On Negotiating With ETA: The Successful IRA Strategy for Dealing With States Goes Global

Spanish papers are reporting on the commencement of negotiations between the Spanish government headed by J.L. Rodríguez Zapatero of the Spanish Socialist Party, and the so called political wing of the Basque separatist party--ETA ("Un verano para negociar: Zapatero inicia el diálogo con ETA; Rajoy: no se puede negotiarcon quien tiene una pistola," Que!, June 30, 2006 at 1 available on line at http://www.quebarcelona.com). Mr. Zapatero has insisted on three conditions for negotiation ("Zapatero anuncia el inicio de negociaciones con ETA," Que!, June 30, 2006, at 2):

(1) an end to violence (Mr. Zapatero was quoted as suggesting that negotiations would continue, and the will of the Basque people within Spanish territory respected in the absence of violence (“El Gobierno -afirmó- respetará las decisiones que los ciudadanos vascos adopten libremente, respetando las normas y procedimientos legales, los métodos democráticos y los derechos y libertades en ausencia de todo tipo de violencia y coacción” (Id.));

(2) respect for the Spanish Constitution and the law regulating political parties (the Spanish leader was quoted as affirming his attachment to the values, principles and rules of the 1978 Spanish Constitution and to the laws regulating political parties (“Quiero expresar el compromiso absoluto del Gobierno y el mío personal con los valores, principios y reglas de la Constitución de 1978 que ha representado un éxito colectivo para nuestra convivencia”, dijo. Zapatero ha insistido además en que va a mantener la vigencia de la Ley de Partidos ") (Id.)); and

(3) an appropriate recognition of the victims of ETA violence (Mr. Zapatero spoke of a respect for the memory, honor and dignity of the victims and their fanmilies as serving as a grounding for the negotiations ("El presidente del Gobierno ha reiterado que el respeto a la memoria, al honor y a la dignidad de las víctimas y sus familias es una cuestión que debe garantizarse en todo el proceso de diálogo.") (Id.)).

Who could ask for anything more? I certainly wish the Spanish government well in this endeavor. Unlike the French, who have been able to pacify their Basque populations through a consistent policy of suppression and material reward, the Spanish have been unable or unwilling to successfully integrate their Basque populations. Perhaps a combination of inconsistent policy, too much repression and very little reward based assimilation made the difference. In any case, the only way forward appears to be some sort of more loosely based ties between a weaker central government and a stronger regional sub-state. Such a solution, when combined with programs emphasizing the economic values of some form of continued integration may ultimately save the Basque regions for Spain within the stronger embrace of the European Union. Though Ironically, this provides the Basque lands more with symbol than reality of independence. It derives most of its comfort from its ability to to retain its tax revenues, though.

But I am not convinced that negotiating with ETA will ultimately prove successful within the law-based framework that Mr. Zapatero has identified. I fear that ETA has maneuvered the Spanish government into a negotiation in form but a capitulation in effect. I suspect that the Popular Party's Mr. Rajoy may have a point, despite the sharpness of his overwrought demagoguery, when he suggests that the only useful negotiation with ETA is over the terms of its dissolution and the surrender of its arms ("Rajoy dice que no se debe negociar con los de la pistola," Que!, June 30, 2006, at 2).

My pessimism is not ideological. Nor is my dim view of a violence-based Spanish Basque separatism (and I reiterate that the separatism is peculiarly odd given that French Basques remain closely tied to France in a way that at least some portion of the Spanish Basque elite finds unacceptable) based on any opposition to the creation of as many states as there are self-consciously aware ethnic or other national groups willing to strike up their flags, speak their language and eat their regional cuisines within the tight embrace of the European Union (though it is clear that I skeptical of the value of this activity given the willingness to permit autonomy and the power of the European Union). See Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 Yearbook of European Law 13 (2002).

Rather, I am guided by the words of Gerry Adams, whose recent enlightening talk to the Catalans on the nature of self-determination and autonomy for ethnic separatist movements I reported on in a prior post (See my post, “Gerry Adams in Barcelona: On the Politics of Self-Determination in Constitutional Systems,” June 8, 2006. Mr. Adams had been in Spain to meet with the leaders of the political wing of ETA to prepare them for their upcoming negotiations with the Spanish government, as well as to encourage the Catalans in their quest for greater freedom from the central government in Madrid. I noted an important insight that Mr. Adams offered his Catalan hosts:

“This is the last insight Mr. Adams offered his Catalan hosts: Be firm in the inevitability of your goals, and work for their attainment. All negotiation leading the Catalan people closer to the goal are to be welcomed, but are to be understood as mere temporary measures on the road to inevitable independence. When that road becomes blocked, by the intransigence of those who disagree with the self-determining will of the Catalan people, then violence might help prod the parties back on the road to “peace” that is the fulfillment of the desires of the ethnos seeking to assert a fuller sovereignty. (Id.).”

Applied to the Catalan situation, the insight was irrelevant, though disquieting enough for Mr. Adams’ Catalan hosts. For the moment, the Catalans have no taste for violence. Indeed they have more to lose than to gain by a resort to violence for a formal inexpedience from Spain, especially with the embrace of the new Autonomy Statute. But I believe Mr. Adams may have had his Basque friends in mind when he offered these insights to his Catalan hosts.

Applied by ETA to the upcoming negotiations with the Spanish government, these insights suggest a number of preconditions equal in importance to those specified by Mr. Zapatero for the Spanish state, and include:

(1) independence for the Spanish Basque territories;

(2) the promise of more violence in the event the march toward inevitable independence is impeded; and

(3) an understanding that whatever interim agreement is reached is merely temporary and will be overtaken either by events or by further negotiations leading to independence.

As such, any negotiations this summer with ETA presents something of an unequal bargaining. The Spanish state seek to regularize on a permanent basis the status of the Spanish Basque lands. They probably have a Catalan style autonomy relationship in mind. ETA seeks to capitalize on its past violence by becoming a legitimate political actor without having to pay any price for its prior actions. Recognition by the Spanish state will give ETA the legitimacy it needs to become a member of the Spanish Basque elites and to work openly on the European and world stages for the attainment of its goal—the recognition of the Spanish Basque lands as an independent state. This is an important goal for ETA: legitimacy will permit the organization to raise money, participate in the political and cultural life of Spain (and the European Union) in a way that is denied them now. ETA will be removed from the global lists of terrorist organizations; its members will no longer face possible punishment for acts in violation of international human rights or humanitarian law (though these seem to apply with greater force to state actors than to other organizations engaging in violent acts against non-military targets). And, should the march to independence be impeded at any stage, it can revert to violence, or cause violence to recommence in some other way (the use of “rogue” organization seems to be the method of choice today as organizations like ETA, diversify). But the Spanish government will never get what it wants—the settlement of the Spanish Basque problem somewhere short of independence.

It seems that the IRA model is serving as the great template for ethnically based movements for self-determination. Violence is may the necessary precursor to negotiation. Violence in connection with self-determination movements has limited legal consequences. The rule of law applies only after states are established and do not apply to self-determination movements (only to the states against which they operate). Timing is everything and the ability to disaggregate operations essential—violence, politics, culture all must be seen to originate from different sources (in the way that a single company produces a large number of different brands of cereal, or in this case, different products). Violence gets everyone’s attention; it projects power. But violence only provides the opening for the greater battle—the battle for legitimacy. This latter battle is fought in the media and over control of public opinion (or at least the reporting of public opinion). Jerry Adams reminds us of this:

“The battle in the political realm requires marshalling the media and civil society involvement. Because political communities in democratic states are particularly sensitive to the expressions of popular will (however changeable), it behooves political actors to ensure that this popular will is appropriately expressed. Mobilization of political, social and intellectual cadres is essential if this task is to be successfully accomplished. That was part of the secret of Sinn Fein’s success, especially in the United States.” (Id.).

ETA has a tremendous amount to gain from these negotiations. The Spanish government may have less to gain, but it also may have little choice. The battle for public opinion (and the support of other state actors) requires different tactics than the battle to suppress a military foe. Dialogue itself has become necessary tactic in the war for Spanish Basque independence. Jerry Adams understands the military potential of negotiation. ETA does, too. Actors in the Middle East understand this as well. State actors in Europe and North America fail to understand the military potential of talk at their peril. I look forward to the next stage in the war for Spanish Basque independence as its battles are fought on the fields of cultural and political production.

Fighting the Ghosts of the Past: Should American Policy Replay the 1950s in 21st Century Cuba

The logic of modern economic globalization, one of the most potent contributions of American thinking to world culture this past century, suggests that creating free and transparent markets with appropriate provisions for the protection of all actors in the economy would be the surest way to economic prosperity and democratic political governance. Our political as well as economic leaders spare no expense in broadcasting those notions to all of the world from every vantage point.

It comes as something of a surprise to read about renewed American plans for a transitional government in post-Castro Cuba. The 2006 Report of the Commission for Assistance to a Free Cuba, which in many ways repeats the approach of the 2004 Report of the Commission for Assistance to a Free Cuba provides an anachronistic perspective on American economic and foreign policy that are worth highlighting. The report suggests that on Castro's death, American advisers should be in place on the Island to help some hand selected group or other to achieve democratic governance through the power of American persuasion. Economic liberalization would follow. This is the sort of thinking that one would have thought had disappeared along with the Soviet Union. We all are now supposed to know that economic liberalization comes first and democratic governance follows almost naturally. But somewhere on the way to Cuba those ideas were lost.

But not entirely. It seems that, at least where Cuba is concerned, the great free market innovators are the representatives of the People's Republic of China. They have, over the course of almost a decade now, slowly begun to chip away at the Stalinist state structure of Cuban economics and help remodel the economic sector into something more compatible with global economic models. This transition has not been easy. Nor has it been very successful to date. But restructuring a half a century of Stalinist central planning without arousing the suspicions of Fidel Castro (who remains a committed Stalinist) and without disrupting social and political life on the Island has not been easy. It may not work. But it makes more sense than the sort of advisers restructuring government type planning that seems to be coming out of Washington these days. Rather than concentrating on cosmetics--the form of governance of a post-Castro Cuba-- it might make more sense for Washington to begin working with Cuban exile groups to plan for the creation of joint ventures and other economic partnerships with elements of the existing Cuban economic structure than to focus on formalist political change leaving the economy to fend for itself. The advisers that America should be sending should be academics from Puerto Rico with suggestions on a modern economics law and business leaders for the creation of effective economic collectives to compete successfully in the world economy. And the U.S. should permit its citizens to take a substantial position in the Cuban economy. That sort of intervention would demonstrate American commitment to free market global economics better than its 1950s style plans for political gestures in the form of interference with government. And the payoff, of course, is that government would change to meet the demands of the new economics.

Hamdan v. Rumsfeld: Some preliminary Thoughts on a Conservative Opinion

People are very excited about the Supreme Court’s opinion in Hamdan v. Rumsfeld, No. 05-184, slip opinion, June 29, 2006. The opinion is long enough for virtually anyone with an interest to find something to love or something to hate. Ironically, though, most people will never read the opinion. Even most lawyers will never get past the summary of the opinion conveniently printed at the start of the 200 or so pages of dense legal reasoning. And that is a shame. What most people will read will be those short and pointed summaries and commentaries prepared by a host of people looking to use the opinion as a sort of pre-fab foundation for their pre-determined views. The result, of course, is that all sorts of people, including me, will be in a position to influence the perception (and therefore the reality) of the opinion. Almost more important than the opinions in Hamdan are the interpretations of those opinions, and their potential use for political purposes.

And there is a lot of potential political capital to extract from Hamdan. The great media machines of American (and global) political factions are already spinning their reconstructions of the “meaning” of this opinion, its “importance,” and its “effect” on American jurisprudence, American politics, the war in Iraq, the place of international law in American law, and similar matters. The great cultural warriors have already begun to use the opinion to justify political action to compel Congressional legislation, to restrain the judiciary, or to intensify efforts to seat judges who pass one or another ideological litmus test (in the form of some sort of judicial or jurisprudential "credo").

Hamdan is already being treated as something substantially greater than its holding or the sum of its parts. It has become one of the great political decisions of this century (and the century is still young). One can get a sense of the importance of the opinions in Hamdan only when they are framed in a somewhat larger context of the ongoing debate about the character of the American Republic. For this purpose, I offer some very preliminary impressions. It will be interesting to see if they stand the test of time. Hamdam, in its own way, is a very conservative decision. It is meant to preserve the formal divisions and structures of the federal government more or less intact, it suggests a strong role for the courts as protectors of both individuals and the integrity of the structure of the state, and provides more weight to the idea that the Constitution itself limits the authority of office holders to reallocate state power between the branches. Ironically, given the authors of the various opinions, it is the ghost of another case—Bush v. Gore—whose presence is strongly felt in Hamdam, though the case is not cited. More ironically still, the Supreme Court ultimately gave the prisoners, whose appeal from the imposition of military tribunals this was, virtually nothing. Technically, a willing Congress could enact the Presidential order establishing the military tribunals pursuant to duly enacted statute, and Mr. Hamdam would be where he started. But this is no small difference. The military tribunals will no longer reflect the will of one man, but the act of state, approved by the representatives of its people. That form of military commission may well be very different from the original conceived in the offices of the White House. And that is what at least some of the Founders might have preferred.

Hamdan represents the continuing struggle for dominance between three great schools so political thought in the United States: constitutional structuralism, political constitutionalism and ideological supremacism. Constitutional structuralism is based on the view that the Constitution itself provides a set of limits to actions by government actors, and that the Supreme Court must enforce these limits. This is the view adopted by the Hamdan majority. Political constitutionalists believe that the Constitution provided a flexible set for formulas for governance that ought to be molded by political necessity, and agreement by political actors rather than by judicial interference, except perhaps in the most extreme circumstances. This is the view adopted at least in the dissent of Justice Alito. Ideological supremacists believe that the Constitution was written to serve higher moral, ethical or ideological purposes, though there is little agreement among groups of ideological supremacists over which set of ideologies the Constitution serves. For them, the Constitution must be bend in the service of these higher causes by the Courts or by any other institution necessary for that purpose. This is the view that most clearly comes out in Justice Thomas’ dissent, and much more subtly in the dissent of Justice Scalia.

Each of these schools is ancient and each has found expression in Supreme Court opinions from time to time since the Founding. Each views the Constitution very differently, and so each approaches the question of the power of the president to create these military commissions from a very different perspective.

Especially since the 1930s, both political conservatives and political liberals have tried to get the Supreme Court to read structural limitations into the Constitution against incursions into what they consider important public policy choices. Effectively, great forces have been deployed to convince jurists (and the American public) that the American Republic is essentially not self-policing (that is, that the people elected to office do not have the political will or character to do right, institutionally speaking) and that the Constitution must be read as imposing limitations on the power of governmental officials to act. Those limitations must be declared and enforced by the judiciary.

How is is expressed in legal terms? The Constitution was written as a document to establish a government for the member states of the American union. As such, it was to a large extent a political document, that is, it set up the institutions of government and the rules within which all political players, and the institutions they controlled, could participate in governance. As part of that establishment, the Founders eventually also included a short list of explicit limitations on the power of the federal government in its dealing with states or individuals. The government thus established was supposed to be participatory—that is, any particular use of state power was to be left to the will of the people as expressed by their representatives in government. Should these representatives displease the electorate, they might be voted out of office. Should these representatives engage in wrongful conduct—should they abuse the trust given them through election (or later appointment) to office—they could be removed. But the way in which government power was to be asserted was to be left to the discretion of those holding office—monitored by those who elected them. In its simplest terms, the Constitution does not limit the power of the government to choose to mint $2.00 coins rather than $1.00 bills, but it does permit the electorate to vote out of office those who acted to create the $2.00 dollar coins.

The Constitution does, then, to a great extent, expect that most decisions affecting government will be left to the political sphere, within broad limits. What are these limits? The federal government is one of enumerated powers, but it speaks for the nation in foreign affairs. The states have a right to a republican form of government and may exercise all power not otherwise assigned to the federal government or to the people. The entire sovereign power vested in the federal government is divided by category into a legislative, executive and judicial power (so-called “separation of powers”). In its simplest terms, for example, the executive may enforce law but may not legislate.

But no power granted any branch is purely autonomous—each branch of government requires one or more of the others to effectuate the exercise of its own power. This occurs on two levels. First, no single branch can independently implement its own power. The judiciary may render judgment but the power of the executive is needed to execute that judgment, Congress may vote to spend money on a program but the president may substantially control the way that spending is carried out, the President may control the military but he may not act if there are no funds to pay the troops because Congress has refused to appropriate public funds. Second, no branch can fully exercise the power assigned to it without action by the others. Thus, the President may execute the laws but the Congress may oversee his choice of staff, the Congress may legislate but the President may veto legislation, the Court may judge but the Congress may limit the jurisdiction of courts to hear certain cases.

All of this seems simple enough. It also seems arcane to the point of irrelevance. But most of the great political debates of American governance have been shaped by great debates over the meaning of these arcane governance formulas. Debate is possible because many of the terms in the Constitution itself are not defined with any precision. This is especially the case when it comes to the division of power between the federal government and the states. It is equally the case in the division of power between the three branches of the federal government established by the Constitution. Imprecision would not be important except that since the Republic’s founding there have been a fundamental disagreement about the meaning of these terms, the principles of governance that give them meaning, and the way in which they ought to be applied.

This is the great debate that was played out in Hamdam—again. In Hamdam, the Constitutional Structuralists won the day, with little damage done to the anti-terrorism effort. The military tribunals can be reconstituted and proceed, if that is the collective will of the political branches of government. Or Congress can formally legislate a determination to withdraw form the Geneva Conventions, if they believe that reflects the will of the American people. Only, the President may not act alone. Political constitutionalism, once the domain of “liberal” justices, found support only among justices commonly thought of as politically conservative. Ideological supremacists remain a potent force, but one still in the minority. The approach of Chief Justice Rehnquist and Justice Scalia, so eloquently put in Bush v. Gore (see my article Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U.L. REV. 1057 (2002)) is vindicated. That vindication produced a bit of perversion—Justice Scalia, dissenting in Hamdam, played the role of his own Judas to his prior position in Bush v. Gore. I describe three great camps at war in Hamdam and suggest that the case is neither revolutionary nor aberrational.

1. Constitutional Structuralists. Constitutional structuralists tend toward formalism, a technique for interpreting the Constitution that places prime importance on the formal requirements of governance set out in the Constitution. This tends to be a very conservative position, if only because it provides neither the courts nor the other branches of government, with much discretion to vary the form of governance to suit the perceived needs of the hour. If structure impedes appropriate action, then the formalists would suggest changing the formal requirements of the Constitution rather than ignoring or suspending them to suit the momentary convenience of political actors. What makes constitutional structuralism so important after the 1970s was the way in which judicial conservatives, starting with the late Chief Justice Rehnquist, sought to use it as a means of providing judicial protection to governmental institutions (National League of Cities v. Usery, 426 U.S. 833 (1976)). In Justice Rehnquist’s case, constitutional structuralism was meant to protect states against federal encroachment. But the idea that the Constitution protects governmental institutions from encroachment (or powers poaching) by other governments (or other branches of government) has taken strong root. Justice Rehnquist’s efforts were important for two reasons: first, for providing legitimacy for the Supreme Court’s role in disputes about the allocation of power among government institutions, and second for providing legitimacy for the Court’s use of a very broad jurisprudence of principles to determine the rules for this power allocation. The Supreme Court could look to great principles inherent in the Constitution (but not explicitly written in the document) as a basis for determining when a branch of government tried to exercise power not explicitly allocated to it under the Constitution. The great consequence of constitutional structuralism is that the Supreme Court has carved out for itself a central role as the ultimate umpire of governance in the American political system. The Supreme Court has become the “go-to” institution for every dispute about power allocation in the American system. It may choose to defer, but the choice it its, and its alone. This idea was crystallized in Bush v. Gore, about which I have written elsewhere, see Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied in the Courts, 55 RUTGERS L. REV. 1109 (2003); Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U.L. REV. 1057 (2002). That power was much in evidence in the majority opinion in Hamdam. Like the court n Bush v. Gore, the Hamdam majority refused to concede that it did not have a role in the dispute over power.

2. Political Constitutionalists. Political constitutionalists tend toward functionalism. Political constitutionalists tend to worry less about the niceties of compliance with the formal requirements of governance set out in the Constitution. Instead political constitutionalism focuses on the political process to guarantee the integrity of the system (Garcia v. San Antonio Metropolitan Transit System, 469 U.S. 528(1985)). More importantly, it reads a great deal of flexibility in the allocation of power among the branches of government, permitting great reshuffling of power, to suit the convenience of current political leaders, as long as the reshuffling does not impede the governmental actor from performing his constitutional duty (Morrison v. Olson, 487 U.S. 645 (1988). Ironically, Justice Rehnquist was one of the great forces responsible for the adoption of this approach by the Supreme Court. His position is not necessarily inconsistent—from a judicial perspective (though less easy to accept from a political perspective). Justice Rehnquist tended to view allocations of power between the states and the federal government differently than the allocation of power among the branches of the federal government itself. He valued the former more than the latter and was willing to craft constitutional doctrine to take into account this values difference. For those who saw no difference between federalism and separation of powers/checks and balances issues, Justice Rehnquist’s division made no sense and one or the other approach was applied to both questions. Political constitutionalism can also be conservative, understood as judicial rather than political conservatism. The idea that the Courts should stay out of “politics” is old, though not easy to square with the role the Courts have taken for themselves since the founding of the Republic. But in Hamdam, it was the judicial activists in Bush v. Gore that pleaded judicial restraint. Again, the best explanation is the bright line drawn by these justices between the court’s role in umpiring disputes between state and the federal government, and the role of the court in umpiring disputes within the federal government. However, Bush v. Gore made that distinction mucky at best. On the other hand, Congress does have the power to deal with Presidential encroachments of the kind possibly represented by the military tribunals. Congress could have cut funding for the programs, Congress could have adopted legislation mandating different treatment for the people subject to the military tribunals or adopted a military tribunal law of its own, or Congress could have impeached the President. Congress has taken each of such actions in the recent past. That it has not might have moved the people to remove its representatives from office or resulted in agitation for the removal of the President, but none of these options necessitated the intervention of the Court. Good arguments, perhaps, but ones that fell on death ears in Bush v. Gore. The rejection of this position in Hamdam is consistent with earlier jurisprudence constructed by the current so-called politically conservative members of the Supreme Court. Justice Scalia’s repeated references to the common law, in this context, having so thoroughly rejected it in Bush v. Gore, is particularly striking.

3. Ideological Supremacists. These people believe that certain ideologies remain superior to the mere mechanics of formal constitutional structure, and that the Constitution must be bent to the goals of achieving the pure ideological state these people advocate. Ideological supremacists have always been with us, and formed a significant minority at the time of the Founding. But they come in an infinite variety of flavors: The only thing they have in common--liberal or conservative, theocrat or free market capitalist—is the belief that the Constitution is meant to serve higher ends rather than that the Constitution itself is the highest end of state formation. They are more than willing to bend the document in the service of the cause for which they think the Constitution itself was meant to serve—or perhaps (in some cases) destroy the Republic in order to rebuild it on sounder principles. Though almost never commanding a majority on the Supreme Court, ideological supremacists have played a critical role in the evolution of American politics, and to some extent, jurisprudence. Ideological supremacists have sparked everything from the American Civil War (remember John Brown’s raid on Harper’s Ferry), to the civil rights revolution of the mid 20th century (remember Martin Luther King and the federal civil rights legislation revolution that resulted in the 1960s-1990s). But ideological supremacists also include among their members the killers of abortion doctors, and Timothy McVeigh. In this case, the ideological overtones of Hamdam, clothed in the language of military necessity and deference to the civilian commander in chief and his staff, suggests that Constitutional formalism must give way to the higher calling of self preservation at the instance of a man who claims the right see to the fulfillment of those necessities (thus Justice Thomas’ declaration that the decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy”). But what ideologies are served in Hamdan? That becomes less clear. No grand norm is involved here—the abolition of slavery, or subordination on the basis of race or gender. Perhaps there is one—on preserving the fundamental distinction between citizen and enemy, between member of the American community and alien. There was been much debate, on ideological grounds, between those who would see the United States as heavily integrated in a world system of law in which the United States has a diminished capacity for independent action, and those who see the United States as entirely supreme and independent within its own territory, and with respect to which foreigners and outsider norms must play a subordinate role. If the character of national sovereignty provides the ideological basis, then the niceties of the Constitution must give way when an important governmental actor asserts his authority in furtherance of that ideology. If this is so, then it is not just the Constitution, but also the very preservation of the state that is at stake in this litigation. For this sort of ideological supremacist, the Constitution must give way to preserve the state. Or, indirectly for Justice Scalia especially, the Constitution must be glossed against this ideology. Much in the dissents of Justices Scalia and Thomas provide a foundation for this view.

In a sense, Hamdan reminds us that we have not come very far from the time of the Korean War and the Steel Seizure Case, 343 U.S. 579 (1952). The great issues of institutional power, the necessities of war, the rules governing our behavior in a death struggle against an implacable enemy (Communism in the 1950s, ideological religion in the 21st century), remain the same. The judicial settlement reached remains equally unstable. As a last irony of this preliminary assessment: just as the concurring opinion in the Steel Seizure case eventually took center stage, it is possible that Justice Kennedy’s invocation of that analysis in Hamdam will have great long term effect. If so, the Supreme Court remains committed to a sort of middle course in matters of umpiring—substantially formalist with a bit of flexibility under some circumstances. But it will be the Court that will remain at the center of these disputes.

And now a last perversity: as a consequence, ideological supremacists will now focus on the Supreme Court. I expect that in the coming years greater efforts will be made to discredit the court (and its individual members), to destroy the legitimacy of the institution, and to attempt “reforms” of the Court that will create formal barriers to its participation in similar future disputes. This possibility is potentially the most interesting ramification of the decision. We will see.

Creating Private Norms for Corporate Social Responsibility in Brazil

The development of the structures, regulations, and enforcement mechanisms for corporate governance, especially for the governance of multi-national corporations has gotten much more complicated. This is an area in which the political community has always played an important part. But the almost monopolistic role of the nation-state as source of all rules has given way to a more complicated system in which international and transnational political actors have become more involved. A more fundamental shift in the locus of regulatory power has come with economic globalization and the embrace of the politico-economic ideology of "democracy-free markets." Regulation has gone private. On the one hand, that has meant that economic collectives have attained more power to regulate themselves. On the other hand, it has meant that individual and non-state collectives have more power to directly participate in the regulation of these entities. For a sense of the complications, see my recent article, Multinational Corporations, Transnational Law.

Corporate social responsibility has been one of the principal areas of development of the private law of corporate behavior. Most academic writing as well as media coverage has focused on the efforts at this form of regulation within the developed world. American and European multi-nationals have spared no expense in crafting systems and webs of institutions producing friendly versions of codes of good behavior. Human rights organizations; comfortably based in the developed world, produce their own equally sophisticated webs of such codes.

My purpose here is to remind us that much of the great work in the area of the private law of corporate regulation is not occurring in the developed world, but outside the frontiers of English speaking America, Europe and Japan. For purposes of illustration I wanted to focus on Brazil. I admit that in many respects, Brazil ought to be included among the world's developed states. But it has served the political purposes of both Brazil and the rest of the developed world to continue to express a belief that Brazil is still developing, though from my perspective it appears to be developing in the same was as one can think of Spain "developing" today.

At any rate, industry organizations in Brazil are quite active in the production of private regulation, and a culture of private regulatory activity. My focus is on one particular business oriented NGO, the Instituto Ethos, which describes itself as "a leading CSR organization in Brazil and a global reference on the theme. Ethos mission is to mobilize, encourage and help companies manage their business in a socially responsible way, making them partners in building a sustainable and fair society" (Id.). Many of the more important businesses in Brazil are associated with this organization, which produces a list of current members.

Like most politically conscious non-governmental actors, the members of the Instituto Ethos are well aware of the changing dynamic of regulatory production in the world. Their vision statement suggests that "The various sectors of society are redefining their roles. When companies adopt a socially responsible behavior, they become powerful agents of change to build, along with governments and civil society, a better world. This behavior is characterized by an ethical coherence in their actions and relationships with the various publics with which they interact, contributing to the continuous development of peoples, communities, and the relationships between themselves and the environment." (Id.). But rather than focus on the actual craft of producing regulation (the usual sets of standardized voluntary codes put out by many similar groups in developed states), the Instituto Ethos focuses on five basic strategies:

1. Expanding the CSR movement. The Instituto seeks to become a leading voice in the construction of behavior norms. For that purpose it has devised a number of projects aimed at “(a) sensitizing companies all over the country and securing their engagement in actions aimed towards deepening institutional relations with - and the partnership between - the business sector and civil society, unions and government, (b) attracting media attention to the CSR theme and, finally, (c) better organizing and structuring the movement itself.” These include expanding partnership networks with business, business associations, other NGO, the media and educational institutions. They recognize that without an audience no voice carries far. It is interesting to note that this seems to be the highest priority strategy on their agenda.

To make this priority more effective, the organization has created a number of awards. One targets students. The Ethos-Valor Award, given “annually since 2000, the Ethos-Valor Award is a national competition for graduate and post-graduate university students - the company directors and managers of the future - that highlights and recognizes graduate and post-graduate theses and monographs on themes related to CSR and sustainable development.” Another is targets the media. The Ethos Journalism Award “annually selects the best journalism conceived and produced in accordance with CSR concepts in the categories of radio, TV, photojournalism, magazines and newspapers.” Yet another is used to develop relationships with other NGO actors in this area. The Balance Award is awarded by the Instituto Ethos in partnership with four other NGOs and is targeted to business, awarding to businesses with the best compliance record on social responsibility practices. One of these awards is give to small companies, the other targets the largest companies.

2. Deepening of CSR practices. The Insituto’s principal method of aiding companies is through an assessment program based on what they call “Ethos Social Responsibility Indicators” (ESRI) described as a “set of tools and initiatives that also serve to strengthen and deepen relationships between the Institute and the companies and between the companies and their partners.” These are administered by means of a “filled in annually, the objective of the indicators is to help companies diagnose, plan for and monitor their incorporation of CSR practices.” These ESRI are customized for the relevant business sector. Instituto Ethos reports that “more than 600 companies have completed the self-assessment and sent their responses back to Ethos for interpretation.”

In lieu of a bank of forms of voluntary codes, the Instituto has developed a “Practices Bank.” This data base includes a description of the practices of model companies which have earned the highest scores on the ESRI. They also produce a social practice self assessment tool for use by companies. This may prove more useful than the quasi-legal codex that seems to be the usually favored vehicle for memorializing appropriate behaviors elsewhere. If code writing tends ot mimic civil law lawmaking models in the public sector, this form of behavior modification tends to mimic common law lawmaking practices and may be more suitable to the decentralized environment of economic globalization based on free and open markets.

Not that the Instituto eschews code writing. “The Ethos Institute also participated in the process of drafting the Brazilian Social Responsibility Norm, the NBR 16001, which was launched in December 2004 by the ABNT, Brazilian Association of Technical Norms. This norm establishes the minimum requisites expected of a social responsibility management system, considering the legal requirements, ethical commitments, the need for transparency and a concern with the promotion of citizenship and sustainable development. The Brazilian Norm will serve as a reference for the creation of the ISO 26000, an international norm that certifies companies in terms of their adherence to social responsibility practices.”

3. Information production. Disseminating information is the crucial step in any private system of rule making. The Instituto produces the usual set of newsletters, distributes publications of various sorts and has developed a fairly sophisticated web presence. The Website (www.ethos.org.br), according to the Instituto itself “is now in its fourth version and has become the Brazilian corporate social responsibility portal. The site receives 40,000 individual visitors per month accessing 450,000 pageviews. . . The objective is to offer companies an oriented navigation through the site, simplifying their access to content that speaks directly to their reality and which could serve as a parameter for their own actions and initiatives. The portal also has an English version, which is to be improved this year, and there is also a monthly newsletter in English entitled 'CSR in Brazil', which aims to publicize the Brazilian CSR movement and the work of the Ethos Institute abroad.” It has also developed a series of targeted web pages. The most visible of which is what they call InternEthos, described as a “platform for the promotion of a structured dialogue and exchange of information amongst people and organizations participating in CSR networks, using the internet as a vehicle and implementing a cycle capable of generating and renewing CSR-related knowledge. InternEthos will function through the Institute’s website as a data and knowledge codification and reference system.”

4. Influence on markets and their most important players. The organization works with business to develop criteria for socially responsible conduct. These will shape relationships with suppliers, the nature of investment, and the provisions in loan agreements. An index of socially responsible companies is also planned, to mimic the Dow Jones Sustainability indexes and the English FTSE4GOOD index series. Unlike many of these organizations, though, the Instituto plans to focus on small companies as well as the usual transnational players. Particularly interesting, from a private law making perspective, is the Instituto’s plans to reach out to labor organizations and non-industry NGOs.

5. Public policies and social responsibility. Lastly, the Instituto has attempted to become a player in private-public partnerships. It has sought to become a voice in the formulation of public policy, especially where it might lead to legislation. This is, of course, a critical step for any organization involved in modern rule making. There is a bit of necessary self-interest involved. “The Ethos Institute has promoted participation in and the formation of partnerships between companies and governmental programs. Given their ability to mobilize and articulate society, companies are a fundamental way of guaranteeing the efficiency of governmental actions.” But this is a necessary role in a world in which overlapping quasi-sovereigns may affect the way in which private actors must adjust their conduct.

Globalization can no longer be thought of a a developed nation’s game. Other states have begun to play, and to shape the discourse in important ways. More importantly, private actors with no necessary allegiance to the culture and values of the developed world, have also begun to contribute to the dialogue. This is not to say that these voices will be antagonistic. Quite the contrary, these voices suggest the reality of the rise of a more truly international class of actors speaking to each other across national boundaries, really beyond national boundaries, working individually but collectively toward the construction of global networks of private governance. See Peter T Muchlinski, Global Bukowina Examined: Viewing the Multinational Enterprise as a Transnational Law-making Community, in GLOBAL LAW WITHOUT A STATE 79 (Günther Teubner ed., 1997); Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM (Christian Joerges, Inger-Johane Sand and Gunther Teubner, eds.) 3-28 (Oxford & Portland Oregon: Hart Publishing, 2004).

Political Liberalism and the Temptations of Managing Private Conduct: Spain, the EU, and Legislative Control of the Private in Rights Based Regimes

There is a certain tension in the conception and operation of modern Western liberal states. On the one hand, these states are based on notions of rights--especially those that reduce the power of the state to intrude in the affairs of individuals. Europe especially has cultivated a cult of the private and even the communal sub-national right: human dignity, culture, language, association, sexual practices, private political and social belief, lifestyle, etc. At the same time, modern Western states have increasingly formalized their legal foundations in a peculiar kind of democratic theory and legislative positivism that suggests (and Rousseau would be pleased with the result) that the state, as the embodiment of the genius of the nation (that is the collective will of the population from which sovereignty derives), ought to be able to elect to govern (through positive law enacted by its legislature), when and as it will.

Very large receptacles could be filled with the extraordinary, and sometimes very interesting, material written on this tension and its effect on the construction of legitimate states. In the United States, the issues are sometimes considered from the perspective of the "counter-majoritarian difficulty." The object is to attempt to balance the rights of individuals against the power of the state (that is the power of the tyranny of the majority exercised through the legislative power) while preserving the democratic and participatory character of the state. In Europe and other parts of the world, the tension is more directly stated and governed by competing instruments: constitutions, human rights conventions, and supra-national treaties.

But my purpose here is not to consider again the difficulties of of institutionalizing some sort of legally framed balance between the collective and the individual. Rather it is to note a study, recently released by the Future Foundation on the attitudes of Europeans to the notion that government ought to take a more aggressive stance toward the regulation of private or social conduct ("El 37% de los españoles no quiere que se vendan refrescos en el 'cole','" Qué!, June 22, at 2). The Future Foundation conducted a survey of 11,000 Europeans to discern attitudes toward regulation. They discovered a willingness by a majority of Europeans to tolerate even fairly intrusive legislation, including the funding of government campaigns to change purely private social behavior. Most of the sort of legislative action approved is not surprising: reducing highway speeds, limiting the consumption of certain types of food at schools, eliminating vending machines from hospitals and the like. These are all actions and opinions that European share with Americans. But the more interesting result was in general opinion about the role of the state in private lives. "En él se recoge que el 53% de los europeos está en favor de imponer algún tipo de restricción en distintas esferas de la vida privada, y que un 37% de los españoles apoyaría campañas para reducir el consumo de alcohol . . . ¡en los hogares!" (id.). That is right-- at least 53% of European would favor intrusive legislation and a minority, though a substantial minority, of Spaniards even favor spending public money on government efforts to reduce alcohol consumption in the home.

As the state expands its role in social organization, as it seeks to take on for itself a monopoly role in the construction of the social state, it would seem necessary for the state to take on powers that, in an earlier day the West condemned in governments like those of the USSR under Stalin or the PRC under Mao. Still, it is not unusual for the state to seek to direct social policy, even in the most private of sectors. Princes since Augustus have sought to regulate everything from marriage and family formation, to the food and consumption behavior of its citizens, all with more or less success. And in a social order in which the state could not hold a monopoly of power over behavior, because it had to share that power with competing social, religious, ethnic and cultural communities, state power was a healthy ingredient. State regulation, in effect, provided the bond that tied all the disparate members of a political community together. In the old days, the balance would be tipped in favor of private communities when they managed to co opt the state. For example, institutional religions of one sort or another commonly used the state as a vehicle for the imposition of their "law" on all members of the political community, even those who rejected the view of that sect. On the other hand, in the absence of substantial competition for control, the balance can too easily be tipped the other way. When technology and a public policy favoring efficiency and harmonization of practices may tip the balance far too much toward state domination of social norms. But rather than use the state to protect individual social conduct choices, individuals prefer to use the state to favor one set of norms over another. And we are not speaking about the great foundational norms that affect the character of a nation or its foundational culture. Those norms appear to be out of bounds. Instead we are looking at a growing taste for formal. legalistic control of sub foundational matters--not whether one can drink at home, but what kind of wine is offered and how much is appropriate at table. This is the sort of micro-management that used to be impossible, but given technological advances who knows how well the state may be able to impose choices on individuals (and by state here I mean the majority of the people through their elected representatives exercising legitimate state power). Cf. Larry Catá Backer, Culturally Significant Speech: Courts, Society and Racial Equity, 21 U. Arkansas Little Rock Law Review 845 (1999).

The Future Foundation study, thus suggests that an important level, the population of many democratic states, are still more than willing to use the state to impose social conduct rules. The notion of soft law, or of rules that bind like minded members of affinity groups, like religious organizations, etc., seems to continue to fade in the public arena in favor of a more formalistic and legalistic approach to political regulation. The great irony here is that this sentiment, as it may affect government policy, arises just at a time when in other sectors of communal life, and principally in the economic sector, we have witnessed the rise of great systems of soft law and a growing movement in favor of functionalist, communal norms controlled by those who are affected. Thus, as business tends to lobby states for greater independence from control through legislation, individuals seem more disposed to direct control. Free markets appear to be good for business but bad for individuals. Or the great social communities that used to guide individuals before int he West--clubs, churches, social networks, etc, may no longer be strong enough to provide the foundation necessary to order everyday life, and into this void the state may step in.

On the Serendipity of Enforcement of Regulations: Of Body Odor and Air Travel

No one likes to sit for long periods of time next to a fellow air passenger who has not bathed and whose pungency has reached extremes (by the usual standards of measurement in ordinary society). Odors are strong stimulants. Most airlines have regulations, sometimes vaguely written, sometimes more direct, empowering their employees to remove passengers for a variety of offenses, including body odor. But the rules are vague and enforcement spotty. The result is the appearance of arbitrariness that may contribute to an increasing lack of respect for the authority of the airlines and its agents.

Consider the case of the German tourist who was recently refused the right to board a flight from Los Angeles to Honolulu after the person in the seat next to him complained that the man "stank of high heaven" or something like that ("Le bajan de un avión en Hawaii por apestar," Qué!, June 20, 2006 at 28). Well, OK, I guess. The airline used its authority to make a decision about a particular person at a particular time. But the story becomes more interesting, at least as reported. Having been denied the right to board the flight to Honolulu, the German gentleman was required to "stew" for several hours at the Los Angeles airport, after which he was permitted to board (an even longer duration) flight to the East Coast for eventual return to Germany (which took even longer because he missed a connection). Same man, perhaps now considerably more pungent, first denied passage and now encouraged to fly on an even longer air travel journey without objection of any passenger or airline personnel.

Consider this from the perspective of the passenger: the aggregate conduct of the airlines appears arbitrary. One airline on one flight denies him passage, and yet another (and perhaps even the same carrier) on another flight permits him to fly. Of course we do not have all the details (perhaps he was made to wash between flights, but then why not fly to Honolulu on the next post-bath flight?; perhaps he flew home on different carriers with different rules; perhaps people on the eastbound flights had colds or stuffy noses). Still, the impression one might be left with is that one's right to travel is entirely in the hands of "front line" staff with the power to enforce or not enforce a set of badly communicated and ambiguously written rules, triggered sua sponte or on the complaint of a fellow traveler whose motives may not always be "odorless."

The consequences for both passenger and airline are not positive. First, this is the sort of system that might breed corruption--might it have been possible for the passenger to induce a different result with a little money? It also amplifies the dangers that the rules will be applied in a manner that mirrors the prejudices and presumptions of airline staff--African American passengers for years have complained about the much greater attention they tend to receive from staff than their similarly situated majority race traveling companions. Even in the absence of corruption, this sort of rule set-up may easily produce in the passenger an increasing sense that the rules are not fair, or fairly applied, or that there are no mechanisms readily available to discipline those charged with enforcing the rules. Where the rules are also difficult to access, and even more difficult to understand, it is easy to see how a passenger might begin to develop a sense that the rules themselves are unfair or arbitrary and not within his control. Certainly the passenger will feel disconnected from the rule and alienated from its enforcers. The rule, and perhaps even the institutional structures for its enforcement, become less legitimate in the eyes of the passenger. As a consequence, the passenger might be more inclined to subvert them in the future, or to permit others to subvert either the rule system or the institutions charged with their enforcement. While this may matter little when it comes to the enforcement of odor rules, the consequences may be more severe when the subversion leads to less attention in matters of security on board planes.

Thus, the tale of the smelly passenger has important institutional and legal implications, not so much for air travel, but for the way Americans increasingly relate to law and the institutions created to enforce them. As American law becomes more remote, byzantine, complex and difficult to access or understand, as American enforcement institutions lose traditional restraints in their relationship with the populations they serve (all in the name of excellent causes to be sure), the likelihood that positive law will become less authoritative, that corruption will become more prevalent, and that the population may become more willing to reject the system producing such a legal environment, becomes more real. At a time when security and global concerns make fairness, institutional integrity and legitimacy more important, Americans charged with the preservation of its political institutional legitimacy ought to have more a care about how they go about crafting and enforcing law in the United States. The American Republic's Founders were concerned with the twin evils of inefficiency and tyranny; the story of the smelly passenger reminds us of the ease with which even the most finely crafted set of institutions in any political system can slide toward both inefficiency and tyranny at once.

The Catalan Autonomy Statute and Economic Globalization

After a long and often tedious multi-year effort, combining the sometimes Byzantine politics of Catalonia and the increasingly bitter national politics of Spain, the deal cut by mainstream political leaders and presented to voters in the form of the new Catalan Autonomy Statute has been approved (“El ‘Sí’ Guanya,” Qué, June 19, 2006 at 1). All 107 pages of the new Autonomy Statute may be viewed at http://www.gencat.net/nouestatut/cat/index.htm.

I have written a little about the campaign in support of the Statute, on at least one negative perspective, and the attempts by outsiders to some outsiders, like Jerry Adams from the North of Ireland, to influence the outcome (). Not that the vote presented Catalan leaders with any sort of mandate—one way or another. Fewer than one half of the electorate even bothered to participate in the referendum; according to a local newspaper, only 49.42% of registered voters participated (“Sí al l’Estatut, pero la majoria de votants es queda a casa,” Qué, June 19, 2006 at 2). On the other hand, 73.9% of those who voted approved the revision (id.). Yet, this is hardly a mandate, and is barely legitimate, even by the measure of extreme devotees of formalist “winner-take-all” democratic theory, except perhaps by American standards. In any case, the Spanish central government has accepted the result, even as the opposition party (the Partido Popular) prepares to fight the new Statute.

But my purpose today is not to analyze the vote for the new Statute. I will assume that that Statute is not only legitimate but will be implemented successfully in full—no necessarily easy task. Instead I want to suggest some consequences that follow on the adoption of this new Autonomy Statute from the perspective of EU and international business. The short answer is that the Autonomy Statute changes little for the business community. The longer answer is that, to the extent that the Autonomy Statute reconstitutes Catalonia as a solo national player, it will make it easier for large and wealthy multi-nationals to deal successfully with the new government with little fear that the central government of Spain will interfere in defense of Catalonia. Catalonia will join the ranks of smallish states at the mercy of much more powerful economic collectives against which it must bargain for its share of the global economic pie with much less to offer as a small quasi-state.

What will change for global business in Catalonia with the adoption of this new Autonomy Statute? Very little. To a great (and increasing) extent, Catalan economic regulation is controlled from Brussels and not necessarily from Madrid. It is true that Barcelona will have a little more leeway perhaps in the extent to which it might transpose EU framework legislation that will have very little effect on the objectives or focus of such legislation. Business will continue to look increasingly to Brussels rather than to the capitals of the Member States. To the extent that Member State economic legislation is important it is with respect to the usually marginal advantage that one form of transposition offers over others.

Two issues might be of more interest to business—the elevation of language issues and the greater judicial autonomy granted Catalan courts. But these changes have more theoretical than practical effect for business. With respect to language, it is true that Catalan now becomes a more officially important language, but that is of little moment to business. First, Catalan has served a one of the two lingua franca of the Catalan provinces for years. Businesses with interests in serving that language community have already invested in the appropriate language advertising. The market has long dictated the appropriate language of consumer products (at least) in the region. Second, language may not matter. The EU has recognized, in a series of decisions of the European Court of Justice, that business is required only to convey information in a form which can be understood, even if it is not in the national or regional language of a place. Thus, even if it wanted to, it is unclear at best whether the Catalan authorities could force business to label in Catalan. Certainly they would be unable to mandate Catalan only communication (since Castilian and Catalan are now formally equivalent official languages of these provinces).

With respect to judicial autonomy, again, Catalan independence, or autonomy, is trumped, on the one hand by the powers retained by the Spanish central government, and more importantly, by the power of the European Court of Justice with respect to the competences of the EU. While there may be room for some changes at the margin, in the long run, that margin will prove far less important for business than for politics in Catalonia. Catalan courts remain bound at the outer boundaries by the Spanish Constitution, the European Human Rights Convention and the EU Treaties. The move to independence does little to provide Catalonia with much legislative leeway.

On the other hand, autonomy may advantage business. To the extent that Catalonia now stands alone, its power, relative to that of global businesses, will have been reduced. Catalonia now more directly must compete for global capital and investment with a host of other states. This alone will reduce the possible freedom Catalan political officials may be able to assert. Especially within the EU, any move toward increasing the transaction costs of operating within Catalonia will only have the effect of moving business either to other parts of Spain or to other parts of the EU. Other than transportation costs, companies can operate anywhere within the EU and retain the same rights to free movement of goods, workers and services. To the extent that Catalonia attempts to increase the transaction costs of foreign business, they also can move to other parts of the EU and then freely move their goods into Catalonia. The result could well be a surfeit of goods in Catalonia and an absence of job creation. Independence appears to vest Catalonia with power it cannot use effectively, except at the margin.

Perversely, the separation of Catalonia makes it a more interesting target for large global corporations in search of willing states in which to settle. A Catalonia fearful of losing jobs may be more willing to deal with companies seeking advantageous treatment—the principal complaint of developing countries in their relations with large multi-nationals. As a small state, Catalonia may to agree to terms that might otherwise be unpalatable to retain work. The recent difficulties of keeping the local Braun plant open in Catalonia is a case in point and perhaps a harbinger of future problems ("The German multinational Braun, which is owned by Gillette, which, in turn, is owned by Procter & Gamble, has announced the closure at the end of 2008 of its only manufacturing plant in Spain -in Esplugues de Llobregat (Barcelona)." "700 to Lose Jobs at Braun Plant," ThinkSpain.com, May 19, 2006, available at http://www.thinkspain.com/news-spain/11159).

The reality of self-determination in a world dominated by the realities of economic globalization is that it provides a great symbolic value but fairly small practical value, especially for states closely tied into networks of supra-national regulation. Catalonia has been able, at last, to overcome the ghosts of its tragic past. Perhaps this movement toward autonomy was necessary to extirpate the ghost of Franco. But a move to more independence in fact will yield Catalonia little in practical terms, much more in symbolic terms (ambassadors, acceptance of the Catalan language as an official form of expression within Europe, etc.), and open the possibility for greater exploitation by business that are consolidating even as Catalonia fractures itself from Spain. The future of this region will prove instructive indeed.

Corporate Social Responsibility and Voluntary Codes: Apple, its Stakeholders, and its Chinese Laborers

The last 30 years or so have seen a growing interest in voluntary corporate codes. These codes have been advanced as a means of regulating the behaviour of economic collectives—and especially multinational corporations—and those with whom these corporations interact in the global market. Voluntary codes have been crafted to regulate both internal corporate governance and corporate business ethics with a variety of stakeholders, including labour, suppliers, customers and nation-states.

Voluntary codes are essentially an unregulated global products market. Producers of all sorts have gotten into the market for the production of these codes. Voluntary Codes have been produced by individuals, organizations, states and international bodies. Codes are produced for direct consumption by business entities. All efforts to regulate these products have been unsuccessful.

Among the most well known public and public/private voluntary code producers are the United Nations (the U.N. Global Compact; http://www.unglobalcompact.org/), and the Organization for Economic Cooperation and Development (OECD, http://www.oecd.org/about/0,2337,en_2649_201185_1_1_1_1_1,00.html), a group of 30 mostly developed states working with a larger number of states, NGOs and other elements of civil society to produce a variety of codes of conduct for business.

Non-governmental organizations have also produced a large variety of voluntary codes, usually closely tied to their own particular political, social or other agendas. These range from those of human rights organizations to those or industry groups. Governments sometimes try to help frame the format and content of these codes—for example the Canadian Minister of Industry and the President of the Treasury Board has distributed a volume called, “Voluntary Codes : A Guide for Their Development and Use” (http://strategis.ic.gc.ca/epic/internet/inoca-bc.nsf/en/ca00863e.html).

The greatest sourced of voluntary codes, of course, are those produced by businesses themselves to govern their own conduct. While many of these follow guidelines established by industry associations or other industry friendly groups, these codes tend to vary widely to suit the tastes and needs of the adopting company. Most major corporations have many codes of conduct—some of them required by government. In the United States, for example, the Sarbanes-Oxley Act of 2002 created strong incentives to adopt codes of financial conduct. Yet most voluntary codes owe their existence to perceptions by corporations that the codes, and the conduct they describe, are good for business, and even better if these codes also describe the institutional view of the adopting corporation.

Human rights organizations especially have criticized these codes, or at least those versions of voluntary codes produced by governments and business organizations as ineffective and self serving. A typical critique is displayed on the web site of Human Rights Watch:

“These codes have been effective in changing some corporations' conduct, but they have shortcomings. They are typically written without consultation with the workers most affected, many of whom are not even aware of their company's code. They are usually written in vague language which looks good in corporate brochures but avoids some of the stickier human rights issues, such as how to do business in a country that bars labor unions, restricts the rights of women, guards company facilities with abusive soldiers, or uses joint-venture revenue to fund military abuses. With notable exceptions, the codes generally give independent organizations no formal role in monitoring compliance. They commonly address only workplace issues and the conduct of subcontractors, not broader societal concerns.” http://www.hrw.org/wr2k1/intro/intro04.html.

In a sense, then, codes are viewed as less legitimate because they are not imposed from outside by legitimate or authoritative political sources and are meant to deflect criticism arising from conduct consumers or other stakeholders find offensive. Putting aside the possible inanity of this line of reasoning (for example, does this suggest that the only legitimate action possible for non-state actors are those imposed by a government?) there is a legitimate issue worth exploring: to what extent do these voluntary codes, and especially those codes developed and adopted by a company, actually change corporate behaviour.

A recent story reported by the BBC on its web site, “iPod Slave Claims Investigated,” BBC News (UK Version), Business, June 14, 2006, available at http://news.bbc.co.uk/1/hi/business/5079590.stm, suggests that at least at some level, these voluntary codes—when coupled with monitoring from outside sources (for example NGOs or the media) may well tend to affect corporate behaviour at least to some small extent.

The story reads substantially as follows:

“Apple is investigating a newspaper report that staff in some of its Chinese iPod factories work long hours for low pay and in "slave" conditions. The article in the Mail on Sunday alleged that workers received as little as £27 a month, doing 15-hour shifts making the iconic mp3 player. Employees at the factory lived in dormitories housing 100 people and outsiders were banned, the paper said. Apple said it did not tolerate its supplier code of conduct being broken. . . . In a statement the firm said: "Apple is committed to ensuring that working conditions in our supply chain are safe, workers are treated with respect and dignity, and manufacturing processes are environmentally responsible." The company added it was "currently investigating the allegations regarding working conditions in the iPod manufacturing plant in China". The report said that at a different factory, in Suzhou near Shanghai, which makes the iPod shuffle, workers were paid £54 per month - but that half of that went on accommodation and food within the factory complex. According to the Mail on Sunday, women rather than men were employed on the production line. Apple is one of thousands of companies that has outsourced manufacturing to China where labour costs are low.”

There are several points to this story that make it interesting from the perspective of corporate social responsibility. First, Apple has adopted a code of conduct that essentially exports a set of behaviour norms on to its suppliers. Apple targets communication of this information to its investor community (http://www.apple.com/investor/) where it explains that “Apple is committed to ensuring that working conditions in Apple's supply chain are safe, that workers are treated with respect and dignity, and that manufacturing processes are environmentally responsible.” The Code itself is also available (id). The code itself is interesting. It is based on a model code prepared by the relevant industry group (this comes as no surprise), but it also incorporates certain international human rights and labor norms.

“Apple’s Supplier Code of Conduct is modeled on and contains language from the Electronic Industry Code of Conduct. Recognized standards such as International Labour Organization Standards (ILO), Universal Declaration of Human Rights (UDHR), Social Accountability International (SAI), and the Ethical Trading Initiative (ETI) were used as references in preparing this Code and may be useful sources of additional information. A complete list of references is provided at the end of the Code.” (Id.).

Second, Apple’s reaction to reports of the story of sub-standard wages was positive. It did not deny the allegations, it did not lash out at the monitors who brought the story to the press. Instead, it reaffirmed its commitment to its behaviour norms as set forth in its voluntary code, and promised an investigation of the allegations. Of course, we do not yet know the results of the investigation, or the depth of Apple’s ardour in pursuing this investigation, but here is an example of a voluntary code working more or less the way it is supposed to: serving as a basis by which corporations guide their workplace behaviour in a system in which informal monitoring mechanisms do sometimes produce effects. Stakeholders in global labour norms effectively were able both to monitor corporate behaviour and, at least in this initial phase, seek enforcement of inter-corporate standards.

Third, and this is not good news for those stakeholders seeking to rely on such codes, it is not clear that Apple’s voluntary supplier code was violated. Relevant language in the code provides

“Suppliers must pay wages, benefits, and overtime to workers in accordance with applicable laws, including those related to minimum wages, overtime, hours, and legally mandated benefits. Suppliers may not discriminate based on race, colour, gender, sexual orientation, ethnicity, religion, political affiliation, or marital status. The basis on which workers are being paid must be clearly conveyed to them in a timely manner.” (Apple Supplier Code of Conduct--Labour and Human Rights-Remuneration).

It is not clear that the conduct complained of violates the Code. And that is the trick to these codes. The problem here is that the nature of the violation—very low wages, much of which goes to pay for housing and food—may not violate the applicable laws of the People’s Republic of China, though surely they violate the laws of the United Kingdom and the United States.

The result is a mixed bag for stakeholders. On the one hand, Apple may be able to conclude its investigation with a vindication of sorts for its supplier, its Code, and the current wage policy. This may produce changes in the way Apple's supplier will conduct its business in the future, irrespective of the minima required under Chinese law. The changes would result not from an application of Chinese law or legal process, but by the application of remedies and powers available to Apple through its supplier agreement. Thus, for example, Apple may be able to cut off the supplier, refuse to accept goods from the supplier, or stop payments to the supplier under the contract until the supplier agrees to inspection, mediation and some action indicating a willingness to comply with the terms of the supplier agreement, at least as Apple understands it.

On the other hand, Apple might just "play to the media" and engage in a pro forma investigation producing no changes. But this latter approach carries dangers of its own. The same complex of civil society monitors and the media that produced the initial reports of possible violation can also distribute widely reports of Apple's refusal "to do anything about it." Even technical compliance unfavorably reported can be dangerous. Consumers may be disgusted by such technical compliance (especially in light of their own standards of right conduct) and that may affect sales of Apple products. As a consequence, Apple may wind up having to renegotiate labor conditions even though no policy was formally violated.

Thus the lessen: voluntary codes work best when they produce standards that can be monitored, when they are embraced by companies willing to investigate stakeholder claims of violation, and when stakeholders can affect the consumer markets for companies irrespective of the existence of the codes. Thus, ironically enough, the codes are merely a means through which stakeholder power is most effectively asserted—by affecting consumer markets. For proponents of free market globalization, this works very well indeed, even if it is uncomfortable for the affected companies; that is only business. For the stakeholders, including NGOs, this works well, too. They are able to skip the governmental middleman, so-to-speak, and directly affect corporate behaviour in a precise and targeted way. For NGOs weaned on the need for government intervention, this should serve as an assurance that the state is not a necessary predicate for effective action, even by those with no state power. Free market globalization was opened a great new market for consumer information; it is up to NGOs and other elements of civil society, as well as corporations and other economic actors, to get into the game.

Voluntary codes can work in the market, without formal bureaucratic structures or direct government intervention. All it seems to require are consumers, producers and taste-makers. Here is a very productive confluence of democracy and capitalism. But one in which there is very little room for the active participation of the state.