Wednesday, June 30, 2010

Freemasons in Cuba: New Scholarship

Freemasonry has a long history in Cuba.  Since 2005, outsiders have noticed a resurgence of membership in and the activities of  freemasonry in Cuba.
Widely popular before the 1959 revolution, Cuba's Masons suffered a precipitous decline in ensuing decades, but the group has since recovered its appeal, as some Cubans look for an alternative to the uniformity inherent in the nation's one-party system.
Membership in the all-male group has soared from about 21,000 here in 1990 to nearly 30,000, even as the number of Masons and other fraternal group members in the United States and elsewhere declined during the same period.
United by a belief in a supreme being and a strict code of moral conduct, Cuba's Masons, like the island's Roman Catholic Church, managed to carve out a limited and precarious autonomy by carefully avoiding open confrontation with Cuban authorities.
Gary Marx, Masons Gain Tenuous Foothold in Cuba,  Chicago Tribune, April 24, 2005.  Ironically, Freemasonry appears to continue to serve the singular purpose for which it has incurred a substantial amount of suspicion among other groups and elites eager to control the nature and content of belief--even in Cuba where, before the Revolution, Freemasonry was both popular and held in great suspicion by the conventional social and religious elite.  See, e.g., Warren H. Murphy, A History of Freemasonry in Cuba, Walter F. Meir Lodge of Research No. 281, Vol. 4, (1974).   One gets a sense of the continuing unease about freemasonry among  important cultural and religious actors by a careful read of the entry in the Catholic Encyclopedia on freemasonry.

All of this by way of prologue.  My colleague, Jorge Romeu,  has announced the circulation of three new works on freemasonry in Cuba.     

Les informamos que el Analisis Demografico de la Masoneria Cubana, en la segunda mitad del Siglo XX, realizado para su presentacion en la Gran Logia de Cuba con datos suministrados por esta, y que aparecera en sus publicaciones a finales del verano, se encuentra en la red.  [noting the availability of "Demographic Analysis of Cuban Masonry, in the second half of the twentieth century," which was presented in the Grand Lodge of Cuba, online.]

Comunicamos que el borrador final para comentarios, del trabajo sobre La Masoneria Cubana y su Contribucion a la Sociedad Civil, a presentarse en la 20 Conferencia Anual de ASCE (Asociacion para el Estudio de la Economia Cubana) en Miami, en Julio proximo, se encuentra en la red. [reporting that the final draft for comment of the work Freemasonry and its contribution to Cuban Civil Society, to be presented at the 20th Annual Conference of ASCE (Association for the Study of the Cuban Economy) in Miami in July, is on line.]

Por ultimo, el borrador final para comentarios, del trabajo Una Mirada Alternativa de la Sociedad Civil en Cuba, basado en la revision critica de esta literatura y realizada para apoyar las tesis del trabajo sobre la Masoneria en Cuba, tambien esta en la red. [Lastly, noting that the final draft  of the Work, An Alternative Look  at Civil Society in Cuba, based on a critical revision of the standard literature and testing the tesis of the role of freemasonry in Cuba, is also available online].

The Cuban Revolution has produced a substantial amount of irony.  In its relationship with freemasonry, perhaps one can see the development of another.  Consider Christopher Hodapp, Masonic Conflicts in Cuba, Freemasons for Dummies, May 29, 2010. 

Tuesday, June 29, 2010

Law Overlapping at Its Edges--Views From the University of Barcelona

It was my privilege to help organize a recently concluded round-table held at the University of Barcelona in conjunction with its excellent faculty of law.   This Academic-Civil Society Round table was held on June 10, 2010 at the Faculty of Law of the University of Barcelona.

The object of the round table was to bring together faculty from a variety of institutions to share their work across disciplines in ways that highlight overlap--that is that focus on the ways in which what appear to be unrelated fields within distinct national legal orders actually reflect common approaches, trends and policy discussions.   For that purpose, the roundtable brought together scholars and civil society actors from diverse places to share their views and perspectives so that debates that have often been national or regional can be linked. To make things a little more interesting, each willing participant was asked to provide a position statement of a sentence or two summarizing their own work or vision for  the future of their field or  to make another contribution that might be of interest to others.  

Conference participants included members of the faculties of the following institutions:

University of Barcelona
         Cristina González Beilfuss
         Eva Andrés Aucejo
         Andreu Olesti Rayo
         Jaume Saura Estapà

Pennsylvania State University,
         Larry Catá Backer

Loyola Law School Los Angeles,
          Lary Lawrence

University of Pittsburgh
          Jules Lobel

University of Louisville.
          Manning Warren III

Civil society representatives included  those drawn from the following organizations:
International Chamber of Commerce--Spain,
          Jordi Sellares

Palou-Rognoni Advocats (Barcelona)
          Jordi Palau

U.S. federal court system.
          Karen Engro

(Conference participants)
After my introduction, Vice Dean Cristina González Beilfuss of the University of Barcelona  opened the session, welcoming the participants and emphasizing its broad outline of the conference.

 (Vice Dean González Beilfuss, Jules Lobel and Karen Engro).

 I started off the discussion with a short analysis of the evolution of legal harmonization and its challenges in the 21st century, looking especially to the challenge of vertical and horizontal convergence of public and Private law.  Harmonization and convergence of traditionally incompatible systems--law and governance, contract and statute, public and private will dominate structural issues of institutional development of emerging governance organs. 

(Larry Catá Backer and Eva Andrés)

Andreu Olesti described the role of the courts in multi judicial systems.  The focus was on the European Union in which distinct but overlapping court systems with non-contiguous  jurisdiction semi hierarchical relations operated within the territories of the adhering states.  Issues of jurisdiction and the extent of the binding nature of decisions tend to complicate issues of convergence within the European Union system.  Yet they serve as a template for judicial convergence at the international level.

Manning Warren moved from the issue of courts to that of the regulation of economic enterprises.  He suggested  the ways in which issues of the regulation of economic actors have escaped the boundaries of territorially based states.  He examined some of the issues that have emerged in corporate governance as global corporate operations have effectively transformed domestic issues of governance into matters of cross border concern.  Issues of jurisdictional overlap, of convergence and of hierarchy of regulation dominate this field in ways that parallel to some extent those that affect the construction of multi-level court systems.

(Manning Warren makes a point with Andreu Olesti (left) and Lary Lawrence (right))

Jordi Palou added another layer to the analysis by focusing on the rise of international courts for the enforcement of global criminal law. The focus was on the creation of the International Criminal Court and its predecessor special courts for Yugoslavia and Rwanda.  The difficulties of constructing a judicial system in the absence of a state apparatus to enforce laws that are not the product of a single demos but enforced through a cooperative framework involving state and international organizations presents a series of problems that implicate law, politics, organizational theory, rule of law and democratic accountability issues.

Cristina González then turned to structural issues of law.  She explained the nature and tensions in the movement of private international law from the domain of the domestic legal orders of the Member States to its reconstitution as a part of the legal order of the European Union.  That reorganization has paralleled an equally important development, the construciton of a regulatory framework  for the easier recognition and enforcement of jusgments.  The principal focus of that inquiry was on the harmonization of family law within Europe.  She provided a valuable substantive discussion of the application of issues of multi-jurisdictionality, convergence and cooperation within multi-state supra national systems with wider implications for the harmonization of rules across borders generally.

Jules Lobel focused on an issue implied in the remarks of earlier presenters--the issue of extraterritoriality.  Specifically he first considered globalization in the context of the application of domestic constitutional law to an alien for actions abroad.  This problem raises a variety of issues that remain substantially unresolved but point to  the difficulties of systemic convergence under a framework in whcih the conventional state system rules still dominate but where the state system is functionally undermined by the reality of human activity across borders.  These problems are not merely ones of substance or theory, but also one of approaches to legal education,  Professor Lobel posed the question of the comparative value of legal education in Europe and in the United States.  He contrasted the principal American method of training in thinking (rather than on substantive rules) with that of Europe in which substantive rule training is privileged over analytical method.  A lively debate on this point followed.

Eva Andrés focused on another substantive issue--that of international tax policy.  Tax policy harmonization exhibited the same pattern problems as those identified in other substantive areas.  Tax advantage tourism, tax haven arbitrage and a host of related issues of contests for authority, extraterritorial legislation as a method for control, resistance to such projections of power and coordinated reform are at the heart of efforts to coordinate tax policy.  Those efforts have implications for other substanive areas--from the incentive effects on corporate governance, to the migration effects with implications for family law, to the effects on the structuring of access to judicial venues in the structuring of multi-jurisdictional remedial structures.

(left to right--Larry Catá Backer, Eva Andrés, Andreu Olesti and Manning Warren) )

Karen Engro focused on the courts themselves.  Not only do courts face issues of jurisdiction and hierarchy, but their internal procedures has been undergoing a revolution as a consequence of technological changes.  Electronic discovery is overburdening courts faced with substantial shrinkage of state financial support.  The financial burdens of trying complex cases, especially those with transnational elements involving multinational corporations has grown substantially.  In addition, judicial resolution has become more complex as alternative dispute resolution systems continue to grow as part of the judicial architecture.   All of this has put a strain on conventional approaches to legal education as well.

(left to right--Lary Lawrence, Cristina González Beilfuss, Jules Lobel, Karen Engro, Jordi Palau)

Lary Lawrence ended the session with a sustained focus on commercial law.  He noted emerging issues as commercial transaction law and policy has shifted focus from the local to the transnational.  Convergence issues here highlight the still sometimes potent differences among legal systems.  It has raised issues ranging from the appropriate form of governance (principles based versus rules based governance) to the relationship between commercial custom and regulatory authority of states.

The written position statement of several of the conference participants follows:

Palau-Rognoni Advocates
Jordi Palau

Abstract. Even though one cannot deny that tensions exist between the paths of justice and those of international peace-building, a global approach to violent conflicts is becoming increasingly necessary. Within this context, we must take into account that victims and civil society are beginning to play an important role in achieving a peaceful solution to violent conflict; in participating, to a greater or lesser degree, in the process called for by the path of justice, - whether international or transitional justice during or after the conflict – as well as by international mediation and dialogue. This paper presents the experience obtained from the specific approaches to peace and justice in Central Africa featuring the involvement of civil society and truth as cornerstone of all action. To conclude, the paper argues that it is necessary to make a strong and ample financial investment in global peace processes and in the creation of a Global Center for Peace and International Conflict Mediation.


Undoubtedly, civil society at large, and victims in particular, have gone from being mere spectators falling prey to violent and/or armed conflict to getting actively involved at varying lengths in processes of justice and/or peace. Their participation has also extended to exerting an increasing influence on political and democratic processes related to armed or diplomatic intervention in armed or violent conflicts, both at the national and international levels. Many governmental players, formal diplomacies, as well as national and international organizations have not concealed their misgivings as they watched these developments, often perceiving them as invasive of a turf which ‘does not belong’ to victims or civil society, but rather only to those “with the knowledge and expertise” and those “who count.” On the other hand, many other governmental players, formal diplomacies, as well as national and international organizations follow this process with careful attention and even foster this development within the periods of time and frameworks that institutions and civil society have agreed on.

It is not my intent to be exhaustive, but with regard to Spain[1] and other countries with Roman-Germanic or continental justice systems which to varying degrees allow for victims to participate and be legally represented in processes of justice, it is worth highlighting the decisive involvement and intervention shown by Argentina’s ‘Madres y Abuelas de la Plaza de Mayo’; by Spanish, Argentine and Chilean victims; Spanish and Guatemalan Maya victims; Catalonian, Spanish, Rwandan and Congolese victims; Tibetan victims; Palestinian victims, etc – all of them with regard to their roles in articulating, presenting, investigating – and even filing formal charges – in processes of universal justice in application of current international law. In turn, given the practices of the Nuremberg and Tokyo Trials, or of ad-hoc Courts for the former Yugoslavia and Rwanda, or of other mixed courts, most of which were inspired on the Anglo-Saxon system of justice where the intervention or legal representation of victims is deemed unthinkable, the new International Criminal Court has created a new system of justice. A hybrid between the Continental and Anglo-Saxon systems, this new system marks the first time ever that an international court offers victims[2] the real possibility of participating and having legal representation –albeit in a more restricted way than in continental national systems of justice.

[1] .- See Articles 101 and 270 of the Criminal Procedures Act in agreement with Article 23,4 of Spain’s Organic Law of the Judiciary (L.O.P.J.) concerning international crimes mentioned there. For a more detailed analysis of the established rule and of universal justice trials featuring the involvement of victims in different countries; see Martínez, 2008, Pages 10-11; as well as Palou-Loverdos, 2007, Pages 60- 63.
[2] .- See Articles 68, 69 and concordant articles of the Statute of Rome of the International Criminal Court and Rules 63, 85 and concordant rules of the Rules of Procedure and Evidence of the ICC, as well as Article 42 and concordants of the Regulation of the Trust Fund for Victims (
(June 4 2009 search). 108 countries have signed the ICC’s Statute of Rome, 30 of them are African nations, 14 are from Asia, 16 from eastern Europe, 23 nations are from Latin America and the Caribbean, and 25 nations are from Western Europe and elsewhere.

Pennsylvania State University
Larry Catá Backer

At the start of the 21st century, harmonization has become a more complicated enterprise. Harmonization is currently proceeding simultaneously along a number of different lines—horizontal, vertical and inter-systemic. Horizontal harmonization occurs between state entities roughly similarly situated within hierarchies of authorities—for example between the states of the United States, between the Member States of the European Union, and between states in the global community. This describes the great project of comparative law with its origins in European 19th century notions of the state. Vertical harmonization, harmonization between superior and inferior political entities—is less well developed and there is no real consensus about its utility or legitimacy. This describes the great 20th project of legal internationalization—and of the fundamental change in the understanding of the state—now deeply embedded within an increasingly managed community of states. The move toward internationalization of standards and certain behaviors—corruption, human rights, war—has become an important element of global and transnational governance. Transnational constitutionalism represents a form of customary practice vertical harmonization—the recent constitutional crisis in Honduras provides a recent example of the development and growth of this form of harmonization. The most controversial form of harmonization is the most interesting and potentially far reaching—harmonization public and private governance systems. States operating as private enterprises in economic markets, economic entities serving as substitutes for the state in weak governance zones suggest the context in which public and private governance systems remain autonomous but communicate and converge. The management of that convergence, communication and interaction will serve as one of the great challenges for governance in this century. The construction and management of inter-relations between public and private governance communities and the move from law to extra-legal systems of behavior control will serve as the great project of the 21st century. As a consequence, the greatest challenge for law in the 21st century is to avoid becoming irrelevant in an emerging global governance order in which corporations use contracts to regulate their supply chains, states reconstitute themselves as private market actors, and private enterprises assert regulatory control of markets through authoritative systems of assessment and rating.

University of Barcelona
Eva Andrés Aucejo



La ofensiva más fuerte contra los paraísos fiscales la puso en marcha el G-20 el año 2009 ante la evidencia de que los llamados “tax heavens” habían desempeñado un papel fundamental en la financiación, preparación y posterior ejecución de los actos del 11.S y también en el estallido de la última crisis financiera.

Por ello , la OCDE puso en práctica importanes medidas para combatir las prácticas fiscales perjudiciales. Entre ellas, se estableció que la falta de intercambio de información tributaria entre los Estados era uno de los criterios básicos que podía conducir a prácticas fiscales prejudiciales.

En épocas recientes (2009-2010) muchos Estados considerados como paraisos fiscales están firmando acuerdos bilaterales denominados “tax information exchange agreements (TIEAs).

Dichos acuerdos son un instrumento muy importante para conseguir cooperación en cuestiones fiscales a través del intercambio de información entre estados que históricamente han sido considerados como tax havens o secrecy jurisdictions.

Dichos acuerdos se realizan siguiendo el Modelo de Convenio de la OCDE: Model Agreement on Exchange of Information in Tax Matters (TIEA)

The OECD Model TIEA was developed by an OECD Working Group consisting of the OECD Members and delegates from Aruba, Bermuda, Bahrain, Cayman Islands, Cyprus, Isle of Man, Malta, Mauritius, the Netherlands Antilles, the Seychelles and San Marino.

The Model TIEA provides that the Parties shall give “information that is foreseeably relevant to the determination, assessment and collection of such taxes, the recovery and enforcement of tax claims, or the investigation or prosecution of tax matters.”

Los últimos acuerdos firmados en el mundo han sido:
- Germany- Turks and Caicos Islands (4 June 2010)
- Germany- Caymand Islands (27 May 2010)
- Netherlands – Liberia (27 May 2010)
- Norway – Antigua and Barbuda (19 May 2010)
- Norway – Dominica (19 May 2010)
- …
- Sweden – Dominica (19 May 2010)
- Sweden – Saint Lucia (19 May 2010)
- etc

The stronger offensive against “tax heavens” put up the G-20 in 2009, to the evidence that so-called "tax heavens" had played a key role in the financing, preparation and subsequent execution of acts of 11.S and also in the outbreak of the financial crisis.

Therefore, the OECD implemented significant measures to combat harmful tax practices. Among them, it was established that the lack of exchange of tax information between the States was one of the basic criteria that could lead to tax practices referred.

In recent times (2009-2010) many Countries considered as “Tax havens” are signing bilateral agreements called "Tax Information Exchange Agreements (TIEAs).

These agreements are an important tool to get cooperation in tax matters through exchange of information between states that have historically been regarded as tax heavens or secrecy juridictions.

Such agreements are made according to the Model Convention OECD: “Model Agreement on Exchange of Information in Tax Matters” (TIEA).

The OECD Model TIEA was developed by an OECD Working Group consisting of the OECD Members and Delegates from Aruba, Bermuda, Bahrain, Cayman Islands, Cyprus, Isle of Man, Malta, Mauritius, the Netherlands Antilles, the Seychelles and San Marino.

The Model TIEA provides that the parties shall give “That information is foreseeably relevant to the determination, assessment and collection of such taxes, the tax recovery and enforcement of Claims, or the investigation or prosecution of tax matters".

The recent agreements signed in the world have been: - Germany-Turks and Caicos Islands (4 June 2010) ; - Germany-Caymand Islands (27 May 2010): - Netherlands - Liberia (27 May 2010): - Norway - Antigua and Barbuda (19 May 2010) ; - Norway - Dominica (19 May 2010): - ... : - Sweden - Dominica (19 May 2010): - Sweden - Saint Lucia (19 May 2010): - Etc.

Sunday, June 27, 2010

Indigenous Law and Global Constraints: Bolivia, Decolonization of Law, Constitutionalism and Human Rights

Since the election of Evo Morales to the Presidency of Bolivia, that nation has sought to  transform itself from the modern expression of multicultural Latin American state grounded in the cultural and legal norms of its Spanish colonial period into something else.  Rejecting Spanish culture as subordinating, Bolivia has sought to reconstitute itself as a post modern state--a plurinational political unit assembled from a collection of individual and constitutionally recognized ethnic and racial juridical persons which together would constitute a state organized and governed through a variety of normative systems dependent on location, ethnicity, religion and other constitutionally recognized legal markers. 

This movement toward post modern statehood has produced significant tensions not only within Bolivia bit between these efforts and emerging conceptions of constitutionalism,  indigenous rights and autonomy, state organization, and global human rights.   Over the past several years those conflicts have been sharpened in contests for authority and legitimacy between emerging systems of indigenous law making, the traditional western system of justice that at some level overlays the indigenous systems, and global systems of human rights, including those which obligate Bolivia through  its membership in the Organization of American States. 

At the state level, the tensions are well understood and somewhat conventional.  Indigenous systems of law are arising that to some extent do not mimic Western, or Spanish-Latin American systems of justice--from the nature of procedural rights of defendants,  to the conduct that produces breaches, to the forms of punishment meted out to individuals convicted of violations of indigenous law.  At the same time, it was not clear how those systems would fit within the standard patterns of hierarchies of law, especially with reference to the overarching norms of constitutional law.  The arguments on both sides were tinged with both legalism and cultural-social arguments grounded in subordination and suppression of cultural expression not in accord with dominant Western values.  By 2006, the English press had picked up these tensions.
As they walked through the market square I noticed some coloured ropes slung around their chests. The ropes were chicotes or whips and the men wearing them were mallkus - the word for prince or leader in the Aymara language. Francisco Espejo, an elderly man whose teeth were stained green from chewing coca leaves, was one of them. He said he was delighted that whipping is now an officially sanctioned punishment. "When we had attorneys from the Western justice system, they put people behind bars for 20 years," he said."Those with money bought good lawyers and didn't go to jail so what kind of justice was that? "It's much better to give someone a few lashes and be done with it."One of President Evo Morales's biggest campaign promises was to revolutionise the justice system. He vowed to promote pre-Columbian community-based courts in which village elders try wrongdoers and determine how they should be punished.This practice, which predates the Incas, has three main rules which are: Amu Sua - Don't Steal; Amu Llulla - Don't Lie, and Ama Quella - Don't Be Lazy. 
Lucy Ash, Bolivia Goes Back to the Whip, BBC News Online, Nov. 23, 2006. Issues of subordination, on one side, and intimations of arbitrariness and thus of a basic breach of rule of law notions, were not far from the surface of the conflict.  
"Community justice was a very secretive practice," explained Waskar Ari, an Aymara Indian and university professor."When the Bolivian state was controlled by whites they used Western justice as a way of subordinating the Indians and the memory of that is still strong in some parts. "That is why some people are still afraid to talk about these things." But under President Morales the underground is going mainstream. Granting traditional justice official status alongside national laws is a vital part of what he calls his "decolonisation" strategy. 
Id. Those issues remain unresolved.  They are, however coming closer to crisis as  both sides move to deploy their respective systems to protect their rights.  
A Bolivian Indian community once again applied the so-called principle of “native justice” by killing an accused murderer in the southwestern province of Potosi, where two weeks ago four policemen met the same fate, the press reported Wednesday. . . . Community leaders in Uncia turned over the bodies of the four lynched police officers last week, but only after the cops’ loved ones signed a pledge not to seek criminal charges against the killers. Even so, this week the families decided to initiate legal action against the Indian communities and said they were considering filing charges against government officials and police commanders for dereliction of duty.

This has put the Morales government in something of a bind--seeking both to extend indigenous legal autonomy but also seeking governmental control over the borders of that autonomy.  As early as 2008, responding to growing reports of indigenous justice where Western notions of due process or prisoner dignity appeared to be observed, the Morales government sought to gain some control over the autonomy movement.  "The lynching of criminals caught in the act is a widespread practice in Bolivia's Andean region, where the indigenous people claim it as a form of "community justice." Yet the Morales government, though advocating legal recognition for many Indian traditions and institutions, says that lynchings cannot be tolerated." Morales Supporters Lynched Accused Thieves, CNN iReport, Nov. 18, 2008.  Yet the misgivings of the central government were tempered by its anti-colonialist and anti-subordination policies, through which  its actions were filtered.  In response to continued manifestations of non-Western indigenous justice, and Western concerns about its  legitimacy, the Morales government offered the hope that time and the cleansing efforts of anti-colonialist practice would eventually solve the "problem" of "lynching."
The question in the minds of many legal experts is whether incidents such as the lynchings here will decrease as the Indians sense that they have more legal recourse, or increase as they legally dispense the summary justice that characterizes their approach.  Petronilo Flores, the Justice Ministry's community justice director, said that indigenous justice had been in effect for centuries and that the new constitution was an attempt to address "persistent colonial attitudes in Bolivia that indigenous justice doesn't work, that anything associated with Indians is no good."
Mob rule taints Bolivia indigenous law, Los Angeles Times,   Feb. 1, 2009.  But the development of indigenous justice systems grounded on what might constitute grave breaches of procedural and substantive rights among Western normative systems persisted.  The increased global awareness along with those activities produced legislation in 2010.  
Lawmaker Cecilia Ayllon, from the ruling party and chairwoman of the Plural Justice Committee said that the main change introduced to the original bill was the inclusion of two basic principles of the ‘community justice’, respect for human rights and for life. Ayllon admitted however that ‘native justice’ already enshrined in the 2009 Constitution sponsored by President Evo Morales “is being wrongly interpreted and used for political purposes” such was the case of the public lynching in Potosí of several policemen by ‘ayllus guerreros’ (indigenous clans).
Bolivia votes ‘native justice’; four policemen lynched by indigenous mobs, MercoPress, June 10, 2010.  "Congress still has to work on a bill that circumscribes ‘ordinary justice’ and ‘native justice’. The interpretation bill for which congress has 180 days should help with ‘different jurisdictional problems surfacing plus ensuring the necessary harmony that must exist between both systems’."  Id.  This is particularly important, as a constitutional matter since, for example, the Bolivian Constitution prohibits capital punishment, but indigenous justice might compel such a penalty extracted in a manner and through the effectuation of ritual that other communities within Bolivia might find repugnant to their own beliefs and law.  "Some Aymara and Quechua Indian communities of the Andean highlands say lynchings are part of the indigenous justice system that was recognized in the constitution enacted last year at the urging of Morales, but the government rejects that argument. Officials say the recognition of traditional justice is not a license for vigilantism. The government also points to the constitutional ban on capital punishment."  Bolivian ombudsman: Bodies of slain cops already buried, La Prensa (San Antonio) July 1, 1010 ("Rolando Villena, who in recent days went to the scene of the crime, told the media that the Indians, according to their beliefs, buried the bodies face down "so that the souls of those who had been killed would not persecute those who had killed them.". . . ."The communities admitted that they carried out justice with their own hands. After having tortured them in a most cruel way, they killed them, but they were not burned," Villena said Tuesday." Id.). 

Bolivia appears to provide a variant of the difficulties of maintaining the cohesion of a pluri-national state.  In the case of Bolivia, the situation illustrates the difficulties of papering over  a  functional incompatibility among a number of critical sub-national groups with fundamentally antagonistic positions through a constitutional system that appears increasingly to resemble a formally constituted abstraction rather than a  blueprint for a functioning state apparatus.  Yet Bolivia is not unique.  The recent efforts to use the mechanics of elections  to legitimate a change of government  through a change of constitution in Kyrgyzstan suggests a related set of tensions--among majority and minority ethno-national groups for control of the state apparatus.  For a valuable discussion, see,  M. Ulric Killion, Kyrgyzstan: The road from “Mobocracy”, to Constitutional Reform (June 15, 2010. Perhaps Russia's current president is right (though for the wrong reasons) with respect to these sorts of efforts. "Speaking to journalists at the G-20 meeting in Toronto, President Dmitry Medvedev poured cold water on the referendum's goal of changing Kyrgyzstan's Constitution from a president-dominated system into one in which a popularly-elected parliament holds the lion's share of power. He also warned that the tiny central Asian country faced the "threat of breaking up" and being overrun by "extremists.""  Fred Weir,Why Russia's Medvedev is blasting ally Kyrgyzstan, Christian Science Monitor, June 28, 2010.  The break up is not so much a consequence of the choice of the structure for a state apparatus--unless the object of the state apparatus is to hold a state together any cost--as it is a consequence of people's no longer (if ever) constituting a single demos (whatever the efforts at appropriate "education" in that regard has been attempted and no matter what the desire of larger states eager to maintain the stability of borders and states.
But the scope of the problem might be  more complicated. It implicates not merely division of authority within a state, and the structuring of a constitutional system (along with its related issues of democratic legitimacy and adherence to appropriate substantive values), but global human rights values (and the legal obligations of the Bolivian state).  The forms of indigenous justice--and its conflict with global values--has come to the attention of some members of human rights civil society.  Impunity Watch has noted the issue recently, for example. R. Renee Yaworsky, Four Police Officers Lynched in Bolivia, Impunity Watch (May 29, 2010). 

More importantly, the Inter-American Commission on Human Rights noted in a 2007 it concern both with the state of the issue of the implementation of indigenous law within the legal framework of Bolivian rule of law and with the toleration of the more unconventional methods of indigenous justice said to be an integral part of such systems. Organization of American States, Inter-American Commission on Human Rights, Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy in Bolivia, OEA/Ser.L/V/II., Doc. 34, 28 June 2007 (original language Spanish).
291. In the midst of this rather confused panorama of legal, jurisprudential and political considerations, the IACHR observed two aspects which need to be clarified in the light of indigenous peoples’ rights under international human rights law, especially ILO Convention 169.234
292. On one hand, the Commission is concerned that some of the most senior State bodies and certain sectors of civil society, including some of the communications media, persist in the idea that "taking justice into one's own hands" or lynchings are a reflection of community justice. The Commission reiterates that acts of this kind constitute gross violations of human rights and they must be investigated and punished by the State and that they cannot be understood as consistent with indigenous law and justice in the sense recognized in the Constitution and internationally,235 for the fundamental assumption in applying them is precisely the respect of human rights.236 It is regrettable that such lynchings are used as a means of stigmatizing indigenous justice and denying it full recognition, when in fact one of their principal causes is the tenuous writ of the Prosecutors’ Office and the judiciary and their inability to prosecute and punish crimes in more than half of Bolivian territory, as detailed above (paragraphs 63 and 65).
293. The Commission also wishes to clarify the scope and ranking of recognition of indigenous peoples' conflict resolution methods, provided they comply with the prior assumption of compatibility with constitutional and international human rights provisions. The Commission considers that the recognition of community justice as an "alternative means" must not be interpreted as resulting from the lack of coverage of the official justice system, and must therefore not be conditioned on the continuity of official institutional weaknesses. On the contrary, indigenous law and justice must be recognized as a human right of a collective nature, without any implication that the State is thereby exempt from providing those peoples the services of official justice due to them as Bolivian citizens, whereby they are guaranteed access to justice in the context of conflicts with non-indigenous individuals or arising outside the community territory.
294. As the Constitution itself indicates, the scope and effective application of the law requires a legislative framework that will reconcile, on one hand, the power of indigenous peoples and peasant communities to apply their own rules and mechanisms for dispute settlement, and on the other hand the functions of various State bodies, in particular but not exclusively those involved in criminal prosecution.
295. The Commission observed that the ambiguity in this legal framework, together with the total absence of regulation to date, constitutes the principal cause of the confusion over this issue that prevails both in civil society and in the various State institutions of Bolivia. There have been some attempts to draft legislation in this area, but they have not prospered. . . . 
Id. Para. 291-295, pp. 79-81 (footnotes omitted).  And thus a conundrum for the government of Bolivia.  Whatever the state of its ideological campaigns, or its collective desire to render sections of Bolivia Spanish free, the constitution of the state, of which indigenous peoples form a part, carries with it the constraints of Bolivia's obligations as a member of the community of states (in general) and under the rules of conduct mandated for members of the international organizations of which it is a member--not the least of which is the OAS. Those rules might well reach to any political settlement within Bolivia that appears to deny non-indigenous peoples access to justice.  Consider, for example a recent case on this point from an incident in Brazil.  REPORT Nº 25/09, Case 12.310, Sebastião Camargo Filho (BRAZIL).

Thus Bolivia may well be sitting at the nexus point of two great tensions in the organization of its legal system as it seeks to rearrange its institutional relationship with newly recognized autonomous constitutional actors marked by indicators of race, ethnicity or whatever other status markers the Bolivian people choose to privilege.  On the one hand, those arrangements require a reworking of traditional constitutional ordering.  It may well be that a single constitution musty provide space for the development simultaneously of autonomous systems of law that, though they communicate with each other, remain apart.  The relationship among those systems and the apparatus of control at the national level are still a long way form resolution.  On the other hand, whatever constitutional settlement is made within Bolivia, its legitimacy will be tested in part by conformity to global standards.  That judgment will not be made by indigenous communities working towards reinventing their  legal systems, nor by agents of the state seeking to preserve some sort of unity within the emerging pluri-national state, but by international actors.  The legitimacy of those actions, in turn, may depend in some measure on assessments by international civil society actors and the political will they might be able to muster in democratic states whose relations with Bolivia may be measured by  such assessments.

Wednesday, June 16, 2010

The Veil--Torn Between Religion and Law in Spain

The Spanish newspaper El Pais reported on a movement that has been gaining much ground in the autonomous community of Catlunya this summer--the regulation of the veil within Catalan cities.  
Justice Minister Francisco Caamaño said on Tuesday that the Future Religious Freedom Law will restrict the use of the burqa in public areas, following the lead of several Catalonian cities that recently banned full-body coverings.
"There are elements such as the burqa that are hardly compatible with human dignity and, above all, with fundamental issues in public spaces such as the identification of individuals," said Caamaño.
The burqa and niqab are usedby very few Muslim women in Spain, unlike the headscarf or hijab.  On Monday, Barcelona decreed a ban on on the burqa affecting all public buildings.  Socialist Mayor Jordi Hereu defended the measure "for security reasons" and "out of common sense."  Tarragona and Lleida recently enacted similar bans.
Law Paves Way for Blanket Ban on Burqa, El Pais (English ed.) June 16, 2010.

These efforts remind us of one of the great consequences of globalization--the movement toward polycentricity in modern governance. Blommaert et al., "Polycentricity and interactional regimes in ‘global neighborhoods’", Ethnography.2005; 6: 205-235 In this case one encounters a particularly interesting example, public-private governance polycentricity in which overlapping political and religious communities compete and communicate  as they seek to preserve the integrity of their governance regimes among their members. Sharia As Discourse (Cultural Diversity and Law) (Jørgen S. Nielsen& Lisbet Christoffersen , Ashgate 2010).  The movement in Spain to "manage" the veil reminds us both of the consequences of polycentricity between systems of different fundamental characteristics (state-law and religion-law systems int his case) and of the tensions inherent in efforts to use religious law and symbols to political effect in democratic systems.  The veil has long been transformed from a simple expression of religious faith to an aggressive symbol of law hierarchy within polycentric states, both in the dar al-Islam (e.g. Turkey and Egypt) and the dar al-harb (e.g., Europe).  In that context, especially in democratic states, there is always a danger that public policy will trump religious sensibilities.  As a political symbol, the veil loses its special character as an expression of religious expression.  And within that context, it is possible that the special protection extended in the West to religion may not be sufficient to preserve the privilege of politically asserted religious symbols where the privilege of such use clashes against other political values (state security) of potentially equal or superior value.  

It will be interesting to see what the European Court of Human Rights will eventually have to say. Recently, in Ahmet Arslan and Others v. Turkey (no. 41135/98) the European Court of Human Rights ruled that Turkey had violated the human rights of the adherents of a faith community by applying its anti terrorism law against them for wearing their distinctive religious garb. The facts of the case appear somewhat analogous.

The applicants are 127 Turkish nationals, including Mr Ahmet Arslan. They belong to a religious group known to its members as Aczimendi tarikatÿ.

In October 1996 they met in Ankara for a religious ceremony held at the Kocatepe mosque. They toured the streets of the city while wearing the distinctive dress of their group, which evoked that of the leading prophets and was made up of a turban, “salvar” (baggy “harem” trousers), a tunic and a stick. Following various incidents on the same day, they were arrested and placed in police custody.

In the context of proceedings brought against them for breach of the anti-terrorism legislation, they appeared before the State Security Court in January 1997, dressed in accordance with their group’s dress code.

Following that hearing, proceedings were brought against them and they were convicted for a breach both of the law on the wearing of headgear and of the rules on the wearing of certain garments, specifically religious garments, in public other than for religious ceremonies. They appealed against their conviction, but without success. In addition, their application to the Ministry of Justice, seeking leave to lodge a reference by written order was also dismissed.

Chamber Judgment Ahmet Arslan and Others v. Turkey - Press release issued by the Registrar 23.02.10  The Court found that the application of Turkish law was counter to the protections of Article 9 of the European Human Rights Convention. 
Article 9 – Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
But the grounds were also narrowly drawn:
The applicants’ conviction for having worn the clothing in question fell within the ambit of Article 9 – which protected, among other things, the freedom to manifest one’s religious beliefs – since the applicants were members of a religious group and considered that their religion required them to dress in that manner. Accordingly, the Turkish courts’ decisions had amounted to interference in the applicants’ freedom of conscience and religion, the legal basis for which was not contested (the law on the wearing of headgear and regulations on the wearing of certain garments in public).

It could be accepted, particularly given the importance of the principle of secularism for the democratic system in Turkey, that this interference pursued the legitimate aims of protection of public safety, prevention of disorder and protection of the rights and freedoms of others. However, the sole reasoning given by the Turkish courts had consisted in a reference to the legal provisions and, on appeal, a finding that the disputed conviction was in conformity with the law.

The Court further emphasised that this case concerned punishment for the wearing of particular dress in public areas that were open to all, and not, as in other cases that it had had to judge, regulation of the wearing of religious symbols in public establishments, where religious neutrality might take precedence over the right to manifest one’s religion.

There was no evidence that the applicants represented a threat for public order or that they had been involved in proselytism by exerting inappropriate pressure on passers-by during their gathering. In the opinion of the Religious Affairs Organisation, their movement was limited in size and amounted to “a curiosity”, and the clothing worn by them did not represent any religious power or authority that was recognised by the State.
Id.  Some European civil society elements have chosen to read the case broadly, suggesting a substantial limit on the power of states to manage dress, especially dress that (though it has political effect) is ostensibly worn by religious command.  "A wholesale ban on the full veil in public is incompatible with the European Convention on Human Rights and is likely to also run afoul of European Union laws against discrimination, Human Rights Watch said. " Human Rights Watch, Belgium: Muslim Veil Ban Would Violate Rights,  April 21, 2010 (commenting on efforts in Belgium to criminalize the wearing of full veils in public places). 

But the Arslan case must be read together with the earlier case of  Dogru v. France, where the Court of Human Rights affirmed the power of the French State to preserve the secular nature of its organization by managing the use of religious clothing within certain public establishments. 
The court observed that the purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to  the requirements of secularism in French state schools.
The court also said that the penalty of expulsion did not appear disproportionate, and noted that the applicants had been able to continue their schooling by correspondence classes.
"It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order," the court said in a press release.
It was also clear that the decision was based on those requirements and not on any objections to the applicants' religious beliefs. 

French headscarf ban no discrimination, says European rights court.  Free Library.  ""The court also reiterates that the state may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety," the ECHR said in its ruling in the case of Dogru vs France.European court confirms headscarf ban in school no violation to rights, Hurriyet Daily News ("The Court noted in France, as in Turkey or Switzerland, secularism is a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools." Id.).   Spain might be in a somewhat weakened position, because of its traditionally strong relationship with the Catholic Church, so that legislative action that might subordinate other religious practice might be viewed more closely for neutrality and the strength of non-religious policy (like public safety) advanced in support of such measures. 

Tuesday, June 15, 2010

Belief, Reality, the State and Law--Pathos and Bathos

Belief creates its own reality.  For many, over the course of the last several  thousand years, this sub-textual understanding has helped frame approaches to the construction of religious institutions.  There is something subliminally mystical about collective belief, especially in its ability to move the individual. Belief also produces text--Logos made concrete, the consequences of which  are memorialized in culture, religion, and law.  Belief-Faith-Law forms that solid triangle that frames the limits of the reality within which human organization is conceived and elaborated. 

Belief-Faith-Law in the West revolves around the triple embodiment (only partially incarnated) of the Divine. Calvin put it one way:
We have also seen, that since the knowledge of the divine goodness cannot be of much importance unless it leads us to confide in it, we must exclude a knowledge mingled with doubt,—a knowledge which, so far from being firm, is continually wavering. But the human mind, when blinded and darkened, is very far from being able to rise to a proper knowledge of the divine will; nor can the heart, fluctuating with perpetual doubt, rest secure in such knowledge. Hence, in order that the word of God may gain full credit, the mind must be enlightened, and the heart confirmed, from some other quarter. We shall now have a full definition of faith if we say that it is a firm and sure knowledge of the divine favor toward us, founded on the truth of a free promise in Christ, and revealed to our minds, and sealed on our hearts, by the Holy Spirit.  
Calvin, Institutes of the Christian Religion, III.2.vii. The Catechism of the Catholic Church puts it differently:
Faith is first of all a personal adherence of man to God. At the same time, and inseparably, it is a free assent to the whole truth that God has revealed. As personal adherence to God and assent to his truth, Christian faith differs from our faith in any human person. It is right and just to entrust oneself wholly to God and to believe absolutely what he says. It would be futile and false to place such faith in a creature.
Catechism of the Catholic Church, Pat. I, The Profession of Faith, Section I ("I believe"-"We Believe") Chp. 3 (Man's Response to God), Par. 150
 What moves us to believe is not the fact that revealed truths appear as true and intelligible in the light of our natural reason: we believe "because of the authority of God himself who reveals them, who can neither deceive nor be deceived". So "that the submission of our faith might nevertheless be in accordance with reason, God willed that external proofs of his Revelation should be joined to the internal helps of the Holy Spirit."
Id., at Para. 156

It's power is also recognized by those critical of the reality forming triangle of belief-faith-law.
The figure of the Saviour, his teaching, his way of life, his death, the meaning of his death, even the consequences of his death--nothing remained untouched, nothing remained in even remote contact with reality. Paul simply shifted the centre of gravity of that whole life to a place behind this existence--in the lie of the "risen" Jesus. At bottom, he had no use for the life of the Saviour--what he needed was the death on the cross, and something more. To see anything honest in such a man as Paul, whose home was at the centre of the Stoical enlightenment, when he converts an hallucination into a proof of the resurrection of the Saviour, or even to believe his tale that he suffered from this hallucination himself--this would be a genuine niaiserie in a psychologist. Paul willed the end; therefore he also willed the means. --What he himself didn't believe was swallowed readily enough by the idiots among whom he spread his teaching.--What he wanted was power; in Paul the priest once more reached out for power--he had use only for such concepts, teachings and symbols as served the purpose of tyrannizing over the masses and organizing mobs. What was the only part of Christianity that Mohammed borrowed later on? Paul's invention, his device for establishing priestly tyranny and organizing the mob: the belief in the immortality of the soul--that is to say, the doctrine of "judgment".
Friedrich Nietzsche, The Anti-Christ (1885) (H.L. Mencken trans.), at Para 42.

Whatever one thinks of the truths thus revealed, the connection between belief-faith and law continues to assert a curious power.  That power now appears in subtle and sometimes ironic ways in communities ostensibly secular yet grounded in aggregations of communities organized on the basis of faith of some kind.  Those interactions were nicely illustrated recently in Catalunya, where it waqs reported:
The government in Spain's Catalonia region said Tuesday it was investigating a clinic in Barcelona that is allegedly offering treatments to "cure" homosexuality.
The Policlinica Tibidabo in the Catalan capital is offering pills and psychiatric treatment to "convert" homosexuals, Spain's leading daily El Pais reported.
Many of those coming for treatment are followers of a particular religion who believe homosexuality is incompatible with their beliefs, it said.
Spanish clinic probed for offering to 'cure' gays, The Sydney Morning Herald, June 16, 2010.Here, nicely framed is a modern manifestation of the belief-faith-law triangle in which belief, elaborated through faith produces a certainty of meaning that is then manifested in the organization of human understanding and the organization of social responses, organized through law.  and thus the vagaries of faith, its incarnation in "the way things must be", and its expression in law.

"An investigation has been opened into this clinic," a spokeswoman for the regional government's health department told AFP.
"We do not consider homosexuality as an illness, far from it."
She said the clinic could face fines if the month-long probe concludes that such treatments are being carried out.
A gays and lesbian rights association in Catalonia, the CGL, hailed the decision of the regional authorities.
"It is totally unacceptable, in the 21st century, that health professional are trying to treat homosexuality," CGL secretary general Antonio Guirado said in a statement.
"You cannot treat something that is not an illness."
Id.  And yet for those who see reality through different eyes, that is precisely what is true.  Where the basic fabric of reality is so incompatible, it is neither clear that language can bridge the gap, or that the democratic state can find a common basis for legitimately imposing its will. Writ larger, of course, this suggests the difficulties of attempting, except on a functional basis, to suggest a formal commonality between fundamentally distinct ways of approaching reality.

Friday, June 11, 2010

Institut de Drets Humans de Catalunya: Civil Society in Action--An Interview With Jaume Saura

Civil Society is usually spoken of in the singular--as a sort of unified institutional construct with a single animus and singular organization.  But is it well known that, like states and economic enterprises--civil society serves as a shorthand description for a large constellation of actors which, singularly and collectively, have assumed a critical role in global governance.

While the great global civil society actors are well known--Oxfam, Amnesty International and the like, the brunt of thew work of civil society is undertaken by a large group of organizations working from a virtually every corner of the globe.  These smaller organizations serve two critical roles-.  First they provide significant focus to local or regional manifestations of global issues central to their distinctive missions.  Second, they communicate with other similarly situated elements of civil society to leverage their ability to serve their communities and to harmonize their actions.  It is this combination of local action within a web of global issues served by local actors which amplify their effects through communication, coordination and harmonization of action/effort, helps construct both the diversity and singularity of civil society.

One such organization serving as an important element of this construct is the Institut de Drets Humans de Catalunya (English--the Human Rights Institute of Catalonia; Spanish, Instituto de Derechos Humanos de Cataluña).
The Human Rights Institute of Catalonia (IDHC) was created more than twenty years ago by a group of people committed to fighting for the progress of freedom and democracy in the world. Their aim was to join both individual and collective forces, coming from both public and private institutions, in order to expand the political, social and cultural rights of everyone.
Human Rights Institute of Catalonia, The Institute.  Like other active civil society actors in this sector, the IDHC undertakes a coordinated set of projects.
The IHRC carries out three parallel. yet independent, lines of work; the promotion, consultation, and teaching of human rights.
In each of these areas special attention is given to relations with other institutions, network participation and study and research activities.
In the area of promotion, activities of different types are carried out on diverse themes (forgotten conflicts, rights in the city, emerging rights, human rights in the street...) but with a common objective; to spread the culture of human rights in our society in order to make effective the respect, enjoyment and guarantee of fundamental rights.
With respect to its consultancy work, the IHRC offers technical and scientific support to public institutions in the development and implementation of, for example, the European Charter for the Safeguarding of Human Rights in the City. The Institute also gives its support to specific projects linked to the strengthening of the culture of human rights in civil society.
As part of its work teaching human rights, the IHRC organises courses, specialist seminars, short courses for specific groups, studies and research work, analysis and evaluation projects, and conferences at the local as well as the international level.
 IDHC, Activities.  One of its current efforts focuses on the increasing manipulation of law and law enforcement against migrants, especially in the south of Spain.  The IDHC has been concerned that the economic crisis has made it harder for some to resist the temptation to use set of aggressive interpretive and enforcement methods to effectively criminalize migrant status.   See, Manifesto MEDIDAS RACISTAS Y XENÓFOBAS: RESPUESTA POLÍTICA ANTE LA CRISIS Asociación Pro Derechos Humanos de Andalucía (APDHA) y el Instituto de Derechos Humanos de Cataluña (IDHC) (7th of May 2010)

I was fortunate enough to be able to speak recently about the work of the IDHC with its President , Jaume Saura Estapà.  Dr. Saura Estapa has served on the faculty of law of the University of Barcelona since 1990.  Professor Saura Estapà was kind enough to speak at length about the activities of IDHC, its organization, goals, mission, and interactions with other civil society actors, government and related stakeholders.

Tuesday, June 08, 2010

Corporate Governance and the Social License to Operate: Foxconn and the Limits of Legal Formalism in Corporate Governance

An important emerging framework of transnational governance for corporations in the context of their human rights obligations has sought to elaborate the sources of an autonomous set of corporate obligations with respect to its stakeholders.  These obligations arise independently of a corporation’s legal obligations under the laws of the state of their incorporation or operation.  Instead, they arise from the set of customary norms that define the expectations of corporations and their stakeholders—investors, employees, customers, local populations where corporations operate and the like.  In developing the Protect-Respect-Remedy framework for th governance of corporate human rights obligations, John Ruggie has referred to these autonomous governance obligations as a corporation’s “social license.”

Governments define the scope of legal compliance, but the broader scope of the corporate responsibility to respect human rights is also defined by social expectations—as part of what is sometimes called a company’s social license to operate.
What does this mean? . . . .
A few years ago, the Peruvian partner of a major US mining company said this in a TV interview about their troubled operation: “I don’t understand the social license to operate. I get my license to operate from the Ministry of Mines in Lima.” A little while later the local community successfully blockaded the only access road to the mine, out of frustration at not having their grievances dealt with. Then he understood what a social license to operate was.
Here is another example.
A large commodity mining company in Africa, a subsidiary of a transnational firm, reports to its parent that all is well because it has won six of the seven lawsuits brought against it by local communities around one of its major operations. But executives at the parent company are deeply puzzled, because with each lawsuit won the local dispute seems to escalate, not decline, while the parent company’s international reputation is taking ever bigger hits. How can this be?
The answer may lie in a third example. A company negotiates a contract with the government of a developing country where it is investing. There are few regulatory requirements regarding the social impacts of its proposed activities, and the company’s legal department is assiduous in minimizing the contractual requirements placed on the company in this regard. The company is in a strong negotiating position—and its lawyers are more numerous, probably better trained, and certainly much better resourced than those representing the government. When the impacted communities later mount a campaign for alleged abuses of their rights and adverse impacts on their welfare, the company’s legal department says: We’re in compliance with the law; we’ll see you in court.
. . . . The lesson to be drawn from these cases is this: a serious misalignment exists in each instance between legal requirements and prevailing social expectations, and companies need to realize that they are subject not only to the first but to both.
Remarks by SRSG John Ruggie, International Institute for Conflict Prevention & Resolution Corporate Leadership Award Dinner, New York, 2 October 2008, at 2-3. This represents a substantial deepening and broadening of the traditional understanding of social licensing, which has tended to have a rather narrower, quid pro quo quality. Consider this recent statement from a representative of Export Development Canada:
 The need for companies to have a “social licence, that is, to gain support of the communities where they operate, is integral to doing business today. Let me give you an example of what I’m talking about, from a Brazilian pipeline company with whom I shared a panel in Rio de Janeiro last fall. Before the company started construction, it spent years learning about the land and the people who lived on the planned pipeline route.  They had countless meetings and detailed discussions with indigenous groups.  Once they got started, the inevitable happened – something went wrong.  Huge flooding damaged the pipeline and caused  negative repercussions in several communities. But what could have turned into a flood of negative media and “scape-goating” of the company, turned into local support and speedy rebuilding of the pipeline. The trust the company had built at the front end of the project paid off many times over. As this example shows, firms need to gain community support to mitigate social impacts. 
Jim McArdle, Sustainability and Natural Resources Sector: How to Acquire and Maintain your Social Licence to Operate, 25 March 2010 - Vancouver (CANADA) (Jim McArdle is Senior Vice-President, Legal Services & Secretary of EDC).
The social license to operate, as a source of governance, has recently acquired an enhanced importance in global corporate governance.   The recent experience of the C Chinese enterprise, Foxconn (  provides a valuable illustration of the relationship between a corporation’s legal and its social license to operate, as well as a demonstration of the autonomy and importance of the latter in the global context.  In its own words, and focusing on the anchor company of the Foxconn Group-- Hon Hai Precision Industry Co., Ltd. (traditional Chinese: 鴻海精密工業股份有限公司):
Guided by a belief that the electronics products would be an integral part of everyday life in every office and in every home, Terry Gou founded Hon Hai Precision Industry Company Ltd, the anchor company of Foxconn Technology Group in 1974 with US$7,500, a devotion in integrating expertise for mechanical and electrical parts and an uncommon concept to provide the lowest "total cost" solution to increase the affordability of electronics products for all mankind.

Today, Foxconn Technology Group is the most dependable partner for joint-design, joint-development, manufacturing, assembly and after-sales services to global Computer, Communication and Consumer-electronics ("3C") leaders. Aided by its legendary green manufacturing execution, uncompromising customer devotion and its award-winning proprietary business model, eCMMS, Foxconn has been the most trusted name in contract manufacturing services (including CEM, EMS, ODM and CMMS) in the world.
Foxconn, About Foxconn, Group Profile.  Foxconn’s vision consists of three parts, all of which together emphasize a commitment to harmony for the profit of the company and the benefit of its stakeholders:
  Through the most efficient "Total Cost Advantages" to make comfort of electronic products usage an attainable reality for all mankind;
Through the proprietary one-stop shopping vertical integrated eCMMS model to revolutionize the conventional inefficient electronics outsourcing model;
Through the devotion to greater social harmony and higher ethical standards to achieve a win-win model for all stakeholders including shareholders, employees, community and management.
Foxconn, About Foxconn, Business Philosophy. It has been reported that “Among other things, Foxconn produces the Mac mini, the iPod, the iPad, and the iPhone for Apple Inc.; Intel-branded motherboards for Intel Corp.; various orders for American computer manufacturers Dell and Hewlett-Packard; motherboards for UK computer manufacturer Zoostorm; the PlayStation 2 and PlayStation 3 for Sony; the Wii for Nintendo; the Xbox 360 for Microsoft, cell phones for Motorola, the Amazon Kindle, and Cisco equipment.”  Foxconn ( . 
 In its 2008 CSR Report, Foxconn noted that
Foxconn Group provides a series of programs to help employees keep a balance between their work and personal life. Several courses and consultations are offered, free of charge, on topics such as caring for newborn babies and children and managing family finances. Our human resource department also sponsors and actively organize various social activities for single employees.

FOXCONN Technology Group, 2008 Corporate Social and Environmental Repsonsibility Report (2008) at 28.  The 2008 Report recognized the importance of CSR issues in the organization of corporate operations and the critical role that social actors played in the development of CSR structures and operations.  “In 2007, Foxconn Technology Group established the Foxconn Global SER Committee (FGSC) to proactively work with stakeholders including customers, non-governmental organizations (NGOs), and other interested groups on CSER issues. As a result of the committee's work, we have implemented a wide range of initiatives to improve our performance across the spectrum of corporate responsibility issues. Our progress on these issues is outlined in this report.”  Id.
It must therefore have come as something of a surprise when Foxconn’s employees in China started committing suicide in noticeable numbers. 
A Foxconn Technology worker tried to kill himself Thursday, becoming the 13th person to commit suicide or attempt to do so this year at the company, which makes high-tech products for industry giants such as Apple, Dell and Hewlett-Packard, state media said.
Police said the man survived after cutting himself in his dormitory room at the factory, the official Xinhua News Agency reported. It said the 25-year-old man, surnamed Chen, migrated from central Hunan province and began working at Foxconn two months ago.
Foxconn officials and police did not immediately answer calls by The Associated Press.
The 12 previous suicide attempts at Foxconn Technology Group's operations in southern China involved workers who jumped from buildings. Two survived. Another worker killed himself in January at a factory in northern China.
On Wednesday night, a 23-year-old worker from the northwestern province of Gansu killed himself by leaping from a dormitory balcony. Hours earlier, Foxconn Chairman Terry Gou had led a media tour of the industrial park and promised to work harder to prevent more deaths.
William Foreman, 13th Foxconn worker reportedly attempts suicide, AP, Yahoo News, May 27, 2010 (   
As a matter of law and legal compliance, Foxconn suggested it has acted without fault.  It has complied with all the legal requisites applicable to its operations in China.  But not all agree.  A civil society actor, China Watch, reported on the death of another worker:
At 2AM on May 27th 2010, Foxconn worker Yan Li died suddenly at his home. Before his death, he had been working the night shift for more than a month straight, sometimes working 24 hours non-stop. His family and colleagues suspect he died from exhaustion due to overwork.
An engineer at the CNC producing office in the Hongzhun iPEG producing department, Yan Li was 27 years old when he died. He lived in Dashuikeng, Third Village in Guanlan. His ID number at Foxconn is F3839667.
According to his sister, Yan Li had no history of any medical ailments. He worked every night for the month prior to his death, well beyond the maximum overtime hours allowed by law.
At 2: 40 AM on May 27, Yan Li suddenly experienced shortness of breath. He was given artificial respiration and chest compression, to no avail. The paramedics who reached him later confirmed his death. A police who investigated and concluded on May 30 ruled out homicide or suicide, and concluded that that Yan Li’s death was not a criminal case.
According to Yan Li’s family and Foxconn colleagues, because of the rapid turnaround time for many production orders, Yan Li often worked throughout the night. At one point, according to his family, Yan Li worked for almost 35 hours non-stop, from 7AM on May 24, to 5:47 PM on May 25. Even after leaving work on May 25, he still received calls from his superiors, making it impossible for him to rest.

Whatever the merits of the claims of civil society elements, Fozconn’s employees continue die.  The latest as a result of exhaustion.    And that is where the social license obligations play a role.  My research assistant Siyu Zai reports from China that
People from different background started to investigate and comment on the tragedy. (See 解剖富士康员工频繁跳楼事件, Even though every tragedy has its unique cause, the twelve suicides can all be attributed to the overall working condition provided by the employer, Foxconn, including low salary, long working hours, mechanized assembly line work, etc. Especially, most employees on the assembly line are from rural areas. Representing migrant labor in nowadays China, these people’s mental hardship and psychological health are also worth attention.

In China, legal minimum wage standard provided by the government almost forces employees to work overtime in order to make a living. Further, China does not allow independent labor unions, therefore employers do not have to face collective negotiation. Furthermore, China’s urban and rural account system bars those migrant employees from gaining social security (台湾资本与中国模式,, which further weakens these employees’ leverage in bargaining with employers.

Part of the tragedy can be attributed to the society. The economy has been developing along a path, where capital, with privilege granted by the government, squeezes employees through uneconomic and unreasonable way. In this way, migrant workers merely get to earn basic salary, while investors get a huge amount of money. As a result, this phenomenon accelerates polarization of rich and poorpolarization of rich and poorpolarization between rich and poor in China. To slow down this process, or to ease the conflict between rich and poor, entrepreneurs do not only play their economic role, they also play a role in shaping the society. In nowadays China, a new generation of employees has stronger self-esteem and consciousness of rights. Therefore, entrepreneurs shall create new corporate culture and organization in response to the change. (See期待企家的自,

Foxconn had to react—not because the law required it, or as a consequence of legal action, but as a result of the social context in which it operated.  Foxconn was failing to meet its obligations, the evidence was measured in the deaths of its employees, eventually too numerous to be explained away, and public opinion (and especially its expression in global media outlets) was being turned against it, potentially affecting Foxconn’s relationships with its principal customers—all of which are sensitive to shifts in public opinion as those might have significant effects of sales of end products.  Civil society elements, well aware of this relationship, sought to exploit it through a noisy letter writing campaign:

Take action! Write a letter using the template below or draft your own to reflect your concerns over the recent spike in suicide rates at Foxconn Electronics Inc. Let your voice be heard by those with the power – Foxconn purchasers including Dell, Apple Inc. and Hewlett-Packard Development Company, L.P. – to put a stop to the circumstances that have led to these horrifying and needless deaths:

To Whom It May Concern Regarding the Recent Suicides at Foxconn:
It has recently come to my attention that a string of suicides has taken place at Foxconn over the last year. Through its extensive reporting on Foxconn, the humanitarian non-governmental organization China Labor Watch (CLW) has uncovered the deplorable work conditions at Foxconn and shed light on its militarized management style. I am horrified by these discoveries. As a loyal customer of your company, I demand that this problem be addressed with urgency.
CLW reports that Foxconn is guilty of the following labor law offenses:
·        Low basic monthly salaries
·        Excessive mandatory overtime hours
·        High labor intensity
I expect you to take immediate steps to ensure that Foxconn, your supplier, increases its basic monthly salaries, decreases factory work hours and labor intensity, and amends its operation philosophy and execution. Foxconn must turn away from its strict profit-driven policies to emphasize dignity, meet the basic physical and material needs of its labor community and to value its workers as human beings with inalienable rights under China’s Labor Contract Law and Labor Law.
The deaths that have occurred at Foxconn have alerted the world to Foxconn’s failure to appropriately manage its employees. As the largest manufacturer of electronics and computer components, worldwide, Foxconn has both the ability and responsibility to clean up its sweatshop abuses, create a respectful working environment and work to protect its mainland laborers.
Foxconn needs your help. Rather than abandon Foxconn in attempts to negate any bad press, I instead urge you to implement remediation plans in cooperation with Foxconn management. This is truly the only way to ensure full cooperation between Foxconn and labor laws set forth in China.
Your concerned consumer,
(Signature)            (Date)

Letters may be addressed to the following parties:

Dell Inc.: One Dell Way; Round Rock, Texas 78682; United States
Apple Inc.: 1 Infinite Loop; Cupertino, CA 95014; United States
Hewlett-Packard Development Company, L.P.: 3000 Hanover Street; Palo Alto, CA 94304; United States; Fax: +1-650-857-5518

China Labor Watch, Get Involved: Letter to Buyers Regarding the Recent Suicides at Foxconn

And, indeed, the fuss forced one of Foxconn’s most publicly exposed customers, Apple, to intervene. 

Apple boss Steve Jobs has defended conditions at a Taiwanese electronics firm that produces the firm's popular iPhone, following a spate of suicides.  "Foxconn is not a sweatshop," he told a conference in the US. Mr Jobs said that Apple representatives were working with Foxconn to find out why 10 workers had killed themselves at a factory in Shenzhen, China. An eleventh worker recently died at another factory in northern China.  In total, there have been 13 suicides and suicide attempts at Foxconn factories this year. "We're all over this," said Mr Jobs at the All Things Digital conference in California. 

“You go in this place and it's a factory but, my gosh, they've got restaurants and movie theatres and hospitals and swimming pools. For a factory, it's pretty nice," he said.Steve Jobs Apple CEO. 

Apple boss defends conditions at iPhone factory, BBC News Online, June 2, 2010 ( 

The result is now evident—crude, perhaps, but more effective than the nothing that would have been produced by a mere clinging to the legal obligations of the company.

To stem an epidemic of workers leaping to their deaths, the Taiwanese electronics company Foxconn – which works with Apple, Dell and Sony – has also pledged to raise salaries by 20% and offered counselling to its 420,000 employees here.
Though far less well known than the brands it assembles, Foxconn is the world's biggest contract maker of IT goods, including iPhones and Motorola displays. Its mega-facility at Longhua, Guangdong province, so dominates the local economy that officials pay little heed to complaints by labour groups of secrecy, military discipline and low wages.
But a harsh new light has been cast on these problems in recent months by a spate of suicides and allegations of murder.
After the death of a worker in January, at least a dozen employees have jumped from buildings in and around the complex. The problem appears to be growing worse. There were two cases in March, three in April and six in May.
On Wednesday, the billionaire president of Foxconn, Terry Gou – Taiwan's richest man – said the problem was so bad that he had trouble sleeping because he feared the phone would ring with news of another death. Hours later that is exactly what happened. A day later, another worker reportedly slashed his wrists.

Foxconn offers pay rises and suicide nets as fears grow over wave of deaths, The Guardian, May 28, 2010  (   And yet, this connection must be tempered by the realities of the local wage labor market.  “But even as suicide nets were being erected, newly arrived migrants from the countryside were queueing up outside the factory to apply for jobs. "I've been waiting for three days," said Wu Zongying, 20, from Henan. "I really want a job here. It's better pay than the shoe factory where I used to work. I've heard about the suicides but I'm not worried. Nobody made those people jump. They were unhappy. They should have just left. I don't really understand it."”

But the mixed result ought not to blind one to the reality of the power of the social license.  In a world in which only law produced by the state mattered, there would be nothing of interest in the story about the stream of suicides in the Chinese manufacturing facility of a Taiwanese enterprise serving as the manufacturing site for U.S. branded products sold in developed states. But the “fuss” has had effect.  The effect is not “legal” in the sense that it results from the application of the law of a state.  Yet it has produced changes in behavior—and the perceived need to pay compensation—under the rules of corporate operation autonomous from those of the laws of either China or the United States.  The rules of the market, and the perceived preferences of important stakeholders—investors, customers, employees, and consumers—has asserted a power to affect behavior as powerful as the rules of any state.  And in the case of Foxconn, for the moment at least, perhaps the power asserted is more effective than political rules.  For a more theoretical discussion, see, e.g., Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008; and Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007. .