No digital universe can ever be completely mapped.
~ George Dyson

Frontiers of the new technologies
[keep] opening into wilderness.
~ James Carroll

The new wilderness is a pathway leading
beyond the borders of the human world.
~ John Gray, Straw Dogs

The prison walls of self had closed entirely round him;
he was walled completely by the esemplastic power of his imagination —
he had learned by now to project mechanically, before the world,
an acceptable counterfeit of himself….

~ Thomas Wolfe,
Look Homeward, Angel, 1929

In order to address any major cause of human suffering, we have to work together across many fronts.
It may seem daunting, but I am a prisoner of hope. We are more connected than ever before,
we have more knowledge, and there are solutions if we work together. … What unites us is our common humanity.
… In Southern Africa we have a concept called Ubuntu - which is that you can’t exist as a human being in isolation.
You can’t be human all by yourself.

~ Desmond Tutu,
interviewed by Marianne Schnall,
4 March 2010

Lan Cao

© The College of William & Mary; reprinted by permission of William & Mary Law School; photo by Colonial Photography, Williamsburg, VA

A Conversation with Lan Cao

Ami Dodson

30 November 2009

As a young girl in Vietnam, Lan Cao’s father blessed her by purchasing hundreds of sparrows, placing each one on her head, and releasing it. A devout Buddhist, her father believed in a concept of karma deeply rooted in Vietnamese culture. Liberating the birds in this manner, according to his faith, created a “karma bank” for Lan against which she could later borrow. This was one colorful way in which Lan’s father endeavored to teach her the importance of benevolence and generosity as fonts of positive karma.

The “lesson of the birds” has served Professor Cao well throughout her extraordinary life and career. She has become one of the nation’s most influential international economic development and business transactions scholars. Leaving war-torn Vietnam as a child and forging a new life as an immigrant have shaped her scholarly path and given her unusual insights into the plight of developing countries.

Cao attended Mount Holyoke College and Yale Law School. Initially, her undergraduate studies, a year working for a community service organization in Washington, DC, and her own personal history and experiences fostered an interest in dispute resolution.  “I wanted to study ways to resolve disputes other than war,” she recalls, “and studying the rule of law seemed the best way to achieve that.” Substantial college debt and the desire for financial security also influenced her decision to attend law school, she jokes.

Working as a private litigator when the Berlin Wall collapsed, Cao was struck by the incredible challenge of restructuring a country that had been devastated by war and then became calcified under communism. She realized that her true calling was transactional work. “I wanted to broker deals to build things and put countries back together, rather than litigate after it all fell apart.”

“The big mystery of economic development,” Cao notes, “is how do you get capital back into a country that has none?” When a country has fully severed itself from the world economy, and created an isolationist, anti-market regime, how do you get that country back into an international economic system?  

Cao outlines four ways to inject capital into a nation coming out of isolation. First, there is domestic savings. Japan, for example has a very high individual savings rate, so it can meet investment capital needs without looking beyond its borders. For a variety of reasons, not the least of which is poverty, many nations’ savings fall far short of their capital needs. Such countries must look to external sources of funds.

The second source of capital is simple foreign aid — gifts from wealthier nations.  Nothing is free, however, and such aid has some material disadvantages. As a non-market tool, aid tends to warp incentives. In addition, there are always strings attached: wealthy countries generally give aid to poor countries that matter economically or geopolitically. The donor nation invariably expects some return on its investment, in terms of economic or political favors that impose significant burdens on the recipient nation. Further, geopolitically unimportant countries attract relatively little foreign aid. They may receive humanitarian aid, but that by itself is rarely sufficient.

Loans from multinational institutions like the International Monetary Fund (IMF) are a third source of capital. Such financing poses problems similar to foreign aid: a long-term sense of indebtedness and economic dependence on the lender. Microloans – small capital investments that operate under a sense of social cohesiveness as collateral – are becoming more common in developing countries as well and are typically self-sustaining.

The fourth and final source of capital is private foreign investment. If a nation can tap this source, it can fund investment and growth (i) despite any shortfalls in internal savings while (ii) avoiding the disadvantages of foreign aid and institutional loans. How does a poor developing country convince foreigners to invest? Cao’s work focuses on fostering economic independence by creating and brokering deals that involve collaboration between local business and foreign capital.

 “Most of the early pieces I wrote were looking at the Chinese system. They are one of only a very few communist countries left and I was interested in how China has been able to plug itself into the international economic system while still maintaining strict state control. China has had no political liberalization in any meaningful way, yet it has managed to attract tremendous foreign capital through a quasi-privatization process.” China created a “halfway” open door policy for privatization. It couldn’t sell whole companies off to private bidders — such complete privatization would erode its commitment to communism. Instead, it created opportunities for private investors to purchase minority interests in enterprises. The state would maintain control, but some shares could be privately owned. The government thus was able to open up some enterprises to private capital without going too far down the road toward western-style capitalism.

Perhaps unsurprisingly, Chinese firms partially funded with private capital soon generated the lion’s share of profits; the majority of the state-owned enterprises were essentially bankrupt. So the profit generated by the non-state entities had to be used to shore up the languishing state-owned enterprises. By offering partial privatization, the Chinese government accessed private capital without relinquishing ideological communist control. “It’s rather clever, in a Machiavellian sense,” notes Cao.

Vietnam is following the Chinese model, albeit more slowly, Cao observes. The Vietnamese state still controls many large enterprises, but has permitted a parallel private sector to sprout. The government encourages entrepreneurs, but funnels private profit from those endeavors back to the state. The private sector grows within bounds carefully delineated by the Vietnamese government.

This is where it starts to get really interesting, according to Cao. “You can’t open up state enterprises to private investors without offering at least minimal information about company holdings, finances, liabilities, and the like,” she says. “The very idea that shareholders may have rights that they can assert against a corporate governance structure is revolutionary to a communist regime.”

These concepts of accountability and fiduciary duties to a shareholding public can become the impetus for political reform. “If you chip away at the state regime long enough, if you keep throwing pebbles at that iron wall, eventually pebble by pebble you will erode the state machine,” Cao says. “And if you loosen control in the economic marketplace, eventually control in the political marketplace will have to loosen as well.  The fact that these things are already happening in the economic sphere is revolutionary,” Cao notes. “It is a huge step in the right direction. A stone here and a pebble there will break up the homogeny of power and the monopoly that is exercised by the totalitarian state.”

Cao offers one example rooted in her own experiences leaving Vietnam. A number of her relatives stayed behind, giving Cao the opportunity to observe secondhand what happens when a country isolates itself and relies on total state control. “After the war,” Cao says, “millions of people fled. Not during the war: after the war.  These were not refugees fleeing from the violence and danger of war, but millions of people fleeing a totalitarian state in search of freedom.”

“When you look at the history of the world,” Cao says, “no one ever flees toward a totalitarian communist system. You don’t need a lot of theory to know that people yearn to be free. And an essential part of that freedom is an economic market system that offers options and possibilities for people. Even with all its flaws, people are drawn to a free market system.”

Cao’s singular experience and critical eye have not gone unnoticed by her colleagues at William & Mary Law School. “Lan Cao’s experiences in Vietnam provide her not only a unique and valuable perspective into the challenges facing war-torn, poverty-stricken nations,” says Professor Nancy Combs, an expert in international criminal law, “but also the legitimacy to critique prevailing responses to those challenges. Because Lan’s scholarship is so well-informed by her experiences, she can tackle head-on some of the most controversial issues in international development, issues that other scholars prefer to side-step.  Lan’s scholarship embraces these controversies and brings to the discussion the candor and credibility of one who has lived the legal issues.”

Other colleagues echo these sentiments. “Lan Cao is culturally well attuned and sensitive to the particular needs and experiences of emerging countries,” says Professor Alemante Selassie, also an expert in comparative law and development, “and because of this her scholarship focuses not simply on the relationship between law and development but specifically on the role culture plays in fostering or hindering growth – legal, institutional, and economic. What makes Lan’s scholarship uniquely relevant is that it focuses on the intersection between culture and development, without distraction from the influence of the latest fad in economic policy prescriptions for third world nations.”

Professor Alan Meese, an expert on corporations and antitrust law, says he admires Cao’s “willingness to go against the grain”. Meese notes, “Lan reaches results that are not always popular among folks who work in her field. For example, her work on culture change challenges the conventional wisdom that we need agnostically to take other cultures as a given, and then still try to develop them economically.”

Cao is currently at work on a book examining cultural factors relevant to economic development. For example, countries that routinely subordinate women seriously diminish their ability to generate wealth.  “If a country oppresses 50 percent of its populace,” she says, “it is losing out on a huge proportion of human potential. Any culture that oppresses women and girls will continually impede its own economic development.”

Cao also maintains that new rules of law, without more, simply are not enough to guarantee robust economic growth. “You can pass a law that says men and women are equal,” she explains, “but unless there is a massive cultural shift among the populace, unless there is a drastic cultural change in the way that egalitarianism is perceived, that law will have absolutely no effect. You must change the cultural norms that create oppression for women, not just change the law.

“In Vietnam we have a saying: ‘The Emperor’s law stops at the village gate.’ In other words, law is meaningless unless you address the cultural changes necessary to make the law viable.”

When asked how she sees her work in the greater struggle for economic freedom and development for poor countries, Cao laughs. “I’m just an academic,” she says, smiling. “I write law review articles. But I do believe that my work is part of a larger movement that is bringing the world closer to global economic freedom and loosening the bonds of oppression for women and girls. Once you open the door to privatization, once you create gaps, however small, in the totalitarian state, we can slowly bring about political liberalism and hopefully, eventually, freedom for the oppressed, both economic and political.”

Although she has not continued the ‘lesson of the birds’ with her own daughter (apparently it’s harder than one might think to buy a hundred sparrows in the US), Cao’s scholarship on the importance of liberty is a legacy of her father’s devotion to positive karma and good deeds.

Complexities of interconnections between law and culture have been a major theme throughout the 16-year life of Minerva, offering provocative comments and questions from around the world and from a wide range of traditions and aspirations.

Another is this excerpt, provided by the William & Mary School of Law, from “Culture Change”, published in the Virginia Journal of International Law (Volume 47 No. 2, 357-412; 2007).

As the College of William & Mary summarizes the article, “Professor Lan Cao argues that scholars in law and development have failed to understand that law is peripheral, not central, to the development problem of poor countries. She maintains, controversially, that culture matters to law and development. Her corresponding proposal that culture be critically examined and evaluated runs counter to the tradition of public and private international law. She poses the key question that has thus far remained unasked by law and development scholars: after so many years of drafting new laws to spur development, why is the field still characterized by failure?”

This is Part III of “Culture Change”; to read the complete article, visit <http://law.wm.edu/faculty/documents/cao-653-7347.pdf>.

Culture Change

Lan Cao

At the risk of over-generalizing, most law and development scholars come from an international law tradition that is, in the United States at least, part of a liberal framework of cosmopolitanism.[104] Unlike the nationalist whose primary identification is with his or her nation, the cosmopolitan’s “allegiance is to the worldwide community of human beings”.[105] The cosmopolitan tends to hold to a vision that accepts, even celebrates, the diversity of social and political systems in the world, taking pleasure in the existence and the products of peoples and places other than our own homes. Thus, what is distinctive about cosmopolitans is that we display our concern for our fellow humans without demanding of them that they become like ourselves.[106]

Law and development scholars steeped in the international cosmopolitan tradition are passionate about alleviating poverty in poor countries but reluctant to tinker with or condemn norms or cultural attributes that impede economic progress.

After Vietnam, as skepticism about American power and motives rose, so did “loss of faith in liberal legalism as a picture of United States society” or “doubts about the universality or desirability of the American experience”.[107] Indeed, law and development scholars became vocal in their charges that the movement was ethnocentric and naïve[108], and as some adopted the perspective of the critical legal studies movement (CLS), denounced the liberal legal paradigm they had favored as “inherently problematic”.[109]

Thus, there are two strands in law and development: first, an international cosmopolitanism that celebrates cultural diversity and loathes to criticize or be perceived as criticizing any particular culture, and second, a CLS inclination that is both appropriately critical of the failed promises of the liberal law and development model and also devoid of practical alternatives. Add to this mix an awareness among these scholars of colonial history and the concomitant Orientalist tradition of defining the colonizing West as the privileged “self” against which the colonized Orient (or Third World), the “other”, is to be contrasted against and improved upon.[110]

For the West, the Orient, according to the noted scholar Edward Said, is not a geography but a European creation and Orientalism the “enormously systematic discipline by which European culture was able to manage, even produce, the Orient politically, sociologically, militarily, ideologically, scientifically, and imaginatively during the post-Enlightenment period”.[111] Notable Western scholars have engaged in Orientalism, suggesting, for example, that the Orient (and its equivalent) is frozen in time and incapable of progress or change[112], whereas by implication the West is dynamic and progressive. For change to occur, the impetus must come from Europe, even if via the shock of colonial encounter.[113] Similar denunciations include the charge that the “Orient” (China in particular) is incomprehensible (or inscrutable)[114], illogical and developmentally stunted[115], with “laws”[116] that are equally static and unchangeable.[117] Assuming modernization is even possible under those circumstances, it would have to culminate in a Europeanized one.[118]

Given the awareness among most law and development scholars of this history, it is no wonder that many are uncomfortable with the project they have embarked upon as privileged subjects, often Western-educated experts, working to develop or modernize the object of their project, the primitive Third World. Indeed, there may very well be a whiff of Orientalism in the very objectives and assumptions of law and development itself. Referring to China specifically, although his observations are equally applicable to other developing countries, the historian Paul Cohen noted that there is a tendency for the West to play “Beauty to China’s Beast, transforming by its kiss the torpor of centuries, releasing with its magical power the potential for ‘development’ that must otherwise remain forever locked up”.[119]

My proposal to go beyond law and modernizing law to culture and culture change will undoubtedly smack some of Orientalism. If even legal liberalism — instituting laws to support a liberal market society — may be suspect for some law and development scholars, then certainly “cultural liberalism” promoting cultural attributes that would facilitate the establishment of a liberal market society would be as well, or even more so.[120]

Indeed, until recently, even in disciplines other than international relations and international law, culture is irrelevant or marginalized: it can be described, compared, and appreciated, but not critically appraised. For example, culture is a non-issue in economics because economists generally believe that the right economic policy will produce the desired economic result without regard to culture. Moreover, culture is an uncomfortable realm for economists to operate in, perhaps because “it presents definitional problems, is difficult to quantify, and operates in a highly complex context with psychological, institutional, political, geographic, and other factors”.[121] By contrast, anthropologists study cultures but are often unwilling to evaluate cultural norms and practices of another society.[122] As a noted sociologist observed, “In the humanities and liberal circles generally, a rigid orthodoxy now prevails that can be summarized as follows: Culture is a symbolic system to be interpreted, understood, discussed, delineated, respected, and celebrated as the distinctive product of a particular group of people, of equal worth with all other such products. But it should never be used to explain anything about the people who produced it.”[123]

Other reasons why cultural explanations may be disfavored in certain intellectual circles include concerns about cultural determinism[124], that is, relying on culture as an “overdetermining”[125] factor, the possible misuse of culture “by reactionary analysts and public figures” as a way to “blame the victim”[126] or to avoid examining structural causes of poverty[127], and the desire to promote cultural diversity and ethnic pride.[128] Thus, the following statement is an accurate description of the ambiguous role ascribed to culture: “We all realize that before we resort to culture today to explain the differences in economic progress or political attitudes among nations and ethnic groups, we prefer to find other explanations.”[129]

Despite a general reluctance to study and appraise culture, increasingly, it is being recognized in one way or another as an important factor in economic development and in related areas.[130] In fact, some have asserted that culture plays a primary role, “culture makes almost all the difference. Witness the enterprise of expatriate minorities—the Chinese in East and Southeast Asia, Indians in East Africa, Lebanese in West Africa, Jews and Calvinists throughout much of Europe, and on and on.”[131] Others acknowledge the link between cultural influences and economic success132 even as they caution that a cultural exploration must be balanced and examined “within a broad framework”[133], so that we neither neglect culture nor privilege it “in stationary and isolated terms”.[134]

ENDNOTES:

104 - See David Kennedy, “The Disciplines of International Law and Policy”, 12 LEIDEN J. INT’L L. 9, 23 (1999) (“International law in the United States after 1945 provided a congenial intellectual home for a large number of immigrants, among them European and Jewish refugees, whose American patriotism was cosmopolitan rather than jingoistic and who have been among the field’s strongest intellectual leaders.”); id. at 11 (“Legal internationalists in the United States for most of the last 50 years have linked their status to the reputational ups and downs of a broadly liberal cosmopolitanism….”); Anne-Marie Slaughter Burley, “Nationalism Versus Internationalism: Another Look”, 26 N.Y.U. J. INT’L L. & POL. 585, (1994). See also Kennedy, id. at 17. For a critique bemoaning the false dichotomy between “public” and “private” international law, see Lan Cao, “Toward a New Sensibility for International Economic Development”, 32 TEX. INT’L L.J. 209, 222ˆ33 (1997); in contrast to international law, for example, comparative law specializes in differences.

105 - Martha C. Nussbaum, “Patriotism and Cosmopolitanism”, in For Love of Country 4 (Joshua Cohen ed., 1996).

106 - Kwame Anthony Appiah, “The University in an Age of Globalization”, Lecture at the Princeton-Oxford Conference on Globalization at Oxford University (June 2002), quoted in Anne-Marie Slaughter Burley, “The International Dimension of the Law School Curriculum”, 22 PENN ST. INT’L L. REV. 417, 419 n.4 (2004).

107 - David Trubek & Marc Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States”, 1974 WISC. L. REV. 1089 (1974).

108 - Id. at 1080.

109. Id. at 1099. For a critique of this shift in law & development, see Brian Z. Tamanaha, “Law and Development”, 898 AM. J. INT’L L. 470, 474–75 (1995).

110 - Edward Said, Orientalism (1978); see also Makau Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights”, 42 HARV. INT’L L.J. 201, 210 (2001) (describing the “impulse to universalize Eurocentric norms and values by repudiating, demonizing, and ‘othering’ that which is different and non-European”). Note that Orientalism is not limited to the “Orient” but extends to other locales as well. Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference 27 (2000) (“‘Europe’ remains the sovereign, theoretical subject of all histories, including the ones we call ‘Indian’, ‘Chinese’, ‘Kenyan’, and so on.”).

111 - Said, supra note 110, at 3. Note that although the United States usually equates East Asia (China, Japan, for example) with the “Orient”, Said’s use of the word “Orient” is derived from a European understanding of the word and thus focuses on the Middle East.

112 - Hegel, for example, declared that: “Early do we see China advancing to the condition in which it is found at this day, for as the contrast between objective existence and subjective freedom of movement within it, is still wanting, every change is excluded, and the fixedness of character which recurs perpetually takes the place of what we should call the truly historical.” Georg Wilhelm Hegel, The Philosophy of History 116 (J. Sibree trans., Dover 1956). Weber, too, wrote that “Chinese intellectual life remained completely static, and despite seemingly favorable conditions modern capitalism simply did not appear”. Max Weber, The Religion of China 55 (Hans H. Gerth trans., Free Press 1951). Marx made a similar observation about China: Its “isolation having come to a violent end by the medium of England, dissolution must follow as surely as that of any mummy carefully preserved in a hermetically sealed coffin, whenever it is brought into contact with the open air.” Karl Marx, Marx On China, 1853–1860: Articles From the New York Daily Tribune 4 (Dona Torr ed., 1951). Maine also described “the East” as static: In “those great and unexplored regions which we vaguely term the East…the distinction between the Present and the Past disappears.” Henry Sumner Maine, Village Communities In The East And West 7 (John Murray, 2d ed. 1872). Nietzsche described China as a “country in which large-scale dissatisfaction and the capacity for change have become extinct centuries ago”. Friedrich Nietzsche, The Gay Science 99 (Walter Kaufmann trans., Random House 1974) (1887); see also Edward H. Parker, “The Principles of Chinese Law and Equity”, 22 L.Q. REV. 190, 209 (1906) (stating that China is nothing more than a “monotonous history”).

113 - Karl Marx, “The Future Results of British Rule in India”, in The Marx-Engels Reader 659 (Robert C. Tucker ed., 1978) (describing the two functions of colonial rule, “one destructive, the other generating, the annihilation of old Asiatic society, and the lying of the material foundations of Western society in Asia”).

114 - Foucault wrote the following of China: “At the other extremity of the earth we inhabit, a culture devoted entirely to the ordering of space, but one that does not distribute the multiplicity of existing things into any of the categories that make it possible for us to name, speak, and think.” Michel Foucault, The Order of Things, at xix (1993). Hegel described China as “a dull half-conscious brooding spirit.” Hegel, supra note 112, at 142.

115 - Weber, supra note 112, at 125 (charging that the Chinese writing system, by ideographic or pictorial representation, has led to unfortunate results: “The power of logos, of defining and reasoning, has not been accessible to the Chinese”, so that “[t]he very concept of logic [has] remained absolutely alien” to them.).

116 - For an examination of how the West has characterized Chinese law as “not law”, see Teemu Ruskola, “Legal Orientalism”, 101 MICH. L. REV. 179 (2002).

117 - Edward Harper Parker, “Comparative Chinese Family Law”, 8 CHINA REV. 67, 69 (1879) (stating that to study Chinese law is to study “a living past, and converse with fossil men”).

118 - Hegel, supra note 112, at 116 (“The history of the world travels from East to West, for Europe is absolutely the end of History, Asia the beginning.”).

119 - Paula A. Cohen, Discovering History In China: American Historical Writings On The Recent Chinese Past 151 (1984).

120 - Promoting culture change may even be viewed as forcing Western culture on others while simultaneously denying that this is in fact the agenda. See Ruth Benedict, Patterns of Culture 6 (1952) (The “world-wide…diffusion of [Western culture] has protected us as man had never been protected before from having to take seriously the civilizations of other peoples; it has given to our culture a massive universality that we have long ceased to account for historically, and which we read off rather as necessary and inevitable.”).

121 - Lawrence E. Harrison, “Introduction: Why Culture Matters”, in Culture Matters, xxv (Lawrence E. Harrison & Samuel P. Huntington eds., 2000).

122 - See, e.g., Richard A. Shweder, “Moral Maps, ‘First World’ Conceits, and the New Evangelists”, in Culture Matters, at 160 (“[T]he assertion that ‘culture matters’ is a way of saying that some cultures are impoverished or backward, whereas others are enriched or advanced.”). In a similar vein, in 1947, the Executive Board of the American Anthropological Association declined to endorse the United Nations Universal Declaration of Human Rights because it viewed the Declaration as ethnocentric. Samuel P. Huntington, “Foreword: Cultures Count”, in Culture Matters, at xxvi. By contrast, the noted anthropologist Clifford Geertz, it has been said, subscribes to a “thick description” of culture, using it “to refer to the entire way of life of a society: its values, practices, symbols, institutions, and human relationships”. Id.

123 - Orlando Patterson, “Taking Culture Seriously: A Framework and an Afro-American Illustration”, in Culture Matters, at 202–03.

124 - Amartya Sen, “How Does Culture Matter?”, in Culture and Public Action 46–50 (Vijayendra Rao & Michael Walton eds., 2004) (criticizing cultural comparisons between Ghana and South Korea as an example of cultural determinism because such comparisons often ignore other differences: class, politics, the educational system, the relationship Korea had with Japan and the United States, etc.); id. at 38 (criticizing the belief by some that “the fates of countries are effectively sealed by the nature of their respective cultures”).

125 - Patterson, supra note 123, at 203. This means relying on a “simplistic or untenable conception of culture” and using it “in a crudely deterministic way” to explain certain groups’ problems, so that culture is viewed as “a fixed, explanatory black box invoked to explain anything and everything about the group”. Id. In contrast, Professor Sen favors a different approach, “[c]ultural interrelations within a broad framework”, in which “culture, seen in a dynamic and interactive way, is one important influence among many others”. Sen, supra note 124, at 52, 55.

126 - Patterson, supra note 123, at 204. Professor Patterson rejects the argument that cultural explanations amount to blaming the victim. If a person who has low self-esteem and behaves in self-defeating ways as a result of having been abused is told by someone to go to a psychologist to seek therapy, “[i]t would be absurd to accuse that person of blaming the victim. Yet this is exactly what happens when a sympathetic analysis is condemned for even hinting that some Afro-American problems may be the tragic consequences of their cultural adaptation to an abusive past.” Id.

127 - Id.; see also Rao & Walton, Culture and Public Action, supra note 124, at 10.

128 - Patterson, supra note 123, at 204.

129 - Nathan Glazer, “Disaggregating Culture”, in Culture Matters, supra note 121, at 220.

130 - Multi-country studies have revealed cultural or regional differences in rights observation. See Layna Mosley & Saika Uno, “Racing to the Bottom or Climbing to the Top? Foreign Direct Investment and Human Rights”, Paper Presented at the Annual Meeting of The American Political Science Association, Boston, Aug. 28–Sept. 1, 2002, http://apsaproceedings.cup.org/Site/ papers/045/045008WayLucan.pdf (finding a correlation between regions and labor rights, with the Asian and Pacific regions not as supportive of labor rights as Europe, though more protective than the Middle East, North Africa and Latin America). There is also a differentiation as to women’s rights, see Clair Apodaca, “Measuring Women’s Economic and Social Rights Achievement”, 20 HUM. RTS. Q. 139, 163–65 (1998) (showing that regional differences in women’s rights may be explained by “culturally specific attitudes towards women’s status, developed under differing historical and economic conditions.”); and rule of law and good governance, see Amir Licht et al., Culture Rules: The Foundations of Rule of Law and Other Norms of Governance (November 22, 2004) (showing linkage between culture and adherence to good governance norms, with cultures that emphasize individual autonomy and egalitarianism scoring better generally).

131 - David Landes, “Culture Makes Almost All the Difference”, in Culture Matters, supra note 121, at 2. See generally David S. Landes, The Wealth and Poverty of Nations (1999). I have elsewhere examined the market dominance of certain ethnic groups, some recent immigrants in the United States and other countries, and other historical “middlemen minorities” throughout the world. See Lan Cao, “The Diaspora of Ethnic Economies: Beyond the Pale?” 44 WM. & MARY L. REV. 1521 (2003); see also Amy Chua, World On Fire (2003) (describing the market dominance of ethnic minorities such as the Chinese in Southeast Asia, the Jews in Russia, and the Ibos in Africa). For a review of Chua’s book, see Lan Cao, “The Ethnic Question in Law and Development”, 102 MICH. L. REV. 1044 (2004).

132 - Sen, supra note 124, at 40.

133 - Id. at 52.

134 - Id. Professor Sen warned against seeing culture as all-determining, cautioning that Max Weber had claimed that Confucianism did not promote rational instrumentalism and was unsuitable for an industrial economy. Id. at 48.

[SIDEBAR] Pakistani sociologist Farida Shaheed has taken up the role of Independent Expert in the field of cultural rights, a monitoring position established by the UN Human Rights Council in March 2009. Her first report is expected this June. Ms Shaheed is the deputy director of a research project on “Women’s Empowerment in Muslim Contexts”, a visiting fellow at the City University of Hong Kong, and director of research in Shirkat Gah – Women’s Resource Centre in Pakistan. She emphasizes that “cultural rights must celebrate the diversities that define our collective humanity”: The challenge is to ensure that the right to pursue, develop and preserve culture in all its manifestations is in consonance with and serves to uphold the universality, indivisibility and interdependence of all human rights.

Gendered dimensions of state-citizen relationships result in
the outright exclusion of women in governance reform.
- Anne-Marie Goetz

Anne-Marie Goetz is a political scientist at the University of Sussex. Her work focuses on “social accountability” and good governance, with particular attention to: the politics of gender-equitable development and constraints to advancing a gender-equity agenda in state institutions and political parties; the challenges of long-term institutional change and capacity-building in developing country service bureaucracies; and citizen access to judicial processes and performance monitoring of the public sector. She has conducted research in India, Bangladesh, Uganda, and South Africa and is an author or editor of several books, including Contesting Global Governance (1999) and Re-inventing Accountability: Making Democracy Work for the Poor (2004).

This edited interview is presented by permission of Inter Press Service ><www.ipsnews.net>.

© UN Photo

Creating Momentum for Women’s Participation

INTERVIEW:

Anne-Marie Goetz,
UNIFEM Chief Advisor for Governance, Peace and Security

Paula Fray

17 February 2010

Women’s movements have played a critical role in creating political space for female participation in politics around the world. In fact, there are more women in government today than ever before. According to UNIFEM’s Progress of the World’s Women 2008/2009 report, “Who Answers to Women? Gender & Accountability”, women now hold an average of 18.4 percent of seats in national assemblies, though the rate of increase is still very slow.

Around the world, a number of countries are undergoing an extended process of democratic consolidation, in which legal systems are being amended to incorporate new constitutional rights and political systems are being tested for their capacity to tolerate opposition, says UNIFEM’s chief advisor for Governance, Peace and Security, Dr Anne-Marie Goetz. But more needs to be done as women’s effectiveness in translating policies into action depends upon gender-responsive governance reforms. And the women’s movement can play a critical role in supporting such social change.

Paula Fray spoke with Dr Goetz, who has extensive experience in addressing the phenomenon of the use of sexual and gender-based violence as a method of warfare, women’s engagement in peace processes, gender-sensitive security reform, and inclusive post-conflict peacebuilding.

Q: The United Nations Development Fund for Women (UNIFEM), with UN Democracy Fund support, has been working with organisations supporting women in politics across the globe since 2006. What have been the greatest challenges in supporting women in politics?

A: Around the world women have a lower human and capital resource endowment than men: they often have fewer social networks linked to power than men, less education, less experience and less money. Networks and money are critical for effective political competition.

In addition, women often lack the extended political apprenticeship that men have. This means that women may not have spent the time moving up the ranks in political parties that men have, and in consequence, they may lack the senior mentors, the support systems, and the built-up constituency base that men have. Add to this that women running for office do not have a natural constituency amongst voting women, as women in patriarchal societies do not necessarily perceive their interests as linked to women’s leadership or a gender equality political agenda. In politics, women have many competing loyalties.

Q: Why is it necessary to have a specific focus on women when there remain many marginalised groups still excluded from political participation?

A: There are many social groups excluded from or marginalised from public decision-making. What is so striking about women as a general category is that it is so socially enormous — half the population. The structural exclusion of women is striking, and does tell us that there are serious double standards built into how democratic political competition works. What proves this is globalised tolerance of violence against women. If one in three men were subjected to violence, we would never accept that.

Another reason to focus on women when there other forms of marginality is because many types of exclusion are exacerbated by female gender. Address women’s rights, and we can also address some of the inequalities affecting other social groups.

Q: So what impact does women’s participation have on democracy and good governance?

A: It is often said that women don’t make the difference that we think they would do. The difficulty is that we have too few cases from which to judge as there are too few countries that have too recently attained levels of women in politics high enough for us to expect to see a tangible impact. Women constitute a critical mass of 30 percent of national parliaments in only 27 out of 192 countries.

Where women are in a critical mass and have been there for long enough, and where state is supportive, we most certainly see changes in outcomes that favour women. In areas where women head local government, spending patterns change in favor of women and children. Particularly evident is higher local investment in water and poverty reduction for women.

Individual women in high places can also make a difference. In the case of investigations to the incidents of September 28, 2009 in Guinea, for example, there were two women on the international commission of inquiry and both were stalwarts on women’s rights. These women made sure that the issue of the high number of extremely brutal and public rapes of opponents of the regime was looked at. Would that have happened otherwise? I honestly don’t think so.

Similarly, in war crimes tribunals, women prosecutors make a difference — women prosecutors began insisting on indictments for war rape in the 1990s. Women make a difference to government: they offer women a role model, they feminise public space and make it more accessible to women and develop a constituency interested in gender equality.

Q: You have said that delivery of public services is the most direct measure of government accountability to women. Can you elaborate on that?

A: If women have no say in public life then they cannot provide instructions in or influence public priority setting and resource allocation. If women are not part of decision-making then how will public authorities know what their needs are or how to address their needs?

An accountable government is one that gets systems in place to encourage women to make input into making those decisions and that takes feedback from women. Truly accountable governments recognise constraints on women’s access to public decision-making and on their capacity to influence public priority setting because of gender discrimination and low human resource endowments.

Strong gender-sensitive public service provision can help women to make up for these deficits and empower women to become more effective leaders.

Q: Where should we be focusing our energies for reform if we are to improve women’s participation in governance? Which interventions have greatest effectiveness?

A: We need strong women’s movements everywhere. Around the world we have seen that we’ve lost ground where the women’s movement is not strong. Collective action has been the key to most gains made in women’s rights in the past century and remains the best means of amplifying women’s voice and leverage in public decision-making.

Barbara Crossette is the United Nations correspondent for The Nation and a former New York Times UN bureau chief.

This article first appeared in the 17 February issue of UNA-USA’s “World Bulletin” online biweekly newsletter <www.unausa.org/newsletter>, and is reprinted by permission.

An Agency for Women, Already Embattled

Barbara Crossette

February 2010

When Secretary-General Ban Ki-moon presented his long-awaited plan for a new United Nations women’s agency to the General Assembly, he started a process similar to what happens when an American president sends a bill to Congress. Now, after years of talk, the real negotiating moves to back rooms and caucuses, where trade-offs and compromises are made.

Instead of two political parties, however, 192 countries will be acting singly, in regional groups or like-minded alliances. Negotiations won’t be easy or pretty — a true exercise in international politics.

The agency will combine four existing women’s programs, have a $500 million budget and be led by an under secretary-general. Its creation is only part of a package of reforms that also includes changes in the financing and management of development assistance. The Group of 77, with more than 130 members from developing countries, has made it clear that it will have to get enough of what it wants in the development field in order to support the women’s agency, which many have opposed for various reasons.

Used as a Bargaining Tool

Charlotte Bunch, the founder of the Center for Women’s Global Leadership at Rutgers University and a leader of GEAR — the campaign for Gender Equality Architecture Reform, with more than 300 member groups worldwide — is hopeful that an agreement will be made that does not erode the secretary-general’s plan. That proposal is already couched in very careful language so as not to appear to be a feminist document that would raise red flags among nations in the Islamic Conference Organization and elsewhere.

“The political dynamics are that he wants it,” Bunch said of Ban, who listened closely to speeches in the opening debate in the General Assembly on February 4. Given that the UN is committed to enhancing the role of women in development, the ideal time to present it with its new leader is at a world summit meeting on the Millennium Development Goals scheduled for September.

“So the plan, as I have been picking it up internally, is to get the deal on the different aspects of [the package of reforms] done in the next six months, so they can unveil the first real stage of the work of this agency and have the USG at the MDG summit,” Bunch said in an interview. “I think it’s going to happen. I think that the number of G-77 countries who are still trying to oppose it has gotten a lot smaller.” African countries, she said, “are now seeing it as part of their development package – as one way to increase development assistance”.

Countries are “just playing out the power game as to what else the hardliners will get in the development funding and governance questions in order to let it go forward,” Bunch added. “There’s really no serious opposition to it; they’re now using it as a bargaining chip.”

Bunch, however, echoing many other advocates who have worked for years to support a larger role and voice for women in the UN, is concerned that the proposal outlined by Ban still needs work to strengthen the new agency’s power within countries. That would give the agency the ability to work more closely with local women’s groups in dealing with their governments and making significant changes in women’s lives.

Ban’s plan, which seems to foresee its country representatives acting more as advisers or coordinators rather than overseers on the ground, has no formal place for civil society. Many governments are more interested in weakening nongovernmental organizations, a tactic that will play into the current debate.

Keeping a Vital Plan Alive

Advocates for the new agency, some of them already skeptical about the secretary-general’s proposal, say that now is the time [when] countries that avidly support a stronger voice for women in the UN system will have to ward off opponents who aim to further water down the plan. Supporters will also have to insist on the appointment of a strong leader.

It is widely accepted that the United States must take a stand at the forefront of the battle.

“The real litmus test is whether the countries that really want this agency are willing to fight for it,” said Julia Greenberg, associate director of AIDS-Free World, a stalwart advocate for women’s reproductive rights, which are key to reversing the spread of HIV among female populations and lowering fertility for the poorest women. “The US could be much more vocal,” she said in an interview.

Greenberg said that AIDS-Free World is disappointed with the proposal so far. (The organization was founded and is co-directed by Stephen Lewis, a former Canadian ambassador to the UN and deputy executive director of UNICEF, who later became the UN’s envoy on AIDS in Africa and returned in 2006 furious at what he saw as the neglect of women there.)

“We think this is another example of the Secretariat and the Secretary-General going for the lowest common denominator in putting together this agency,” Greenberg said. “We’re not going to settle for an agency that isn’t transformative and doesn’t reflect the demands that women’s groups from around the world have made.” Instead of involving women from around the world in coming discussions about the new agency, Greenberg said, “All the work is going on behind closed doors, trying to negotiate a paper everybody will feel comfortable with – and not really consulting with women’s groups.” These groups working with a new agency could help fill the gaps left by some current UN programs “and demonstrate what kind of work can be done to really lead to women’s empowerment”.

If some countries block consensus and try to derail the agency plan, she said, the US and others should “push it to a vote”.

The Gender Equality Architecture Reform (GEAR) Campaign expressed pleasure (9 February 2010) that the Secretary-General has produced the outline of key organizational arrangements for the new “composite entity” that was requested by GA Resolution 63/311 (14 September 2009) for consideration by Member States during the 64th session of the General Assembly, moving the process forward and dealing with many critical issues; but “it does not adequately address several important issues related to country-level operational capacity, long-term funding for the entity, civil society participation, and the timeline for the appointment of the Under Secretary-General”. For example: “[i]t is insufficient to only have Member States monitor their own actions, thus being both judge and party of their commitments”; “[m]ore needs to be spelled out about how the entity would be able to hold the UN system accountable for gender mainstreaming and lead the work on gender equality at all levels”; the report does not propose adequate mechanisms for Civil Society involvement, proposing only an Advisory Board to the USG and merely a liaison with NGOs (less partnership than in a previous paper); and provisions for growth have become stinted.

NOTES:

Elimination of Violence Against Women

As the UN Development Fund for Women (UNIFEM) observes, “[w]e still live in a world where violence against women and girls is a major source of insecurity for half the world’s population, from domestic violence to female genital mutilation; from so called honour killings to mass rape in times of war. The gap between the promises and realities on the ground is still too wide and violence against women and girls continues to pose some of the world’s greatest challenges.”

I - On the 10th anniversary of the International Day for the Elimination of Violence against Women (25 November 2009), UNIFEM applauded “the fact that the issue of violence against women and girls is no longer treated as simply a woman’s concern. Thanks to the persistent and dedicated efforts by women’s rights activists in all parts of the world, it is now a human rights issue, a peace and security issue, and an issue of urgent concern to both men and women.”

UNIFEM noted approvingly that “[t]here are now more national plans, policies and laws in place than ever before, and momentum is also growing in the intergovernmental arena: last year [2008] the UN Security Council unanimously adopted resolution 1820 which for the first time addresses sexual violence in conflict and post-conflict situations as an international security issue. This year [2009] we saw the passage of two new Security Council resolutions — 1888 and 1889 — that will greatly strengthen the ability of the UN to address the problem of sexual violence in conflict and pave the way for stronger involvement of women in post-conflict peace-building and reconstruction to take their specific needs into account. … There is no room for spectators in advocating for the advancement of women’s rights. Governments must act to implement existing international commitments at the national level. We need national accountability frameworks that include adequate and appropriate standards of protection and response” … and commitment by individuals to personal and concerted action.

II - Meanwhile, the UN Secretary-General’s UNITE to End Violence against Women campaign (www.un.org/en/women/endviolence), has been re-launched as “an innovative advocacy platform that stimulates and showcases actions and brings the spotlight to global efforts”, promoting thousands of actions by organizations and individuals around the world. The inter-agency campaign moves the issue toward the top of the UN agenda and “calls on governments, civil society, women’s organizations, men, young people, the private sector, the media and the entire UN system to join forces in addressing this global pandemic”.

As a part of this campaign, the Secretary-General has launched a Network of Men Leaders who pledge to act on ending violence against women and girls in their countries and communities, since “involvement of men and boys, along with empowerment of women, are critical to achieving gender equality and fulfilling the promise of a life free of violence for every woman” — seventy percent of whom currently experience some sort of physical or sexual violence from men, mainly from husbands, intimate partners or relatives. Members of the Secretary-General’s Network of Men Leaders — who are expected to work to raise public awareness, advocate for adequate laws, and meet with young men and boys — include Spanish Prime Minister José Luis Rodrígues Zapatero, Archbishop Desmond Tutu of South Africa, Brazilian novelist Paulo Coelho, and Ricardo Lago, former president of Chile.

At the Network launch in New York last November, Ghida Anani, program coordinator for the Lebanese non-profit group KAFA (meaning “enough”) lamented that this issue is “the least acknowledged and recognized gender issue by Arab states and their policymakers”, requiring much more understanding by men. “Engaging men and boys to commit themselves to ending such violence is crucial and long overdue,” added Princess Bajrakitiyabha Mahidol of Thailand, who is a Goodwill Ambassador for UNIFEM.

Although in a few places certain forms of violence are locally legal though internationally prohibited, as Ghida Anani attested, UNITE emphasizes that violence against women is not confined to a specific culture, region or country, or to particular groups of women within a society.

By 2015, the UNITE campaign aims to have achieved five goals worldwide: adopt and enforce national laws to address and punish all forms of violence against women and girls; adopt and implement multi-sectoral national action plans; strengthen data collection on the prevalence of violence against women and girls; increase public awareness and social mobilization; and deal with sexual violence in factional conflict.

“We must act together. We must build on the efforts of so many women and women’s organizations who have worked tirelessly to address this epidemic. We must continue to widen the circle of engagement,” Secretary-General Ban said at the Network of Men Leaders November press conference.

III - With regard to UNSCR 1325 on Women, Peace and Security (adopted in 2000), a 2004 Amnesty International report noted an apparent “lack of political will on the part of nearly all UN member states and various UN bodies and agencies to apply [its] provisions effectively to specific country situations”. Because of continuing systematic sexual violence, in many cases actually becoming even more horrendous, the UN Security Council unanimously passed Resolution 1820, recognizing that “systematic sexual violence that deliberately targets civilians deepens the effects of conflict and hinders efforts toward peace and security. Importantly, it recognizes the need to end impunity to further truth, justice and reconciliation. Accountability for gender-based violence is essential in order to prevent it in the future” (Vital Voices, July 2009).

In summary, UN Security Council Resolution 1888:

• Calls for appointment of a Special Representative of the Secretary General to propel response efforts and to provide coordinating leadership of UN efforts to deal with gender-based violence;

• Requests deployment of expert rapid response teams to situations of concern, to assist national governments in justice and prevention efforts;

• Calls for identification of “women protection advisors” within peacekeeping missions and their gender advisory or human rights protection units;

• Urges the consideration of issues of sexual violence within peace processes – to provide access to justice and reparations but also to build the foundations for sustainable peace;

• Requests more systematic monitoring and reporting on conflict-related sexual violence and suggestions for improving this function;

• Requests an annual report on implementation of SCR 1820 – including information on parties to armed conflict credibly suspected of perpetrating patterns of rape;

• Identifies the link between the new UN Gender Entity coordination of UN efforts to deal with sexual violence and end impunity for it.

The addition of Resolutions 1888 and 1889 to the Security Council’s “women, peace and security” framework should be construed together with Resolutions 1325 and 1820 to advance that agenda, says Sam Cook, Director of PeaceWomen, a project of the Women’s International League for Peace and Freedom (AWID interview, 5 November 20009): “[W]e should not fall into the trap of isolating SCR 1820 and 1888 as separate agenda items. Of course many governments and UN entities are more comfortable in such a protection framework, but separating 1820 and 1888 from 1325 and now 1889 [which includes provision of global indicators to measure the progress in implementing SCR 1325] is dangerous in many respects. … Furthermore, … it is important that we not reinstitute the now unhelpful dichotomy that places women either as victims or as agents of change. Whether or not one of these roles is prioritized or highlighted is itself not the only point. Rather it is not helpful to see women as being ‘either/or’ and it is important to understand that powerful agents of change are at risk of sexual violence and those victimized by this violence do not lose their agency in the process. In addition – and most advocates inside and outside the system do seem to appreciate this and we look forward to the SRSG [Special Representative of the Secretary General, as called for by SCR 1888] taking this approach – efforts to address sexual violence will likely be most effective if they take a holistic approach and one that addresses issues of participation and empowerment and peacebuilding. Separating out the ‘sexual violence resolutions’ from the ‘other women, peace and security resolutions’ will only exacerbate this problem and does not accurately reflect that all four current women, peace and security resolutions contain language linking issues of participation, protection and conflict prevention.”

IV - The UN’s first special representative on sexual violence in conflict is Margot Wallstrom of Sweden, the former European Commissioner for Institutional Relations and Communication Strategy. Before officially taking on the role in April, she planned to visit the Democratic Republic of Congo (DRC), one of the most infamous sites of rape and other atrocities used as weapons of “ethnic cleansing” and warfare. She will report directly to the UN Security Council during her two-year term, which she views as “not only a mission to reduce violence against women but an opportunity to work towards a more humane world” (Reuters, 17 March 2010).

V - Meanwhile, an exhaustive and gruesomely descriptive Human Rights Watch report has alleged that the UN peacekeeping mission in the Democratic Republic of Congo is partnered with known human rights abusers, thereby supporting multitudinous rapes by Congolese army and rebel forces, the deliberately inflicted deaths of at least 1,400 civilians, and massive displacements (Associated Press (15 December 2009). “Continued killing and rape by all sides in eastern Congo shows that the UN Security Council needs a new approach to protect civilians,” said Anneke Van Woudenberg, a senior researcher with Human Rights Watch.

VI - The issue of sexual harassment at the United Nations continues to fester. Last July, following many complaints and an embarrassment of investigative journalism, The UN made some changes to its internal justice system of handling employee disputes and to staff training. Advocates for reform have expressed skepticism, in part because “complainants apparently still won’t have access to investigative reports to help with appeals”, argues Equality Now lawyer Yasmeen Hassan (cited by the Wall Street Journal). An evaluation completed in 2007 by Canadian Ethics Professor Michel Gorodo had found serious misconduct, little attention to consistent disciplinary action and even less to prevention in ”responding to this highly visible and urgent area of misconduct”. In addition to all the usual organizational muddle in this realm, alleged excuses of cultural confusion, and the complications of overlapping issues such as free speech, questions of diplomatic immunity also cloud the UN situation.

“Meanwhile, the prevalence of sexual harassment continues to present challenges for those who work in the United Nations system,” comments Masum Momaya (AWID, 7 August 2009). “It also sets a poor example for those who look to the United Nations to uphold human rights. Ironically, the United Nations Convention of the Elimination of All Forms of Discrimination Against Women, which most of UN member states have signed, includes strong language condemning sexual harassment and encouraging governments to take proactive measures to curb and punish it.”

VII - By the 30th anniversary of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in December 2009, seven countries (Iran, Nauru, Palau, Somalia, Sudan, Tonga and the United States) still declined to ratify, and implementation among the ratifiers had been uneven, partly because of assorted reservations to the convention by 22 of them. But “the trend is toward removal” of ratification reservations to CEDAW, according to Joanne Sandler, Deputy Executive Director of UNIFEM (November 2009). And important improvements have been based on CEDAW around the world, and some state failures have been brought before the monitoring committee with success. The Committee’s recommendations can be used to “push governments into action”, said Yasmeen Hassan, of Equality Now, in a pre-anniversary interview (Terraviva Europe, 14 December 2009).

VIII - This year’s focus of the UN Commission on the Status of Women (CSW) was the 15-year review of the unanimously adopted Beijing Declaration & Platform for Action, an agenda to advance equality and development for all women and to ensure the full implementation of their human rights. Several of its principles were reiterated in the Millennium Development Goals adopted at the UN summit in 2000. “All the commitments on women’s rights, women’s empowerment and poverty reduction are common to both mandates and reinforce each other,” said UNFPA Executive Director Thoraya Obaid (IPS, 28 February 2010). “So we should build on our successful experiences of working with countries and communities to make these issues relevant and make solutions and actual implementation locally owned and sustainable. … Gender equality is being increasingly recognized as integral to all development, humanitarian and emerging issues, from climate change to the financial crisis. … New alliances need to be built with a common understanding that part of the process of change is contesting existing practices and reaching for common understanding of the relevant human rights principles. This requires negotiations and discussions within communities, with women and men participating.” And that depends in part on well-coordinated facilitation and reliable support.

Preparing for the CSW session, Marianne Mollmann, of the Women’s Rights Division at Human Rights Watch, told IPS (24 February 2010) that unfortunately “there is no strong UN body charged with the implementation” of the Beijing Platform for Action; “it’s a structural issue”.

IX - Amnesty International (AI) believes that governments will not achieve any meaningful progress on the Millennium Development Goals unless they tackle structural human rights issues such as denial of sexual and reproductive rights, all forms of gender-based violence, and discrimination against women (www.amnesty.org/campaigns/stop-violence-against-women). AI urges all governments to reaffirm fully their commitment to respect women’s human rights as articulated in human rights treaties as well as in the Beijing Declaration and Platform for Action. Amnesty International calls on governments to exercise due diligence to prevent, investigate and punish acts of violence.

Central to this endeavor is ensuring that women subjected to violence can “access justice and an effective remedy” for the harm they have suffered. “In poor and rich countries alike, women who are raped or abused have little chance of seeing their attackers brought to justice,” says Widney Brown, Senior Director of International Law and Policy at Amnesty International. “It is shocking that in the 21st century, with so much legislation designed to ensure women’s equality, virtually every government fails to protect women or to ensure that their abusers are held to account for their crimes.”

To mark International Women’s Day (March 8) this year, during the UN CSW session, Amnesty International issued two reports: Breaking the Silence: Sexual Violence in Cambodia; and Case Closed: Rape and Human Rights in the Nordic Countries.

Meanwhile, as part of the global NGO campaign on the Gender Equality Architecture Reform (GEAR), Amnesty International also is calling on governments and the UN system to ensure that the new consolidated UN women’s entity is given the resources, personnel and authority it needs to “make a real difference to women’s lives around the world”, thereby contributing to human security and peace.

Break the silence.
When you witness violence against women and girls,
do not sit back. Act. Advocate.
Unite to change the practices and attitudes
that incite, perpetrate and condone this violence.

~ Ban Ki-moon

Powerful legal tools — like CEDAW; Security Council Resolutions 1325 and 1820,
which mandate criminal accountability for sexual violence in conflict and the essential role
that women must play in peace and security; and the statute of the International Criminal Court —
all contain clear guarantees of women’s rights to equality in positions of power and their right to justice,
both critical for enduring global peace & security. The tools are there and we must join with the Nobel women laureates
[who have formed the Nobel Women’s Initiative] and insist on their use.

~ Janet Benshoof, a human rights lawyer who has established landmark legal precedents on equality in the US and worldwide, founder and president of the Global Justice Center in New York, in On the Issues - “The Progressive Women’s Magazine”, Winter 2010

The suffering of women and the instability of nations go “hand in hand”, and the subjugation of women anywhere is “a threat to the national security of the United States and … a threat to the world,” Secretary of State Hillary Clinton said at end of the CSW session, 12 March 2010.

Edward Mortimer, formerly Chief Speechwriter and Director of Communications to UN Secretary-General Kofi Annan, is the Chair of the Sri Lanka Campaign for Peace and Justice (www.srilankacampaign.org) and Senior Vice-President of the Salzburg Global Seminar (www.salzburgglobal.org). His recent panel remarks at the 2nd Geneva Summit for Human Rights, Tolerance & Democracy (www.genevasummit.org) are printed with his permission.

Towards the 2011 Reform: Can the Human Rights Council Be Fixed?

Edward Mortimer

9 March 2010

It’s a great honour for me to be invited to address this conference. I spent most of my journalistic career as an editorial writer and columnist rather than in war zones; and all of my UN career in the relative safety of UN headquarters in New York. All my life, I have been able to say and write what I wanted without being threatened with imprisonment, torture or assassination. The only censorship I have had to face has been the self-censorship of over-cautious editors and bureaucrats, and I have never had to worry about any worse sanction than losing my job.

So it’s a humbling experience for me to listen, at meetings like this, to a succession of very brave women and men, who have run terrible risks, and in some cases paid a terrible price, for exercising basic rights that people like me take for granted. It reminds me how privileged I am, and how grateful I should be for it.

So why am I on this platform? I suppose it’s because I was a member of Kofi Annan’s team in 2005, when the idea of a UN Human Rights Council was first put forward in his report, In Larger Freedom, and in 2006, when the General Assembly established the Council and it held its first meetings. I certainly would not claim to be the creator of the Council but I was, to use a well-worn phrase, present at its creation. I certainly feel I have some stake in it, and therefore in this discussion.

It is, of course, rather sad that, when the Council has not yet been in existence for four years, we are asking whether it can be “fixed”. The Council was established, after all, precisely because many people, including Kofi Annan, had come to the conclusion that its predecessor, the Commission on Human Rights, could not be fixed, and that something new and better was needed.

It is also rather depressing, for me at least, to read that one of the ways in which some people would like to fix it is by introducing universal membership. This proposal reminds me of the precise circumstances in which, exactly five years ago, the decision to propose the creation of a Human Rights Council was taken.

There were actually very few completely new ideas in Kofi Annan’s In Larger Freedom report, which was based mainly on two previous reports produced by independent panels that he had set up – the development part on the report of Jeff Sachs’s Millennium Project, and the peace and security part on the report of the High-Level Panel established in 2003, in the wake of the Iraq war.

That second report included proposals for reforming the UN itself, many of which were very good and were adopted more or less unchanged. But we all agreed that the recommendation on the Commission on Human Rights was about the weakest in the whole report, as the panel were not able to agree on anything better than to suggest universal membership of the Commission.

None of us could see how this proposal would in any way make the Commission more effective. On the contrary, we thought it would aggravate all the Commission’s worst features, making it in effect a replica of the General Assembly which would debate everything in a highly politicized context, either forcing through one-sided resolutions on the basis of bloc voting, or adopting a consensus rule which would ensure that only vacuous and extremely general resolutions would be passed.

We all said, “surely we can do better than this!” I think we were right then, and, whatever the problems in the Council now, I cannot believe that universal membership would be the right solution to them. That is a counsel of despair, and one might even say that the result would be a “Council of Despair”, because its message to the victims of human rights violations around the world would be “Abandon hope, all ye who enter here”.

I can’t remember now who first came up with the idea of a Human Rights Council. I think it may have been Louise Arbour, the High Commissioner at the time. Certainly the idea of universal peer review came from her. But I do remember that Mark Malloch Brown – who had recently been brought in as the Secretary-General’s Chef de Cabinet, and was overseeing the process of producing his report – seized on the idea of a Council with great enthusiasm, because it helped us give an elegant thematic structure to the whole report – stressing that development, peace and security, and human rights were the three mutually reinforcing pillars of the whole UN system, none of which could be reliably secured if the other two were neglected; and therefore it made sense that each should have its own Council – the Security Council, ECOSOC, and the Human Rights Council.

Logically that implied that the Human Rights Council, like the other two, should be a “principal organ” of the UN, rather than a subsidiary organ of the General Assembly. But we knew that that would require an amendment of the Charter, with the whole process of a two-thirds majority in the GA and ratification by two thirds of the member states, including the five permanent members of the Security Council; and that therefore the member states might shy away from it, or they might agree on it but the amendment would never come into force. Which is why in the end we suggested that to start with it should be a subsidiary organ, but that in due course the member states might consider elevating it to the status of a principal organ. And I think that is why, or at least it’s one of the reasons why, the GA ended up writing the idea of a five-year review into the resolution that established the Council.

I see, however, that at the recent meeting of the “Reflection Group on the Strengthening of the Human Rights Council”, in Paris, the general view that emerged was that at this stage it is more important to consolidate the Council’s work in its present format; that a Charter amendment would still be very difficult to achieve – and debate about it might well poison the atmosphere of negotiations among member states; and that any effort to change the status of the Council should come only after “a better performance and clearer results” have been achieved. I can only agree with that conclusion, on all counts.

The question we have to ask ourselves is why the performance has not been better, and the results clearer, up to now.

I believe the Council has in fact been an improvement on the Commission in several respects; and it is certainly not true, as a former ambassador of Israel was quoted as saying at the time of the Goldstone report, that Kofi Annan regards its creation as the greatest mistake of his Secretary-Generalship. Mr. Annan has told me that he never said that, and has authorized me to deny it publicly.

Also, I’m not sure it’s true that we imagined a “de-politicized” body. I don’t think we were that naïve. Human rights is, and always will be, a highly political issue, and governments are bound to take their general political interests into account when they approach it. What I would argue is that the reverse should also be true: that governments should always take human rights into account when formulating their general policies. And indeed that is the real purpose of having an intergovernmental organ dealing with human rights at the heart of the UN system. So let’s not blame the Council for being “political”. Let’s concentrate on the political content of its deliberations and decisions.

What we did hope was that, in the words of the General Assembly resolution establishing it, the Council would be “guided by the principles of universality, impartiality, objectivity and non-selectivity”. And I fear it would be hard to argue that it has fully lived up to that in the first four years of its activity. Too many of its decisions have been flagrantly selective, and too many votes have been guided, not by impartial concern for the victims of human rights violations wherever they can be objectively established to have happened, but by solidarity with other governments subjected to criticism – solidarity, that is, not with the oppressed but with the oppressors.

A particularly flagrant example was last year’s special session on Sri Lanka, in which not only did the majority of Council members refuse to condemn the massive and indiscriminate killing of civilians that characterized the last phase of the war against the Tamil Tigers, but many of them even criticized the High Commissioner for a report in which she proposed an independent inquiry into war crimes committed by both sides. One can only ask why, if such an inquiry was justified in the case of Israel’s actions in Gaza a few months earlier – as I believe it was – the same principle was not applied to Sri Lanka.

I am not convinced that the answer lies in the structure or even the composition of the Council. It’s true that Kofi Annan originally suggested a smaller body, and one whose members would be elected by a two-thirds majority of the General Assembly, rather than a simple majority as was eventually decided. But whatever its size, the Council needs to be broadly representative of UN members. Otherwise there is no point in it.

The fact is that some of the most egregious violators have failed to win election in a secret ballot. No government’s human rights record is perfect – that is why we need the universal periodic review. But I think by most criteria one could describe the majority of Council members as democracies. And they can sometimes be shamed by strong leadership into behaving better. That happened at the end of 2006 when Kofi Annan publicly warned them not to ignore the tragedy of Darfur, and it happened last spring when Justice Goldstone and President Uhomoibhi between them were able to change the terms of reference of the inquiry into violations in Gaza.

The problem, as I see it, is that countries’ behaviour in the Council, and in the UN generally, often fails to reflect the democratic values that they uphold in domestic affairs. This is because, in the absence of strong public debate at home about the merits of the issues considered at the UN, governments and their representatives are more sensitive to pressure from each other than to pressure from public opinion. Thus, too often, human rights issues are framed as a contest between North and South, in which “southern” governments can present themselves as being on the side of the oppressed, even when in practice they are themselves the main oppressors. And once the contest is framed like that, the North cannot win – (a) because it is numerically in the minority and (b) because, of course, “northern” governments themselves are far from having a consistent record on human rights, let alone a blameless one.

So the task of all of us who care about human rights is to frame the debate differently, and above all to take the case to public opinion within the many democracies of the developing world. The governments of, for example, India, South Africa, or practically any Latin American country should be held to account by their own people if they condone gross human rights violations in other developing countries, because the people should know that the impartial and universal defence of human rights is their own best safeguard against ever suffering similar abuses themselves.

When we see positive change in governments’ behaviour at the UN, it generally reflects change within the societies that they represent. And therefore I believe that the struggle for improvement in the Human Rights Council is one that needs to be pursued not only through conventional intergovernmental diplomacy but also through political work at the level of civil society – through what people like us say and do, not only at meetings in Geneva, but through constant and consistent advocacy within our own societies and in our interaction with each other’s societies. We must take the debate to the people.

[SIDEBAR] On 23 March, in a stern Joint Statement  to the 13th session of the UN Human Rights Council, International Service for Human Rights, Amnesty International, Human Rights Watch, International Federation for Human Rights, Asian Forum for Human Rights and Development, Canadian HIV/AIDS Legal Network, Cairo Institute of Human Rights Studies, and Al Haq Law in the Service of Man expressed “alarm at the tone of negotiations on the resolution on protection of human rights defenders taking place…, with some governments showing themselves to be more concerned with regulating NGOs than protecting human rights defenders. The objective of the resolution is to address the protection needs of human rights defenders. States should act vigorously to protect all human rights defenders from threats, violence, harassment and abuse as is their duty under international human rights law. Instead, many States seem intent on using the resolution to selectively quote from, rewrite, or restrict the clear provisions of the Declaration on human rights defenders, which was adopted by consensus after being carefully negotiated over a 13-year period.” The statement discusses several proposals that disregard, digress from, or deliberately undermine the Declaration, and concludes: “Every single issue currently in dispute is already addressed by the Declaration. Attempts to co-opt the resolution to rewrite the Declaration jeopardize the resolution itself.  If a strong resolution protecting human rights defenders cannot be adopted by consensus, it will be an embarrassing failure for the Council, and a clear indication to the world beyond these walls of how this Council views civil society.”

Celebration of 60th anniversary of the Universal Declaration of Human Rights, Madrid
© Amnesty International-Spain

This evaluation of UN Security Council Resolution 1540, by Brian Finlay, Senior Associate at the Henry L. Stimson Center and Director of the Managing Across Boundaries Program, appeared in the winter 2009 edition of the Stanley Foundation Courier (www.stanleyfoundation.org) and is reprinted with the Foundation’s permission.

Brian Finlay’s executive summary (with Elizabeth Turpen) of the Next 100 Project, Leveraging National Security Assistance to Meet Developing World Needs, appeared in Minerva #34 (May 2009).

Nuclear Security: Cooperating to Prevent Catastrophe

Brian Finlay

The US Central Intelligence Agency began receiving fragmentary information regarding Osama bin Laden’s ongoing efforts to obtain a nuclear weapon in 1998. In the same year he was complicit in the bombings of two US embassies in Africa, bin Laden sent emissaries across the Afghanistan border to Pakistan to establish contact with rogue nuclear scientist A.Q. Khan. For more than a decade, Khan’s black market in nuclear technologies spanned the globe, providing one-stop shopping to untold numbers of customers seeking to develop a nuclear weapons capability. By 2003 the international community would learn that in addition to nebulous connections to Al Qaeda, Khan’s network had supplied critical nuclear technologies to an array of state clients from North Korea to Iran, and to Libya.

Beyond the immediate threat to international security, the Khan affair revealed a major gap in the ability of global mechanisms to address the role that individuals motivated by ideology or greed can play in undermining global nonproliferation. The case stands as a warning to the world that the Nuclear Non-Proliferation Treaty remains a critical but ultimately insufficient tool to prevent committed proliferators from capitalizing upon globalization and rapidly advancing technological markets.

In a direct response to these events, in April 2004 the UN Security Council unanimously passed Resolution 1540, mandating that all member states implement a rigorous set of controls to prevent the proliferation of nuclear, biological, and chemical weapons — including securing potentially dangerous materials, strengthening border security, and developing national export and trans-shipment controls over “dual use” items. The resolution also encourages states with the capacity to provide international assistance to do so and, in turn, invites states-in-need to request the assistance they require to meet the demands of 1540.

A Lack of Urgency

The response by governments to 1540 has unquestionably helped to strengthen global nonproliferation standards. Yet despite these efforts, the urgency of implementing 1540 in capitals around the world has not been commensurate with the threat. Critics point to a lack of institutional resources for the 1540 Committee, burdensome restrictions on the committee’s group of experts, and flagging interest among most UN member states. Beyond statements of political support, little evidence of widespread implementation of the 1540 mandate is evident — particularly in key regions of the Global South — a growing locus of proliferation concern.

While 1540 implementation has been far from robust, the potential for proliferation continues to grow. Even amidst the global economic slowdown, the overall number and geographic distribution of dual-use technology manufacturers continue to rise. And in a recent interview with Al Jazeera, the leader of Al Qaeda in Afghanistan, Mustafa Abu al-Yazid, made it clear that the terrorist organization continues its relentless pursuit of a nuclear capability. Referring to Al Qaeda’s Taliban allies in Pakistan, he said, “God willing, the nuclear weapons will not winter into the hands of the Americans and the mujahedin would take them and use them against the Americans.”

1540 Complements Development

At its root, the sluggish implementation of Resolution 1540 has become a question of resources and priorities. While no responsible government can reasonably disagree that keeping weapons of mass destruction out of the hands of terrorists is an important goal, the vast majority of UN members are plagued with an array of threats to security and well-being of their people that seem to have little to do with the proliferation of advanced weapons and technologies. Implementation of 1540 thus ranks low on their long list of government priorities.

In Western capitals panicked by the growing nexus between technology proliferation and the rise of catastrophic terrorism, it is easy to lose sight of this realization: in the Global South, where more than a billion people live on less than $1 a day, one illness, one unlucky encounter with a drug or small arms trafficker, one hurricane, or one month of poor rainfall can mean death. It is unreasonable and even immoral to expect their governments to divert scarce resources from public health, education, or infrastructure development to meet the seemingly distant threat of WMD proliferation.

But when viewed expansively, UNSCR 1540 can be a complementary rather than competing priority for developing world governments. For instance, the technical assistance needed to detect and interdict weapons of mass destruction is equally critical to natural disaster response. The ability to prosecute potential weapons smugglers requires a well-trained police force and functioning judiciary — traits equally critical to the rule of law. The prevention of drug, human, and small arms trafficking relies upon many of the same resources and capacities necessary to detect and prevent proliferation. Assistance to help identify and prevent biological weapons proliferation could help address the endemic lack of public health resources, disease surveillance, and emergency medical responses across the Global South. And “safe ports” standards that challenge governments’ ability to remain competitive in the global supply chain can be achieved, in part, with nonproliferation security assistance.

Coordinating Efforts

Moving forward, governments intent on 1540 implementation have two central challenges. First, in order to demonstrate the benefits of full implementation, they must help draw the link between 1540 assistance for proliferation and the security and economic development needs of the Global South. Secondly, donor governments must better leverage security and development assistance. Both communities have much to learn from, and achieve through, better coordination.

The United States should lead by example and develop an interagency committee of donor agencies — including State/USAID, the departments of Defense and Energy, the Centers for Disease Control and Prevention, the National Institutes of Health, the Millennium Challenge Corporation, and others — to share information in key target regions, leverage one another’s activities, and ultimately promote a more robustly funded set of development activities while simultaneously building sustainable nonproliferation programs.

Better coordination between these communities has been a distant goal for policymakers for decades. Implementation of UNSCR 1540 provides a pragmatic opportunity to turn that rhetoric into reality in a pilot effort that addresses the greatest threat to global security.

Establishing global fissile
material security as a top-level
international objective will
require international consensus
on new policy initiatives.

In this Stanley Foundation Policy Brief, “noted specialist and former senior Energy Department official Kenneth Luongo explains the complicated context of existing international commitments, sovereignty concerns, current initiatives, and major trends by region” in the vital effort “not only to thwart potential terrorism but to meet the Obama administration’s goal of securing all vulnerable nuclear materials within four years and to create the conditions necessary for eventual nuclear disarmament. He highlights the need for a greater global consensus if there is to be any hope of meeting—or approaching—the president’s goal [and] offers a specific policy agenda and road map to meet this critical global security objective.”

Kenneth N. Luongo is president and founder of the Partnership for Global Security. From 1997-2004 he was also a Senior Visiting Fellow and Visiting Research Collaborator with Princeton University’s Program on Science and Global Security. Earlier, he was Senior Advisor to the Secretary of Energy for Nonproliferation Policy and Director of the Office of Arms Control and Nonproliferation at the US Department of Energy (DoE). In addition, he was Director of the Department of Energy’s Russia and Newly Independent States Nuclear Material Security Task Force and Director of DoE’s North Korea Task Force.

The views expressed in this brief are those of the author and not necessarily those of the Stanley Foundation.

Reprinted courtesy of the Iowa-based Stanley Foundation, “a nonpartisan, private operating foundation that seeks a secure peace with freedom and justice, built on world citizenship and effective global governance”. Stanley Foundation reports are available at <http://reports.stanleyfoundation.org>.

Securing Vulnerable Nuclear Materials: Meeting the Global Challenge

Kenneth N. Luongo

November 2009

In his April 5, 2009, speech in Prague, President Obama outlined his arms control and nuclear nonproliferation objectives. At the top of the list was his assessment that terrorists are “determined to buy, build, or steal” a nuclear weapon, and that to prevent this, the United States will lead an international effort to “secure all vulnerable nuclear materials around the world within four years”. As a step toward this goal, he pledged to convene a summit on nuclear security within a year to “secure loose nuclear materials ... and deter, detect, and disrupt attempts at nuclear terrorism”. At the UN General Assembly in September 2009, Obama announced that the summit will be held in early April 2010.

An international summit on this issue, featuring heads of state, is an unprecedented opportunity to drive the agenda that must not be missed. The lead-up to the summit should be used to generate new international commitments to secure fissile materials worldwide, culminating in specific goals and actions approved at the summit. A mechanism should be created for regular reporting post-summit to ensure implementation of the commitments and to discuss additional steps.

The global community, with US leadership, has been seriously addressing the chal- lenges of securing vulnerable fissile materials since the fall of the Soviet Union. Nevertheless, seventeen years later, significant challenges not only persist but also continue to spread. Despite the fact that not all nuclear security objectives have been accomplished in Russia and the former Soviet states, the danger is no longer confined to that region. The challenges are now more geographically dispersed, and international cooperation on this agenda needs to significantly improve if there is to be any hope of meeting — or even approaching — Obama’s four-year goal. In particular, there needs to be a greater global consensus on the urgency of this agenda, more and continued financing for it by the world’s wealthiest nations, greater willingness to cooperate on the part of developed and developing nations, and a multilateral implementation plan.

Building on a Successful Foundation

The stockpiles of fissile materials in nations that have them are sovereign possessions and, therefore, each of these nations has the obligation to protect those materials to the highest level. However, if a nation is having difficulty adequately protecting its nuclear materials, it has a responsibility to seek and accept international assistance. The problem is that there is no set of requirements to which every nation must adhere, and this makes judging the consistency and adequacy of some nations’ nuclear security difficult. In addition, because of the sensitivity of fissile materials, key countries often resist cooperating with foreign nations and organizations on nuclear security issues.

However, over the years several programs have been developed to assist countries with the protection of their nuclear materials. The IAEA is obviously one extremely important resource. Its assistance is not limited to countries that are signatories of the Nuclear Nonproliferation Treaty (NPT). Any state that is an IAEA member can request assistance.

Nonnuclear weapon states that are a party to the NPT are required to allow IAEA inspections of their civilian facilities and fissile materials stockpiles. But the way in which their protections are implemented are at the discretion of the individual governments, despite specific guidance from the IAEA. In addition, nations with fissile materials and nuclear weapons that have not signed the NPT, like India, Pakistan, and Israel, are not required to allow any IAEA inspections unless they have declared their facilities eligible. Moreover, nuclear weapon states that have signed the treaty, like the United States and Russia, are not required to allow any international inspections, though the United States has on occasion provided the IAEA access to certain facilities as a confidence-building measure.

In addition, the 1980 Convention on the Physical Protection of Nuclear Material, a legally binding agreement to protect civilian nuclear materials, was amended in 2005, requiring states to protect their civilian nuclear facilities and materials and expanding measures to prevent and respond to nuclear smuggling. However, the amendment can only enter into force when two-thirds of the state parties have ratified it. To date, only 31 of 142 countries have done so.

Supplementing these efforts, the United States created the Cooperative Threat Reduction (CTR) program in 1992 specifically to work with Russia and other former Soviet states. While initially focused on activities conducted by the US Department of Defense (DoD), other essential initiatives are run by the Energy and State Departments and are included in this threat reduction category. CTR funding since 1992 has totaled over $10 billion and it has been a critical defense against nuclear weapons proliferation by reducing many of the dangers posed by the massive Soviet Cold War arsenal. Today, the budget for international nuclear security activities is over $1 billion per year and seems likely to continue expanding through the next four years.

The multilateral corollary to the CTR program is the G-8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction. This program was launched in 2002 and its contributors go well beyond the G-8 nations. A goal of this initiative is to generate an additional $1 billion per year for international WMD security activities beyond what the United States is funding. A majority of the non-US funding is devoted to nuclear safety, the environmentally sound dismantlement of excess Russian nuclear submarines, and the destruction of Russia’s chemical weapons stockpile in accordance with the Chemical Weapons Convention (CWC) — not fissile material security.

In October 2006, Russia and the United States created the Global Initiative to Combat Nuclear Terrorism. The Global Initiative is a nonbinding forum for sharing nonproliferation expertise and information and for preventing nuclear terrorism. In three years, this initiative has grown from 13 to 76 member nations. There are also three official observers, the IAEA, European Union, and INTERPOL. In 2009, its members agreed to strengthen the group by promoting greater civil society and private sector involvement.

A more universal approach to WMD security, including fissile materials, was approved in 2004 in United Nations Security Council Resolution (UNSCR) 1540. This resolution was primarily aimed at preventing WMD terrorism by nonstate actors; for the first time, UN member states were bound to take and enforce measures against WMD proliferation. It also required nations to submit reports on their efforts. By mid-2009, 148 states had submitted their reports and over 40 nations had not.

These programs overall have achieved impressive results and have changed the methods by which nuclear security is approached. The traditional focus on treaties and international agreements has been supplemented with ad hoc and flexible bilateral and multilateral mechanisms. As Russia ceases to be the primary focus of securing nuclear materials, both for political reasons and because key objectives are being accomplished, the challenge of preserving and adapting this model to other global needs has arisen. As a consequence, Russia should become a primary partner in the transformation of this effort.

Political and security concerns that delay project implementation have been a prominent obstacle in the cooperation with Russia. Of course, these programs are dealing with extremely sensitive materials, facilities, and personnel. Governments are naturally going to be cautious and security forces are going to have a prominent role in the process. But, the security challenges posed by vulnerable nuclear materials transcend domestic concerns and national borders. If fissile material were to leak from a nation or make its way into the hands of terrorists, that would be an international crisis, not a domestic concern. Therefore, the domestic political requirements need to be balanced against the need for international stability.

The CTR programs have generated a wealth of information and contacts over almost two decades that should not be lost. Many of the lessons learned are applicable to the range of proliferation threats that have emerged around the world. Still, it is important to recognize that each country possessing nuclear materials is different and that tailored approaches will be required for each country’s circumstances. With vision and persistence, creative and unique nonproliferation cooperation with other countries can be developed.

Building a New Global Framework

The 2010 nuclear summit should be used to galvanize international support and financing for an expansion of the existing fissile material security mechanisms and for the creation of new ones. The lead-up to the summit will be critical in bringing together the strands of policy that can be durable and effective in achieving the president’s goal. Galvanizing the international community to face a transnational danger is a unique challenge, in part because of the differing perspectives of countries on the problem and because of domestic political and economic interests. The goals of the summit are already being influenced by the domestic and political agendas of key countries. However, on the issue of nuclear security and nuclear terrorism, there needs to be an international consensus on the danger, despite differing opinions on the solutions.

Outside the United States, and even inside, it has been very difficult to establish the legitimacy of nuclear security activities that are not based on international treaties. But, given the sensitivities surrounding the issue of fissile material possession, it is unlikely that any comprehensive new international agreement mandating specific security measures will be reached in the near future. However, the choice is not between a binding agreement and ad hoc activities. The requirement is for a fusion of the two resulting in the creation of a new framework agreement. As Mohamed ElBaradei, the retiring director general of the IAEA, bluntly stated: “Either we begin finding creative, outside-the-box solutions or the international nuclear safeguards regime will become obsolete.”

Over the past fifteen years, rapid economic globalization has eroded the pillars upon which the nonproliferation regime was built. Many of the new dimensions of the proliferation threat are being propelled by economic integration, energy demand, and the spread of technology. In particular, globalization has fast-forwarded technological advancement around the globe; increased economic interdependence; intensified the competition for energy resources; undercut the ability of big powers to dictate their desires to others; increased incentives for more countries to seek the prestige and benefits of high technologies — including in the nuclear power area; decreased the tolerance for international inequality; eroded the importance of national boundaries; and, fed the lethality and reach of the nonstate threat. The current nonproliferation regime did not anticipate these changes and a next-generation nonproliferation regime is required to better reflect this evolution and strengthen the global capacity to address these new dimensions of the proliferation threat.

The NPT has never been a perfect barrier against nuclear leakage and weaponization. There has been success in preventing and rolling back nuclear weapons efforts. But, undeclared nuclear weapons states like India, Pakistan, and Israel have never been members, North Korea violated and withdrew from the treaty, and Iran has repeatedly violated its treaty obligations. In each of these cases the nuclear programs in these countries have only grown stronger.

The 21st century is imposing new pressures on the nonproliferation regime from several directions. The NPT was never designed to deal with the rising danger of nuclear terrorism and Al Qaeda has stated that obtaining nuclear weapons is a priority goal. Terrorist organizations have proven that they can operate globally, plan quietly, and inflict devastating damage.

In addition, the growing consumption of fossil fuels and the resulting need to reduce global warming is leading developing nations to diversify their energy profile by employing more nuclear power. With this nuclear energy expansion could come the broader use and availability of fissile material. Therefore, energy consumption and demand patterns, not usually factored into proliferation analyses, need to become a more prominent element in these assessments.

The largest growth in nuclear power capacity is expected to come from China, Russia, and India. Countries in the Middle East have likewise signaled a renewed interest in nuclear energy. At present, there are 436 nuclear power reactors in operation around the world and over 50 more under construction. It has been estimated that up to 40 countries possess the technical skills — and some, the nuclear material — required to produce a nuclear bomb. The latest world energy predictions show a 44 percent increase in energy consumption by 2030 if current policies hold, with the majority of the growth expected to come from developing countries. To accommodate this demand, the world’s nuclear-powered generating capacity is expected to increase significantly. If nuclear power spreads at the rate predicted, and there is no ban on the uranium enrichment and reprocessing technologies which can produce HEU and plutonium, global proliferation threats could increase significantly.

In an attempt to gain control of the potential explosion of the most dangerous nuclear technologies, various initiatives have been proposed to restrict their proliferation. The United States has strongly advocated the control of enrichment and reprocessing technologies. The G-8 nations also have proposed a program whereby countries would buy fuel enrichment and reprocessing services from a system of international centers. Similar proposals have been put forth by the IAEA’s ElBaradei and the Nuclear Threat Initiative. However, such ideas face challenges from developing nations. It is not certain that these countries can be convinced to abandon enrichment and reprocessing; many of these countries make the case that under the NPT they are entitled to the technologies.

It is clear that the struggle to contain the technologies that can produce fissile materials and the security of today’s stockpiles cannot be met with any one tool. The treaty regime is limited, the cooperative nuclear security agenda lacks full international legitimacy, and new initiatives, like the fuel bank, have problems. The key to success is to integrate all these valuable nonproliferation components in a way that materially and operationally expands the menu of prevention, management, and response options.

Addressing Global Challenges

In order to facilitate the development of a new global framework for nuclear mate- rial security, it is necessary to refocus from the big picture to the real challenges and to look at the specific countries and regions where such concerns exist. Certainly as it relates to radiological material security and elimination, virtually every country is a target — especially the medical facilities utilizing radioactive medicines. Some nations, however, stand out in terms of concern.

The denuclearization of North Korea is a major international objective that, if it occurs, would require significant multinational involvement. The cost of dismantling the existing nuclear infrastructure in North Korea is estimated to be about $700 million. This would likely be paid by the United States, and the Obama administration has already sought and received some funding for this project. However, if North Korea cannot be enticed to denuclearize and continues to produce fissile materials, it will raise concerns about the size of that stockpile and whether any of that material is being spirited out of the country to aid those who could do harm to its enemies. In addition, a very sensitive but vital issue is ensuring adequate nuclear security in the event of political transition in that country if it is not denuclearized first. These are issues where a regional approach might be useful, particularly if China and Russia were to begin a dialogue with North Korea on the nuclear security progress they have made as a result of cooperation with the United States and other nations.

South Asia is also a growing nuclear hot spot. Both India and Pakistan continue to produce fissile materials for weapons and to increase their nuclear weapons stockpiles.

The US-India civil nuclear cooperation agreement did not address the security of India’s nuclear facilities beyond the IAEA safeguards on its declared civilian nuclear facilities. The Indian government has been difficult to engage on the issue of fissile material security. However, as a non-NPT state that has been given an exception from standard nuclear cooperation rules, India should be more willing to engage in a dialogue about how it can assure the highest safety and security for its nuclear materials and weapons.

Pakistan has been called the most dangerous nuclear state in the world. That is likely an exaggeration and President Obama stated in April that he was “confident” that Pakistan’s nuclear arsenal was being adequately secured by its army. But the terrorist activity in that country, especially attacks on military personnel and the Rawalpindi headquarters, and in Afghanistan, provides good reason for continuing concern. To its credit, Pakistan has taken important steps over the last decade to improve its nuclear security and command and control processes. Pakistan has also been cooperating with the United States on improving its nuclear and border security since 2001. The United States has provided over $100 million for these initiatives. While this work was begun under Presidents Bush and Musharraf, it remains a high priority under the Obama administration.

The US dialogue with Pakistan is facing challenges, which are particularly acute when high-profile charges of nuclear insecurity in Pakistan arise in the Western press. This raises questions of trust between the two and Pakistan is especially sensitive to any suggestion that the United States might seek to remove its nuclear weapons in a crisis. Rather than focus on removal, there should be a dialogue with the Pakistani military and civilian leaders on how United States and NATO Special Forces in Afghanistan could assist with nuclear asset security in an emergency. One additional way to regain this trust is to widen the nuclear dialogue beyond the security issue and discuss the possible resumption of civil nuclear discussions with Pakistan. This could eventually establish the political and technical basis for a criteria-based civil nuclear cooperation agreement that could better integrate Pakistan into the nonproliferation regime.

The Middle East is another volatile region where the interest in nuclear technology is rising and where fissile material security could become a concern. Sixteen nations have already expressed interest in some form of nuclear power and the nuclear fuel cycle. The major danger at present is the growth of the Iranian nuclear infrastructure, which now includes a light water reactor and uranium enrichment capability. The expansion of the Iranian nuclear infrastructure is also a reason for the increased regional interest in nuclear power. However, nuclear growth on a large scale in that region could be dangerous and could far exceed the ability of the IAEA to monitor it effectively.

Finally, the developed world is not immune to nuclear security challenges. For example, the overwhelming majority of fissile materials reside in the United States and Russia and a significant portion of the remaining materials are in developed countries such as France, Britain, and Japan. By law, the United States must periodically visit foreign nuclear sites to verify the protection of US-origin nuclear materials, and it does engage in nuclear materials discussions with other advanced nations. Nonetheless, the United States has its own problems at home. For example, the security at some research reactors using HEU in the United States has been criticized. In addition, Canada, Belgium, and the Netherlands are major medical isotope producers and use tens of kilograms of HEU each year. Stopping the use of HEU for this purpose and in research reactors is a major US policy objective, but this goal faces significant objections from some countries. There is terrorist activity in all developed nuclear states and these terrorists need to be denied access to dangerous nuclear materials. Overall, developed nations do invest significantly in their own nuclear security and have strengthened their own nuclear security regulations and procedures since 9/11. But, nuclear security vulnerabilities in the developed world still exist and need to be taken seriously.

Building Consensus for New Policies

There is no international framework agreement on fissile material security and, as a result, no organizing force to drive the agenda. Establishing global fissile material security as a top-level international objective will require international consensus on new policy initiatives. Some well established ideas like the Fissile Material Cutoff Treaty are already under discussion at the UN Conference on Disarmament, but others will need to be approved and implemented in a less formal fashion than an international treaty. How to establish the legitimacy of these new initiatives will be a critical challenge.

Creating a framework agreement that identifies the threats to mankind from vulnerable fissile materials, especially those posed by terrorists — and actions to mitigate them — is one important objective that merits consideration. A framework agreement would allow the subject to be acknowledged as a global priority at a very high political level and enable specific steps to be taken to ensure that it is achieved as an international imperative. It will also be essential that any new framework look beyond the obligations and capacities of government and enlist civil society and the private sector as partners in this process.

President Obama, in his chairing of the UN Security Council Summit on Nuclear Nonproliferation and Nuclear Disarmament in September, pointed to one path for establishing this framework and its legitimacy. There he achieved unanimous approval from the Security Council for Resolution 1887. It calls upon states to take actions that will support the effectiveness of the NPT. However, the goal of securing all vulnerable nuclear materials in four years is only mentioned in a paragraph near the end of the document. The resolution does not include any specific steps to be taken. To address this one option is to create a follow-on resolution that provides a framework for consensus on the goal of securing all fissile material worldwide and that outlines specific new steps that states could agree to undertake.

Alternatively, there is the example of the United Nations Framework Convention on Climate Change, which entered into force in 1992. This convention established protection of the climate system as a long-term objective. Subsequent actions guided by the convention have been aimed at mitigating the impact of climate change on the global environment. This could be a model for a fissile material security framework agreement. It would allow for agreement on the threats, goals, and challenges and then require periodic international meetings on specific implementation steps. These meetings could focus on review of implementation progress, discussion of the evolving threat, and policy modifications and additions. Such a continuous dialogue would generate pressure and incentive for countries to take action and demonstrate their commitment.

A New Policy Agenda

In either of these models or any other formulation, it will be important to frame the mission in twenty-first century terms and to ensure that the new policy actions are relevant to the evolving threat. It will also be important to move quickly to meet the four-year goal. Achieving agreement on these actions is likely to be fraught with controversy, but each should be evaluated by criteria that judge its contribution to global security. Experts around the globe have put forth many proposals to improve the security of global fissile material. Below is a menu of policy initiatives that are ripe for implementation and could be included in a new framework agreement.

• Create a Global Nuclear Material Security Road Map. This road map should be based on measurable benchmarks of vulnerability and proven security upgrades. It does not necessarily have to be a public document, but it should be a consensus document that identifies the priority locations, ranked highest to lowest, and provides the financial and technical resources to correct problems as quickly as possible. The road map should be supplemented with a plan for international scientific cooperation to prevent nuclear theft and terrorism.

• Accelerate Efforts to Secure and Eliminate Global HEU and Plutonium Stockpiles. There are several essential policy objectives that should be pursued: 1) minimizing the number of locations at which fissile materials are stored through elimination and consolidations (including down blending the maximum amount of excess military and civilian HEU); 2) improving security at all locations; 3) reducing the size of global fissile material inventories; and 4) extending international monitoring over all remaining excess military and civilian stockpiles.

• Minimize and Then Eliminate the Use of HEU. There is significant opposition from some nations to phasing out the use of HEU. For some, it is the need to maintain medical isotope production, for others the need to perform experiments, and for others the use of the fuel in naval propulsion. Nonetheless, HEU is the fissile material most vulnerable to exploitation by terrorists and, in particular, its use in civil applications heightens this danger. UNSCR 1887 calls upon states to “minimize to the greatest extent that is technically and economically possible” the use of HEU. That leaves a wide margin for its continued use. Technological advances are producing fuels that can replace HEU even in the most difficult cases and, there- fore, international agreement should be reached on a timetable for a phase-out and ultimate ban on the civil use of HEU. Further discussions should then be held on its phase-out in military and naval applications on a global basis.

• Secure All Radiological Sources in Hospitals. Radiological sources are in use in every major metropolitan hospital in the world and they pose a danger if they fall into the wrong hands. The NNSA has completed a pilot project with the Hospital of the University of Pennsylvania whereby all of its radiological sources were made more secure and cooperation with the local authorities was initiated. The administration and the international community should build on this important success and commit to securing the radiological materials in each of the approximately 500 major metropolitan hospital buildings in the US and all those abroad.

• Pursue Sufficient Nuclear Security Funding. There are several funding elements to be considered. The first is funding for the IAEA. The Obama administration has promised to double the US contribution to the IAEA over its four-year term. Yet this increase is not specifically designated for improving nuclear security. The funds can also be used to promote the peaceful uses of nuclear energy and administrative costs. More funding is needed specifically for nuclear facility safeguards. There already is insufficient funding to meet all the requests of IAEA member states for safeguards assistance. As nuclear power expands, more requirements will be placed on the IAEA to provide safeguards assistance and inspections. The US NNSA contributes about $50 million annually to the IAEA for nuclear security training and support, but this amount should be increased and be matched by other wealthy nations.

The United States should also increase funding for the NNSA’s Global Threat Reduction Initiative and International Nuclear Materials Protection and Cooperation programs which implement the bulk of the United States’ international fissile material security efforts. Over the next four years, the Obama administration should ensure that the international community’s collective contribution equals the yearly US expenditure for international nuclear material security.

Additionally, consideration should be given to creating a Nonproliferation Enterprise Fund. This fund would allow government programs to partner more effectively with the nongovernmental and university communities to assist them with nuclear and nonproliferation analysis, including assessing the implementation of any nuclear summit commitments. A part of this fund also could be dedicated to the development of “the next generation of nonproliferation experts” who would be required to perform some government service in return for educational and training support.

• Develop Private-Public Partnerships for Nonproliferation Funding. There is a need to look beyond purely governmental structures and address opportunities for partnership among government, civil society, and the private sector to come together to create innovative nuclear nonproliferation solutions. One proposal is for the nuclear industry to contribute to a nonproliferation fund that could increase funding for the IAEA’s activities or could be used for other nonproliferation purposes. One option for garnering contributions is a requirement for the nuclear industry to contribute a portion of one percent of every dollar in direct government subsidy for new nuclear power plants to the nonproliferation fund. Alternatively, if a nation provides loan guarantees for new nuclear plants, the industry would pay a small percentage of the underwriting costs of the guarantees to the nonproliferation fund. Another proposal is to require utilities to contribute a small portion of a percentage of the price of each nuclear-generated gigawatt hour to the nonprolif- eration fund. These options are estimated to generate from $80 million to $300 million per year on a global basis.

The nuclear power industry should not view these ideas as onerous. They are similar to the responsibilities that government has levied on the nuclear industry to deal with the issue of waste management. In this case, it would link the nuclear power industry to the security dialogue, recognize explicitly the security implications of the expansion of nuclear power, offer a reputational benefit for the nuclear power industry, and increase the pool of funds available for addressing nuclear security challenges.

• Extend and Expand the G-8 Global Partnership for Another Ten Years. The G-8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction has been a successful effort to secure WMD primarily in Russia. The multilateral character of this initiative must be preserved but its focus expanded globally, beyond Russia. The Global Partnership, either in its existing configuration or as an expanded ad hoc multilateral initiative, should continue beyond its 2012 expiration. Ideally, this would be done at the 2010 G-8 meeting in Canada. The expanded focus of the Global Partnership should be globally on nuclear and other WMD security issues and assisting developing nations to meet their UNSCR 1540 and 1887 obligations. The Global Partnership should also continue to provide financing on the order of $20 billion over ten years.

• Create a Multilateral WMD Emergency Rapid Reaction Force. The Proliferation Security Initiative has proven the value of conducting multilateral training and actual interdiction of WMD components at sea. But the concept has been limited in scope and practice to addressing dangerous WMD materials in transit. This concept of an ad hoc multinational group should be expanded resulting in the creation of an international force that would allow for quick and coordinated multilateral action in the face of a nuclear emergency or disarmament opportunity. The existence of such a group would allow, in advance of a crisis, for the clear delineation of the roles and responsibilities among agencies and partner countries based on threat/opportunity scenarios. It also would identify dedicated funding for operational, transport, integrated training, and related issues. It would also allow for all the necessary legal authorities to be put in place for the rapid extraction and return of foreign nuclear assets or materials to the United States or other countries if necessary.

• Create Regional Nuclear Training Centers. The United States and Russia, in the course of their collaboration on nuclear security improvement, have created several regional nuclear training centers in Russia. These centers have become hubs of expertise and training for nuclear facilities in need of security improvements. This effort should be expanded with the establishment of regional training centers in other key areas around the globe. The new centers would cultivate a local security culture; improve efficiency by consolidating training courses rather than repeating training to multiple audiences; and provide ready access to best practices information for new partners. While the centers could be initiated with US funding, eventually they could be supplemented or fully supported by Global Partnership nations and the IAEA. Ultimately, these centers could expand their mission to include regional nuclear monitoring that could supplement IAEA activities.

• Establish Real-Time Monitoring of Nuclear Materials Security. The IAEA manages an Incident and Emergency Center to monitor nuclear reactor safety around the globe, but the reporting is not done in real-time. While this allows for information on nuclear dangers to be reported, it precludes a real-time rapid reaction to threats. This concept could be expanded to nuclear materials security. It could include satellite uplinks on all portal monitors and perimeter security equipment that would provide real-time reporting on its operational status and immediately log security alerts and breaches at all civilian facilities that are monitored by the IAEA. A monitoring center could be manned by rotating international experts. The goal would be constant real-time monitoring of all nuclear facilities under safeguards (IAEA or domestic) and rapid global alerting and response to security breaches.

This idea could also be expanded to nuclear weapon states that are not subject to IAEA monitoring. Because of the sensitive location of much of the security equipment in these states, the information could be downloaded to a permanent five weapon states monitoring center that could be manned jointly by specialists from all five nations. This could be supplemented with a multiparty nuclear security hotline that would allow for immediate communication surrounding suspicious incidents. Such a connection already exists between the United States and Russia to reduce the risk of a nuclear exchange stemming from accident, miscalculation, or surprise attack. These proposals are likely to meet stiff resistance from the nuclear bureaucracy in many states, but that should not be a deterrent to action in support of greater nuclear security.

In addition to these ideas, which need to be implemented on a multilateral basis, there are some important domestic actions that the Obama administration and the US Congress should take to move this agenda forward. These include:

• Provide all relevant programs with “notwithstanding authority” for 10 percent of their total yearly budgets for contingency purposes.

• Ensure that all relevant programs have the authority to receive contributions from foreign governments, the private sector, and nongovernmental organizations for specific nonproliferation objectives.

• Allow for accelerated transfer authority among agencies to meet unforeseen challenges quickly.

• Issue a presidential decision directive on Nuclear and Radiological Material and Facility Security Prioritization including policy objectives, funding needs, specific agency responsibilities, and success metrics. The directive should include:

Assigning specific tasks to specific agencies for emergency/contingency nonproliferation operations (for example, require DoD to provide and pay for airlift in a timely fashion and identify technical specialists for missions).

Legitimizing intangible benefits as metrics of the threat reduction mission (including relationships and partnerships).

• Amend the Foreign Assistance Act to permit funding for nonproliferation projects in sanctioned nations.

• Declare a policy to minimize plutonium reprocessing.

• Fund a National Academy of Sciences study on the conversion of naval propulsion from HEU to LEU.

Conclusion

Within six months of taking office, President Obama committed the United States to one of the most essential and ambitious policies for protecting the globe from nuclear terrorism and has taken steps to implement it. He has made a commitment to secure all vulnerable nuclear material in four years, scheduled a heads-of-state level nuclear security summit for April 2010, and worked with the UN Security Council to achieve approval of Resolution 1887. However, the administration’s actions to date have only been a necessary prelude to more aggressive and intensified international action. Now the hard work of hammering out new policies, generating sustainable funding streams, and implementing new security measures must begin. Securing all vulnerable nuclear material in four years is a necessary global security objective and the maximum effort must be made to achieve it, both in the United States and internationally.

World Federalist Institute Fellow James Ranney, JD (Harvard), is a retired law professor who also has practiced law and served as Assistant District Attorney in Philadelphia and University Legal Counsel at the University of Montana. He founded Montana Lawyers for Peace, co-founded the Jeannette Rankin Peace Center, and more recently founded a nonprofit organization called “Global Constitution Forums”, which “essentially believes in the value of dialogue and education in solving global problems”.

Mr Ranney is looking forward to reading another WFI Fellow’s forthcoming book, Apocalypse Never: Forging the Path to a Nuclear Weapon-Free World, by Tad Daley (Rutgers University Press, Spring 2010).