Wednesday, March 28, 2007

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

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

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

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

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

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

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

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

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

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

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

But these issues never invaded the interpretive tour de force of the majority opinion. Lamentably, it did not find its way into Justice Steven's dissent either. Justice Steven, joined in dissent only by Justice Ginsberg, rejected the majority's narrow reading of the qui tam provisions. Justice Stevens argues that
the majority’s approach suggests that the relator must have knowledge of actual facts supporting the theory ultimately proven at trial—in other words, knowledge of the information underlying the prevailing claims. . . . Such a view is not supported by the statute, which requires only that the relator have “direct and independent knowledge” of the information on which the publicly disclosed allegations are based and that the relator provide such information to the Government in a timely manner. (Slip op., Stevens, J., dissenting, at 2).
Justice Stevens suggested, however, only that Stone had not been given the chance to establish that he had provided his direct and independent knowledge of the violation before filing his own suit. (Id., Slip op., at 3). "Because there has been no finding as to whether Stone was an original source as to those public disclosures, I would vacate and remand for a determination whether Stone was in fact an original source of the allegations publicly disclosed by the media in 1988 and 1989." (Id., at 3-4).

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

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

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

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

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

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

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

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

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

Friday, March 09, 2007

Principles of Transnational Law: The Foundations of an Emerging Field

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

Does transnational law represent a new and independent legal order?

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

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

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

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

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

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

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

What are some of  the key elements of Transnational Law?

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

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

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

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

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

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

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

Saturday, March 03, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fidel Castro.- Ah, 20 millones.

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

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

The Cuban authorities translated this exchange as follows:

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

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

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

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

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

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

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

Friday, March 02, 2007

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

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

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

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