Advancing the Application of Odious Debt Doctrine in Ecuador: Unconscionable Terms, Illegitimate Debt and the Obligation to Repay Sovereign Debt

The odious debt doctrine, existing largely as a theoretical proposition through most of the 20th century, may be emerging as an important set of normative constraints for sovereign lending in the 21st century. See Larry Catá Backer, Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes, 70 LAW & CONTEMPORARY PROBLEMS – (2007). Amplified by Alexander Sack, a émigré Russian academic in 1920s Europe, the odious debt doctrine traditionally focused on the circumstances under which a successor state or states could avoid the obligation to pay the debts incurred by a now-extinct predecessor state. ALEXANDRE N. SACK, LES EFFETS DES TRANSFORMATIONS DES ÉTATS SUR LEURS DETTES PUBLIQUES ET AUTRES OBLIGATIONS FINANCIÈRES 158–65 (1927). It focused as well, though less often, on the obligations of successor governments to repay the obligations of prior regimes (especially when succession occurred after civil wars, revolutions, or other contests for control of the state apparatus).

On the basis of his study of the history of public debt repudiation in the 19th and early 20th century, Sack developed a functional approach (id., at 21) based on a separation between state and apparatus. (Id., at 24) A debt is odious, then, not because of the nature or legitimacy of the state apparatus contracting the debt or because of any change in regimes (“Il est donc évident que la transformation politique de l’État débiteur ne change rien quant à ses dettes. Celles-ci sont des dettes de l’État et non du gouvernement. Elles doivent être prises en charge par le nouveau gouvernement de l’État.” (Id., at 46)), but because of the absence of a legitimate relationship between the debt and the state itself. Legitimacy is based on demonstrating the application of the trust relationship between the state and its apparatus in relation to the debt. And debts odious to the state, as such, are not void; they merely change character from a state to a private debt, that is, they follow the agents of the apparatus that engaged in an illegitimate action in the name of the state. Thus Sack points to a connection between legitimacy and odiousness that parallels the construction of rule systems that distinguish between public and private obligations of “princes” now become public servants, in their role as such (Id., 41-45).

For Sack, and during much of the 20th century, the doctrine of odious debt is a creature of the state system of international organization. Its foundations rest on notions of the territorial state as the source of legitimate public commitments and on principles of legitimacy of the authority of those who control the apparatus of state (its government). Over the course of the twentieth century, these concepts have broadened considerably within academic discourse, in the understanding of important elements of civil society, and much more reluctantly among the community of nations and the factors in sovereign capital markets. The nature of legitimate public commitments is no longer determined solely by the preference of the people of a state or its elites. Instead, the legitimacy of those preferences is increasingly measured against international human-rights standards. Likewise, the nature of the legitimacy of the state apparatus, and of those in control of that apparatus, has come increasingly to be measured against democratic theories of state organization. The farther from the democratic ideal, the less likely the acts of the apparatus may be deemed to reflect the will of or be undertaken for the benefit of the people. The identity of state and government becomes increasingly tenuous as the breadth of the doctrine of odious debt expands.

But by the end of the 20th century, the odious debt doctrine, both as conceived and applied, had begun to expand. The modern understanding of the doctrine of odious debt, increasingly revolves around notions of legitimacy. Legitimacy is increasingly measured by reference to motives for the debt (was it incurred for the benefit the people of the debtor state), and its use (were the loan proceeds used to benefit the people of the debtor state), the rise of positive responsibilities of lenders to extend credit responsibly, and an extension of the applicability of the doctrine of odious debt to all public obligations, even those of sitting regimes.

All of this is well captured in a recent corruption case out of Kenya, World Duty Free, Ltd. V. Republic of Kenya (ICSID, Oct. 2006) (holding at ¶¶ 180-182). The arbitral tribunal of the International Center for Settlement of Investment Disputes (ICSID) determined that an individual businessman (a citizen of Canada based in Dubai) could not enforce a contract with the Republic of Kenya that he had secured by paying $2 million to former President Daniel arap Moi. The ICSID tribunal rejected the argument that the money constituted a personal gift, even one ostensibly intended for public use. Rather, it found, the money had been paid as a bribe to the president to ensure that he would cause the Kenyan state to enter into a contract that furthered the interests of the businessman and of the president in his personal capacity, but that might not have provided a benefit to the Kenyan state. The tribunal determined that it could not hold the Kenyan state liable on an obligation incurred for the benefit of the Kenyan head of state, and therefore tinged with illegitimacy in its inception. “[I]n the tribunal’s words, he could not ‘found a cause of action on an immoral or illegal act.’ The tribunal thus ruled that, ‘claims based on contracts of corruption or on contracts obtained by corruption cannot be upheld by this Arbitral Tribunal.’” Id. It was careful to distinguish between the acts of President Moi in his personal capacity (taking the bribe constituted a personal act) and as president (having authority under the Kenyan Constitution to bind the Kenyan state and its people to the obligations represented by the contract). “The tribunal rejected Mr. Ali’s argument that Mr. Moi had been ‘one of the remaining Big Men of Africa who, under the one party state Constitution, was entitled to say, like Louis XIV, that he was the State,’ as unfounded since under Kenyan and English law, which Mr. Ali was relying on, the president was regarded as being bound by the law and the constitution.” Id.

But the principles of odious debt doctrine have also been turned on the sovereign lending system itself. Some have argued that the modern system of private orderings, of global capital in the service of undefined global markets, it is argued, serves to benefit creditor states to the ruin of borrower states. As an integral part of the modern system of economic globalization, sovereign debt is imposed as a coerced subsidy by developing states for global production at the heart of the neo-liberal system. In this way, the system of sovereign lending is said to reinforce the old international-law system that sought to legitimize colonialism and the unequal treatment of states without invoking the old imperialist norm system directly.

The problem is systemic and beyond the control of debtor states, who have little choice but to participate in this global system of exploitation. Systemic illegitimacy, then, should serve as the foundation, not only of a right to repudiate all sovereign debt—all such debt is odious in the sense that it was incurred for the benefit of the lender and to the detriment of the citizens of the debtor states—but also as the basis for the construction of an alternative system of global finance and integration. Sovereign debt is bound up in the illegitimacy of the current economic world order, of both public and private law. This illegitimacy, imposed for the benefit of the developed states, requires the erasure, not the cancellation, of sovereign indebtedness as the first step towards dismantling the system itself. It would then be possible to establish a regime of sovereign lending untainted by the hegemonic impetus of market based economic globalization. Thus, one of the principal proponents of this approach, Fidel Castro, has long maintained—“We are even thinking that once we erase the debts, our policy with regard to the Third World countries—as creditors—would be different, and we would pay those debts.” Fidel Castro Ruz, Clausura del dialogo juvenil y estudiantil de america latina y el caribe sobre la deuda externa, celebrado en el palacio de las convenciones, el 14 de Septiembre De 1985, “Año Del Tercer Congreso,” delivered Sept. 14, 1985, La Habana, Cuba, and translated as “Castro 15 Sep. Comments on Latin American Debt” (University of Texas “Castro Speech Database).

Until recently, these sorts of arguments carried little force in the world. But things appear to be changing. The force of this approach to odious debt might be nicely exemplified by the difficulties Ecuador has recently experienced respecting the loss of control of its natural resources, in particular its petroleum, to the global capital markets that required their use to service Ecuador’s external debt. This saga also suggests the potential importance of an approach that fuses legitimacy and odiousness in the context of sovereign debt. In 2005, it was revealed that loans from the International Monetary Fund and the World Bank (Structural Adjustment Loan for a Second Fiscal Consolidation and Competitive Growth to the Republic of Ecuador, Feb. 14, 2005), included a series of secret terms that could be characterized as oppressive. Greg Palast, Ecuador Gets Chavez’d (May 11, 2005). These included an obligation that Ecuador pay its bondholders seventy percent of any spike in oil prices and that Ecuador set aside another twenty percent of such oil-spike revenue as a reserve against contingencies, effectively preventing Ecuador from using the funds for other purposes. Id. The Ecuadorian president at the time was quoted as suggesting, “‘If we pay that amount of debt. . . we’re dead. We have to survive.’” Id.

By July 2005, the Ecuadorian government, in response to these revelations enacted legislative changes to the provisions, effectively reducing the amounts Ecuador would be required to devote to pay down its debt. A Financial Times report published by the New York Times noted that “The oil stabilisation fund, which had been designed to use the profits from oil revenues primarily to pay off debt, was reformed last month so that only half of the amount previously set aside for debt reduction would be dedicated to that purpose, while social spending would be increased.” FT.com, World Bank Poised to Suspend Loan to Ecuador, THE NEW YORK TIMES, Aug. 4, 2005. In response, the World Bank suspended a $100 million loan to Ecuador. (World Bank Set to Suspend Loan After Ecuador Changes Oil Fund, The World Bank, News and Broadcast, Aug. 5, 2005).

The stage was set for the development of positions grounded in notions of legitimacy. On the one hand, the World Bank appeared to take the position that unilateral changes of this sort violated the terms of the loan agreement. The “WB has defended its decision, saying Ecuador violated a requirement for the credit delivery when it changed the distribution structure of an oil fund to channel more resources to Ecuador's social sector and decrease the money for public debt.” Ecuador Expels World Bank Representative, PEOPLE’S DAILY ONLINE, April 27, 2007. In any case, Ecuador’s legislative changes undermined the World Bank’s security. “It is understood that the bank will respond by arguing that the policies and objectives that its loans were designed to support have been at least partially reversed, making it highly unlikely that the government will fulfill the goals of the loan programme.” FT.com, World Bank Poised to Suspend Loan to Ecuador, THE NEW YORK TIMES, Aug. 4, 2005. In this respect, the World Bank appeared to echo the sentiments of the global financial community. “Communications between the bank and Ecuador's new government which took power following the ousting of Lucio Gutiérrez in April have been far from exemplary. However, the bank's refusal did not surprise emerging market analysts, who had been warning that multilateral lenders may view the restructuring of the oil stabilisation fund with alarm.” Id.

On the other hand, the Ecuadorian government also argued legalities. First Ecuador asserted that the World Bank had itself unilaterally breached its agreement to make the loans available. The finance minister at the time (and now Ecuadorian President), Rafael Correa, actually made two related arguments. The first was that the World Bank unilaterally breached its loan agreement. "This is an offence for Ecuador. A loan had been approved and was in place and they are cancelling it, completely outside any ethical or legal principle, because we changed a law," Id. (quoting Mr. Correa)). The second sounded in misrepresentation ("We were never told until last week that the Feirep law [restructuring the oil stabilisation fund] was a problem. The country has been misled. This was not the right way to act." Id. (Quoting Mr. Correa)). These arguments were echoed in an anonymous criticism of the World Bank’s decision. See, Anonymous, Wolfowitz at the World Bank: A New Leaf?, MR Zine, Aug. 25, 2005 (“Sadly, from a close examination of the evidence, it would appear that, in this case, suspending the assistance to Ecuador has elements of an extraordinary, perhaps unprecedented move.”). Second, Ecuador argued that the terms themselves were not legitimate (or better put that the terms were legitimately the subject of legislative action on the part of the Ecuadorian government). Mr. Correa was quoted as suggesting that "We are a sovereign country. Nobody can punish us because we are changing our own laws." FT.com, World Bank Poised to Suspend Loan to Ecuador, THE NEW YORK TIMES, Aug. 4, 2005. He was also quoted as stating: “"They punished a sovereign country for modifying a national law," Correa charged at the time, adding that his government ‘won't put up with blackmail from this international bureaucracy.’ ‘[W]e are nobody's colony,’” Richard Behar, Ecuador Boots World Bank as Correa Continues Crackdown Against Opponents, Fox News.co, April 26, 2007.

By 2006, the man who had served as finance minister during that time, Rafael Correa, had become president of Ecuador. Hal Weitzman, Ecuador Finance Minister Quits Over Loan Dispute, FINANCIAL TIMES, August 6, 2005. Mr. Correa might have been at the center of these events in any case. And it appears that these events helped contribute both to his resignation and decision to run for President. See Hal Weitzman, Correa Threatens to Expel “Blackmailing” World Bank, FINANCIAL TIMES (FT.COM) April 17, 2007. “The squabble with the World Bank was a principal reason for Mr Correa being fired from the finance ministry. But, casting himself as a defender of the Ecuadorean people against "neo-liberal" international lenders, he used the publicity that his sacking created to begin his campaign for the presidency.” Id. It was also reported that Mr. Correa’s interest in pursuing a large loan agreement with Venezuela and his threat to breach an oil agreement with an American oil company may also have brought him (and Ecuador) to the attention of the World Bank. See id. Others suggested additional motives. See, Anonymous, Wolfowitz at the World Bank: A New Leaf?, MR ZINE, Aug. 25, 2005. The BBC reported that “He has said he is against a free-trade agreement with Washington, arguing it is damaging to Ecuadorean industry, and has vowed to oppose renewal of a lease for a local US military base. If Mr Correa has his way, ties with the IMF and the World Bank could be cut and the country's foreign debt restructured. Its oil wealth, he has said, will go back to the people.” Profile: Ecuador’s Rafael Correa, BBC News, Nov. 27, 2006.

In April, 2007, Correa ordered the expulsion of the World Bank representative in Ecuador. Ecuador Expels World Bank Envoy, BBC News, April 26, 2007. The expulsion revived the now long simmering dispute over the legitimacy of the World Bank’s loan terms relating to the use of oil revenue, in general, and the World Bank’s refusal to disburse the $100 million loan in particular. The BBC reported that “Mr Correa had demanded that the World Bank explain why it suspended a $100m (£50m) loan in 2005 while he was economy minister. He says it was in retaliation for his reforms of the country's oil sector. The bank says Ecuador violated the terms of the loan by dissolving an oil fund earmarked to pay foreign debt.” Ecuador Expels World Bank Envoy, BBC News, April 26, 2007. And the Financial Times reported that (“The president said he would be asking the World Bank's representative in Ecuador why the lender refused to disburse a$100m loan in 2005, when Mr Correa was finance minister” Hal Weitzman, Correa Threatens to Expel “Blackmailing” World Bank, FINANCIAL TIMES (FT.COM) April 17, 2007.

At the core of the dispute is a charge of systemic illegitimacy—the contention that the lending system of which the World Bank is a part is crafted for the benefit of the lenders; the people of the borrowing states receive incidental benefits. Using language reminiscent of Castro’s, Correa has now taken the position that World Bank actions are “blackmail:” "If he doesn't give explications that we consider satisfactory, we will expel the World Bank representative because we won't accept any blackmail from anyone," he said. Hal Weitzman, Correa Threatens to Expel “Blackmailing” World Bank, FINANCIAL TIMES (FT.COM) April 17, 2007. Correa has threatened to default on this and other loans. “The leftist president has paid off Ecuador's debt to the International Monetary Fund and wants to minimise the country's dependence on foreign credit. He has threatened to default on the country's other debts. Ecuador still owes the World Bank $748m, the economy ministry says.” Id.

He has sought to legitimize these actions in two ways. First, of course, is the emphasis on the illegitimacy of the lender’s actions—thus the invocation of the rhetoric of “blackmail” and the overtones of odiousness. Thus, systemic illegitimacy in general, and the oppressiveness of the specific terms imposed by the World Bank in particular, support Ecuador’s determination to repudiate (or more likely in this case, pay off) its debt obligations to and be done with, multilateral lenders. “Over the last two years, Argentina, Bolivia, Brazil, Nicaragua and Venezuela have paid off their IMF loans or let their agreements with the institution lapse. Since 1999, Latin American countries have been borrowing between one-fourth to one-half less from the World Bank. As early as next month, Argentina, Bolivia, Brazil, Ecuador, Paraguay and Venezuela will open Banco del Sur (Bank of the South) as an alternative regional development bank.” Marcela Sanchez, IMF, World Bank, Face Irrelevance, WASHINGTON POST, May 11, 2007. Second, and perhaps more importantly, is the heavy reliance on both popular ratification and the legitimacy of the divergence of funds. Correa has used popular referenda—for example, on changes to the national constitution to rid it of its ‘neo-liberal’ framework—as the basis for taking action that might lead to the repudiation terms deemed inconsistent with expressions of the popular will within Ecuador. “Ecuadorians want to "overcome the nefarious neo-liberal state legitimized in the 1998 Constitution," Correa said at an April 15 press conference. Correa then attacked the World Bank, and announced that his government had finished paying off its remaining debt to the International Monetary Fund.” Richard Behar, Ecuador Boots World Bank as Correa Continues Crackdown Against Opponents, Fox News.co, April 26, 2007. A recent article, Ecuador Leader Celebrates Win, BBC News, April 16, 2007, described the approval by popular referendum of the constitution of a ‘people’s assembly’ to rewrite the nation’s constitution. “Mr Correa responded to the referendum with an announcement that Ecuador had repaid its final debt to the International Monetary Fund. The president also warned he would kick out the representative of the World Bank in Ecuador if the government received, as he put it, pressure from the organization.” Id. Indeed, the use of oil revenues has proven to be politically inflammatory in Ecuador where, in 2005, “Protesters, demanding that oil revenues should be spent on infrastructure, bring oil production to a halt. A state of emergency is declared in two oil-producing provinces. The protest ends after oil companies agree to help mend roads and pay local taxes.” Timeline Ecuador: A Chronology of Key Events, BBC NEWS, April 25, 2007.

Correa has also suggested that national interests ought to be superior to those of economic interests, whether or not supported by treaty or contract. Thus, for example, Correa has demanded substantial changes in the U.S. Ecuador bilateral investment treaty on the grounds that it interferes too heavily in Ecuador’s sovereign right to pursue its national interests without the burden of compensating those affected by the pursuit of such interests. See, Ecuador Won’t Renew U.S. Investment Deal, FoxNews.com, May 5, 2007. “Last year, Occidental Petroleum Corp. cited the treaty when it sought $1 billion in damages over Ecuador's cancellation of the California-based company's oil-production contract. The arbitration claim before [ICSID] has not been resolved. Espinosa said Sunday the treaty "has really caused many problems for our country" and "does not respect national interests," although she did not elaborate.” Id.

Moreover, Correa has been implicitly relying on legitimacy arguments based on a hierarchy of interests—public political interests trump non-governmental economic interests and human welfare trumps private obligations in determinations of the legitimacy of debt terms or of an obligation to be imposed on a state. Thus, Correa’s emphasis on Ecuador’s actions as those of a sovereign, in contradistinction to those of non-sovereign lenders, like the World Bank.

Correa’s action represent an important attempt, the success and elaboration of which remains to be seen, of the legitimacy principles developed from out of early constructions of odious debt, combined with a form of Castro’s development of notions of (lender conduct focused) systemic illegitimacy (whether or not shorn of their Marxist-Leninist referents). We have come a long way from the narrow principles developed by Sack. It remains to be seen whether these tactics have more bark than bite. It may well be that Correa s using this rhetoric as a bargaining chip, or as a means of humiliating the World Bank leadership to assuage his need for revenge (though using the apparatus of the state in order to further personal agendas ought to be more thoroughly questioned). But Correa may mean what he says, and may follow through on what he means. If that is the case, then the elaboration of the odious debt doctrine might well take a large step forward.

"Cuba Has Millions of Fidels"

May Day, the traditional time for leaders of Marxist-Leninist states to display themselves, has come and gone. One of the last "Big Men" of Stalinist bureaucratist statism (not a criticism, merely an observation), Fidel Castro Ruz, did not attend the festivities in Cuba this year. As expected, Western media outlets used the opportunity to indulge themselves in the meaning of the absence and the future of Cuba.

One story, I think, got much more of it right than they might have understood. Steven Gibbs, reporting for BBC, wrote:

Certainly Cuban government officials appear to be getting bored of being asked how President Castro is, and whether, and when, and in what capacity he might return to power.

"I haven't the least idea," said a slightly cross Ricardo Alarcon when he was last asked whether Fidel would make a public appearance.

The government's view is that the president should be left in peace to recover as quickly as possible and that the Cuban revolution is about more than one man.

"Cuba has millions of Fidels," is a stock response to the question of what happens here after he is gone.

Steven Gibbs, Waiting for Castro, BBC News, BBC News.com, May 5, 2007.

Fidel has moved quickly, within Cuban socio-political culture, from human to "something else." Like Mao Zedong in China (and the Chinese parallel is not chosen without care), Fidel Castro is quickly being transformed from a person into a set of ideas. Those ideas will someday (and quickly) serve as the foundation of a Marxist Leninist rule of law constitutionalism, in the same way that Mao Zedong serves in China. See Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism, Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006.

It was in this guise, of course, that Fidel Castro remained quite present at the May Day festivities. The official Cuban websites were quick to post the Commander in Chief's Reflections . This was a curious reflection--focusing on the willingness of Brazil to engage with the United States in the use of agricultural products for fuel, a project that Castro has repeatedly denounced (though in light of his friendship with Hugo Chavez, his motives are hardly what he purports them to be). Yet the discussion is not without some logic--to the extent that smaller states are urged to divert agricultural production to the satisfaction of the energy needs of the United States, they run the risk of market dependency of the sort that Cuba sustained as the sugar producer for North America before the 1960s. For smaller states, then, a caution, though the focus is on the influence of a great state--Brazil--on the move that that sort of future dependency. Castro and Chavez have raised this issue before, about which I have written.

But the "Reflections" suggest more than the usual sometimes clever sniping at "the Empire." These "Reflections" suggest some of the normative principles on which much of Castro's writings (whatever one thinks of them and however badly they have been implemented in fact in Cuba) are grounded: anti-subordination, territorial integrity, privileging of the political over the economic (reflected in the power of the political will over that of the market), and a distrust of private power. Now is the time to begin parsing the ideological constructs of Fidel Castro. In the same ways that Madison, Hamilton and Jay served as the authoritative founders of American federal constitutionalism, as Mao Zedong and Deng serve the same function in China, Fidel Castro will serve as the normative base point for what will emerge, eventually, as Cuban post Castro constitutionalism. For those who want to start doing business with the new, and much more globally centered regime, it is time to start an acquaintance with the writings of the founder (for good or ill) of the modern Cuban state. It is in that sense, perhaps, that one might best understand the idea behind the statement--"Cuba has millions of Fidels."

The Virginia Tech Mass Murderer as a Repressed Homosexual: Conflating Sexual Non-Conformity, Social and Mental Deviance in America

In a post on April 22, 2007, Conflating Sexual Deviance and Politico-Religious Deviance: Arab Homosexuality and Spying for Israel in Egypt, I explored the way in which an English based Middle Eastern publication exploited a story about the arrest of a Muslim in Egypt on charges of spying for Israel to demonize both the accused and Israel by conflating religious, political, cultural and sexual "deviance." Such conflations, I suggested, "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)." Id. Those conflations have significant resonance in a society in which religious conformity has deep meaning in the political culture or otherwise provides the filter through which individual action can be understood and judged.

But the conflation of sexual and social deviance is not confined to the Muslim world. In the West similar mechanics exist. But here science substitutes for religion as the filter through which society filters action and judges individual conduct. And that filter conflated gender norm expectations with science as surely as we have seen the conflation between gender norm expectations and religion in the dar al Islam. I have written on Western "scientism and the disciplining of male sexuality. See Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 YALE JOURNAL OF LAW & FEMINISM 1 (2005).

It should come as no surprise that it has been suggested that the perpetrator of the recent mass shooting at Virginia Tech University, Mr. Cho, acted out of repressed homosexual feelings. According to those who hold this view, Mr. Cho was not only a social deviant, but was mentally ill as well, and that mental illness expressed itself in sexual pathology marked by deviance of a sort that could fuel or at least parallel the depths of the social pathologies that led eventually to his violent actions. Sexual and social deviance are conflated. Thus, Judith Reisman writes:

One of the Virginia Tech killer's plays was released to the press. The rest are cloaked in killer ''privacy." . . . In this play, the killer writes pornographically about his 13-year-old boy protagonist's mom doing it "doggie style" with his homosexual/pedophile step-father. Was there homosexual molestation in the killer's life as well? [Reisman notes that one of Cho's professors was said to have stated that] his poems revealed someone engaged in ''a personal violation� objectifying his subjects,'' doing things ''to your body parts." . . . .[That professor] was describing erototoxins – pornography. The killer's violence was sexual, such as, ''Your bra is torn, and I'm looking at your flesh." Judith Reisman, Commentary: Cho's Erototoxic Addiction, World Net Daily, April 23, 2007.

But the science of psychology addresses Mr. Cho's sexual/social pathologies in other ways as well. On the Anderson Cooper 360 Show, distributed through the authoritative media source CNN, Dr. Helen Morrison, a forensic psychiatrist, suggested that Mr. Cho killed as a means of acting out against repressed homosexual tendencies.

COOPER: Dr. Morrison, what do you make -- you know, in his writings, there seemed to be sort of an obsession with the debauchery, the hedonism of other people. He seemed to need to prove his masculinity a lot.
MORRISON: Well, one of the early theories about paranoia is that it's a defense against the person's own urges of homosexuality. And that's a very old theory. But, if you look at the writings he had in both of his plays, they are focused on things occurring that would generally happen only in a same-sex-type relationship. But they're very threatening. And his response to those threats is to kill.
COOPER: But he seemed to be attracted to women.
MORRISON: Well, but, you know, it's like anything else. If you are trying to prove yourself, and trying to show that you're the complete opposite of what you might be afraid of, you will definitely stalk. You will definitely look into a woman's eyes and see promiscuity, which is one of the things he talked about. But the focus on the sexuality of females was only masking what appears to have been a tremendous fear that he was not truly attracted to females. Id.

Murder might be understood, then, as a pathological response to his self doubts about his manhood--understood as the absence of "deviant" sexual desire. This parallels a charge made against one of the September 11, 2001 terrorists who hijacked a plane that crashed into the World Trade Center. See Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 YALE JOURNAL OF LAW & FEMINISM 1 (2005). "Science" thus supplies the necessary "factual" basis for this conflation--this is what brings a certain measure of comfort to American society. Once we understand the social pathology as illness, and that illness as deviance--and especially as sexual deviance, we can rest easy. "Normal" people do not kill like this. But we have also managed to solidify the borders of appropriate sexual conduct; normal people are not sexual deviants, either "gay" or otherwise sexually "disordered."

And in this way there is produced further objective evidence of the connection between sexual deviance and social deviance. This conflation, this homosexualization of violent social pathology, expressed in the objective language of science, has potential for significant social and legal change. In the wake of the allegations, the usual crew of social conservatives proposed legislation voiding current hate crimes laws. The efforts are nicely described in Exploiting Virginia Tech--Take 4.

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.