Globalization and Citizenship

There is a movement in the United States to deny citizenship to children born in the country to parents who have immigrated illegally. The advocates of this alarming proposal to “reinterpret” the Fourteenth Amendment defend it with statements like, “the primary requirements for U.S. citizenship are dependent on total allegiance to America, not mere physical geography.” The United States is not the only country to experience a movement to restrict birthright citizenship through some kind of allegiance test. In Europe, Ireland and France have moved away from jus soli citizenship to differing degrees, and there have even been recent calls in France to require children born on French soil of foreign parents to participate in a ceremony at age 18 to mark their passage into citizenship.

These movements represent more than opposition to illegal immigration: they signal a backlash against more fluid conceptions of citizenship widely embraced over the last few decades as a result of economic integration, migration, and more liberal national and international law on multiple citizenship. While the proposals seek to tie citizenship to allegiance and an immutable sense of belonging to a single national identity, there are indicators that individuals decreasingly conceive of their citizenship in such exclusive, permanent, and patriotic terms. Two examples come to mind.

First, voluntary renunciation of U.S. citizenship is at an all-time high: the number of Americans giving up their citizenship doubled in 2010 and continues to rise. Anecdotal evidence suggests that this group of former citizens is largely composed of wealthy individuals motivated by tax considerations, the United States being the only country that imposes citizenship-based personal income tax even on non-residents. In a recent example of this phenomenon, one of the founders of Facebook made headlines by giving up his U.S. citizenship days before the company’s IPO. These individuals, despite being American and apparently having lived the “American dream,” don’t seem to feel a particular loyalty or allegiance as an aspect of their citizenship.

Second, and more generally, recent decades have seen a steady growth in dual (and even triple) citizenship. Once viewed negatively by all nations, carrying multiple passports is now widely tolerated in national and international law and even encouraged by some states. This broader global policy shift shows that movements to entrench an early 20th Century conception of citizenship, while they may have some short-term impact, are unlikely to reverse the tide of changing ideas about what it means to be a national citizen in a world that is more interconnected than ever before.

Go On! Human Rights and the Global Economy

(Go On! is an occasional item on symposia and other events of interest)

With the recent and continuing global economic and financial crisis, the new "Occupy Wall Street" movement around the world, and the old and ongoing crisis of poverty, violence, and discrimination, it is no surprise that advocates and scholars are focusing on the theme of "human rights and the global economy."
The Social Science Research Network abstracts journal sponsored by Northeastern's Program on Human Rights and the Global Economy, Human Rights and the Global Economy (co-edited by Wendy Parmet, George and Kathleen Matthews, Distinguished Professor, Rashmi Dyal-Chand, Professor of Law, and yours truly, IntLawGrrl and Professor of Law Hope Lewis), recently received an announcement that describes an interesting independent conference on these themes sponsored by colleagues at the Center for Public Scholarship at the New School for Social Research and its journal, Social Research. Here it is:

HUMAN RIGHTS AND THE GLOBAL ECONOMY
Wednesday and Thursday, November 9-10, 2011
John Tishman Auditorium, 66 West 12th Street, NYC

The Center for Public Scholarship presents the 25th conference from the Social Research journal at The New School. Join us as experts and scholars discuss human rights as a mediating language for discussions about social justice and the global economy. How does a wealthy nation determine what they can do to alleviate global poverty? What are the ethical obligations and how can such assistance be mutually beneficial? What are the human rights responsibilities and obligations of international financial institutions and corporations? Where are the opportunities in economic policies and institutions to strengthen human rights policies around the world and improve social justice?
Full program and registration available here.
Keynote on Wednesday, November 9, 2011 6:00 p.m.
Olivier De Schutter [right], United Nations Special Rapporteur on the Right to Food, will discuss the role of human rights in shaping international regimes
See conference site for regular registration fee.
All students (with valid ID): Free
All New School faculty, staff and alumni (with valid ID): Free
Contact: cps@newschool.edu or 917-534-9330
The conference is made possible with generous support from the Climate Change Narratives, Rights and the Poor project at the Chr.Michelsen Institute (CMI) in Bergen, Norway.

On January 7

On this day in ...
... 2010 (today), is marked, at least in olde European tradition, "St. Distaff's Day." There never was a saint by that name; however, in the middle of the last millennium the distaff was central to life's day-to-day routine. It was the stick, or "staff," like that the woman at right cradles in her left hand, around which was wound the flax (in German, "dis") to be spun into thread for weaving. (image credit) January 7, the day after the Christian feast of the Epiphany, "was the end of the Christmas festivities and the return to the normality of spinning whenever there was a spare moment." Nearly every woman spun, no matter what her class. That is no longer true, of course. Reflecting in 2005 on the sweatshop conditions too common in global factories (prior posts here and here), Maureen James, a Britain-based folklorist, wrote this about textile workers:

Do these people have a 'Distaff Day', do they have a break for their festivals? Writing this article made me wonder if we should bring back Distaff Day -- not as a time for us to pick up our spindles, but as a time to consider those who are doing the spinning now…

(Prior January 7 posts are here and here.)

On November 30

On this day in ...
... 1999 (10 years ago today), what had been scattered anti-globalization demonstrations the day before, of a ministerial meeting of the World Trade Organization in Seattle, turned into street protests that, according to a website set up by the University of Washington libraries, "forced the delay of the WTO opening ceremonies." Soon joining in were "youthful, out-of-control, self-proclaimed 'anarchists'"; by midday local police "ran low on tear gas, bus service was suspended downtown, and many businesses closed their doors." (credit for photo of police directing pepper spray at protesters on this day) A state of emergency and curfew were declared; "forced retreat" occurred amid vandalization of local businesses. Collapsed WTO talks would be resumed in 2001 at Doha, Qatar.

(Prior November 30 posts are here and here.)

Global corporate citizens & foreign investment

(My thanks to IntLawGrrls for inviting me, guest blogger, to contribute the foremother dedication below, as well as this post about my forthcoming article forthcoming in the Michigan State Journal of International Law, Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law)

Globalization in the form of foreign direct investment has not lived up to its promise to promote prosperity around the world. Many of the anticipated benefits to developing countries and their citizens have yet to materialize. True, laws promoting foreign direct investment contribute to technology transfer, increased tax revenues, and other economic benefits. However, existing laws are lax, one-sided, or limited in scope. They allow transnational corporations to cause harms like property damage, personal injury, and significant environmental damage. Insufficient protections and limited avenues for redress encourage transnational corporations to chase profits with limited concern for consequences.
In my forthcoming article, I argue that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. In this article, I posit that Global Corporate Citizenship is an opportunity to reframe and reform foreign direct investment law.
This paper is part of a larger project on law and Global Corporate Citizenship, in which I analyze ways to reform the regulation of transnational corporations. In this series of articles, I identify gaps in the international and domestic regulation of transnational corporations, explore reasons for these gaps, set out a Global Corporate Citizenship framework for more comprehensive regulation, and develop proposals for the implementation of this framework.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'We have never before been so keenly aware that in this world of ours we need cooperation as intimate as that among the cells of one body.'

-- Queen Juliana of the Netherlands, in an April 3, 1952, speech before Congress (right), as quoted in ch. 66 of Present at the Creation (1st ed. 1969), the memoir of Dean Acheson, former U.S. Secretary of State (prior post). The Dutch monarch was the 2d woman to address a joint session of Congress. (credit for Life magazine photo) The 1st had been her mother, Queen Wilhelmina, in 1942. Juliana's statement serves to remind that neither global interdependence, nor globalization, is a new phenomenon. Nor, indeed, resistance to same. For Juliana's speech fell short of its intended purpose, to persuade a protectionist Congress to aid Europe's postwar reconstruction by easing U.S. restrictions on international trade. As Acheson put it:

[H]er words did not soften opposition to imports of Dutch cheese.

The Face of Hunger

View this movie at cultureunplugged.com

This video is a trenchant comment on the relationship between globalization and hunger.

Go On! Global South Scholars' Institutes

Brown's International Advanced Research Institutes (BIARI), intensive summer workshops for junior scholars from the Global South, are still accepting applications. According to the BIARI's director, Professor Ileana Porras :

The objective of the program is to provide a platform for promising young faculty from the Global South and emerging economies to engage in a high level and sustained intellectual and policy dialogue with leading scholars in their fields, and to foster scholarly networks among young faculty, while providing them with an opportunity to develop their scholarship agendas.

The institutes are organized around 4 key themes:

►Toward a Global Humanities: Critical Traditions from the Global South;

►Law, Social Thought, and Global Governance;

►Technology, Entrepreneurship, and Management (including technology and development (about which we have posted here);

►Development and Inequality in the Global South.

Applications are being reviewed on a rolling basis as of March 15, 2009. Further details are available here.

Go On! "What Is the Global Family?"

(Go On! is an occasional item on symposia of interest) On March 20-21, American University Washington College of Law's Women and International Law Program and the Harvard Law School Program on Law and Social Thought will be hosting a Workshop on Comparative Family Law: What is the Global Family? Family Law in Decolonization, Modernization and Globalization. The Workshop is part of a series of workshops aimed at assessing the "exceptional" place of the family and family law in decolonization, modernization, and development. The 2009 workshop will bring together scholars from the U.S., Canada, Latin America, Europe, the Middle East, and Asia to compare systems of family law worldwide, providing a rich methodological framework for exploring the impacts of immigration, globalization, and public policy on the family, and vice versa. The inquiry seeks to find the role of family and family law in different legal discourses about post-colonial identities, nation-building and modernization, law and development, international trade law, comparative constitutionalism, the relations among state, society and individual, and private/public distinctions within domestic legal regimes. For more information, visit the conference website.

A "New Deal" for Human Rights in the Global Economy

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
--Universal Declaration of Human Rights, Art. 25(1)

Times of great crisis also represent moments of opportunity and innovation. They can signal significant paradigm shifts. That’s the best that can be said about the worsening world economic crisis at the moment.
The old neo-liberal Washington Consensus, financial and banking deregulation, and dependence on our unbridled individual and collective consumerism, have been abject failures in providing an adequate standard of living for the vast majority of the world’s peoples. The situation requires alternative approaches to global and local economic policies.
The Human Rights Implications
The global economic crisis may well exacerbate violations of civil and political rights. Massive poverty and socio-economic dislocation, and competition over scarce resources historically served as a trigger for violent conflict, discrimination and scape-goating of racial or ethnic minorities, and government crack-downs on civil liberties as social unrest rises.
But the current crisis, and the neglect of socio-economic justice that preceded it, already have had devastating economic and social human rights effects. The problems are well-known: malnutrition and lack of access to affordable food and clean water, homelessness, lack of access to primary health care, and educational inequality. Such human rights violations are all associated with the poverty, land insecurity, and unemployment that are spreading throughout even “developed” countries. (Photo: UN Independent Expert on Human Rights and Extreme Poverty, Magdalena Sepulveda.)
The accepted wisdom has been thrown open to challenge. It is time for new ideas, as well as renewed urgency in efforts to generate the political will necessary to put some “old” good ideas into practice.
Among those ideas and priorities are
►sustainable development that includes human development (see, for example, the Millennium Development Goals);
►the interdependence of civil and political rights and economic, social, and cultural rights; and
►the need for mandatory and voluntary mechanisms to ensure the responsibility and accountability of private business and financial enterprises.
Sustainability and a “Green New Deal”
In a speech at the gloomy (previously opulent and celebratory) World Economic Forum in Davos, Switzerland this week, UN Secretary-General Ban Ki-moon called for what might be one such new-old approach. He advocated for a “Green New Deal” that would attempt to address the “truly existential crisis” of global climate change through international, governmental, and private sector strategies. Positive action on climate change, he hopes, would also stimulate the world economy and slow the global recession.
Domestic and Global Observance of Economic, Social, and Cultural Rights
Some African and European leaders reminded increasingly inward-looking representatives from the Global North that it is the poor in both North and South who will suffer the worst effects of economic and environmental crises.
If we’ve learned nothing else in recent years, we should now know that seemingly far-away poverty, political and social oppression, health crises, and environmental devastation, can be directly linked in cause or impact to the backyards and kitchen tables of the Global North. The negative effects of poverty, labor abuses, environmental toxins, and insufficient public health services have a way of crossing borders.
Attention to international co-operation in economic and social development is, therefore, not only a matter of international human rights law, it is also a moral commitment and a matter of domestic national security interest for many nations.
Similarly, government obligations to respect, protect, and fulfill international economic and social human rights cannot simply be abandoned in times of economic difficulty.
The International Covenant on Economic, Social, and Cultural Rights, for example, requires even the poorest states parties to take steps to fulfill their obligations “to the maximum of available resources” (Art. 2(2)). The UN Committee on Economic, Social, and Cultural Rights (CESCR) issued instructive interpretive guidelines with regard to non-discrimination and minimum core obligations for states hoping to protect rights while managing economic challenges. (See, e.g., General Comment No. 3 on “The Nature of State Obligations” and the influential Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights).
►Non-discrimination: A fundamental human right under all major international treaties, the prohibition on discrimination on the basis of race, color, sex, national origin, class, or other status can and should be implemented immediately even by poor states or states in economic crisis.
Any stimulus packages, therefore, should not, in intention or effect, discriminate on such prohibited bases. For example, if massive infusions will be spent on bringing physical infrastructure up to code or improving it, will the jobs created in construction and engineering include racial, ethnic, and religious minorities and women? To the extent that they have been previously excluded from those jobs, attention must be paid to targeted “special measures” such as recruitment and training.
►Minimum Core Obligations: Fundamental human rights necessary for an adequate standard of living include the right to food (and water), housing, education, the supports necessary for physical and mental health, and work at a living wage and under safe conditions.
The initial reaction to the continuing call for economic and social rights in an economic crisis is to charge that they are “too expensive” or “luxuries” to be considered in a time of prosperity. Ironically, of course, very few placed priority on such rights and conditions even during times of the false prosperity and economic growth some countries previously enjoyed. Now may be the best time to pressure the global community to finally take such rights seriously.
As indicated in an earlier post (Financing Human Rights), fulfilling our legal and moral obligations does take money. Nevertheless, if there is still serious debate in the U.S. over whether the billions of dollars in bonuses paid to executives working for bailed-out financial institutions are appropriate, perhaps we can afford to seriously debate whether addressing the basic needs of billions of poor people should also be considered an economic incentive and stimulus.
International human rights law recognizes that the economic resources available to a country may be limited. However, each state can make a start by respecting, protecting, and fulfilling minimum core obligations with regard to human rights. The CESCR and leading international policymakers, development experts, and legal scholars have outlined criteria by which to elaborate such obligations and measure progress. (See, e.g., Human Rights and the Global Marketplace: Economic, Social, and Cultural Dimensions (Jeanne M. Woods & Hope Lewis, eds.).
Corporate Responsibility and Accountability
Secretary-General Ban’s “Green New Deal” speech also was directed to the private sector. Recalling former Secretary-General Kofi Annan’s “UN Global Compact,” Ban called for a “Global Compact 2.0.” The reconceptualization is supposed to integrate corporate responsibility and technological innovation to address global climate change that would also ameliorate economic recession.
In another move, a press release issued by Professor John Ruggie, the Special Representative of the Secretary-General on Business and Human Rights, announced a new initiative on corporate law and human rights. Leading corporate law firms agreed to work with the UN to explore “whether and how national corporate law principles and practices currently foster corporate cultures respectful of human rights.”
It remains to be seen whether business actors will step up to the plate when many seem to be desperately casting about for their own survival.
“Developing” Toward What, and For Whom?
Economists and budget analysts can and do assess the positive economic impact of investing in public health and preventive health initiatives, early childhood education, environmentally sustainable housing, living wages, and safe working conditions.
The central motive of the human rights movement, however, is the belief that these rights are core human values whether or not they are always economically efficient. Still, isn’t such a truly developed society one in which we all would wish to live?

Financing Human Rights in a Global Crisis

It’s been a busy and challenging Human Rights Week for IntLawGrrls. December 9 marked the 60^th anniversary of the UN Convention on the Prevention and Punishment of the Crime of Genocide (see Diane Marie Amann's post here) and December 10 marked the 60^th anniversary of the Universal Declaration of Human Rights (see a post on the history of its drafting and adoption by Stephanie Farrior here and other IntLawGrrls' commentary on the UDHR here ).

In what we hope is another groundbreaking move, the UN General Assembly commemorated Human Rights Day by adopting the long-awaited Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights (see Stephanie Farrior's post here).

Despite the longstanding view endorsed by the international community that all human rights, whether civil, political, economic, social, or cultural, “are universal, indivisible and interdependent and interrelated,” (Vienna Declaration and Programme of Action), economic and social rights are still dismissed or viewed with suspicion in some circles (see Human Rights & the Global Marketplace: Economic, Social, and Cultural Dimensions by Jeanne M. Woods (photo right) & Hope Lewis).

A remark recently overheard at a UDHR celebration illustrates the continuing misperceptions. The speaker dismissed ESC rights as alien to an “Anglo-American tradition.” This, despite the fact that no less American a figure than U.S. President Franklin D. Roosevelt called for the indivisibility of rights (freedom of speech and expression, freedom of religion and belief, freedom from want, and freedom from fear) in his famous 1941 “Four Freedoms” speech to Congress.

The various celebrations commemorated how far the international human rights movement has come, but they also shed light on how far we have to go. The standards outlined at the UN will constitute only empty promises without the political and economic commitment to back them up.
Genocide, mass killings and sexual violence, poverty, labor abuses, war, crimes against humanity, political and economic migration, human trafficking, the over-incarceration and under-education of minority youth, discrimination against indigenous peoples and racial, religious, sexual, and disability minorities and women, and environmental destruction caused by carbon emissions, unregulated mining and dumping of toxic industrial and electronic waste—all are, or are related to, continuing and massive violations of international human rights.
It is a time of global crisis, with almost every economic system and country feeling the effects. No one, including politicians, economists, and development experts, seems to have “the solution”. I don’t either (although, as a former U.S. securities regulator, I suspect that wholesale financial deregulation played an important role in the mess). (Disclaimer: The latter is solely my opinion, and does not necessarily reflect that of the U.S. Securities & Exchange Commission or its staff.)
I do know this. A human rights perspective requires states, the international community, and each of us as members of society to protect fundamental human rights as a matter of priority. Some such efforts may even save some governments money, since the apparatus necessary to imprison political dissidents, torture detainees, and engage in unwise military adventures is often expensive.
Still, the protection of human rights, whether civil, political, economic, social, or cultural does require financial investment and political commitment.
Private donors, foundations, and charitable organizations do what they can to support vulnerable populations (see, for example, a recent press release on grants to 33 developing country NGOs by the Disability Rights Fund).
But governments have explicit moral, political, and legal obligations to make an investment in human rights on a much broader scale. (Note, for example, their commitment to the Millennium Development Goals and the recent International Review Conference on Financing for Development). A paradigm-shift toward human rights and human development is more likely to produce longer-term and more widely distributed benefits than failed neo-liberal paradigms have left us so far.
Like industries that are now considered “too big to fail,” individual governments and the international community simply cannot afford to consign millions to unemployment, unsafe working conditions, poverty, hunger, discrimination, and lack of access to health care.
As world leaders grapple with the global effects of financial and environmental shocks, the needs and rights of those who are most vulnerable and who will be most adversely affected must be front and center. Such an approach is not only just, compassionate, and legally-required; it’s crucial domestic and international policy.

Death by Consumption on Buy Nothing Day

Taking its usual delight in reporting on the freakishness of life in the United States, Le Monde reported the death of a New York Wal-Mart employee, crushed to death by the stampeding crowd of 2000 shoppers rushing in to fill their baskets on what is apparently known as "Black Friday" (I remember the sales on the day after Thanksgiving, the biggest shopping day of the year in the US, but this is the first I've heard of Black Friday). The special irony was that this tragic event occurred as the day was dawning in some parts of the world on the annual "Buy nothing day" (poster above), begun in 1992 in the United States and Canada with the cry "Enough is enough !"and taken up by the French organization Casseurs de Pub (Adbusters). The goal is to make people aware of the human and environmental costs in producing all that we consume and in discarding all that we can't or don't eat, reuse or recycle. Yet here where there is fairly strong anti- and alter-globalization sentiment, the day has received almost no coverage in the press. Despite the precipitous drop in spending power since the introduction of the euro now aggravated by the global economic crisis, the focus is on pushing consumption to shore up the economy. Le Monde's linking of these two stories on its websites seems like a subtle call to push back.

Read On! "Hot, Flat, and Crowded"

(Read On! ... occasional posts on writing we're reading)

The ever-provocative New York Times columnist Thomas L. Friedman has just published his latest book: Hot, Flat, and Crowded: Why We Need a Green Revolution--and How It Can Renew America, which explores how the twin flames of climate change and our insatiable thirst for energy impact our world.
In short, Friedman sees a problem. And not just a small problem, but one that threatens to end the world as we know it. It may seem melodramatic, but Friedman is not an author to shy from melodrama and "catchy" over-exaggeration (his claim that no two countries that both have a McDonald's have ever fought a war against each other has since proved false).
In fairness, this particular problem is so dramatic it is not susceptible to hyperbole: If we cannot manage to curb our insatiable lust for energy, we risk no less than a major environmental catastrophe. Global warming promises to create a world that is hot, flat, and crowded . . . perhaps even uninhabitable. Friedman presents evidence that is both compelling and indisputable that we are rapidly heading towards the point-of-no-return. The tipping point is the doubling of CO2 emission into the atmosphere. If we go past this magic number, "all the climate monsters will come out the door."
But hope is not lost. Friedman puts his faith in transformational technological breakthroughs and American leadership. He calls for the adoption of a national strategy of "Geo-Greenism," which will not only combat climate change but will “reknit America at home, reconnect America abroad, retool America for the new century, and restore America to its natural place in the global order.
This (figurative!) call to arms is an important message that sometimes gets lost in its patriotic wrapping. Climate change is not an American problem but an international one of epic proportion. Indeed, America is unlikely to be the Biggest Loser in the climate change game--just consider what will likely happen to vulnerable and poor Pacific-island nations. Moreover, in a post-September 11 world where America has shamelessly squandered its good name, does the world even see us as having the moral authority to lead?
As the "God of Globalization," Friedman understands only too well how interconnected we have become: Pollution in India's Ganges River has a direct impact on the quality of life in New York. Each coal-gobbling factory China erects competes for resources with an Indonesian child. And every time a woman in Southern California cranks up her air conditioner, the ripple effect travels on wings of butterflies to the Brazilian favelas.
Green is not "the new red, white, and blue." Green is universal.
We need a strategy that allows all the worlds people to take ownership of the problem so that together we can construct a solution. Friedman's call for American leadership sounds in the idealistic 1960s when America was poised to solve the world's problems. But in the 21st Century, WikiPedia's model is perhaps the better approach.

Globalization + oil may = relocalization

Several years ago I read an article in the Nation called The Sweat Behind the Shirt exposing the globalized labor practices of a major American clothing manufacturer. Aside from the oppressive working conditions and the incredible profit margin, what struck me was the diagram showing cargo ships (image credit) of materials and shirts criss-crossing the oceans several times, enabling goods to be manufactured overseas at low cost with a final touch in a US territory permitting the company to affix the highly prized "made in USA" label. A recent article on changes in China's economy indicates that such practices may be coming to an end: with both the yuan's value and the price of oil increasing, American companies may bring production "home" (to the US, but also Mexico and Canada). This should be good news, and seems quite logical: manufacturers seek cheap places to produce, but once the standard of living rises and those cheap laborers begin to ask for more, labor costs rise to meet those at home. Yes, you read that correctly. It means that even US labor costs may be the same as Chinese labor costs. Not so in France! The chief executive of a major French brand of kitchen appliances interviewed on my local radio station the other morning said that even with the increased price of oil, it is still cheaper for his company to produce certain parts overseas. Now, take-home pay was definitely lower in France than in the US when I first got here 20 years ago and I imagine it still may be, and the cost of living is definitely higher. The huge difference, then, is the health (including maternity) and unemployment benefits that French workers were awarded after WWII and have been striking (photo credit) to maintain ever since (travel advisory: Sarkozy's reforms are turning this June into a real test of wills, with strikes in several sectors including the trucking industry). All over the globe, of course, jobs are scarce and workers are faced with the non-choice of working for low wages without proper benefits or not working at all. Roumanian workers fed up with conditions at the Renault factory struck recently and the French car manufacturer capitulated because it couldn't afford to pull out of its investment. Depending on the sector then, we may be seeing companies either returning home or improving employment conditions abroad. What about in the US? Are rising oil and foreign labor costs turning it into its own (and perhaps others') cheap labor market?

Can Assistance “Save” Poor Countries?

Part I of a 2 Part Series

There is no question globalization has created significant riches for some countries; China and India are the two examples that come to mind. Yes, I recognize these successes are rather imperfect: China’s economic rise comes with frightening environmental costs we are just beginning to recognize, and the meteoric rise in India’s stock exchange cannot seem to eliminate the crushing poverty of millions of its citizens. But those consequences are at least in equal parts driven by a country’s own internal decision making as by globalization. In short, globalization produces wealth, and then we as fallible human beings do what we do best: We muck it up.
In this series, I want to move beyond the debate on globalization. Readers of my posts by now recognize I believe globalization comes with costs and benefits that must be adequately managed. Often they are not. The more complex and interesting question to me is whether we can use technical assistance to assist countries currently shut out of the world economy. Can transferring knowledge and providing aid and technology really lead to economic prosperity for poor countries? In other words, can technical assistance “save” developing countries?
Let me be upfront and say I may be somewhat biased; I have worked in technical assistance for almost half of the twelve years I’ve spent focused on international trade law. My interest has primarily been on Africa because I love a good challenge! Like everyone else, I want to believe my work makes a difference in the world. And I have had some measured and incremental successes to prove it. But have I ever seen a poor country rise to economic prominence because of the technical assistance work of another? Well, I’m an optimist so I’d have to say . . . not yet. In this post, I want to examine some of the problems in technical assistance delivery, and in the next explore some potential solutions.
Some claim trade-related technical assistance is a joke. Amy Chua in her book World on Fire recounts the story of the Americans in Mongolia who were sent out to advise the government on building free markets. The consultants were heartened when officials asked for several hardcopies of the voluminous U.S. securities laws—photocopied on only one side of the page. It turns out the Mongolians were not true converts to the U.S. system; they merely wanted to use the documents for scrap to alleviate the government’s chronic paper shortage. A few years back, Matt Bivens published Aboard the Gravy Train: In Kazakhstan, the Farce That Is U.S. Foreign Aid in Harper’s Magazine. Bivens claimed when a local Kazakhstani bureaucrat fancied a technical assistant provider’s red swim trunks, the advisor was forced to strip down and hand them over because angering the Kazahkstani bureaucrat might jeopardize his chance of returning to the bottomless well of USAID renewal contracts.
So, what can we learn from these and other stories of technical assistance failures? Three key points I’d like to make:

(1) Successful technical assistance requires “buy-in” from local officials and other key players
It sounds obvious, but it’s easier said than done. Remember, the money from these projects is coming from some rich country abroad, so for local officials it’s a “can’t lose” opportunity. That doesn’t necessarily mean the project is well-conceived, or that the recipient country is truly willing to implement it. For years I have thought recipient countries should “invest” in technical assistance. If it is something they really want—if they see a benefit in the project—then they should be willing to “pay” for it, either in cash or sweat equity. Few of us appreciate that which is given to us for free.

(2) Beware of the human emotions
Technical assistance providers arrive in the recipient country under a cloud of suspicion. Even as people are smiling and inviting you over to dinner, you can’t help but notice the question carefully hidden in their eyes: What does she want? It is not an illogical question; after all, technical assistance is not truly “free.” Rich countries provide it because they do want something—implementation of more favorable foreign investment laws, for example. And it isn’t as if the recipient country is blind to that reality: One African official characterized technical assistance provided by the World Trade Organization (and funded by rich countries) as “ideological.” In his view, providers came “to tell us what to think, what our positions should be.”
It is impossible to have a successful project unless these emotions are openly acknowledged and handled. The truth is, successful technical assistance is always “win-win.” Rich countries wouldn’t provide the funds if there was nothing in it for them, but recipient countries can work to ensure implementation also serves their interests.

(3) Don’t take your pants off for anyone

Enough said.

Legal transnationalization in French case involving crimes against humanity

Many thanks to IntLawGrrls for inviting this guest post on my article just published at 56 American Journal of Comparative Law 363 (2008), "Globalization, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case." The article takes a look at how law is transnationalizing within national legal systems, in processes that are not officially recognized or acknowledged.
Particular attention is paid to a recent, highly controversial French case -- Lipietz v. the State and the SNCF, the French national railway, which in 1944 had deported civil mining engineer Georges Lipietz, 21, and others to Drancy, the French internment camp near Paris. Decided in June 2006, the case marked the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. (Judgment here; English translation here.) The article demonstrates that the 2006 decision -- subsequently overruled by a higher court with respect to 1 of the defendants -- was modeled on Anglo-American tort law concepts that do not fit within the French legal tradition.
Under French law, the plaintiffs normally would have brought their claim in a criminal court, because the underlying allegations concerned a crime against humanity; however, the plaintiffs in this case were precluded from doing so for technical reasons. When the Administrative Court of Toulouse held in plaintiffs' favor, an uproar ensued in France. (Prior IntLawGrrls post here.) Some of the reaction was due to unarticulated distress at the court’s departure from entrenched categories of French law, I suggest, and thus to the rupture of associations between those categories and equally entrenched national assumptions about justice.
The article also explores why national courts can be motivated to change law unofficially even when the effect may be likely to elicit widespread public displeasure and even when the national legal system may not be equipped to adapt to such changes. Finally, it posits current challenges of legal transnationalization:
► identifying when such transnationalization occurs;
► understanding the consequences of legal transnationalization; and
►developing adequate measures to adapt to such transnationalization.

Déboire de la globalisation*

* Globalization’s heartbreaks.

Couldn’t resist the pun: a “déboire” is a heartbreak, disappointment or difficulty; “boire” means to drink. One drinks from a glass, and a heartbreaking (among other adjectives) result of globalization is that the French drinking glass company, Duralex, is going under, glub glub. Created in 1939, this handy little tumbler (because it survives tumbles?) has served generations in school- and employer-run cafeterias (yes, French employers must provide either a company cafeteria, a sufficiently equipped space to allow employees to eat on site, or a lunch allowance as part of their pay), and is widely used in homes (we have several) and retro-chic cafés. How can such a sturdy and ubiquitous product, with an equally sturdy global reputation, go belly up? According to the workers’ union rep, the company’s Turkish owner and principal customer has mismanaged the company, which is otherwise viable, by buying glasses at below-market rate for his Turkish dishware companies. Result: Duralex has been in judicial recovery since 2005, one of its factories was closed in 2007 for economic reasons (putting 103 people out of work), and the second factory (240 employees) is now facing the same fate—unless someone can come up with at least €5 million ($7.5-8 million) towards the overall €22 million (at least $33 million) debt. The bankruptcy judge had, of course, asked the owner for this money, but he went home to Turkey.
I am not at all familiar with bankruptcy law or procedures that might allow for bringing this person to justice, so to speak (going bankrupt isn’t a crime, after all). Neither is the general public. And the press isn’t saying, which is rather typical of stories of factory closings here in France:
► Foreign owner closes down the “inefficient” or “expensive” French site, taking the work (and money) home; or
► French owner closes down the “inefficient” or “expensive” French site, taking the work (and money) elsewhere; and
► No one talks about what the solution might be, other than protectionism.
Paradoxically, while the government tries to keep factory closings quiet for obvious reasons, stories like Duralex’s get good coverage, stirring up anti-globalization sentiment with which this IntLawGrrl sympathizes when globalization leads to the enrichment of some and the impoverishment of others, leaving us feeling that the glass is only half full (photo credit)). I wonder, though, why this otherwise viable company was sold in the first place, and whether we shouldn’t be collectivizing rather than globalizing tout azimut.

Go On! Common Grounds, Common Waters: Toward a Water Ethic

(Go On! is an occasional item on symposia of interest.) This Friday (March 14th), my institution (Santa Clara University School of Law) will be hosting a symposium on the Ethics of Water. According to the conference organizers:

The purpose of the symposium is to seek common ground in identifying a water ethic that are fundamental to [the multiple competing] interests and that might lay the foundation for compromise, cooperation, and sound management of fresh water resources. Fundamental to this goal is the ideal that common water ethics should be at the base of all agreements, legislation, and management efforts related to fresh water resources.

The conference will feature panels such as "Ethics and Commodification" and "Water in a Globalized World" and speakers from UNESCO, the U.S. Department of the Interior, and Coca-Cola as well as leading environmental law scholars. The conference will conclude with a roundtable focusing on the question of whether

a consensus can be achieved on a core set of water ethics that society should pursue. They will also be tasked with negotiating disparate or conflicting ethical bases that may arise, as well as developing the processes and mechanisms for implementing the agreed-upon water ethics.

Details and registration materials may be found here.

Go On! "Gender & Class: Collective Voices"

(Go On! is an occasional item on symposia of interest) The upcoming annual meeting in New York of the Association of American Law Schools will kick off this year with a January 3, 2008, program that promises to be of particular interest to many readers. Entitled "Gender and Class: Voices from the Collective," it's an all-day exploration of issues like incorporation of class issues into discussions on gender-based inequality; intersections vel non of class subordination with those of race, gender, and sexual orientation; and thoughts about theorizing inequality. Speakers include 3 IntLawGrrls: Hari M. Osofsky's part of the panel on "Globalization," Elizabeth Hillman and yours truly, the panel on "National Security." Other topics include "Children," "Work and Care," "Work and Institutions," "Criminalization," "The State," and "Family." Details here; hope to see you there.

Global ... is

From the wings, a retort of sorts to our call for a fair, humane, and global policy on immigration. The bill withdrawn from Senate consideration last week is said to be "part of a larger agenda of a large slice of America’s economic and political elite":

They have a vision of a world where not only capital and goods but people move freely across borders. Indeed, borders disappear. It is a vision of a ‘deep integration’ of the United States, Canada and Mexico in a North American Union, modeled on the European Union .... It is about the merger of nations into larger transnational entities and, ultimately, global governance. ....
It is about globalism – and about greed. But they have a problem. The nation has begun to awaken to the reality that the vision of the global corporation and the transnational elite cannot be realized without the death of the American republic. And so they are in a fight that is long overdue.

It’ll surprise few to learn that the author is erstwhile Republican presidential candidate Patrick J. Buchanan. (The column appeared in hard copy in today's San Francisco Chronicle, but only self-identified conservative sites've put it online.) That Buchanan so easily pushes nationalist hot buttons -- "European Union," "global governance," and "transnational elite," not to mention an omitted passage about "bright kids" from "Asia" who’ll take jobs from "middle-age U.S. workers" -- deserves attention.
The costs and benefits of economic integration measures – NAFTA, for instance – indeed ought to be examined, and appropriate adjustments ought to be made. More fundamental is the need to address what Europeans well know to be, as Francesca E. Bignami among others has analyzed, the problem of democratic deficit. Essential sooner than later are examination and adjustment of how integration happens – assurances that the persons who "govern" new transnational institutions can be identified with the same ease that a citizen identifies her elected representatives, that decisions are made by an open and transparent transnational politics, and that the makers and implementers can be held to account by those in whose name they do their work. (As discussed below, the World Bank might be a good place to start.)
In writing of "global-ism" Buchanan implies that goods and people are moving across national borders in service of an ideology against which battle can be won. That sentiment has an ironic resonance with the "anti-globalization" critique of the wing well opposite Buchanan. The premise of both is, at best, dubious. Globalization is. Technology’s advanced to a degree that goods, people, and ideas move whether some "elite" likes it or not. The question, then, is not whether there ought to be such movements, but rather how such movements ought to occur. What is needed is not nihilist fueling of fear, not calls to a combat that cannot be won, but rather an other-globalization -- work toward fairer, more open, and more democratic ways for the world to move together.