Amalgamating Global Labor on the Model of Global Capital: A Challenge to the ILO Framework

It has been a curiosity of modern market based forms of economic globalization that even as the structures of global markets for goods and capital are strengthened, markets for labor are not. Particularly in the case of capital, the thrust of recent efforts has been to make it easier for capital to amalgamate, and thus amalgamated, to travel without impediment across the borders of nation-states. Thus, the global network of bilateral investment treaties, the multilateral trading system, increasingly open financial markets for securities (including the provision of financial services), and global systems of private and public arbitration have made it infinitely easier for capital to combine, recombine, and travel across the globe without political impediment. In addition, investment vehicles, principally in corporate form, have found it increasingly easy to move across the globe. The Centros decision (Centros Ltd. v. Erhvervs-og Selskabsstyrelsen, Case C-212/97, ECR 1999 I-01459), for example, making it harder for Member States of the European Union to regulate the operation of foreign corporations operating beyond the territory of the state of their incorporation, also contribute to the mobility of amalgamations of capital. See Larry Catá Backer, The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality, 41 Tulsa Law Journal (2006).

These principles of globalization, however, appear inverted in the case of labor. While capital appears to be fungible, labor appears to have succumbed to a more complex characterization. To some great extent labor is treated as fungible--that is the skills necessary to accomplish a particular set of tasks can be learned and produced by virtually every human being otherwise physically able, irrespective of nationality. But while capital is composed of units of value, even units of value with nationality (for example, the U.S. dollar), labor is composed of people. And people are different. People are bearers of culture, nationality, ethnicity, race, religion, tastes, and consciousness. They are a means of production and its beneficiary. People are both subject and object of globalized economic systems. As a consequence, whether from the left or the right, whether clothed in the language of "rule of law" or that of progressive rhetoric, the tendency is to speak of labor and labor policy in old fashioned classical Marxist-Leninist "control economy" terms. The International Labour Organization, for instance, promotes a state centered set of principles designed to provide a legal basis for labor market protectionism. Its Declaration on Fundamental Principles and Rights at Work "commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation." ILO, Declaration on Fundamental Principles and Rights at Work, Abut the Declaration. The idea is to provide a baseline for labor market regulation in every state but to permit every state to erect barriers to entry and exit into those markets. These views serve as a basis for market centered and free movement capital centered states, especially through organs such as the Organization for Economic Cooperation and Development (OECD). See OECD, Jobs Study Report (1994).

Labor migration is viewed as destabilizing and in its extreme form, invasive. Alternatively, labor migrants are viewed as innocents preyed on by an institutionalized "evil" set of actors. Thus, for example, the Soros Foundation Central Eurasia Project describes how in "many destinations, largely illegal populations of workers are often preyed upon by unscrupulous employers or corrupt law enforcement officials; in Russia, violent gangs may victimize migrants unchecked by police." Soros Foundation, Central Eurasia Project, Labor Migration. The issue, thus, is not one of labor markets but of basic human rights norms. The cure is to ensure labor contentment sufficient to prevent "excessive" outward or inward migration. Labor migration is thus also tied sometimes to issues of development rights that focus on states. Like much of what passes for norm making in the twenty first century, labor markets, like states and war, is something that must be managed. See, e.g., Philip Martin, Manolo Abella, and Christiane Kuptsch, Managing Labor Migration in the Twenty First Century (Yale University Press 2005).

And it is in that management that a capital system based on free movement and flexible amalgamation can exploit disjunctions across labor markets based on development, need, population growth, and the host of other systemic and demographic factors within states that make such disjunctions possible. These disjunctions are hinted at by the OECD and its capital privileging programs for labor management.

"A key reason for slow and sporadic implementation of the OECD Jobs Strategy is the perception that undertaking reform involves conflict with policy objectives concerning equity and social cohesion. In particular, concern has been expressed in some quarters that the Jobs Strategy recommendations to enhance wage flexibility and to reform social transfer systems would be at odds with the policy objectives of ensuring some degree of equity across members of the labour force or the population at large. The EDRC reviews did not provide conclusive evidence as to the nature and magnitudes of any potential trade- offs, though in some cases it was suggested that these objectives do not necessarily conflict when seen in a dynamic perspective."

OECD, Implementing the OECD's Jobs Strategy (1997) at 11.

It is the conflicts referred to in the OECD Report that the "progressive" elements of labor rights groups tend to base their opposition to free movement of capital and for a greater effort at control economy regulation of the traditional sort. Curiously, little attention has been paid to the power of amalgamating labor in the ways that capital has been permitted to combine. And the attention that is paid to labor aggregation (outside of the traditional labor unionizing context) is usually dismissive, especially among "progressive" forces. It comes as no surprise, then, that In an interview with Saepol Tavip, a member and past chair of the Indonesian Association of Trade Unions, published in 2006 (Interview, A Kind of Modern Slavery: Labor Flexibility Comes to Indonesia, Multinational Monitor (July/August 2006) at 37) the OECD's approach on state centered labor "flexibility" was criticized in favor of a system of state regulation that would significantly expand the rights of individual laborers and those of labor organization, at least in their traditional representational form.

"Number one is about outsourcing, or contracting out. We reject outsourcing, because it creates a flexible labor market, and we think labor market flexibility is a kind of modern slavery. Labor flexibility means workers will be flexible in the wages they receive, flexible in their working hours, flexible in the social security benefits to which they have a right, flexible in accepting dismissal — because the employer can fire the worker at any time under any condition." Id.

The great difficulty, of course, is that labor NGOs, including labor unions, are loathe to embrace the dynamics of markets on economic policy. They tend to see no distinction between labor and political issues, and tend to privilege the political (and thus to privilege the state apparatus) over mere institutionalized economic power.

"Foreign investors don’t want to have ongoing obligations to their workers, and they don’t want to be burdened with labor problems if they want to withdraw investments from Indonesia. But now, if they want to close their factory or investment in Indonesia, they can go easily — they don’t have obligations to justify the dismissal of their workers or to provide funds to pay compensation to them." Id.

But the criticism also focused on the way in which treating labor issues as economic under the system of globalization has significant consequences for labor participation in politics. "Now it is very difficult for the union to organize a strike when they don’t agree with the policy of the employer. Under the Manpower Act, workers can strike only in the context of collective bargaining agreement negotiations. We can’t go on strike to show our solidarity with other workers’ problems in a different company. We cannot go on strike when we oppose state policy." Id.

The solutions are thus the usual, and usually unrealistic, sort: greater state intervention, privileging the political as the site through which economic decisions are made and markets managed, using law as a substitute for market behavior, relying on the state to regulate taste, desire and culture. What is ignored or viewed with suspicion, is the adoption by labor of the mechanisms for amalgamations of power by capital--the use of the institution of the firm. Criticizing the behavior of multinational corporations in Indonesia, Mr. Tavip explains:

"they open their factories, but they won’t contract directly with the workers. They use another agent to supply the workers. And the workers only sign a contract letter with the agent.

So they don’t have any obligation to pay compensation, or to think about working conditions. They can do anything, at their will. Because the obligation to think about the workers’ rights has been shifted to the agent. The existence of the agent is endorsed in the law. This way, there is a shifting of burden — shifting of obligation — from the investor to the agent. The agent becomes responsible for handling all of the problems of the workers — their rights, salary, social security and many things." Id.

Ironically, though typically, Mr. Tavip rejects a powerful tool of levering the power of a factor of production because of its resonance with "capital." In so doing, Mr. Tavip, and many of those focusing on labor issues, tend to overlook a potentially powerful form of labor organization that might tilt the balance of power away from capital on capital's home turf. When labor controls labor, and does so through the mechanics of power that operate within a dominant system of institutionalized power, labor will be able to meet capital on its own terms: domiciled within the network of nation states but free to move globally and to take advantage of disjunctions in capital markets. It might be worth thinking through the possibilities of a global system in which labor controls labor, in which labor is no longer controlled by capital, in which the individual laborer is no longer arrayed against aggregations of capital. But this requires labor to lose their dependence on the state--to take the step that capital took two centuries ago when it effected what would be an increasing independence from the state. When labor begins to use the state in the way that capital has learned to do it, when labor ceases to organize itself like an element of civil society and becomes more like a value optimizing factor of production, then perhaps the global conversation about labor may take on a different hue.

Conflating Sexual Deviance and Politico-Religious Deviance: Arab Homosexuality and Spying for Israel in Egypt

An interesting story reported on April 21, 2007 by the "Middle East" News Magazine, Al-Jazeera ("Aljazeera Publishing is an independent media organisation established in 1992 in London. Aljazeera.com has a particular focus on events and issues in the Middle East covering major developments presenting facts as they happen." Aljazeedra.com, About Aljazeera.com), reminds us of the ways in which sexual deviance is sometimes conflated with political, religious or cultural deviance as a method of demonizing enemies and of inflating (and gendering) the corruption and associated with the activity condemned. Egyptian-Canadian Jailed for Israel Spying, Al-Jazeera Magazine, April 21, 2007.

The story reports that an Egyptian man with Canadian residency, "Muhammad al-Attar, 31, was convicted of being an agent for the Israeli intelligence agency Mossad." Id. The story relates a odyssey of Mr. al-Attar from his recruitment in Turkey in 2001 by Israeli agents. Apparently the Israelis were able to secure for Mr. al-Attar a residency in Canada "under a false name and found him a job in a bank, where he used his position to obtain information on specific accounts. They say he was paid $56,000 to spy on expatriate Egyptians in Canada and Turkey." Id. Thus far the story is fairly unremarkable. It appears to be the usual case of Israeli (and likely other Western) attempts at keeping tabs on money flows for legitimate (and potentially illegitimate) purposes.

It is the next part of the story that is interesting. "A transcript of Attar’s confession, which he claims was extracted under torture by Egypt’s intelligence officials, said he had recruited gay or impoverished Arabs in Canada for Mossad, a Canadian newspaper has reported. . . . Attar denied being homosexual, although it was cited as a reason for an application he made for refugee status with the United Nations." Id.

Now the story resonates on a variety of levels. The story, which at first glance appeared to be a simple story of low level intelligence gathering, now becomes more a powerful political tale of the moral bankruptcy of Israel (and other Western states). It conflates moral and sexual corruption with political betrayal--treason. It further conflates the interests of Israel and the West with moral and sexual corruption. Thus, the real message of the story--the connection between moral, religious, sexual and political corruption. And more important--the connection between such corruption and Israel and other Western States. Such conflations serve a number of useful purposes: protecting the boundaries of sexual dominance within Egyptian culture, inscribing the enemy with sexual and social practices incompatible with any sort of friendly relations, and gendering bad conduct (political betrayal) as defectively male (and thus female).

These conflations, tying manliness, religious rectitude, and privileged political values with a demonization of enemies on these gendered terms is nothing new. In the dar al-Islam, its most recent famous deployment was in the great battle for control of th Malaysian state, when Mahatir Mohamad used accusations of political and sexual corruption to engineer the downfall of his political rival Anwar Ibrahim. This drama reached its most operatic and well publicized culmination in a sensationally sexualized trial, which resulted in a conviction and jailing of the former leader of a Malaysian Islamist religious party. See Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 YALE JOURNAL OF LAW & FEMINISM 1 (2005).

But what makes the story doubly interesting is that its coverage, including its pandering to the innuendo of the conflation of political and gender deviance, transmits from London and not in Cairo where it originated. It seems that religio-cultural territory has overtaken political territory as the marker of boundaries in our transnational global order. Solidarity is moving back to its pre-modern configuration. Political borders no longer mark either ethnos or demos. And neither ethnos nor demos might serve as the supreme marker of either nation or state. If cultural markers, like the gender subordination/conflation matrix evidenced by the English news reporting in Aljazeera.com suggests anything, it is that the use of gender deviation is deepening and, applied in the West, represents a reactionary element in the cultural development of this region.

Global Panopticism and Corporate Law Making: Surveillance and Governance

Recently, I was privileged to participate in an exciting conference: Democracy and the Transnational Private Sector, the 13th Annual Indiana Journal of Global Law Studies Conference, held at the University of Indiana—Bloomington School of Law, on April 12-13, 2007. The conference organizers, Professor and soon to be dean (of Suffolk Law School) Alfred C. Aman and Professor Christiana Ochoa brought together an outstanding group of individuals to speak on (i) International Law, Institutions and Processes: Who Makes International Law?; (ii) The Changing Face of Corporate Law Making; (iii) The Public Lives of NGOs and the Implications of Their Activities; and (iv) Who Governs, Who Controls?

As my contribution to the panel on "The Changing Face of Corporate Law Making" I offered the following remarks. A full version of these thoughts will be published as part of the issue of the Indiana Journal of Global Law Studies devoted to this conference.

Global Panopticism and Corporate Law Making
Larry Catá Backer

Abstract: A sovereign is said to lose its character as such when it “acts, not as regulator of a market, but in the manner of a private player within it” (Argentina v. Weltover, 504 U.S. 607, 614 (1992)). The reciprocal principal has not been accepted de jure, narrowly defined. Yet, private players now are required to play the role of regulator and have sought that role for themselves de facto. This paper examines one of the more significant of these regulatory roles, that of surveillance, both in its domestic (Sarbanes-Oxley) and in its transnational (voluntary codes) element. It focuses on the ways in which the construction of complex systems of conscious and permanent visibility affects the power relationships among states, economic entities and individuals.

PRESENTATION:

I. Introduction.

I will be speaking today generally about complexity and fracture in regulatory power. Specifically, I will be focusing on surveillance as a regulatory mechanism of both private entities engaged in sovereign functions and public entities participating in the market.

It is not unusual, when people examine issues of governance—whether public OR private—to approach analysis in a way that embraces the value judgments inherent in the normative assumptions and parallels the foundational model of governance of the political community to which they belong.

--In the West, that usually translates into a fixation, of sorts, on the executive, legislative or judicial function:

--Analysis within those functional categories is usually elaborated within a normative framework

Bounded by: (A) efficiency concerns (separation of powers); and (B) fear of tyranny (checks and balances).

And expressed in: (A) formal systems (institutional autonomy); and (B) positive law making (rule of law).

--This approach is quite reasonable and necessary. It forms the essence of the expression and construction of the regulatory power of states (as sovereign political entities) and corporations (as sovereign economic entities).

But other regulatory functions—for a long time lurking in the background as incidental or secondary—have surged forward from humble beginnings in revolutionary France and then Russia, to move more center stage from the late 20th century. In a sense, this movement evidences the transformation of those aspects of governance from what might have been seen solely as a means of governance to what now assume its form.

--Among the more important governance functions—affecting both public and private governance systems—is surveillance. By surveillance I mean to invoke the French overtones of the term, to suggest for surveillance a function of “watching over” both as technique and as the normative system itself compliance with which it watches.

--Surveillance, when understood as transparency has two aspects:

--internal (direct stakeholders involved in governance)

--external (all communities that might be affected).

--Surveillance can be said to embrace two principles:

--a passive (openness) and

--an active (disclosure, monitoring assessment) principle.

In some or all of these aspects, surveillance is sometimes characterized as essential to democratic governance:

--it is said to further accountability

--reduce corruption/disloyalty

--promote solidarity among stakeholders (conflict avoidance/management).

--In a global order organized as a simple state centered system, which is territorially bounded and grounded in purely public lawmaking: this relation between transparency and democratic processes can be essentially correct.

--But

--in a global order moving toward a multi-centered, transnational, public-private governance framework, this relationship may become more complex.

My purpose today, then, is to:

(1) tease out some of the possible complexities of surveillance within the emerging multi-jurisdictional system of global law, and

(2) the emerging relationship between surveillance and democratic governance.

I will then relate both complexity and relationship to emerging public and private governance systems.

I will suggest, as I have already implied, that surveillance in our time is being transformed from a general and undifferentiated technique of governance, to the active embodiment of governance itself. Surveillance is both the repository of governance norms and the discipline of those norms within any regulatory system.

Surveillance in its modern form, represents another step in the perfection of social panopticism, of the creation of systems of social order that are self regulating and internalized among those regulated. It represents a shifting of coercive power from the external—the state, the police, the institution, to the individual and the private. As Michel Foucault famously put it in another context:

Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan, trans., 19977, NY: Vintage Books 1995) pp. 195-228.

Surveillance is thus a bundle of assumptions, factors, assessments and actions incarnated on the bodies of the regulated. As technique, surveillance provides the framework for its mutability, representing a complex cluster of sub-operations whose application can substantially affect the character of the relationship between governed and governing. As normative framework, surveillance is the expression of the behavior rules of the community for whose benefit it is applied. It is a Logos made manifest among the community of believers. And there may be as many manifestations of the face of divine order as there are communities in a global system made up of multiple communities.

II. Surveillance Unbundled :

One way to understand surveillance in its governance role is to unbundle the assumptions and actions inherent in the term.

One useful framework might divide surveillance into four (4) components:

(1) Normative

(2) Informatics

(3) Control

(4) Governance

I will discuss each in turn. I will then suggest the ways in which changes in the application or construction of each has both substantive and implementary effect. I will then suggest the ways in which surveillance, now conceived as an aggregate of its components, has regulatory effect. The specific nature of those regulatory effects will also be explored. The essay ends with an application of the model in a public and a private context.

III. Normative Context: The Foundations of Surveillance

Surveillance, in its normative context, provides the boundaries within which it nature and role can be comprehended.

The normative aspect of surveillance can be understood as the product of two definitional categories: substantive and surveillance normativity.

--Substantive normativity suggests overarching behavioral constraints. The sources, character and limitations of these constraints are well known. They comprise the morals and ethics of religious, cultural, ethnic, political and economic systems. And they are sometimes recognized by and normalized within legal systems at the local, municipal or international levels.

-- Many behavioral rules and outlooks converge at a high level of generality but tend to diverge in their details.

--Example: Both German and American political systems value human dignity. But the meanings of human dignity, as a theoretical construct and as applied, vary widely between the U.S. and Germany.

--Surveillance that ignore or violate substantive norms lose either legitimacy. Such violations expose the system as alien, and unnatural, subjecting the system, its operator and the agents of surveillance, to discipline in accordance with the rules of the normative community whose behavior codes have been violated.

--While such behavioral frameworks are often universalizing in approach, all tend to be most important within the communities from which they arise. And all tend to be subject to patterns of interpretive engagement in accordance with the values and rules of the communities in which they are effective.

--Surveillance substantive normativity at their most effective must reflect the overarching behavioral constraints of both the communities within which surveillance arises AND within which surveillance is targeted.

--Where the normative constraints differ, surveillance must be adjusted to fit within the common restraints and beliefs of both. Thus, the greater the number of communities affected by systems of surveillance the greater the number of likely normative constraints for uniformly applied systems.

--Alternatively, surveillance must be divided and adjusted to suit the constraints of each. But this raises the costs of surveillance and might increase the variability of information gathered or its utility.

--Surveillance normativity suggests the normative assumptions shaping approaches to surveillance itself. Not just behavioral constraints generally understood, but behavioral assumptions relating to the shape and content of surveillance itself. In addition, surveillance normativity shapes the assumptions about appropriate responses to surveillance by the population monitored as well as by the monitors.

--Thus, the focus in this respect is on the nature, character and scope of appropriate surveillance, and the relationship of the community to monitoring. This implicates what in American jurisprudence is known as “privacy,” “whistle blowing” and “corruption”.

-- The focus is also on the extent of an obligation to be open (transparency) or to affirmatively seek information (monitor) as inherent in the assumptions about the relationship of institutions to their stakeholders (from shareholders, employees, directors, investors, to customers, and others).

--Two movements worth noting in the construction of the boundaries of surveillance normativity, each of which has significantly altered the framework within which surveillance normativity is understood:

(1) Surveillance normativity and organization/communities: Move from a passive to active to obligation to surveillance.

--in the corporate arena this is nicely exemplified by the move from Graham v. Allis Chalmers to In re Caremark as the basis for the legal regulation of surveillance under Delaware corporate law.

--in the criminal arena it is marked from the progressively more intrusive calculus of federal Attorney General Guidelines on prosecution of corporations.

(2) Surveillance normativity and individuals: Rise of a social “duty of loyalty” at every level of the social order (acting for the benefit of the organization rather than for personal benefit) and the consequential focus on “corruption.”

--in the public lending arena this is marked by a move to impose systems of surveillance for government officials.


IV. Surveillance as Informatics: Building Blocks of Power/Knowledge

It is in its aspect as the cluster of behaviors we commonly refer to as “informatics” that most people understand surveillance.

Informatics involves three distinct sets of actions;

(1) data identification (raw information)

(2) the practice of data collection (structure and properties of information gathering—knowledge production)

(3) data uses (drawing conclusions from information—judgment function).

Its principle variables are inscribed in:

(A) data itself (raw information)

(B) systems of processing data collections into information useful to someone

(C) systems of evaluating information

(D) systems of disseminating or communicating information after evaluation.

--Thus, as informatics, surveillance presents a host of variables grounded in data, on the one hand, and systems, on the other.

--But informatics is not concerned with issues either of (1) to whom is information delivered (beyond the entity producing the information) or (2) by whom is it used.

Data issues (recognition):

--The principle variable involves the constitution of data.

--What is raw information, what is judgment or conclusion?

--The example of race: is it raw data or is it a judgment?

--The example of scientific “fact”: Collecting data on planets—is data on Pluto to be collected?

--The constitution of data thus is directly influenced by the normative framework within which data is itself constructed. Even the most basic data can be contested to some extent or reflects the contextual basis in which it s “seen” or understood to constitute “raw data.”

Collection issues (knowledge production): Here the principal focus is on capacity and parameter issues.

--Scope: what sort of data is to be collected

--Focus of gaze (within scope of collection): what sort of data collected is to be emphasized.

--Technology: how can the information be obtained.

--Putting data together: uses of data affect the calculus of capacity.

--It reflects the character of the information to be privileged. That determination affects the way in which monitor and monitored approach a valuation of appropriate behavior.

Uses Issues (judgment):

--The conversion of data into information.

--Conversion suggests two way relationship between data, its aggregate construction and the purposes/principles to be furthered by the surveillance exercise.

-- Grounded in issues of sufficiency, each of which affects capacity in different ways:

--Verification; confirmation, corroboration, confirmation of a condition, effort, or authenticity of assertions.

--Management; assessment, basis for making decisions touching on the organization, staffing and internal operation of the entity.

--Exposure; disclosure, transmission, dissemination, privileging of particular facts going to issues of fundamental importance to the operation or management of the entity

--Confession; affirmation, acknowledgement of a judgment, condition, or action.

--System issues:

--Objective element: Is there enough data, generating quantity.

--Relational element:

--Relationship of information put together from data generated related to the judgment to be made.

--Connection to principles/purposes to be furthered

--Legitimacy of methodology (connected to surveillance normativity constraints)

V. Surveillance as Control

Tied to the judgment aspect of knowledge production.

This is surveillance in its aspect as “power applied” to control. It invokes a distribution element as well.

The control aspect of surveillance can be divided into four (4) substantive elements:

--(1) Who may determine what information must be produced and what judgment may be made from the information thus produced?

--(2) Who must produce information?

--(3) Who may make use of the information (who is the beneficiary of the information—direct and indirect) ?

--(4) How can it be used—the heart of the regulatory aspect of this set of surveillance components?

Focus here is on the institutionalized systems (a) through which data is produced and bundled as judgments (conclusions), and (b) used to verify, manage, expose, or confess. The control element thus centers on the system aspects of surveillance. This systems aspect forms the most visible basis of the regulatory function of surveillance. Systems reify control based on the elements of information gathered and judgments privileged on the basis of the values framework through which surveillance is elaborated. Content, technique, and discipline conflate within and find expression through surveillance framework provides the means for enforcing the regulatory ends of surveillance.

This control element has both an upstream and a downstream vector:

--Upstream Element: internal control, self control

--The object is internal discipline.

--The beneficiaries of surveillance:

A. Internal stakeholders (agents). Example: Wal-Mart chain of command, from supervisors to the board of directors.

B. External Stakeholders (principals). Example: Wal-Mart shareholders.

-- The origins of the techniques and normative basis may developed at one or more levels:

A. Internally by the surveillance entity. Example: Wal-Mart

B. By the community of entities for which surveillance is meant to aid in internal governance and to discipline the community of entities into privileging a uniform set of norms reflected in the objects of surveillance and the data sets monitored. Example: Retail Trade Association of which Wal-Mart is a member.

C. By a superior public regulatory community. Example: imposition under the Sarbanes-Oxley Act of a statutory framework for surveillance on all entities subject to federal securities laws.

D. By private regulatory organizations with influence over an important segment of the surveillance entity’s business. Example: Forest Certification NGO program for use of paper products at Wal-Mart.

--The techniques, scope, focus and normative framework of surveillance will differ depending on the origins and control of the surveillance framework.

--Surveillance becomes complicated when an entity internalizes multiple, partial scope, surveillance frameworks.

--Downstream element: external, control by/through others

--Object is external discipline.

--The beneficiaries of surveillance:

A. Political communities: home state, host state, local communities, supra national communities. Control systems originate in statute.

B. Outside stakeholders: labor, lenders, trade creditors. Control systems originate in contract.

C. Affinity groups: civil society, NGOs. Control systems grounded in ad hoc arrangements for mutual benefit sometimes memorialized in contract.

-- The origins of the techniques and normative basis may develope at one or more levels: same as upstream disclosure.

--Generation versus transmission

--Both upstream and downstream surveillance systems distinguish between generation and transmission of information, either as “raw data” or “judgment.”

A. Not all data/information generated is transmitted. Examples: information generated for internal management may not all be made available to government regulators.

B. Not all data/information transmitted is redelivered in the same form or with the same content to different sets of recipients. Example: Internal financial accounting systems may differ from financial reporting under Reg. S-X (SEC).

C. Not all data/information transmitted is generated from the same source. Example: Data generators may be different from data bundlers (analysts).

--Both upstream and downstream surveillance systems distinguish between passive and active elements. Related to who is requiring information (outsiders with coercive power versus insiders; internally between insiders seeking information for the attainment of management goals versus production goals).

VI. Surveillance as Governance

--In this aspect, surveillance is felt as gouvernmentalité, a linking of governance with the techniques of its power. (Foucault, Michel 1997: Security, Territory, and Population, in: Michel Foucault, Ethics: Subjectivity and Truth, ed. by Paul Rabinow, New York: The New Press, p. 67-71).

--Implicates the consequences of adjustment of elements of the normative, informatics, and control aspects of surveillance;

--Serves as a bridge between surveillance as technique and the systemic replication of private desire in collective action.

--In this aspect one focuses on the complicity/consent of the actors in systems of surveillance used to reinforce or articulate normative systems of power and behavior.

--“Governing people, in the broad meaning of the word, governing people is not a way to force people to do what the governor wants; it is always a versatile equilibrium, with complementarity and conflicts between techniques which assure coercion and processes through which the self is constructed or modified by himself” (Foucault, Michel 1993: About the Beginning of the Hermeneutics of the Self (Transcription of two lectures in Darthmouth on Nov. 17 and 24, 1980), ed. by Mark Blasius, in: Political Theory, Vol. 21, No. 2, May, 1993, pp. 198-227 at 204).

--Thomas Lemke, Foucault, Governmentality and Critique, Paper presented at the Rethinking Marxism Conference, University of Amherst (MA), September 21-24, 2000, at 9-10, notes that “the analysis of governmentality does not only take into account “breaks” or “gaps” between program and technology but also inside each of them – viewing them not as signs of their failure but as the very condition of their existence.” Thus, “government refers to a continuum, which extends from political government right through to forms of self-regulation, namely "technologies of the self".” Id., at 12.

--Govermentality can thus also be understood in its Aristotelian sense, as a necessary self replication of normative understanding and techniques from out of the individual to the collective. (Aristotle, Politics).

--In this aspect the full array of issues commonly understood as democratic accountability are also bundled.

--Understood as norms and as procedure

--Touches on issues:

(a) The identity of the person or institution with authpority to compel surveillance.

(b) The object of surveillance (individual or institutional).

(c ) The complications of self surveillance.

(d) The connection between monitor and monitored

(e) Beneficiaries along the stream of conveyance of data/information from construction to broadcast.

(f) Political power and democratic accountability: private recourse to normative framework of public accountability.

--Ultimately surveillance, here in its normative/regulatory guise confronts the issues:

(a) Is there an ideal from which deviations can be judged? and

(b) At what point is deviation severe enough to merit discipline and correction?

--The answer increasingly appears to be – no. . . . and yes!

(a) There is a diminishing likelihood that a single ideal will serve as the basis for constructing the fact set from which deviation ought to be judged.

(b) However, as governance systems fracture and governance power seeps from political to ethnic, economic, religious and affective communities, which together form multi-layered and networked communities, it is likely that the techniques of surveillance will serve as the connection between individual self constitution and the constitution of governance systems in its substantive and disciplinary aspects.

VII. Putting it all together.

--Surveillance, understood as an aggregation of techniques, values, judgments and relationships, thus acquires a complexity belied by the traditional single minded, state centered, democratic value enhancing “model” of surveillance as mere technique, that is as “mere means”.

--But the unbundling of surveillance as these clusters of actions and judgments among multiple overlapping and sometimes conflicting communities provides evidence of the emergence not only of techniques of governance, but of the complicity of self governance and the proliferation of forms of governance beyond both the state and political frameworks previously privileged.

--Governance surveillance thus constitutes both a reproduction of individual governance (Aristotle, Politics) and a technique of power.

--Governance surveillance is thus now structured within both public (law) and private (contract) relationships. The objects of these systems are both states and non-state actors, each of which may be compelled or encouraged for a variety of actors and stakeholders.

--As a consequence, surveillance has become ubiquitous, a mirror on self and social organization, a reflection of the techniques and self constitution of power, and an expression of normative values which bound those communities thus constituted. Surveillance has morphed from an incident of governance to the basis of governance itself. It is both government (apparatus) and Governmentality (its self conception and complicity, the prisoner becomes his own keeper).

VIII. Application.

--Examples; analysis of surveillance systemics as outlined above:

--Municipal and formal surveillance (Public—downstream—law based—coerced):

--Sarbanes Oxley and Corporate Regulation

--Corporate best practices guides

--Transnational and informal (Private—downstream—contract based—coerced/incentive):

--supplier chain regulation of conditions of operation

--product certification programs

--Transnational and formal (Public/private—upstream—contract based –incentive/coerced):

--World Bank: anti corruption elements of loans and technical assistance programs.

--International Monetary Fund: surveillance programs, conditional lending programs.

On Collaboration as the Essence of Student Run Law Journals

The following remarks were presented at the celebration of the 25th anniversary of the PennState International Law Review, held on April 14, 2007.

Remarks on the Closing of the Formal Program of Celebration:
On Collaboration as the Essence of Student Run Law Journals

Thank you, Jason, for that introduction.

I am greatly honored to have been asked to close the formal portion of the celebration of this truly wonderful milestone. That honor is deep, for, as we have been reminded this evening, it is no small thing to be able to celebrate 25 years of a student run legal academic journal in a field barely acknowledged by your teachers at the time of its founding.

I want to close on a soft note—I wish to spend a few minutes in celebration of what I believe is the essential character of any successful student run legal academic journal, a character that serves as both essence and justification for the Penn State International Law Review in particular and its student led academic publishing organizations in general—I will speak to collaboration.

The word itself derives from the Late Latin collaborare, to labor together. In its modern form it describes a condition of working jointly with others or together especially in an intellectual endeavor. There has been no better space for the cultivation of collaboration in this, its most positive aspect, than in the offices and on the pages of student run legal academic journals—and the Penn State International Law Review in particular. Students work with each other to produce a discrete and specific product several times a year. This is the way they learn a lot of things, and importantly among them students learn how to employ positively, proactively, the dynamics of institutional operation so critical to success as lawyers. As the embodiment of the active principle in this endeavor, students either work successfully to produce an issue or it does not get published.

But students do not operate this journal in isolation. Students at the International Law Review have cultivated a years long tradition of collaboration with faculty. Faculty members often suggest ideas, approaches and specific contributions to the journal. They might, like Professor Del Duca, devote the substance of a lifetime to the elaboration of an idea in collaboration with others. This is teaching by example and advice. This is the essence of active collaboration between mentor and apprentice in a context of mutual respect. There can be no better form of imparting knowledge. And this form of collaboration serves the faculty well. It serves as a substantial discipline to a profession, like ours, which is sometimes all too tempted by notions of traditionalism, parochialism, incompetence, venality and fear of the new and more talented, to use a power to choose articles for publication as a basis for preserving the borders of “fields of law” or preventing the competition of ideas to overwhelm their own. Students arrive fresh to these campaigns, and are better able to resist their logic. For every story of bad choices by student editors in the selection of publication, there is a story of students facilitating the expression of fresh ideas in print—from critical race studies to transnational law. Lastly, students must also learn collaborate with the institution to which they contribute by their efforts. Students have been sensitive to institutional needs and have a long tradition of working well with those charged with the stewardship of their schools. Indeed, this banquet is a testament to that sort of collaboration. Thus, I can think of no better word to define this institution.

But “to collaborate” has a darker meaning as well. Lately, it has come to mean a coerced assistance, or a willing assistance, of a superior force, sometimes an enemy, for personal benefit or for the benefit of those superior or coercive forces. In this form, collaboration degenerates into servitude. It implies the giving up of independence, initiative, and the self, to serve another. It is the essence of the passive form of existence that strikes at the heart of what we, in this country at least, have come to understand as an essential component for the development of the full potential of individuals and organizations. In a world, even in our small part of that world here, which appears more and more relentlessly hungry for the imposition of vertical relationships—for the imposition of systems of subordination based on assertions of a self serving power grounded in distinctions of status without substance, collaboration becomes an inversion, a perversion of itself. A journal grounded in status distinctions, for their own sake, a journal in which students become little more than the passive vehicle for the compliance with orders might well lose its soul. It could become something altogether different.

Nothing marks this institution more than collaboration understood in its positive sense. I wish you 25 years more of a similar successful and productive collaboration.

Rockwell International v. U.S. ex rel. Stone, The False Claims Act And Anti-Corruption Campaigns in the U.S.

One of the more useful vehicles in the battle against corruption in the United States involving the expenditure of public funds has been the False Claims Act, 31 U.S.C. § 3730. One of the provisions of the False Claims Act permits whistle blowers the right to collect as a reward a portion of the amounts recovered under the Act (its qui tam provisions). Section 3730(b)(1) of the False Claims Act permits an action to be brought by an individual in the government's name, but the jurisdiction of the courts over the claim is lost if the action is “based upon the public disclosure of allegations or transactions . . . , unless the action is brought by the Attorney General or the person bringing the information,” §3730(e)(4)(A). To satisfy the statutory standard as an "original source", the claimant must demonstrate that she had "direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action . . . based on the information.” §3730(e)(4)(B).

In Rockwell International v. United States ex rel Stone, 05-1272, decided March 27, 2007, the U.S. Supreme Court interpreted the reward provision of the False Claims Act narrowly to deny recovery of a reward for a claimant whose initial suit eventually led to the recovery of a portion of the judgment to be recovered by the claimant and the U.S. government against Rockwell International (now part of Boeing). Greg Stohr, Whistleblower Suits Limited By Court in Boeing Case (Update 5), Bloomberg.com, March 28, 2007.

The whistle blower, a Mr. Stone, had

"worked at Rocky Flats until 1986, when he was laid off. While there, he questioned the company's plan for disposing of toxic sludge by mixing into cement.

Soon after his departure, Stone began giving information to the Federal Bureau of Investigation and the Environmental Protection Agency about various environmental, safety and health problems at the plant. The government's investigation culminated in 1992, when Rockwell pleaded guilty to 10 federal environmental violations.

In the civil case, a jury concluded that Rockwell had defrauded the government from April 1987 to September 1988, after Stone had left the company. The Denver-based 10th U.S. Circuit upheld the award." Stohr, supra.

In an exceedingly formalist opinion, in which the majority declined to give much weight to the substance of the issues and policies raised, the majority read the relevant provisions of the False Claims Act against Stone's claims. The court first determined that because the original source requirement is jurisdictional, the court was required to satisfy itself that the standard had been met whether or not the defendant raised the issue (Slip op. at 8-11). It then determined that Stone did not have "direct and independent knowledge of the information" as required by the statute (Slip op. at 12-18). Justice Scalia concluded that because Stone had correctly predicted the violation, but did not "know" that the outcome predicted would occur, and because though Stone had predicted the result but had incorrectly hypothesized the cause (Stone thought the piping system was defective but the problem he predicted was caused by worker action after he left his employment with Rockwell) he did not possess "direct and independent knowledge" within the meaning of the False Claims Act (Slip op. at 17-18).

Stone’s knowledge falls short. The only false claims ultimately found by the jury (and hence the only ones to which our jurisdictional inquiry is pertinent to the outcome) involved false statements with respect to environmental, safety, and health compliance over a one-and-a- half-year period between April 1, 1987, and September 30, 1988. As described by Stone and the Government in the final pretrial order, the only pertinent problem with respect to this period of time for which Stone claimed to have direct and independent knowledge was insolid pondcrete. Because Stone was no longer employed by Rockwell at the time, he did not know that the pondcrete was insolid; he did not know that pondcrete storage was even subject to RCRA; he did not know that Rockwell would fail to remedy the defect; he did not know that the insolid pondcrete leaked while being stored onsite; and, of course, he did not know that Rockwell made false statements to the Government regarding pondcrete storage. (Slip op. at 17).

The majority was unsympathetic to functional argument made in light of the policy underlying the False Claims Act. Justice Scalia, for example, rejected the Bush Administration's policy based arguments.

The Government objects that this approach risks driving a wedge between the Government and relators. It worries that future relators might decline to “acquiesc[e]” in the Government’s tactical decision to narrow the claims in a case if that would eliminate jurisdiction with respect to the relator. Brief for United States 44. Even if this policy concern were valid, it would not induce us to determine jurisdiction on the basis of whether the relator is an original source of information underlying allegations that he no longer makes. (Slip op., at 16-17).

In addition, Justice Scalia, for the majority, rejected the idea that the False Claims Act applied to any claim that actually resulted in liability merely because someone was an original source with respect to some other (even related) information Slip op., 18). "Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that §3730(e)(4) does not permit such claim smuggling. " (id.). While the government's intervention saved the action against Rockwell, it could provide no independent basis for recovery by Stone. (Slip op. at 19-20).

From a constitutional law perspective, there is little to complain about in the majority's reading of the statute. Putting aside the former law professor's obvious delight in extracting a certain logic and meaning from the words of the statute that Justice Scalia indulged, the opinion raises no great jurisprudential issue. It does suggest, though, a continuing reluctance, on the part of the Court, to read into statute a power of private monitoring and enforcement of law. The Court continues to act as a protector of the borders between public activity, presumptively a governmental function, and private activity, in which individuals are free to act. The recruitment of private individuals to monitor and enforce public law for or on behalf of or in place of the state has been increasingly indulged by a government strapped for funds and eager to extend its enforcement. The Supreme Court has tended to resist a wholesale transfer of enforcement rights to individuals, from private attorney general provisions, to the affirmation of implied private rights of action under a variety of federal statutes. Perhaps the problem is one of democratic accountability (Cf. N.Y. v. U.S., 488 U.S. 1041 (1992)). Private attorney generals may serve the state in its efforts to enforce the law, but they are not accountable directly to the electorate and tend to serve their own private interests in choosing the timing and focus of their law enforcement efforts rather than those of the state. On the other hand, there does not yet appear to be a constitutional impediment to this devolution of executive power in individuals by creating "quasi-public" causes of action or rights to enforce. And indeed, such devolutions of enforcement power has become fairly commonplace, culminating recently in the private enforcement provisions well marbled throughout the Sarbanes Oxley Act. It was then no surprise that the Bush administration sided with Stone and against the interests of the business community in this litigation. "The Bush administration sided with Stone, arguing that it was in the government's interest to encourage whistle-blowers, even though the government keeps more money now that Stone has lost." Mark Sherman, Court Tightens Whistle Blower Rules, AP, March 27, 2007.

But these issues never invaded the interpretive tour de force of the majority opinion. Lamentably, it did not find its way into Justice Steven's dissent either. Justice Steven, joined in dissent only by Justice Ginsberg, rejected the majority's narrow reading of the qui tam provisions. Justice Stevens argues that

the majority’s approach suggests that the relator must have knowledge of actual facts supporting the theory ultimately proven at trial—in other words, knowledge of the information underlying the prevailing claims. . . . Such a view is not supported by the statute, which requires only that the relator have “direct and independent knowledge” of the information on which the publicly disclosed allegations are based and that the relator provide such information to the Government in a timely manner. (Slip op., Stevens, J., dissenting, at 2).

Justice Stevens suggested, however, only that Stone had not been given the chance to establish that he had provided his direct and independent knowledge of the violation before filing his own suit. (Id., Slip op., at 3). "Because there has been no finding as to whether Stone was an original source as to those public disclosures, I would vacate and remand for a determination whether Stone was in fact an original source of the allegations publicly disclosed by the media in 1988 and 1989." (Id., at 3-4).

As a consequence, Boeing may wind up liable on the judgment against its predecessor, but Stone, whose allegations and efforts prompted the investigation leading to the recovery, will not. Stohr, supra.

It is lamentable that Justice Stevens did little more to discuss both the underlying policy reasons favoring his more functional reading of the statute nor the difficulties with the strictly formalist approach adopted by the majority. It seems clear that Congress had not meant to create traps for the unwary in creating a reward system for exposing corruption. The greater the technical difficulties a court reads into the provision the less likely that any person would risk job, reputation, time and energy to attempts to expose possible corruption among much more financially secure, well connected and established economic entities. The majority's reading, thus, whole plausible, as a formal matter, effectively raises sufficient large transaction costs to private exposure of corruption as to make such action unlikely. That result appears at odds with the intent of Congress in privatizing anti-corruption efforts. After Rockwell, it is likely that the individual will be cut out of the monitoring process, leaving it to the government (funded by scarce taxpayer dollars) and the civil society community or other collectives organized for such purposes, to seek to monitor and enforce under the False Claims Act system. "The ruling likely will reduce 'fishing expeditions' among relators, as whistle blowers are known under the False Claims Act, according to Peter Hutt, a government contracts lawyer at Miller & Chevalier in Washington. . . Hutt said the ruling might affect pending cases claiming fraud by companies involved in the reconstruction of Iraq." Stohr, supra.

National whistleblower advocacy organizations were dismayed by the result. Stephen M. Kohn, president of the National Whistleblower Center posted the following statement on the NWC website:

The Supreme Court overturned the jury verdict, and permitted the contractor to pocket the fruit of its fraud. Rockwell stole from the taxpayers when it failed to adhere to the terms of a binding federal contract. The Supreme Court ruling will result in whistleblowers being cheated out of rewards by unscrupulous contractors. This is a disastrous ruling for the American public. By shutting the door on whistleblowers, the Supreme Court has cut the legs off of America’s most effective anti-fraud law. (National Whistleblower Center, Supreme Court Again Undermines Whistleblower Rights, March 27, 2007, Statement of Stephen M. Kohn)

The business community had an understandably different reaction. The decision makes it less likely that it will have to fear tattling by its employees and can get back to the business of developing relationships with its governmental handlers.

The only fly in the ointment, perhaps, for the business community, is that Rockwell International had nothing to say about the power of civil society elements, who may not need the financial incentive, to bring actions. This hole is much more important than it might seem. Justice Scalia determination that the federal courts do not lose jurisdiction when a case, originally brought by an individual on the basis of one set of allegations, is thereafter maintained by subsequent governmental intervention (Slip op., at 17-18) provides civil society elements fighting corruption a large opening through which they might seek individuals willing to commence False Claims actions with the hopes of triggering the type of media attention that invariably draws government reaction (and hopefully a decision to join the action--whatever the posture of the litigation thereafter).

For the whistle blowing community and elements of civil society advocating private enforcement of the corruption aspects of public contracts, the case presents a difficult choice. Either civil society will have to find a way to provide additional incentives to potential whistle blowers, or they will have to engage in the long, complex and uncertain process of seeking a revision of the False Claims Act. Perhaps during the two years before the next general election in 2008, something along those lines migth be possible. The Bush administration might be amenable to some sort of change and the Democratically controlled Congress might find some sort of "fix" desirable before 2008. But the results might not please anyone. Still, the political solution appears to be the best course for the NGO community at this point, if only as a vehicle for generating public interest in the issues and educating the political community before the next general elections.

But there is some possible bad news potentially on the horizon, as well. The Supreme Court did not consider the constitutionality of whistle blowing provisions in statutes like the False Claims Act. Cf. Garcetti v. Ceballos, No. 04-473 (May 30, 2006) (no first amendment protection for employee speech for statements made pursuant to their official duties). But opinions like Rockwell may embolden the business community to press that line of attack in other cases. The likely target might not be the False Claims Act but the Whistle Blower provisions of the Sarbanes Oxley Act. Among the likely candidates are the whistle blower cases which are increasingly asserted against Wal-Mart. See Michael Barbaro, Wal-Mart Hires Justice Scalia's Son for Whistle-Blower Suits, San Fransisco Chronicle, July 10, 2005. Two of those actions were grounded in the whistle blowing provisions of the Sarbanes-Oxley Act Section 806 ("Scalia, who was solicitor of the Department of Labor from 2002 to 2003, is defending Wal-Mart against two of the lawsuits, those filed by Bowen and Armstrong under the Sarbanes-Oxley Act, which expanded whistle-blower protections for employees of public companies. " Barbaro). While the Sarbanes Oxley provisions are in some respects substantially different than the provisions at issue in Rockwell International, it may also provide a vehicle for testing the power of Congress to impose such rules on business. At least one of those claims, those of Jared Bowen, were still being reviewed by the Department of Labor as of December 2006. See Stephen Taub, Wal-Mart Whistle Blower Drops Suit, CFO.com, Dec. 1, 2006. Other courts have alfready indicated a reluctance to read their mandate broadly to enforce Department of Labor recommendations under the Sarbanesd-Oxley Whistle blower provisions. See Stephen Taub, Judge Won't Enforce Whistle Blowing Ruling, CFO.com, Oct. 6, 2006 ("Whistle-blower David Welch, the former chief financial officer of Cardinal Bankshares, had filed a complaint in the district court in Roanoke, Virginia, to force the bank to comply with an earlier order of reinstatement. However, Judge Glen Conrad said he did not have the authority to enforce the ruling by the DoL's administrative review board since it was a preliminary action, according to the wire service.").

On the scale of great cases, Rockwell International would hardly rate. Reduced to its essence, it is little more than another example of the Supreme Court applying a plausible, if somewhat tortured reading of the language of a statute against its authors. While such an interpretive stance is common in interpreting contract provisions at common law, it is hardly always appropriate in constitutional interpretation. It is least appropriate when language is read, again plausibly, in a way that clearly is inconsistent with the intent of the statute read as a whole. The consequences "on the ground", in this case, will be much greater than the effect on constitutional jurisprudence. At a time when corruption occupies an increasingly important place in national and international policy, it is a shame that the Court insisted on making anti-corruption efforts harder rather than easier.

Principles of Transnational Law: The Foundations of an Emerging Field

There has been an increasing use of the term "transnational law" by lawyers and students of international relations (economic regulation, globalization, human rights, etc.). The term has as many meaning as it has people willing to use the term. From that conversation, I believe, it is possible to discern the basic structure of an emerging field of law. The purpose of this essay is to suggest examine the basics of that structure, which I have organized in question and answer format. The themes described here are being developed for a new American course book I am preparing, tentatively entitled: Transnational Law and Legal Problems: An Introduction to the Field.

Does transnational law represent a new and independent legal order?

    Yes:   Transnational Law can be defined as the law of non-state governance systems.  The definition suggests both commonalities and differences between “transnational law” as a distinct legal field and conventional legal fields derived from the legal orders of nation-states.  Like domestic law fields, transnational law includes both a constitutional element (a basic set of presumptive and supreme organizing principles and rules), a substantive element (implementing the constituted system), and a process element (rules for the development of substantive rules and dispute resolution.  Unlike domestic legal orders, transnational law covers a wide number of distinct governance communities existing simultaneously and organized beyond the rule imposing power of states.   Moreover, these governance communities are not necessarily organized in the same way as states—with a population and a defined geographic territory and an institutional framework exercising plenary authority.  Rather, transnational law communities may be understood as functionally differentiated  communities organized for mutual benefit for specific objectives.  They can include groups, institutions, abnd networks.  Transnational law can thus be understood as the study of the system of principles and rules applied in lieu of or in addition to the domestically germane law of a state, or of the community of states, to the relationships among persons and institutions—public and private, natural and legal. 

What persons or entities control the creation and regulation of Transnational Law?

    No one person or entity and no single institution controls transnational lawmaking.  Transnational law is not dependant on a single lawgiver or regulator. Transnational law is thus the study of law that does not belong to or can be controlled by any single system of domestic or international law, as both have been traditionally constituted.  Diffusion of regulatory authority is one key to understanding the structure of Transnational Lawmaking.  Another key is functional differentiation of authority among a wide variety of political and nonpolitical communities.  The system of hierarchical and vertically integrated regulatory systems grounded on the state as the pinnacle of law making and on the community of states as the disciplinary mechanism for relations among states has been augmented by regulatory systems covering matters beyond the reach of any single state.  Transnational Law starts from the premise that law and lawmaking are no longer the exclusive preserve of political states, or of the community of states.  Transnational Law posits that political communities no longer hold a monopoly on law making—that law systems are no longer grounded on an identity between law (or regulatory authority) and the state (and the community of states).   Autonomous supra-national actors, private global actors, and communities grouped by function or affinity can, to some extent, produce regulatory systems understood to be transnational.

Is Transnational Law a single or unitary system of laws, rules and principles?

No.   Transnational Law is not a unitary system of laws and rules analogous to the legal structure of a state, or the treaty and custom structure of the law of nations.  Transnational law is an amalgam of rule systems, of hard and soft law, that are limited in scope, but effective within the scope of the authority of the rulemaking community.  The key characteristic of transnational sub-systems is their functional limits.  Like classical federal systems, all transnational sub-systems are based on grants of limited and specific authority.  These limits are defined sometimes by function (commercial law, investment, human rights) and sometimes by other factors (shared belief, citizenship in particular political communities and the like).  The aggregation of sub-systems together constitutes the field of Transnational Law. However, Transnational Law as a whole is grounded in certain principles and rules that form the basic focus of any study of this field. The foundational premise rests on acceptance of the existence—independent of the control or authority of any one state or of the community of states—of a system of non-national, supra-national or multi-national principles and rules applicable, in accordance with its own terms and logic, to public and private actors, natural and juridical persons.

What are the principle features of the study of Transnational Law?

There are four characteristics that form the basis of the study of the grounding rules and principles of transnational law and law-making:  (1) scope of authority, (2) institutional autonomy, (3) regulatory authority, and (4) effectiveness of power to settle disputes.  These have a constitutional element—the organizing principles that give the regulatory community form and set its organizational boundaries.  These include the constitution of a government apparatus and the rules for the operation of the governance power vested in this organization.  They also have substantive and process elements.  These include the rules, laws, and other norms that are produced or administered by the community and the process rules through which they are applied, enforced, constructed and interpreted.

What are some of  the key elements of Transnational Law?

    All transnational law systems share certain key characteristics.  Transnational Law is not bound to the jurisdiction of any state.  It is based on systems of partial and contingent regulatory authority; each regulatory system is dependent on others to some extent and yet are complete within the scope of their authority.  Transnational Law systems are both horizontally and vertically integrated to some extent with each other and with domestic and international systems. 

Is Transnational Law an established field generally accepted as such within the academic and legal community?

    Not yet.  Transnational Law is a new field.  Philip Jessup first proposed the use of the term in the 1950s.  He hoped the term could serve as a focus of what appeared to him to be a new set of problems of law that could not be easily subsumed within the field of international law as then understood.  But in doing so he sought to expand the breadth of the traditional boundaries and understanding of international law beyond that field’s ability to contain it without becoming something else.  Still, Jessup’s focus was on a set of problems that defied containment within either international or domestic law fields as then understood. 

Since the 1950s, the use of the term transnational law has become increasingly popular, though any consensus on its meaning remains elusive within the global academic community.  For some leading academic writers, transnational law is best characterized as a series of special problems within the broader field of international law.   They emphasize the transborder elements of the problems conceptualized as containing a “transnational element” and suggest that this places those problems within the realm of law other than domestic, and thus, international, law.  But international law focuses on the law among states.  Though it has broadened its scope in recent years, it is still tied to a series of basic assumptions about the location of regulatory power, the relationship of states to individuals and to each other, and the construction of law in general that makes it awkward, at best, to include within its scope emerging private law systems, self regulatory frameworks of governance, direct effects of international law on individuals and entities, and the construction, at the transnational level, of increasingly autonomous entities with regulatory and dispute resolution power.  Subsuming the study of these systems within traditional international law would overwhelm its traditional focus; it would become something it was not.  

Other leading academics argue that the set of problems that Jessup conceptualized as transnational can be characterized as a set of special problems of comparative law.  These academics emphasize the strong horizontal focus of transnational law “problems” and “effects.”  They suggest that transnational law is a specialized form of the sort of efforts at harmonization that has been at the core of the comparative law project since its inception in the early years of the 20th century.   But comparative law focuses on the law of states—it looks to convergence, harmonization, resistance, fracture, communication, transposition, knowledge and understanding.  Thus, comparative law’s keen focus on the national level of law making makes comparative law as limiting a field within which to study the problems of transnational law as under the norm structures of traditional international law.  The comparative law focus necessarily obscures the international elements of transnational regulation, and regulatory power sharing among national, sub national, and international public and private actors, all operating within a framework not easily contained within the traditional projects of the field of comparative law.  To subsume transnational law “elements” within comparative law is to transform comparative law beyond recognition.  That some leading academics have proposed this very transformation of comparative law evidences the differences between them rather than the character of transnational law as somehow encompassed within comparative law.

Is Transnational Law concerned primarily with issues of conflicts of laws and choice of law?

    No.   Like all fields of law, choice of law is an integral part of the study of transnational law.  Like other fields, the relationships between it and other fields, the borderlands of fields, is a critically important element in understanding the character and nature of transnational law.  Just as the boundaries between contract, property, and tort have assumed an increasingly important place within the development of those fields, so the borderlands between transnational, comparative and international law will serve as important a part of the study of each of these fields.  In addition, transnational law includes within it a number of substantive areas of law:  commercial law, the law of dispute resolution, the law of political sovereignty within and outside of political territories controlled by any government, and portions of what is understood as human rights law.  Transnational law, like conflicts of law within multi-jurisdictional states, is also significantly concerned with jurisdiction.  Transnational Law is focused on agreement—for any complex system of multiple regulatory regimes to be effective, there must be agreement among the stakeholders with respect to what binds them in any situation, whether it be, for example, a commercial transaction, a human rights issue, dispute resolution procedures, or some other matter beyond the sole competence of domestic law. This is not conflict (or choice) of law as traditionally understood, but perhaps something sui generis: the development of rules of legal hierarchy and applicability of law where regulatory power is not merely vertically arranged, but also horizontally divided by function, community and territory simultaneously.  A more complicated and multiple jurisdictional framework requires a different sort of approach to its understanding and to the resolution of issues that arise in its application to individuals, entities states and organizations. 

Fidel Castro, Hugo Chavez, and the Response to the U.S. Brazil Deal on Ethanol Production

Many eyes in the United States are (finally) turned to South America as President Bush travels to visit his remaining friends in the region in his great anti-Socialist campaign. An incidental benefit of this peregrination is the move to (again finally) take Brazil up on its suggestion to exploit the great potential market for ethanol, by coordinating the productive capacities of the United States and Brazil and inducing consuming states to switch to ethanol. “President Bush, hoping to reduce demand for oil in the Western Hemisphere, is preparing to finish an agreement with Brazil next week to promote the production and use of ethanol throughout Latin America and the Caribbean, according to administration officials.” Edmund L. Andrews and Larry Rohter, U.S. and Brazil Seek to Promote Ethanol in the West, New York Times, March 2, 2007,.

In the process, as I have suggested in another essay. The Brazilians might obtain long sought for trade terms with the United States, and the Americans will get Brazilian ethanol technology (they are substantially more advanced than the Americans, who satiated on petroleum and ethanol subsidies have never had the necessary incentives to innovate sufficiently—until now). “The agreement could lead to substantial growth in the ethanol industry in Brazil as technology and manufacturing equipment developed there is exported to other countries in the region.” Andrews and Rohter, supra.

And indeed, American agricultural interests continue to whine about the possibilities of this coordination with the Brazilians. “But the agreement has already begun to prompt complaints from politicians from corn-producing regions of the United States. They fear that the plan would lead to an increase in imports of cheap foreign ethanol and undercut American producers.” Andrews and Rohter, supra. This whining is sufficiently ridiculous to merit mention. The loss of precious government subsidies will be more than made up by expanded markets and by the cheap transfer of technological innovation otherwise less available to American producers. “Senior Brazilian government officials said the most important effect of a collaboration with the United States would be in promoting a broader international market for Brazilian ethanol technology.” Andrews and Rohter, supra.

The irony, of course, is that traditional roles have been reversed. It is the Americans now who seek foreign technological improvements and the Brazilians supplying tem. It is the Americans who are attempting to protect inefficient local industry in the face of globally more efficient competition.

Brazilian business groups see commercial opportunities in supplying advanced equipment to other countries setting up their own ethanol distilleries. “We want ethanol to become a global commodity, and for that to happen, Brazil can’t be the only producer,” said José Luiz Oliverio, vice president for operations at Dedini Industries, Brazil’s leading manufacturer of equipment for sugar cane and ethanol mills. “We’ve been growing and processing sugar for 500 years, and we are confident of our ability to maintain our leadership in this sector.” Id.

None of this is fatal to American producers. American and Brazilian producers can more effectively begin to develop the sort of joint ventures for world wide exploitation that have characterized global production in other sectors.

This is not to suggest that the future of ethanol, either as a fuel alternative in the United States, or as a viable source of income in either Brazil or the United States, is assured. As noted by Welber Barral, Professor of International Economic Law, Universidade Federal de Santa Caterina (Florianópolis) and member of the firm BCA Consultoria:

Depois de muito ouvir entusiastas e críticos, a conclusão possível é que ainda sabemos pouco quanto à real materialização desse entusiasmo quanto ao etanol. Há dúvidas quanto à verdadeira capacidade de produção e à eficiência na troca da matriz energética. Essas dúvidas decorrem, em grande parte, da enorme complexidade do tema e da impossibilidade de prever todos os impactos – econômicos e ambientais – que as iniciativas pelo etanol poderão implicar, nas próximas décadas. Welber Barral, Febre de etanol, NetMarinha (February 27, 2007).

As Professor Barral notes, there is a long way to go and many uncertainties in the Unitedf States and Brazil, before there can be any long term assurance that the production of ethanol, and the expansion of a market for ethanol in Latin America and the rest fo the developing world will pay the sort of dividends the parties hope for. Still, the initiative, for all its faults, is worth pursuing, if only because positive economic activity tends to contribute to national wealth maximization more effectively than hand wringing and good wishes—and certainly is more apt to lead to some progress than an overabundance of caution, especially when it comes to taking risks in business (economic) ventures.

But American farmers are not the only ones complaining. While the Brazilians are focusing on ethanol to make money (a traditional American concern), the United States is more focused on political gains—the use of ethanol markets to weaken the governments of Hugo Chavez in Venezuela(a more traditional Latin American objective). It should come as no surprise, then, that Fidel Castro has come to the defense of Chavez, and indirectly, the petroleum industry. A recent colloquy, posed as a phone conversation between the leaders of Cuba and Venezuela, suggests the form that this defense will take in the coming years.

Hugo Chávez.- ¿Tú sabes cuántas hectáreas de maíz hacen falta para producir un millón de barriles de etanol?

Fidel Castro.- De etanol, creo que hablaste el otro día de 20 millones de hectáreas, algo de eso (Risas), pero recuérdamelo.

Hugo Chávez.- Veinte millones. No, tú eres el que tiene la mente privilegiada.

Fidel Castro.- Ah, 20 millones.

Bueno, y, desde luego, la idea de poner los alimentos a producir combustible es trágica, es dramática. Nadie tiene seguridad de a dónde van a llegar los precios de los alimentos, cuando la soya se esté convirtiendo en combustible, con la falta que hace en el mundo para producir huevo, para producir leche, para producir carne, y es una tragedia más de las muchas que hay en este momento.

Conversación telefónica del Comandante en Jefe Fidel Castro Ruz, con el Presidente de la República Bolivariana de Venezuela, Hugo Chávez Frías, durante la emisión radial del Programa Aló Presidente No. 269, el 27 de febrero de 2007. (Versiones Taquigráficas - Consejo de Estado) .

The Cuban authorities translated this exchange as follows:

Hugo Chávez.- Do you know how many hectares of corn are needed to produce one million barrels of ethanol?

Fidel Castro.- Ethanol…I believe the other day you spoke of 20 million hectares, something like that (Laughter), but refresh my memory.

Hugo Chávez.-Twenty million. I think you’re the one with the exceptional memory.

Fidel Castro.- Yes, 20 million. And, of course, the idea of using food products to produce fuel is tragic, startling. No one has any certainty about how high food prices are going to get when soy begins to be converted into fuel, when there is such a high demand of it around the world to produce eggs, to produce milk, to produce meat. This is one more tragedy among many today.

Telephone conversation between Commander in Chief Fidel Castro Ruz and President of the Bolivarian Republic of Venezuela Hugo Chávez Frías, on Alo Presidente radio program No. 269, aired on February 27th, 2007, “Year 49 of the Revolution”.

The trade off is obvious for Castro and Chavez: the more land is devoted to the production of renewable energy sources, the less land available for the production of foodstuffs. While this would be no problem in a world in which there was an excess of food, that is not now the case. So the choice is clear for Castro and Chavez—energy saving for the rich states means starvation for the poorer states. Or, the more land devoted to the production of renewable fuel sources, the more additional land will need to be cultivated to continue to feed people. That additional cultivation will add additional pressure to natural habitats throughout the world and pose additional risks to endangered flora and fauna. Thus, the “green” revolution could actually an ecological disaster. And in a sense, they have a pint—energy source substitution without advances in energy efficiency might provide little advantage to the conservation of the environment. On the other hand, a shift from petroleum to ethanol consumption, also shifts wealth production from traditional petroleum producers in the Middle East, Africa and Venezuela, to Brazil, the United States and other rising renewable fuel producers. The political gains to the Americans, and the financial gains to everyone else, might be sufficient to overcome any environmental or food supply concerns.

This colloquy between the leaders of Cuba and Venezuela suggests that while the American and Brazilian political establishments are finally getting it right with respect to biofeuls, that the issues it raises will be more complicated than the suggestion of substitution of renewable for nonrenewable energy sources suggests. The irony now is that the American agricultural establishment is make common cause with the current American administration’s favorite bete noire, but for wholly inconsistent reasons.

The International Criminal Court, UNESCO Conventions and the Protection of Culture and Cultural Objects

 (Pix From ICC, About the Court)

Since the Yugoslav independence wars of the 1990s, some states, notably the Netherlands and Italy, have sought to expand the protection of cultural objects. One effort focuses on increasing the ambit of protection under the current international conventional framework. Thus, for example, in 1993, the UNESCO Director-General reported on the commission of a report to study:

the question whether UNESCO should be given greater powers of initiative and more adequate means of intervention in the event of cultural property being destroyed during an armed conflict; introducing less cumbersome procedures for intervention in limited conflicts than the procedure for appointing Commissioners-General; extending the Convention to include natural as well as cultural sites and; establishing a simpler procedure for inclusion of cultural property on the International Register of Cultural Property under Special Protection. (UNESCO 1993).

These studies and concerns reflected a set of long-term concerns within UNESCO, for the extension of protection for all forms of culture and cultural expression.