both home and host states. " Id., at 3-4.

The challenges serve as foundation for discussion of alternatives. Mr. Ruggie describes the two traditional approaches and their champions--"Human rights advocates favor binding standards imposed on companies directly under international law. Business traditionally has favored voluntary initiatives coupled with the identification of best practices and the development of management tools, arguing that the market itself will drive the process of change." Id., at 4. Mr. Ruggie suggests both are inadequate. The rationale flows naturally from the presumption that states, like multinational enterprises, are subject BOTH to law systems and norm systems that exist in a complex set of entwined horizontal relationships. Translated back into the language of common discourse, Mr. Ruggie puts it this way:

A pure model of self-regulation beyond compliance with national laws lacks prima facie credibility. We live in a world of 192 nation states, 80,000 multinational corporations, millions of affiliates and suppliers, and countless other firms, large and small. There is not enough magic in any marketplace, real or imaginary, to overcome the staggering collective action problems.

As for imposing binding substantive human rights standards on companies directly under international law, that would require a treaty. And if we take seriously the fact that corporations can affect all human rights, as I do, then the treaty would have to include such standards for companies in relation to all internationally recognized rights. . . . First, why would states, North and South, which do not accept all international human rights standards for themselves, agree to subject their companies, multinational and national, to such standards under international law? Second, leaving that issue aside, would the standards in such a treaty likely be higher or lower than the highest standards companies have in place today? . . . . Third, how would such a treaty be enforced? Would it include a new international court for companies as legal persons? No one seriously expects that to materialize any time soon. . . . Fourth, major treaties on complex and controversial subjects require decades for the subject to ripen and negotiations to conclude.Id., at 4-5.
That leaves Mr. Ruggie in essentially new territory--one that rejects the monopoly of law systems within states and the conception of norm systems as non-binding.
The “protect, respect and remedy” framework lays the foundations for generating the necessary means to advance the business and human rights agenda. It spells out differentiated yet complementary roles and responsibilities for states and companies, and it includes the element of remedy for when things go wrong. It is systemic in character, meaning that the component parts are intended to support and reinforce one another, creating a dynamic process of cumulative progress—one that does not foreclose additional longer-term meaningful measures. Id., at 5
What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors.
"In a diverse set of sectors serious empirical research has now shown that polycentric systems tend to outperform monocentric systems governing similar ecological, urban, and social systems. Empirical studies of the vulnerability of differently linked social-biophysical systems are highly likely to demonstrate that governance systems composed of multiple units at multiple scales of organisations are less vulnerable to many types of external shocks than centralized systems."Elinor Ostrom, Vulnerability and Polycentric Governance Systems, Newsletter of the International Human Dimensions Programme on Global Environmental Change, Nr. 3/2001 ("polycentric governance systems are frequently criticized for being too complex, redundant, and lacking a central direction when viewed from a static, simple-systems perspective. They have considerable strengths when viewed from a dynamic, complex-systems perspective, particularly one that is concerned with the vulnerability of governance systems to external shocks." Id.). See also, Larry Catá Backer, Governance Without Government: A Preliminary Overview, Law at the End of the Day, June 16, 2009;

But the framework is not yet ready for deployment. Mr. Ruggie emphasized: "Now, I am not foolish enough, or so arrogant, as to believe that the “protect, respect and remedy” framework answers all our prayers. In fact, our journey has just begun. But I think it’s fair to say that we have come remarkably far in a relatively short period of time. And judging from these and other examples of uptake, I believe we can draw the conclusion that we are heading in." ID., at 6.

Monday, October 12, 2009

On the Malleability of Genocide--Turkey Between Armenia, Israel and China

Genocide has proven to be an elastic concept since the Second World War. It has become a powerful accusation that can serve to de-legitimate regimes who are successfully accused of the practice. Its meaning, once thought to be fairly clear has assumed something of a political overlay as communities of states fight with each other to keep members of their respective camps from being accused of acts of genocide. At the same time, states have been quicker to suggest that virtually any violent conflict in which people die amounts to a genocide like event. The result is an increasing messiness in the precise use of the term, but also a growth in the willingness to use the accusation as a political weapon, or to characterize historical events before the term became current or the practice condemned.

The malleability, anachronistic power and political utility of genocide is nicely evidenced in the multiple approaches to the use term (and the resistance to the use of the term) recently embraced by the Islamist government of the officially secular Republic of Turkey. Two recent stories, substantially ignored in the West, provide a vivid window on the way genocide is being used by Turkey to bring itself closer to Christian Armenia and to provide a basis for destroying its relationship with Jewish Israel. A third story, the Turkish government's accusation that the Chinese government was permitting genocide in Xinjian provides context.

Turkey and Armenia signed an agreement Saturday night establishing diplomatic relations after nearly a century of animosity. The agreement will open their common border within two months after it is ratified by each country's parliament. The border has been closed since 1993. Turkish-Armenian relations are often overshadowed by the dispute over the massacre of ethnic Armenians in the final days of the Ottoman Empire, more than 90 years ago. Armenians accuse Ottoman Turks of committing genocide, killing more than a million Armenians beginning in 1915. Turkey vehemently rejects these allegations. Armenia, Turkey Sign Historic Agreement,, October 10, 2009.

The Americans have appeared to tilt toward the Armenian view of things. "During the U.S. presidential campaign, then-candidate Barack Obama called for passage of the Armenian genocide resolution. Since his election, he has stepped back from the issue." Id. Armenia continues to campaign for recognition of a genocide conducted by Muslim Turks against Christian Armenians. "Armenia wants Turkey to recognise the killings as an act of genocide, but successive Turkish governments have refused to do so. The agreement calls for a joint commission, also including international experts, to examine the "historical dimension" of the two countries' relations. " Armenia and Turkey, BBC News Online, Oct. 10, 2009. But Turkey has deployed what it believes to be strong arguments against the charge. "Turkey admits that many Armenians were killed but says the deaths were part of the widespread fighting that took place in World War I." Armenia and Turkey, BBC News Online, supra.

Second, even as Turkey has moved closer to Armenia, it has been seeking to rupture its relations with Israel.
Turkey announced on Sunday the cancellation of an international air force drill at one of the country's air force bases, which was to include Israeli jets. Foreign Ministry sources said that Turkish military officials had approached the Israel Defense Forces recently with a surprising demand that Israel refrain from participating in the drill, due to the IDF's activity in Gaza. Barack David, Israel Hits Back at Turkey Over Scuppered Air Force Drill, Haaretz, Oct. 11, 2009.
The Turkish Prime Minister has carefully chosen the most operatic methods of drawing attention to Turkish abandonment of its relations with Israel. The cancellation of the military operations was one. But there were others. "But ties have cooled sharply over Turkish Prime Minister Recep Tayyip Erdogan's sharp criticism of Israel's winter war in the Gaza Strip, especially in light of a televised fracas between President Shimon Peres and Erdogan at the Davos Conference this past January. " Barack David, Israel Hits Back at Turkey Over Scuppered Air Force Drill, supra. But most important, and ironic in light of its relationship with Armenia, has been Mr. Erdogan's insistence that Israel has committed genocide in Gaza. "Turkey adopted a critical stance on Israel and Erdogan maintained that Israel was carrying out genocide in the Gaza Strip. Since then, the two states have maintained diplomatic and military contacts but have not had any meetings between high-level officials." Barack David, Israel Hits Back at Turkey Over Scuppered Air Force Drill, supra.

Apparently, there is a difference between the deaths of many Armenians as part of widespread fighting in World War I and the deaths of a smaller number of civilians during the Gaza campaigns of 2008-09, at least in the minds of the Islamist Turkish government. Turkey is now as eager to charge Israel with genocide in its recent military campaigns against Hamas in Gaza, as it is to deny the same charge when asserted against it by Christian Armenia. It is hard to reconcile the two positions except by factoring in the politics of religion. "Almost exactly a year before Erdogan's outburst at Davos, in which he lambasted Israeli President Shimon Peres over Israel's actions in Gaza, he was literally rolling out the red carpet for Sudan's genocidal president and indicted war criminal Omar al-Bashir in Ankara." Since when did Erdogan have a problem with leaders who kill people?, FP Passport, Jan. 30, 2009. And, of course, the use of Israel as a whipping boy may have significant domestic benefits--especially in Mr. Erdogan's efforts to marginalize the secular parties and the military in Turkey.
Since Turkey's military has in past years made strategic alliances with Israel, Erdogan is striking a shrewd blow against the generals in rabble-rousing anti-Israeli sentiment. Currently, at the behest of Erdogan's party, Turkey's judiciary is conducting a witch hunt against an ever-growing number of pro-secular journalists, intellectuals and ex-soldiers, who are accused of a highly nebulous "conspiracy" to overthrow the constitution. No doubt, some of them will soon be tarred with evidence of having worked too closely with Israel. Melik Kaylan, The Dangers of Rejectiong Turkey, Forbes.Com, 02-03-2009.

It is possible that the Islamist government believes that the United States will be more tolerant of deterioration in relations with a Jewish state if they substituted better relations with a Christian state. And, at least under the Bush Administration, the Americans had been eager to trumpet the possibility of a nice, safe, well behaved "soft" Islamist government as a role model for Iraq and Afghanistan. See, Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization Law at the End of the Day, July 16, 2007. Moreover, there may be additional benefits to courting Armenia at the expense of Israel. Thus, it has been suggested that "Turkey and Armenia both have an interest in turning the page - the economy of landlocked Armenia would benefit from access to Turkey. And Ankara's role as a broker and stabilising influence would be boosted in a volatile region." Kim Ghattas, Analysis, Turkey and Armenia, BBC News Online, Oct. 10, 2009. On the other hand, it is likely that the current Turkish government would completely rupture its relations with Israel except for its fear that it might endanger its relationship with the United States. Moving more in line with the positions of Syria and Iran helps boost Turkey's standing in the region, but that enhancement is limited by the toleration of the United States (and to a much lesser extent, the Member States of the European Union). And ironically, the Bush Administration might have been more tolerant, for its own reasons, than the Obama Administration. Yet there was enough ambiguity in Mr. Obama's Cairo speech to give Mr. Erdogan some apparent room for grandstanding in this area without fear of repercussion. See Larry Catá Backer Mr. Obama Speaks in Egypt: "Islam is a Part of America"--The Ummah Wahida, and the State in Two Distinct World Orders Law at the End of the Day, June 5, 2009.

The Israeli reaction might be swift and ironically pointed at the soft underbelly of Mr. Erdogan's freewheeling accusations--again, Armenia. "Enraged by the abrasive tone of Turkey’s condemnation of Israel’s attack on Gaza, Israeli officials and Turkish analysts are now raising the possibility that Tel Aviv may retaliate either by recognizing the Armenian Genocide or refusing to help Turkey to lobby against a congressional resolution on the genocide." Harut Sassounian, Angered by Turkish Criticism over Gaza, Israel May Recognize Armenian Genocide, The California Courier. "It isn't easy to choose a winner in the cynicism stakes here. Here's what one Turkish columnist, Barcin Yinanc, shrewdly wrote: "When April comes, I can imagine the [Turkish] government instructing its Ambassador to Israel to mobilize the Israeli government to stop the Armenian initiatives in the U.S. Congress. I can hear some Israelis telling the Turkish Ambassador to go talk to Hamas to lobby the Congress."" Gerald Caplan, Israel, Turkey and the Politics of Genocide, The Globe & Mail, April 9, 2009.

Still, except with respect to Armenia, Mr. Erdogan has been both consistent and very free in his conception of genocide--as long as it involves violence against Muslim communities. Thus, perhaps, both Mr. Erdogan's silence on Sudan and more "genocide" grounded interest in China. Indeed, recently Mr. Erdogan has suggested that China and Israel may be equally culpable of genocide against Muslims.

Turkey's prime minister Recep Tayyip Erdogan said ethnic violence in China's Xinjiang province "like a genocide.

"We ask the Chinese government not to remain a spectator to these incidents. There is clearly a savagery here", Erdogan said. "We ask the government of China to abandon assimilation, because such assimilation can do you no good," Erdogan added in a speech to his Justice and Development Party broadcast on television. Erdogan strongly criticized Beijing for the recent killing of at least 156 people including Turkic-speaking, Muslim Uighurs. In Ankara and Istanbul, thousands of angry Turkish demonstrators protested the clashes in Xinjiang's capital of Urumqi between Han Chinese and minority Uighurs and set Chinese flags on fire. The Han China's ethnic majority have lately been flooding into Xinjiang as the region becomes more developed. Uighurs share ethnic and cultural bonds to Turks. The Chinese government has already imposed curfews and flooded the streets of Urumqi with security forces to avoid a repeat of the running street battles earlier in the week Erdogan is the leader of the Islamic-rooted government and he has spoken up for Uighurs as he did for Palestinians during Israel's offensive on Gaza earlier this year. In late January this year, Erdogan poured his anger on the stage he shared with Israeli President Shimon Peres at the World Economic Forum in Davos, Switzerland. He told Peres: "You kill people." Turkey's Erdogan: genocide in Xinjiang against Uighurs, Emirates News Agency, July 11, 2009.
Mr. Erdogan was emphatic on the point. "“I use the term [genocide] consciously and with belief,” Mr Erdogan said when reporters asked him about the discrepancies. “My colleagues in the foreign ministry cannot use other terms than I use.” He said “the pain suffered by the Uighur Turks is our pain”, adding that Turkey would continue to do everything it could “for our relatives, for our brothers over there”." Thomas Seibert, Turkey Walks a Fine Line of Diplomacy, The National, July 12, 2009.

The Chinese response was also swift. "Chinese Deputy Foreign Minister Zhai Jun has called remarks made by Prime Minister Recep Tayyip Erdoğan likening the ethnic violence in China's northwestern Muslim region of Xinjiang to genocide an “irresponsible statement,” NTV news reported on Thursday. . . .
“Due to recent statements from Turkey, relations between Ankara and Beijing have been harmed,” Zhai told NTV, emphasizing the need to repair their relations." Beijing Critical Over Erdogan Genocide Description, Today's Zaman, July 24, 2009. But Turkey needs China; Tukey's military is interested in Chinese military hardware and the Turkish government has been hawking its business in China. Turkish PM Erdogan likens Xinjiang violence to 'genocide', France 24, July 10, 2009.

The irony of the Turkish positions on Israel's actions in Gaza and China's in Xinjiang take on added significance when compared to Mr. Erdogan's response to the Armenian genocide charge:

The Turkish Prime Minister reacted to the Armenian President, Kotscharian, who thanked countries that acknowledged the Armenian genocide. Kotscharian stated: “This year we commemorate the 90th anniversary of Armenian genocide. We thank all countries that support us. Our purpose is to make acknowledge this genocide committed by Ottoman Turkey on international platform. Armenians are the most suffered ones at the end of the First World War”, Turkish Cumhuriyet news paper reports.
To that statement, the Turkish Prime Minister, Recep Tayyip Erdogan, retorted claiming that Kotscharian is just looking for popularity. He declared: “To use the expression “genocide” without any fundament, shows no less than the irresponsibility of these politicians. They satisfy themselves, they just look for popularity”. Erdogan: Genocide is a Tool of Populist Politicians, Axis, Global Challenges Research, May 17, 2005
It is, of course, hard to square this explanation of the Armenian issue in 1915 with the Israeli accusations in 2009--unless, of course, Mr, Erdogan believes there is something different between the victims that is fundamental to a determination of genocide. The point here is not to suggest that this or that specific allegation of genocide are or are not valid. Instead, the point is that genocide has has increasingly become debased as a concept as politicians begin to hide behind its charge to cover actions grounded in political expediency, sectarian antipathy and ethnic unity. It is sad to see the Islamic government of Turkey so eager to engage so openly in the somewhat perverse use of the term in its relations with Armenia, Israel and China. And there is a great danger in the gambit. Not only does it debase the concept of genocide, but it opens Turkey to more dangerous reactions--for example from the Kurdish populaiton in the region. Thus, for example, the Kurdish National Assembly in Syria was quick to draw the implications of Mr. Erdogan's free use of the genocide charge--against Mr. Erdogan's own government and its actions against Kurds. Turkish PM Erdogan likens Xinjiang violence to 'genocide', Kurdistan National Assembly--Syria. And, indeed, the deterioration of relationship with Israel and strengthening of Syrian ties may serve Turkey well in its efforts to reach more deeply in the region against Kurds. "Ankara announced earlier this week plans to hold its first military drill with Syria, using ground forces in a border area that has been the focus of a 25-year conflict between Turkey and separatist Kurdish rebels. " 'Syria-Turkey ties tighter because of Gaza war' , Haaretz, Jan. 5, 2009.

Perhaps Gerald Caplan, in a recent article (Gerald Caplan, Israel, Turkey and the Politics of Genocide, The Globe & Mail, April 9, 2009.), described best the sad movement genocide from horrific crime to political curse word: "I'm guessing some readers work on the naïve assumption that an event is deemed genocidal based on the facts of the case. Silly you. In the real world, you call it genocide if it bolsters your interests. If it doesn't, it's not. It's actually the same story as with preventing genocide. . . . . Whatever the outcome, be sure that politics, not genocide, will be the decisive factor." Id. All of this should serve to complicate international efforts to institutionalize a global set of norms. It appears that, in the international stage, politics still has significant effects on the shape and understanding of law. The efforts to fashion genocide as a legal, rather than as a political, concept, still appears to have a long way to go. And perversely enough, genocide as political fetish invocation, may significantly affect the legitimacy of global institutions ultimately charged with investigating and sometimes prosecuting "legal" rather than "political" genocide, formost among them the International Criminal Court. For those interested in strengthening international frameworks for peace and harmonious relations among people and the construciton of institutions that further those aims, the Turkish turn suggests the great difficulties to be overcome.

Friday, October 09, 2009

Rewarding the American State Apparatus for Good Behavior: Understanding and the Awarding of the Nobel Peace Prize to Mr. Obama

This blog site joins the great chorus of people and institutions in raising a loud hosanna to the genius of the global community now manifested in the form of the recent decision of the Nobel organization to award its prize for peace to the American President, Barack Obama. "The surprise choice of President Barack Obama for the Nobel Peace Prize drew praise from much of the world Friday even as many pointed out the youthful leader has not yet accomplished much on the world stage." Gregory Katz, Obama's Nobel Peace Prize triumph hailed by many, Associated Press, October 9, 2009.

I leave it to others to analyze the merits of that particular choice. I note only that it appears that the actions of George W. Bush during his Presidency was as much responsible for the award as the faith-in-a-future-hoped-for popular speeches whose perceived ideals so endeared Mr. Obama to the Nobel Committee.
Massimo Teodori, one of Italy's leading experts of U.S. history, said the Nobel decision is a clear rejection of the "unilateral, antagonistic politics" of Obama's predecessor, George Bush."The prize is well deserved after the Bush years, which had antagonized the rest of the world," Teodori said. "President Obama's policy of extending his hand has reconciled the United States with the international community." . . . . In Pakistan's central city of Multan, radical Islamic leader Hanif Jalandhri, said he was neither happy nor surprised by Obama's award. "But I do hope that Obama will make efforts to work for peace, and he will try to scrap the policies of Bush who put the world peace in danger," said Jalandhri, secretary general of a group that oversees 12,500 seminaries. Id.
The Nobel Committee based its award, effectively on its revulsion with American policy from 2001 to the defeat of the Republican party administration in 2008. Sadly, Mr. Bush will be unable to take the credit he is due for his important role in making this award to Mr. Obama possible. "Sem citar seu antecessor George W. Bush, o comitê salientou as diferenças no envolvimento dos EUA com o resto do mundo desde a mudança de governo em Washington, em janeiro. "A diplomacia multilateral recobrou uma posição central, com ênfase no papel que as Nações Unidas e outras instituições internacionais podem desempenhar." Comitê nega que Obama tenha recebido o Prêmio Nobel da Paz 'cedo demais', O Globo, Oct. 9, 2009 ("Without citing his predecessor George W. Bush, the committee stressed the differences in U.S. involvement with the rest of the world since the change of government in Washington in January. "Multilateral diplomacy regained a central position, with emphasis on the role that the United Nations and other international institutions can play."")

Yet the spirit of Mr. Bush is everywhere. The Novel Organization's web site declares the basis of the award to Mr. Obama "for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples." Nobel Organization, Nobel Peace Prize 2009, October 2009. Clearly, the habits and practices of the American presidency during the first eight years of this century were abhorrent in some quarters. Its abandonment requires recognition--and nurturing. It seems, then, that even the United States can be subject to the disciplinary punishment and reward system of the world community. That community has made its desires well known--a distaste for blatantly imperial behavior for the forms of hegemony that are sugar coated in smooth language.

Perhaps the greatest impact of the award has been the light it shines on the passionate rush, at least at the highest levels of elite government, civil society and media elite elements, to embrace the globalist rhetoric of Mr. Obama. Indeed, it is clear that the award was made to add weight and legitimacy to the political and social vision that Mr.Obama has articulated as for the success of any efforts thus far attained. It is that vision that the Novel Organization and its supporters wishes to see realized--though the details of that implementation are of little moment--and a global gesture adding to the legitimacy, perhap even the inevitablity fo that vision, was deemed important. "'Very rarely has a person to the same extent as Obama captured the world's attention and given its people hope for a better future,' the committee said in a citation." Wojciech Moskwa and Matt Spetalnick, Obama wins Nobel Peace Prize to mixed reviews, Reuters, Oct. 9, 2009. Thorbjorn Jagland, chairman of the Nobel committee
rejected the notion that Obama had been recognized prematurely for his efforts and said the committee wanted to promote the president just it had Mikhail Gorbachev in 1990 in his efforts to open up the Soviet Union.

"His diplomacy is founded in the concept that those who are to lead the world must do so on the basis of values and attitudes that are shared by the majority of the world's population," it said.

Jagland said he hoped the prize would help Obama resolve the conflicts in Iraq and Afghanistan.

Former Finnish President Martti Ahtisaari, last year's laureate, said it was clear the Nobel committee wanted to encourage Obama on the issues he has been discussing on the world stage.

"I see this as an important encouragement," Ahtisaari said.

The committee wanted to be "far more daring" than in recent times and make an impact on global politics, said Kristian Berg Harpviken, director of the International Peace Research Institute. Obama awarded 2009 Nobel Peace Prize,, Oct. 9, 2009.

"Egeland said he believes it was the president's U.N. Security Council resolution to rid the world of nuclear weapons that resulted in the award going to Mr. Obama. He also said the award may strengthen Mr. Obama's hand in winning international cooperation on key initiatives including climate change, but cautions Afghanistan is a "special case" where he does not expect other nations to increase support for the United States' military effort there." World Reacts to Obama's Nobel Peace Prize, CBS News, Oct. 9, 2009.

President Obama's carefully cultivated rhetorical architecture has appeared to draw a sharp contrast between his vision of the United States engaged within the world community and that of his predecessor.
Pero quizá es precisamente Bush quien ha hecho tan "esperanzador" a Obama a ojos del comité de los premios Nobel. Tras ocho años de polémica gestión en Washington, la llegada de un nuevo presidente dotado de una poderosa oratoria ha supuesto un soplo de aire fresco en la diplomacia internacional. Así lo creen quienes le entregarán el galardón el próximo 10 de diciembre, convencidos de que "muy pocas veces una persona había captado hasta ese punto la atención del mundo y le había dado a la gente esperanza para un futuro mejor". appearance of unilateralism. Obama, Nobel de la paz, El Mundo (España), Oct. 9, 2009. ("But maybe it was Bush himself who has made Obama so much the object of hope in the eyes of Nobel awards committee. After eight years of controversial tenure in Washington, the arrival of a new president gifted with a powerful oratory has brought a breath of fresh air in international diplomacy. That is what those who will deliver the award on December 10 believe, "very rarely has a person captured the world's attention and given its people hope for a better future."" Id.)
Yet, a careful examination of that rhetoric might reveal a complexity, about both person and ideology, that ought to be examined closely by those eager to embrace what they believe it means. I am not suggesting a critique of the award--far from it. I am merely suggesting that the vision awarded, understood on its own terms, is substantially more complex than its awarded perception. See, Larry Catá Backer, Mr. Obama Speaks in Egypt: "Islam is a Part of America"--The Ummah Wahida, and the State in Two Distinct World Orders, Law at thew End of the Day, June 5, 2009. Larry Catá Backer, Mr. Obama on Guantanamo: Of Power and Politics in Time of CrisisLaw at the End of the Day, May 21, 2009.

Consider Mr. Obama's acceptance remarks issued several hours after official receipt of the announcement was conveyed and Mr. Obama and his advisers had the chance to produce a response.
11:16 A.M. EDT
THE PRESIDENT: Good morning. Well, this is not how I expected to wake up this morning. After I received the news, Malia walked in and said, "Daddy, you won the Nobel Peace Prize, and it is Bo's birthday!" And then Sasha added, "Plus, we have a three-day weekend coming up." So it's good to have kids to keep things in perspective.

I am both surprised and deeply humbled by the decision of the Nobel Committee. Let me be clear: I do not view it as a recognition of my own accomplishments, but rather as an affirmation of American leadership on behalf of aspirations held by people in all nations.

To be honest, I do not feel that I deserve to be in the company of so many of the transformative figures who've been honored by this prize -- men and women who've inspired me and inspired the entire world through their courageous pursuit of peace.

But I also know that this prize reflects the kind of world that those men and women, and all Americans, want to build -- a world that gives life to the promise of our founding documents. And I know that throughout history, the Nobel Peace Prize has not just been used to honor specific achievement; it's also been used as a means to give momentum to a set of causes. And that is why I will accept this award as a call to action -- a call for all nations to confront the common challenges of the 21st century.

These challenges can't be met by any one leader or any one nation. And that's why my administration has worked to establish a new era of engagement in which all nations must take responsibility for the world we seek. We cannot tolerate a world in which nuclear weapons spread to more nations and in which the terror of a nuclear holocaust endangers more people. And that's why we've begun to take concrete steps to pursue a world without nuclear weapons, because all nations have the right to pursue peaceful nuclear power, but all nations have the responsibility to demonstrate their peaceful intentions.

We cannot accept the growing threat posed by climate change, which could forever damage the world that we pass on to our children -- sowing conflict and famine; destroying coastlines and emptying cities. And that's why all nations must now accept their share of responsibility for transforming the way that we use energy.

We can't allow the differences between peoples to define the way that we see one another, and that's why we must pursue a new beginning among people of different faiths and races and religions; one based upon mutual interest and mutual respect.

And we must all do our part to resolve those conflicts that have caused so much pain and hardship over so many years, and that effort must include an unwavering commitment that finally realizes that the rights of all Israelis and Palestinians to live in peace and security in nations of their own.

We can't accept a world in which more people are denied opportunity and dignity that all people yearn for -- the ability to get an education and make a decent living; the security that you won't have to live in fear of disease or violence without hope for the future.

And even as we strive to seek a world in which conflicts are resolved peacefully and prosperity is widely shared, we have to confront the world as we know it today. I am the Commander-in-Chief of a country that's responsible for ending a war and working in another theater to confront a ruthless adversary that directly threatens the American people and our allies. I'm also aware that we are dealing with the impact of a global economic crisis that has left millions of Americans looking for work. These are concerns that I confront every day on behalf of the American people.
Some of the work confronting us will not be completed during my presidency. Some, like the elimination of nuclear weapons, may not be completed in my lifetime. But I know these challenges can be met so long as it's recognized that they will not be met by one person or one nation alone. This award is not simply about the efforts of my administration -- it's about the courageous efforts of people around the world.

And that's why this award must be shared with everyone who strives for justice and dignity -- for the young woman who marches silently in the streets on behalf of her right to be heard even in the face of beatings and bullets; for the leader imprisoned in her own home because she refuses to abandon her commitment to democracy; for the soldier who sacrificed through tour after tour of duty on behalf of someone half a world away; and for all those men and women across the world who sacrifice their safety and their freedom and sometime their lives for the cause of peace.

That has always been the cause of America. That's why the world has always looked to America. And that's why I believe America will continue to lead.
Thank you very much.
The Remarks contain all that one would expect on this sort of occasion--a combination of humility, gratitude and deferential contextualization of the award, which by its exaggeration highlights the great status and power of the recipient. It also embodies another expected construction of these sorts of messages--the division of the person of the recipient into two--the individual and the proxy for the sovereign masses and state apparatus that he incarnates. The remarks open with the evocation of the loving father--the "everyman" fortuitously placed in an extraordinary position. This is followed by the mandatory trope of humility but then immediately followed by the first hint at bifurcation of the body of Mr. Obama: as the loving "everyman" he may be unworthy, but as the incarnation of the all of the people on earth, lead by the American people, whose peoplehood he incarnates in his own body, the award merely affirms the rectitude of that position, power, and mission. That bifurcation is carried through in the next two paragraphs, of the remarks. In Paragraph threee, Mr. Obama is "everyman" again, whose is humbly compared to those who received the award before him. But that comparison, the next paragraph makes clear, is inapposite. For the award is not being given to "everyman" but to that person is embodies a world yet to be built, a set of aspirations yet to be attained, a cluster of causes for which a symbol and focus is required, and a "call to action." Mr. Obama accepts the award as the physical locus of all nations in their confrontation with the common challenges of this century. That dualism then plays out in the remaining parts of the Remarks. On the one hand, Mr. Obama acknowledges that the challenges he alludes to cannot be met by a single nation (or man). Yet at the same time, the challenges must be recognized, managed and met through a leadership that embodies the aspirations of the world--his own, as representative of the one nation that represents the world. The award, Mr. Obama now obliquely alludes, suggests the location of that leadership in the United States which he embodies. And so, as is his duty, Mr. Obama begins listing a set of behaviors that he believes intolerable--nuclear arms, climate change, asocial and economic rights, nd power hierarchies (and the violence that follows) based on differences in religion, ethnicity and the like, with a special nod to international relation's favorite managerial pastime, the Israel-Arab (now Palestinian) dispute. Those "intolerances" ultimately come back to rest on his (representative) shoulders--not as "everyman" but as a construct inhabiting an individual's body. He is the Commander in Chief presiding over multiple wars, and an economic crisis that he confronts in the service of the American people. Together, these great challenges are said to likely survive Mr. Obama's time in office and represents--he represents--the courageous efforts of people around the world. The Nobel Ward, therefor, is accepted in a representative capacity--Mr. Obama as the world, as its incarnation, hope and representative, but ultimately Mr. Obama as America--itself, as he has alluded to in other speeches, the only true representative of the global community and its aspirations. And thus the award recognizes not merely the man--but the incarnation of the state in the man, and the world in the state. The award is meant to represent a call to action for thew world, which all must work toward--under the leadership of the United States, which itself is embodied in the person of Mr. Obama. "That has always been the cause of America. That's why the world has always looked to America. And that's why I believe America will continue to lead." Remarks, supra. And thus the nature of the new consensus unilateralism endorsed by the Nobel.

As he has done in his speeches on Guantanamo and in Egypt, "In the end, Mr. Obama has suggested much that well worn but now wrapped in a faith in himself, and in the United States as a mirror of the world. He has done that effectively. But he has done little else." Larry Catá Backer, Mr. Obama Speaks in Egypt, supra. Yet it sounds so much different when delivered by its author and is heard more differently still by those eager to hear in those words something that soothes. Thus awarded and received, the Nobel Peace Prize serves as a potent symbol, and reminder, of the truth in rhetoric, and the power in gesture.
One does not only wish to be understood when one writes; one wishes just as surely not to be understood. It is not by any means necessarily an objection to a book when anybody finds it impossible to understand: perhaps that was part of the author's intention--he did not want to be understood by just "anybody." Every more noble spirit and taste selects its audience when it wishes to communicate itself; and choosing them, it at the same time erects barriers against "the others." Friedrich Nietzsche, The Gay Science Parag. 381, p. 343 (Walter Kaufmann, trans, & ed., New York: Vintage Books, 1974).
So it may be here in this award to this man at this time. Only time will reveal the "truths that are singularly shy and ticklish, and cannot be caught except suddenly--the must be surprised or left alone." Id., 345. The world acknowledges, now, this man of peace.