Thursday, May 31, 2007

China: On the Problems of Unity and Solidarity of a Multi-Ethnic State

When people in the West think about Chinese irredentism they usually think of two places--Taiwan and Tibet. The former remains to be absorbed (or reabsorbed depending on whose perspective you embrace), the latter increasingly being absorbed by Han ethnic migrations since the absorption (or re-absorption, again depending on whose history you embrace) of the early 1950s. Well trained by a brilliant Chinese media, the West views these contests as conflicts among cousins and, from a political and rule of law perspective--either a question to be solved by free and fair plebiscites or other mechanisms for the determination, by local populations, of their solidarity with one or another competing sense of political belonging.

Less often considered, and much more difficult from the perspective of law and politics, is the Turkish region of the current Chinese State--currently known by its Chinese name Xinjiang. (This is not to suggest that China interests in the area are not legitimate or historically authentic within currently acceptable customarily recognized parameters within the rules of the "family of nations". Over the last thousand or so years a variety of Chinese Imperial governments have had more or less success in absorbing, or retaining control, of the region. The current Chinese State's claims on the region are as good (or as bad) as those of its Imperial predecessors and is not the focus of this essay). Thus, "while the fight against China's rule over Tibet attracts more international attention, the violent nature of the Uighur separatist movement has become a headache for the Chinese government." John Pomfret, Separatists Defy Chinese Crackdown: Persistent Islamic Movement May Have Help From Abroad, The Washington Post, Jan. 26, 2000.

What makes the claims more interesting, and more and more likely to drain time and energy from authorities in Beijing, is the substantially different social, ethnic, and religious composition of the region. The way in which the Chinese State is able to find a basis for solidarity (at a political level) with its Muslim (and Uighur) citizens in Xinjiang will likely set the pattern for China's transformation from a majority ethnic Han dominated state, to a multi ethnic state. I suggest here that, while China's current set of policies might work, it will succeed at some great cost. More interesting, it suggests the increasing sharp conundrum for Chinese State officials--the more intensely the Chinese State pursues its internationalist agenda, the more it participates int he construction and maintenance of international norms of state behavior, the more difficult it will be for Chinese officials to retain a free hand to develop programs of internal pacification. solve internal problems. And the irony will be that it will increasingly find itself the butt of the sort of criticism it had developed to a fine art over the course of the last half century of efforts by non-Marxist-Leninist states to deal with these issues.

Like Taiwan and Tibet, but for vastly different reasons, the Xinjiang region has proven (as it has during every period of successful Chinese projection of power over the area) has proven to be troublesome for the central authorities. It is a vast land where two peoples meet and mingle--the ethnic Han and their ethnic variants, on the one hand, and the Turkish, mostly Uighar and Muslim peoples, on the other. According to Chinese State sources, the population beaks down as follows: "Uygur (47.47 %), Han(37.58 %) and Kazak (7.3 %) ethnic groups, as well as the Mongolian, Khirghiz, Xibe, Tajik, Uzbek, Manchu, Daur, Tartar and Russian ethnic groups." Xinjiang Gygur Autonomous Region, People's Daily Online. In 2003, the The Information Office of the State Council issued a 55 page white paper on the history and development of China's Xinjiang Uygur Autonomous Region, titled History and Development of Xinjiang (May 26, 2003 and published in English by the People's Daily Online). The Chinese have emphasized the multi ethnicity and continuity of Imperial control of the region and suggesting that the Uighars arrived after Han peoples settled the area. Xinjiang's recent history is described in the Western popular press in a way that suggests the Chinese State line:
Straddling the ancient Silk Road, Xinjiang was brought into the Chinese empire during the Qing dynasty. It is populated by a mix of ethnic groups, including an estimated 8 million Uighurs. In 1944, during the chaos of war with Japan, Uighur leaders declared the sovereign state of East Turkestan, but in 1950, the Communist People's Liberation Army crushed their independence.
John Pomfret, Separatists Defy Chinese Crackdown: Persistent Islamic Movement May Have Help From Abroad, The Washington Post, Jan. 26, 2000. For a different view, see S. Frederick Starr, ed., Xinjiang: China's Muslim Borderland (New York: M. E. Sharpe, 2004, 528 pp.), Michael Dillon, Xinjiang -- China's Muslim Far Northwest, (London: Routledge Curzon, 2003, 201 pp.) and Christian Tyler, Wild West China: The Taming of Xinjiang (London: John Murray, 2003, 320 pp.) reviewed in Joshua Kurlantzick, The Unsettled West, From Foreign Affairs, July/August 2004.

While the Xinjiang remained mostly quiet during the earlier periods of control--in large measure because of a sound policy (for the time) of benign neglect--the rise of Muslim self-consciousness and ethnic nationalism in the Middle East and Asia since the break up of the Ottoman Empire, combined with greater assertions of control by Beijing and Han migration into the region, has had substantial effects on the relative peace in the area. In Written evidence submitted by Dr Caroline Hoy, Department of Urban Studies, University of Glasgow published 13 Aug. 2006 (U.K. House of Commons, Select Committee on Foreign Affairs), it was noted that
The Muslim communities in Xinjiang are not isolated and are linked to the Islamic communities in Central Asia and beyond. The Chinese state is apprehensive about the nature of religious practices in Xinjiang and the spread of Wahhabism. As a result of the connections not just between religious belief and ideological independence from the state, religion and terrorism, but also to the further question of cession by Xinjiang from China, the Chinese government controls religious practices in Xinjiang to a high degree. This has created further strains between the Chinese government, the Uighur and other ethnic populations.
This has not gone unnoticed by the Chinese State apparatus. "A classified circular issued in December [2000] by the Ministry of State Security, meanwhile, indicated strongly that China believes problems with Uighurs--mostly Muslim, with a Turkic language and ethnically different from the majority Han Chinese--will not go away." John Pomfret, Separatists Defy Chinese Crackdown: Persistent Islamic Movement May Have Help From Abroad, The Washington Post, Jan. 26, 2000.

Chinese authorities wisely have attempted a three prong attack on the problem of Xinjiang in general, more specifically Uighur separatism and most specifically the solidarity within a united China between Chinese Muslims and the rest of the peoples of the Chinese State. These three involve (1) violent suppression of political and military activity against the unity of the State and its control of the Xinjiang region; (2) a migration policy that reduces the distinct character of Xinjiang as either Muslim or Turkish; and (3) a generally applicable set of state policies that appear quite solicitous of Islam as a cultural element of the Chinese State. While the West has tended to ignore these policies, implementation issues that have arisen recently may raise the stakes for Chinese foreign relations in continuing to pursue these policies in their current form.

Suppression. The first prong involves a strong and violent suppression of any form of anti-state activity on the part of the Uighurs and related peoples. Specific targets have included the Uighur separatist movement that has been troublesome for the last third of a century. "China has waged a harsh campaign in recent years against what it says are violent separatists and Islamic extremists struggling to set up an independent "East Turkestan" in Xinjiang, which shares a border with Afghanistan, Pakistan, Tajikistan, Kyrgyzstan, Kazakhstan, Russia and Mongolia." Benjamin Kang Lim, Muslim Executed for Trying to "Split" China, Reuters AlertNet, Feb. 9, 2007.

For this purpose, the Chinese State has been able to enlist the help of neighboring states, even Muslim States. "There are concerns that counter-terrorist activities, associated with the expansion of relations through the SCO, are being used to suppress Uighur opposition groups in the region. China has signed extradition treaties with both Kazakhstan and Kyrgyzstan that employed to extradite Uighurs to China." Written evidence submitted by Dr Caroline Hoy, Department of Urban Studies, University of Glasgow published 13 Aug. 2006 (U.K. House of Commons, Select Committee on Foreign Affairs). As a consequence, the Chinese have not refrained from a sort of rough justice, designed to make it clear to all who might sympathize, the they take a tremendous, and tremendously costly risk, in taking on the Chinese State. In one of the latest actions in this program, it was reported n February 9, 2007, that
China has executed a Uighur activist in a far-northwestern city for attempting to "split the motherland" and possessing explosives, drawing condemnation from a human rights group which said the evidence was insufficient. Ismail Semed, who was deported to China from Pakistan in 2003, had told the court a confession had been coerced, but he was executed nevertheless on Thursday in Urumqi, capital of the predominantly Muslim region of Xinjiang, Radio Free Asia on Friday quoted his widow, Buhejer. . . . . Benjamin Kang Lim, Muslim Executed for Trying to "Split" China, Reuters AlertNet, Feb. 9, 2007.
And those the Chinese State apparatus cannot bring to justice within China face the likelihood of permanent exile. Thus, for example, the New York Times reported on the circumstances of what the reporters, in an interesting understatement, described as "Muslims from western China's Uighur ethnic minority." Tim Golden, Chinese Leave Guantánamo for Albanian Limbo, New York Times, June 10, 2007 at A-1. The story describes the difficulty of finding a home for four men recently released from the Guantánamo camp after they were "found to pose no threat to the United States." It seems that while they posed no threat to the United States, they posed a substantially larger one for China, where these men are "still considered terrorist suspects by China's Communist government." Id. And, form a Chinese perspective, there was something to that position. "Pentagon officials have described the Uighur hamlet in Afghanistan as a separatist training camp that was at least loosely aligned with the Taliban. Lawyers for the men dispute that characterization. But in interviews, the Uighurs in Albania described a tiny, primitive outpost run by secretive members of some sort of Uighur liberation group." Id., at A-12. Unacceptable to the United States because of their connection with groups and events in Afghanistan (where they had been captured),
"American diplomats say they have asked nearly 100 countries to provide asylum to the detainees, only to find that Chinese officials have warned some of the same countries not to accept them. . . . “The Chinese keep coming in behind us and scaring different countries with whom they have financial or trade relationships,” said one administration official, who insisted on anonymity in discussing diplomatic issues. Id., at A-12.
Even the Albanians, well paid by the Americans for their humanitarian efforts, have felt Chinese pressure: "Beijing’s ambassador to Albania has met at least three times with Mr. Berisha, the prime minister, to demand the Uighurs’ repatriation, Albanian officials said. Albania has since told Washington it cannot accept any more of the Uighur detainees." Id.

But China is also beginning to pay the price for such activity. In the case of the execution of Semed, the "exile group, the World Uighur Congress, said the prosecution had presented no credible evidence for a conviction." Id. Even as China suppresses Uighur separatist activity at home, it appears to be providing fuel for Uighur consciousness and activity abroad. The World Uyghar Congress, recently formed to coordinate and provide an institutional basis for independence, has been able to exploit Chinese internal policy to its benefit. And the repercussions for China could be serious (at the least seriously embarrassing). In a great reversal of traditional roles from the 1960s, currently it is George Bush meeting with representatives of suppressed and exploited groups and using those meetings to build a global consensus about the character of the Chinese policy of suppression as violative of international law.
US President George W. Bush met the exiled leader of China's Uighur Muslims on Tuesday, US Uighurs said, as he accused Beijing of jailing her sons in retaliation against her human rights campaign. Rights activists described Bush's meeting with Rebiya Kadeer as significant amid international pressure on China to put a stop to what they called serious human rights abuses ahead of the Beijing Olympics in August 2008. Bush Meets China's Exiled Uyghar Leader, June 7, 2007 (published by the World Uyghar C0ngress).
In the case of the Uighurs in Albania, China has provided a legitimating public space within which elements of global civil society could broadcast its charges of violations of human rights norms by China against a non-Han population it controls. Moreover, this episode, like the execution of Semed, provides a growing basis for the depiction of the Muslim minority in Xinjiang, n a sympathetic light, something that will be increasingly troublesome for China as it seeks to project its power and legitimate its actions on the world stage. Thus, for example, the Albanian exile of the Uighurs released from Guantánamo provided a sympathetic foundation for the recasting of the story of the relationship between Uighur and Han Chinese as one less sympathetic to Chinese official positions. Thus, it was reported that "International human rights groups have long accused the Chinese authorities of oppressing the roughly nine million Uighurs in Xinjiang, where there have been occasional acts of separatist violence. The State Department’s own 2006 human rights report for China describes ethnic discrimination, the suppression of Muslim religious freedom and the persecution of those thought to be separatists, many of whom have been executed." Id.

It is likely that the international law instruments that China was so eager to sign when it appeared useful in its campaigns against Western hypocrisy may now be turned on the Chinese State itself. There is a sense of this from some of the still sotto voce mutterings coming from the periphery of the 2007 meeting of the G8. To some extent, it will put pressure on China either to change its tactics (put a kinder and gentler face on its suppression) or move to suppress global coverage of its activities. China will in all probability try both.

Population Policy. One of the most useful strategies that China has pursued to solve its "Uighur" problem, has been to try to make facts, demographically at least, in Xinjiang. It has coupled this migration policy with a marvelous campaign to become the authoritative source of historical information about the region. The latter, as mentioned above, it has already started in 2003 with its White Paper on Xinjiang.

The former has been even more successful in creating a reality in which the Turkish and Muslim population becomes little more than just another minority group in a largely Han state. The policy is one that, in its current form dates back to the first days of the current government. As early as 1996, dissident groups were reporting that “The influx of Chinese is the second Han migration to Xinjiang this century. In the late 1950s, the government sent thousands of Chinese to the region to pave roads, lay rail tracks and build hospitals and schools. . . . The two migrations have completely changed the demographics of Xinjiang. Before the 1950s, Uygurs made up 78 percent of Xinjiang's population. Now, they account for 48 percent, while the Han Chinese make up 38 percent.” Xinjiang, Migration, World Tibet Network News, Jan. 14, 1996.

Moreover, the policy is quite useful to the Chinese State for a number of reasons beyond control of its ethnic minorities with quasi nationalist ties abroad. It has served the Chinese State as a means of increasing its economic productivity, and since 1979 its devolution of such activity to organizations created for that purpose, as well as to enhance the reward system for critical members of the People's Liberation Army. "The Xinjiang Production and Construction Corps (XPCC) was created from de-mobilised members of the People's Liberation Army in the 1950s and is important in the province for two reasons: its control over agricultural production and the role the organisation plays in provincial stability. Much government investment into Xinjiang is channelled through the XPCC and it is a key route for Han migration into the region." Written evidence submitted by Dr Caroline Hoy, Department of Urban Studies, University of Glasgow published 13 Aug. 2006 (U.K. House of Commons, Select Committee on Foreign Affairs).

Less positively, Western authors recently have begun to publicize in the West that "
During the postwar period, the CCP also began a campaign to change the demographics of Xinjiang while also exploiting its natural resources to feed eastern China's growing cities. Beijing forced birth control on the Uighurs and simultaneously encouraged massive Han migration into the region, using economic incentives or simply forcing Chinese to move west. " Joshua Kurlantzick, The Unsettled West, From Foreign Affairs, July/August 2004 (discussing points raised in S. Frederick Starr, ed., Xinjiang: China's Muslim Borderland (New York: M. E. Sharpe, 2004, 528 pp.), Michael Dillon, Xinjiang -- China's Muslim Far Northwest, (London: Routledge Curzon, 2003, 201 pp.) .

Like the suppression policy, the migration policy may not play well in the West. Forced migration and ethnic cleansing have become significantly more troublesome tactics under international law. The United Nations has wrestled with the issue in connection with the break up of the Yugoslav federation in the 1990s.
United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 27 May 1994 (Final Report ( S/1994/674 - 27 May 1994)) ("The expression `ethnic cleansing' is relatively new. Considered in the context of the conflicts in the former Yugoslavia, `ethnic cleansing' means rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. `Ethnic cleansing' is contrary to international law." quoting first interim report (S/25274) Para. 55). It is possible for the global human rights community to begin to characterize Chinese migration policy in those terms. Much has been made of the concept in Burma and Sri Lanka and it is likely that the concept will assume an ever greater and more generalized character. See, e.g., Mai Mang Kung, Concealed Ethnic Cleansing in Burma. The American government has begun making noises in that direction since at least 2005. See Congressional-Executive Commission On China, 2005 Annual Report, III. Monitoring Compliance With Human Rights III(A) Special Focus For 2005: China's Minorities And Government Implementation Of The Regional Ethnic Autonomy Law:
The central government continues to place Han Chinese "from the interior" into key technical and political posts in autonomous areas and to encourage Han laborers and farmers to move into these regions. . . . Central and local directives emphasize that Han leadership is needed to spur development in autonomous areas due to the dearth of educated minorities, but the government encourages technically trained minorities to leave the autonomous areas while supporting the influx of both skilled and unskilled Han workers.
Id. text at notes 51-54. The Chinese authorities have long understood the dangers. It might well have shaped their response to charges of ethnic cleansing in the former Yugoslavia:
China appears to be shifting its position on atrocities committed as part of ethnic cleansing in Kosovo. At a briefing in the Chinese capital Tuesday, Foreign Ministry spokeswoman Zhang Qiyue called for more research to determine if ethnic cleansing was part of the Serb campaign in Kosovo. China's position previously had been to deny Serbian atrocities, focusing on NATO as the villain in the Balkan conflict. "Whether this ethnic cleansing has happened or what is the concept of ethnic cleansing, a conclusion can only be drawn after serious investigation," Zhang said. She did not rule out Yugoslav leaders facing trial for war crimes.
China Shifts Position on Ethnic Cleansing, CBS News, Nov. 10, 2000. Though Kosovo must remain very much on the minds of Chinese State officials. As Kosovo moves to independence, as the Ivory Coast attempts to overcome separatism and civil strife based on migration and demographic shifts (see Lydia Polgreen, A War Ends in Ivory Coast, But Peace, Order and Unity are Flickering Dreams, New York Times, June 10, 2007 at A-14), the Chinese must wonder, and rightly so, on the wisdom of cultivating majority minority territorial regions within China. It is clear that such a policy appears to increase the likelihood of separatism. It also appears that the international community appears more willing to permit such state splitting on ethnic solidarity grounds. From this perspective, China's migration policy makes much sense. Yet, as the normative structure of appropriate behavior norms embraced by the international community, and international law, seem to shift to afford greater protection for minority communities and less to state integrity, the Chinese increasingly risk falling outside the behavior norms and expectations of a "great power." Indeed, the parable from out of places like Ivory Coast and Kosovo suggests that states may be captured by demographic shifts in ways that provide them little room to maneuver under emerging international law principles. Less costly during the long period of isolation through the Cultural Revolution, the course set by Deng Xiaoping after 1979 makes Chinese exceptionalism as costly, among the community of states (and global civil society) as American exceptionalism has proven in a variety of other contexts.

Consequently, it will be hard for China to continue to pursue policies that might be subject to such attacks in light of recent development of human rights notions with respect without the likelihood that it will have to pay a big price. While China was able to afford the bill for world condemnation in the early 1980s, its integration nt he world economy today makes the price much higher. Still, it will likely take the West, through its governments and civil society elements, a number of years to elaborate n anti-migration campaign. And that may be enough. However, the Olympic Games makes China vulnerable to very bad publicity in that regard. And from widely publicized bad press can come action that might hurt Chinese economic progress.

National Political Solicitude for Cultural Islam in China. In the construction of a global approach to the pacification of its minorities, especially its Muslim minorities, the Chinese State has begun to implement sensitivityt campaigns among its non-Muslim populations. Much was made of the Chinese State's attempt to downplay the role of the pig in the 1007 Chinese New Year celebrations.
China's preparing for the year of the Pig, an especially auspicious year which begins on Feb. 18. But the run-up has been anything but lucky for pork fans. Pigs have been banned from appearing in any ads on the state-run broadcaster, CCTV, after an order that is now surrounded by confusion. . . . The order means that ads for consumer treats such as sausage snacks have been yanked from airing.
Luisa Lim, Ban Thwarts "Year of the Pig" Ads in China, NPR Morning Edition, Feb. 6, 2007. Muslims in China were reported to be enthusiastic. "The media have given the news importance and reported the enthusiastic response from Muslim communities. For example, Huo Engjie, director in Shanghai of the Association of Minorities, said: “Even if we [Muslims] are less than 2% of the Chinese population, this ban shows how much the government respects us. It’s really moving.”" Year of the Pig: In Respect for Islam Pigs Banned, Spero News, Feb. 12, 2007 (from Asia News) Outside China, Muslims appeared as quick to distance themselves from the policy. The American media was quick to report that angle of the story: "Omar Ahmad, "When governments make a decision about what Muslims want and don't talk to Muslims, they come up with something completely ridiculous, and here's what we've got."" David Louie, Pigs Banned From Chinese Television Ads: Out of Respect for Muslims, ABC News, Jan. 25, 2007.

Analysis in the West, though not wrong, was both incomplete and of the usual sort. "Whatever the situation, the thinking behind the ban is telling. "The underlying reason goes to the very core of what it is Chinese government views as its patriarchal responsibility to maintain harmony of the entire society," said Tom Doctoroff, China CEO for the JWT advertising agency." Luisa Lim, Ban Thwarts "Year of the Pig" Ads in China, NPR Morning Edition, Feb. 6, 2007. Indeed, on one level, the pig ad ban reflected just another aspect of Chinese State ideological campaigns seeking general harmony within its population, and thus an effort at forming the nucleus of constitutional normativity with the Party at the head of the state. See Backer, Larry Cata, "The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism" . Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006. Thus, it was reported that "Communist Party propaganda chiefs have issued a stern new warning to China's broadcast executives, saying news reports and entertainment should promote socialist loyalty and soothe tensions as the country enters a sensitive political season." Edward Cody, Broadcast Media in China Put on Notice, Washington Post, Feb. 27, 2007 (""In foreign countries, televisions are privately owned and you can broadcast whatever you want," Wang Weiping, deputy head of the series division at China's State Television, Film and Broadcasting Administration, told the Southern Weekend newspaper recently. "But in China, television is the mouthpiece of the party and the people. This is its main mission, and entertainment is secondary."").

But on a more important level, the campaign represents a critical aspect of the Chinese State's engagement with a critical, and critically restive minority group sitting at the frontiers of the State. It is, in a sense, meant to demonstrate that, just as the State is capable of the most rigorous measures in defense of its integrity against those who would challenge its supremacy, so is it the most effective guardian of the rights of and respect for minority culture, religion and sensibilities. From the Party, through the State, flows both the most intense punishment and the most beneficent rewards. The state, as father, guardian, protector and disciplinarian is thus centered in the existence of the political community. And that political community remains superior to other, and now inferior, markers of difference--religion, ethnicity, language, vocation, etc. The ban on pigs, thus, cannot be understood fully, outside of the context in which it appeared--the suppression of Uighar insurgency and the migration policy of the State.
China will be pleased to see its anti-porcine edict reported globally, showing its multicultural credentials and sensitivities. But this does not mean it is inclined to give hardline Islamists the benefit of any doubt - for example, police recently raided a training camp in the northwest region of Xinjiang, whose indigenous population, the Uighurs, are mainly Muslim, and killed 18 people they said were terrorists.
Rowan Callick, Year of the Pig Sparks Some Porkies,, Feb. 1, 2007 (from The Australian). All this effort is meant to ensure that minorities remain minorities in every district of China, all remain dependent on the state, and all consider themselves an inseparable part of the the indivisible state founded on the dictatorship of the proletariat and organized on principles of family order and harmony.

There is, of course, some danger in this approach. First, it might be viewed as both shallow and inadequate. A barely plausible fig leaf over the policy of repressing State enemies among minority groups seeking separation rather than a subservient harmony with Beijing, it will produce more harm than good. Second, it might arouse the indignation of the majority Han population and increase the friction between the two communities. There were reports of such reaction in some of the press. It would be ironic and not in China's interests to move toward a social pattern in China that resembles that of Indonesia and Malaysia, but inverted. Third, it might serve to highlight a problem the Chinese would as soon have the global community forget. More importantly, it might backfire as externally directed propaganda.

China's Conundrum. It is easy enough to sit on the outside and suggest the risks and rewards of China's emerging and complicated policy toward its Muslim minorities. There is much in those policies that auger a great risk for China on the world stage--both as a matter of international relations and as a matter of international law domestically applied. But for states with large minority populations--Russia, the United States, Canada, Malaysia, Indonesia--it may also serve as a possible template for reducing the destabilizing potential of minority communities. If China might "get away" with a policy like this, then why not others?

But all of this really points to the greatest problem and challenge of the the nation state in the 21st century--the problem of solidarity. Assuming a reality in this century of large numbers of once ethnically homogeneous nation-states becoming multi-ethnic (and multi-religious) as the great migratory patterns of the last century play themselves out in this one, then the problem of finding a commonality sufficient to support viable political communities becomes critical to the survival of the state as a political community. Ironically, the Chinese appear to understand this better than most in the West. Perhaps they are searching in the wrong places; perhaps they are implementing the wrong policies. But they understand the problem, and its importance better than most. Yet the Chinese State, increasingly bound by international norms and sensibilities, will find it harder and harder to find and maintain a base for solidarity. It will be interesting to see how rising global standards favoring free movement and equal treatment will work against the maintenance of viable and distinctive states grounded in a difference begetting solidarity.

Bearing Witness: Policy, Pictures and the Rule of Law

Modern writers make much of the rule of law, understood generally as describing political systems the coercive rules of which are created through regular processes (usually involving principles of democratic governance) and mediated through rules applied by instrumentalities of a state apparatus. International rule of aw, as it is developing, is based on similar conceptions. Especially with respect to human rights, many elements of the global intelligentsia look forward to the day when international standards of human rights supersede public and private contract and municipal law. This includes work, for example, to further "the fundamental right of the world's citizens to have disputes heard and determined by an independent judiciary, and for judges and lawyers to practise freely and without interference." International Bar Association, Human Rights Institute.

But it is important to remember that technology, especially in the conveyance of information, may be critical to any enterprise in the creation of global normative standards. In this case, the internet, and other forms of electronic communication, has made the dissemination of ideas much less costly, much more available , and much more effective. But it is not merely words that have have a great impact on the construction and maintenance of global rule of law values. Pictures, another great product of technological innovation with great social, political and legal effect, have played an even more decisive role.

Pictures have become the great medium of communication to a global population, whose values play a key role in the policy determinations of governments that are, or must be, responsive to manifestations of the popular will. Pictures of the suffering in Dafour have had more impact within global politics than other methods of political discourse. See United States Holocaust Memorial Museum, Brian Seidle, Dafur Eyewitness (2005). And not just governments are subject to the effects of visual media. Multinational corporations and elements of civil society have played out the great contest over corporate social responsibility, in part, through visual ads run in major media outlets and the Internet. See for example, Edelweiss Silan, Child Labor in Asia (Edelweiss F. Silan is the Coordinator of the civil society organization Child Workers in Asia (CWA)).

Elements of civil society are acutely aware of the impact of pictures on policy debates, and on the conduct of corporations. I was reminded of this recently when reading about the 2007 Human Rights Watch International Film Festival. As Stuart Klawans correctly noted in his review of the entries, the "films remind us that the enforcement of rights, or even the recognition of them, often begins with the click of a shutter." Stuart Klawans, "Tribute to Those Who Bear Witness," The New York Times, Section 2, at 23, June 10, 2007 (quoting Susan Sontag as noting that "The very notion of atrocity, of war crime, is associated with the expectation of photographic evidence." For those engaged in the great law and policy debates about normative standards, it should be remembered that pictures remain an essential weapon in shaping the understanding of complex matters--of fixing its image in the popular imagination.

But pictures are neutral media. They serve who ever has the foresight and skill tio use them effectively. And thus it is no surprise that elements of what are understood as terrorist organizations ave made as effective a use of pictures (and their distribution through the Internet) as any advocate of human rights and human dignity. A World Wide Web of Terror, The Economist, July 12, 2007.
The ease and cheapness of processing words, pictures, sound and video has brought the era not only of the citizen-journalist but also the terrorist-journalist. Al-Qaeda now sends out regular “news bulletins” with a masked man in a studio recounting events from the many fronts of jihad, whether in Iraq, Afghanistan, Chechnya or Palestine. Jihadi ticker-tape feeds provide running updates on the number of Americans killed (about ten times more than the Pentagon's death toll).

A World Wide Web of Terror, The Economist, July 12, 2007. Thus one of the greatest applications of the lessons taught by the great pioneers in global human rights may have been learned well by others: "Film everything; this is good advice for all mujahideen [holy warriors]. Brothers, don't disdain photography. You should be aware that every frame you take is as good as a missile fired at the Crusader enemy and his puppets." Id.

Law, in this century, will increasingly be written in pictures.

Tuesday, May 29, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, May 06, 2007

"Cuba Has Millions of Fidels"

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

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

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

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

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

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

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

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

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

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