Monday, June 30, 2008

Democracy Part XI: Mass Democracy and Shareholder Democracy Converge

Individuals as political participants are really only good for one thing, that is they serve one purpose extremely well--voting. That is their principle connection with the mechanics of state organization. Groups, on the other hand, are good for governance. In a world of mass democracy, in political collectives in which every vote counts, only the voices of collectives can be heard. Inclusion, at the level of the individual, produces exclusion as well. The more people appear to have been granted participatory rights, the fewer people participate other than by voting as they are told. And by the later I mean, voting on those questions and for or against those people presented to them for voting. Mass democracy is good for the managerial state, the way shareholding is good for managerial corporations. We have finally reached that age in which the mass collectives of politics and economics have begun to so resemble each other that they have become fungible. As these changes mature, the relationship between law, governance institutions and the individual have been changing as well. See Larry Catá Backer, Reifying Law: Let Them Be Lions, Law at the End of the Day, October 22, 2006.

Corporations can govern and states can function as economic actors. The governance techniques for both appear to be converging as well. Academics have begun to catch on. Thus the renewed interest in governance and regulation beyond formal lawmaking and institutionalized judging. It has taken almost a century for the world to catch up to Nietzsche's insights on this point (Nietzsche, Friedrich, The Antichrist, in The Portable Nietzsche. Trans. Walter Kaufmann. New York: Viking Press (1968) (1888)). It took almost half a century to understand Michel Foucault's idea that government had moved well beyond both its limited jurisdiction and its methodology in formal lawmaking and judgment systems (Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan, trans., 19977, NY: Vintage Books 1995)). From both Nietzsche and Foucault it is possible to understand better the methodologies through which democratization--that is the socialization of apparent governance--can affect equally all institutional actors with governance powers. Those effects can be significant as states and corporations move from formal to more totalizing governance. The most interesting of these effects touch on the convergence of shareholder and voter democracies. There are four principles points of convergence:

1. The separation of ownership from control. It has become a commonplace since the 1930s to bemoan the separation of ownership from control in corporate governance circles. All that whining of course hides the reality of governance--as governance is dispersed over a greater number of individuals, than the functions of governance must be divided into the many, who retain a power to vote, and the few, who retain the power to speak and act for the entity. Power is wielded by the elected representatives as well as by large aggregations of shares. So, too, has this transformation been effected in political governance as well. The focus on voting reflects the necessary expansion and diminution of power to individual sovereigns. Individuals vote, that is virtually all that is left to them (other than taking to the streets form time to time). Power is wielded by the few, who govern either as elected officials or speak as aggregations of individual power (civil society organizations).

2. Migration and Exit. The more power flows to the greatest number, the smaller the sphere of actual power available for exercise by that large group. Individuals acquire voice by aggregation, mimicking the state apparatus against which these groups are arrayed. For the individual, then, beyond the passive activity of voting (and voting as they have been instructed by one or another of the host of competing institutional aggregations of power), there is exit. Among shareholders, exit is easy and encouraged--selling shares and acquiring others. Among citizens of states, exit is also encouraged, either with or without papers. The extraordinary migrations across the globe that has marked labor globalization for the last two centuries. Inefficient states lose population the way that inefficient corporations lose shareholders. Welfare maximization works in both contexts.

3. Contests for Control. It is an academically uninteresting truism that modern transnational corporate activity is built on a foundation of economic efficiency, and principally the efficiency of control groups. congests for control are the means by which managers are replaced by more efficient others. And efficiency is meant to produce welfare maximizing behavior--that is to steer the corporation to the attainment of its highest aspirational goals. For that purpose, legitimate changes in corporate control must be effectuated in accordance with a fairly well established set of behavior norms--transparency, disclosure, the preservation of a full and free election among shareholders, a level playing field among those who would seek corporate control, etc. For that purpose in the United States, for example, a large body of state and federal law has been created and an even larger administrative and judiciary machinery has developed to oversee this system of control and its challenge. State fiduciary duty law, federal securities and disclosure law, the Williams Act, all contribute to a well functioning corporate democracy, especially when governments change. Yet consider the modern managerial approach to the governance of political states. For them, there is also a strong focus on governance and contests for control. Preserving the franchise, transparency, accountability, disclosure regimes are all now fundamental parts of constitutional systems to preserve democracy and the legitimacy of those who would control the state apparatus. Inefficient states--states that have not served their constituencies well enough (in terms of maximizing voter welfare) are subject to challenge and to contests for control. That, of course, is the essence of poltiics in representative democracies, and recently an academically uninteresting truism as well. For that purpose, a number if statutes, rules, understandings and aspirational statements have been developed to oversee this system of control and its challenge. International human rights laws and standards, constitutional protections, human dignity, democracy and the like, all contribute to well functioning democracies. Contests for control are as encouraged among market oriented corporations as they are among democracy rich political states. They serve similar purposes.

4. Monitoring. States and corporations have increasingly embraced the notion that individuals cannot be trusted. Both have long sought to control the behavior parameters of their members, stakeholders and associates, and to ensure that behavior conforms to expectations. For a while, over the last two hundred years, an excess of such control was viewed with a bit of suspicion--totalitarianism among political states, and inefficiency among corporate actors. But over the last half century that has changed dramatically. With the diffusion of power down comes an obligation to conform. Corporations are required to ensure that no servant works against the corporate interest, and that shareholders exercise their franchise properly. Political states have assumed a similar burden to be imposed on its voters. But monitoring has become more than a means of enforcing conformity and preserving the integrity of states or economic entities. It has begun to serve as a substitute for governance itself. And that is a great advance in efficient control of populations (populations ostensibly charged with controlling those who serve them within the state or corporate apparatus and thus the great perversity of the system)). Monitoring provides a means to coerce behavior without the need to legislate, or to transparently declare one's intentions. It is governance by misdirection--appearing to seek one goal and actually bending the methods to a different set of objectives. And thus those in control become themselves controlled. See Larry Catá Backer, "Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes," Indiana Journal of Global Legal Studies, Vol. 15, 2007.

Sunday, June 29, 2008

Democracy Part XIII: Anwar Ibrahim Flees Malaysia's Democracy

Democracy is flourishing in Malaysia lately. After returning in triumph following a vindication on the charges of sexual corruption, Anwar Ibrahim and his political allies appeared poised to become a potent force in Malaysia--perhaps even strong enough to overturn the politics of preference and strong arming that had marked Malaysia throughout the term of his predecessor and former mentor Mahatir Muhamed. "In the general election in March, Mr Anwar led an opposition alliance to considerable gains. They won control of the legislatures in five out of the country's 13 states, and an unprecedented 82 of the 222 seats in the House of Representatives. The ruling National Front saw its worst showing in decades, prompting calls for the prime minister to resign." Malaysia's Anwar Seeks Sanctuary, BBC News Online, June 29, 2008.

But something too good to be true usually is. And political patterns are difficult to break. And so it is in Malaysia. Today Anwar Ibrahim sought the protection of the Turkish embassy to avoid arrest, torture and potential death at the hands of his enemies. "Malaysian opposition leader Anwar Ibrahim has sought refuge in the Turkish embassy in Kuala Lumpur. He told the BBC he had gone to the embassy because he was afraid of being arrested or assaulted." Malaysia's Anwar Seeks Sanctuary, BBC News Online, June 29, 2008.

But as it did a decade ago, sex and politics again appear to doom Anwar within the electoral culture of Malaysia. And no wonder. As he did a decade ago, Anwar sought to rise to those heights by unveiling systems of institutionalized corruption within the state apparatus and its allies.

"This is because there is growing support for the People's Alliance [group of opposition parties] among members of parliament ... the government is under threat and there is also a lot of disgruntlement among the Malaysian public against the abuse of power and economic woes," he said. "I have also made it known that I have in my possession, documents implicating the inspector-general of police and the attorney-general in misconduct, including the fabrication of evidence in the cases launched against me in 1998 and 1999. Anwar said those involved had allegedly tampered with evidence.

Anwar Ibrahim Faces Sodomy Inquiry, Al Jazeera, June 28, 2008.

Instead, again, Anwar Ibrahim is to be made the victim of a conflation of sexual and political corruption. For a reminder of those events, see Larry Catá Backer, "Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia," Yale Journal of Law & Feminism, Vol. 17, No. 1, 2005. "Earlier, Mr Anwar rejected a new allegation of sodomy made by a member of his staff, describing it as a complete fabrication to discredit him. He says the claims by a 23-year-old are designed to block his political resurgence after success at the polls." Malaysia's Anwar Seeks Sanctuary, supra. And the likelihood of its success might be measured by the speed with which Anwar fled to the Turkish embassy. Ibrahim declared that "he was "seeking personal protection because of my fear of my personal safety in case they arrest [me], and I don't want to repeat the assault and near death under custody of the... Malaysian police"." Malaysia's Anwar Seeks Sanctuary, supra.

The timing was exquisitely suspicious: by the terms of his remaining conviction, Anwar had been barred form political office only through April 15, 2008. Democratic participation, then, is available to all in Malaysia, unless, of course, you happen to be a presence important enough to threaten the current establishment. For them, a perversion of corruption tends to do the trick. And the saddest thing is that the state apparatus did not even bother to change the script from the last (and successful) effort to derail Anwar's quest for power. ""I'm now eligible to contest the elections, so they have to fabricate the same script being repeated in my earlier case in 1998, 1999," Mr Anwar added. The latest claims against him came from an aide who has worked alongside him from the beginning of the year." Id.

So much for American efforts to foster a "dream team" of authoritative Muslim leaders espousing a form of what in the West is called "soft Islam." So Paul Wolfowitz once described Anwar. Paul Wolfowitz, Anwar Ibrahim, Time Magazine June 29, 2008 (as part of the Time 100 influential global leaders for 2008). Wolfowitz recalled the man in 1998 immediately before his arrest as a:
devout Muslim leader was an impressive and eloquent advocate of tolerance, democracy and human rights. So we were shocked by his arrest and trial in 1998 on charges of corruption and sodomy. I felt his real "crime" had been to challenge Prime Minister Mahathir Mohamad, whose impressive record will be forever stained by his treatment of Anwar. I joined Senator Sam Nunn and others to speak out in Anwar's defense. When he was finally released from prison in 2004, U.S. policy on Iraq was unpopular in Malaysia, and Anwar was harshly critical. It would have been easy for him to disown our friendship, but he is not that kind of person. He kept the channels of dialogue open, even while making clear our disagreements.
Id. Whatever his religious ideals, his actions suggested an adherence to inclusive politics that must have frightened the opposition tremendously. Just weeks before his arrest, he spoke of the strength of his campaign in terms of
a strength of a more multiracial, interreligious formula. We are forged together on the basis of our belief in democratic reforms. After all, this is not something alien. This is what was promised to us when we achieved independence in 1957. Coupled with this multiracial, interreligious agenda, we talk about a new Malaysian economic agenda. We have lost competitiveness. There is no independent judiciary. People tend to ignore the fact that a true democratic administration would give people more confidence. The elections here were never free and fair. We don’t have free media. I don’t have 10 minutes of airtime on local television. Even the electoral process was clearly fraudulent. But with all that, we still made an extremely impressive showing. They term it now a political tsunami.
Seven Questions: Anwar Ibrahim, Foreign Policy (April 2008). And so the circle closes. The corruption drama of the late 1990s, in which Anwar paid the price for suggesting political corruption within the Malay state apparatus by being turned into the personification of that very corruption himself in both his personal and representative capacity (sodomy and political corruption) has come back to define the corruption of Malay democracy ten years later. Anwar Ibrahim was well aware of this. But he was also aware of the need for closure of the earlier corruption charges if he had any chance of reaching the highest state office. And so this campaign season had started with his efforts to clear his name of any lingering doubts about his lack of corruption. But those efforts brought retaliation in the form of a variant of the earlier charges--this time by a 23 year old male assistant resulting in a police report and ther start of an investigation eerily similar to that 10 years earlier. That police report, Ibrahim stated, serves as an ""attack me in retaliation for evidence I have recently obtained implicating IGP Musa Hassan and the AG Gani Patail in misconduct including fabrication of evidence in the cases launched against me in 1998-1999." Statement by Anwar Ibrahim, Dr. A. X. Jayakumar ADUN Sri Andalas, Blog June 29, 2008. And as well Ibrahim is aware of the need to press on if he is to have a political future. "This vile attack will not prevent me from releasing this dossier to the public." Id.. But in the end, this quest will expose the weakness of Malaysian democracy and the strength of assertions of sexual and political corruptions. Anwar Ibrahim ends his latest statement with a warning and a challenge:
"I urge the Malaysian people to stand against the repressive forces that will be unleashed by the government in the coming days and weeks. We expect the media, the judiciary and the police force to all come under the direct and unchecked control of the executive. My fellow Malaysians - we took a bold step forward on March 8th towards a new dawn for freedom and justice for all of our citizens. This people’s movement for change must go on with all of our strength and conviction."
Id. I have my doubts that under Malaysia's controlled democracy, that this will be possible. The control, here, is not so much about policy as about entry. This is a democracy of cultural doublespeak--though everyone understands clearly what is going on. The language is cultural and religious--sin, uncleanliness, perversion. The character of the political actor serves as proxy for political values just as the vocabulary of corruption serves as the basis for political discourse. Anwar Ibrahim understood that the last impediment to his political success required the expurgation of the last remnants of the doubt about his sexual cleanliness. That required the downfall of the men who had engineered the earlier sexual corruption charges. Ultimately that cleaning up would target Mahatir Mohamed himself, and open the space necessary to attack those opponents on the basis of their own corruption. But Anwar didn't play the usual game. For Anwar there was plenty of political and economic corruption, but no allegations of sexual corruption. Ten years in the wilderness did little to teach him the fundamentals of Malaysian political culture--political corruption requires a nice leavening of sexual corruption to have it rise to a level of significance.

But his opponents understood. They even understood that the fabrication need not be elegant. Crude and direct would do. His opponents also understood that Anwar was unstoppable unless those very sexual charges could be reinvented. That would serve to cast a fatal doubt on Anwar's assertions that the earlier charges were fabrications. And a little political corruption would add the necessary addition to completely ruin a character that took a decade to rehabilitate. Khalid: I Advised Anwar's Brother to Quit, The Star Online, June 29, 2008 ("Selangor Mentri Besar Tan Sri Khalid Ibrahim said he had personally suggested Datuk Seri Anwar Ibrahim’s younger brother Rusli quit his post as special adviser to Kumpulan Darul Ehsan Bhd (KDEB) president Datuk Abdul Karim Munisar. . . . “It is a tough and sad thing (the resignation) but as a transparent and responsible state government we cannot have even the perception that there is a conflict of interest (in the state administration),” he told reporters after launching the 1,000 Youths Gathering programme here on Sunday." Id.). The best way to construct the reality of a fabrication is to repeat it. So, it was only a matter of finding the appropriate subject--no women this time, just good old fashioned and highly prohibited man on man sex. And that is precisely what the opposition did. And did well enough to frighten Anwar into the Turkish Embassy.

Anwar Ibrahim has again to confront old demons--and demons not of his own creation. They are meant to suggest that he is not only personally and politically corrupt but also, for the first time now, that Anwar Ibrahim is unable to control himself, that is, control his appetites. This is something I predicted almost two years ago. Larry Catá Backer, Of Sodomy and Corruption: Sex, Politics, Religion and Law in Malaysia, Law at the End f the Day, August 1, 2006 (""At the end of the day sex may well dog Anwar the way economic corruption will likely dog Mahatir. Both serve as the great Achilles heel to their political ambitions in a country whose Islam is no longer the tolerant version of an all too brief Umayyad Spain, the flower of which was as much crushed by Islamic reactionaries as the Christian reconquista.).

And Anwar was vulnerable within Malay political culture--not merely because of the lingering doubts left from the last tangle with the sex and political corruption charges of a decade ago, but because he was insisting on breaking the rules of political engagement within the dominant Malay political culture. See Larry Catá Backer, Abdullah Badawi, Anwar Ibrahim and the Politics of Race , Ethnicity and Affirmative Action in Malaysia Law at the End of the Day, March 9, 2008. Here was a man, a Malay and a Muslim, unafraid to build coalitions among minority groups, and unburdened with the need to posture based on the dictates of politically motivated Islamics divines or ethnically motivated indigenous Malays. This is clearly too much. People will continue to vote, and there may even be room for choices among candidates, but the power to select those candidates, and the ability of candidates to veer too far form established policy has been reduced a bit indeed. In Malaysia, when one means policy one speaks the language of sex and corruption. Everyone understands the charade--and participates within its farce as if they believed what their faculties knows is a veil over the real contests. Now this is democracy!

Friday, June 27, 2008

Democracy Part XII: On Sham Democracies

The issue of democratic legitimacy has been much on people's minds over the last century. Once again, the global governance community--that is, those elements of public and civil society given legitimacy by media coverage in the press, television and the internet by institutional news organs--s worried about the proliferation of "sham" democracies and the preservation of legitimate democracy. One of the leading organs of global trend setting in this respect, Human Rights Watch, has just published its World Report 2008, raising the spectre of illegitimate democracy as a great global governance threat. Human Rights Watch, HRW World Report 2008, January 31, 2008 (here for pdf version).
Rarely has democracy been so acclaimed yet so breached, so promoted yet so disrespected, so important yet so disappointing. Today, democracy has become the sine qua non of legitimacy. Few governments want to be seen as undemocratic. Yet the credentials of the claimants have not kept pace with democracy’s growing popularity. These days, even overt dictators aspire to the status conferred by the democracy label. Determined not to let mere facts stand in the way, these rulers have mastered the art of democratic rhetoric that bears little relationship to their practice of governing.
Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra.

What are those elements of governance that suggest democratic government--or better put, how is one to distinguish between genuine and sham democracies? The issue is important. Under modern notions of transnational constitutionalism, sham democracies are illegitimate--as are the governments created thereunder. As constitutional "outlaws" sham democracies may be subverted, ignored, sanctioned, or overthrown. Yet, Human Rights Watch tells us, "By allowing autocrats to pose as democrats, without demanding they uphold the civil and political rights that make democracy meaningful, the United States, the European Union and other influential democracies risk undermining human rights worldwide." Human Rights Watch, World Report 2008: Democracy Charade Undermines Rights, June 28, 2008.
It is not that pseudo-democratic leaders gain much legitimacy at home. The local population knows all too bitterly what a farce the elections really are. At best, these leaders gain the benefit of feigned compliance with local laws requiring elections. Rather, a good part of the motivation today behind this democratic veneer stems from the international legitimacy that an electoral exercise, however empty, can win for even the most hardened dictator.
Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra. As a consequence, "'It’s now too easy for autocrats to get away with mounting a sham democracy,' said Kenneth Roth, executive director of Human Rights Watch. 'That’s because too many Western governments insist on elections and leave it at that.'" World Report 2008: Democracy Charade Undermines Rights, supra.

Well, then, what constitutes a legitimate democracy? For Human Rights Watch, of course, it involves a host of factors that, in the end, tend to privilege its own position and that of institutional civil society within the governance matrix of states. Thus, in its complaints about the inaction of established democracies, Human Rights Watch can define the elements of legitimate democracy in those terms: "'They don’t press governments on the key human rights issues that make democracy function – a free press, peaceful assembly, and a functioning civil society that can really challenge power.'" World Report 2008: Democracy Charade Undermines Rights, supra. (quoting Kenneth Roth). And here lies a problem. Yet there is a bit of incoherence in the mix. For while faulting established democracies and Western states for not pushing the mostly developing states on their democratic institutions, Human Rights Watch suggests a bit of illegitimacy within established democracies themselves. "Abuses in the “war on terror” featured in France, Pakistan, the United Kingdom, and the United States, among others." Id.

Reading the World Report 2008, carefully, it appears that democracy is a bit of a sham everywhere, except, perhaps in the hearts and minds of the members of certain elements of global civil society. But that can't be right. Beyond the messiness of its thinking, Human Rights Watch is trying to make two distinct points--though conflating them in ways that may not serve either very well. On the one hand, Human Rights Watch offers international human rights norms as the basis for democratic legitimacy, and on the other looks to elections as the key to accountability necessary for the functioning of legitimate democratic systems. Effectively the form of democratic legitimacy--elections--is conflated with the social ordering necessary for its expression--governance based on adherence to international human rights principles. "Electoral fraud, political violence, press censorship, repression of civil society, even military rule have all been used to curtail the prospect that the proclaimed process of democratization might actually lead to a popular say in government." Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra. Thus, Human Rights Watch suggests that generally that scrupulous adherence to most advanced level of evolving standards of human rights (at least as understood by them) constitutes a bedrock principle of democratic legitimacy to which all states ought to try to strive. In that respect, it is clear that no state has reached a state of perfection--both because the human rights standards at issue keep evolving (they are a moving target) and because state practices lapse. It is with respect to this latter reason, of course, that human rights and democracy become so tightly bound--accountability. Only by accountability to those whose rights are at risk by state action can state functionaries be made more sensitive to the needs to behave properly.

Accountability is the bridge to the second major point Human Rights Watch is attempting to make. If human rights are the bedrock of democratic legitimacy, and democratic legitimacy is, in turn, grounded on accountability, then the key to democratic legitimacy must lie in appropriate mechanisms for the effectuation of accountability. And for Human Rights Watch, that key is bound up in the notion of elections.
States claiming the mantle of democracy, including Kenya and Pakistan, should guarantee the human rights that are central to it, including the rights to free expression, assembly and association, as well as free and fair elections. But in 2007 too many governments, including Bahrain, Jordan, Nigeria, Russia and Thailand, acted as if simply holding a vote is enough to prove a nation “democratic,” and Washington, Brussels and European capitals played along, Human Rights Watch said.
Id. It is the last point, of course, that was played up in the Western press. See West Embraces Sham Democracies, BBC News Online, January 31, 2008. This is itself ironic, both for the presumption of the privilege of Western states to project their democratic values onto others states (something that the same presses would criticize as imperialistic under circumstances) and for the idea that free and fair elections constitute the universal standard for accountability and legitimacy. See, US and EU Accused of Backing Sham Democracies, Financial Times Online, Jan. 31, 2008.

The reason for this conflation is simple for Human Rights Watch. "Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, “democracy” has no legally established definition." Despots Masquerading as Democrats, supra. Indeed, it is not clear that even Human Rights Watch is comfortable with democracy as a vehicle for political governance. "It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the “least bad” form of government, in the words of Winston Churchill, it is an important part of the human rights ideal." Id. Yet it is fundamentally flawed in a way that resonates in a peculiarly powerful way to the mentality of the 21st century: it is not not grounded in positive law form a supreme legitimating legislator.
Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder.
Id. Aaaaaaah, but human rights--that is different! Why? Because it is not a descriptor of a process of fluid human interaction but a code of behavior that appears on its face to be easy to understand, apply and enforce. . .across borders. "Human rights are a system of law: treaties and jurisprudence, provision and precedent. Looking back six decades to the beginning of that system, with the Universal Declaration of Human Rights, its construction seems one of the major works of the twentieth century." Scott Long, Two Novembers Movements, Rights and the Yongyakarta Principles, World Report 2008, supra. These, rather than the more amorphous notions of accountability through participation, are to serve as a proxy for democratic legitimacy. "The specificity and legally binding nature of human rights are their great strength." Despots Masquerading as Democrats, supra.

So, now we have it. Regrettably. Not that human rights as a system of powerful weapons against power are bad. Indeed, the opposite tends to be true, especially for individuals unprotected by either their status within the apparatus of parties in power or through membership in powerful economic, religious or civil society elites.Yet when it comes to democracy, even the individual within the matrix of human rights protections succumbs to the temptations of power politics--those involve factions and the competition for power among great actors, with respect to which the individual is merely a means to an ends. Individual rights may be important in the aggregate, and in theory, but individuals become important for the vindication of those rights only when it suits the greater interests of the powerful civil, economic, religious, social and political actors all of whom seek power, today through the mechanics of legitimacy, ethics, rights and dignity. In that context, the individual may have only fair weather friends in government apparatus and civil and religious society protectors. For individuals to rise to the attention of these great actors, "ya gotta have a gimmick," as the Americans say. See Stephen Sondheim, Gypsy, "Ya Gotta Have a Gimmick" (music by Jules Styne) (1962) (song number in which strippers explain to the future Gypsy Rose Lee the way to distinguish oneself from the crowd, " Get yourself a gimmick and you too, Can be a star!").

But there are conceptual traps as well. Democracy is an ideal--inchoate, undefined--a vision of the holy City on the hill. But human rights? Now that is something that people can get their arms around--that is law--simple, specific binding, the product of a legitimating act of will. For democracy, then a proxy--human rights. And for the legitimacy of human right--the customs and understandings of the community of states, on which the legitimacy of any governance system must rest. And thus, in its own way, Human Rights Watch serves the cause of transnational constitutionalism while it serves to strengthen its own place as a first citizen among the global community of institutional citizens who, like states, compete for the loyalty and affection of the individual through the production of foundational values and standards. Yet, here, precisely is the danger for Human Rights Watch--to the extent that the legitimacy of its own foundational standards--secular global human rights norms as articulated in a variety of instruments--is rejected, so might its notions of the dangers of sham democracy as tied to voting. And that is what many states will tend to do, as they seek other value systems to legitimate and elaborate their own forms of governance. See Larry Catá Backer, "God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century," Mississippi Law Review, Vol. 27, 2008 .

Still, Human Rights Watch raises an interesting point worth exploring in a little more depth--the nature of sham elections. This raises a set of interesting and troubling questions on the relation between power. Let me sketch some out here. The first touches on the nature of political power expressed through elections. I start with Foucault:
Power has an erotic charge. . . Nobody loves power anymore. This kind of affective, erotic attachment, this desire one has for power, for the power that is exercised over you, doesn't exist any more. The monarchy and its rituals were created to stimulate this sort of erotic relationship towards power. The massive Stalinist apparatus, and even that of Hitler, were constructed for the same purpose. But it has all collapsed in ruins and obviously you can't be in love with Brezhnev, Pompidou or Nixon. . . But what's going on at the moment? Aren't we witnessing the beginnings of a re-eroticization of power, taken to a pathetic, ridiculous extreme by the porn shops with Nazi insignia that you can find in the United States and (a much more acceptable but just as ridiculous version) in the behavior of Giscard d'Estaing when he says, 'I'm going to march down the streets in a lounge suit, shaking hands with ordinary people and kids on half-day holidays'?
Michel Foucault, Film and Popular Memory, in Foucault Live (Interviews, 1966-84) 97-98 (Martin Jordin, trans., New York: Semiotext(e), 1989). For all the fine talk, do elections reduce themselves to personality--and as the "restoration to power of seduction." Certainly, there is a sense that, even in mature democracies, democratic organization i becoming associated more with transfers of power within a hierarchical system than the conferring of governance responsibilities from among a group of equals. Sham is clear enough when power removes its masks--Mugabe's Zimbabwe provides the crudest current example. But there are others. But the nature of power itself must be unmasked in order to be able to better understand the more subtle nature of sham within systems in which the populace appears to be moving from a parity among equals (even if only in theory) to a more clearly marked hierarchy of worthies).

The second touches on the distribution of power. Madison warned early on in the march toward democracy that there were significant distinctions between democratic and republican governments. See Federalist No. 14. Mindful of Aristotle's hesitation about direct democratic governance combined with issues of technological impossibility, the Americans were quick to suggest elections as necessary to select some from among themselves to exercise power for all. Elections were the key to this system and its legitimacy. But among whom? Democratic legitimacy, even within republics, was traditionally defined within very narrow frameworks. From restrictions to men of property, the right to participate in the governance of democracies (whether organized as princely states or as representative republics), democracy has come to mean one person one vote at least since the 1960s. See Baker v. Carr, 369 U.S. 186 (1962). Indeed, it has been less than a century since democracy was extended to the masses (starting with minor property owners and women), and with curious results. As Edward Hallett Carr noted over half a century ago (Edward Hallett Carr, Nationalism and After 6-37 (London: MacMillan & Co., Ltd., 1945) national socialism (in all its senses) followed the democratization of politics at the end of the 19th century.
The rise of the new social strata to full membership of the nation marked the last three decades of the 19th century throughout western and central Europe. . . . The 'democratization' of the nation in the earlier part of the century had resulted in the establishment of popular control over the functions of maintaining law and order, guaranteeing the rights of property and in general, 'holding the ring' for the operations of an economic society managed and directed from another centre under rules of its own. The 'socialization' of the nation which set in towards the end of the century brought about a far more radical change. Hitherto, . . . the masses had had little power to protect themselves against the immense hardships and sufferings which laissez faire industrialism imposed on them. Henceforth, the political power of the masses was directed to improving their own social and political lot. The primary aim of national policy was no longer merely to maintain order and conduct what was narrowly defined as public business, but to minister to the welfare of members of the nation and to enable them to earn their living.
Id., at 18-19. The nature of democracy, thus, may not be bound up in human rights, but in the use of the state to maximize the welfare of those in control of its apparatus. Democratization, thus moves from an effort to share power of governance to the devolution of power over the machinery for the production of wealth from one set of actors to a host of others. Accountability acquires another meaning. And government ceases to be a means by an end to wealth and control. In this sense one can understand Shona willingness to tolerate a government that shared the wealth with them by depriving Europeans but especially the Ndebele peoples of Zimbabwe an equal stake. And why should they? Here there is a place for human rights--but ironically it assumes an anti democratic quality.

The third touches on the assertion of power. In this aspect, elections provide a basis There was a time when the state apparatus asserted only a limited power. There was something superior to its authority. But what, exactly, are the masses approving when they are moved to vote? At one time voting provided the formalist sham through which imperial power was said to have been vested in a Roman emperor by the people. And this sort of transfer by vote or acclamation--and the delegation of the power to choose successors to the prince himself later on--all suggest that voting, the partucupaiton of the masses, is an important though not necessarily always a sufficient basis for democratic governance or the protection of rights. At other times voting an be used to effectively limit such transfers. Power can be accumulated, distributed and given away by acts of the sovereign itself. But power cannot determine the locus of authority. But power can be asserted form below as well. That, of course, is what the current rhetoric about elections is to some extent about. The so-called power to vote, asserted by an individual, is meant to convey a powerful force in participatory democracy. That power, however, suggests two perversities--the first is the importance of fertility, and the second is the consequences if immigration. Voting suggests assertion of power by voters. The more voters within a particular block the more likely that an election will swing to that group. The smaller the group the fewer the votes. It also suggests the power of immigration in states with decreasing birth rates. When coupled with modern sensibilities about assimilation, democracy through voting in an open immigration context suggests the power to change government radically by means other than voting.

And the last and most troubling, to which the earlier questions pointed toward, touches on the distorting effects of mass politics. It is here at all theory comes crashing down. It is at this level that one is confronted by the impossible--the intersection of hierarchy, subordination and the mapping of relationships among people in a world in which theory seeks a leveling effect and all efforts at elaboration produces vertical effects. And worse, all elaboration produces vertical effects at the level of the individual and at the level of the masses. Here, the practicalities of Madison (Federalist No. 10 on factions) collides with the allure of Jeffersonian theory (Declaration of Independence). Mass politics suggests the opposite of the second point--the votes matter. n the aggregate they do, but no much because of individual choices but because of the ability of modern institutions to draw on those group affiliations for the purposes of manipulating sentiment in particular directions. The individual no longer matters, the small institutional groups that might move aggregates groups of voters to act in particular ways matter most. Groups like Human Rights Watch matter because they can seek to influence votes--to delver votes among particular constituencies, and at least to amplify the voices of those constituencies. It suggests that well organized small groups may be more important that large numbers of potential voters. That the active rather than the passive principles triumphs--at least when it comes to elections. Just as the apparatus of state seeks to corrupt voters by delivering state goods to them in the form of wealth transfers and legislative benefits, so civil society elements seek to influence voters by suggesting that aggregations of power, through their leadership, will make it more likely that individual voter voices will be heard.

So what is a sham democracy? The easy cases identified by Human Rights Watch, are just that, easy. But the easy cases, the ones identified by Human Rights Watch, are merely exaggerations of the worst characteristics of democratic organization as currently practiced. Still, not just merely; the exaggerations are important. Human Rights Watch clearly makes the simplest of points--that mere formalism is not enough for those who seek the benefits of democratic legitimacy for their state apparatus. But this is a lessen well learned during the era of Soviet and Maoist politics through the 1980s. But the lack of exaggeration does not make for perfect systems. It does not even suggest an ideal. Democracy, republic, universal suffrage, or something else. Even deep democracies are always close to the precipice of formalism. And the nature of democratic governance is itself unstable and subject to perversities involving the selection and vetting of political candidates. For Human Rights Watch, the answer to these complications is simple--voting becomes a metaphor for adherence to a set of universal human rights. Yet the consequential juridification of politics and the binding effect of international law enacted by a different set of participants in the law making process, also suggest a diminished importance of voting itself--for the institutions for which all this voting is to be effected, at least under the system envisioned by Human Rights Watch, would product a substantially diminished role for the states that are the focus of voting and its accountability effect.

Monday, June 23, 2008

The Male Female in Albania and Other Tales of Gender

Like many others, I have suggested that gender and sex are not the same thing. My focus has been on the ways in which attributes are gendered, and those gender divisions strictly maintained. More importantly, tose divisions not only serve to discipline the attributes or characteristics of biological sex, but serves to naturalize those gender attributions. This has significant political and legal consequences. I have shown how, with respect to those attributes viewed as the highest ideals of social behavior, most are male, those attributes serve not only to define maleness and social primacy, but also to discipline male deviation and by negative implication define the secondary, the passive, the female. have shown how those boundaries and subordinating rules have found their way into social, political and legal discourse by looking at the homosexualization of the terrorist attackers of September 11, 2201 and their American sympathizers, the way in which sexual and political corruption were cynically used to attempt to destroy the career and character of Anwar Ibhrahim in Malaysia, and the way in which sexual "deviation" among males was used as a foundation for the post colonial rhetoric and politics of Mugabe's Zimbabwe. See arry Catá Backer, "Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia" . Yale Journal of Law & Feminism, Vol. 17, No. 1, 2005 Available at SSRN:

These ideas, and their very real effect was brought home nicely in another example recemtly described by the Turkish press--the ritual of gender change in the Balkans, in which females, swearing eternal virginity, were permitted to become men in every sense but the biological. Dan Bilefsky, "Sworn to Virginity, Living as Men: In a Vanishing Ritual, Balkan Girls Take Over Leadership of Families, International Herald Tribune, June 24, 2008, at P. 1.
'Back then, it was better to be a man because, before, a woman and an animal were considered the same thing,' says Keqi, who has a bellowing baritone voice, sits with er legs wide open like a man, and relishes downing shots of Raki and smoking cigarettes. . . . The tradition of thew worn virgin can be traced back to Kanun of Leke Dukagjini, a code of conduct that has been passed on orally among the clans of nortern Albania for more than five centuries. Under the Kanun, the role fo women is severely circumscribed: Take care of children and maintain the home. While a woman's life is worth half that of a man, a vrgin's value is the same--12 oxen.
Id. "
Sworn virgins become the patriarchs of their families, with all the trappings of male authority, by swearing to remain virgins for the rest of their lives. . . . The ritual was a form of self-empowerment for rural women, living in a desperately poor ad macho country that was cut off from mainstream Europe for decades under a Stalinist dictatorship." Id. Here among a "primitive" people is exposed the most sophisticated understanding of the gender ordering of society--biology, social differentiation, hierarchy, institutionalization and policing through legal rules. Biological sex is not determination of social role. Acting like a man is--and since men; for a female seeking to become a man it requires putting off the social customs that reinforce sexual subordination as well as the biological mark of femaleness--penetration by a superior in the gender social order, a man. Even ISlam bends to the hierarchy of gender (ignoring sex). "Lording it over her large family in her modest home in Tirana, where er nieces served her brandy while she barked out orders, Keqi said living as a man allowed her freedom denied other women. She could work construction jobs and pray at the mosque along side other men." Id.

For the same reason, a man who seeks the sexual company of others acts in reverse. . .be assumes the role of a woman and will pay the price. In Albania, of course, homosexuality is still taboo. Id. The basis is likely, in part, rooted in the cultural understandings of ender that make gender migration is possible. And once within the system, it becomes self perpetuating. Another male female lamented that with the Europeanization of Albania, "women did not know their place." Id.

Friday, June 20, 2008

The EU Lifts Sanctions Against Cuba: Implicit Recognition for the Legitimacy of the Raúl Castro Regime; The US is Left Out in the Cold

The EU today announced that it was lifting sanctions against Cuba. While the practical effects may be enough to notice--the symbolic effects are far greater. The object is to bolster the regime of Raúl Castro while at the same time using this critical passage before the new regime becomes entrenched to flex what muscle the EU has. And it has little. See La Unión Europea acuerda levantar las sanciones contra Cuba: La medida tiene el objetivo de apoyar las medidas emprendidas por Raúl Castro - EE UU y la disidencia critican la decisión. El País, June 20, 2008. Cuba insisted on the elimination of thesanctions as a precondition to further dialog with the EU. "La Habana ha considerado hasta ahora indispensable que Bruselas elimine completamente las sanciones, antes de aceptar las ofertas de diálogo de la UE." Id. For the EU, this is seen as a means to try to convince the Raúl Castro government to open up politically. Id.

The United States did not take the news well--criticizing it as effectively legitimizing a dictatorial regime. So said the President's spokesperson. "Estados Unidos ha considerado poco después de conocer la decisión que da la sensación de que la UE da "legitimidad" a un régimen dictatorial. El portavoz del Departamento de Estado, Tom Casey, ha asegurado que una medida de este tipo "da una legitimidad adicional o da a entender al régimen dictatorial que su continua opresión del pueblo cubano es ahora más aceptable de lo que era antes"." Id. (The United States suggested shortly after it was informed that the EU's decision appeared to lend legitimacy to a dictatorial regime. The spokesperson for the State Department, Tom Casey, assured these measures of this type 'lend additional legitimacy or suggests to the dictatorial regime that their continuing oppression of the Cuban people is more acceptable now than before.'").) Cuban dissidents within Cuba appeared to agree with the Americans. "Por su parte, organizaciones de la oposición interna cubana han manifestado su decepción por el nuevo giro a las relaciones entre la UE y Cuba. Portavoces de los opositores han indicado que la causa de las medidas no ha cambiado, y han agregado que España pone en riesgo su prestigio al encabezar los esfuerzos para levantar las sanciones." Id. ("For their part, Cuban internal opposition organizations felt deceived by the new turn in Cuban EU relations."). See also Maite Rico, "La oposición teme quedar fuera del diálogo," El País, June 21, 2008, at p. 4.

The internal opposition views this move with alarm. They fear that in their hurry to cozy up to Raul Castro the EU will forget about the internal oppostion and leave them without a voice . . .or protector. See La Unión Europea acuerda levantar las sanciones contra Cuba:, supra; Mairte Rico, La oposición, supra. One can understand why. Just recently Fidel Castro himself went after one of the most well known of the dissident bloggers, Yoani Sánchez. Mauricio Vicent, Fuego cruzado sobre Yoani Sánchez, El País, June 21, 2008, at p. 4. The Cuban government had refused her travel permission to go to Spain to receive the Ortega y Gasset award. Id. And her blog site mysteriously suffered a hacker attack in a land in which the Internet is well controlled. Rosa Jiménez Cano, El blog de Yoani Sánchez sufre un ataque hacker, El País, May 5, 2008. Of course, the official reaction to the Yoani Sánchez blog is anachronistic and likely to backfire in today's world. Suppression, as the Cubans should know, makes very bad press, especially at this delicate time of transition. And right now bad press is not what Cuba needs. One would have thought they that hey might have taken a lesson form American business rather than from the antiquated and irrelevant lesson book of Josef Stalin. For example, one might have thought that the Cubans would have surmised by now that the most effective way to suppress a blogger is to drown them out--flooding the internet with a large number of alternative Cuban bloggers describing their own lives might have been far more effective than suppressing a single blogger interested in writing about her everyday life. There might have been far less interest in the media, far more confusion about whose vision is correct and more material for contradiction. The Palestinians, for example, have learned this lesson. And there are always strategic clemencies, something well practiced by other states. But these are the lessons the Cuban regime will have to learn as it emerges from out of its anachronistic Stalinism and into the 21st century, even if an authoritarian one, especially if it means to survive as an engaged actor among the community of nations.

But for now there appear to be only growing pains, both internally and externally. And thus, in part, Cuba's difficulties with the Europeans, and with keeping its own house in order in a way tolerable to the rest of the world. For all that, the Europeans have offered the new regime something of an important lifeline in its efforts to insure the impotence of American machinations during the transition period. The principal credit for this reversal of position, of course, belongs to Spain. There is irony here, of course, in the continuation, in muted form, of that old battle between Spain and the United States for Cuba. Though in truth Cuba is now far more beholden to another--the Chinese. Still, Spain continues to play nanny to and oftentimes unappreciated mother for the last and best jewel of its Colonial Empire. This is, after all, the colonial metropolis that made Fidel Castro possible—sending his father from Galicia to retain domination at the end of the 19th century. Yet, the effort evidences a new confidence in the Raúl Castro government to move forward in ways that were impossible for his brother, given his history and his politics. “Ha habido algunos cambios, vemos signos de transición, y los amigos espanoles nos han transmitido su impresión de los contactos que mantienen con los cubanos. ” Miguel González, La EU revisará en un ano su oferta de diálogo a Cuba, El país, June 21, 2008 at 3 (quoting Dimitrij Rupel, the Slovenian Foreign Minister and the representative of the EU Presidency) (“There have been some changes and we see signs of transition and our Spanish friends have conveyed their impression of contacts made with the Cubans.”).

Not that this will be easy. On the one hand, many of the EU Member States do not share Spain’s “post” colonial love for its former colony. The original document was changed to read less favorably for the Cubans. In addition to a mandatory review of Cuban compliance with European standards of governance by June 2009, the sanctions lifting contains a proviso: “’A partir de esta fecha, el diálogo continuará si el Consejo decide que ha sido eficaz, teniendo encuenta los elementos contenidos en el párrafo Segundo.’ Entre estos elementos están la liberación de los presos politicos y el acceso de organizaciones humanitarias a las cárceles cubanas.” Id. (“’From that date, dialogue will continue only if the Council determines that it efficacious, taking into account the elements contained in the second paragraph.’ Among these elements are the liberation of political prisoners and access to Cuban jails by humanitarian organizations.”).

On the other hand, Castro remains an unappreciative, though attentive, son of the ancient forms of the Spanish Catholic monarchy, whose style, if not the exact substance of which, he is sometimes unconsciously tempted to mimic in a sort of filial devotion to his genetic past. And, of course, he can’t resist the dig, though who can blame him. Though the is a sad irony to the disparaging critique: “A mi edad y en mi estado de salud, uno no sabe qué tiempo va vivir, pero desde ahora deseo consignar mi desprecio por le enorme hipocresía que encierra tal decision. Esto se hace aún más evidente cuando coincide con la brutal medida europea de expulsar los inmigrantes no auterizados precedentes de los paises latinoamericanos.” Fidel Castro Ruz, Estados Unidos, Europa y Derechos Humanos, Reflexiones del Compañero Fidel, Gramna, June 20, 2008 (“At my age and given the state of my health, I don’t know how long I’ll live, but right now I want to register my disdain for the enormous hypocrisy the surrounds that decision. This is even more evident as it coincides with brutal European efforts to expel undocumented immigrants from Latin America.”).

Of course one has to laugh—at least a little—and be sad at the same time. Fidel Castro has begun to publicly hint at the inevitable. And that is sad, though hardly unexpected. As for the rest—substantially dissimulation but all in good fun. There is an enormous hypocrisy that surrounds the European decision, but it hardly has to do with EU immigration policy. The EU and its Member States, after deal with far more repressive regimes—including Zimbabwe, Iran, North Korea. One hardly hears a bleep about the Chinese anymore. Cuba, it seems, occupies that special status in European consciousness, which it ironically shares with Israel (and that is a great irony considering Fidel Castro’s position on Israel; and if nothing else it shows that there must be a Supreme Being (or some reasonable factotum) and that She has a great sense of irony), which requires it to act like a “special state.” On the other hand, Fidel Castro had that coming—since he has so successfully argued that Cuba—at least the idea of post Revolutionary Cuba—IS special. The poke at European immigration policy is pathetically manipulative. First, Europe has been among the more forbearing when it comes to immigration policy—and that, in par may explain why Fidel Castro gave in to the urge to make the point. Europe is an easy and very guilt ridden target. I would not have been able to resist myself. Stull, Fidel Castro knows very well that he is on thin ice here. He might, for example, have a chat with his friend Chávez in Venezuela on this score. Hugo Chavez and his more conservative predecessors have ebb in the habit of kicking out “illegal” Columbians in Venezuela from time to time. And of course Chinese policy to North Korean illegal immigration is interesting as well. Not that Cuba has had an immigration problem since the end of colonial rule. More importantly, perhaps, is that the targets of the European policy are more likely the black African migrations than that of Latin America—even in its mulatto and mestizo forms. And here, perversely, Fidel Castro missed a chance to lay a real and very significant punch. For there IS a bit of hypocrisy in European policy. The Spanish don’t mind, for example, Latin American immigrants as much as it fears Muslim and Black African immigration. The former can be absorbed: the latter may be a threat to social cohesion—especially in this anti-assimilationist age. And, of course, this is the issue that has bedeviled Turkish accession to the E.U., now less likely than ever.

Still, Fidel Castro has lived long enough now to be able to feel like Jimmy Carter on the day of Ronald Reagan’s inauguration. It was at that moment that the government of the Islamic Republic of Iran chose to release the hostages from the American embassy. Europe, too, waited—not long enough to act after the death of Fidel Castro, but long enough to force Fidel Castro to wait from the sidelines. This is not the hypocrisy that Fidel Castro mentions, but instead evidences a certain perverse meanness in small things for which Europe, like the Iranians, are sometimes known.

For all that this is progress. And one likely to add another nail to the coffin of American efforts to destabilize the post Fidel Castro regime. As has become a bad habit for American foreign policy in this part of the world—it is invariably a dollar short and a day late. And worse, it employs all the worst elements of Soviet political (and ideological) warfare—a tactics that has proven in the long term to be ineffective—while the Europeans and the Chinese (of all states) have been employing successfully it seems, a policy of economic incentives to open markets to lift people out of poverty and dependence, coupled with nudge towards greater human rights sensitivities. It is too bad that Castro cannot enjoy this last irony—the world turned upside down.

Wednesday, June 18, 2008

Democracy Part X: In Which Vote Counting is Merely a Factor in the Production of Governance

I have written much recently about the foibles of democracy as expressed in its 21st century form as part of this "Law at the End of the Day" series. Larry Catá Backer, Democracy Part I (November 11, 2007), Democracy Part II (November 16, 2007); Democracy Part III (November 22, 2007); Democracy Part IV (November 25, 2007); Democracy Part V (November 30, 2007); Democracy Part VI (December 2, 2007); Democracy Part VII (December 9, 2007); Democracy Part VIII (December 30, 2007); and Democracy Part IX (January 28, 2008). I have been impressed by the way in which, as Aristotle suggested millenia ago, republics can so easily transform themselves into democracies that degenerate into something else--something less laudable. See Aristotle, Politics (Benjamin Jowett, trans, 350 BC). I am also a believer in the reality of the two century long devolution of power from a small group of men to an undifferentiated population. For good or ill, even federal republics have become the captive of popular democracies in which majorities rule, such rule is based on vote counting, and the resort tp vote casting serves increasingly as a means of ratifying the most egregious anti-democratic actions of either the masses or the elites who seek to lead them to particular objectives. Thus reduced, individuals become cogs in increasingly large vote counting machineries in which identity politics, ethnic, gender, religious and other communal allegiances are manipulated as necessary for the production of appropriate voting. And that manipulation can include vote buying through judiciously deployed legislative action. Thus the ironies and perversities of democracy.

And so it is with the European Union. Which is a strange thing--since the European Union is itself, according it its own internal psycho-drama, in the midst of a search for the real meaning of democratic expression to reduce or avoid its much debated democratic deficit. That democratic deficit, which the European media and those others "in the know" have insisted has hobbled the legitimate functioning of this supra national and international law based constitutional system, might be reduced with a greater participation of the peoples of Europe. Unless, it appears, it is the Irish people, and the issue touches on a matter that the democracy loving elites have a large stake in seeing approved--irrespective of the niceties of democratic expression.

And so it is with the recent Irish no vote on the Treaty of Lisbon, a proposed enactment that was itself an intergovernmental version of a substantial portion of the previously rejected Constitutional Treaty for Europe. But no matter, one is told, Europe will plod on as if the Irish haven't spoken. Perhaps these people are channeling English elites of the 17th and 18th century, who tended to show much the same sensitivity to Irish dignity and expression. It seems that the imperialist turn is as easily expressed inward to the neo-colonized Member States of the Union as it once was exported to the benighted peoples of Africa, Asia and the Americas. It is good to know that patterns are hard to break. Now that is the expression of good old fashioned values by the most progressive elements of Europe. After all--the answer to the criticism that the European Union is little more (that itself is an astonishing perspective with not well hidden agendas) than a "Europe of merchants" is not necessarily that this is insufficient and that political union must follow or 350 million people will hold their heads in shame for merely having created an dynamic and integrated market structure that appears to be working well enough. See, e.g., Beatriz Navarro, El fin de Europa como coartada, La Vanguardia, June 16, 2008 ("El no irlandés es 'un golpe muy duro a la integración' que demuestra, a su juicio, 'a qué noslleva nombre de sus ciudadanos en la integración política del continente como complemento a la unión económica y monetaria, a la criticada Europa de los mercadores. Decir Europa ya no basta" Id., quoting in part Alberto Navarro, the former secretary of European affairs). For the political clases it is hard to fathom how it is that their will has not been confirmed by the docile masses. As Alberto Navarro lamented, "Nos enfrntamos a un gran divorcio de la calle con la clase politica." (Id., "We are meet with a great divorce between the people on the street and the political class").

Well, what is a divorce or two among friends? Clearly, ignorance may be at the root of some of the Irish vote--after all the unschooled Irish masses might have been better trained in their duty and in their comfort with whatever is placed before them in referenda by their betters. So, José Manuel Durao Barroso, the President of the European Commission tells us. (Id., "El voto no en Irlanda no es necesariamente un voto contra Europa. . . . Hay gente que está en favor de Europa que ha votado contra el tratado de Lisboa porque no lo entendía o porque piensa que están bien con la situación actual." (The no vote in Ireland is not necessarily a vote against Europe. . . There are people who are in favor of Europe who voted against the Treaty of Lisbon because they didn't understand it or because they thought that they were happy with the current situation. "). One has to laugh at both the presumption and the condescension. But that is the way it is.

And so we are back to our ideal--democracy. It is best taken, it seems, only when the outcome is certain. Systems ae not what they appear. They operate solely for the production of positive votes when such are desired and engineered by those in charge of such things. Thus, the Treaty of Lisbon was not to come into effect unless approved by all the Member States. The people of one Member State said no. The rest of Europe now says no to Ireland. The no vote merely serves to detach Ireland from a project in which it both had a large stake and in which, according to the rules, it like other Member States, had an equal dignity to participate and chart the course of union. But no. That only applies when France or Germany hiccups. And indeed, people ought to be slow to forget the strategic use of political tantrums effectively utilized by the government of Charles DeGaulle to get his way in the 1960s. Ah, but that is water under the bridge. . and these are the Irish; such a small and marginal nation. But thatis the point. The political system--federal, representative and democratic, preserves both the dignity of the individual and that fo the Member States. It is not for nothing that Europe has been successfully bult on a model of consensus democracy. It is true that the Irish are a small number of Europeans. It is also tre that their are larger and more "important" states. But all the same, as states, there is a sense that hierarchy is to be avoided. And this is important. Where states are refashioned inot a hierarchical relationship, then the return to empire is likely to follow. For that reason, it is both ironic and greatly symbolic that one of the states that has suffered most within a system of political hierarchy, under the "tutelege of the English crown for many centuries, ought to be the hand that reminds Europe that it works because it has, until now, acted well enough on its beliefs in the dignity of individuals and states. But rather than view the problem as originating with the measure--the elites blame those who would assert their obligations to scrutinize and vote.

Perhaps, as a reward, they ought to be detached from the Euro, so they might go their own way. Who knows, perhaps the Americans would want them. Even the Socialists have embraced this fair weather approach to democracy. Martin Schultz, leader of the Socialists in the European Parliament was quoted as suggesting that those interested in moving toward greater political union through the Treaty of Lisbon vehicle might pick up their toys and play amongst themselves. Id. That certainly is the view from unnamed diplomatic sources, who in their usual manner have babbled that "Si el problema se extiende, es probable que pronto se inicien conversaciones para que un grupo de países continúe avanzando en una Europa más politica." (Id. "If the problem continues its likely that conversations will commence so that a group of states can continue to advance in a more political Europe"). The posturing and framework is clear, if made less tasty by the sour grapes. Given this approach, it will be a curious thing to see how the problem of democratic deficits in the new and improved political Europe will find expression; at least one that means something more than a formalist posturing covering the realities of power and the desires of elites bent on pushing Europe in a particular direction. And the sad thing is that Europe might well be better off going, in its own way, in that direction. But this way?

For all that, there is a mob politics at play here. Not the simple minded sort most might extract from a surface analysis of these silly politics, but a much more subtle interplay between elites and electorate that lies at the heart of the perversities of democratic governance, in which the counting of votes is merely a factor in the production of governance. I once wrote that
Ironically, at its most benign level, the democratic-deficit debate evidences a full flowering of the power of an elites to shape discourse on the supra-national plane. Indeed, the democratic-deficit debate, when combined with the notions of illegitimacy and inauthenticity which form the heart of the 'elites without the people' characterizations of EU governance, itself serves to illuminate another elite B those who have attempted to seize authority to determine what passes muster as authentic and legitimate within the European political sphere, and what does not. Who speaks for the people here? The professorate? The English newspapers? Non-governmental organizations? All are elites within the fields of their competence. All seek to speak for an entirety, the people, to other portions of a society of cross cutting elites. The usual passivity of the people, and their amenability to manipulation, appears assumed -- the question then turns on which of the elites can exert the more persuasive force. Here, perhaps, is a darker and more culturally sensitive version of the well known Schumpeterian model of democracy as a battle by elites for control of the minds (and votes) of the general populace. Or perhaps this is action more in the style of the late Roman Republic where within an ostensibly republican political structure, either elites constantly sought the role of primi inter pares, or the mob served as the most effective source of direct popular opinion. Others have described the interaction as a mix of elite and demagogic politics. 'But however weighty the decisions fo electoral majorities, nothing is likely to get settled without the consent and the participation of corporate groups controlling key resources.'

Larry Catá Backer, "The Euro and the European Demos: A Reconstitution," 21 Yearbook of European Law (England) 13 (2002) (citing in part Stein Rokkan, State Formation, Nation Building, and Mass Politics in Europe: The Theory of Stein Rokkan 261 (Peter Flora, ed., Oxford, 1999). Indeed the Irish vote, and the reactions to it may evidence more the populist politics of the late Roman Republic than anything modern. The careers of P. Clodius Pulcher and T. Annius Milo provide an instructive example to a democracy of the mob. See Plutarch, The Life of Cicero, in PLUTARCH, FALL OF THE ROMAN REPUBLIC 311, 340-47 (Rex Warner, trans., Penguin Books, 1958) (before 120).
But there is more than irony at work here. There is a perverseness to the anti-democratic/conspiracy theory arguments against the creation of a closer union among the Member States of the EU. The perverseness rises from out of the unstated implications of these arguments so blithely and blindly targeted against Europe. It seems clear that the power directed against the EU by elites and other conspirators, and that the disregard for democratic principles from which these elites operate, work as efficiently at the level of the Member States of the EU as they do at the level of the institutions of the EU.
Backer, supra.

Tuesday, June 17, 2008

MERCOSUR: It's Alive!

Regional trade associations are all the rage. Most states belong to at least one. They are meant to suggest an outward looking and progressive approach to trade in the current context of market oriented globalized economic activity. But appearances can be deceiving. In an unpublished Ph.D. thesis that may hopefully be published at some point, Gabriel Gari has done us a valuable service by looking carefully at a regional trade system the promise of which has yet to be delivered—MERCOSUR, the common market of the Southern Cone, of which Brazil, Argentina, Paraguay and Uruguay are members and Venezuela is set to join. Gabriel Gari, “The Liberalisation of Trade in Services in MERCOSUR” unpublished Ph.D. thesis, April 2008). In this excellent work, one that I hope will find expression in published form, Gari seeks to address a number of related points: the appropriate framework for considering challenges for liberalisation of trade in services, the extent to which the MERCOSUR framework successfully engages those challenges, and the measures that might better meet liberalization objectives both within the specific context of the MERCOSUR member states and generally for states seeking to band together for that purpose. (Text at 17). “In other words, the thesis seeks to shed light on the best course of action for securing a realistic degree of liberalization of trade in services in light of the underlying socio-economic and political factors conditioning the integration process. (Id.).

To that end, Gari charts an ambitious course. Chapter 1 presents the theoretical foundations of his investigations. The chapter first carefully describes the specific object of study and attempting to suggest their unique character (Text 25-30). It then turns to the unique challenges to trade liberalization posed by trade in services (Text 30-38). For that purpose, Gari turns to academic discussion of the term, focusing on the approach of T,P, Hill, developed in 1977 (T.P. Hill, On Goods and Services, 23 Review of Income and Wealth 315 (1977). While the discussion is valuable, it might have profited from a review of the development of the meaning of that term in practice within two useful referents—the European Union and within the North American Free Trade Association area. More importantly, perhaps, the traditional definitions make it easy to too strictly separate trade in services from ree movement of capital and workers and especially of establishment. The emphasis on the temporary nature of the establishment to qualify as services rather than establishment both highlights the important connection between establishment and services (so closely connected perhaps that it is impossible to completely separate them--a subject touched on in chapter 4, though he is well aware of the inconsistencies as a result of this separation-connection problem (Text, 132-133)). But, in fairness, Gari notes this problem when I defined the particularities of the barriers to trade in services (Text at 34, 35, 56). Gari none the less raises the important issue of services as, to some extent, worthy of study independent of other areas to which it might be more or less closely tied.

In what is likely the most important section of this chapter, Gari turns to the description of the spectrum of models available for liberalization of trade in services—one the one end the General Agreement of Trade in Services (GATS) model, and on the other the model offered by the Treaty Establishing the European Community (EC Treaty) (Text 38-54). Though mentioned later in the thesis, the North American Free Trade Agreement (NAFTA) is not discussed further. While understandable, it might have been useful if only as a contrast to spotlight the models actually ittilized. Gari correctly concludes that at the core of modeling liberalization regimes are issues of power. “At the end of the day, the liberalization of trade and, in particular, the liberalization of trade in services, requires a redistribution of regulatory competence over cross border economic transactions between the host State, the home State and regional bodies (legislative and adjudicatory), which admits a wide range of expressions, some more deferential to domestic sovereignty than others.” (Text at 57-58).

From this conceptual framework, Gari begins his exploration of the particulars of MERCOSUR. Chapter 2 presents a highly descriptive treatment of the fairly baroque formal institutional construct that is MERCOSUR, as well as the reality these structures mask. The key point, one perhaps worth making more strongly, is that institutional arrangements are usually critical but not sufficient to support trade liberalization (or any political act for that matter) absent a commitment to translate those ideals and efforts into action. Elaboration is important, implementation is key, and MERCOSUR has apparently mislaid that key. The political background of the basic treaties is discussed first (Text at 60-64). Gari nicely brings out a key element of what is to follow—the political and economic asymmetries among the Member States and their participation in the negotiations leading to the Treaty of Asunción. Id., at 63. The Treaty structure itself is described next as well as its context within the elaborate system of multiple integration treaties to which the MERSOCUR Member States are party (Text at 64-75). The MERCOSUR institutions are treated next (id., at 76-90). Gari paints a picture of a huge and baroque institutional structure, with little substance (as will be made clearer in the succeeding chapters).

The analysis here might have profited by a more direct comparison with its progenitor—the institutions of the EU. This would have strengthened the core argument of the thesis—that MERCOSUR is institutionally at war with itself, an integrationist institutional structure atop a GATS style implementation framework, atop an unstable system of relationships among Member States, atop a group of shifting and competing integration agreements with different casts of state characters. Gari turns next to a consideration of the sources of MERCOSUR law (text 90-99). Gari paints MERCOSUR’s formalist enterprise with skill. The comparisons to GATS, so important to the analysis, follow in Chapters 3 and 4. It is here that one looks through the legal glass darkly. There is much law and little transposition. Enforcement (Text 99-113) looks no better; much smoke and little fire. This is a structure that looks full but may be empty. The chapter ends (Text 113-123) with an interesting discussion of criticisms and proposals for reform. It is here that Gari lays the groundwork for the analytical approach of the last three chapters—an integration effort haunted by past failures, yet bound by them because though inadequate they have never been abandoned (indeed some of them prove to be quite lively), a consequentially weak institutional framework in fact, and the contradictions of high aspirations and weak structures produced in part by the lack of politically feasible alternatives. Here we come across Gari’s contribution to the debate—the call for a specific set of gradualist reforms designed to make the best of a weak situation (text 122-123). It would have been interesting to tease out in a little more detail the political value to the Member States of maintaining this state of affairs—things that “go wrong” might be in the political best interests of one or another group. It maybe that what appears to be deficiencies from a strong integrationist perspective might appear to be the benefits of an agreement designed to slow integration down. MERCOSUR thus looks as much backwards as forwards. It lays a framework for an integrationist future while elaborating that system within the strict confines fo states that are still working toward the sort of trust necessary for more intimate union

With Chapters 3-5 we come to the heart of the analysis—an application of the insights of the first two chapters to the peculiarly nettlesome problems of trade in services. Chapter 3 provides an essentially descriptive analysis of the principal foundations for trade in services integration—the Protocol of Montevideo. (TEXT 125-162). The Protocol’s background (text 125-128), scope (text 128-137), obligations and disciplines (text 137-150), institutional provisions (text 150-154), and annexes (text 154-161) are described. Its focus was on the suitability of the GATS model for integration in trade in services within an integrationist framework that is substantially deeper than GATS. It is clear that Gari suggests that the Protocol of Montevideo is a better GATS, but it is not necessarily a good MERSOCUR.
“The analysis of the black letter of the law reveals blatant contradictions between, on the one hand, a ‘negative integration contract’ primarily concerned with the elimination of discrimination and mindful not to interfere with State Parties’ right to regulate, and, on the other hand, an integration process whose ultimate goal is the establishment of a common market involving amongst other things, the free movement of goods, services and factors of production and the co-ordination of macroeconomic and sectoral policies.

(TEXT at 162). One wonders, however, whether the persistence of this conclusion suggests that the problem may be the way in which an understanding of the objective is approached, rather than a problem with its elaboration. If all but one is marching left, is it fair to argue that the force intended to march right? When Gari considers an expansion of the thesis he might consider the argument that rather than the arbitration cases being right and the elaboration aberrational, perhaps the few arbitration cases that he discusses (principally Argentina-Blocked Highways) may be aberrational instead. That, of course, leads away from integration, but perhaps that is where we are meant to go. What Gari points two as the two great deficiencies of MERCOSUR’s experiences with the implementation of the Protocol of Montevideo—the failure to complete rounds of negotiation and the lack of a sound institutional framework—may be failures only if one means the integrationist project to proceed to a pre determined finale. That, as Gari makes abundantly clear in his analysis, is no longer clear.

Chapter 4 examines negotiation of specific commitments on Trade in Services. (Text 164-198). Gari nicely brings home the extent of the frustration among those who read the Treaty of Asunción as meaning what it said and the Protocol of Montevideo as a concrete step in that direction sanctified by its exposition in the black letter of binding international arrangements. But then that is the problem. This baroque institutional structure is little more than a house of cards built on a windy slope. And the winds, as Gari shows in Chapter 4, tend to blow hard in the trade in services sectors. The framework for elaboration, necessarily complex, is described first (text 164-170). Its reliance on GATS is clearly drawn out; its weakness as a consequence of that reliance becomes apparent given the sustained reminder of the higher purposes of these efforts, and the ways in which the State Parties have cultivated a variety of methods to appear to comply and yet fail to take all the steps necessary to make that compliance so. Gari, in particular mentions a few: the GATS framework lacks a necessary specificity, other alternatives might be better at achieving the State Parties’ stated objectives, and the system is designed to privileged short term interests, the last a fatal problem. (Text 169-170). Gari here looks very briefly if longingly at the European Union, but that reference is not developed. The seven negotiation rounds, from 1998 through 2007, are painfully described (text at 170-180). The pattern quickly emerges—a pattern that might have been more crisply extracted from the descriptive materials to good effect—inconsistent agendas, paralyzing domestic agendas, a failure to commit to any form of compelling supranationalism, and despite all, some small steps forward at different rates among the State Parties. The current state of commitments is then described (text 180-192). Unstated, but important, here, are indirect consequences of this framework. The lack of transparency breeds its own sets of arbitrary activity. The failure to include the non-governmental sector avoids obvious capture but also disengages the populace form the integration process. Certainty and predictability are difficult objectives to attain. There is a sense of State Parties gaming the system—MERCOSUR in general and the Protocol of Montevideo in particular, might serve most usefully as a means of domestic politics by other means than as a means of achieving any sort of deep integration. For all that, Gari finds a silver lining. “A comparison of State Parties’ MERCOSUR commitments with their GASTS commitments clearly illustrates that the former are far more advanced than the latter in terms of coverage, depth and transparency.” (Text at 193). This might say more about GATS than it does about MERCOSUR, but I leave that point to others. For all that, “six rounds of negotiations spanning over the last nine years achieved no more than that (partial) consolidation of the status quo of State Parties’ domestic legal systems, failing miserably to eliminate the discriminatory measures embedded in those systems and ensure a preferential treatment for MERCOSUR services and service suppliers.” (Text at 194). And at last we come to the Achilles heel of any analysis based on the black letter of MERCOSUR: “As things stand today, the observance of the commitments recorded in the schedules depends on a sort of ‘gentlemen agreement’ between the State Parties.” (Text at 194). That gentlemen’s agreement is necessitated by the structural limitations built into the system described well by Gari: (1) little maneuvering room as a consequence of contradictory national legislation or constitutional provisions that appear unchangeable (a case of the tail waging the supranational dog?); (2) valuing concessions is difficult in a system that demands reciprocity; (3) intrusive regulatory asymmetries; (4) prioritization of short term interests as bargaining strategy. (Text 195-196). For all that, there is a bit of bathos at the end of the chapter—“The analysis provided compelling evidence suggesting that barriers to trade in services cannot be removed by diplomatic means alone.” (Text at 196). Stronger medicine is required to meet the objectives, but as Gari correctly points out, medicine not so strong that it kills the patient.

With this in mind, Gari tackles the last and most interesting issues—“the liberalization of trade in services through positive integration.” (Text at 200). The focus is on MERCOSUR secondary rules on specific service sectors and modes of supply. Here Gari means to put “forward suggestions for improving the quality of MERCOSUR legislation.” (Id.). The first section (text 200-203) interrogates the term positive integration. “To put it simply, positive integration refers to the adoption of rules by treaty-based decision making bodies endowed with rule making power.” (Text at 201). But this is the problem. As Gari himself had made clear in Chapters 2-4, the essence of MERCOSUR is the ability of its institutional systems to spin rules which have no effect, and with few real mechanisms at the supra national level to make it so. Still, with the European Union as a sort of North Star, Gari pushes on. He argues that there are many ways to fashion secondary legislation, and many ways to adapt the system to the needs of the multilateral system being created. The EU is an example, but not the limit of its successful use (Text at 202). This is the critical step for Gari to move MERCOSUR form an empty showpiece of good intentions well unrealized to a functioning system of substantial integration in accordance with the tastes of the parties. “By providing a mechanism for tackling the trade restrictive effects caused by ‘lawful’ but disparate domestic regulations, positive integration paves the way for reaching a level of integration deeper than that resulting from the mere removal of overt discriminatory measures.” (Text at 203. The GATS model, then, the basis for integrating trade in services, is not enough. Something more, something more compellingly supra national, is needed. And here is where ‘touch’ makes all the difference. In a political and economic context in which the EU solution is unpalatable, how far can one go to realistically prescribe supra national interventionism in the form of law making from above?

For this purpose, Gari outlines the current process for the adoption of secondary rules (text 203-205), examines the secondary rules adopted to date (text 205-228), and then examines this structure in the trade in services area (text 228-232). In light of the not very surprising paucity of such legislative efforts, Gari offers us a trenchant critique. These include the unfocused objectives of current rulemaking (text at 228-229), the inconsistent pattern of rules (text at 229), the unfocused subject matter of rulemaking (text 229), the tendency to use secondary rules for primary rulemaking which subjects the rules to the usual and cumbersome requirements of transposition into national law (text 229-230), the inadequate implementation of successfully incorporated rules (text 230), and the limited scope of the rules adopted in a variety of critical sectors(text 230-232). From these critiques spring proposals for improving secondary legislation on services (text 232-242). These are meant to parallel the suggestions proposed in Chapter 2.E (on the MERCOSURE framework generally) and are focused on improving the “transparency, accountability and efficiency of the existing legislative process within the boundaries of the predominantly intergovernmental character of MERCOSUR institutional framework.” (Text at 232). These include strengthening regulatory cooperation (text 232-233), a more precise definition of regulatory competence and a reduction of overlap (text 233-234), strengthening an institutional structure for disciplining decisions coming from MERCOSUR legislative or decisional bodies (text 234), and most boldly the institution of a permanent review tribunal (text 235). The last, of course, has strong rule of law arguments going for it, but the proposal is also undercut by the very strong evidence Gari has produced to suggest a political lack of will to go even this far removed from a purely intergovernmental project.

There are more suggestions for improvement. These include strengthening and streamlining the MERCOSUR Secretariat (text 235-36) something that would be useful for integration but dangerous for Member States comfortable with the current inefficiencies. He would also seek to strengthen Parliament’s role. (Text at 236-37), though in light of the length of time it took to implement and the questionable effect of the Europeans Parliament, it is doubtful that a milder form of parliamentary participation might do much. Gari might consider a more focused discussion of Parliamentary control form the perspective of the EU Parliament as he further refines his proposals. Lastly Gari suggests a more refined approach to primary and secondary rulemaking (text at 237-240). But that discussion itself suggests the terribly early stage in which MERCOSUR finds itself. This is no surprise. Given the elaboration of a structure without substance and a system of black letter rules and implementation “understandings,” it makes perfect sense that the Member States might approach the issue of regulation is a less than rigorous way. While this may make the academic shudder, it tends to reflect the reality of the choices actually made by the parties—both with respect to the use of the black letter and the importance of the unwritten substructure that actually impels progress forward (or back).

Now we can step back and see what has come of this examination (text 244-255). “The liberalization of trade in services is a complex task. Unlike tariffs or quotas, barriers to this type of trade are essentially regulatory in character, and thus, less obvious and more dispersed. (Text at 244). This certainly has been the experience within the European Union. It has yet to occur within GATS, the model adopted in great part by MERCOSUR. As such, the liberalisation of trade in services trends to call for the highest degree of integration. At a minimum it requires a high degree of legal harmonization among the legal orders of the participating states and a sense that, at least in the aggregate, there are symmetries of benefit and obligation. None of this is the case within MERCOSUR, which Gari characterizes, after 18 years in existence as “an incomplete free trade area, with a partially implemented common external tariff and no co-ordination of macroeconomic policies.” (Text at 245). One is left to wonder, as Gari does, whether, because of the asymmetries and lack of will, the Member States actually want more than MERCOSUR than they have put in: a nice aspirational framework, like an empty house, in which eventually, if it suits them, the parties will lodge themselves. This becomes clear when considering the differences in approach between Brazil and Argentina, on the one hand, and the other Member States. (Text 250).

The keys to reducing these deficiencies are complex. Gari points to the need for revision of both legal framework and the culture of implementation elaborated to date. Or, at least, with respect to key instruments, like the Protocol of Montevideo, a willingness to interpret around inefficiencies: “it is also fair to say that the Protocol’s general obligations and disciplines are broadly defined and thus, if properly enforced, could still make a valuable contribution to the liberalisation of trade in services.” (Text 246). But other aspects of the legal framework are also weak: dispute settlement is formally inadequate and little used in practice (text 248).

The culture of implementation is also maddeningly obtuse, from an integrationist perspective. The negotiation rounds are a hard nut to crack. These require both an assertion of a political will that seems to be lacking and the creation of a bureaucratic corps dedicated, like that of the European Union’s Directorate in Brussels, to the cause of integration. (Text 246-47). I am less optimistic about this. It is as likely that the Member States approach the rounds as they do because it suits them. The issue may be more about creating a context in which it suits them to change. Yet, to some extent Gari has a point: a core of bureaucrats dedicated to harmonization may prove useful in changing context. The same problems bedevil the project of secondary legislation. (Text at 247). But most potent is the great rift between even the small production of rules and decisions within MERCOSUR and their transposition into the national legal orders of the Member States (Text at 248). It is a strong sensitivity to these realities that guides Gari to his proposals—gradualist, and incrementalist, that he then suggests.

From out of the construction of a framework for analyzing liberalization regimes, Gari suggests the failings of MERSOCUR. That, of course, is easy enough to do in this case. What makes the argument much more compelling is his attempt to suggest a strong positive, both from the framework chosen for integration within the MERCOSUR model and the possibilities he correctly suggests for succeeding in a gradualist and flexible long term program of liberalisation, even in the face of great asymmetries of political and economic power. Gari concludes that, to date, there has been very little real progress toward integration (Text at 245). The Protocol of Montevideo on Trade in Services “does not provide the ideal regulatory framework for trade in services within the bloc.” (Id.). GATS provides a poor model, he concludes further, when the objective sounds more like the integrationist goal of multilateral amalgamations like the European Union. (Id., at 246-247). Yet he suggests that the institutions are not at fault (id., at 248), it is merely symptomatic “of the economic and political factors underlying the integration process.” (Id., at 249). The solution is neither to abandon the current institutional framework nor to abandon the project of integration. Instead, Gari proposes a series of gradualist reforms he suggests might help foster, in the long term, the integrationist ideals of the Treaty of Asunción and the Protocol of Montevideo for trade in services. These consist of consolidating the status quo (Text at 252), efforts at convergence of the legal systems of the Member States (id., at 252-253) an effort that has proven difficult even in more ambitiously integrationist regimes like that of the EU, and the promotion of a more open debate on integration (id., at 253-255). “MERCOSUR will require far more than the ten years period prescribed by Article XIX of the Protocol of Montevideo before suppliers and consumers of services can move freely across national borders. And still, it is not unreasonable to wonder if this objective could ever be achieved at all.” (Id., at 255). After reading Gari’s thesis, one would have to agree.

But for all of that, Gari's suggestions are worth careful consideration. After all, MERCOSUR has not been abandoned. The reverse is more faithful to the fundamental truth of relations among the Member States of MERCOSUR. And that trade organization is young, even when measured by reference to the European Union. Most potent, I think, of Gari's suggestions, and one that I hope will be further elaborated in future work, is the empowerment of an invigorated Secretariat. One of the great problems of MERCOSUR is that it has developed no independent voice in the debates about integration. There is no analogue to the European Commission, even in its infant form in the 1960s. Instituting and funding an organization whose principal loyalties are to the fundamental objectives of MERCOSUR, with independent power to investigate and to published reports, available to all--green papers, white papers, proposals, resolutions and the like, will help reorient the debate about integration in the Southern Cone in a way that is impossible now.