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."")

Thursday, October 08, 2009

Al-Qaida in China

The Jerusalem Post recently reported that al Qaeda appears to have assessed itself strong enough to take on the Chinese in Xinjiang.

Al Qaida spokesmen announced on Thursday that the organization's militants would soon begin to work towards "freeing their Muslim country," referring to China.

They stated that would specifically target the Asian republic's Muslim-dominated "East Turkestan" region, in what is today Xinjiang.

"our Muslim brethren in Turkestan must know that the only way to be rid of the oppression and exploitation [of Muslims in China] … is Jihad," was the message Al Qaida wished to convey to adherents of Islam in the region.

The fundamentalist organization said in a series of videos that it planned to re-educate a new generation of Chinese Muslims "whose forefathers were not allowed to read the Kuran." Al-Qaida wages war on China: 'Jihad is the only way', Jerusalem Post, Oct. 9, 2009.

The report is interesting for a number of reasons. First, it suggests the success of Chinese responses to the ethnic and religious riots that destabilized portions of Xinjiang in July. "China’s fears about international Islamic militants getting excited over the Xinjiang problem came true with a prominent Al-Qaida leader threatening to attack Chinese targets in "reprisal" for the July 5 riots in Urumqi, capital of the Xinjian.

Abu Yahya al-Libi, the Al-Qaida leader, has urged the Muslim Uygur population in Xinjiang to make "serious preparation for jihad in the path of God the Almighty". He said in a video posted on an Islamist website that Uyghur should carry weapons and opt for "a true return to their religion.'" Al-Qaida leader orders reprisals against Chinese targets for Urumqi riots, The Times of India, Oct. 8, 2009.
It also suggests that al Qaeda means to test its alliances within Pakistan. That is particularly important in connection with American and Chinese efforts to enlist the Pakistanis for their respective internal and external policy objectives. "China has gone to great lengths and even enlisted Pakistan’s assistance to get Muslim nations and organisations accept its version of the July 5 riots in Urumqi. It seemed to have earned a measure of success when neighboring Turkey came out in support of Beijing after initially protesting against the treatment of Uygurs. But the latest diktat from the Al-Qaeda leader shows that the issue is very much on the radar of Islamic militants and behind-the-scene lobbying by China’s friends and allies have had limited effect. Yahya al-Libi has also tried to expand the scope of the issue by asking the Muslim world to "support them (the Uygurs) with all they can". " Al-Qaida leader orders reprisals against Chinese targets for Urumqi riots, The Times of India, Oct. 8, 2009. For the Americans, the pressure from al Qaida might suggest a basis for the extensive opposition in Pakistan to the conditions attached to the $1.5 aid package--an opposition that might bring down the civilian government of Pakistan. See, Khalid Qayum, Pakistan’s Army Issues Rare Criticism of U.S. Aid Conditions,, Oct. 7, 2009 ("Pakistan’s military is concerned about aid conditions including the requirement to demonstrate how effective the government’s control over the military is, oversight and approval of defense budgets, chains of command, promotions of senior commanders and civilian involvement in strategic planning, Dawn newspaper said in a report today. Ashfaq Parvez Kayani, chief of the army, who met his top commanders today, has conveyed his concerns about the bill to Prime Minister Yousuf Raza Gilani, the News newspaper reported today. " Id.).

Third, it indicates that al Qaeda thinks that it might profit from attacking China in its home territory to greater effect than previous attacks on Chinese nationals in the Middle East. "Al-Qaida's Algerian-based offshoot, Al-Qaida in the Islamic Maghreb (AQIM), issued a call for "reprisals" in mid-July. At that time, AQIM pledged to target the 50,000 Chinese workers in Algeria as well as Chinese projects and workers across northwest Africa, according to the London-based international consultancy Stirling Assynt. This prompted the Chinese embassy in Algeria to issue a statement urging Chinese organizations and citizens in Algeria to be on alert. " Al-Qaida leader orders reprisals against Chinese targets for Urumqi riots, The Times of India, Oct. 8, 2009. It appears that al Qaida allies have already started testing the vulnerability of China to attacks in its heartland. "Another group calling itself the Turkistan Islamic Party (TIP) had urged Muslims to attack Chinese interests worldwide in August. TIP claimed it had carried out the bombing of two public buses in Shanghai in May last year. " Id.

The Chinese view this latest announcement as an advantage. One media report explained the logic nicely:
The 9-11 terrorist attack deprived Islamic extremists of any sympathy from people around the world. Almost all of the countries and governments vowed that they were against any form of terrorism.

Al-Qaida expressed its support for the Uighur separatists, which made it quite difficult for western countries to blame the Chinese government over the July 5 riot. After all, people around the world will align together when it comes to facing terrorist activities. This will surely win some diplomatic room for the Chinese government in dealing with the riot in Xinjiang. He Liangliang, Al-Qaida support a kiss of death for Uighur separatists,, July 16, 2009

On the other hand, while the Chinese analysis might be truew for state support of independent for Xinjiang among Western states, the al Qaeda efforts may serve to provide greater support for clandestine efforts in the region.

Sunday, October 04, 2009

When Collectivist Economies Meet Sovereign Investing: Dubai Ports in Cuba

Over the last decade, Cuba has sought to revivify the concept of state to state economic activity. As one of the last bastions of organization on the model of the old Stalinist collectivist state apparatus, Cuba has long sought to convince others that this form of economic organization, substantially discredited after the fall of the Soviet Union and the reforms of Deng Xiaoping, can be efficient enough. To that end, Cuba (with the aid of an eager Venezuela) has been working on a state to state collectivist regional trade model--ALBA. See Larry Catá Backer and Molina, Augusto, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas (May 20, 2009). University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010.

At another end of the ideological spectrum, state actors have been channeling their market activities through separately constituted or maintained sovereign funds. These are meant to serve as a basis for competition with largely private global markets on substantially the same terms as private actors. In return, states into which such economic activity is projected are more amenable to avoiding protectionist measures against sovereign inbound investment. That, of course, is the core presumption of global soft law regulatory efforts like the Santiago Principles. I provide a more detailed analysis of the Santiago Principles elsewhere. See, Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment, 41(2) GEORGETOWN JOURNAL OF INTERNATIONAL LAW – (forthcoming 2009).

More interesting still, of course, is the possibility of blending both political policies and the traditional economic purpose orientation of separately constituted economic enterprises. China has become a pioneer in fashioning these hybrid collectives--sovereign wealth funds and controlled state owned enterprises that are private in form and fundamental operation, but subject to maximizing the political interests of the state owner. Larry Catá Backer, Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience, Transnational Law & Contemporary Problems, Vol. 19, No. 1, 2009 >The Chinese efforts to coordinate sovereign investing directly by the China Investment Corporation and its principal subsidiaries, and indirectly through its subsidiaries and supported SOEs investing abroad, suggest the more complex organization of sovereign investing in which profit maximization is blended with a pronounced set of political objectives, grounded in development goals. This presents a potentially substantial advance in the integration of programs of sovereign investing, public policy and private markets. A responsive regulatory framework has not followed. ").

What happens if you put all three trends together. The answer to that may become clearer soon. The Chinese media is reporting (in Spanish) that Cuba is in negotiations with a sovereign wealth fund for the revitalization of its ports. "El gobierno de Cuba invitó a Emiratos Arabes Unidos a que participe en el proceso de inversiones en marcha en el puerto de Mariel, en el occidente de la isla. El ofrecimiento fue hecho por el vicepresidente cubano Ricardo Cabrisas, al dialogar con el ministro de Asuntos Exteriores de Emiratos Arabes Unidos, Abdullah bin Zayed al Nahyan, quien visita la isla. " Cuba invita a invertir a Emiratos Árabes Unidos, Spanish (October 4, 2009) (from Xinhua News) ("The Cuban givernment invited the United Arab Emirates to participate in the ongoing development of the port of Mariel, in the Western part of the Island. The offer was made by the Cuban Vice President, Ricardo Cabrisas, in talks with the UAE foreign minister Abdullah bin Zayed al Nayyan, who is on a visit to the Island"). Sheikh Abdullah bin Zayed al Nahyan, of course, isthe brother fo the Crown prince of Abu Dhabi. His visit was part of a Latin American trip to bring home additional enhanced "peace and friendship" agreements from the region. Abdullah bin Zayed meets Mexican President, officials Emirates News Agency, Oct. 2, 2009.

The potential deal has been criticized for political reasons. For an excellent example, see, ¿El Puerto del Mariel?, Lealtad 3 Once, Oct. 3, 2009. The solicitation also serves to provide a window onto the recent geopolitical decision by the Cuban state apparatus to enhance closer ties with Middle East nations, not the least among them Iran. While the relationship with Persian Gulf states appears to be substantially economic (the UAE representative traveled to Cuba to sign a "closer ties" agreement, apparently the first since relations were established in 2002, Cuba invita a invertir a Emiratos Árabes Unidos, supra.), those with Iran have for some time been more comprehensive, and focused on those states' mutual obsession with the United States. "He (Castro) once again agreed with Ayatollah Khameneh’i on the point that Iran and Cuba can hand in hand defeat America, the official Iranian news agency IRNA quoted the Cuban leader, after he was assured by his host that Iran and Cuba can achieve that goal, "hand in hand". In the meeting, both leaders denounced the Western hegemony and agreed that the US is extremely weak today and stressed that they are not scared of America today."The Cuban nation is stronger than ever in the past, forty years after the victory of its revolution", Mr. Castro assured Mr. Khamenehe'i." Cuba and Iran to Fight Jointly the United States, Iran Press Service, May 10, 2001. Moreover, as with many things Cuban, there is some perverse and conscious irony here. Cuba is suggesting that it is more than happy to become involved with the people whose ownership of Dubai Ports World caused such a furor in 2006 when they seemed poised to assume management of key American ports.

Yet, there are other wrinkles as well that touch on the regulatory and conceptual space where collectivist state theory, sovereign investing and private market regulation meet. From the Cuban perspective, of course, engaging in deals for the reconstruction of the port of Mariel appears comfortably political. A transaction with the UAE will likely be seen as a state to state transaction in which Cuban collectivist approaches to economic management are most compatible. Yet, the transaction would likely involve either a state owned enterprise--perhaps some part of the Dubai World group, or some other similar entity within the UAE structure. It might also involve financing or other participation, perhaps by the Abu Dhabi Investment Authority.
UAE officials have long insisted that the Abu Dhabi fund is run strictly as a business and bristle at critics who worry they might misuse their massive financial clout, but the government refuses to speak publicly about the fund's operations. . . .The UAE is particularly sensitive to the potential for political backlash in the business world. A 2006 deal for DP World, one of the world's largest and most successful port operators, to take over running several U.S. ports triggered a firestorm that forced the Dubai-based firm to sell its newly acquired U.S. operations.
While the Abu Dhabi Investment Authority is a passive investment house, Mubadala is a more active development and management firm. "We are in the business of building businesses," says Waleed al Mokarrab al-Muhairi, the chief operating officer of Mubadala. Beyond Ferrari and the Carlyle Group, many of its investments have a major infrastructure component aimed at helping build Abu Dhabi into a world-class city. Kevin Whitelaw, Abu Dhabi's Buying Binge, U.S. News & World Report, June 5, 2008.
Indeed, The UAE has a number of different SWFs, along with SOEs, through which to develop business arrangements. These include: UAE - Abu Dhabi Investment Authority; UAE - Dubai World; UAE - Emirates Investment Authority; UAE - IPIC; UAE - Investment Corporation of Dubai; UAE - Mubadala Development Company; and UAE - RAK Investment Authority. The suggestion here is that, at some level, what might appear to be one thing--private investment in the operation of a state facility--may actually be another, a hybrid public sector investment deal organized through public actors and privately organized public enterprises. Non-state actors may appear in form, but not in substance, in these transactions, at least as the principles. But private sector governance regimes will likely be invoked, at least to some extent, to mark the rules of engagement between the parties.

The consequences for systems grounded in a fundamental public-private divide are significant. Transactions like these tend to suggest that the Cubans have a point when they suggest that public sector private enterprises cannot be understood apart from the political motivations of their owners. But the Cubans, of course, go further, suggesting that even Western style multinationals are in some sense, state directed agents. There is some support for this notion, or at least the idea of a public/political aspect of transnational enterprise activity. That support has most recently been evidenced in litigation, for example, attempted so far unsuccessfully against multinational enterprise under the American Alien Tort Claims Act against Talisman Energy for the actions of a subsidiary with a 25% stake in a joint venture operating in the Sudan. See, Presbyterian Church of Sudan et al v. Talisman Energy, Inc., 07-0016-cv, -- F.3d -- (2nd Cir, slip op, Oct. 2, 2009). But it is also evident in the development of notions of complicity under supranational soft law instruments, such as the OECD's Guidelines for Multinational Enterprises.  The notion, bound up in the emergence of notions of due diligence obligations and the regulatory effects of social norms, is that private actors might be bound by the actions of the public law actors with whom they deal, or in whose territories they operate, when they might be viewed as complicit.  And complicity could include any action that might serve to advance the violations of international norms, rules and obligations by state actors.  That is the essence of the OECD's Risk Awareness Tool for Multinational Enterprises in Weak  Governance Zones

But there remains a large gap between legal definitions of complicity, including responsibility of non-governmental entities for violations of international law, and political, soft law, or moral definitions of complicity.  That was most recently brought out in the recent opinion in Presbyterian Church of Sudan et al v. Talisman Energy, Inc., 07-0016-cv, -- F.3d -- (2nd Cir, slip op, Oct. 2, 2009). in which a non-governmental organization sought to hold a non-governmental economic enterprise liable for the consequences of Sudanese violations of human rights and humanitarian law through  ownership of an enterprise with a 25% stake in a joint venture operating in the Sudan.  The couyrt took a very narrow view of the extent of complicity and substantially tightened the legal standard for its proof under the Alien Tort Claims Act.  Plaintiffs will now have the burden of showing a positive intent to violate international humanitarian law in order for an ATS case to go forward (a sufficient facts or circumstances to suggest that a defendant "acted with the purpose to advance violations of international humanitarian law."  Slip Opinion at 55).  The critical language follows:  "But if ATS liability could be established by knowledge of those abuses coupled only with such commercial activities as resource development, the statute would act as a vehicle for private parties to impose embargoes or international sanctions through civil actions in US courts.  Such measures are not the province of private parties, but are, instead, properly reserved to governments and multinational organizations."  (Id., slip op. at 55-56).  Of course, the international soft aw standard is moving precisely in  that direction.  Indeed, it is possible to understand the governance framework advanced by the Special Representative toi the United Nations Secretary General on Multinational Enterprises and Human Rights, especially in the context of corporate obligations to "respect human rights" to effectively impose an obligation on the company to ensure that they would not be contributing even through the most innocuous activity.  See,  "Business and human rights: Towards operationalizing the “protect, respect and remedy” framework" [PDF],   But that suggests a public purpose beyond that which American (and perhaps other) courts are unlikely to embrace, if the Talisman litigation is any indication. 

Yet it also presents another question:  what result if Talisman had been a state owned enterprise.  My guess then would be that the courts might then have ignored the "private" character of the organizational form and its purported autonomy and imposed liability on individual managers or the state party (if no protection under the Foreign Sovereign Immunities Act, a complicated problem), or dismissed as indistinguishable from Talisman.  But issues of jurisdiction might have made asserting jurisdiction against the other members of Greater Nile (the Chinese SOE or the Malaysians that owned collectively 70% of the offending enterprise by my count). But any of these might be thought a strange result.  It suggests that courts might be willing to disregard the corporate character of state owned enterprises (and sovereign wealth funds) and conflate state and state enterprise where international legal obligations are at issue, but impose a harder standard on liability incurred by non-governmental economic enterprises. Or it suggests that states might be better off spinning politically motivated economic activity off into sovereign investment vehicles to take advantage of the greater protection these entities might have under laws designed to punish complicity.  Yet that horizontal equity among economic enterprises effectively shields the state from liability, unless governance regimes mean to apply a harsher standard for complicity by non-state actors than on the state actors principally responsible for the violation. 

Thus conundrums:  National legal orders move to preserve the distinctions between state and non-state actors for political activity, while transnational governance systems appear to be moving in the opposite direction.  Yet at the same time, such transnational systems are seeking to preserve the distinction between non-governmental and governmental actors by reference to the motivation for their actions, positing a conceptual distinction between economic and political motivation as a grounding for preserving regimes of free movement of capital, irrespective of their sources.  At the same time, states are moving to the use of economic power  as an supplement to traditional forms of projections of political power abroad at the same time that  some in the state sector are seeking to revivify the notion of a separable class of economic activity in the form of state to state transactions.   And so on.  The implications are important, of course. They affect considerations of everything from sovereign immunity, to rules for inbound investment, to the liability of these economic actors, directly or indirectly, for violations of human rights and other international norms. Global actors have been busy constructing governance regimes designed for a world in which it was relatively easy to segregate public from private transactions, economic from political activity, sovereign regulatory from participatory actions by states and non-state actors. It is becoming more difficult to tell actors apart now, and governance regimes grounded in separation might well become less than useful in a world in which blended actors with blended motives become more common. In that context, what makes sovereignty and politics so special--and protected, may also suffer substantial changes. Under emerging principles of global economic governance, the sovereign, like the non-state actor, may find themselves being treated alike. While that might increase the obligations of non-sate actors, it will surely also diminish the special dignity of the state as a legal construct apart.