Journal of InternatIonal ServIce Volume 21 | Number 1 | SpriNg 2012

i Letter from the Editor Maanasa K. Reddy

1 Women’s Political Participation in Sub- Anna-Kristina Fox Saharan Africa: Producing Policy That Is Important to Women and Gender Parity?

21 Russia and Cultural Production Under Alina Shlyapochnik Consumer Capitalism

35 Somaliland: A Model for Greater Liat Krawczyk Somalia?

51 Regulatory Convergence and North Inu Barbee American Integration: Lessons from the European Single Market

75 Elite Capture or Capturing the Elite? The Ana De Paiva Political Dynamics Behind Community- Driven Development

85 America’s Silent Warfare in Pakistan: An Annie Lynn Janus Analysis of Obama’s Drone Policy

103 Asia as a Law and Development Exception: Does Indonesia Fit the Mold? Jesse Roberts

119 Islamic Roots of Feminism in Egypt and Shreen A. Khan Morocco Knut Fournier

Letter from the Editor

Maanasa K. Reddy

Dear Reader,

Many of my predecessors have lamented the Journal’s lack of thematic coherence; I believe that this, the 20th Anniversary, issue has taken a step forward. The first and last articles of the issue discuss gender and feminism, which you may point out isn’t really thematic coherence. This is true; however, I am proud to present a Journal comprised of eight articles, written by eight incredibly talented female authors and one equally talented male co-author on a variety of international service issues. The Journal receives many submissions for every issue with about a 45/55 split from males and females respectively, according to data from the past three years of submissions. The selection process is blind, with respect to identity and gender, and all selections are based on the merits of the writing and relevance of the content. The staff that made these selections had an equal number of male and female students. Thus, I feel it is important to pause and consider the importance of this moment. My own personal interest in studying at the School of International Service with a concentration in International Development stemmed from a desire to advocate for better refugee camp infrastructure in camps around the world, particularly with regard to better serving the needs of women and children in such camps. The students at SIS both male and female have a plethora of interests and I am pleased about the thematic emergence of the issue for two reasons—beyond my own personal academic pursuits. First, this field, which has historically been dominated by white males, appears to be experiencing a surge of talented females. This surge is creating a needed diversity in problem solving that will include both genders concerns. Second, of the articles selected, two of the eight concern women’s rights and feminism. I believe that this selection reflects a relevance and importance of these issues, which I hope grows to be the norm in a short period of time. This Journal has accomplished much in the past 20 years, and had acted as a forum for students to explore and share their ideas, interests, and passions, all while evolving to reflect on the School of International Service and the state of world affairs. As such, I could not be more ecstatic about the issue before you now.

Best,

Maanasa K. Reddy Editor-in-Chief [email protected] Journal of International Service

Abstracts

WOMEN’S POLITICAL PARTICIPATION IN SUB-SAHARAN AFRICA: PRODUCING POLICY THAT IS IMPORTANT TO WOMEN AND GENDER PARITY? Anna-Kristina Fox

This paper examines whether increased numbers of women and legislative quotas produce policies that enhance the lives of women and girls and contribute to gender parity. Analyzing a cross-national time series of all Sub- Saharan African countries, this paper concludes that while enhanced numbers of women in legislative office may at first produce unanticipated effects on policy outcomes, negative impacts seem to disappear and positive effects on social rights for women begin to emerge over time. In contrast, quotas adopted voluntarily by political parties as well as by legal mandate surprisingly yet consistently produce desirable results on education and mortality rates but negative impacts on social rights for women. While the results of this study vary, it seeks to start a conversation regarding the impact of increased numbers of women in government on policy outcomes.

RUSSIA AND CULTURAL PRODUCTION UNDER CONSUMER CAPITALISM Alina Shlyapochnik

The article analyzes the effects of recently introduced capitalism on post-Soviet Russian society; a society that abruptly lost its dominant belief system in the collapse of the USSR, and appears both highly susceptible and averse to capitalism’s foreign notions. Looking at western capitalism’s embedded mode of cultural production through the market, the article examines how it has influenced the values, ethics, and desired lifestyles circulating in Russian discourse and practice. In analyzing this question, the author compares the characteristics of western capitalism and its mode of disseminating ideas with those of the Russian society that received them. The article further focuses on advertising, analyzing the types of commercials that are currently produced and broadcast, and, through opinion poll data and secondary sources, analyzes the related attitudes and lifestyles that have manifested themselves among the population. With an incomplete market transition and persistent government control, the Russian culture industry’s terrain is less dense than that of its western counterparts, and this article argues that certain plainly distinguishable extremes as well as hybrid cultural forms have taken shape there.

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SOMALILAND: A MODEL FOR GREATER SOMALIA? Liat Krawczyk

This paper explores whether Somaliland can offer prospects for alternative peace- and state-building models in greater Somalia. It begins by outlining Somaliland’s development path and delineating the characteristics that led to its success. These include an organic, bottom-up peace- and state-building process, long-term reconciliation efforts, and the formation of a hybrid state that borrows modern elements while incorporating traditional institutions. It then explores southern Somalia’s resistance to peace- and state-building measures. In particular, it explores the zero-sum mentality towards state control stemming from a legacy of state repression and political fragmentation under the Barre administration. Finally, it aims to distinguish which peace- and state-building characteristics are particular to Somaliland and can only work in its context, and examines conceptual and practical lessons for greater Somalia. Unique traits that have allowed for Somaliland’s success include the strength of traditional institutions, lack of foreign aid, relative homogeneity, and a distinct colonial history. Similarly, southern Somalia’s distinct context requires responses such as a systems- rather than a state-based approach to governance. Yet, some lessons can be extrapolated from Somaliland and applied in the greater Somali context—in particular, the importance of pursuing peace-building efforts prior to state-building.

REGULATORY CONVERGENCE AND NORTH AMERICAN INTEGRATION: LESSONS FROM THE EUROPEAN SINGLE MARKET Inu Barbee

Canada, Mexico, and the United States are partners in an incomplete and at times uneven integration process. At the heart of NAFTA’s many challenges are regulatory differences that have plagued the economic relationship since its inception. In this regard, much can be learned from the European Union, and more specifically, its drive for regulatory convergence through the revitalization of the single market program. An assessment of the North American approach to regulatory convergence, examined comparatively to the EU, will shed light on possibilities for reform and a way forward. A discussion of the unique institutional imperative of EU institutions and their relationship with the member states will be central to this analysis, serving to highlight that NAFTA’s weakest point is the lack of institutional prerogative and continuity at the bureaucratic level, coupled with insubstantial political leadership from above.

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ELITE CAPTURE OR CAPTURING THE ELITE? THE POLITICAL DYNAMICS BEHIND COMMUNITY-DRIVEN DEVELOPMENT Ana De Paiva

Since the mid-1990s, community-driven development (CDD) has been hailed as a promising solution to the notoriously ineffective top-down approaches of development assistance. This article will scrutinize an aspect of CDD not often discussed at length by practitioners: the problem of elite capture of benefits. The paper draws on important works and case histories to assess the phenomenon from varied angles, and to offer a comprehensive review of elite capture based on the “4 Ws”: when it tends to happen, why, who does the “capturing,” and where it has (or has not) been recorded. Additionally, it will propose that the type of elite in power determines whether projects have beneficial outcomes for the entire community. Finally, it will suggest ways to circumvent the problem, including by “capturing the elite,” with a special role for CDD project facilitators and participatory action research.

AMERICA’S SILENT WARFARE IN PAKISTAN: AN ANALYSIS OF OBAMA’S DRONE POLICY Annie Lynn Janus

In addressing the transnational threat that Pakistan’s safe havens pose, the Obama administration has been grappling with the problem of finding a means to wage war in the Federally Administered Tribal Areas (FATA), where political, physical terrain, and cultural elements greatly limit U.S. tactical options. The Administration’s current solution has been to use a CIA-led drone program to attack militants in Pakistan. Despite increased drone attacks, however, there has been a spike in violence and suicide bombing in Pakistan. In light of the increased violence, the Obama administration should reconsider its approach to the problem. The Administration should discontinue the drone strikes in Pakistan and adopt a policy program based on counterinsurgency principles, aimed at suppressing militants by denying them the movement, funds, and conditions needed for militant operations.

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ASIA AS A LAW AND DEVELOPMENT EXCEPTION: DOES INDONESIA FIT THE MOLD? Jesse Roberts

According to law and development scholars, there appears to be widespread agreement that the “rule of law” is good for everyone. Brian Tamahana claims, “no other single political ideal has ever achieved global endorsement.” The idea that development is dependent on adherence to laws is as old as Plato, who said that lawlessness harms contracts. But many scholars are beginning to take note of an exception to this universally positive correlation, calling into question such a “global endorsement.” The rule of law has been conspicuously absent from many Asian development success stories, and so many westerners are wondering if perhaps it is time to create a new model for development. The example of Indonesia’s course of development and coinciding political structure sheds light on an important question for western law and development scholars: is Asia the exception or the new rule?

ISLAMIC ROOTS OF FEMINISM IN EGYPT AND MOROCCO Shreen A. Khan & Knut Fournier

This paper documents the evolution of feminist works and struggle in the dual spheres of Islam and the Middle East, focusing on Morocco and Egypt. Foundational support for women’s advancement in Islam can be traced to Islam’s inception in the 7th century AD. Conservatism, first rejected by Islam, also evolved to become an instrument of social change. In post-colonial contexts, conservatism opposed the import of foreign and culturally dissonant notions of gender relations, the presence of which subverted domestic feminist constructions. This paper will explore ideological constructions of far ends of the Islamic interpretive spectrum, the puritanical Wahhabists on one end and progressive and mainstream Muslim social scientists and leaders on the other. Throughout Islam’s history, scholars and lay people have sought to deconstruct misogynous interpretations and divide cultural interpretation from the tenets of the faith. Today's debate on women’s roles and livelihood in the Middle East North Africa region take place in a globalized and decolonized context, in which the image of women results from a composite constructed narrative. These empirical definitions impact current women's rights in the region, specifically through laws on marriage and family. These laws offer both a danger and an opportunity for feminist advancement, in the context of the Arab Spring.

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Women’s Political Participation in Sub-Saharan Africa: Producing Policy that is Important to Women and Gender Parity?

Anna-Kristina Fox

INTRODUCTION

For many years, international organizations have advocated for increasing women’s political participation in the hopes that increased seats for women will generate greater public policy enhancing women’s political, civic, economic, social, and cultural rights. Scholars and practitioners conclude that women office-holders are more likely to be sensitive to women’s interests, and may therefore be more receptive to and aggressive in pursuing development goals important to gender equality such as healthcare and education. In the context of Sub-Saharan Africa, women leaders are often credited with initiating and passing reforms in gender violence, inheritance laws, and land rights. However, some practitioners argue that alternative reasons are responsible for reforms in these areas, such as the treatment women leaders receive by political parties, societal attitudes towards women, and the mobilization of women’s grassroots organizations. Others find that emerging women parliamentarians are subject to the same pressures as their male colleagues to follow party lines or that of the executive branch, such that they do not make a noticeable effect on policymaking. While much scholarly research has examined mechanisms such as quotas and conditions that advance women’s political participation, research concerning the effect of higher increases of women in government and

Anna-Kristina Fox is a dual law and master’s degree candidate at the American University Washington College of Law and School of International Service. During her program she interned with the Foreign Policy division at the Brookings Institution, Human Rights USA, and the Office of Immigration Litigation Appellate at the Department of Justice. At the Washington College of Law she worked as a Dean’s Fellow for Professor Shalleck, and is currently a publications editor for the Journal of Gender, Social Policy & the Law and a student attorney for the Women and the Law Clinic. Before starting her program, she worked for the Senate Energy Committee, and interned with Congressman John Conyers Jr., the National Democratic Institute, and Vital Voices Global Partnership. She graduated Phi Beta Kappa from the University of California at San Diego and wrote her senior honors thesis on elections and civil violence in Sub-Saharan Africa. Journal of International Service

quotas on legislative policy outcomes only began to emerge in individual case studies. The research question then emerges: Does an increase of women in government make a noticeable difference on policy outcomes important to achieving gender parity? This essay seeks to examine whether higher numbers of women in parliament and legislative quotas translate into policy outcomes that enhance the lives of women and girls and strengthen their communities. Part II of this essay examines various institutions and conditions that scholars deem necessary for women’s political participation to advance. Part III explains my hypotheses, the variables used in a cross-national time series to test these theories, and why various data were selected to represent those variables. Part IV examines the statistical analysis and makes observations based on those findings. Part V makes conclusions and suggestions for further study.

BACKGROUND

Increasing women’s political participation is important because an increased presence of women in government contributes to the realization of parity democracy, where women and men are equally represented and produce more thorough policy discussions.1 Moreover, the increased visibility of women in decision-making roles advances how society views women’s leadership potential generally.2 Moreover, the inclusion of traditionally marginalized groups such as women fosters greater political legitimacy.3 (Norris 2008, 107– 108; Reynolds 1995, 91) Much of the recent literature on women in politics focuses on various mechanisms and conditions that increase the number of women in government. One set of institutional mechanisms that many scholars emphasize are election rules.4 Quotas, incorporated within constitutions or by statute, are structures that may quickly and dramatically increase the number of women in legislatures.5

1 Galligan, Yvonne. "Review: Gender and Political Representation: Current Empirical Perspectives." International Political Science Review 18, no. 5 (Nov. 2007): 557-70. 2 Par Zetterberg, “Do Gender Quotas Foster Women’s Political Engagement? Lessons from Latin America,” Political Research Quarterly 62, no. 4 (2009): 715; United Nations (1995), Beijing Declaration and Platform for Action: United Nations Fourth Conference on Women, available at http:www.un.org/womenwatch/daw/beijing/platform/. 3 Pippa Norris, Driving Democracy: Do Power-Sharing Institutions Work? (Cambridge: Cambridge University Press, 2008), 107–108; Reynold, Andrew. “Constitutional engineering in Southern Africa,” Journal of Democracy 6, no. 2 (1995): 86-99. 4 Hannah E. Britton, “Coalition Building, Election Rules, and Party Politics: South African Women’s Path to Parliament,” Africa Today 49, no. 4 (2002): 44; Pippa Norris, “The Gender Gap in Britain and America,” Parliamentary Affairs 38 (1985): 192–201, and Politics and Sexual Equality (Boulder, CO: Rienner, 1987). 5 Britton 2002, 48; United Nations 1995.

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While many acknowledge the important contribution that formal democratic institutions, particularly election rules such as quotas, may have on women’s political participation and advancement in individual countries, various scholars have stressed that other conditions have a more significant impact on participation. For example, some scholars have emphasized that democratic transitions following civil wars and regime changes create new opportunities for women’s leadership and advancement.6 Participation in women’s groups and associations during transition periods provides women leaders with the professional skills and network ties necessary for becoming successful advocates.7 Moreover, the heightened visibility of women’s participation in society often “breaks” traditional gender roles such that society becomes increasingly comfortable with having women leaders.8 While scholars identify certain instances where women’s mobilization did not translate into greater political freedoms for women after a political transition, many note that in recent years, women’s groups have become highly influential in pushing for reforms that favor women.9 Furthermore, other authors suggest that other democratic institutions, such as the election system and political parties, play significant roles in facilitating women’s political participation.10 Scholars have concluded that political parties are more likely to place female candidates on party lists in proportional representation systems than a plurality system with single- member districts, because in a list system parties seek a diverse set of candidates to appeal to a broad group of voters.11 In a plurality system, party leaders may view female candidates as a risky all-or-nothing bet.12 Alternating between placing male and female candidates on closed-party lists, and thus “zippering” female candidates into the electoral ballot in a country with a proportional representation electoral system, may therefore increase the number of women placed on ballots and potentially voted into office. Moreover, political party support can be an important contributor to women’s political advancement in societies that recently experienced conflict; after democratic transitions, social movements often lose momentum, whereas

6 Jocelyn Viterna and Kathleen M. Fallon, “Democratization, Women’s Movements, and Gender Equitable States: A Framework for Comparison,” American Sociological Review 73, no. 4 (2008): 671; Sheri Kunovich, “The Representation of Polish and Czech Women in National Politics: Predicting Electoral List Position,” Comparative Politics 35, no. 3 (2003): 273–291. 7 Viterna and Fallon 2008, 671. 8 Ibid. 9 Ibid., 671, 683; Britton 2002, 35. 10 Pippa Norris and Joni Lovenduski, Gender and Party Politics (London: Sage, 1993). 11 In a proportional representation system, the percentage of seats a party wins generally reflects the percentage of votes cast for them. In a plurality electoral system, the candidate with the most number of votes wins, and the votes for the other candidates are “wasted.” Institute for Democracy and Electoral Assistance. Electoral System Design: the New International IDEA Handbook (2006): 27–29. 12 Britton 2002, 46.

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political parties may control access to state resources.13 One party’s adoption of mechanisms promoting women can serve as a model and build pressure for others to adopt similar internal policies.14 However, while some parties outwardly express a commitment to women’s advancement, those parties may not adopt more women-friendly reforms than others in practice.15 Moreover, policies and practices adopted by political parties regarding women’s empowerment may reflect rather than shape prevalent cultural attitudes towards women’s leadership.16 In addition, much of the literature on women’s political participation explores the role of cultural attitudes on opportunities for women’s leadership. For instance, Ronald Inglehart, Pippa Norris, and Christian Welzel explore the causal relationship between traditional cultural attitudes and women’s representation.17 Others conclude that liberal attitudes and acceptance of modern norms are crucial conditions for women to become elected.18 When women start gaining positions of power, societies become more comfortable with women government leaders; the number of women office-holders may grow in turn as societies become increasingly comfortable with their presence in government over time.19 Finally, some authors credit the international women’s movement for the global increase in women’s political participation. Many authors observe that international initiatives and conferences heightened the visibility of women’s leadership and allowed women activists to participate in information- sharing at critical moments.20 In South Africa, networking with academics while learning best practices from activists from other countries provided women’s organizations with critical tools for advancing various political reforms for South African women during the democratic transition.21 However, some authors caution that the goals of the international women’s movement may be at odds with that of grassroots women’s mobilization, particularly in Africa.22 Nonetheless, scholars generally agree that the global women’s movement has in many instances facilitated more opportunities for women

13 Viterna and Fallon 2008, 671. 14 Britton 2002, 52–53. 15 Britton 2002, 51. 16 Kunovich 2003, 277. 17 Ronald Inglehart, Pippa Norris, and Christian Welzel, “Gender Equality and Democracy,” Comparative Sociology 1, no. 3–4 (2003): 321–346. 18 Ibid. 19 Miki Caul Kittilson, “Political Parties and Candidate Gender Policies: A Cross-National Study,” Journal of Politics 63, no. 4 (2001): 1214–1229. 20 Rebecca Tiessen, “Small Victories but Slow Progress: An Examination of Women in Politics in Zambia,” International Feminist Journal of Politics 10, no. 2 (2008): 200. 21 Britton 2002, 45–46. 22 Mikell notes that in the 1990s, as African women emerged as leaders in transitioning states, many were “concerned with resisting what many saw as western hegemony in the guise of international feminist support.” Gwendolyn Mikell, “African Feminism: Toward a New Politics of Representation,” Feminist Studies 21, no. 2 (Summer 1995): 409.

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leaders to share experiences and heightened attention on women’s political participation worldwide. This information-sharing may contribute to greater experimentation with institutional design and support for conditions that increase the number of women in government. In sum, many scholars have begun to explore how various political institutions, rules, and actors facilitate women’s political participation. Others have begun to research how women’s political participation affects cultural attitudes about women. A few have started individual case studies examining the role of women on policy development.23 However, scholars have observed that the current research does not systematically examine “what, if any, substantive qualitative impact on policy the new influx of women in office has in fact had.”24 In her book Driving Democracy: Do Power-Sharing Institutions Work? Pippa Norris writes that minority groups holding office are more likely to reflect the unique needs and demands of their constituency, and that their voice in government is a crucial means of making their case heard.25 She states that various political institutions, particularly election rules, may facilitate minority participation in government and increase their voice in the democratic process.26 This paper seeks to test Pippa Norris’s arguments regarding minority participation, and build upon her work on women in European parliaments, by examining whether increased numbers of women in parliament and mechanisms reserving seats for women translate into policy outcomes that improve gender parity and the well-being of women and girls. While the increase of international women’s participation in legislatures is a relatively recent phenomenon, it is worth examining possible trends regarding the impact of increased women’s political participation on public policy. Many states in Sub-Saharan Africa have legislative quotas, a history of recent democratic transitions, and active women’s grassroots organizations. The Millennium Development Goals identified women’s education and maternal health as key policy targets, particularly in Africa.27 In addition, social and economic rights

23 In 2003, Rwanda adopted a new constitution reserving 30 percent of seats in all “decision-making organs” for women. Some scholars attribute the passage of a comprehensive gender violence bill in 2007 to the near-50 percent of women in the legislature. Claire Devlin and Robert Elgie, “Effect of Increased Women’s Representation in Parliament: The Case of Rwanda,” Parliamentary Affairs 61, no. 2 (2008): 237–254; Rebecca Tiessen, “Small Victories but Slow Progress: An Examination of Women in Politics in Zambia,” International Feminist Journal of Politics 10, no. 2 (2008): 200. 24 Britton 2002, 56. 25 Norris 2008. 26 Ibid. 27 United Nations Millennium Development Goals. “Goal 2: Achieve Universal Primary Education, 2.A Ensure that, by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling,” available at http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15%20- low%20res%2020100615%20-.pdf#page=18; “Goal 3: Promote Gender Equality and Empower Women, 3.A. Eliminate gender disparity in primary and secondary education, preferably by 2005, and in all levels of education no later than 2015,” available at

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such as equal access to inheritance, accountability for gender violence, and land reform are major policy areas of importance to women leaders across Africa. A cross-national study of Sub-Saharan Africa may therefore be an ideal case for examining the effects of increased women in parliament and electoral mechanisms on women-friendly public policy such as education, maternal and infant health, and other social and economic rights.

DATA

In this section, I will discuss how I tested two hypotheses: 1) women’s political participation produces more women-friendly policy in Sub-Saharan Africa, and 2) rules facilitating women’s political participation, including legal quotas that reserve a percentage of legislative seats for women, produce more women- friendly policy in Sub-Saharan Africa. To accomplish this, I used Pippa Norris’s 2009 Democracy Time-Series Dataset, described in her book Driving Democracy, to create a cross-sectional time series of Sub-Saharan African countries from 1990 to 2005.28 To test the effects of women’s political participation in Sub-Saharan Africa on women-friendly public policy, I used two independent variables.29 First, I looked at measures for women’s political participation by examining the percentage of women in the lower house of parliament in 1990 and 2003.30 I also tested the effect of legal quotas, created by both the legislature and the constitution, for advancing the number of women in a legislature.31 This indicator also captured reserved seats for women created by the constitution and the legislature. Both legal quotas and reserved seats reflect the percentage of seats reserved for women. To test the strength of my hypotheses, I incorporated several commonly used control variables into my analysis. I used gross domestic product (GDP) per capita (current prices on the U.S. dollar) to examine the http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15%20- low%20res%2020100615%20-.pdf#page=22; “Goal 5: Improve Maternal Health,” available at http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15%20- low%20res%2020100615%20-.pdf#page=32. 28 Norris 2008. While many of the countries in Norris’s dataset have data starting in 1971, most of the African countries had data for the variables I was testing only from 1990 to 2005. While ten to fifteen years is not a very robust sample size, because women’s political participation is still a relatively recent phenomenon, this paper seeks to see whether any trends have emerged even within these recent years. 29 I also tested the effects of reserved seats for women on women-friendly policies. Since the scope of this paper appeared to be getting too wide, the results are not analyzed in this paper. However, they can be found in Tables 7 and 8, located in the Appendix. 30 The Norris dataset borrowed these measures from studies by the United Nations Development Fund and the Inter-Parliamentary Union. 31 These data were also included in the Norris dataset, and were borrowed from the Quota Project. For more information regarding legal quotas and the measures used for this variable, please see the Quota Project homepage at http://www.quotaproject.org/aboutProject.cfm#quotas.

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effect of state resources and modernization on women-friendly policy.32 In addition, I tested whether history of colonization impacts women-friendly policy, by using an indicator included in the Norris dataset and borrowed by the CIA Factbook indicating whether a country is a former British colony. I also used an indicator for legislative effectiveness to test how a well-functioning legislature impacts women-friendly policy. These data were also in the Norris dataset, and also borrowed from Arthur Banks’s CNST database. In addition, I used several controls to test the alternatives to my hypotheses supported by existing literature, as described in Part I. For instance, I tested whether the adoption of voluntary quotas by at least one political party affected women-friendly policy.33 Since much of the literature cited above argues that political parties and their internal rules may have a significant impact on women’s leadership, I used this indicator as a control variable testing the role of political parties on women’s policy. To test the effect of liberal attitudes on policy outcomes, I used a cosmopolitan index, taken from Norris and Inglehart’s data used in Cosmopolitan Communications: Cultural Diversity in a Globalized World.34 Scores for this measure, the cosmopolitan index per annum, ranged from low to high. In addition, I used an indicator measuring anti-government demonstrations, included in the Norris dataset and borrowed from the Arthur Banks CNTS dataset, as a proxy for testing whether women’s civil society groups impact policy outcomes. However, since the data for both the cosmopolitan index and anti-government demonstrations for African countries were sparse and significantly decreased the sample size, I tested these indicators separately. Therefore, results for these indicators can be found in Tables 3, 4, and 6.35 I used six dependent variables to measure women-friendly public policy. The data selected focused on outcomes, such as mortality and school- enrollment rates, to serve as proxies for testing the passage of public policies targeting those outcomes. The first was maternal mortality rates, a Millennium Development Goal Indicator, measuring the maternal mortality ratio per 100,000 births. Results for this dependent variable are represented in Model 1 across each Table. The second was infant mortality rates, also a Millennium Development Goal Indicator, measuring the infant mortality rate (0–1 year old) per 1,000 live births. Results measuring the impact on infant mortality rates are represented in Model 2 of each table. The third dependent variable was primary school enrollment, measuring the enrollment for every 1,000 persons,

32 These data were included in the Norris dataset, and borrowed from the United Nations. 33 These data were included in the Norris dataset, and taken from the Quotas Project. 34 New York: Cambridge University Press, 2009. 35 Originally I planned to create a dummy variable to signify a “post-Beijing Conference” effect. However, since most of the country-years took place after 1995, and the spread of years was very small, it did not make sense to include this variable. In a longer dataset, such the variable might be helpful in testing whether the international women’s movement affects women-friendly policy.

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taken from Arthur Banks’s Cross-National Time-Series Data Archive (CNTS), 1815–2007. This variable is represented in Model 3 in each Table. The fourth dependent variable was secondary school enrollment, measuring the enrollment for every 1,000 persons and also taken from Arthur Banks’s CNTS. This study highlights these outcomes because politicians, international organizations, and grassroots organizations cite these areas as important policy priorities for women and girls’ advancement internationally.36 In addition to the dependent variables listed above, I used two dependent variables to measure the impact of women parliamentarians on policies targeting women’s economic and social rights. Norris’s dataset includes measures for those variables as classified by the Cingranelli-Richards (CIRI) Human Rights Dataset.37 The variable for women’s economic rights measured outcomes such as equal pay for equal work, free choice of profession without a male relative’s consent, right to employment without male consent, equality in hiring and promotion, job security, nondiscrimination, freedom from sexual harassment, the right to work at night, the right to work in dangerous occupations, and the right to work in the military and the police. Scores range from a value of 0 to 3, depending on whether the rights formally exist and whether those rights are enforced. Results for this variable are included in Model 5 in each Table. Similarly, the results measuring women’s social rights range from a value of 0 to 3, depending on whether those rights formally exist and how well they are enforced. The variable measures values for the right to equal inheritance, the right to enter marriage on an equal basis with men, the right to travel, the right to a passport, the right to confer citizenship on a husband or child, the right to divorce, the right to property brought to a marriage, the right to participate in social and cultural life, the right to education, the freedom to choose a home, freedom from female genital mutilation (FGM) without consent, and freedom from forced sterilization. Results measuring the impact of female parliamentarians on this variable are represented in Model 6 in each Table.

ANALYSIS

This paper analyzes whether increasing the number of women in the legislature, and using institutional tools to do so, improves the lives of women and gender parity in Africa. In addition, this paper distinguishes between the effects of increasing the percentage of women in a legislature and the use of legal quotas on producing women-friendly policies. As further discussed

36 See supra text accompanying note 4. 37 For more information regarding these indicators, please see the Short Variable Descriptions for Indicators in the Cingranelli-Richards (CIRI) Human Rights Dataset, available at http://ciri.binghamton.edu/documentation/ciri_variables_short_descriptions.pdf.

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below, Tables 1–2 highlight how the increased percentage of women in the lower house of parliament, in 1990 and 2003, impacted women-friendly policies. These tables compare the impact of increased women in parliament on women-friendly policies with competing explanations, including: legislative effectiveness, modernization and state resources, history of colonization, and political party support of women’s advancement. In comparison, Tables 3–4 compare the impact of increased women in parliament on women’s policies with an additional set of conditions that authors have suggested account for women’s advancement, including liberal attitudes and civil society mobilization. To examine the effect of legal quotas on women-friendly policies, and to distinguish the effects of increased women in office on policy from that of the legislative tools that get them there, Tables 5 and 6 examine how legal quotas impact policy. Table 5 examines how legal quotas hold up against legislative effectiveness, modernization and state resources, history of colonization, and political party support for women. In contrast, Table 6 examines how legal quotas predict policy outcomes in comparison with liberal attitudes and women’s mobilization through civil society. Each of these tables seeks to highlight the ways in which women’s political participation, in contrast with traditional explanations, such as modernization, and more specific alternatives, such as voluntary political party quotas, affect policy outcomes that are important to women.38

Women in the Legislature v. Legislative Effectiveness, Modernization and State Resources, History of Colonization, and Political Parties

Table 1 shows the results with respect to the effect of increased women’s political participation in the lower house of the legislature in 1990 on women- friendly policies. While the results for maternal mortality rates and infant mortality rates, shown in Models 1 and 2 of Table 1, were not significant, the results for primary school education, secondary school education, and women’s economic rights were significant at the .05 p-level.39 However, the coefficients were negative; as the percentage of women in the lower house of parliament increases, policy outcomes in the form of education enrollment and economic rights for women tend to decrease. This depicts an unexpectedly grim picture

38 Please note that the N-size is admittedly small for a number of the results, particularly in Tables 3 and 4, and therefore the strength of some of the results is not very robust. However, this paper hopes to at least start a conversation about the basic assumption that increasing the political participation of a traditionally marginalized group, particularly women, actually translates into policy outcomes that help that group. 39 In statistics, the p-value is the probability of obtaining a test statistic as extreme as the one observed, assuming the null hypothesis is true. One can reject the null hypothesis, and accept the observed result as statistically significant when a p-value is less than .1 or .05, depending on the demands required by the study. The smaller the p-value is, the more statistically significant the result will be considered.

Spring 2012 9 Journal of International Service

on the impact of women politicians on policy outcomes. However, this analysis did not include a variable for civil conflict, and the outbreak or continuation of violence in a country could potentially explain the experience of a decrease in education and economic rights during that time period. In contrast, legislative effectiveness was highly significant for predicting an increase in women’s social rights. Unexpectedly, GDP, a proxy for state resources and modernization levels, was statistically related to infant mortality rates, but with a positive coefficient, meaning that as state resources increased, infant mortality rates continued to rise. This may signal that as a state becomes increasingly modernized and developed, distribution of resources within crowded urban centers as well as out to rural areas may continue to be problematic. However, GDP was also statistically significant for predicting a rise in secondary education. This trend may signal that as women enter office, education is placed higher on the legislative agenda. The effect of political party quotas on women-friendly policy outcomes, especially for a decrease in maternal mortalities and an increase in primary and secondary education, was also highly statistically significant. The adoption of voluntary political party quotas may therefore have a greater positive impact on policies important to achieving millennium development goals such as parity in healthcare and education than an increase of women in the legislature. Curiously, the coefficient for women’s social rights was negative, indicating a decrease in women’s social rights as political parties increasingly adopted voluntary quotas. Perhaps these outcomes reflect a backlash that women in society may have experienced as other women gained visible positions of power, in some cases, for the first time. Interestingly, in Table 2, which charts the same variables for the number of women in parliament in 2003, the statistical significance of the impact of women’s political participation appears to disappear. In this table, the increased percentage of women in the lower house of parliament only appears to be significant in Model 6, measuring women’s social rights. Here the coefficient is positive, indicating that as the number of women office-holders in the lower house of parliament increases, so do social rights for women. Therefore while Table 1 gives a pessimistic view regarding the effects of women in politics, Table 2 begins to show that the tide may change with the passage of time and the continued increase of women in public office. The negative effects on education and economic rights predicted in Table 1 fade, and positive effects on social rights begin to appear. Both outcomes may simply illustrate that it takes time for increasing numbers of women in power to make an impact. For example, it may take a number of years for women to utilize their strength in numbers and learn how to work together in coalitions and caucuses to achieve more women-friendly policy. An examination of this effect

10 Spring 2012 Women’s Political Participation in Sub-Saharan Africa

with a larger sample is unfortunately outside the scope of this paper, but would make for an interesting future study. Legislative effectiveness becomes significant in Table 2 in predicting maternal mortality rates; the coefficient is positive, indicating that maternal mortality rates increase as legislative effectiveness increases. However, legislative effectiveness is also highly significant in predicting women’s social rights, suggesting that as the legislature increases in effectiveness, so do social rights for women. Voluntary party quotas remain highly statistically significant in predicting higher levels of primary and secondary education. Also, the coefficient for women’s social rights continues to be negative, and the p-level is even more statistically significant in Table 2 than that in Table 1, which indicates a strong correlation between voluntary quotas and fewer social rights for women as time passes. This outcome may signal that while some women- friendly policy outcomes, such as increased education rates, advance as quotas place more women in positions of political power, women generally may experience a backlash in the exercise of their social rights.

Women in the Legislature v. Modernization and State Resources, Political Party Quotas, Liberal Attitudes, and Vibrant Civil Society/Women’s Mobilization

Tables 3 and 4 examine the impact of women’s political participation in the lower houses of parliaments on policy outcomes in comparison to other conditions that favor women, such as the presence of liberal cultural attitudes and a vibrant civil society. While these samples were not as robust because of significant missing data, the results remain intriguing because they potentially validate the assertion that liberal attitudes positively impact women’s economic rights. In Table 3, the increase in women in the lower house of parliament in 1990 is statistically significant at the .05 p-level for primary and secondary education. Similar to the outcomes in Table 1, the coefficient continues to be negative, further suggesting that education enrollment rates decrease as the number of women parliamentarians increases. However, women’s social rights are also statistically significant, and this time the coefficient is positive; as the number of women leaders in parliament rises over time, so do social rights for women, albeit modestly. In contrast, voluntary political party quotas produce mixed results: while they significantly affect maternal mortality rates, primary school education, and women’s social rights in desirable ways, social rights continue to decrease. This reflects the trend seen in Tables 1 and 2, where the adoption of voluntary quotas produced preferred policy results, but women in society experienced backlash when some of their own began to attain office. Liberal attitudes, as measured by the cosmopolitan index, also appear to be significant. The coefficients for women’s economic and social rights are positive, and are significant for social rights at the .001 p-level. However, the

Spring 2012 11 Journal of International Service

indicator used to measure civil society activity and women’s mobilization is not statistically significant for any of the policy outcomes. In sum, the outcomes in Table 3 suggest that while voluntary political party quotas may hurt social rights for women, liberal attitudes positively shape economic and social rights for women. In Table 4, the impact of women politicians on policy begins to look a little brighter as time progresses, as the comparison between Tables 1 and 2 demonstrated: the increase in women in the lower house of parliament in 2003 is statistically significant in predicting women’s economic and social rights, and here, the coefficients are positive, suggesting that as the percentage of women in the legislature increases, women’s economic and social rights improve. Voluntary political party quotas continue to be statistically significant in positively impacting education rights but negatively impacting women’s social rights. GDP and history of colonization also appear to affect women’s policy outcomes; for instance, a history of British colonization affects infant mortality rates significant at the .01 p-level. Surprisingly, the positive effect of liberal attitudes on economic rights appears to disappear as time goes on, and only remains significant in predicting women’s social rights. In general, the effect of women’s political participation on policy outcomes important to women and girls at first appears murky and disappointing. However, the potentially negative impacts fade and positive effects on social rights strengthen over time. Moreover, while the adoption of voluntary quotas by political parties consistently appears to produce a backlash against women’s social rights, it also contributes to the achievement of millennium development goals of fostering gender parity by improving education.

Legal Quotas v. Legislative Effectiveness, Modernization and State Resources, History of Colonization, and Political Parties

Table 5 charts the impact of legal quotas on policy outcomes in comparison with legislative effectiveness, state resources and modernization, history of colonialism, and political party support for women. In this table, legal quotas appear to be statistically significant for predicting infant mortality rates and women’s social rights. The coefficient for infant mortality rates is negative, supporting the hypothesis that mandatory quotas positively affect women’s policy outcomes. However, the coefficient for women’s social rights appears to be negative, similar to findings in other tables showing a negative effect of voluntary quotas on social rights. Voluntary quotas adopted by political parties are also statistically significant in this table, in many ways that are consistent with previous

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findings. As political parties increasingly adopt quotas, primary and secondary school enrollments increase, and women’s social rights appear to decrease at a .01 p-value, as shown in Model 6. Moreover, maternal mortalities decrease at a significant level, signifying that voluntary quotas have a positive policy impact on health as well as education. The outcomes in Table 5 therefore generally reflect what was shown in the prior tables; while quotas appear to help accomplish policy outcomes in education, they may produce a backlash in women’s social rights.

Legal Quotas v. Modernization and State Resources, Political Party Quotas, Liberal Attitudes, and Vibrant Civil Society/Women’s Mobilization

Table 6 illustrates the impact of legal quotas on women-friendly policies in comparison with that of modernization and state resources, colonial history, voluntary political party quotas, liberal attitudes, and women’s mobilization. As shown in Models 1 and 6, legal quotas appear to be significant in predicting increased maternal mortality rates and decreased social rights for women. Somewhat surprisingly, political party quotas only appear to be statistically significant in predicting a decrease in maternal mortality rates, and are no longer significant in predicting either education levels or social rights. Liberal attitudes appear to positively shape women’s social rights, and are significant at the .001 p-level. Women’s mobilization, as measured by civil demonstrations against the government, does not appear to be statistically significant. This table shows that while legal quotas may not produce favorable policies for women, voluntary quotas adopted by political parties and liberal attitudes appear to be advancing public policies favorable for women.

CONCLUSION

While the increase in women’s political participation is still a relatively recent phenomenon, some trends regarding the effects of increasing numbers and legal quotas on women-friendly policy are emerging. As this paper demonstrates, an increase in women office-holders in the lower house of parliament may at first have unanticipated effects on education policy and economic rights for women. However, as women consolidate their positions and new women are elected over time, negative impacts disappear and positive impacts on social rights for women begin to materialize. The heightened visibility of women in office therefore appears to have a transformative effect on how women are perceived and treated in society. Similarly, liberal attitudes appear to consistently positively affect the realization of women’s social rights. In a startling contrast, the adoption of quotas, both voluntarily by political parties as well as by legal mandate, appears to negatively impact social rights

Spring 2012 13 Journal of International Service

for women yet positively impact education levels and even provision of healthcare. Although the validity of the tests in this paper are limited by the short time period tested and the amount of available data, they help start a conversation regarding the role of women political leaders and institutions in improving the everyday lives of women in Sub-Saharan Africa.

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Table 1: Impact of Women’s Political Participation in the Lower House of Parliament 1990 on Policy vs. Traditional Controls Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Women 1990 0.085 -0.602 -141.943* -68.596* -0.013* 0.006 -13.094 -1.124 -59.055 -28.825 -0.007 -0.008 Legislative 129.442 6.674 439.911 310.423 0.021 0.236*** Effectiveness -94.589 -8.176 -405.836 -198.091 -0.047 -0.061 GDP -0.051 0.011** 0.048 0.195* 0 0 -0.04 -0.004 -0.188 -0.092 0 0 Former -204.436 -26.161 783.482 -103.734 -0.057 0.077 British Colony -143.473 -13.991 -548.501 -267.726 -0.067 -0.084 - Political 369.551** -2.144 2368.919*** 920.743** 0.068 -0.206* Party Quota -124.177 -10.702 -551.459 -269.169 -0.063 -0.08 Constant 526.621* 37.613 966.817 110.734 1.178*** 0.525*** -230.805 -19.503 -1013.077 -494.488 -0.113 -0.146

R-sqr 0.225 0.18 0.551 0.514 0.036 0.08 N 58 46 39 39 273 281

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors below; Method of estimation is ordinary least squares (OLS) regression.

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Table 2: Impact of Women’s Political Participation in the Lower House of Parliament 2003 on Policy vs. Traditional Controls Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Women 2003 5.89 0.817 9.916 2.174 0.002 0.013** -6.111 -0.646 -37.341 -16.24 -0.004 -0.004 Legislative 160.489* -4.704 382.693 258.435 0.032 0.196*** Effectiveness -75.63 -6.893 -421.614 -183.365 -0.045 -0.052 GDP -0.034 0.008* -0.031 0.175 0.000* 0 -0.034 -0.004 -0.209 -0.091 0 0 Former -128.574 -32.094*** 1309.242* 159.08 -0.026 0.083 British Colony -98.681 -9.16 -535.028 -232.69 -0.054 -0.062 Political -196.176 -2.615 1808.135** 754.693** 0.045 -0.210** Party Quota -99.022 -9.096 -517.989 -225.279 -0.058 -0.067 Constant 180.929 49.151*** -104.433 -421.704 0.943*** 0.427*** -121.222 -11.004 -705.514 -306.836 -0.072 -0.084

R-sqr 0.113 0.226 0.303 0.334 0.021 0.093 N 82 67 54 54 385 393

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors below; Method of estimation is ordinary least squares (OLS) regression.

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Table 3: Impact of Women’s Political Participation in the Lower House of Parliament 1990 on Policy v. Other Conditions That Favor Women Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Women 1990 -10.904 -0.936 -177.362* -82.115* 0.003 0.018* -15.177 -1.219 -73.728 -36.86 -0.007 -0.009 GDP -0.001 -0.004 0.259 0.33 0 -0.000** -0.085 -0.011 -0.361 -0.18 0 0 Former British -42.081 -65.483** 1227.016 -161.276 -0.290*** -0.143 Colony -190.045 -18.58 -724.032 -361.981 -0.079 -0.095 - Political Party 553.505** 13.79 1664.726* 653.648 0.08 -0.273** Quota -156.102 -14.882 -713.85 -356.891 -0.071 -0.089 Cosmopolitan -75.67 19.394* -170.394 -49.807 0.126** 0.333*** Index -90.92 -7.771 -384.128 -192.046 -0.041 -0.051

Demonstrations -99.578 -10.288 1551.119 1391.995 0.018 0.049 -84.209 -6.504 -1426.356 -713.11 -0.039 -0.05 constant 850.804** 95.415*** 1577.901 546.067 1.375*** 1.611*** -282.27 -23.695 -1169.507 -584.698 -0.124 -0.157

R-sqr 0.39 0.399 0.545 0.548 0.118 0.231 N 39 33 29 29 202 210

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors in parentheses; Method of estimation is ordinary least squares (OLS) regression.

Spring 2012 17 Journal of International Service

Table 4: Impact of Women’s Political Participation 2003 on Policy v. Other Conditions That Favor Women Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Women 2003 7.283 0.992 58.252 21.967 0.009* 0.015** -9.159 -0.911 -50.306 -25.117 -0.004 -0.005 GDP 0.03 0.015 0.397 0.394* 0 -0.000* -0.081 -0.011 -0.341 -0.17 0 0 Former British Colony -246.074 -41.856** 1720.470* 131.632 -0.002 0.068 -149.535 -12.936 -681.63 -340.325 -0.062 -0.075 Political Party Quota -292.129 -14.877 1956.305** 874.352* 0.028 -0.234** -144.796 -14.16 -666.268 -332.655 -0.06 -0.074 Cosmopolitan -15.799 -1.124 -387.808 -111.421 0.038 0.219*** -82.457 -6.989 -370.255 -184.861 -0.031 -0.038

Demonstrations -83.677 -5.024 -32.417 346.722 0.026 0.029 -78.218 -6.349 -812.524 -405.678 -0.037 -0.045 Constant 496.223 47.043 -1055.797 -652.245 1.050*** 1.221*** -276.52 -23.363 -1178.731 -588.518 -0.104 -0.129

R-sqr 0.186 0.305 0.424 0.423 0.073 0.235 N 46 41 34 34 242 250

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors in parentheses; Method of estimation is ordinary least squares (OLS) regression.

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Table 5: Impact of Legal Quotas on Policy v. Traditional Controls Model 1 Model 2 Model 3 Model 4 Model 5 Model 6 Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Legal Quota -1.281 -1.437* 73.225 14.669 -0.003 -0.018* -7.757 -0.618 -61.331 -25.852 -0.007 -0.009 Legislative 167.526* -1.62 -253.998 -14.111 0.014 0.177*** Effectiveness -70.367 -6.056 -511.801 -215.735 -0.042 -0.049 GDP -0.024 0.009** 0.01 0.183 0 0 -0.034 -0.003 -0.261 -0.11 0 0 Former British -215.931* -32.960*** 1985.170** 402.788 -0.03 -0.022 Colony -96.479 -8.52 -667.695 -281.448 -0.054 -0.062 Political Party -250.949* 0.114 1492.886* 658.213* 0.015 -0.203** Quota -103.37 -8.97 -676.319 -285.083 -0.061 -0.071 constant 319.733** 56.099*** 879.771 0.839 1.042*** 0.675*** -105.637 -9.457 -819.743 -345.539 -0.062 -0.073

R-sqr 0.15 0.256 0.238 0.202 0.011 0.064 N 91 74 58 58 425 433

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors in parentheses; Method of estimation is ordinary least squares (OLS) regression.

Spring 2012 19 Journal of International Service

Table 6: Impact of Legal Quotas on Policy v. Other Conditions That Favor Women Model 1 Model 2 Model 3 Model 4 Model 5 Model 6 Women’s Women’s Maternal Infant Primary Secondary Economic Social Mortality Mortality School School Rights Rights

Legal Quota 70.360* -4.354 -59.998 -76.873 -0.016 -0.074*** -34.813 -3.001 -274.425 -118.262 -0.016 -0.021 GDP 0.023 0.014 0.32 0.366 0 0 -0.074 -0.01 -0.483 -0.208 0 0 Former British -326.091* -36.994** 2400.129* 386.719 -0.066 -0.076 Colony -134.683 -12.145 -936.369 -403.524 -0.064 -0.08 Political Party -454.937** -8.778 1479.792 744.923 0.022 -0.135 Quota -145.654 -14.05 -968.698 -417.456 -0.066 -0.084 Cosmopolitan 28.556 -1.162 -225.27 -79.389 0.048 0.180*** -74.854 -6.583 -501.592 -216.159 -0.032 -0.041 Demonstrations -85.974 -6.186 1450.68 863.714 0.002 -0.044 -74.607 -6.3 -1059.904 -456.761 -0.036 -0.047 Constant 745.647*** 59.235** -43.817 -292.891 1.222*** 1.411*** -206.346 -17.866 -1316.745 -567.446 -0.092 -0.116

R-sqr 0.313 0.276 0.316 0.337 0.048 0.157 N 52 47 37 37 272 280

* p<0.05, **p<0.01, *** p<0.001 Table entries are regression coefficients with standard errors in parentheses; Method of estimation is ordinary least squares (OLS) regression.

20 Spring 2012 Russia and Cultural Production Under Consumer Capitalism

Alina Shlyapochnik

This paper aims to analyze the effects of recently introduced capitalism on post-Soviet Russian society; a society that abruptly lost its dominant belief system in the collapse of the USSR. As Foucault reveals throughout his work, the attitudes and ethics of individuals, their ways of conceptualizing and relating to reality, are shaped by social forces rather than innate predispositions. The post-Enlightenment social context, he argues, has been filled with disciplinary and conditioning mechanisms that shape individuals’ deepest and most minute thoughts, behaviors, and even feelings.1 Traditional modes of cultural production have been replaced by the wider-reaching regulatory powers of political economies. With such theoretical positioning, I argue that while supporting competition and variety, capitalism is not free of ideology, and is in fact a powerful generator of specific subjects. Looking at western capitalism’s embedded mode of cultural production through the market, this paper asks how it has influenced the values, ethics, and desired lifestyles circulating in Russian society, which appears in some ways both highly susceptible, and in others, averse to capitalism’s foreign notions. The effects of modern and postmodern capitalism in the West have been the subject of many critical- theory and poststructuralist studies, and it is interesting to see if similar cultural effects are observed when capitalism is transplanted to the Russian context. In analyzing this question, it is necessary to look at both the characteristics of western capitalism—its mode of disseminating ideas and the ones that are propagated—and of the Russian society that received it. The paper further focuses on advertising, analyzing the types of commercials that

1 Michel Foucault, “What Is Enlightenment?” in Ethics: Subjectivity and Truth, ed. Paul Rabinow (New York: The New Press, 1994), 309.

Alina Shlyapochnik is a second-year graduate student in the International Politics program at American University’s School of International Service. She holds a B.A. in sociocultural anthropology from UC Berkeley and has conducted research on diasporic communities and global networks at the Berkeley Center for Globalization and Information Technology, and on child labor in the Uzbek cotton industry at the San Francisco-based NGO, As You Sow. Last summer, she worked for the Center for Business Ethics and Corporate Governance in Moscow, developing anti-corruption strategies for the Russian power-generation sector. Journal of International Service

are currently produced and broadcast, and through opinion poll data and secondary sources, analyzes the related attitudes and lifestyles present in Russian society. With an incomplete market transition and persistent government control, the Russian culture industry’s terrain is less dense than its western counterparts, and through an assessment of the above-mentioned data, this paper argues that certain extremes as well as hybrid cultural forms are present in modern Russian society.

CHARACTERISTICS OF WESTERN CAPITALIST SOCIETY

This paper focuses on consumer capitalism, as it is the particular form that has expanded throughout the world since the mid-1990s.2 Capitalist society, however, is characterized by many things, and there is also the production side to consider: the work ethic, entrepreneurship, managerial practices, professionalism, and other ways in which business is conducted. These elements are arguably less pervasive in Russian society since there is only a small business class, and it too is characterized more by its consumer behavior. These are also areas where practices of bribery and notions of blat hold sway and trump western business ethics. The mode in which business practices are introduced to Russian society is also different, taking place through the introduction of predominantly western business schools to the region, public and private partnerships with the West (like the 2009 Obama-Medvedev initiative to fight the threat of transnational corruption, and the C2C Summit), and standards set by international organizations, like the Organisation for Economic Co-operation and Development (OECD) and World Bank, and other international economic pressures, like the attraction of Foreign Direct Investment (FDI). Thus, business culture in Russia would require a separate study.

Values, Ethics, Ideal Lifestyles

In modern (or rather “postmodern,” as the current form is labeled in the theoretical literature) capitalist society, consumption as an activity and way of life is promoted by profit-seeking interests. The society functions on exchange, which becomes central to life. Not only is there a dependence on commodities, but commodification is expanding,3 so that more and more tangibles and intangibles, like knowledge and information, fall under the jurisdiction of the market (as with “intellectual property”). Capitalism involves specific notions of value, based on market price rather than utility. In a context of mass production and reproduction, one of the

2 Jan Aart Scholte, Globalization: A Critical Introduction (New York: Palgrave Macmillan, 2002), 162. 3 Scholte 2002, 162.

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components of this market price is “authenticity.”4 Brands, artists, authors, and other producers are endowed with an “author function,”5 giving their work greater market value dependant not on its intrinsic worth, but on the producer’s reputation. The social hierarchy is associated with monetary worth and the ability to consume gourmet cuisine, designer clothing, luxury cars, tourism, and attendance at mass spectacles such as concerts and sporting events.6 According to Baudrillard, the consumer ethic constrains citizens to pleasure-seeking, just as the foundational ethic of capitalism, the Protestant ethic, bound them to labor; they are constantly reminded that they have “no right not to be happy.”7 He argues that there is a craving for novelty that stems from a fear of missing something; people are haunted by it since society makes them feel the need to try everything. Thus, the pressure to consume translates into a seemingly positive curiosity. Such needs and desires are generated to socialize the masses into a consuming force to fulfill the society’s economic needs.8 The individual is socialized into a consumer, and this role is naturalized through the semblance of needs and intrinsic desires, by making people think they are consuming based on free will. In this view, the conditioning of capitalist citizens toward consumption is akin to the mobilization of the Soviet masses towards labor, but it is achieved through a less perceptible mode of control. This “indoctrination” is achieved through the power of the culture industry, discussed in the following section. The ideal lifestyle, the image created by the forces in power as something to desire and strive for, built upon this consumer ethic, is one filled with high-tech items that make life more comfortable and entertaining. The contrasts to the Soviet utopia, here, are quite obvious. While the western utopia is idealistic and pleasure-seeking, dependent on the acquisition of commodities, built on personal career building and concern for the well-being of, at most, the autonomous family unit, the Soviet utopia was collective and classless, aimed at building up the entire country. A striking difference is that leisure in the western, namely U.S., utopia, since the 1950s and ’60s (as depicted in the 1956 film short Design for Dreaming, sponsored by General Motors) was based on driving in cars and spending time in automated homes, while socialist leisure was (as depicted in Dziga Vertov’s 1929 film Man with a Movie Camera) marked by an escape from machinery, which was restricted to factory production and transportation. In this representation of Soviet lifestyle, people fled from the

4 Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction,” in Illuminations, trans. Harry Zohn (New York: Schocken, 1968), 217–251. 5 Foucault 1994. 6 Scholte 2002, 162. 7 Jean Baudrillard, “Consumer Society,” in Selected Writings, ed. with an Introduction by Mark Poster (Stanford, CA: Stanford University Press, 1988), 48. 8 Ibid., 50.

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city to the beach, socializing and playing group sports. Unlike the women in GM commercials who found pleasure in frequently changing outfits, the women in Vertov’s film found joy in collectively stripping naked on the beach and covering their bodies in mud.

The Culture Industry

Cultural production under consumer capitalism is achieved through the “culture industry,” as conceptualized by Theodor Adorno, in which the above values and ethics are created, spread, and managed through market forces and the associated mass media. The culture industry, in contrast to the Soviet authoritarian, top-down power structure, which propagated a singular vision and crushed dissent through state force, is a self-sustaining system that does not require state coercion. It achieves hegemonic consensus through relatively imperceptible disciplinary forces, which are hidden because, as mentioned above, they manage to naturalize the desires they generate. Individuals do not feel the need to resist because they are presented with a semblance of choice and there is room for multiple ideas, opinions, and innovations. The dissonance of ideas and multitude of choice are in fact considered disorienting by theorists like Fredric Jameson, but Adorno argues that they are limited; they cannot stray too far from the mainstream culture, and they definitely cannot escape the culture industry without being shut out from society. The limits are achieved through cooptation, in which case, subversive or counterculture movements become identity groups that are integrated into society and catered to by the market, or by failing to gain access to the market. Ideas and works that are too outlandish will not be introduced to the market or will not survive within it; they will not be promoted to the public by culture industry institutions, like publishers, museums, studios, universities, etc., and thus they will not gain popularity among consumers. Even if producers, like artists and writers, are not profit-seeking, their products must succeed in, or at least gain access to, the market in order for their work to gain acceptance, or at least, to sustain themselves. Instead, a strong mainstream culture is created as mass media and the beliefs and practices of society reinforce each other, creating a self- sustaining, cyclical process.9 Baudrillard adds that as a controlling mechanism, consumer capitalism is focused on self-discipline. As such, it is a powerful regulating process, impervious to collective resistance because of the individualistic ideology it promotes, so that “consumption is primarily organized as a discourse to

9 Theodor Adorno, The Culture Industry: Selected Essays on Mass Culture (New York: Routledge, 1991).

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oneself, and has a tendency to play itself out, with its gratifications and deceptions, in this minimal exchange.”10

The Power of the Image

In disseminating ideas and generating needs and desires, the culture industry harnesses the power of aesthetic style and imagery. Images grab attention and serve as easily digestible symbols. They are filled with connotative meaning and instantly lead viewers to make subconscious associations. This is a useful tool when things that would otherwise seem unnecessary or lacking in value can be presented in a way that makes them desirable; if they are not intrinsically valuable, they can be associated with something that is, and objects can be associated to feelings and other intangibles, like prestige. The consumer society, according to Jameson, “assigns an increasingly essential structural function and position to aesthetic innovation and experimentation.”11 A world of images and the associations and visceral feelings they evoke has been built atop the material world. In similar fashion, the power of images was harnessed by the Soviet regime in its propaganda campaigns, where social realism was the style used to convey a not-so-distant communist future.12 The imagery was purposely idealized, yet bound to realistic representation. As discussed above, Stalin, for example, would be depicted next to Lenin and Marx in order to become associated with their authority and cultural currency. Style was thus used to manipulate content. It is important to remember that the connotations of images are culturally conditioned associations. Their meanings are created through connection with things the viewer knows, so they are based on the viewer’s cultural and historical knowledge base. Transplanting imagery from one cultural context to another will thus yield different meanings.

Advertising

Utilizing the power of aesthetics, advertising has become “a crucial adjunct to much capitalist enterprise.”13 It is a major controlling mechanism of the culture industry, stimulating individuals’ desires for acquisition and shaping their preferences in the process by attaching various associations to brand names in the act of value production. It has the power, especially through commercials,

10 Baudrillard 1988, 54. 11 Fredric Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism (Durham, NC: Duke University Press, 1994), 4–5. 12 Boris Groys, The Total Art of Stalinism: Avant-Garde Aesthetic Dictatorship and Beyond (Princeton: Princeton University Press, 1992). 13 Scholte 2002, 166.

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to establish direct connections between products and intangibles like happiness or exhilaration. In contrast, without brand competition, advertising in the Soviet Union was used by the state to promote the consumption of overproduced or unwanted products. It thus gained a negative connotation as something, at best, ineffectual, and at worst, negative, since it was used to promote poor- quality goods that couldn’t sell themselves through their use-value.14 This is the context to which western advertising was introduced in the late 1980s and early 1990s, and as discussed in the following section, there are many other elements of Russian society that need to be considered in understanding the impact of the capitalist transition.

THE RUSSIAN CONTEXT

In addition to the cultural differences inherited from Soviet life, as mentioned in the sections above, it is important to touch briefly on some additional elements of Russian attitudes present during the introduction of consumer capitalism. In the early 1990s, Russians “lost a belief system that had defined their entire existence.”15 White argues that even if they did not completely internalize its values, the ideology defined their role in society. During the stressful transition, instead of craving freedom, the population actually sought stability and coherence instead of the chaos they perceived all around them.16 In the wake of the collapse, people increasingly wrote to newspapers for behavioral guidance, asking personal questions about right and wrong, true and normal.17 While this might seem like a potential void to be filled with western meanings through the multitude of influences flooding the country and the westernized structural shifts taking place, evidence points to the contrary. In this context, consumer capitalism may have had the more disorienting effect expressed by Jameson, since it offers no unified identity, presenting a multitude of options even if they are enclosed within a mainstream and its peripheral identity groups. According to Stranius, it was an enormous shock when “[w]estern popular culture captured most of the visual space—cinema, visual arts, fashion, advertisements, video and TV.”18 It was the

14 Ludmilla Gricenko Wells, “Western Concepts, Russian Perspectives: Meanings of Advertising in the Former Soviet Union,” Journal of Advertising 23, no. 1 (March 1994): 89. 15 Stephen White, “Changing Times, Changing Values,” in Russia’s New Politics: The Management of a Postcommunist Society (Cambridge: Cambridge University Press, 2000), 203. 16 Ibid., 190. 17 Ibid., 201. 18 Pentti Stranius, “The Intelligentsia and the ‘Breakdown of Culture’ in Post-Soviet Russia,” in Education and Civic Culture in Post-Communist Countries, ed. Stephen Webber and Ilkka Liikanen (New York: Palgrave Macmillan, 2001), 49.

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church, White argues, that “offered a belief system that was the only coherent alternative to Marxism-Leninism.”19 Thus, in this context, while the population seemed primed for indoctrination, capitalism did not offer a centralized enough source of identity, since the identity groups it embodies must be reinforced by existing trends in society. As a reciprocal process, its beginning stages require inputs, and currently, as I will discuss in the following sections, the inputs embody traditional and westernized extremes, which do not offer viable options for the younger generations. Oushakine’s study of the discourse of young Russians from the late 1990s, focusing on their ability to define themselves, reveals a “lack of knowledge about one’s own location and being,” which he argues is due to the “absence of the post-Soviet field of cultural production” capable of providing the necessary conceptual tools to do so.20 In such a context it is interesting to see the kinds of identities that will form within the culture industry. Existing western identities clearly play an important role in modern youth culture, but it is unclear how they will mature. Another important contextual characteristic is the presence of a distorted view of capitalism, provided by Soviet education,21 exposure to the idealized images of western media, and the economic hardships that accompanied the transition.22 Under the rubric of Soviet ideology, Russians were taught that capitalism was a ruthless, unequal society, whose stratification was promoted from all sides. Shlapentokh argues that this has contributed to the Russian elite’s insensitivity to inequality; to their perception that it is a necessity in capitalist society. The idealized imagery of western capitalism caused these same elites to think that their counterparts “exhibited apparently unrestricted conspicuous consumption.”23 This, Shlapentokh argues, made them want to overcompensate after the transition, making them adopt an opulent extreme. Ordinary citizens, however, suffered many economic hardships after the transition, which made them nostalgic for a planned economy. In addition, the disregard of (inefficient) official methods of accomplishing things under the Soviet regime led to persistent institutionalized corruption during and after the transition. As a result, a small group of oligarchs was able to seize a majority of the state assets being privatized in the early 1990s. This resulted in vast social inequality between the rich and poor,

19 Ibid., 205. 20 Serguei Oushakine, “In the State of Post-Soviet Aphasia: Symbolic Development in Contemporary Russia,” Europe-Asia Studies 52, no. 6 (September 2000): 1010. 21 Vladimir Shlapentokh, “Social Inequality in Post-Communist Russia: The Attitudes of the Political Elite and the Masses (1991–1998),” Europe-Asia Studies 51, no. 7 (November 1999): 1169– 1170. 22 White 2000. 23 Shlapentokh 1999, 1170.

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further reinforced by the above-mentioned distortions in Soviet education, which, on the part of the elite, bred an unwillingness to remedy the problem.

ADVERTISING IN RUSSIA

As mentioned above, western advertising was a foreign concept that Russians were unaccustomed to when it was first introduced in the late 1980s and early 1990s. They initially found it invasive when products they could not afford were being marketed to them. Within the industry, dominated by western firms and Russian startups, there was a cultural polarization, which, judging from today’s commercials, still exists. Advertisers openly debated whether their work should use traditional Russian symbols, both Soviet and folkloric, or attempt to emulate western forms. They knew that the images and values presented would not only need to be attractive to new consumers, but would have to influence them as well. They would be propagating certain symbols within the mass media and had to decide in which direction to influence society, either towards the traditional past, as they saw it, or the westernized future.24 Today, Russian advertising faces intervention from the government. In the early 2000s, deputies of the parliament have attempted to limit the duration and frequency of commercials, arguing that “the promotion of expensive, luxurious goods could irritate the Russian public.”25 Their goals include attempting to “civilize” advertising (like banning beer commercials during the day), and preventing the linguistic degradation that they associate with the use of full or partial English.26 Due to its novelty and lack of autonomy from the state, Russian advertising is not able to operate the way that it does in the West. In addition, other mass media sources such as news and television networks are ruled by both oligarchs and the state, so there is not a great deal of variety in the sources of cultural production. Still, as access to sources of information grows, so does the culture industry, and advertising, as evidenced by expenditure figures, is growing rapidly. As seen by modern ads and commercials, the industry has adjusted and grown since it first developed. The television commercial industry has expanded so rapidly that its expenditure increased by 63 percent in 2002,27 and 95 percent of people polled in 2005 said they pay attention to TV ads.28 In addition, 80 percent of people polled in 2008 expressed a dependence on

24 Gricenko Wells 1994, 83–95. 25 Irina P. Ustinova, “English and Emerging Advertising in Russia,” World Englishes 25, no. 2 (2006): 269. 26 Ibid. 27 Ibid., 275. 28 Ibid., 270.

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television, finding it difficult or impossible to live without it,29 thus increasing their exposure to commercials. To obtain a more concrete picture of advertising in today’s Russia, this paper analyzes a small, but varied sample of commercials from 2007 to 2010, both foreign and domestic, traditional and westernized. Foreign car commercials from 2008, advertising the Infinity M and BMW 3 Series sedan, do not differ visually from their western counterparts. They feature the same interior and exterior views, highly stylized cinematography, and similar settings, such as winding roads and blank white space. A deep male voice narrates the visual imagery, emphasizing speed, power, control, style, and freedom, not unlike the notions expressed in General Motors shorts during the 1950s and 1960s in the U.S. The foreign brand commercials stay purely foreign, without attempting to engage elements of local culture. Looking at particularly local products like kvas, we find that a range of commercial styles is present, utilizing celebrity endorsements, sexuality, and traditional family scenes. One of the kvas brands, which also produces juice, is Moya Semya, which portrays traditional family dynamics in all of its commercials through amusing scenes of child and parent interaction. The commercials all feature the same family, which consists of ordinary-looking people in home interiors that are equally ordinary and cluttered, rather than glamorous, with rugs hanging on the wall in traditional Soviet fashion. They also make mention of some very traditional Russian dishes, like okroshka and olivie. This clearly represents the traditional side of the advertising dichotomy. A mayonnaise brand called Sloboda also features families, but their style is more polished, with slightly more attractive actors, idyllic interiors, and flattering lighting. The slogan is “for those who marry well.” These commercials also feature amusing dialogue between children and parents, but do not follow a single family. The class represented is also higher, with families owning suburban houses and cars. The Sloboda commercials feature a hybridization of Russian and western forms. On the other end of the spectrum, the juice brand “Ya,” with the slogan “wherever there’s pleasure, there’s I” (a play on the word “ya,” which means “I” and is also the name of the juice), embodies the western extreme of the advertising industry. It features stylized cinematography and scantily clad, beautiful women in luxurious, leisurely settings. You can find them on the balcony of a mansion, on a beautiful beach resort, and at a summer party at a sleek expensive outdoor venue. In one such commercial a woman drives a luxury convertible out of the city to watch the sunset as she drinks her juice. They all feature exotic locales and clear notions of escapism, but they do not leave material objects behind. Even if they are on a beach, there are structures

29 http://wciom.ru/index.php?id=268&uid=10201.

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to indicate they’re at a resort, and while the woman in the above commercial escapes the city, she does so in her car, and she stays in it to watch the idyllic scene that unfolds in front of her. The commercials feature popular music with English lyrics, like Shakira’s “Underneath Your Clothes.” The women are strong, individualistic, and exceedingly confident, ignoring the men that ogle them as they walk by. These commercials embody the stereotypical elements of consumer culture described in the opening sections. Together the commercials exemplify two extremes as well as some hybridization of traditional and western forms. While the Moya Semya brand uses imagery of modest, traditional family lifestyles, the “Ya” brand is over- the-top glamorous. An interesting element in this dichotomy is the role of women, who are represented either as mothers or as strong, highly sexualized individuals. This echoes Tatiana Zhurzhenko’s argument in her article on capitalist ideology and women’s identities in the context of post-Soviet Ukraine. She argues that, while the market and democratic transitions should have theoretically brought greater freedom and variety of identity that could emancipate women, the capitalist ideology and its imagery instead imported the equally stifling dichotomy of housewife or businesswoman.30 These models only complement the existing ethics of the local context. Affirming Adorno’s view, she argues that the increased freedom of identity is an illusion, and women are forced to identify with the models propagated by the mass media. They cannot protest against the existing social structure because the identities force them to focus on the concerns embodied by those roles. They have absorbed the roles’ ethics and the illusion of choice created by the culture industry.

VALUES, ETHICS, AND LIFESTYLE GOALS OUTSIDE OF THE MEDIA

Looking at Russian society, through opinion polls and secondary sources, there is evidence of the polarization expressed throughout the previous sections. At the extreme of western acceptance lie the business elite, or the “New Russians,” and at that of resistance lie the economically struggling, the older generations, and the former dissidents and intelligentsia. These groups are also in direct antagonism, as the former lacks empathy for the economically insecure and keeps deep economic segregation alive, and the latter ridicules the conspicuously consumptive elite. Based on the culture industry model, the practiced attitudes and the representations in the media reinforce one another. The New Russians, as discussed above, have attempted to outspend the western elites, and live opulent lifestyles. According to Shlapentokh, “They

30Tatiana Zhurzhenko, “Free Market Ideology and New Women’s Identities in Post-Socialist Ukraine,” The European Journal of Women’s Studies 8, no. 1 (2001): 29–49.

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demonstrated their wealth through extravagant galas, anniversary receptions and elaborate public weddings . . .drove luxury cars, traveled in private jets, and frequented extravagant casinos, resorts and dazzling vacation spots around the world.”31 At the same time, at this “western extreme,” while there may be an adoption of practices and desires, the cultural meanings are not the same as they would be to a westerner. For example, the English names that Russian businessmen give to their shops take their meaning from the social context of late socialism, in which English and western references were used as a subversive practice of establishing identity outside the Soviet system.32 So while a westerner would see “Smile Market” and “Luxury” and associate the names with their original western context, Russians would interpret them in a very different way, based on their own memories and experiences. Also, as mentioned above, the conspicuous consumption of the business elite is based on a distorted view of western capitalism and the resulting inferiority complex they developed. Thus, the value they place on high market price differs from that of the western value system. The genuine experience of Soviet deprivation has also driven them and other sectors of the population to compensate for their previously austere lifestyles. In this sense, the novelty of the situation and the plentitude that differs so starkly from the past have made it easy to make post-Soviet citizens into consumers, in theory. In reality, meager incomes still bar many people from the market. While these New Russians represent the elite, public opinion polls asking for markers of prestige in Russian society show that the value hierarchy of consumer capitalism has been widely adopted. A nice home is ranked the highest by all age groups, followed by the ability to purchase property abroad and the ability to vacation abroad. The property category rose by ten percentage points between 2006 and 2010. The categories represented much more strongly by the younger generations than the older ones were the ability to attend expensive concerts and to vacation abroad.33 Another poll, asking about the effects of having children, reveals that respondents aged 18–24 were the most highly represented (six percentage points higher than the oldest generation, which was the least likely to agree) in agreeing with the statement “the birth of children limits freedom; the possibility of self-actualization.” At the same time, the overall numbers in this poll were almost 50/50 between agreement and disagreement34 Again, this marks a split between traditional values that prioritize family and capitalistic values of individual development and career growth.

31 Shlapentokh 1999, 1170. 32 Alexei Yurchak, “Privatize Your Name: Symbolic Work in a Post-Soviet Linguistic Market,” Journal of Sociolinguistics 4, no. 3 (2000): 406–434. 33 http://wciom.ru/index.php?id=268&uid=13897. 34 http://wciom.ru/index.php?id=268&uid=10396.

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At the traditional pole are the citizens who have not been treated as well by the new economic system, those who view westernized, mass- produced culture with disdain. To some degree this view seems to characterize a large portion of the population, which does not form a unified whole. It includes nationalistic “Slavophiles” who want to preserve traditional culture and the Russian language, the former dissidents and intellectuals, and simply older generations and economically insecure sectors that remember the financial stability of Soviet times. Public opinion polls show that a majority of the population experiences positive emotions in response to the word “Soviet,”35 with nostalgia at the top of the list. The intelligentsia, of course, does not share this view. The intelligentsia, some of whom are the dissidents of the 1960s, and others, the educated, creative sector that sometimes worked with the regime in their attempt to improve society, defines “proper” culture by the level of depth and mental stimulation it holds. It perceives cultural degradation in modern Russia, where younger generations are more interested in American soap operas than attending the theater or reading serious literature. According to Pentti Stranius, who conducted interviews with intellectuals in the late 1990s, “new popular culture or ‘pulp culture’ in Russia was criticized . . . by almost all members of the intelligentsia who were born in the 1950s or earlier.”36 They had attempted to fight for cultural values in the mid-1990s because they could see that “the market economy completely changed the sphere of culture.”37 They failed, however, according to Stranius, because their status and prestige in the newly forming society disappeared. The political activity of the former dissidents “lost its ground when the new symbols of ‘private property’ and ‘market economy’ started to crystallize in the new Russian reality.”38 And the role of the creative intellectuals has been usurped by “modern professionals and the educated new generation,” who are managing to enter the public sphere as part of the emerging middle class.39 Thus, they reject the system as much as it has rejected them. The intellectuals who opposed Soviet rule illustrate an interesting case because, in spite of their role in the samizdat circulation of the 1960s and after the rise and fall of perestroika, many of them have now been barred from the culture industry. And to the intellectuals who saw themselves as the conscience and educators of society, status was always more important than salary, and it was impolite to even speak of money, but without adjusting to the free market system, they have been silenced.40 As one of Stranius’s interviewees laments,

35 http://wciom.ru/index.php?id=268&uid=13972. 36 Stranius 2001, 48. 37 Ibid., 51. 38 Ibid., 50. 39 Ibid., 51. 40 Ibid., 46.

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the USSR had a countrywide system of distributing and renting films, but now hundreds of Russian films have “ended up on the shelf, because they do not get to the public.”41 There is no market for their work within the country, and some end up publishing abroad or receiving foreign financial support. One director, for example, decided to open his own studio, which can only function with the financial cooperation of Japanese and European producers.42 Others, trying to keep their pedagogical status out of principle, are unable to earn incomes within the new economy. Thus they are barred from participating in the country’s social and political discourse. While their work found outlets during oppressive Soviet rule, they are suppressed by the free market forces that they helped fight for.

CONCLUSION

In analyzing the post-Soviet transition to consumer capitalism, a recurring theme of freedom and control manifests itself. For some reason, it is always the opposite of the desired outcome that seems to materialize. When a post-Soviet group, like the Ukrainian women’s movement, anticipates greater freedom in identity politics, it is faced with control from the culture industry. When the Russian population wants greater stability, coherence, and guidance, it is faced with the disorienting fragmentation of the postmodern market. And when the dissident intelligentsia wants greater democracy—greater participation in the social and political system—it ends up barred from the culture industry altogether, unable to contribute to the national discourse. As this recurring disconnect suggests, and as Adorno’s culture industry model itself posits, the capitalist transition should not be seen simply as a shift from centralized control to freedom, neither economically, politically, nor socially. It also should not be seen as westernization, even though much of the polarized local discourse deals with its resistance and/or acceptance. In reality, while capitalism carries with it a specific ideology, western cultural meanings cannot be transplanted as they are, to the Russian context. The content of its visually dependent modes of cultural production are filtered through the cultural and historical knowledge base of each individual viewer. So while it does propagate its self-sustaining ideologies and ethics that promote consumption, they are mediated through the existing cultural context, creating new, hybrid forms of meaning. Especially in its early stages, as a reciprocal process, the culture industry takes societal preferences into account before it can develop a life of its own. That being said, the knowledge base of younger generations will change dramatically from those who remember Soviet life, and unless the

41 Ibid., 49. 42 Ibid., 50.

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government intervenes, the culture industry will grow as new producers enter the market and access to information expands. The polarization will likely cease, and the dichotomies of traditional and western, old and new, past and future, will disappear. One of the reasons for the existing gap, of course, is the economic divide. Those who benefit from the system favor it, while the opposite goes for the have-nots. This phenomenon is mitigated in western society by the idea of equal opportunity. While in some ways it is only an illusion, the American dream of working your way up and making it big has more practical foundations in a society governed by strong rule of law. The question is, which event must happen first: Do people first adopt the desire for the utopian lifestyle and evolve a desire for the political reforms that will help them achieve it, or must people do better economically, and partake more actively in consumption before they increasingly become integrated into the culture industry? As a last world on the culture industry, when fully developed, it does have emancipatory potential. Harnessed by those in power, the mass media has become an influential tool for stimulating consumption and imposing political control, but because of its multiplicity, because of the market’s demand for increasingly diverse products and innovative aesthetic styles, these regulatory mechanisms are coming from all sides, and counteracting each other. As access to information expands, the cracks show though; paradoxical patterns are revealed. Fragmentation counterbalances the effects of the individual agents of influence. Thus, at higher levels of development, the culture industry is not as stifling as Adorno deems it to be. However, the Russian culture industry has a long way to go before it can reach this point.

34 Spring 2012 Somaliland: A Model for Greater Somalia?

Liat Krawczyk

Introduction

Since the ousting of President Mohammed Siad Barre in 1991, Somalia has lacked a functioning central government, making it the longest incidence of state collapse in postcolonial history.1 A quintessential example of a failed state, Somalia is characterized by protracted armed conflict, lawlessness, warlordism, and factionalism.2 Internally, Somalia remains one of the world’s poorest countries,3 with some of the lowest human-development indicators. Externally, Somalia has been marked as fertile ground for transnational crime, piracy, and terrorism. However, the international community’s static depiction of Somalia as a “desperate quagmire of lawlessness and violent politico-economic competition”4 misses the nuanced oscillation between periods of intense violence and more peaceful eras5 and pays relatively little attention to pockets of functioning governance. In fact, the case of Somaliland, a region that has achieved remarkable peace- and state-building success, presents a stark contrast to the current perception of Somalia as a whole.

1 Ken Menkhaus, “Governance without Government in Somalia: Spoilers, State Building, and the Politics of Coping,” International Security 31, no. 3 (2006): 74. 2 Federico Battera, “Some Considerations on State Building in Divided Societies and the Role of the ‘International Community’: Somaliland and Somalia Compared,” Northeast African Studies 10, no. 3 (2003): 228. 3 Menkhaus 2006, 89. 4 Marleen Renders, “Appropriate ‘Governance-Technology’?—Somali Clan Elders and Institutions in the Making of the ‘Republic of Somaliland,’” Afrika Spectrum 42, no. 3 (2007): 441. 5 Peter Haldén, FOI, Swedish Defence Research Agency, Division of Defence Analysis, “Somalia: Failed State or Nascent States-System?: FOI Somalia Papers: Report 1” (2008): 11.

Liat Krawczyk was born to Argentinean parents and grew up moving between Israel and the United States. She holds a B.A. in Human Rights and Film and is pursuing an M.A. in International Development. Liat has served as a 2007 Humanity-in-Action Fellow, a 2008 Public Service Scholar Fellow, and a 2010 Junior Professional Fellow at the United Nations University. She works for the American Bar Association’s Center for Human Rights and its HIV/AIDS coordinating committee. Through documentary film and research, Liat has recorded the reality of marginalized, impoverished, and in- conflict people around the world, including survivors of the Holocaust and the atomic bomb, victims of violent insurgence in El Salvador, Sierra Leone, and Liberia, troubled youth in New York City, and Palestinian-Israelis. Journal of International Service

Meanwhile, the events of September 11, 2001 and the rise of the Islamist insurgent group al-Shabaab (a visible presence in Mogadishu since 20056) have placed Somalia on the international community’s agenda. As the U.S. and its allies shift national security strategies towards the development of fragile states, it is particularly pertinent to explore potential peace- and state- building measures in Somalia. Taking these issues into consideration, this paper explores whether Somaliland can offer prospects for alternative peace- and state-building models in southern Somalia. It begins by outlining Somaliland’s development path and delineating the characteristics that led to its success. It then explores southern Somalia’s resistance to peace- and state-building measures. Finally, it aims to distinguish which peace- and state-building characteristics are unique to Somaliland and can only work in its context, and examines conceptual and practical lessons for greater Somalia.

Somaliland and Somalia: Diverging Paths

The Republic of Somaliland, which declared independence in 1991 but remains hitherto unrecognized by external actors, “looks, smells and tastes like a state.”7 It boasts a functioning government with a president, a cabinet of ministers, a bicameral parliament, and a national judiciary, and has held multiple democratic elections at the local, presidential, and parliamentary levels.8 The forging of a coalition by two opposition parties to gain control over the parliament in 2005 has made Somaliland one of the only governments in Africa with “cohabitation” between rival parties in both the executive and legislative branches.9 Somaliland claims a territory, enacts laws, raises taxes, and has managed to do so with little technical or financial support from the international community.10 Remittances from the Somali Diaspora have been invested in businesses and real estate and have helped economic recovery. Somaliland has also established a respected police force and a national army, which helps to control and demobilize clan militias that would otherwise become a source of destabilization.11 Thus, the region has managed to maintain a high level of public security, provide services such as a public school system,12 and prove an exemplar for the possibility of organic state-building in the modern era.

6 Ibid., 16. 7 Renders 2007, 441. 8 Ibid. 9 Menkhaus 2006, 92. 10 Battera 2003, 227. 11 Menkhaus 2006, 101. 12 Ibid., 91.

36 Spring 2012 Somaliland: A Model for Greater Somalia?

Somaliland has thus made remarkable progress towards the creation of the Weberian state—“a human community that [successfully] claims the monopoly of the legitimate use of physical force within a given territory.”13 Somaliland’s ability to reconcile opposing factions, subsume local institutions, and forge ties with an elite who can provide development funds has helped establish significant control over the means of violence. Tilly’s explanation of the process in which European regimes monopolized violence also draws parallels to Somaliland, as in both cases, regimes were extended to local communities by subordinating police to the government rather than to individual patrons.14 Moreover, despite a lack of external legitimacy, Somaliland encompasses the three elements Weber delineates as critical for acquiring internal legitimacy: “the authority of the eternal yesterday” through the incorporation of traditional governance and reconciliation structures; the “authority of the extraordinary . . . qualities of individual leadership” exemplified by President Egal’s ability to mobilize support and resolve tensions; and “domination by virtue of legality,” as exemplified by the government’s evolution into a relatively successful democratic system. In contrast, south-central Somalia (henceforth referred to as southern Somalia) has resisted the creation of a modern state due largely to opposition stemming from the legacy of state repression and political fragmentation under the Barre administration.15 Since the regime’s fall, the international community has launched a myriad of interventions to reestablish a functional state in Somalia to no avail. Efforts comprise over a dozen national peace conferences, the launching of UNOSOM, UNITAF, UNOSOM II,16 and AMISOM,17 as well as the establishment of the Transitional National Government (TNG) in 2000 and the Transitional Federal Government (TFG) in 2004. The abundance of top- down, exogenous efforts has earned the region “the dubious distinction of being the world’s foremost graveyard of externally sponsored [peace- and] state-building initiatives.”18

Peace- and State-Building in Somaliland: An Overview

Somaliland—Somalia’s northwestern region—encompasses six of its 18 territories (roughly a fifth of the country) and between a quarter and a third of its population. Since declaring independence following the fall of Barre’s

13 Max Weber, Politics as Vocation (1921), 2. 14 Charles Tilly, War Making and State Making as Organized Crime in Bringing the State Back (Cambridge: Cambridge University Press, 1985), 175. 15 Battera 2003, 227. 16 Haldén 2008, 29. 17 Matt Bryden, “Somalia: Seizing the Opportunity,” Conference on the Current Peace and Security Challenges in the Horn of Africa. Addis Ababa, Centre for Policy Research and Dialogue and InterAfrica Group (2007), 21. 18 Menkhaus 2006, 74.

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regime in 1991, the region has presented a remarkable model for peace- and state-building. The principal cornerstone of Somaliland’s success has been the mutually reinforcing endogenous and bottom-up nature of its peace- and state- building processes.19 One of the earliest examples of Somaliland’s dedication to peace follows the 1991 civil war, when the victorious Somali National Movement (SNM)—a guerrilla movement, which started in 1981 as a protest against Barre’s exclusion of the Isaaq clan from government20—did not retaliate against the Dhulbahante, Gadabuursi, and Warsangeli militia groups that backed Barre’s army.21 Rather, the Guurti—a traditional council of elders22— employed a traditional resolution lens, shifting the focus of the conflict from a political to a clan-based problem.23 Violations such as death, injuries, and lootings were dealt with via traditional xeer, an unwritten set of laws through which one group compensated the other in instances of violation. Shir, or traditional negotiation and reconciliation mechanisms,24 were also employed instead of formal mechanisms such as courts,25 allowing parties to preserve their dignity and reach reconciliation in a swift manner. The role of the Guurti as a peace-builder grew stronger over time. When Somaliland’s newly established SNM-government collapsed due to internal tensions among the Isaaq clan over control of the Berbera seaport, the Guurti called a national conference of elders in Boroma to negotiate a ceasefire between clans.26 Lasting from January to May 2003, the Boroma reconciliation conference took a traditional form where delegates gathered under trees to discuss tensions. Yet, rather than solely discussing local issues as is customary, talks focused on regional problems.27 This conference set the precedent for a hybrid model, in which traditional processes were used to resolve political issues at the regional level. The conference also undertook an important peacekeeping function by cementing a national identity,28 which mitigated fears of marginalization held by peripheral regions and minority clans.29 After resolving difficult issues, the conference set out a state-building plan to allay future tensions. It developed and structured a power-sharing consociational and consensual system of governance, designed to divide

19 Battera 2003, 229. 20 Ibid., 444. 21 Ibid., 228. 22 Ibid., 442. 23 Renders 2007, 445. 24 Menkhaus 2006, 85. 25 Renders 2007, 445. 26 Ibid., 446. 27 Ibid. 28 Ibid., 447. 29 Battera 2003, 235.

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leadership posts between clans.30 The beel (clan) system of government comprised a President, a Vice President, a Council of Ministers, a Judiciary, and a bicameral Legislature.31 The legislature’s lower house was made up of representatives and the upper one of Guurti, representing “the highest organ of the state [and] the final arbiter in institutional and political conflicts.” Guurti members were elected via each clan’s political processes.32 Such mediation mechanisms were successfully extended and formalized at the regional levels.33 Somaliland’s development is largely due to its ability to incorporate traditional institutions into government.34 The strength of Somaliland’s customary institutions can be traced to the precolonial era. As a dispersed nomadic people, Somalis regulated relations among clans through xeer, which was administered by the Guurti rather than by a central authority. Later, as a British colony, the indirect rule system was applied in Somaliland. This allowed local systems to remain intact as governance occurred through an already- established system of authority made up of local clan chiefs and elders, rather than through direct colonial administration.35 Despite the unification of British Somaliland with Italian Somalia in 1960, and the subsequent outlawing of traditional institutions under President Barre,36 these systems remained important. Most notably, the SNM required the consolidation of local support within northwestern Somalia. In return for support, the SNM granted local elders a voice in the movement. Thus, the Guurti moved beyond its traditional sphere of influence at the grassroots level and became political at a national level. By the time Barre’s regime fell in 1991, the Guurti had been established as a strong leadership force in the northwest and played a significant role in promoting the independence of Somalia. Beyond strong traditional institutions, the leadership of President Mohamed Ibrahim Egal, a veteran Isaaq politician,37 was vital in Somaliland’s nascent stages. Egal had served through the most critical moments of Somaliland’s history, including as former prime minister under the 1960s civil regime, as Somalia’s ambassador to India during Barre’s administration, and through Somaliland’s declaration of independence. Trusted by the elders of the Guurti, and having never been involved in any of the SNM’s political or military factions,38 he was particularly adept at mediating between clans39 and reconciling modern and traditional governance methods.

30 Ibid., 228. 31 Haldén 2008, 31. 32 Renders 2007, 446. 33 Battera 2003, 228. 34 Renders 2007, 441. 35 Haldén 2008, 21. 36 Renders 2007, 442. 37 Ibid. 446. 38 Ibid., 447. 39 Battera 2003, 229.

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Egal solidified the institutionalization of the hybrid governance system. In 1997 an Isaaq sub-clan called Habar Yunis opposed Somaliland’s government because they felt disenfranchised. Negotiations started among local elders rather than at the national level since Guurti elders, who had previously served a strong role in reconciliation, were now seen as partisan rather than neutral.40 In order to consolidate this dual system, Egal offered political spoils to Habar Yunis and urged them to stop negotiations. In 1999, he called another national reconciliation conference in Hargeysa, Somaliland’s capital, which was attended by clan elders. In part due to pressure from the Diaspora, a new constitution was approved, shifting the clan-system to a political party-system.41 The conference consolidated local governance and taxation under the state. In an effort to deliver services more efficiently, this strategic move effectively expanded the state beyond elders’ control by adopting the characteristics of a “modern [Weberian] state.” To this end, Egal’s regime reduced its reliance on indirect rule by extending its administration to the local community and generating a police force subordinate to the government rather than to individual patrons.42 Regular consultations were held with paramount chiefs operating in local Guurtis, which helped to channel requests for needed services and provided a means of voicing grievances.43 Additionally, the police force and formal justice system were often compelled to ratify decisions made by elders for fear of undermining stability.44 For example, while the police handled petty offenses, crimes such as murders were judged by elders and often settled out of court through xeer means.45 However, “the fact that conflicts were processed via the traditional system did not hinder the shift of real control from elders to the political class.” Since many government agents were part of local Guurti, the loyalty to political patrons who appointed them (i.e., the state46) was secured. The state’s outsourcing of security and extension of control to local arenas helped the massive pacification and monopolization of the means of coercion.47 Finally, one of the features that allowed Somaliland to develop in a truly endogenous fashion was the lack of external financial support. From the unification of British Somaliland and Italian Somalia in 1960, until the fall of Barre’s regime in 1991, Somaliland received an average of 7 percent of the total amount of development aid given to Somalia.48 Since declaring independence, Somaliland has had two fundamental sources of funding: the private sector,

40 Renders 2007, 448. 41 Haldén 2008, 31. 42 Tilly 1985, 175. 43 Battera 2003, 229. 44 Renders 2007, 451. 45 Ibid. 46 Ibid., 452. 47 Tilly 1985, 175. 48 Haldén 2008, 33.

40 Spring 2012 Somaliland: A Model for Greater Somalia?

and remittances,49 often referred to as Diaspora taxation. Indeed, it is often the Diaspora that holds Somaliland authorities accountable to their constituents by supporting democratic practices.50 The solidification of the government in Somaliland has often relied on the private sector, which views the state as critical for the promotion of their economic interests. In Barre’s times, traders funded the SNM to oppose restrictions on exports.51 Today, they no longer have to compete with southern Somalia. Because of the benefits businessmen hoped to reap from the creation of the state, Egal was able to secure 3 million dollars from traders in Djibouti in return for tax breaks for imports into Somaliland via the Berbera port. He subsequently introduced a new currency and a national bank.52 Not only did the money pay for the demobilization of SNM militia, as well as for the salaries of the new government and administration, it also helped Egal take greater control of the government. Just as in Europe’s early development stages, there was a “seemingly symbiotic relationship [that existed] between the state . . . and the private economy’s efficiency [where] behind every successful dynasty stood an array of opulent banking families [and where] access to such bourgeois resources proved crucial to . . . state-building and centralizing policies.”53 However, it is important not to over-romanticize Somaliland’s success in the face of several setbacks. For example, in 2005 the upper house of parliament extended its term in office for an additional four years,54 undermining the very idea of a consensus-driven Guurti.55 Also, the composition of the Guurti excludes women from decision making.56 In other instances the government has become repressive, such as in 2007, when it cracked down on the independent media,57 leading 32 members of parliament to put forth a motion calling for impeachment of President Kahin.58 Moreover, while private-sector support has been crucial for the development of the region, Somaliland has been criticized as a puppet of the business elite, which prefers an easily manipulated, weak administration. Given the difficulties of taxing its nomadic people, Somaliland’s public revenues only amount to about 30 million USD, about 60 percent of total expenditure.59 Thus, export traders exert great leverage on the current government, as moving elsewhere threatens to shatter Somaliland’s tax base.

49 Ibid., 37. 50 Ibid., 31–32. 51 Tabea Zierau, “State Building without Sovereignty: The Somaliland Republic,” Mondes en Développement 31, no. 3 (2003): 58. 52 Ibid. 53 Tilly 1985, 179. 54 Bryden 2007, 28. 55 Renders 2007, 452. 56 Bridget Kimball (Programme Manager, IREX), interview by Liat Krawczyk, April 22, 2011. 57 Bryden 2007, 27. 58 Ibid., 28. 59 Zierau 2003, 58.

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Furthermore, in order to pacify tensions and preserve the interests of businessmen, a primary government task has been to keep a balance of economic power between clans by maintaining unequal access to markets, since economic protection continues to be channeled through tribalism. For example, the Habr Awal controls the Berbera port and khat trade, while the Habr Jeclo controls trade in livestock.60 This division of economic spheres along clan lines suggests that reconciliation effects have been limited. Finally, despite the African Union commission’s argument in May 2005 that Somaliland should receive recognition as a sovereign state, the region continues to lack external recognition and legitimacy, as the international community is afraid that recognition will instigate a Pandora’s box of secessionist claims.61

Southern Somalia: Resistance to Peace- and State-building

Unlike neighboring Somaliland, southern Somalia has been without an effective government since the fall of the Barre regime in 1991. The Somaliland model, characterized by an embrace of traditional institutions, incorporation of local- level stakeholders, and little support from the international community, is diametrically opposed to the practices pursued in southern Somalia.62 To comprehend the distinct trajectories of the two regions, it is essential to explore the elements of resistance to such developments in southern Somalia. One of the primary limitations to peace-building in Somalia has been the fragmentation produced by the legacy of Siad Barre’s regime. Utilizing a divide-and-rule strategy, it succeeded in manipulating inter-clan animosities to undercut any opposition, subsequently solidifying politicized clan identities. Such division was reinforced by the makeup of institutions such as the army, primarily composed of Darod sub-clans.63 With the loss of the Ogaden War with Ethiopia in 1977–78, and the emergence of two major rebel groups who staged an unsuccessful coup against Barre, the regime became increasingly oppressive.64 This further solidified diametric group identities by collectively punishing communities who were seen as the supporters of opposition movements.65 Beyond the cementing of clan cleavages, Somalia under Barre had become a failed state long before the government’s fall in 1991.66 Extensive Cold

60 Ibid., 60. 61 Bryden 2007, 2. 62 Haldén 2008, 31. 63 Haldén 2008, 26. 64 Ibid., 25. 65 Ibid., 27. 66 Menkhaus 2006, 80

42 Spring 2012 Somaliland: A Model for Greater Somalia?

War funding (on which the regime depended for its survival67) had created an expansive and unsustainable patronage network.68 The freezing of aid by western donors in 1988–89 depleted the regime of resources. This led to even greater government repression, higher levels of corruption, and a narrower neopatrimonial network, which further exacerbated clan tensions. The subsequent fall of the government resulted in a complete devastation of Somalia, severe factional warfare, and famine, which led to the death of an estimated 250,000 people and the displacement of 1 million Somali refugees.69 Cleavages between groups have greatly hindered state-building in Somalia as fragmentation has prevented clans from uniting to form a post-Barre government. More importantly, the “feeble unitary state experience”70 has created resistance to the idea of a centralized government. The history of the regime has produced different types of spoilers. Some see the creation of the state as a zero-sum game,71 where leadership by a narrow political and clan coalition leaves other groups marginalized. For example, identification of TFG leadership as a Darod-led government left many Somalis, and especially the Hawiye, feeling disenfranchised and fearful that the Darod’s power would be used against their clan.72 Others with a vested interest in the rule of law— including businesspeople, neighborhood groups, and professionals—have become spoilers, as they fear the revival of a repressive and corrupt central government that will harm their prospects of success.73 Despite Somali reluctance to adopt a centralized state, the international community has insisted on establishing a central government. Such attempts have been particularly detrimental in instances where external interventions have crushed nascent internal state-building efforts. This phenomenon is best exemplified by the TFG’s displacement of the Union of Islamic Courts (UIC).74 Formed across clan cleavages with the aim of handling disputes within and across clan lines, the UIC dramatically improved security in southern Somalia. In 1999, Mogadishu came under a single authority for the first time in 15 years. Business people in the capital refused to pay taxes to local warlords, instead buying militiamen away from them and paying them to work for local Sharia courts.75 In such a manner, the UIC disarmed much of the clan militia, warlords, and gangs and gained public support both among their constituents at home and from the Diaspora. Ethiopia’s 2006 defeat of the UIC in the name

67 Haldén 2008, 26. 68 Menkhaus 2006, 80–81. 69 Ibid., 81. 70 Battera 2003, 226. 71 Menkhaus 2006, 78. 72 Bryden 2007, 17. 73 Menkhaus 2006, 82. 74 Ted Dagne, Congressional Research Service Report for Congress, “Somalia: Current Conditions and Prospects for a Lasting Peace” (2010), 19. 75 Menkhaus 2006, 88.

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of strengthening the TFG led to the deterioration of the UIC as an organization, the return of weapons and militia to clan authorities,76 and a disbanding of the Sharia courts, which increased lawlessness. With little internal legitimacy, the TFG could not replace the power vacuum that remained.77 Finally, due to its difficulties securing taxes, the southern Somali government has relied largely on external revenues. Inconsistent and unpredictable foreign funding has made long-term investment difficult and has promoted unsustainable expansive patronage networks.78 If state-building requires the creation of a social contract between a government and its own population, donor-determined funding has managed to delegitimize governance and set a precedent by which the recipient government is only nominally accountable to its people, answering first to external powers. Thus, while in Somaliland, society and the state are intertwined and mutually dependent, southern Somalia’s lack of accountability has decoupled the state from society.79

Applying the Somaliland Model to Greater Somalia—Challenges and Prospects

Several factors make the experience of the northwest unique, despite a substantive common history with the rest of the country. Many of the success factors in Somaliland are contextual and cannot be readily replicated in southern Somalia. In terms of the ability to forge peace, Somaliland’s colonization by the British gave the northwest’s population a sense of distinct identity, and a notion of their homeland as a distinct political entity.80 Moreover, during Barre’s regime, relations between the northwest and the rest of the country were extremely unequal. Southerners dominated all political institutions, senior positions, the national army, and the economy. Feelings of political and economic marginalization decreased support for the 1960 unification of the two former colonies.81 For Somaliland, suffering at the hands of Barre’s regime had the opposite effect than in southern Somalia. Its history of regional discrimination and fighting as a community encouraged subsequent cohesiveness, which ultimately allowed the successful formation of territorial entities in the 1990s.82 Similarly, the role of leadership in shaping peace- and state-building practices is not easily implemented. Not only has southern Somalia lacked a

76 Ken Menkhaus, “Somalia: An Expanding Crisis?,” Conference on the Current Peace and Security Challenges in the Horn of Africa. Addis Ababa, Centre for Policy Research and Dialogue and InterAfrica Group (2007): 31–45, 32. 77 Ibid., 35. 78 Menkhaus 2006, 79. 79 Haldén 2008, 38. 80 Ibid., 15. 81 Ibid., 22. 82 Ibid., 25.

44 Spring 2012 Somaliland: A Model for Greater Somalia?

figure such as President Egal, but the role of traditional leaders has also been much weaker than that of the northwest, partly due to the fact that Italian colonizers’ direct-rule system destroyed traditional institutions. Thus, decolonization left southern Somalia in limbo, “too changed to leave an effective role for traditional institutions of elders and shirka (assembly debates) and too unchanged to accommodate modern methods of governance.”83 Although many features of success are confined to Somaliland’s unique context, several lessons can be applied to greater Somalia. For one, there is a need to push for self-directed peace- and state-building practices. As Somaliland shows, such movements hold greater legitimacy, enable stability, and are more likely to be sustainable. Because the legacy of Barre’s regime has created a great distrust in state structures, there is “perhaps no other issue on which the worldviews of external actors and Somalis diverge more than their radically different understanding of the state.”84 While the international community continues to advocate the establishment of a central government as a critical pillar of stability and a prerequisite for development, Somali experience has painted the state as an instrument of domination, manipulation, and exploitation rather than one of provision and protection. Thus, there is a need to question the “fundamental assumptions underlying the top-down unitary state-building exercise so commonly attempted.”85 The international community’s “insistence on the sacrosanct position of formal statehood”86 must take into account Somalia’s exceptional situation. The absence of an effective state for the past 20 years has made state revival more difficult as local coping mechanisms have developed to take over governance functions, and resistance to a central state has hardened. Thus, state-building in Somalia must be particularly sensitive to local context and work within its unique paradigm.87 In this vein, one option is to change the “conceptual focus from failing state to nascent state-system,” moving from a state-building to a system- building approach.88 Indeed, in Somalia there are a myriad of political units that control violence and revenue in their respective spheres without adhering to a higher authority. Allowing Somalia to remain a sub-system and aiding peace-building on a “case by case basis rather than according to axioms”89 may be the most realistic way of forging order in the region. Such an approach can

83 Medhane Tadesse, “Contested Spaces, Competing Narratives: Benchmarks for Conflict Management in Somalia,” Conference on the Current Peace and Security Challenges in the Horn of Africa. Addis Ababa, Centre for Policy Research and Dialogue and InterAfrica Group (2007): 46–65, 57. 84 Menkhaus 2006, 87. 85 Seth Kaplan, “Rethinking State-Building in a Failed State,” The Washington Quarterly 33, no. 1 (2009): 144. 86 Haldén 2008, 57. 87 Menkhaus 2006, 78. 88 Haldén 2008, 8. 89 Ibid., 56.

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help shift the rhetoric about Somalia as a failed state to a more positive dialogue about what is working in terms of local structures and organization.90 Yet, such a systems-building approach, which supports dividing territories into locally governed blocks and uniting them in a decentralized manner once they act as functioning polities, is unlikely to be embraced by the international community. Practically, there is a need to reconsider the way in which external interventions are exercised. One of the main lessons learned from the creation of the UIC is that Somalis will transcend clan identities when an attractive political or ideological alternative is presented and “revert to clan when the impulsion towards success is blunted by external interference.91 The crushing of the UIC is a quintessential example of how external interventions can undo endogenous state-building processes that can bring stability to the region. Thus, another option for Somalia—that may come closer to replicating Somaliland, where government and local entities are inextricable—is the establishment of a mediated state. In this model, the internationally supported central government plays a minimalist function; it limits itself to essential functions that are not met by local, private, and other entities (e.g., a coordinating function), and resists the exercise of power over entities it cannot realistically control. An (albeit, often uneasy) partnership is established between the government and other entities—in other circumstances considered rival authorities—to divide labor in a manner that provides basic security and services to the public. Narrowing the power of the central government reduces the threat of zero-sum control, as the worth of capturing the state decreases and power is not controlled by a single entity.92 Moreover, it enables a process of harmonizing local authorities and lending them legitimacy rather than displacing them and spurring resistance. The hope is that such networks can grow in partnership either as a permanent structure or as a transition towards a functional central government,93 thus encouraging bottom-up development. Such states are hardly ideal and are often fraught with difficulties. For example, they hinder the ability of governments to use state revenues for patronage networks, often crucial to forming a government of national unity.94 Yet, they may be the best (and only) alternative for the weak Somali state. There is also a need to hold fundamental debates about the role of aid. On one hand, withdrawing foreign aid may serve as an incentive to promote locally supported state-building,95 raising accountability and legitimacy as in the case of Somaliland. On the other hand, reducing foreign aid can deplete the

90 Ibid., 17. 91 Tadesse 2007, 46–65, 55. 92 Menkhaus 2006, 103. 93 Ibid., 106. 94 Ibid., 95. 95 Ibid., 95.

46 Spring 2012 Somaliland: A Model for Greater Somalia?

country of resources. Such a move would be particularly detrimental in light of the escalating famine, the weak economy, tax evasion, and resistance from regional and private authorities to share or give up control over revenues that come from customs. Reduction of western aid may also leave room for Islamic agencies to provide services such as schooling and health, creating fear that political Islam will take over the ideological vacuum in Somalia.96 While the above potentialities deserve consideration, it is important to move beyond a laundry-list approach to peace- and state-building and begin to strategically prioritize actions.97 Often, the labeling of Somalia as an archetypal failed state makes the creation of a successful state the starting point when talking about solutions for Somalia.98 However, if the key objective in Somalia is the maintenance of viable order and stability, then Somaliland presents a case for stressing peace-building prior to state-building, since it formed political and social institutions only after resolving inter-clan disputes. Decision makers should avoid “prima facie assumptions of a connection between [the] sovereign state and peace and security.”99 State- building and peacemaking are two distinct goals that are not necessarily mutually supportive. Indeed, time and again state-building processes have fueled and perpetuated conflict. In Somalia’s context of state collapse, state- building processes in particular seem to exacerbate armed conflict and instability.100 Because of the zero-sum mentality associated with the creation of a state, any intervention to establish a central government will inevitably necessitate taking sides in internal Somali disputes. 101 Indeed, Somalia faces incredibly difficult challenges for peace-building and subsequent state-building, unlike Somaliland, which is numerically dominated by the Isaaq clan and cohabits with a few minority clans. Meanwhile, two major clans who have clashing values and political agendas dominate southern Somalia. The Darod, who are backed by Ethiopia, are strongly anti-Islamist and prefer a federal government. The Hawiye, who are backed by the Arab world, hold anti-Ethiopian sentiments, favor Islamists, and seek a centralized Somalia with a capital in Mogadishu.102 A multitude of issues still plague Somalis, including,

96 Tadesse 2007, 46–65, 55. 97 Charles Call, unpublished article, “Two Decades of Thinking About Peacebuilding,” 8. 98 Haldén 2008, 11. 99 Ibid. 100 Ken Menkhaus, “State Collapse in Somalia: Second Thoughts,” Review of African Political Economy 30, no. 97 (2003): 408. 101 Menkhaus 2006, 94. 102 Haldén 2008, 41.

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unaddressed war crimes and deep inter-clan grievances over atrocities committed; massive levels of stolen property, unresolved property disputes, and occupied territory; the rise of warlords and others with vested interests in continued lawlessness and impunity; the near-universal spread of armaments; the destruction of much of Mogadishu; the looting of nearly all public goods and state properties; the flight of as many as a million Somalis abroad; massive internal displacement; and an unresolved secession in the north.103

Despite these intensely rooted grievances, the international community has given state-building preference over peace-building. Rather than focus on consensus-building, efforts have focused on the “purchasing of political allegiance and co-opting of rivals,104 which accounts for the high failure rate of power-sharing accords.105 For example, when forming the TNG, delegates at the Arta peace talks postponed conflict issues deemed too sensitive or divisive to manage, in favor of moving talks towards power- sharing. However, grievances cannot be left unaddressed, as a government of national unity will inevitably collapse. Furthermore, the example of Somaliland shows that “local pacification is a precondition for national reconciliation”106 and emphasizes that local agreements are more likely to be respected than national agreements,107 as most people’s interests are still tied to their own constituencies. Yet, in Somalia preference has been given to top-down national reconciliation processes108 that are primarily symbolic. The differing degrees of seriousness given to reconciliation are reflected in the significant time differences allotted to peace conferences. For example, while Somaliland’s Grand Conference of National Reconciliation in Borama was held over five months, the Arta Peace Conference lasted only 15 days.109 Thus, a greater focus and longer commitment should be placed on local peace-building measures.

Conclusion

Somaliland’s development has been enabled by a multiplicity of causes and circumstances that are often inextricable and cannot be neatly delineated. Yet, a

103 Menkhaus 2006, 81. 104 Ibid., 79. 105 Ibid., 78. 106 Battera 2003, 231–232. 107 Ibid., 233. 108 Ibid., 240. 109 Renders 2007, 446.

48 Spring 2012 Somaliland: A Model for Greater Somalia?

few primary characteristics have been distinguished as fundamental to the region’s success. For one, Somaliland’s organic peace-building process has been key to its stability. Pacification has been facilitated by the incorporation of traditional leadership such as the Guurti and institutions such as shir. This has allowed for bottom-up communication from local to national forums, fostered ownership among clan leaders and local constituencies, and lent legitimacy to reconciliation processes. These factors have created a real desire for peace, as illustrated by the amount of time devoted to resolving tensions in the Boroma and Hergeysa conferences. Conversely, southern Somalia is plagued by severe fragmentation along clan lines and a zero-sum mentality that hinders concessions. Moreover, the multitude of top-down reconciliation efforts have not been rooted in traditional institutions, have devoted little time to resolving complex grievances, and have ultimately hindered the unification needed for state-building. Certain elements such as a lack of strength and legitimacy in traditional institutions, as well as the heterogeneous makeup of clans in Somalia, are difficult to change. However, Somaliland illustrates that true reconciliation efforts must extend over long periods. Moreover, it shows that systems of security are often enabled by coalitions that cross clan lines. Thus, successful movements such as the UIC should not be completely destroyed but supported by the international community with pressures to curtail factors like extreme Islamism. Another unique marker of Somaliland’s success has been its self-reliant bottom-up state-building. This process was made possible by the creation of a hybrid modern-traditional system rooted in a parliamentary divide between representatives and Guurti as well as the collaboration between modern police’s justice means and the local Guurti’s customary use of xeer. A lack of external funding was also essential, forging a system of accountability by forcing leadership to enter into a mutually dependent relationship with taxpayers, the private sector, and the Diaspora. On the other hand, southern Somalia has been the subject of numerous attempts to build a central state despite deep reluctance. It has seen numerous spoilers benefit from the lack of a state, and is burdened by a history of dependence on external aid. Thus, there is a need to recognize the fears associated with creating a central government and to shift policies and approaches accordingly. Actions moving forward could include a paradigm shift from a state-based to a system-based approach, which requires greater recognition and support of local successes. They could also involve the reduction of executive functions and a greater ceding of power to the municipal level to gain bottom-up legitimacy based on aspects such as successful service delivery and more in-depth discussions about the role of aid.

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Finally, the prioritization of peace-building over state-building in Somaliland allowed for the emergence of a united government, which was in turn able to consolidate peace, in a reinforcing cycle. If the main priority for southern Somalia is stability, actors must acknowledge that peace-building and state-building often undermine one another and that resolution of tensions must precede the creation of a unified state. At the same time, upon the establishment of a state, there must be discussions about which state structure is most conducive to maintaining peace. However, to truly understand whether Somaliland can serve as a model for greater Somalia, extensive research into the processes that have led these neighboring regions to diverge so distinctly is needed. While basic lessons may serve as initial steps in forging greater peace- and state-building success in Somalia, greater political will and interest will be required to take on the risks that are associated with the experimentation of new models and surpass complex realities on the ground.

50 Spring 2012 Regulatory Convergence and North American Integration: Lessons from the European Single Market

Inu Barbee

North America is more than a geographic boundary. It is a continent with a shared history, an economic space bound by rules and procedures, and a transnational network of businesses and people. Yet, Canada, Mexico, and the United States are partners in an incomplete and at times uneven integration process. The concept of North American integration has not always been popular either, and is often characterized by Canadian fears of Americanization and U.S. fears of an overflow of Mexican migrants, coupled with jobs fleeing the country. Despite these fears, the North American Free Trade Agreement (NAFTA), which kick-started progress towards economic integration, has been quite successful. In fact, since NAFTA came into force in 1994, trade flows between the three neighbors have tripled. Yet at the same time, the events of September 11, 2001 had a deleterious impact on the trade relationship as the borders were thickened and integration fell off the Bush administration’s agenda. This decline is clear in the figures, as North America’s share of world product went from 30 to 36 percent from 1994 to 2001, then declined to 29 percent in 2009.1 U.S. trade with Canada and Mexico experienced a steady decline in the rate of growth from 17.7 percent in 2001 to 5.9 percent in 2008, a troubling statistic.2 This downward trend has led to a reassessment of NAFTA by many and a call for its revision. Furthermore, it has made the academic and policy community rethink the value of this partnership, and what, if anything, can be done to improve it. In searching for a solution, it is imperative to examine the most successful integration project attempted in recent history, that is, the completion of the European Single Market. The roots of European integration

1 Robert Pastor, The North American Idea (New York: Oxford University Press, 2011), 23. 2 Ibid.

Inu Barbee is an M.A. Candidate in U.S. Foreign Policy at the School of International Service. She is a Graduate Associate for the Center for North American Studies and was the inaugural recipient of the 2011 David Stemper Fellowship. Her research interests include European integration and North American studies.

Journal of International Service

reach deep into history, but the idea of Pan Europa experienced a revival in the postwar atmosphere, through philosophers like Coudenhove-Kalergi. The wartime resistance movements of the Second World War further spurred this idea, and supporters of European integration fell into two broad camps: those who wanted to see a federalist European state, and those who believed in a European union that preserved state sovereignty. Whatever the outcome, both groups shared one common belief that the current system—left wounded by two horrific wars—was in need of reform. Jean Monnet and Robert Schuman heralded the idea of a free trade area between France and Germany, in an effort to eliminate the historic rivalry between the two states. This led to the formation of the European Coal and Steel Community (ECSC) in 1952, which also included Belgium, Italy, Luxembourg, and the Netherlands. Monnet saw the ECSC as the beginning of a process towards sectoral integration and believed that forging strong economic bonds would result in political unity and peace.3 This newly formed entity, however, was to be tested shortly after formation, as the United States remained engaged in the Cold War and feared that a demilitarized Germany would leave the West vulnerable to the Communist East. The French remained hostile towards German remilitarization and instead proposed the formation of a European Defense Community (EDC), which would place a portion of the signatories’ troops and all West German troops under a European Command, creating a European army. The formation of the EDC would have been a giant leap for European integration. Yet, as the United Kingdom refused involvement and the six founding members were at odds with how the organization would function, the idea of the EDC dissolved, receiving its final deathblow with the French parliament failing to ratify the treaty. Sectoral integration suffered its first casualty. During the EDC talks, Dutch foreign minister Johan Beyen argued that sectoral integration was insufficient and pushed forward Monnet’s original idea of an economic union, calling for the elimination of tariffs and the establishment of a customs union and common market.4 This idea failed to garner adequate support at the time, but in 1955 Belgian foreign minister Paul- Henri Spaak proposed the creation of a European Economic Community (EEC) that would do just that. In addition, he wanted to continue sectoral integration in the field of civil nuclear energy. Fearing the loss of hard-earned achievements in creating the ECSC, coupled with a feeling that the European integration project was in decline after the failure of EDC, the original six supported EEC and Euratom. It is important to note that the idea of the

3 Derek Urwin, “The European Community: From 1945-1985,” in European Union Politics, ed. Michelle Cini, 12–27 (New York: Oxford University Press, 2004), 17. 4 Ibid., 18.

52 Spring 2012 Regulatory Convergence and North American Integration

common market was not well developed at this time, and it was unclear as to what exactly it would encapsulate. Removing barriers to trade was at the heart of it, but there was no consensus yet on how to go about achieving this. France withheld support for the EEC until it was guaranteed that the common market would include its declining agriculture industry and favor its overseas possessions.5 The negotiations culminated in the signing of the Treaties of Rome in 1957, creating the EEC and Euratom. These organizations would later merge with the ECSC into the European Community (EC) in 1967. It was projected that the completion of the common market would take twelve to fifteen years from the signing of the Treaties of Rome. Throughout the 60s, trade barriers were slowly removed and customs duties disappeared among the EC members by 1968; however, trade was still not flowing freely across their borders. As the European Commission attempted to increase its authority, it faced fierce resistance from French President Charles de Gaulle. In response to De Gaulle’s veto of U.K. membership to the Community in 1961, the Commission tried to reform the unanimity rule and put forward the idea of qualified majority voting (QMV) in the Council of Ministers. De Gaulle saw this as a direct threat to national sovereignty and remained increasingly suspicious of the Commission, going so far as removing the French representative to the Council from all meetings. The “Empty Chair Crisis” in this decade of De Gaulle truly disheartened the Commission, which remained hesitant about any grand proposals until well after De Gaulle’s departure in 1969.6 The legacy of De Gaulle highlighted that intergovernmentalism, as opposed to supranationalism, was the key driver to European integration. Much of this rested on the relationship between the French and German leaders at the time. De Gaulle’s successor, Georges Pompidou, and Germany’s new Chancellor Willy Brandt did not share the most amicable of relationships. In fact, they clashed on foreign policy, with Brandt championing Ostpolitik; they also disagreed on the future of De Gaulle’s much-cherished Common Agricultural Policy (CAP), which was becoming a financial burden on the EC. The relationship was further strained by the accession of the U.K. in 1973, and the ensuing budgetary problems of the Commission. Pompidou’s death and Brandt’s resignation in 1974 brought Valéry Giscard d’Estaing and Helmut Schmidt into office. Giscard d’Estaing and Schmidt established a strong rapport and set the foundation for Franco-German cooperation in the decade ahead. In the 1970s and early 1980s, oil shocks, recession, and monetary instability took their toll on the integration project. Obstacles remained, with protectionist policies and uneven harmonization of member states’ national regulations. The completion of the common market seemed distant at best.

5 Desmond Dinan, Ever Closer Union, 2nd ed. (Boulder, CO: Lynne Reinner Publishers, 1999), 31. 6 Ibid., 48.

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These problems were exacerbated by the continual British budgetary impasse, in which the U.K. demanded a refund for uneven budgetary contributions to the EC. Margaret Thatcher’s approach in negotiations was nothing less than antagonistic, and effectively stalled progress in other areas of the EC until the resolution of the budgetary question in 1984.7 The most important lesson gleaned from this experience was that in order for the common market to go forward, institutional reform was integral. The unanimity rule in the Council produced institutional immobility, and Commission proposals gathered dust as intergovernmental hostilities blossomed. Something had to change or the EC would remain stagnant. In the midst of the political and economic turmoil, an ideological shift was underway in Europe as well. Thatcher’s influence was not entirely negative; she ushered in privatization and deregulation in the U.K. and supported similar policies for the continent. French President François Mitterand at first resisted, applying a state-centered approach to pulling France out of recession. This traditional approach was ineffectual, and at the urging of his finance minister Jacques Delors, Mitterand changed course. He decided to follow the U.K. and the U.S., and focused on deregulation. The other EC member states took heed, and talk of a unified approach to getting out of the slump began to take shape. Emboldened by the growing will of their leaders that the status quo was untenable, the European Commission saw the crisis as an opportunity to revitalize the Single Market Program (SMP); the cost of “non-Europe” was deemed too high. Former French Finance Minister Jacques Delors, who became Commission President in 1985, and British Commissioner Lord Cockfield, with the support of EU business elites, recognized the need to complete the single market. They set out to build a proposal that would be amenable to all member states. The process was an arduous set of political and economic compromises and astute bargaining culminating in the Commission White Paper on the Single Market (1985) and “objective 1992,” which set the foundation for the Single European Act (1986) and Treaty on European Union (TEU). Progress towards the single market was slow and at times difficult, and though it was not entirely complete by the 1992 deadline, the member states continually worked to address inefficiencies and regulatory barriers. A shift had emerged as the EC recognized that sectoral integration had its limitations, and that a broader approach focusing on deregulation was the way forward. The European experience is directly relevant to North American integration, as our three countries face a similar crisis and opportunity. Slow recovery from the 2008 financial crisis and protectionist measures have threatened North America’s global competitiveness and significantly weakened its economies. Economic devastation in Europe during the 1970s could have

7 Ibid., 91–92.

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easily stalled integration, and almost did. However, leaders such as Delors and Cockfield thought beyond the economic quagmire of the time to establish a system that would ensure Europe’s global competitiveness. But what they achieved was not so much a grand bargain as it was an acknowledgment of the real issues that the EC was facing and a practical approach to tackle them. The key focus of the SMP was the elimination of nontariff barriers (NTBs) to trade, a significant portion of which arise from minor regulatory policy differences in member states.8 However, regulatory barriers are not exclusive to the EU; in fact all three North American leaders at one time or another have acknowledged that the “tyranny of small differences” caused by regulatory policy and protectionist measures are the greatest challenge to further economic prosperity in North America.9 Where North America has failed, however, is in developing a mechanism to address this issue. The Security and Prosperity Partnership (SPP) and the Regulatory Cooperation Framework (RCF) have attempted to bridge the gap, but in the end, have provided little momentum to keep the process going. Therefore, it is highly instructive to look to the EU in order to understand how regulatory cooperation can be achieved, and more importantly, how it is implemented and maintained. NAFTA has been outgrown. It is no longer reflective of the reality of economic integration in North America, and requires significant transformation. The political and business leaders of the EC in the 1980s refused to see it as the end-all of European integration and ventured into unknown territory to revitalize the continent and Europe’s place in the world. Like the EC, NAFTA must not be viewed as a finished product, but rather a step towards a North American integration project. Such an endeavor can learn vital lessons from the success and failures of EU integration and formulate a model that works distinctly for North America. Regulation lies at the heart of future integration, and without a push towards convergence, integration will continue to stagnate. An assessment of the North American approach to regulatory convergence, examined comparatively to the EU, will shed light on possibilities for reform and a way forward. A discussion of the unique institutional imperative of EU institutions and their relationship with the member states will be central to this analysis, serving to highlight that NAFTA’s weakest point is the lack of institutional prerogative and continuity at the bureaucratic level, coupled with insubstantial political leadership from above.

8 Renaud Dehousse, “Integration v. Regulation? On the Dynamics of Regulation in the European Community,” Journal of Common Market Studies 4 (1992): 395. 9 Joint Statement by North American Leaders (Guadalajara, Mexico, August 10, 2009) http://pm.gc.ca/eng/media.asp?category=3&id=2723.

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Regulation and Impacts

Before launching into a description and assessment of NAFTA’s regulatory challenges, it is critical to explain what regulations are in the first place and why they are so important. Regulations allow governments to set specific requirements on firms and citizens through laws, formal and informal orders, and rules imposed by self-regulatory and nongovernmental bodies with regulatory authority.10 Basically, regulations are the means by which broad policy goals are translated into rules that mitigate economic behavior. The OECD describes regulations as falling into three categories:

[E]conomic regulations intervene directly in market decisions such as pricing, competition, market entry, or exit; social regulations protect public interests such as health, safety, the environment and social cohesion; and administrative regulations deal with paperwork and administrative formalities through which governments collect information and intervene in individual economic decisions.11

Policy objectives among states may be similar, but regulations can differ due to varied legislative practices, styles, experiences, and institutional assignments; the differences that these create in regulations can have an enormous impact on economic activity.12 For example, a company in country A produces cheddar- flavored popcorn and wants to sell this product to country B; country B regulates that the cheese seasoning in this popcorn must be less than 49 percent real cheese, whereas in country A, 53 percent real cheese seasoning is used. Therefore, unless country B adjusts its regulation, country A cannot sell cheddar-flavored popcorn to that market, thus eliminating a potential economy of scale. This anecdote is not a mere hypothetical, but an actual example of a regulatory difference between the U.S. and Canada, and there are many more like it.13 Regulatory barriers can effectively limit a company’s growth. This is most visible in small and medium-sized enterprises, which do not have the resources and time available to find out the regulatory regime of another country that they may want to export to, thus discouraging expansion altogether.

10 Michael Hart, “Trading Up: The Prospect of Greater Regulatory Convergence in North America,” United Nations Publications (2007): 13. 11 OECD, “The OECD Report on Regulatory Reform: Synthesis” (Organization for Economic Cooperation and Development, 1997), 6. 12 Hart 2007, 13. 13 External Advisory Committee on Smart Regulation, “Smart Regulation: A Regulatory Strategy for Canada,” Library and Archives Canada Cataloguing in Publication (2004), 78.

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It is true that some regulations are put in place for the specific goal of discriminating against outside producers in favor of local companies, but there are many others that exist simply to fulfill a policy objective that produces unintended economic consequences. Whatever the reason, the fact remains that these diverging standards and regulations, when associated costs such as testing and certification are taken into account, can make up anywhere between 2 to 10 percent of overall production costs.14 This is particularly troubling because production chains have evolved so that a single product is often made in a number of different countries; in order for this global production chain to operate smoothly, each point in the chain must create a product that would meet the standards of the end market. This is not a major problem for a lot of intra-firm trade, where firms can self-regulate, but rather, intra-industry trade, where numerous firms may be involved.15 Complicated rules simply add to the costs of production, which in the end has its largest effect on the consumer who must pay more for that product. Regulatory convergence is a particularly strong area of interest for North America simply due to the volume of trade that exists between the three neighbors. Though it is true that the rate of growth of trade has declined since 2001, Canada, the U.S., and Mexico still remain key trading partners. In 2010, roughly 75 percent of Canadian exports went to the U.S., with Canada importing 51 percent of its total imports from its southern neighbor.16 Mexico has a similar relationship to the U.S., with 80 percent of all exports ending in the U.S. market in 2009, and 48 percent of all imports to Mexico coming from the U.S.17 Canada and Mexico are the top two exporting partners of the U.S., accounting for 19 percent and 12 percent of total exports respectively.18 Canada is also a key energy supplier to the U.S. market, ranking sixth in the world for oil production.19 What this illustrates is that despite the fact that the rate of growth of trade has declined, it is evident that a significant economic relationship remains between the NAFTA partners. The volumes of trade are so immense that this relationship cannot afford to be ignored or neglected by the countries’ leaders. The figures above outline an economic space that is interdependent, and thus sensitive to the economic rules that each country establishes. Therefore, regulatory convergence is especially important to North America because anything that impedes this vast amount of trade will have

14 Hart 2007, 16. 15 Sidney Weintraub, NAFTA: What Comes Next? The Washington Papers/166 (Westport, CT: Praeger, 1994), 60. 16 Central Intelligence Agency, “Canada,” The CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ca.html. 17 Central Intelligence Agency, “Mexico,” The CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/mx.html. 18 Central Intelligence Agency, “United States of America,” The CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/us.html. 19 Ibid.

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consequences that directly affect businesses and consumers in all three countries. So what can be done to achieve regulatory convergence or compatibility? Harmonization, which has been the primary form of regulatory coordination in the EU, aims to create a single regulatory standard across a given economic space. This is a direct attempt to bring the policies of the concerned states in line with each other by agreeing on a common standard for a particular regulation. Harmonization does not have to be solely a government initiative, however, as firms and independent standardization bodies can work together to achieve harmonization in their particular sector. Such private action is tremendously important and signals the desire and need for harmonization in the first place. Another approach, mutual recognition, allows market access by accepting third-party conformity assessment through the negotiation of a Mutual Recognition Agreement (MRA). The product goes through strict conformity testing by the exporting state to ensure it meets its standards; so long as the product does not pose any public safety concerns, it can then be sold to the market that has signed an MRA with that state. If a product is only examined in the exporting state it prevents it from having to be recertified in the importing state, reducing certification costs and the time it takes a product to enter the market. MRAs can include specific requirements or requests for testing and standards as well, and work to create trust between trading states. The EU experience will show that mutual recognition is complementary to harmonization, and that without a focus on basic standard setting, neither is effective. The application of these approaches in North America and the EU will be examined, along with an assessment of how the institutional structure in addressing regulatory convergence affects the outcomes.

Regulatory Reform in North America

To fully appreciate the challenges North America faces in cooperating on regulatory reform, it is essential to understand the evolution of economic integration on the continent. Although the 1960s Auto Pact between Canada and the U.S. acknowledged the beginning of a free trade area, it was not until the 1980s that an attempt would be made to formalize free trade among the neighbors.20 When Ronald Reagan became President of the United States, economic liberalization took center stage. In fact, Reagan was first in offering Canada and Mexico the possibility of forming a free trade zone with the U.S. However, both countries, which had nationalist governments in power at the time, feared dominance by the U.S. and rejected the offer. As global recession set in, and Canada and Mexico began to feel the effects, their opinion on the

20 Pastor 2011, 53.

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issue of a free trade zone began to shift. Mexico suffered a terrible debt crisis in 1982, which underscored the exhaustion and imminent collapse of its import- substitution industrialization policy, placing it in desperate need of new sources of capital and investment.21 Canada did not fare as poorly, but economic reforms were undoubtedly required. When Prime Minister Brian Mulroney took office in 1984, he showed far more interest in working with the Americans for economic prosperity. The partnership between these two neighbors was solidified at the Shamrock Summit, where Mulroney and Reagan enjoyed frank conversation over some beer and Irish folk songs; the positive relationship between these two leaders opened the way for free trade negotiations.22 A powerful transnational epistemic community of business leaders that wanted greater market access also powered this drive for economic liberalization.23 The Royal Commission on the Economic Union and Development Prospects for Canada and the Business Council on National Issues helped to place free trade high on the agenda. This resulted in the Canada-U.S. Free Trade Agreement (CUSFTA), which excluded Mexico, but set the wheels in motion for a test run on economic integration in North America. Propelled by the desire to climb to the first world, Mexico was the strongest proponent of NAFTA. Government leaders and bureaucrats took the lead in Mexico for promoting the benefits of NAFTA and urging the U.S. to sign on. Since Mexico’s business sector and civil society are not as developed as the U.S. or Canada, and it operates more as a strong unitary state, business influence played a marginal role in pushing for trade liberalization policies. Canadian business leaders, however, were not willing to be left out of trade talks, and thus lobbied the government to demand inclusion in NAFTA, to which the U.S. quickly agreed. It is interesting to note that both the European SMP and beginning stages of NAFTA development occurred around the same time. What is more, both these processes emerged in response to economic recession, and were led by elite decision makers and business interests. Both had also formed a transnational epistemic community that heralded liberal economic policy in the face of growing protectionism. In fact, it has been argued that accelerated regional integration can develop in response to increasing competition in the economy for both firms and states, usually a result of economic woes. Therefore, corporations try to increase their productivity and profits, while states are concerned with attracting vital foreign direct investment (FDI) to stave off economic decline, and “it is this key struggle for investment and profit that binds state and economic elites together

21 Robert O’Brien, “North American Integration and International Relations Theory,” Canadian Journal of Political Science 28, no. 4 (1995): 704. 22 Ibid., 710. 23 Ibid.

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in the regional building project.”24 This effect was seen in the EU in the 1980s and in North America as well. Yet NAFTA is different from the EU as a whole inasmuch as the impetus for its creation was economic liberalization as opposed to averting war on the continent; this has real consequences, because the original six founding members of the EU were pressed to make political compromises for their future security. This in turn led to the creation of institutions to ensure that the mission of the EU would have continuity and that member states could be held accountable. The institutions that NAFTA created are, to be frank, less than impressive. At present, NAFTA issues are addressed in about 30 separate committees and working groups, without any real leadership from above, or vision to drive them forward.25 A side agreement of NAFTA, the North American Agreement on Labor Cooperation (NAALC), which seeks to improve working conditions and labor standards through joint studies, information sharing, and transparency in the administration of labor laws, has had mixed results at best.26 The NAFTA Secretariat, which has a section in each country, is responsible for the dispute settlement provisions of NAFTA. However, the WTO dispute settlement mechanism (DSM) is far more advanced, and NAFTA countries often take their cases there instead.27 One key difference is that panelists who adjudicate a dispute through the NAFTA Secretariat are set up on an ad hoc basis and are not permanent arbitrators.28 The WTO DSM, however, maintains continuity and establishes precedence by having a permanent roster of panelists that is called upon to adjudicate disputes. The North American Free Trade Commission (FTC), headquartered in Mexico City, is NAFTA’s cabinet-level supervisory body charged with monitoring implementation of the agreement. The FTC has the ability to establish standing committees and working groups, and meets once a year, which is hardly sustained contact for a supervisory body. It is possible that the ministerial level of engagement is potentially what works against it; currently the U.S. Trade Representative, Mexican Secretary of the Economy, and Canada’s Minister of International Trade conduct the annual meetings. Undoubtedly, these individuals have a number of other policy agendas to attend to, so NAFTA is not given their full attention, thus preventing any

24 Ibid., 721. 25 Gary C. Hufbauer and Jeffrey J. Schott, “The Prospects for Deeper North American Integration: A U.S. Perspective,” The Border Papers, no. 195, C.D. Howe Institute Commentary (2004): 9. 26 Yi Feng and Gaspare M. Genna, “Regional Integration and Domestic Institutional Homogeneity: A Comparative Analysis of Regional Integration in the Americas, Pacific Asia and Western Europe,” Review of International Political Economy 10, no. 2 (2003): 230. 27 Center of Research for Development, “Specific projects of our work program 2003,” Organization for Economic Cooperation and Development, http://www.oecd.org/dataoecd/27/26/35074872.pdf. 28 NAFTA Secretariat, “Overview of the Dispute Settlement Provisions,” http://www.nafta-sec- alena.org/en/view.aspx?x=226.

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regular bureaucratic contact. The high-level annual summits are even less useful, as the leaders clearly outline the economic problems and broad solutions facing North America, but nothing seems to be done afterwards to follow through on these ideas. What’s more, last year the annual North American Leaders Summit did not even take place, losing a year of potential progress. Overall, it is clear that NAFTA has limited ministerial contact at best, and lacks truly continental institutions and a trilateral bureaucracy that could handle day-to-day affairs and maintain continuity.29 In addressing its regulatory challenges, it will become apparent why this is such a critical failing. On their own, each NAFTA country has its own intricate regulatory system within its borders, and each has made progress in reforming its own systems to be more efficient and transparent. In 1980, the U.S. established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) to conduct a centralized review of federal regulations; Canada has a parallel body in the Treasury Board Secretariat known as the Regulatory Affairs Sector (RAS). Mexico created the Commission for Regulatory Improvement (COFEMER) in the late 1990s to succeed the Economic Deregulation Unit (UDE), which not only oversees federal regulations, but also actively and regularly participates in international consultation to build its institutional capacity and strengthen practices.30 The numerous regulatory agencies and standardization bodies within each state are too many to name here, but it must be clear that there is no central regulatory body, but rather agencies that regulate each designated sector, such as the FDA or USDA, which are monitored by the above supervisory bodies. This is no simple task and a key reason why international regulatory cooperation can be so difficult. However, there is reason for optimism. The Four Corners Arrangement, implemented in 1998, was the result of a two-year pilot project between Canada and the U.S. after Canada tightened its rules with regard to testing and certification of new chemicals and polymers that enter the market. The Arrangement aimed to find a solution to delays in having chemicals cleared for sale in Canada. Basically, the Canadian Environmental Protection Act (CEPA) maintains a Domestic Substance List (DSL), and any product not on that list would be considered new to entering Canada and would need stringent certification requirements; the Non-Domestic Substance List (NSDL), also administered by CEPA, includes chemicals that appear on the U.S. EPA’s Toxic Substance Control Act Inventory, which have reduced information requirements. In order for a new substance to appear on the NSDL, however, there is a five-year period in which the substance must be monitored and information gathered on its use. The chemical industries of both countries

29 O’Brien 1995, 716. 30 Hart 2007, 42.

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decided that the five-year wait period was too long and pushed for a program to share information among the agencies (the EPA’s New Chemicals Program and Canada’s New Substances Program) on new substance assessments.31 The agreement put in place in 1998 allowed for a company that is reviewing a chemical in the U.S. to request that its regulatory agency share its data and assessment of that product with Canada. This would reduce duplication of testing and certification and help expedite the product’s entry onto the NSDL, opening it up to the Canadian market. The goal of this process is to eventually create a single assessment procedure so that a test conducted in one country would be accepted as valid in the other.32 This joint review process is an acknowledgment of similar end goals—that is, protecting the health and safety of citizens and the environment, and finding a cooperative and streamlined framework from which to do so. Such cooperation is beneficial because not only does it reduce data-creation costs and time-consuming duplicative paperwork, but it also prevents repetitive testing on substances that have already been thoroughly examined. It also allows the two countries to see each other’s risk assessments, which helps develop best practices and an understanding of the other’s regulatory regime.33 Information sharing also builds trust among governments and agencies and creates a solid foundation for cooperative endeavors, opening the way for increased mutual recognition of conformity testing. This Agreement was amended in 2003 to the Four Corners Arrangement, which expanded its objectives to identify cooperative regulatory strategies to further open up the market. The above example shows how an industry can effectively push for regulatory cooperation and achieve a high level of success. The auto industry is another example, where today we see truly North American cars being built with production chains split up among the three NAFTA countries.34 In fact, 85 percent of Canadian auto safety standards are harmonized with the U.S.35 Aside from the few notable success stories, however, there is an overwhelming number of non-stories and even failures. Many are unintentional, or simply due to the institutional process by which regulations are created. For instance, if the USDA would like to create a new regulation on labeling organic produce, it would have to conduct a Regulatory Impact Analysis (RIA), assessing the costs and benefits of the proposed regulation on the economy. A Notification of

31 Environment Canada, “Four Corners Arrangement,” http://www.ec.gc.ca/subsnouvelles- newsubs/default.asp?lang=En&n=F88D8493-1. 32 External Advisory Committee on Smart Regulation, 22. 33 Environment Canada, “Cooperative Arrangement Between the Environmental Protection Agency (EPA) of the United States and Environment Canada (EC) and Health Canada (HC) on the Subject of New Substances,” http://www.ec.gc.ca/subsnouvelles- newsubs/default.asp?lang=En&n=AC8CF9F8-1. 34 External Advisory Committee on Smart Regulation, 77. 35 Ibid., 78.

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Proposed Rulemaking would then be published in the U.S. Federal Register and be open to comment from industry and the public before taking effect. Canada has a similar process, as does Mexico.36 The system within each country has actually become quite efficient and transparent; many pending regulations can even be accessed on the Web, where comments can be submitted online. The problem, however, is that there is no mechanism through which each of these countries can notify each other of pending regulation—the onus falls on industry and government to find out for themselves. An interesting exception is the U.S. Department of Transportation, which offers a website that allows access to early notification of regulations that could have an impact on NAFTA partners.37 But this is an initiative that is not uniform across agencies. However, if a consultation process existed between Canada, Mexico, and the U.S. before notifications were published in the federal registers, a great deal of regulatory barriers could be prevented.38 In fact, consultation at this stage would allow each trading partner to offer amendments and also inform the country proposing the new regulation of possible infringements on existing agreements or a potential negative impact that was overlooked. Leading the charge to build a regulatory reform agenda, Canada’s 2004 report by the External Advisory Committee on Smart Regulation (EACSR) outlined the key challenges to regulatory cooperation. The report noted that the largest impediment to regulatory reform is the ad hoc and uncoordinated nature of cross-border regulatory activity.39 This problem is amplified by years of neglecting the proper use of RIA to assure that new regulations would not create negative externalities in the economy.40 With regard to RIA, it should be noted that the OECD has been the greatest advocate for integrating RIA into the rule-making processes of states, not only to be used as a decision-making tool, but also to help decision makers better understand the possible wide-ranging impacts of a proposed rule, avoiding unnecessary regulation.41 The EACSR report emphasized that on the whole, Canada and the U.S. have parallel regulatory structures and processes, but differ in small ways, such as the slower drug-approval process for pharmaceuticals in Canada. To tackle these issues, the report suggested breaking down regulatory reform into issue-specific segments, involving the relevant groups in the process and ensuring that

36 Hart 2007, 43. 37 U.S. Department of Transportation, “Report on the Effects of DOT Rulemakings,” http://regs.dot.gov/effects/frmEffects.cfm. 38 Hart 2007, 43. 39 External Advisory Committee on Smart Regulation, 17. 40 Ibid., 18. 41 OECD, “Regulatory Impact Analysis: A Tool for Policy Coherence,” OECD Reviews of Regulatory Reform (2009), 12.

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Mexico be part of the discussion so that it can bring its regulatory policies into line with its northern neighbors.42 Due to the vast number of regulations that create barriers to trade, it would seem most efficient to then prioritize sectors in which the regulatory impact is most harmful and work down from there. The suggestions proposed by EACSR and other similar reports express positive approaches that would certainly help to address the current regulatory problems. However, there is a caveat—single-issue or sector-by-sector regulatory reform has been attempted numerous times before: the Pesticides Technical Working Group, the North American Agreement on Labor Cooperation (NAALC), and the attempt to harmonize Cheerios and jelly beans have produced limited or no results. There clearly is something impeding progress that is escaping the radar of policymakers, or they are simply just not willing to address it. Rather than building upon ineffective processes, it would be beneficial to think creatively about the problem to find what key piece of the puzzle seems to elude our policymakers. The next section explores the EU’s regulatory approach in hopes of shedding light on what that missing element could possibly be.

The EU’s Regulatory Approach

Although a number of scholars suggest that the EU cannot be compared to North America because of the inherent difference in the member states’ unitary federal systems and complex institutional structure at the EU level, one must keep in mind the origins of the most daring EU program, that is, the completion of the single market.43 In 1983 the European Roundtable of Industrialists was founded, comprised of some of Europe’s leading companies, including Fiat, Shell, Siemens, Renault, Volvo, Olivetti, and Philips, to name a few. These business leaders lobbied their national governments and the European Commission to get on board for the completion of a single internal market for the EU; this was well before the Commission published its White Paper advocating the single market in 1985.44 Both political and economic factors provided a strong impetus for greater policy convergence. Furthermore, the horizontal pressures that resulted in the SMP show that the process of regionalization is not necessarily top-down, as many traditional observers would claim. Trends in the EU have shown that “multinational corporations and social forces supporting a laissez-faire Europe have been the most successful in achieving their agenda on a Europe-wide basis.”45 Multinational corporations, such as those mentioned above, are especially skillful at this,

42 External Advisory Committee on Smart Regulation, 21. 43 Hart 2007, 32. 44 O’Brien 1995, 703. 45 Ibid.

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lobbying each state they operate in to raise awareness and support for their issues. Thus, the push for more integration comes as much from the bottom as from the governmental powers that be. This is an especially interesting point for North American integrationists because those who support less economic integration in North America wrongly claim that it is impossible because it requires government action alone. Though interest from the top is essential, it is not the only important factor. The drive to fulfill the goal of the single market is instructive to North American integration because it sought to deal with the leftover issues that had not been previously addressed or intentionally put aside. The SMP revitalization was strongly advocated by Karl Heinz Narjes, Cockfield’s predecessor (Directorate General III–Internal Market) in 1981; he believed the completion of the single market would pull the EU out of Eurosclerosis.46 It is important to remember that the EU was undergoing severe growing pains, and after 1966, as arguments broke out over the future of the union, with some supporting monetary union and others wanting to scale back, the Community became deadlocked in battle and at one point, the entire Commission threatened to resign.47 In the 1970s and early 1980s protectionist policies and NTBs were the norm, and between 1981 and 1986 NTBs increased by 36 percent in Germany, 30 percent in France, and 24 percent across the Community.48 As trade deficits increased and recession took its toll, there was an underlying consensus that something had to be done. By the early 1980s there was significant talk about completing the single market, but the challenge was defining what a single market would look like. Narjes saw it as an economic space where goods, services, and labor could move freely, putting an end to customs booths and leveling value-added taxes.49 The original project included 30 directives (of which 15 passed by 1984), and Narjes pushed for rapid implementation, which the French government resisted. This was the point in time that business leaders, as mentioned above, began to take notice of Narjes’s project and showed their support. Exhausted by the internal political turmoil of the last two decades, European leaders were aching for a fresh start; despite the completion of a customs union in 1968, trade was still not flowing freely across their borders. An attempt at grand bargains such as the EDC, and struggles to create a European Monetary System, forced the leaders of the Community to ponder whether they should be focusing on something a little more concrete, basic, and reachable. The SMP caught on after many heated discussions because of the way it was sold—Delors and Cockfield

46 Neil Fligstein and Iona Mara-Drita, “How to Make a Market: Reflections on the Attempt to Create a Single Market in the European Union,” The American Journal of Sociology 102, no. 1 (1996): 11. 47 Ibid. 48 Michelle P. Egan, Constructing a European Market: Standards, Regulation, and Governance (New York: Oxford University Press, 2001), 42. 49 Fligstein and Mara-Drita 1996, 11.

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underscored that it would be a plan for institutional change and economic revival, an overarching idea without many technical elements. Selling the idea of the single market as broadly as possible was a key reason for its success—the White Paper on the Completion of the Single Market, or Objective 1992, was the culmination of various directives (279 to be exact) that had been floating around the Commission for years, and compiled into a unified vision of what the single market would look like.50 It was far from perfect, and work on the single market continues today, but what is intriguing is that a few bold Commissioners heralded a very simple idea and built consensus around three principles: the free movement of goods, services, and labor by removing physical, technical, and fiscal barriers to trade. At the heart of this liberalization project, and a large focus of the White Paper, was addressing regulatory reform. This new regulatory strategy focused on three main concepts: preventing new barriers to trade from arising, harmonization of regulatory differences through standard setting and when required, mutual recognition, and implementing a mechanism for monitoring compliance.51 Central to this was the Mutual Information Directive of 1983, which was established to act as an early warning mechanism; member states and national regulatory authorities would be compelled to alert the relevant parties of any new regulations. This was supported by a “standstill” policy, so that if the Commission believed that a regulation would create new barriers to trade, member states and interested parties were given a three-month period in which they could state their objections, without the regulation being passed into law. This has not always worked perfectly, as some states have entered legislation into their national gazette before the Commission has been notified, but compliance has improved significantly.52 Previous to the White Paper and SMP, approaches to regulation had been overly technical and detailed, often focusing on a single issue or particular sector. In fact, developing European-wide legislation was often a very cumbersome process. Therefore, the White Paper outlined a “New Approach” that was in great part informed by the 1979 European Court of Justice (ECJ) decision on the Cassis de Dijon case. The dispute was between France and Germany; France wanted to sell its liqueur, Cassis de Dijon, to Germany; however, French liqueur contains 13 percent alcohol content, whereas German liqueur contains 25 percent. The ECJ ruled that:

50 Ibid., 13. 51 Egan 2001, 115. 52 Egan 2001, 116.

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[a]ny product imported from another Member State must in principle be admitted to the territory of the importing Member State if it . . . conforms to rules and processes of manufacture that are customarily and traditionally accepted in the exporting country, and is marketed in the territory of the latter.53

What the Commission learned from this case was that total harmonization would be next to impossible given the different cultural and social variations among states—a similar issue arose when the United Kingdom entered the union and the contentious debate over what constituted marmalade broke out.54 Therefore, recognizing this, the White Paper focused on harmonizing basic health and safety standards, and outlining only essential requirements in new legislation, leaving it up to national regulatory authorities to figure out the technical details that reflect local preferences.55 This meant that so long as a product could be certified as safe to the EU consumer, then it was free to be sold anywhere within the single market; specifics in composition would thus not affect a product’s entry into the market. Setting these “performance standards” gave discretion to the member states to decide how they would go about meeting them, without the Commission issuing directions on the process, technology, or approach by which to achieve the end goals. Cassis de Dijon thus ushered in a new and complementary integration instrument, mutual recognition, which was a vital part of the New Approach. Harmonization of regulations and mutual recognition of standards were assisted by the very important principle of subsidiarity, enshrined in Article 5 of the TEU, which states that the creation of legislation should be kept at the lowest possible level of government in areas where the EU does not have exclusive competence. This is why EU-wide regulatory agencies do not exist. In fact, member states maintain their own national regulatory authorities (NRAs), which are equivalent to U.S. agencies like the EPA, and coordinate their activities with agencies in other member states. The Commission has supervisory power over the NRAs, creating a multi-tiered and overlapping regulatory responsibility.56 Regulatory authority is thus differentiated between both horizontal and vertical processes. At the European level there are 15 institutions that make up a group of agencies, such as the European Food Safety Authority; these agencies do not function like regulatory bodies we are

53 European Commission, “Communication from the Commission concerning the Consequences of the Judgment Given by the Court of Feb. 1979 in Case 120/78 (Cassis de Dijon),” Official Journal of the European Communities (1980): 2. 54 Michelle Egan, “The Single Market,” in European Union Politics, ed. Michelle Cini, 28–45 (New York: Oxford University Press, 2004), 32. 55 Egan 2004, 122. 56 Phedon Nicolaides, “The Political Economy of Multi-Tiered Regulation in Europe,” Journal of Common Market Studies 42, no. 3 (2004): 600.

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familiar with, as they have no regulatory authority. The agencies are broken into four groups: the first focuses on developing common standards, the second works with national agencies to collect information and build transnational networks, the third promotes social dialogue between employers and unions, and the fourth is focused on specialized programs. Their primary function is to observe, analyze, and disseminate information to the Commission (to whom they report) and to member states’ NRAs. In doing so, they supplement the regulatory activity of member states. It is worth noting that the agencies all fall under the area of social regulation; in the area of economic regulation, such as public utilities, railways, telecom, electricity, and water, no European-level agency exists, even though the Commission has played a large role in opening up the market for many of these sectors.57 The Commission and the European agencies thus act as regulators of the regulators. The Commission has two notable tools at its disposal. First, the Impact Assessment Board (IAB) created in 2006, which conducts RIA on a regular and sustained basis of practically all Commission legislative proposals. The European Court of Auditors has noted that the IAB has become a critical part of policy development, and has been particularly useful to the Council and Parliament when considering Commission proposals.58 This approach has allowed a variety of costs and benefits of legislation to be taken into account, such as environmental and social impacts, and not just a narrow focus on the administrative impact to member states. A 2010 proposal by the Commission President asked that more power be given to the IAB, so that a positive opinion from the IAB would be required before the Commission can put forward its proposal for a decision.59 This will have a significant impact on the working methods of the Commission, but overall benefit the legislative process by helping policymakers understand the implications of their proposals, preventing burdensome legislation from being created in the first place. A second integral part of the EU’s ongoing regulatory reform agenda is the High Level Group of National Regulatory Experts, which acts as an advisory body on improving European legislation by examining both EU and national legislation with attention on simplification of rules and impact assessment. The European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC) also have a unique place in this structure. Independent organizations established by the

57 Burkard Eberlein and Edgar Grande, “Beyond Delegation: Transnational Regulatory Regimes and the EU Regulatory State,” Journal of European Public Policy 12, no. 1 (2005), Taylor & Francis Online HTML Article, http://dx.doi.org.proxyau.wrlc.org/10.1080/13501 76042000311925. 58 European Commission, “Smart Regulation in the European Union” (Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, Brussels, 8.10.2010 Com [2010] 543 final), 5. 59 Ibid.

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Commission, CEN and CENELEC act as facilitators for member states, business, and industry. Working together, they play a major role in the development of European-wide standards through the voluntary cooperation of member states’ standardization bodies and business interests. CEN brings together over 60,000 technical experts as well as numerous businesses, consumers, and nongovernmental organizations, covering 22 sectors from air and space, food, health, and safety, to transport and packaging.60 This self- regulation on the part of member states and industry reduces the need for Commission-initiated regulation and is the embodiment of what subsidiarity is all about. It is clear from the above description of the EU’s regulatory structure that it is the product of intricate institutional design, political compromise, and economic forces. The reenergized SMP maintained its momentum for many years, and even though it can be said that political will often ebbs and flows in the EU, at the same time there remains an underlying energy that moves the union ever forward. There are some notable reasons for its success that provide important lessons for North American integration. The realization that complete harmonization would be next to impossible was a pivotal acknowledgment. The New Approach focused attention on harmonizing basic health and safety standards and identifying essential requirements in legislation, leaving the detailed technical rules up to member states. This ushered in a process of policymaking that increased trust between the Commission and member states, and ultimately forced the member states to work together.61 Contrary to popular belief, regulatory powers have not been significantly transferred to the EU level, but rather the national regimes have become part of a transnational regulatory structure, a sort of state-centered multilevel governance.62 This structure creates regulatory competition, where member states’ NRAs compete with one another to establish best practices. To explain, mutual recognition increases the range of choices available to consumers, thus fostering competition between national rules; it is assumed that this process causes market-driven regulatory adjustment—often referred to as spontaneous adaptation—which leads to convergence based on a few best models.63 The role of the ECJ cannot be understated in this transformation, as it changed the nature of regulatory cooperation from an ad hoc process to a universal one, setting a strong precedent with Cassis de Dijon.64 The fact that the

60 European Committee for Standardization (CEN), “List of Sectors,” http://www.cen.eu/cen/Sectors/Sectors/Pages/default.aspx. 61 Policy Research Initiative, “North American Regulatory Cooperation: A Results Agenda,” PRI Project, North American Linkages Symposium Report (Prepared by James K. Martin, 2005), 9. 62 Eberlein and Grande 2005. 63 Dehousse 1992, 392. 64 Policy Research Initiative, 9.

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Commission has an enforcement arm in the ECJ has definitely helped regulatory cooperation; fearing the threat of infringement proceedings, member states, on the whole, comply with EU legislation. The Commission’s ability to initiate such proceedings against member states works as an effective tool to enforce compliance. The Commission also has an extensive bureaucracy at its disposal that monitors and communicates with member states to maintain the flow of information among NRAs and ensure the sound functioning of the single market. It is these formal vehicles that allow for continuity of policy and regular revision of regulations that create barriers to trade or no longer represent social consensus at the time, such as changing environmental policies. This sustained contact is what provides the momentum for innovation, cooperation, and most importantly, leadership.

The Way Forward

The challenges facing North American integration revolve around three key issues: the ad hoc nature of integration, a weak institutional structure, and a lack of leadership and vision. Without addressing these central obstacles to further economic integration, NAFTA will not undergo a much-needed revival, and consumers and businesses will be the ones paying for it. At every high- level summit the conclusions reached are recycled throughout the years—we understand the problems we face, but little is done to tackle them. So what is the way forward? What is needed is a sustained focus on regulatory convergence coupled with reinvigorated reform of NAFTA so that it reflects the reality of our deepening partnership. It is time to get creative, and to be bold. First it is essential to end the ad hoc nature of North American integration. There does need to be a sector-by-sector approach, but it requires a comprehensive agenda to set priorities and reform those areas that are most imperative to North American trade. It is no coincidence that the second challenge is intrinsically linked to the first; a formal vehicle for integration in the form of strengthened and focused institutions will help bring clarity and continuity to the process. Lastly, without the direction, support, and vision of our leaders, there is little hope for progress. What the EU integration process and drive to complete the single market has shown is that a combination of both horizontal and vertical pressure is needed to create substantial reform. Though horizontal pressure does exist, what is lacking is consensus at the ministerial level that translates into real vertical pressure afterwards. The European Commission provides this sustained interest in priority issues with the help of an extensive bureaucracy that carries out day-to-day activities. The FTC, though not a direct comparison to the Commission since it operates at the ministerial level, can still take on this role given the right reforms. In fact, energizing the FTC may be a better

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approach for North America in particular, as building support for something resembling the Commission would most likely be politically infeasible. However, the FTC would need to be expanded to include two permanent undersecretaries from each country, who oversee and direct the work of a permanent bureaucracy. The six undersecretaries would be responsible for identifying barriers to trade and developing proposals to address existing and future issues. In doing so, they would work cooperatively and by consensus, consulting with one another throughout the entire process. The bureaucracy would thus be responsible for continued research, also acting as a point of contact for the three NAFTA partners to clarify issues and assist with trade- related questions. An important component of this bureaucracy would also be the establishment of something resembling the IAB, to conduct risk assessments not only on existing regulations to help the undersecretaries identify priority areas, but also on forthcoming proposals by the FTC and significant measures by the NRAs of each country. Information sharing is integral to the success of this institutional design, and a provision already exists within NAFTA (Article 909) that addresses this. This will not only assist in generating trust between governments, but also open the way for more MRAs, preventing the need for complete harmonization, which the EU proved is next to impossible. The OIRA, RAS, and COFEMER have achieved great leaps in their respective countries; however, it is time to raise these achievements to the next level. The three regulatory supervisory bodies could act as an early warning system for each state by notifying the FTC when a new regulation is going to be proposed so that the relevant institutions and businesses in each state can be aware of it and have the opportunity to respond. Adopting a measure similar to the Commission’s standstill policy may also be beneficial, freezing the regulatory process for a limited amount of time to prevent regulations entering the federal registers before the relevant parties have assessed their impact. Furthermore, the FTC would not have to maintain contact with each individual NRA of each state, but rather rely on OIRA, RAS, and COFEMER to monitor their own NRAs—drawing a lesson from the principle of subsidiarity. Therefore, the FTC would act as a facilitative institution, which catalogs, disseminates, and analyzes information pertinent to NAFTA. To further bolster regulatory convergence, NAFTA needs an independent standardization body that facilitates exchange between national standardization bodies, industry, and individuals, much like the CEN. Taking a lesson from the New Approach, focusing on the harmonization of basic health and safety standards may be a good place to start. This would complement broader regulatory convergence and place emphasis on an area in which all three countries have an interest—the health and safety of their citizens. NAFTA currently has, through Chapter 9, the Committee on Standards-Related

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Measures, which is comprised of representatives from the three governments as well as working groups that include representatives of other standards organizations, technical experts, and scientists. What NAFTA’s committee lacks most is transparency—it does not even have a website from which to find relevant information on standards development, consultation, or the individual working groups. The CEN website, on the other hand, allows one to search for standards and to see the organizations involved, including their contact information; and it gives a detailed listing of working groups and their functions, as well as access to reports and publications. For standards bodies to operate efficiently, there must be transparency and access for individuals and affected businesses to offer their opinions and concerns. CEN is actually structured as a far more horizontal organization than NAFTA’s Standards Committee, which has perhaps contributed to its success. Enforcement is also a key challenge, and the NAFTA Secretariat remains unfavorable to the WTO’s dispute settlement mechanism. The NAFTA countries should encourage one another to pursue trade remedies through their own institutions, but in the end, without mutual support, the current practice will continue. It is possible that as the ties between the North American countries deepen, a reassessment of the feasibility of the Secretariat will occur. Until then, the only recommendation would be to move towards a more permanent adjudication panel roster to build precedence and ensure continuity. Implementing a system resembling the relationship between the Commission and the ECJ would most certainly suffer tremendous political backlash in North America, specifically with regard to the Commission’s prerogative to initiate infringement proceedings. Though this has been one of the strongest tools of the Commission in enforcing compliance with the EU Treaties, compliance issues have not been eradicated. Canada, Mexico, and the U.S. should continue to build mutual trust and respect, and as their economies become more integrated, noncompliance with NAFTA may decline over time, as has happened in the EU.65 Underlying this process of reform is the leadership required to make it a reality. The single most important lesson from the European SMP is not necessarily the amazing achievement that it was, but rather, the vision and the drive of key individuals such as Narjes, Delors, and Cockfield, combined with industry leaders who placed the project high on the agenda of the member states at a time when integration was the farthest thing from their minds. NAFTA is not dead, but it is outgrown and undergoing something similar to the Eurosclerosis of the 1970s. We have too soon forgotten North America’s peak integration period from 1994 to 2001 and the show of camaraderie

65 European Commission, “27th Annual Report on Monitoring the Application of Community Law ” (2009) http://ec.europa.eu/ community_law/infringements/infringements_annual_report_27_en.htm.

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displayed by Reagan and Mulroney many years earlier. There clearly is a desire to bring our economies closer together to increase prosperity and growth in each country. However, that momentum has slowed significantly; one cannot ignore the fact that the U.S. has been preoccupied with two foreign wars at about the same time that NAFTA began to suffer from decline. Yet as the wars have been winding down and troop withdrawals have begun, it is time to refocus back on what lies at our borders. The effects of the 2008 financial crisis are still reverberating throughout the economy. It is through crisis that opportunities so often arise, and it is here that North America can learn its most vital lesson from the EU. Economic downturn should not stifle integration, or push a country inwards to more protectionism. Rather, it should reinvigorate the desire to recover, and act as a catalyst to innovation, finding the way forward. The EU achieved this through its New Approach to regulatory convergence, which focused on harmonizing basic health and safety requirements, leaving the rest up to member states. North America needs a similar initiative, as regulatory convergence is at the heart of NAFTA’s revival. This is not a plan for any grand bargains or creating any sort of supranational institution, but rather adding to what is already there and removing or improving those things that are most inefficient. This is what the SMP did for the EU, and it can work for NAFTA too. That is not the end of this story, however, as there are many other issues that warrant attention. Mexico’s role is essential, but a sustained effort to combat corruption and to reduce violence from the drug cartels is not only critical for Mexico, but for NAFTA as well. Mexico cannot be excluded from the economic integration process, as the scope of the trade relationship between Mexico and the U.S. is too large to brush aside. Though Mexico has a much smaller trade relationship with Canada, it could potentially change as regulatory reform accelerates, opening up the markets. It cannot be ignored that Canada and the U.S. are much closer in regulatory standards than either country is with Mexico, and that full-fledged trilateral integration would not be feasible at the outset. However, it is possible to adopt a multispeed integration model, as the EU has for a number of issues, such as the Schengen area and monetary union. This would allow Canada and the U.S. to move forward on items such as establishing a common external tariff, which would eliminate the need for the cumbersome rules-of-origin provision. It is imperative, however, that in regard to the areas in which Mexico is not ready for convergence with its northern neighbors, it still be included in the discussion as an observer, to offer comments and be part of the process. A detailed discussion of this issue is beyond the scope of this paper, but remains a topic for further research. A focus on regulatory convergence in North America is the key to addressing the ad hoc nature of integration, the weak institutional structure of

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NAFTA, and the lack of leadership and vision. It is a single issue that touches every area of our trade relationship, and is thus deserving of attention. At the January 2011 FTC meeting in Mexico City, the three trade ministers stated that “[r]egulatory cooperation continues to be a top priority . . . [and] reducing unnecessary regulatory differences . . . reflects the commitment we have assumed to promote deeper economic integration in North America.”66 It is therefore no secret that North American integration is occurring, but the “accelerated incrementalism” that Canada, Mexico, and the U.S. have embraced is simply not enough.67 Statements like the one above must be backed by real results and a sustained effort to produce significant outcomes. This requires a combination of both horizontal and vertical pressure to raise the issue of economic integration high on the agendas of each government. This project must not be seen as some attempt to recreate or copy the EU experiment, but rather, develop a model for integration uniquely tailored to North America. Father of the EU, Jean Monnet, wrote in his memoirs, “Nous ne coalisons pas des États, nous unisons des hommes”—we are not bringing together states, we are uniting people.68 North America is home to people with a shared history and common goals, and deeper integration is the method by which those goals can be achieved. The recession has been shared, and now it is time for the revival.

66 Foreign Affairs and International Trade Canada, “NAFTA Free Trade Commission Meeting” (Mexico City, 2011), http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr- acc/nafta-alena/js-mexico-2011.aspx?lang=eng. 67 Hart 2007, 41. 68 Jean Monnet, Mémoires (Librairie Arthème Fayard, 1976).

74 Spring 2012 Elite Capture or Capturing the Elite? The Political Dynamics Behind Community-Driven Development

Ana de Paiva

Introduction

Since the mid-1990s, community-driven development (CDD) has been hailed as a promising solution to the notoriously ineffective top-down approaches of development assistance. Advocating for local participation in the design and management of development strategies, CDD practitioners hope to work alongside aid recipients, rather than above them. Their basic premise: no one has a better idea of what is most needed in the community, or how to achieve it, than the community itself. The use of local input and the joint crafting of projects should thus yield the best-suited, most beneficial outcomes. Empowerment is thought to be a potent side-effect of this process, since locals unite to tackle issues and are then sufficiently well informed to hold project implementers accountable for results. The potential has not been lost on donor agencies: in 2007, the World Bank alone dedicated approximately $7 billion of its funds to CDD projects.1 Viewed in this light, CDD certainly has the appeal to hold passionate humanitarians in its grip, and this paper does not seek to break that spell. Nonetheless, in order for the field to evolve, it is necessary to constructively

1 Scott A. Fritzen, “Can the Design of Community-Driven Development Reduce the Risk of Elite Capture? Evidence from Indonesia,” World Development 35, no. 8 (2007): 1359.

Ana de Paiva joined American University in August 2010 from Rio de Janeiro, Brazil, to pursue a Master’s Degree in International Development. Her concentration is microfinance and business development. During the summer of 2011 Ana worked on curbing loan delinquency at a local microfinance institution in Brazzaville, Republic of the Congo. Prior to graduate school, she spent one year in Paris doing regional studies at Sciences Po and researching European identity, and graduated summa cum laude from Pontifícia Universidade Católica with a BA in International Relations. Her undergraduate thesis, a poststructuralist study of Japanese-Brazilian migrants’ identity, has been published as an article in Brazil. Ana also worked with local NGOs to implement educational programs in two favelas of Rio. At American University, she assists two faculty members with undergraduate-level courses on research methods and world politics.

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criticize—and this article will do just that. More specifically, it will scrutinize an aspect of CDD not often discussed at great length by practitioners: the problem of elite capture of benefits. Ensminger highlights the gravity of the issue, noting that CDD may be propagating a culture of corruption that has not previously existed. . . . It does so by encouraging a cadre of professional “development brokers” whose sole occupation is to serve as go-betweens linking government (and other) officials administering development aid and their own communities. . . . [T]he process is rapidly leading to the development of “professional” expertise in maximizing private rents.2

This paper draws on important works and case histories to assess the phenomenon from varied angles, and to offer a comprehensive review of elite capture based on the “4 Ws”: when it tends to happen, why, who does the “capturing,” and where it has (or has not) been recorded. The final section proposes solutions, with a special role for CDD project facilitators and participatory action research.

Getting to the Bottom

When identifying reasons for the existence of elite capture, authors have pointed their fingers in different directions. The often-cited Jean-Phillippe Platteau finds a culprit in donor organizations themselves, who tend to disburse funds too quickly in the hopes of seeing rapid results.3 Even in a CDD scenario where facilitators are responsible for “touching base” with the community at large, a common practice is the identification of key people (local authorities, chiefs, or elders) whose influence is used to reach the local population.4 These “natural” leaders suit agencies well by giving them an entry point into the community and a supposedly trustworthy source through which to channel funds. However, as Platteau observes:

Instead of “father figures” clinging to their traditional duties of guaranteeing people’s livelihoods, redistributing wealth and settling conflicts in such a way as to maintain the existing social order, the erstwhile elites often become transformed into greedy individuals who show even less restraint in enriching themselves at the expense

2 Jean Ensminger, “Getting to the Bottom of Corruption: An African Case Study in Community- Driven Development,” The Oil, Gas and Mining Sustainable Community Development Fund, Feb. 2007, available at http://www.commdev.org/files/1823_file_Corruption.pdf. 3 Jean-Phillippe Platteau and Frédéric Gaspart, “The Risk of Resource Misappropriation in Community-Driven Development,” World Development 31, no. 10 (2003): 1687. 4 Ernest T. Stringer, Action Research, 3rd ed. (Thousand Oaks, CA: Sage, 2007), 45.

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of their community as they are actually legitimated by outside actors.5

In their review of rural water projects for the UNDP World Bank Water and Sanitation Program, Katz and Sara found numerous examples of leaders who coopted project benefits, placing water systems on their property, preventing other members of the community from gaining access to them, and neglecting the demands of majority groups, such as women.6 It is clear, then, that organizations may overlook the true nature of relationships between leaders and followers, overestimating the former’s altruism or underestimating their leverage and the fact that they can use bargaining chips to strike a deal with the community.7 When participatory projects are implemented, donor organizations generally require recipient communities to display a modicum of cohesion before they disburse funds. This places the local leader in an advantageous position: he can propose a form of implementation that accounts for his share, and the community will accept, “since getting something, however small, is always better than ending up with nothing.”8 There are structural incentives not to file formal complaints against community leaders, because communities believe future projects will be jeopardized if they do so.9 In some cases, this amounts to an ultimatum game whereby leaders toy with the amount of resources they can appropriate before the community “rejects the offer—and blows the whistle.”10 Another insightful case story comes from Platteau and Gaspart, who describe a Sahelian village where the son of a local chief, a young and charismatic schoolteacher, managed to assemble locals into a village association.11 A western NGO took interest in working with this community, deciding on a gradual participatory approach with the aim of strengthening the association, so that eventually it could sustain the projects on its own. Before any funds were disbursed, the association was required to undergo capacity- building exercises to increase its transparency, define development priorities for the village, and decide on the best means to achieve them. After the stipulated two years of training, the NGO finally made funds available for agreed-upon investments—and the results were striking. In order to appropriate a large portion of reserves for himself, the leader engaged in all sorts of malpractice, from falsifying accounts to using low-quality materials in

5 Platteau and Gaspart 2003, 1688. 6 Travis Katz and Jennifer Sara, Making Rural Water Supply Sustainable: Recommendations from a Global Study (Washington, DC: UNDP World Bank Water and Sanitation Program, 1997), 4. 7 Platteau and Gaspart 2003, 1690. 8 Ibid., 1691. 9 Ensminger 2007, 19. 10 Ibid., 18. 11 Platteau and Gaspart 2003, 1689.

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building infrastructure. Interestingly enough, when the NGO caught word of these shenanigans and incited local sanctions, the village association not only refused to heed its request, but reelected the leader. The lesson to be learned is that, when local livelihoods improve by even the smallest increment, followers tend to be grateful to their leaders, even if the latter make out with a greater portion of benefits. This is once again the ultimatum game in practice: asymmetric benefits are considered legitimate since, without the leader’s efforts, there would be no improvement at all.12 John Gaventa’s explanation of community power as a complex, multidimensional process, described in Brennan and Israel’s “The Power of Community,”13 is well adapted to this scenario. His first dimension of power is characterized by the ability of one group to prevail over another in the bargaining over key issues, generally because it has access to more social, political, and economic resources. The second dimension is represented by a set of values, beliefs, and institutions that place elites in a position of advantage in relationship to the rest of the community. Finally, the third and most complex dimension can be found in the social construction of meaning that generates a sense of powerlessness among particular groups within the community. In the case of elite capture, all of Gaventa’s dimensions are present: the voice of those with greater social, political, or economic resources—strong traditional leaders—takes precedence in debates about the issues that should be addressed in projects; at the same time, these leaders use formal and informal pressure—the fact that donor organizations will not disburse funds until they perceive a relative level of community planning and coordination—to acquire disproportionate benefits from community projects; and often these leaders’ power is so socially ingrained that followers “provide [them] with near-mythic abilities . . . [their] actions . . . are legitimized and seen as characteristics of normal life. While the powerless may not be entirely content, they view conditions as normal, not the dominating actions of controlling elites.”14 While the three dimensions are interdependent, the third is particularly evident in the reaction of the village association in the above-mentioned example to its leader’s gimmick: “everybody around him benefited from the project and, if he benefited [much] more than the others, it is understandable because he is the leader.”15 Given this reality, it becomes important for partner organizations and project facilitators to acknowledge that CDD is not implemented in a vacuum,

12 Ibid., 1690. 13 M.A. Brennan and Glenn D. Israel, “The Power of Community,” Community Development 39, no.1 (2008): 87. 14 Ibid., 87. 15 Platteau and Gaspart 2003, 1689.

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but competes with preexisting institutions,16 whose power dynamics may be masked by superficial conceptions of “the community” as a close-knit group of people joined by common characteristics or a common purpose. In reality, participants come from unequal positions of power; they have “asymmetrical social positions, disparate access to economic resources, varying levels of knowledge of political protocols and procedures and different literacy rates.”17 The latter two points are especially important: aside from embodying moral authority, community representatives are often the most educated—the only ones who can truly bridge the communication gap in relationship to external facilitators. 18 If communities believe leaders are the only ones who can guarantee funds for the implementation of their projects, they may continue to support them despite lower collective returns. 19 External agents can be instrumental in fostering a more participatory environment and reducing the risk of capture by paying close attention to these underlying structures. This point will be addressed in greater detail in the final section.

The Other Side of the Coin

Numerous authors have studied the participatory approach in “real-world” scenarios, in order to identify contexts that are susceptible to misappropriation by elites. Interestingly, this exercise has led to more controversy than consensus, with some authors asserting that the effects of elite domination can be beneficial rather than detrimental to the powerless. Jakarta’s Urban Poverty Project (UPP), initiated by the World Bank, provides a number of examples. To illustrate, I focus on two of the four neighborhoods in which it was implemented, both described in Dasgupta and Beard’s study of UPP outcomes. The first community, Kelor, was led by the same village head for 30 years before its administrative status changed to an urban neighborhood. Since then, community governance continues to be dominated by the same socially superior, materially powerful elite. The non-elite hold low representation in the UPP leadership and, even when members attend meetings, they have limited decision-making power. Although the UPP in Kelor is entirely controlled by the elite, the authors found no evidence that project benefits were misappropriated. “On the contrary, local residents characterize community leaders as fair and

16 Andrew Beath, Christia Fotini, and Ruben Enikolopov, “Elite Capture of Local Institutions: Evidence from a Field Experiment in Afghanistan,” May 24, 2011, available at http://federation.ens.fr/ydepot/semin/texte1011/ENI2011ELI.pdf. 17 Aniruddha Dasgupta and Victoria A. Beard, “Community-Driven Development, Collective Action and Elite Capture in Indonesia,” Development and Change 38, no. 2 (2007): 233. 18 Ghazala Mansuri and Vijayendra Rao, “Evaluating Community-Based and Community-Driven Development: A Critical Review of the Evidence,” The World Bank Development Research Group, Sept. 2003, available at http://siteresources.worldbank.org/INTECAREGTOPCOMDRIDEV/Resources/DECstudy.pdf. 19 Ensminger 2007, 18.

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responsible caretakers of the poor.”20 Contrast this scenario with the second community of Kisma Wasana, where residents and UPP leaders have devised a number of mechanisms to prevent the hijacking of decision-making processes by the local elite, such as public forums where project reports can be read aloud for the benefit of illiterate members, and a group of nonvoting overseers to raise accountability in elections.21 The political power in this community, then, is quite evenly distributed, yet the authors observe an inverse relationship between leadership composition and equality in results. One of the UPP’s initial projects targeted poverty by lending to poor households; after the loans were never repaid, local leaders established conditions on financial solvency that had to be met before any future loans were approved. The new rules excluded the neediest from receiving support. In short, “Kisma Wasana is an example of a democratic process that was not captured by elites and yet it failed to identify helping the poorest residents as the highest priority.”22 Conversely, the implementation of participatory Social Investment Funds in Jamaica (JSIF) tends to be controlled by wealthier and better- networked elites, yet 80 percent of the community has expressed satisfaction with the projects’ outcomes.23 The respondents’ approval comes in spite of the fact that the JSIF process has not clearly democratized decision-making.24 It is not in the scope of this paper to discuss the reasons behind these differences in outcomes, especially since they are largely context-bound. Suffice it to say that the findings suggest an important distinction between elite capture and elite control.25 A certain degree of elite domination may be natural to societies undergoing development, especially in rural areas, and should not be equated with corruption. 26 Mansuri and Rao venture to state that in heterogeneous communities it may even be inevitable, “particularly . . . where a small group of motivated individuals make greater contributions to the project, perhaps because they have a high interest in the public good and lack private alternatives.”27 With that in mind, this article brings forth a new point: that the type of elite in control matters. Until now, we have spoken of “the elite” as being comprised of traditional or indigenous authorities endowed with moral, political, and/or socioeconomic superiority. Indeed this “old elite” continues to

20 Dasgupta and Beard 2007, 237–238. 21 Ibid., 243–244. 22 Ibid., 243. 23 Vijayendra Rao and Ana María Ibáñez, “The Social Impact of Social Funds in Jamaica: A ‘Participatory Econometric’ Analysis of Targeting, Collective Action, and Participation in Community-Driven Development,” Journal of Development Studies 41, no. 5 (2005): 788. 24 Ibid., 833. 25 Dasgupta and Beard 2007, 244. 26 Beath, Fotini, and Enikolopov 2011, 4. 27 Mansuri and Rao 2003, 31.

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rule a number of the communities that are strong candidates for CDD projects, and increases the odds of local capture. In Sekar Kamulyan, another Indonesian participant of the UPP, an old elite from a single extended family has for years reigned over community governance mechanisms and appointed to power “only those non-elite who they knew would ‘compromise’ (badami) neighbourhood interests in favour of elite interests. They developed neighbourhood-level political machines by giving out material rewards generated from community development projects.”28 The implementation of participatory mechanisms in the UPP has not entirely replaced the old elite, but it did create political space for the emergence of a new “young elite” (whose status is derived mainly from occupation) interested in redressing the corrupt and predatory politics of its predecessors. To date, the new leadership has instituted a number of reporting techniques and self-auditing measures to boost transparency and prevent monopolization of benefits.29 It has proved largely beneficial to the community as a whole. Turning our attention back to Africa, it is clear that the type of elite matters just as well. Jean Ensminger’s description of a goat restocking project in a rural village that fell prey to elite capture reveals that the corrupt leadership was not comprised of an elite at all; they were among the poorest members of the community, selected to lead the committee simply because their personal connection to district officials secured the project in the first place.30 Despite their poverty, they were younger, better educated (2.9 versus 1.9 years), and had lived outside the local district longer than the average community member. 31 According to Ensminger, this is the general pattern for these emerging “brokers”: they “have made a new profession for themselves as the go-betweens on development projects. . . . They are poor, but entrepreneurial, they have time on their hands, and they need income.”32 In other words, they are clearly not the traditional elite commonly associated with the phrase “elite capture.” Once again, our commonsensical notions of community as a place of solidarity and collective support appear to distort our perceptions of elite capture, characterized merely as the wealthy preying on the poor. It may be wiser to simply call it “resource misappropriation” or “rent-seeking,” and recognize that communities are composed of individuals with multiple identities, and thus multiple incentives to behave in different ways given different circumstances. Perhaps the question should not revolve around who is in charge, but around what can be done to prevent whoever is in charge, regardless of status,

28 Dasgupta and Beard 2007, 241. 29 Ibid., 241. 30 Ensminger 2007, 8. 31 Ibid., 13. 32 Ibid., 14.

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from appropriating a disproportionate amount of benefits. In the end, no matter who comprises the elite, or whether it is benevolent or malevolent, the domination of a development project by a few runs counter to the participatory approach envisioned for CDD. Seen in this light, the dilemma becomes more and more a matter of finding artful means to guarantee broad participation, and ensure transparency and accountability.

Putting the “Part” Back in Participatory

Knowing that elite capture can be partially explained by the fact that CDD projects are “dropped” into communities with deep-rooted power imbalances, one might consider reducing inequality an ideal means to increase participation. Indeed, Das Gupta, Grandvoinnet, and Romani cite quantitative analyses that have found collective action to be more effective among people “who are relatively equal and have similar needs and resources.”33 The authors suggest that in such scenarios, the presence of a strong central government within the community may be more successful in producing development than external organizations, since the state can promote land reform, tenancy reform, and diversification into non-crop sources of income to reduce the poor’s dependence on local patrons.34 They aver that the state’s effort in making social relations within the community more equitable was a precondition to the rapid economic development witnessed in South Korea, Taiwan, and China.35 While this resolution may be ideal, it is arguably the most difficult to implement. Redistribution of resources involves political stakes that few authorities are readily willing to tackle. Even the most politically “safe” option of non-crop income promotion, which can be accomplished more easily through marketing, disseminating information, and providing assistance with credit,36 takes time to bear fruit. Perhaps the second-best option, then, would be to strengthen community institutions before they receive major funding.37 The author is worth quoting at length on this point:

Training in the basic principles governing local organizations and the functioning of participatory development programmes should not be confined to community leaders. . . . This is especially important when simple members belong to other social or gender groups than the leaders. If that critical condition is not met, leaders

33 Das M. Gupta, H. Grandvoinnet, and M. Romani, “State-Community Synergies in Community- Driven Development,” Journal of Development Studies 40, no. 3 (2004): 30–31. 34 Ibid., 28–29. 35 Ibid., 32. 36 Ibid., 33. 37 Platteau and Gaspart 2003, 1687.

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will not be effectively accountable to the people whom they are supposed to represent. . . . And to ensure that this condition is met, a vigilant civil society must exist, implying that, through enhancement of education and mass awareness-building campaigns, the grassroots come to know their rights as well as the duties and responsibilities of their leaders [and] feel sufficiently empowered to organize or follow contest movements that bring malpractices into the open.38

This study sees three major problems with this resolution: 1) institutions generally develop gradually at a slower pace, so this process could also take a considerable amount of time to bear fruit; 2) there is still a debate over whether institutions can be developed with an outside push or if they must develop endogenously; and 3) it appears that, sometimes, “institution-training” is simply not enough to guarantee their proper functioning. This is well evidenced by the above-mentioned case study of the Sahelian village association that received two years of institutional support and still fell prey to capture once it was entrusted with community funds. It seems best to start slowly. Fritzen argues that greater attention should be paid to learning which mechanisms may raise the likelihood that elites will play a constructive role in community development, rather than focusing on avoiding elite control altogether.39 This is where participatory action research and project facilitators can produce a major impact on the outcomes of CDD projects. Among the many qualities that “good” facilitators should possess are sensitivity to social dynamics and the ability to assist a community, while still allowing it to have ownership over projects. Yet a number of authors have documented facilitators’ tendency to overlook power dynamics in a rush to show results, collude with beneficiaries to present an impression of successful projects (even when they were not so), and allow themselves to be manipulated by locally powerful individuals “because they are typically quite young, inadequately experienced, and poorly paid.”40 In order for “participation” to graduate from buzzword to reality, especially in a place where it has never been widely practiced, it needs the support of well-trained individuals who can work alongside the community, but also lead by example, ensuring inclusiveness and circulating information. In Sekar Kamulyan, the above- mentioned Indonesian neighborhood where UPP has made progress in redistributing power from the old to the young (and non-) elite, part of the credit for this transition was given to a “dedicated project facilitator who

38 Jean-Phillippe Platteau, “Monitoring Elite Capture in Community-Driven Development,” Development and Change 35, no. 2 (2004): 234–235. 39 Fritzen 2007, 1372. 40 Mansuri and Rao 2003, 33.

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understood the existing pattern of elite-dominated community governance. Her response was to launch an ambitious outreach effort to involve everyone in project meetings.”41 It was the first time local residents had participated in a democratic process to elect project leaders. Sekar Kamulyan is a community that has managed to capture the elite, that is, to take back representation and coerce the remaining elite to play by community rules. Thus, facilitators can encourage and oversee democratic election procedures (geographically comprehensive, actively contested, based on secret balloting, etc.) to ensure both that project committees are heterogeneous, so that the most diverse interests are accounted for, and that beneficiaries elect community members who they truly feel are the most trustworthy.42 For these mechanisms to be effective, it is important that the facilitator internalizes and shares as much information as possible before a plan of action is collectively decided upon. This is where action research becomes particularly useful due to its emphasis on comprehensive stakeholder involvement and collective action. This paper does not presume that these are simple processes; however, they do seem the most realistic means to escape from elite capture in a short(er) amount of time, and allow for projects with benefits that are better targeted.

Conclusion

The problem of elite capture has been traced to local power structures that are overlooked when participatory CDD projects are implemented by external organizations; without careful observation, these can fall prey to local leaders in a position to leverage with the community. There has been controversy, however, regarding the extent to which this is a problem: sometimes an elite capture can, in reality, be reduced to an elite control that still targets the poor. Regardless of its nature, elite domination of any kind runs counter to the objectives of participatory CDD, and should be circumvented whenever possible. It appears that strengthening community participation through democratic processes and information transmission is the most promising and realistic path to accomplish this, and project facilitators can play an integral role in its realization.

41 Dasgupta and Beard 2007, 241. 42 Fritzen 2007, 1365.

84 Spring 2012 America’s Silent Warfare in Pakistan: An Analysis of Obama’s Drone Policy

Annie Lynn Janus

Since 2001, al Qaeda and the Afghan and Pakistani Taliban (otherwise known as the Tehrik-e-Taliban Pakistan [TTP]) have been using Pakistan’s Federally Administered Tribal Areas (FATA) as a safe haven for training terrorists, communicating with followers, plotting attacks, and sending fighters to support the insurgency in Afghanistan.1 President Obama has responded to Pakistan’s problematic safe havens by dramatically expanding the controversial CIA-led armed drone program in the FATA. Although the U.S. starting using drones in Pakistan during the Bush administration, there has been a marked increase during Obama’s term, with Bush authorizing roughly 44 strikes during his two-year term 2 and Obama approving approximately 239 strikes during his tenure.3 Part of this dramatic increase is likely due to the heightened importance Obama places on the war in Afghanistan and Pakistan’s role in stabilizing the region, whereas the Bush administration emphasized the war in Iraq more than the war in Afghanistan and Pakistan’s role in that war.4 The rapid increase in drone strikes during the Obama administration is a contentious issue, causing some to argue that these strikes are ineffective and violate international laws of war, while others maintain that they are an effective and economical way to pursue terrorists. This essay takes the

1 Imtiaz Gul, The Most Dangerous Place: Pakistan’s Lawless Frontier (New York: Viking, 2009), 11– 12. 2 Peter Bergen and Katherine Tiedemann, “Washington’s Phantom War: The Effects of the U.S. Drone Program in Pakistan,” Foreign Affairs (July/August 2011), 12–18. 3 “The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004-2011,” New American Foundation, November 2, 2011. http://counterterrorism.newamerica.net/drones (accessed November 14, 11). 4 Kim Ghattas, “Obama Breaks with Bush Afghan Policy,” BBC News, March 27, 2009. http://news.bbc.uk/go/pr/fr/-/2/hi/americas/7969071.stm (accessed June 19, 2011).

Annie Janus is a second-year graduate student at American University School of International Service, concentrating on international security and foreign policy. She specializes in intelligence studies, decision-making processes, and security policy, particularly in South Asia. Prior to enrolling in American University, Annie worked as a research analyst and a paralegal. Annie is a graduate of the University of Chicago, where she earned her M.A. in 2008, and the University of Wisconsin- Madison, where she earned her B.A.’s in 2006. Journal of International Service

former viewpoint. Focusing on the efficacy of the drone strikes, this essay argues that using armed drones is counterproductive for advancing U.S. regional goals and objectives, and recommends that the Administration adopt a policy program based on counterinsurgency principles. In analyzing Obama’s drone policy, this essay will proceed as follows: the first section will consider the goals and objectives as stated by the Administration and how the current policy relates to these goals and objectives; the second section will consider how the Administration framed the problem and how successfully the current solution or policy addresses this problem; finally, I will consider the costs and benefits of the Administration’s possible policy options and determine which one of these options offers the greatest benefits towards achieving the Administration’s goals and objectives. Before proceeding to this analysis, however, it is necessary to clarify several terms used throughout this essay. The term “insurgency” is defined as a struggle between a nonruling group and the ruling authorities, in which the nonruling group wishes to destroy the legitimacy of the ruling group.5 Terrorism will refer to a type of warfare in which physical coercion and violence or the threat thereof, particularly against noncombatants and especially civilians, is used to achieve various political or ideological objectives.6 Most of the militants operating in Afghanistan and Pakistan— i.e., Afghan and Pakistani Taliban, al Qaeda, and the Haqqani network—are both insurgents and terrorists; however, not all terrorists are insurgents and not all insurgents are terrorists. Since the groups this essay is concerned with are both terrorists and insurgents, for purposes of simplicity and parsimony, this essay will refer to these groups as “militants.”

Framing the Problem

President Obama has repeatedly stressed Pakistan’s critical role in the war in Afghanistan, claiming that it is part of the “trilateral framework” between Afghanistan, Pakistan, and the U.S. needed to win this campaign against regional extremism. 7 But Pakistan’s restrictions on U.S. forces within Pakistani territory and the Pakistani security force’s tendency to protect certain militant groups places the Administration at odds with a key regional ally and creates a pivotal question for U.S. policymakers: How can the U.S.

5 Bard E. O’Neill, Insurgency and Terrorism: From Revolution to Apocalypse, 2nd ed. (Washington, DC: Potomac Books, 2005), 15. 6 O’Neill 2005, 33. 7 General James Jones, briefing on President Obama’s Afghanistan-Pakistan (AfPak) strategy (Foreign Press Center, March 27, 2009). http://fpc.state.gov/120965.html (accessed June 15, 2011).

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wage war against the militants in the FATA without infringing on Pakistan’s sovereignty? The Administration’s current solution to this problem—that is, the CIA-led drone program that launches missiles from unmanned aerial vehicles—suggests that the solution was based on several profound assumptions. Using drones enables the U.S. to covertly pursue the Afghan Taliban and other targets in Pakistan, and offers what has been perceived as tangible military success: killing militants. U.S. officials such as former CIA Director Michael Hayden aver that the drone strikes have been a success for U.S. counterterrorism efforts, claiming that such strikes are responsible for “significant” losses for al Qaeda and its allies, making them feel “less secure.” 8 Hayden’s statement implies the Administration’s general assumption that waging war with a focus on killing a few militants in the FATA could be effective in disrupting and dismantling the Afghan Taliban and other militant groups. Finally, Hayden’s comment also reveals the assumption that the potential trade-offs of launching drone strikes—e.g., the increased anti-American sentiments, pervasive anger with the Pakistani government for allowing the strikes, and the disempowering societal effects—will not exacerbate the threats that the drone strikes seek to solve. In essence, the Administration assumes that for the benefit of killing a few militants, any trade-offs of using drones are acceptable and less threatening consequences. Another crucial and far-reaching assumption in the Administration’s “trilateral framework” is that the U.S., Afghanistan, and Pakistan perceive the same threat, or “a common enemy.”9 Although Afghanistan and the U.S.’s threat perceptions are relatively similar, there are critical differences between U.S. and Pakistani perceptions of the problem. While the U.S.’s primary targets include al Qaeda, the Haqqani network, and the Afghan Taliban, Pakistan’s powerful security forces protect these groups, hoping to use these militants as “strategic assets” for expanding Pakistan’s regional power. For many Pakistani military officials, the goal is to reinstate a pro- Pakistan Afghan Taliban government to offset India’s power.10 Yet while Pakistani security forces are trying to preserve some militant groups, they use U.S. assistance for counterinsurgency operations against groups like the Pakistani Taliban—a Pakistan-based insurgent group

8 Bergen and Tiedemann 2011. 9 Ghattas 2009. 10 Jayshree Bajoria, “The Troubled Afghan-Pakistani Border,” Council on Foreign Relations Backgrounder, November 29, 2007. http://www.cfr.org/pakistan/troubled-afghan-pakistani- border/p14905 (accessed December 1, 2011).

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that aims to oust the Pakistani government.11 The Pakistani Taliban claims responsibility for many of Pakistan’s internal attacks. The Council on Foreign Relations describes the rise and nature of the Pakistani Taliban:

In December 2007, about thirteen disparate militant groups coalesced under the umbrella of Tehrik-e-Taliban Pakistan (TTP), also known as the Pakistani Taliban. . . . According to some estimates, the Pakistani Taliban collectively [has] around thirty thousand to thirty-five thousand members. Among their other objectives, the TTP has announced a defensive jihad against the Pakistani army, enforcement of sharia, and a plan to unite against NATO forces in Afghanistan. . . . Some experts have questioned the ability of the different groups working under the Pakistani Taliban umbrella to stay united. . . . However, the group has proved since its inception, through a string of suicide attacks, that it poses a serious threat to the country’s stability. On May 12, 2011, the Pakistani Taliban claimed responsibility for bombing a paramilitary academy that killed eighty people and injured over one hundred.12

Thus, Pakistani security forces view the problem as one of dismantling the Pakistani Taliban, but preserving the Afghan Taliban and the Haqqani network. Pakistan’s “double-dealing” is arguably the fulcrum of current U.S.-Pakistan tensions.13 In his last testimony for the Senate Armed Services Committee, outgoing chairman of the U.S. Joint Chiefs of Staff, Admiral Mike Mullen, brazenly claimed that the Haqqani network “operates from Pakistan with impunity” and that Pakistan’s ISI uses the group as a “strategic arm.”14 Pakistan solicits American assistance in fighting terrorist groups that target Pakistan—i.e., Pakistani Taliban, the Tehrik-e-Taliban Mohmand (TTM), the Tehrik-e-Nefaz-e-Shari’at-e-Mohammadi (TNSM), and the Lashkar-e-Islami (LI)—while it supports other militant groups, such as the Quetta Shura (top leaders of the Afghan Taliban, named after the city in Pakistan where it

11 Ahmed Rashid, Descent into Chaos: The United States and the Failure of Nation Building in Pakistan, Afghanistan, and Central Asia (New York: Viking, 2008), 241. 12 Jayshree Bajoria, “Pakistan’s New Generation of Terrorists,” Council on Foreign Relations, May 13, 2011. http://www.cfr.org/pakistan/pakistans-new-generation-terrorists/p15422 (accessed June 26, 2011). 13 Rashid 2008, 241. 14 “Pakistan Seeks Control of Its Afghanistan Endgame,” YaleGlobal Online Magazine, September 30, 2011. http://yaleglobal.yale.edu (accessed November 14, 2011).

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meets), the Haqqani network, and the Hizb-i-Islami.15 In short, there is no “common enemy” to base genuine U.S.-Pakistan cooperation upon. This cooperation seems to come at a high price. According to Bruce Riedel, a former CIA officer who served as an advisor to the Obama administration on Afghanistan and Pakistan, “A lot of the targets are nominated by the Pakistanis—it’s part of the bargain of getting Pakistani cooperation.” 16 Unfortunately, Pakistan’s divergent objectives and the manner in which the Administration framed the problem have made it difficult to pursue the U.S.’s regional goals and objectives.

U.S. Goals and Objectives

During the 60-day interagency review on U.S. policy towards Afghanistan and Pakistan, Congress, the CIA, and members of the National Security Council cited the following primary regional goals and objectives:17

1. The core goal of the U.S. strategy in the Afghanistan and Pakistan theater is to disrupt, dismantle, and defeat the Afghan Taliban and other targets; 2. To deny the Afghan Taliban and other targets a safe haven in Pakistan; 3. Promote a more capable government and increasingly self-reliant security forces in Afghanistan; 4. Assist Pakistan in enhancing civilian control, a constitutional government, and a vibrant economy that provides opportunity for the people of Pakistan.18

These goals and objectives reveal conflicting interests and a fundamental contradiction to the Administration’s approach to solving the central problem of pursuing militants in the FATA: it is trying to use

15 Ashley J. Tellis, “2014 and Beyond: U.S. Policy Towards Afghanistan and Pakistan, Part I Congressional Testimony” (House Committee on Foreign Affairs, Washington, DC, November 3, 2011). 16 Jane Mayer, “The Predator War: What Are the Risks of the C.I.A.’s Covert Drone Program?” The New Yorker, October 26, 2009. http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer (accessed June 6, 2011). 17 Jones 2009. 18 Anonymous, “White Paper on the Interagency Policy Group’s Report on U.S. Policy Towards Afghanistan and Pakistan,” http://www.whitehouse.gov/assets/documents/Afghanistan- Pakistan_White_Paper.pdf (accessed June 10, 2011).

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counterterrorism techniques—i.e., drones—as means to achieve counterinsurgency objectives.19 Counterterrorism operations tend to have a more direct focus on defeating the enemy, rather than long-term social enhancement. In contrast, counterinsurgency operations are generally long-term and require “social and political mobilization” to loosen the hold that insurgents have over society. In counterinsurgency, the purpose of the military battle is “to create a space to build a state and nation capable of defending itself,”20 while counterterrorism involves a more limited focus on military power—i.e., missile strikes and raids—as a means of defeating the enemy. Compared to counterinsurgency strategies, the counterterrorism tactics tend to focus on the short term. Thus, the Administration’s use of drone strikes represents a strategic contradiction between its counterinsurgency and counterterrorism objectives. By creating continuous and disempowering chaos, the strikes incite the anger, instability, and fear that make the extremists seem more reliable than the government allowing the strikes. The drone strikes actually push the populace towards the militants and thus empower rather than dismantle terrorist and insurgent groups. From this perspective, it becomes clear that the Administration does not know how to balance its long-term goals with its short-term goals. This may be why, despite significant effort, the Obama administration has not successfully reached its announced goals. Comparing the current situation in 2011 to 2009, Professor Paul Staniland offers a bleak assessment, opining that “Pakistani security policy remains dominated by the military, the country’s economic performance and political stability are both troubling, and the broader region has become even less secure.”21 Humbling assessments such as this cast doubt on the Administration’s current policies and suggest little progress has been made to solve the problems of Pakistan’s safe havens. Much of the Administration’s difficulties with balancing its short- term and long-term goals stem from the manner in which the Administration framed the problem of how the U.S. can wage war against militants in the FATA. This approach conveys an emphasis on counterterrorism tactics, or a direct focus on attacking militants, rather than a more comprehensive framework that looks at how to suppress militancy in the FATA. As will be

19 George Packer, “Goodbye to a Kind of War,” The New Yorker, June 23, 2011. http://www.newyorker.com/online/blogs/georgepacker/2011/06/obama-afghanistan- drawdown.html (accessed June 24, 2011). 20 George Friedman, “U.S. and Pakistan: Afghan Strategies,” June 21, 2011. http://www.stratfor.com/weekly/20110620-us-and-pakistan-afghan-strategies (accessed June 21, 2011). 21 Paul Staniland, “Caught in the Muddle: America’s Pakistan Strategy,” The Washington Quarterly (Winter 2011): 133–148.

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discussed later, pursuing the Administration’s short-term and long-term goals—i.e., disempowering militant groups and stabilizing the region—will require approaching the problem from the more comprehensive perspective of suppressing militancy and selecting a policy that works towards quelling the means and motivations for militancy.

Policy Options

Unfortunately, Washington’s military options for waging war against militants in the FATA are limited. Pakistan opposes both U.S. Special Forces operating in the FATA and NATO cross-border strikes, claiming that such actions would impinge on Pakistan’s sovereignty. Pakistan has a history for responding harshly to such infringements. In 2010, when NATO helicopters flew into Pakistani airspace, Pakistan responded by closing the Torkham border crossing, an essential NATO supply link. Several Pakistani officials continue to make their aversion to foreign forces in Pakistani territory very clear. Pakistan’s Ambassador to the United States Husain Haqqani, for example, condemned the suggestion of expanding U.S. special operation raids into Pakistan, asserting that Pakistan would not allow foreign forces to operate within its borders.22 While Pakistani armed forces have attempted to clear out six tribal agencies in the FATA,23 they appear either unable or unwilling to do so in North Waziristan24—the primary location of al Qaeda, the Haqqani network, and the Afghan and Pakistani Taliban’s main bases. This leaves Washington with a challenging problem: How can the U.S. wage war against the militants in the FATA without infringing on Pakistan’s sovereignty? Although the Administration has limited policy options, there are at least four plausible alternatives. The first option for any policymaker is to do doing nothing. However, considering what the Administration claims to be at stake—that is, the safety of the American people—the choice to do nothing about Pakistan’s safe havens is not a logical choice, nor one that the Administration appears to show interest in. In 2010, the White House’s “Overview of the Afghanistan and Pakistan Annual Review,” stated that “[w]e remain relentlessly focused on Pakistan-based al-Qa’ida because of the strategic nature of the threat posed by its leaders. . . . We believe core al- Qa’ida continues to view the United States homeland as its principal target,

22 Bergen and Tiedemann 2011, 12–18. 23 The FATA consists of seven semi-autonomous tribal agencies, Bajaur, Mohmand, Khyber, Orakzai, Kurram, and North and South Waziristan. 24 Bergen and Tiedemann 2011, 12–18.

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and events over the past year indicate some of its affiliates and allies . . . also threaten the U.S. homeland and interests.”25 The second policy option is the one the Administration currently employs: use CIA-controlled armed drones to target militants such as al Qaeda, the Afghan Taliban, the Haqqani network, and the Pakistani Taliban in the FATA. This option appeals to the Administration for several reasons. As mentioned earlier, the U.S.-Pakistan alliance constrains Obama’s tactical options; but on the other hand, although the Pakistani government publically denies it, they sometimes authorize and even request drone strikes in Pakistan.26 Washington also faces domestic constraints, where a war-weary public with a record-high national deficit is tired of financing a war that few Americans support. An inexpensive alternative to traditional military options, armed drones are capable of pursuing militants at a fraction of the cost of other military tactics. The Reaper drone costs $10 million compared with manned fighter aircraft such as the $350-million-dollar F-22 Raptor.27 Moreover, using unmanned aerial vehicles does not endanger U.S. forces. Thus, from a tactically pragmatic viewpoint, drones are appealing, and, by killing militants, offer a sense of tangible achievement. From the Administration’s standpoint, the trade-offs of civilian casualties, destruction of communities, and increased anti-American sentiments are acceptable costs of using drones, which many government officials and analysts insist are effective. According to former CIA analyst Lisa Curtis, “The drone strikes have been a powerful tool to disrupt al Qaeda operations in tribal areas.”28 The U.S. drone program is considered a success in U.S. counterterrorism efforts, primarily because of the militants— including high-level leaders of the Afghan Taliban and al Qaeda—the drones have killed. It is worth noting, however, that the majority of those killed in drone strikes are low-level insurgents, and a small number of civilians.29 More importantly, defining success based on the number of militant deaths does not address the more significant question: Has the drone program positively affected the insurgencies in Pakistan and Afghanistan? Unfortunately, the evidence suggests that drones have adversely rather than

25 “Overview of the Afghanistan and Pakistan Annual Review,” Council on Foreign Relations, December 2010, 2. http://www.cfr.org/pakistan/overview-afghanistan-pakistan-annual- review-december-2010/p23646 (accessed December 1, 2011). 26 Bergen and Tiedemann 2011, 12–18. 27 Bobby Ghosh, “The CIA’s War in Pakistan,” Time, June 1, 2009, 38–41. 28 Missy Ryan, “Even post-bin Laden, U.S. drones in Pakistan press on,” Reuters, May 12, 2011. http://www.reuters.com/article/2011/05/12/us-binladen-kill-drones- idUSTRE74B6I520110512 (accessed May 14, 2011). 29 Bergen and Tiedemann 2011, 12–18.

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positively affected the U.S.’s counterinsurgency and counterterrorism goals.30 Although the Pakistani government allows and even requests drone strikes, it publically denounces the unpopular strikes, hoping to shift the blame onto the U.S. To Pakistanis, the program blatantly disregards their sovereignty and affirms the belief that the U.S. is an unreliable, self-serving ally, willing to disregard the U.S.-Pakistan alliance whenever it is convenient. Anti-Americanism in Pakistan has recently soared. And the Pakistani government’s efforts to evade responsibility appear to have failed, while resentment towards the “pro-American Pakistani government” has spiked.31 Drones have become a recruiting call for militants and appear to have bolstered rather than disrupted the insurgency. 32 According to Mahmood Shah, a retired Pakistani official, a former commander of the Pakistani Taliban used to boast that “each drone attacks brings him three or four suicide bombers.”33 As a result, violence in Pakistan has surged from 150 terrorist incidents in 2004 to 1,916 in 2009,34 with 2010 being one of the bloodiest years on record.35 Furthermore, the numbers suggest that the drone strikes are doing little to reduce the bottom-line number of terrorists. U.S. intelligence estimates place the number of Afghan Taliban militants as increasing from 7,000 in 2005 to 25,000 at the end of 2009;36 and despite the spike in the number of drone strikes over the past two years, 2011 estimates also place the number of Afghan Taliban at 25,000.37 These estimates indicate that militants killed are simply being replaced by new militants and, moreover, that the CIA-controlled drone strikes are not solving the problem. A third and often-advocated option would be to transfer the responsibility of the drone strikes in Pakistan from the CIA to the Pentagon and to use drone strikes only with actionable intelligence against high-

30 Bergen and Tiedemann 2011, 12–18. 31 Ghosh 2009. 32 Hassan Abbas, “President Obama’s Policy Options in Pakistan’s Federally Administered Tribal Areas (FATA),” Institute for Social Policy and Understanding, January 26, 2009. http://belfercenter.ksg.harvard.edu/publication/18789/president_obamas_policy_options_in_ pakistans_federally_administered_tribal_areas_fata.html (accessed June 24, 2011). 33 Ghosh 2009. 34 Bergen and Tiedemann 2011, 12–18. 35 Varun Vira and Anthony H. Cordesman, “Pakistan: Violence vs. Stability,” Center for Strategic International Studies, May 5, 2011. http://csis.org/files/publication/110504_stabilizing_pakistan.pdf (accessed November 19, 2011). 36 Anonymous, “US: Taliban has grown fourfold,” Aljazeera, October 9, 2009. http://english.aljazeera.net/news/americas/2009/10/20091091814483962.html (accessed June 25, 2011). 37 Anonymous, “Surge fails to reduce number of Taliban fighters,” The Washington Times, January 6, 2011. http://www.washingtontimes.com/news/2011/jan/6/surge-fails-to-reduce- number-of-taliban-fighters/ (accessed June 25, 2011).

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profile targets.38 This policy option would bring several advantages. For instance, a military-operated program would mitigate the legal concerns surrounding the current CIA-led drone program. As national security scholars Peter Bergen and Katherine Tiedemann point out, “U.S. military lawyers ensure that the strikes conform to the laws of war, whereas in Pakistan, whatever vetting process the CIA observes remains opaque.”39 A military-led drone program would also place the strikes within a clear chain of command, with greater accountability that would require greater cooperation and information-sharing from Pakistan. Unfortunately, U.S.- Pakistan relations are arguably more strained than ever. And following the U.S. raid on Osama bin Laden’s compound in Abbottabad, Pakistan, the Pakistanis have reduced the amount of intelligence-sharing and have kicked out more than 100 U.S. troops training Pakistanis in counterterrorism tactics.40 In addition to current tensions, the Pakistani military’s precedent of “double dealing”—that is, pretending to support U.S. counterterrorism efforts while covertly supporting the Afghan Taliban—increases the risk of the U.S. receiving dubious intelligence or information aimed at serving Pakistan’s interests at the cost of U.S. interests.41 Finally, increasing the transparency and legal viability of using drones still fails to address the underlying source of the FATA’s security threat: the lack of social and economic opportunity, poverty, political alienation, and pervasive anger and fear that empower the militants. These are longstanding characteristics that have made the FATA an ideal breeding ground and sanctuary for militancy. In many ways, the current insurgent operations are a reiteration of the numerous insurgencies that have operated from the FATA. Both Afghanistan, which supported the Baloch insurgency in the 1970s, and Pakistan, which supported the mujahedeen in the 1980s, have sponsored and harbored militants in the FATA.42 The longstanding Durand Line border dispute between Afghanistan and Pakistan further complicates matters and contributes to border violence and the perceptions that the FATA is isolated from the rest of Pakistan. British civil servant Sir Mortimer Durand drew the Durand Line in 1893 to delineate the Afghanistan frontier from British India. In order to prevent the Pashtun tribes from being a nuisance to the Raj, the Durand Line intentionally divided the Pashtun homelands equally between Afghanistan

38 See, for example, Bergen and Tiedemann 2011. 39 Bergen and Tiedemann 2011, 12–18. 40 “As US plans Afghanistan withdrawal, more attention will be directed at Pakistan,” The Washington Post, June 24, 2011. 41 Rashid 2008. 42 Bajoria 2007.

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and British India.43 Since its inception, Pashtuns on both sides of the Durand Line have viewed it with contempt.44 When Pakistan was created after the Partition of India dismantled the Indian Empire, the new nation inherited these transnational tensions, which were reinvigorated during the Partition. According to Pakistani journalist Ahmed Rashid, “After the Partition of India . . . Kabul refused to affirm the Durand Line, declaring that as Pakistan was a new state, Afghanistan’s borders had to be redefined. Afghanistan refused to recognize Pakistan’s accession to the United Nations and laid claim over FATA.”45 Afghanistan still refuses to acknowledge the Durand Line as an international border, and numerous Afghan-Pashtun leaders have posited that the Pashtuns’ “original home” is Afghanistan, and thus Pakistan’s Pashtun regions should be part of Afghanistan. Some Pashtuns have pushed for an independent Pashtun nation, “Pashtunistan.”46 In addition to the issue of divided Pashtun homelands, Pakistan’s inability to economically, socially, and politically integrate the FATA into the rest of Pakistan increases Afghanistan’s reluctance to accept the Durand Line’s delineation.47 As the poorest and least-developed part of Pakistan, the FATA is plagued with poor education, rampant unemployment, and severe poverty. Compared to Pakistan’s national average of 40 percent literacy, only 17 percent of the FATA population can read.48 Per capita income is a meager $250, whereas the national average is $500, and 66 percent of FATA families live below the poverty line.49 The impact of this segregated poverty should not be underestimated, as such institutionalized economic discrimination is often a primary underlying cause of insurgencies.50 Further complicating the situation, Pakistan has never politically integrated the region, despite numerous promises to do so. Although Pakistan’s 1973 constitution gives the president authority over the region, the president does not exercise this authority. The FATA is still governed by the severe Frontier Crimes Regulation (FCR) system the

43 Husain Haqqani, Pakistan: Between Mosque and Military, Washington, DC: Carnegie Endowment for International Peace (2005), 160. 44 David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One (New York: Oxford University Press, 2009), 234. 45 Rashid 2008, 267. 46 “Afghanistan and Pakistan,” Institute for the Study of War: Military Analysis and Education for Civilian Leaders, http://www.understandingwar.org/themenode/pakistan-and- afghanistan (accessed November 17, 2011). 47 Abbas 2009. 48 Daniel Markey, “Securing Pakistan’s Tribal Belt,” Council on Foreign Relations, August 2008. http://www.cfr.org/pakistan/securing-pakistans-tribal-belt/p16763 (accessed July 9, 2011), 4. 49 Markey 2008, 5. 50 O’Neill 2005, 82.

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British imposed in 1901.51 This system allows for people to be detained indefinitely without charge and sanctions collective punishment, or the punishment of whole communities for the crimes committed by an individual community member. The injustice of the FCR system has made militancy and Islamic movements a more appealing alternative. As political analyst Imtiaz Gul avers, “The main reason for the popularity of . . . Islamist movements in the tribal areas stems from the draconian system of the FCR . . . the search for a fair justice system and the craving for equal citizenship has become synonymous with sharia.”52 According to Lieutenant Colonel John J. Malevich, westerners do not appear to recognize the importance of the role of religion in Afghan and Pakistani insurgencies. Malevich connects Gul’s opinion on the role of sharia law to the insurgency, claiming that “[a] religious element is the root cause of this insurgency. Young rural men who are frustrated by their lack of opportunity or upward social mobility turn to the rhetoric of jihad to improve their prospects.”53 In other words, poverty, poor education, and political segregation are motivating the militancy, making sharia law and Islamic extremism a better alternative than the government. Insurgencies place the support of the local people between the government and the insurgents, forcing civilians to choose which group they want to support. By exacerbating the FATA’s instability and making civilians feel unprotected, drone strikes are causing the population to tilt away from the government and towards the insurgents. Besides inflaming anti-American sentiments, drone strikes incite more anger against a “pro- U.S. government” in Pakistan that is already on the verge of collapsing. The drones seem to be uniting civilian and militant groups against both the U.S. and the Zardari administration. In 2007, warlord Maulvi Nazir signed a nonaggression pact with the Pakistani military. However, after he found out that he was a target for a U.S. drone strike, he broke the agreement and joined forces with another warlord in a united front against the U.S. and Pakistani governments.54 In effect, the drone strikes are becoming a catalyst for attacking U.S. interests and militant goals to dismantle the Pakistani government. As counterinsurgency expert David Kilcullen commented, “If

51 Barnett R. Rubin and Abubakar Siddique, “Resolving the Pakistan-Afghanistan Stalemate,” United States Institute for Peace, Washington, DC, October 2006. http://www.usip.org/files/resources/SRoct06.pdf (accessed June 5, 2011). 52 Gul 2009, 53. 53 Lieutenant Colonel John J. Malevich and Daryl C. Youngman, “The Afghan Balance of Power and the Culture of Jihad,” Military Review (May–June 2011). http://www.dtic.mil/cgi- bin/GetTRDoc?Location=U2&doc=GetTRDoc.pdf&AD=ADA542609 (accessed November 17, 2011). 54 Ghosh 2009.

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we wind up killing a whole bunch of al-Qaeda leaders and, at the same time, Pakistan implodes, that’s not a victory for us.”55 That said, the third policy option, of transferring the responsibility for drone strikes in Pakistan from the CIA to the Pentagon,56 is a better alternative than the current policy, but it will still do little to stabilize the region. While targeting only high-profile terrorist leaders would mean fewer strikes and thus less disruption and civilian deaths, this solution still fails to address the underlying problems driving the region’s militancy. As former strategic analyst for the Joint Chiefs of Staff John McCeary posited, “Killing leaders supports an illusion of progress, but not a reality.”57 Ultimately this solution suggests the ill-conceived logic that the U.S. can selectively solve the terrorist problem by attacking top terrorist leaders while ignoring the larger sea of militancy within which they thrive. 58 Regardless of any tactical security gains—that is, how many militants conventional military tactics kill—these gains will be ephemeral without ameliorating the conditions that enable militants to thrive, motivate recruits to join their causes, and cause the population to view extremist beliefs as a more appealing alternative.59 The fourth possible policy option would be to adopt a more comprehensive approach based on counterinsurgency principles aimed at reducing the prospects and motivation for militancy. This will involve securing and stabilizing the FATA’s Afghan-Pakistan border and making efforts to socially and economically integrate the FATA in Pakistan. In other words, this approach will need to emphasize the containment of militants and focus on counterinsurgency tactics and soft diplomacy aimed at stabilizing the tribal belt’s frontier, ameliorating conditions favorable to militants, and integrating the FATA into Pakistan’s economic, political, and social environment. Unfortunately, the U.S. has very little influence over Pakistan’s politics and socioeconomic policies. Nevertheless, the U.S. still has options for reducing the capacity for militancy in the FATA. In the short term, the Administration should discontinue the drone program in Pakistan and replace it with a focus on containing militants and cutting off their sources of funds. Estimates suggest that the program has not reduced the number of militants and that there is a positive correlation between the increase in drone strikes and suicide bombings.60 Furthermore, the program has worsened anti-Americanism and anger towards the

55 Ghosh 2009. 56 See, for example, Bergen and Tiedemann 2011. 57 David Wood, “Obama’s Drone War: Does the Killing Pay Off?” The Huffington Post: Politics Daily, February 12, 2010. http://www.politicsdaily.com/2010/02/12/obama-s-drone-war-does- the-killing-pay-off/ (accessed June 1, 2011). 58 Bajoria 2011. 59 Markey 2008. 60 “US: Taliban has grown fourfold,” Aljazeera 2009.

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Pakistani government, increased civilian casualties, and disrupted communities—all effects that tend to motivate militancy. There are no easy or perfect solutions to the problem of militancy in the FATA, and reaching a strategic stalemate61 and suppressing militancy via containment would be the most realistic short-term goals. Doing so will require intensified border control to stem the flow of militants, and the use of trained canines to intercept the narcotics trade, which provides militants with easy access to the cash necessary to purchase weapons, trucks, foot soldiers, and suicide bombers, whose families are amply compensated after their death. Unfortunately, Pakistani security forces have, on the one hand, limited capabilities for controlling cross-border traffic and, on the other hand, limited willingness to do so. After 9/11, the U.S. began a Border Security Program (BSP) to improve Pakistan’s border security, with a particular emphasis on the FATA, the Northwest Frontier Province (NWFP), and Baluchistan. The BSP’s objectives included training officials, outpost construction, improving the ability of Pakistan’s security and law enforcement personnel to intercept militants and narcotics, and to monitor the FATA region.62 However, strained U.S.-Pakistan relations threaten the efficacy of the program. After the raid by U.S. Special Forces killed Osama bin Laden, the Pakistani government requested that the U.S. withdraw a number of U.S. troops that are stationed in Pakistan to help train the army and gather intelligence.63 Unfortunately, implementing the BSP program requires training and a close partnership between the U.S. and Pakistan’s federal and provincial officials. With fewer U.S. forces to train Pakistani security forces and strained relations threatening a close U.S.-Pakistani partnership, effectively continuing the BSP will become increasingly difficult. The limitations in enforcing border control on the Pakistani side of the border increases the importance of intensifying border control on the Afghan side. Doing so should involve stationing a combination of U.S. forces as well as the Afghan National Police and the Afghan National Army, which is widely considered the most capable Afghan security branch.64 There are, however, mixed perspectives on the capabilities of the Afghan National

61 Markey 2008. 62 “Border Security Program: Pakistan,” U.S. Department of State, Diplomacy in Action, Bureau of International Narcotics and Law Enforcement Affairs, May 3, 2010. http://www.state.gov/p/inl/rls/fs/141576.htm (accessed November 18, 2011). 63 Adam Brookes, “US to withdraw troops from Pakistan,” BBC News US & Canada, May 25, 2011. http://www.bbc.co.uk/news/world-us-canada-13555557 (accessed June 5, 2011). 64 Greg Bruno, “Afghan’s National Security Forces,” Council on Foreign Relations, Washington, DC, August 19, 2010. http://www.cfr.org/afghanistan/afghanistans-national-security- forces/p19122 (accessed November 18, 2011).

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Security Forces (ANSF) forces—an especially crucial issue given President Obama’s announcement to accelerate the withdrawal of U.S. forces. NATO reports and U.S. officials such as Lieutenant General William Caldwell have given positive reviews. Caldwell optimistically reported that Afghanistan has the ability to “sustain the force we’ve built them . . . over the long term” after NATO troops hand over security responsibility to Afghan forces by the end of 2014.65 South Asia scholar Ashley J. Tellis was less optimistic in his Congressional testimony, stating that “although the NATO Training Mission-Afghanistan (NTM-A) has made remarkable progress in building up the ANSF . . . it is unlikely that these indigenous forces—military, police, and militia—will be capable of independently securing the country against the wide range of terrorist and insurgent groups that will still be present in the region in 2014.”66 The uncertainty regarding the ANSF’s capabilities suggests that even as U.S. troops withdraw from Afghanistan, an increased portion of U.S. troops should be stationed at the border, concentrating on high-traffic areas, and that the Administration should continue to make a concerted effort to bolster the ANSF. Although intensifying border control would go a long way to addressing militancy in the FATA, in the long run the problem is unlikely to significantly improve until grievances motivating militancy are redressed. Although halting the drone strikes will reduce the disruption, instability, and increased anti-American sentiments these strikes create, many of the underlying grievances motivating militancy, including poverty, poor education, unemployment, and lack of political representation, will persist. However, redressing these grievances falls under the Pakistani government’s purview. Although the Pakistani government itself has limited reach over the FATA, the government’s efforts to improve relations and politically incorporate the FATA have also been few and far between. And there appears to be a mutual distrust between the FATA and the Pakistani government. The U.S. should encourage the Pakistani government to negotiate with tribal leaders in the FATA in order to initiate the process of reconciliation. This reconciliation process should focus on agreements and strategies for larger political reforms in the FATA, such as devising proposals for judicial and political reforms.67 Efforts to incorporate the FATA into the rest of Pakistan should also be a priority. The Pakistani government

65 “NATO Claims Success with Afghan Security Forces,” Defense News, October 17, 2011. http://www.defensenews.com/story.php?i=7978063 (accessed November 18, 2011); Cheryl Pellerin, “Afghan Security Forces Learn to Protect, Serve,” U.S. Department of State, American Forces Press Service, October 14, 2011. http://www.defense.gov/news/newsarticle.aspx?id=65663 (accessed November 18, 2011). 66 Tellis 2011. 67 Markey 2008.

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needs to fulfill its promise to revoke the FCR. Revoking the FCR and politically integrating the FATA are necessary to enhance civilian control in the state and assuage some of Afghanistan’s qualms about the Durand Line, as Pakistan’s inability to assert government control and fully integrate the FATA into the rest of Pakistan is one of the reasons Afghanistan refuses to acknowledge the international border. 68

Conclusion

While this program addresses many issues regarding militancy in the FATA, there are several critical problems that it cannot solve. For instance, Pakistan’s contentious relationship with India will still create regional tensions and motivate Pakistan to use militants as “strategic assets” to offset India’s regional dominance.69 Additionally, these policies may not eradicate Afghanistan’s emotional attachment to the Pashtuns in Pakistan’s tribal areas—an attachment that is at the heart of Afghan’s refusal to acknowledge the Durand Land. This multipronged approach also does not directly focus on the FATA’s much-needed economic, education, and infrastructure reforms—development objectives that fall under the purview of the Enhanced Partnership with Pakistan Act of 2009 (the Kerry-Lugar-Berman bill). Instead, this program is designed to take measures to impede the logistics of militant movement and sources of funds, to initiate social and political mobilization, and improve governance. In short, rather than using conventional military tactics with the end goal of killing militants, this program’s goal is to suppress militants by denying them the movement, funds, and conditions needed to function. In contrast to drones, however, this program may be politically unappealing. Drones give politicians a tangible name or target to attach success to, which can be very powerful in garnering political support. Nevertheless, without redressing the underlying grievances motivating militancy and without ceasing the drone strikes that are exacerbating these grievances, any proclaimed “successes” are likely to be ephemeral illusions of progress. Washington needs to appreciate that pursuing its goals in the FATA requires a campaign focused more on counterinsurgency principles than on the conventional warfare tactics that drone strikes represent. Attempting to use drones to eliminate militants only addresses the supply side of the problem, but does nothing to stymie the demand side of the terrorist

68 Abbas 2009. 69 Markey 2008.

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equation.70 In fact, drone strikes create an environment of destruction and continual chaos that alienates the civilians from their government, making them feel vulnerable and unprotected. This environment creates an insecurity that makes civilians more susceptible to the militants, while also inflaming the anger and frustration that often motivates militants. In short, the drone strikes in the FATA are counterproductive for stabilizing the region, as they fail to remove the militants’ power over the population. As counterinsurgency expert Dr. David Kilcullen claimed, “Breaking the power of extremists means removing their power to intimidate—something strikes cannot do.”71

70 Dina Temple-Raston, “In the Hunt for Al-Qaida, Drone Program Expands,” NPR, September 26, 2011. http://www.npr.org/2011/09/26/140807753/in-the-hunt-for-al-qaida-drone- program-expands (accessed October 15, 2011). 71 David Kilcullen and Andrew McDonald Exum, “Death from Above, Outrage Down Below,” New York Times, May 16, 2009. http://www.nytimes.com/2009/05/17/opinion/17exum.html?pagewanted=all (accessed June 5, 2011).

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Asia as a Law and Development Exception: Does Indonesia Fit the Mold?

Jesse Roberts

Introduction

According to Brian Tamanaha, “there appears to be widespread agreement, traversing all fault lines, on one point, and one point only: that the ‘rule of law’ is good for everyone. . . . This apparent unanimity in support of the rule of law is a feat unparalleled in history. No other single political ideal has ever achieved global endorsement.”1 There is also widespread agreement as to the universal value of development. How development is achieved, however, has long been a point of contention. There may only be one thing certain in the development field, and that is the connection between the rule of law and development. The idea that development is dependent on adherence to laws is as old as Plato, who said that lawlessness harms contracts.2 Earlier on, international economic institutions and many aid agencies focused only on the economic measures of development, such as GDP per capita and growth thereof, but this approach drew a lot of criticism.3 Amartya

1 Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge and New York: Cambridge University Press, 2004), 1, 3, 4. 2 Plato, Laws IV, ed. Robert Maynard Hutchins, Great Books of the Western World 7 (Chicago: Encyclopedia Britannica, 1952), 682. 3 Michael J. Trebilcock and Ronald J. Daniels, Rule of Law Reform and Development: Charting the Path of Progress (Northampton, MA: Elgar, 2008), 4.

Jesse Roberts graduated from the American University School of International Service in December of 2011 with an MA in International Peace and Conflict Resolution. She earned a BA with honors from the University of Maryland, College Park, in Government and Politics. She also graduated from the American University Washington College of Law in May of 2011 with a JD focused on International Law. She recently passed the New York Bar Exam in July of 2011. Jesse worked as a research assistant at the United States Institute of Peace (USIP) in 2010 and 2011, working with a U.S. Army Fellow on national security issues, specifically counter-terrorism and counter-insurgency models in Indonesia. While at USIP she also worked with other Fellows on a case study of the treatment of child victims in the cases tried by the International Criminal Tribunal for the former Yugoslavia. Jesse currently works in the policy department of the Enough Project at the Center for American Progress, an advocacy group that aims to end genocide and other mass atrocities in Africa.

Journal of International Service

Sen argues, in his seminal work Development as Freedom,4 that a full conception of development embraces a wide range of dimensions of human well-being that bear on the capabilities of individuals to live lives they have reason to value, including political freedoms, economic facilities, social opportunities, transparency guarantees, and protective security. The United Nations Human Development Index similarly adds measures beyond just the economic, including health and educational status in the measure of a nation’s development. In 1999, the same year Development as Freedom was published, former President of the World Bank, James Wolfensohn, proposed a Comprehensive Development Framework that incorporated a wide range of economic and social indictors of human well-being. The term “rule-of-law” is not as easy to define as it might seem. As Kenneth Dam says, “perhaps the rule of law is something that we know when we see it, as Justice Potter Stewart said of pornography in a Supreme Court case involving a motion picture.”5 Everyone can imagine how a transparent government, complete with policymakers who have not been corrupted, and laws that are followed and enforced, would facilitate economic growth. Dam’s work focuses specifically on how the protection of property and enforcement of contracts contributes to economic development.6 Most economists who draw a correlation between rule of law and development are basing it in the school of thought called New Institutional Economics, which emphasizes the concept that the protection of private property rights and the facilitation and enforcement of long-term contracts are essential to raising levels of investment and rates of economic growth.7 Often when development is referred to in the realm of trade and economics, the more narrow definition “economic growth, accompanied by improvements in productivity and employment” is used, and so paired with Kenneth Dam’s focus for the rule of law, this definition of economic development will suffice for the discussion that follows. Rule-of-law aid providers around the world seem confident that they know what the rule of law looks like in theory. They want to see the law applied fairly, uniformly, and efficiently throughout the society in question, to both public officials as well as ordinary citizens, and to have the law protect various rights that ensure the autonomy of the individual in the face of state power in both the political and economic spheres. But much of the aid offered comes from western donors, and so their vision of what a functional system of laws and adherence to those laws looks like is often biased in favor of western

4 Amartya Sen, Development as Freedom (New York: Knopf, 1999). 5 Kenneth Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (Washington, DC: Brookings Institution Press, 2006), 14; Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), J. Stewart concurring. 6 Dam 2006, 15. 7 Dam 2006.

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culture. Thomas Carothers claimed in his 2003 Carnegie working paper that these aid providers did not have much interest in nonwestern forms of law, in traditional systems of justice, or, in the case of some American rule-of-law experts, even in civil law.8 The relationship between law and economic development has been a central concern of modern social theory for a long time. One of the oldest theories of law and development comes from Weber’s scholarship, which asserts that a rational system of law played a crucial role in the economic development of the Protestant West by allowing individuals to order their transactions with some predictability.9 Weber also claimed, however, that institutions alone were not sufficient to generate modern capitalism back in the days of its early development, but that the development of capitalism actually also required the change in consciousness associated with the Protestant reformation. Weber’s analysis of China strengthened his argument that without a cultural transformation technological innovation was insufficient to create capitalism. This ties in closely with modernization theory, which held that the development process entailed a shift away from traditional institutions and culture. This is how the assumption was born that developing countries should not only adopt technologies from the modern West, but systems of social organization as well.10 In the 1950s and ’60s, western scholars were extremely optimistic about building postcolonial political and economic systems. They sought to export U.S. models of law and legal education, suggesting the possibility of a theoretically informed development policy focused on law.11 Later on, in the 1970s, law and society scholars focused primarily on Latin America and therefore were informed by an activist vision of law as a tool for social change. But the proponents of the movement eventually came to realize that western liberal democratic legal and economic models were not easily transplanted to nonwestern settings, and at the same time, historical events surrounding civil rights and the Vietnam War caused many western scholars to become disenchanted with their own legal systems and wonder if they were even worth transplanting. An influential article published by Mark Galanter and David Trubek in 1974, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, presented a critique that exposed the flawed assumptions and failures of the effort to impose western models on developing nations.

8 Carothers, The Problem of Knowledge, 19. 9 Max Weber, in Economy and Society, ed. G. Roth and C. Wittich (Berkeley: University of California Press, 1979). 10 Tom Ginsburg, “Does Law Matter for Economic Development? Evidence from East Asia,” Law and Society Review (2000). 11 Brian Z. Tamanaha, “The Lessons of Law and Development Studies,” American Journal of International Law 89 (1995): 470–486; Ginsburg 2000, 829–856, 853.

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A nagging problem with Weber’s theory was that he also claimed rational institutions relying on codified law were most supportive of economic growth, which was empirically disproved by the example of England, which developed much more quickly than Northern Europe and had a common law system as compared to Northern Europe’s “more rational” codes. This “Law and Development Movement” ultimately gave way to other ideas, and for a while legal policy reform in developing countries was not being funded. Douglas North’s work eventually helped to inspire a second wave of development theory in the 1990s, adjusting the focus to eliminate the empirical problem England presented. He suggested predictability of enforcement rather than predictability of norms was the key, thus focusing on the individual entrepreneur, the protection of property rights, and contract enforcement.12 The newly growing neoliberal approach of North’s emphasizes the autonomous role of law in constraining the state, while the old approach emphasized culture and sought to encourage broader social change. Today’s development policy assumes that a country must adopt the proper institutions to facilitate growth and that institutions can be transferred across borders. Based on this new theoretical development, a new wave of law and development activities has sprung up again, and on a far larger scale than ever before.13 Today, the relationship of law and economic development is again at the forefront of development policymaking, as government agencies, international organizations, and the nonprofit sector advocate the need for strengthening the rule of law in developing countries. It is in the context of this tension that the experience of East Asia has become an interesting region in which to consider the relationship of law and economics. Many have more recently asserted that theories based on the experience of western countries may be inapplicable to societies with very different cultural traditions.14 This resurgence of law and development corresponds with renewed interest in the rapid postwar growth of economies in East and Southeast Asia. One of the most interesting aspects of this area of study is that by most accounts, law has not played a major role in Asian economic growth. Scholars have placed more emphasis on particular policies, institutions, and cultural underpinnings rather than on law per se.15 For example, in its monumental study, The East Asian Miracle, the World Bank (1993) does not discuss the legal system at all. The evidence from Chinese economic reforms so far indicates that

12 Ginsburg 2000; Douglas North 1990, 1991. 13 Jacques deLisle, “Lex Americana? United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond,” University of Pennsylvania Journal of International Economic Law 20 (1999): 179–308. Hernando de Soto, The Other Path (New York: Harper & Row, 1989). 14 Ginsburg 2000. 15 Frank Upham, Law and Social Change in Postwar Japan (Cambridge, MA: Harvard University Press, 1987).

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an increased reliance on legality has not displaced the older system of economic organization based on connections.16 Now, based on the Asian model of development, some have begun to claim that the rule of law is dispensable in the pursuit of economic growth.17 Indonesia is merely one of many examples of how economic growth can sometimes be fostered when a democratic model of the rule of law is not. An important study conducted on this topic is Law, Capitalism, and Power in Asia: The Rule of Law and Legal Institutions, a 1999 volume edited by Kanishka Jayasuriya; the study was a project of the Asia Research Centre of Australia’s Murdoch University.18 Jayasuriya’s approach seeks to “challenge the conventional wisdom that there are necessary connections between markets, liberal politics and the rule of law.”19 Thus, Jayasuriya and the contributors similarly attack the liberal paradigm of the rule of law and its relationship with economic development. Jayasuriya and his contributors strongly suggest that Asia is in fact different from other regions, and so requires a different theoretical model of law and society than the one offered by liberalism. This alternative model is based on “non-cultural commonalties that can be identified in East Asia . . . a common set of normative understandings of the purpose and function of state power and governance . . . and a form of managed and negotiated capitalism (that goes under the generic label of the developmental state) of the Japanese variety that has influenced the political economies of East Asia.”20 Tom Ginsburg has also studied the tension that has formed between the centrality of law in theories of development and existing evidence from Asia by reviewing the most recent regional studies. In his view there are at least two obvious possible resolutions of this tension: one is that existing evidence is insufficient and that a more detailed study of Asian legal institutions would reveal their central importance in Asian growth, and the other is that commonly held liberal theoretical assumptions of donors and scholars about the universal importance of legal institutions are mistaken and that we will need to adjust these conceptual frameworks accordingly.21 The questions of whether and how law matters for economic growth in Asia are consequently of great importance for both theory and practice.

16 Carol G. Jones, “Capitalism, Globalism, and the Rule of Law: An Alternative Trajectory of Legal Change in China,” Social & Legal Studies 3 (1994): 195–221; see Ginsburg 2000. 17 Michael C. Davis, “The Price of Rights: Constitutionalism and East Asian Economic Development,” Human Rights Quarterly 20 (1998): 303–337, 304. 18 Kanishka Jayasuriya, ed., Law, Capitalism, and Power in Asia: The Rule of Law and Legal Institutions (New York: Routledge, 1999), xiii. 19 Jayasuriya 1999, 1. 20 Jayasuriya 1999, 2. 21 Ginsburg 2000.

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The Asian Exception?

Despite the “rule of law orthodoxy,” evidence from Asia points to several issues contesting the relationship between legally based predictability and economic growth. For one thing, societal norms can be and have been substituted for legal contracts, which suggests that a strong legal system may not be a necessary condition for economic growth. Specifically, most of the successful East Asian growth accelerations of the last century, including those in Japan, South Korea, Taiwan, Singapore, and now China, have relied, for the security of contracts, at least as much on informal norms within family groups and kin networks as on state-enforced formal rules.22 Additionally, in many of the East Asian growth accelerations, the principal driver was not the self-sufficient individual or corporate investor, but the state itself, whose officials offered export incentives, sanctioned cartels, and erected barriers to entry in a nontransparent, unpredictable, unequal, and maybe unfair manner. Some modes of economic growth, in other words, involve empowering rather than constraining the state, and in some cases implementing a set of pro-investment institutions and policies, rather than contract enforcement, has been crucial for growth.23 There are two major aspects of law and economic development in Asia that differ from the liberal law and development theory, which must be identified in order to frame the discussion: the widespread use of informal alternatives to law, and the role of the state in facilitating economic growth. The enforcement of private contracts was not the primary function of law in traditional Asian societies. Most accounts of law in imperial China, the most studied Asian example, discount the role of the formal legal system in facilitating commercial activity and emphasize the orientation of the law toward state interests and penal matters.24 Law was seen in China as an instrument of state power to facilitate unified governance over a vast administrative empire, which stands in contrast to the western view of law as a system of dispute resolution for private individuals. The exercise of law in traditional China was harsh and sometimes unpredictable, which led merchants to try to avoid dealing within the formal legal system.25

22 Ginsburg 2000; Frank Upham, “Mythmaking in the Rule of Law Orthodoxy,” Carnegie Paper no. 30, September 2002. 23 Ginsburg 2000; Randall Peerenboom, China Modernizes: Threat to the West or Model for the Rest? (New York: Oxford University Press, 2007); Stéphanie Balme and Michael Dowdle, eds., Building Constitutionalism in China (New York: Palgrave Macmillan, 2009). 24 Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge, MA: Harvard University Press, 1967); Kathryn Bernhardt and Philip C.C. Huang, eds., Civil Law in Qing and Republican China (Stanford: Stanford University Press, 1994). 25 David Marr, Vietnamese Tradition on Trial, 1920–1945 (Berkeley: University of California Press, 1981); Ginsburg 2000.

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Where state-provided rules are unavailable or unenforced, economic actors develop reputation-based alternatives to obtain the crucial predictability in commercial transactions.26 Under conditions of weak formal protections, business is conducted within extended family groups, and firms are typically family owned. In imperial China, other informal institutions like guilds and clan groups served to coordinate economic exchange by indicating trustworthiness. These various institutions solved problems of trust and facilitated exchange by entrenching economic activity within social relations, without relying on the formal legal system. The contrast with western law here is significant.27 The Chinese compensate for the lack of legal protection through politics and long-term contracting. In most developing countries today similar mechanisms exist to facilitate capital formation, the establishment and protection of property rights, and contract enforcement.28 One of the weaknesses of this system is that reliance on personal reputation obviously limits the scope of partners you can contract with. Informal transactions can work well in close-knit trades where people all know each other, like the diamond business,29 but in complex economies it can prevent potentially beneficial transactions with new businesses or people with whom the firm is unfamiliar.30 Making transactions within family firms can also lead to succession issues that depend on cultural practices. Firms could break up after two or three generations as the children divide up the assets,31 and this in turn affects industrial structure. One of the up-sides to this system that was confirmed in the recent Asian economic crisis is that in times of uncertainty the family business can have the advantage of social ties being more resilient than business ties, making them more likely to be strengthened in times of difficulty.32 The other source of tension between evidence of East Asian growth and conventional development theory is the role of the state. Political scientists have been emphasizing the role of the state in Asian economic growth for at least a generation now because the East Asian state did not pursue hands-off policies, as required by liberal theories, but instead led the process of growth and used incentives to persuade private actors. The government coordinated larger

26 Janet Tai Lands, “A Theory of the Ethnically Homogenous Middleman Group: An Institutional Alternative to Contract Law,” Journal of Legal Studies 10 (1981): 349–367; John McMillan and Christopher Woodruff, “Dispute Prevention Without Courts in Vietnam,” Journal of Law, Economics & Organization 15 (1999): 637–658. 27 Ginsburg 2000. 28 De Soto 1989. 29 Lisa Bernstein, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” Journal of Legal Studies 21 (1999): 115–157. 30 Edgardo Buscaglia and Thomas Men, “A Quantitative Assessment of the Efficiency of the Judicial Sector in Latin America,” International Review of Law & Economics 17 (1997): 275–291, 276. 31 Ginsburg 2000; S. Gordon Redding, The Spirit of Chinese Capitalism (Berlin: De Gruyter, 1990). 32 Bruce Gilley, “Pulling Away,” Far Eastern Economic Review (February 10, 2000): 42–46.

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development efforts that were seen to be in the interest of society as a whole, so the state and large firms in Asian states essentially concluded a pro-growth bargain.33 The law is noticeably absent in a system like this: antitrust rules had to remain unenforced in order to facilitate cartelization, formal import rules had to be manipulated to maintain high informal barriers, and formal rights of shareholders were almost never invoked to constrain management. This kind of state therefore presents a different view of law and economic development; rather than facilitating capitalism, the legal system became an instrument of exclusion and a means of structuring who would participate in the bargaining process.34 Some scholars point out that market forces also can explain East Asia’s success.35 Pointing to specific institutions that shape negotiation, bargaining, and information flows in the Asian economies, an argument can be made that it was these institutions that ensured that policy was open to outside influences. In the words of Michael Trebilcock, “by establishing dense private-public sector networks to identify potential market opportunities, world market trends and prices became the litmus test for policy-making in East Asia.”36 Both of these considerations of the East Asian method challenge the conventional theory about the role of law by undermining the assumption that general, uniformly applicable rules are necessary, and that government constraint is necessary. It suggests that bureaucratic flexibility is more conducive to growth in these cases, even though it often reduces predictability. It is this analysis of the role of the state of East Asian development and the current emphasis on secure property rights and contract enforceability from which the tension stems.37 Just as the rise of Asia forced economists and political scientists to revisit assumptions about the role of the State in economic growth, so too does it call into question assumptions about the role of law in economic growth. Many have questioned the utility of universal frameworks in light of this analysis.38 If Asia were different, “[i]t would suggest that the prevailing social theories, which were derived from the experience of economic development in the West, can not be generalized. It would also caution against the use of legal technical assistance programs as an instrument to stimulate and support

33 Ginsburg 2000. 34 Upham 1987. 35 Robert Klitgaard, Adjusting to Reality: Beyond “State Versus Market” in Economic Development (San Francisco: Institute of Contemporary Studies Press, 1991); Peter Evans, Embedded Autonomy: States and Industrial Transformation (Princeton: Princeton University Press, 1995). 36 Ginsburg 2000; Michael Trebilcock, “What Makes Poor Countries Poor? The Role of Institutional Capital in Economic Development,” unpublished manuscript 1996, 5. 37 Ginsburg 2000. 38 Kishore Mahbubani, Can Asians Think? (Singapore: Times Editions, 1998).

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economic growth and development.”39 Katharina Pistor and Philip A. Wellons (1999) conducted a comparative study covering a period of years, titled The Role of Law and Legal Institutions in Asian Economic Development, 1960–1995. It was conceived and funded by the Asian Development Bank (ADB) and executed by the Harvard Institute of International Development. The study indicates that in all of the economies that were reviewed, state discretion played an important role in economic ordering at the outset of the period. The study shows that “a relatively high level of state involvement was compatible with, and perhaps even conducive to, economic growth.”40 State involvement acted as a substitute for legal ordering of private transactions in many cases, but law was not totally marginalized. Development itself created demands on the legal system and contributed to changes in economic policy; by the mid-1980s, all the economies had initiated efforts to reduce the role of the state and its discretionary power over the economy. As policies shifted to more market-oriented solutions, law became more important, so in the end, “[l]aw mattered for economic development in the period after the policy shift.”41 This account highlights that the relationships among law, economic policy, and economic development are multidirectional: formal legal rules were not sufficient to generate rapid growth initially, but growth resulted from specific (statist) policies. Only when the policy shifted to reliance on market mechanisms did legal change begin to have an important impact, suggesting not only that law is essential to underpin markets but also that unfettered markets are not the only route to economic growth in all places and times. All of the countries in the study, except for Japan, experienced increased civil and administrative litigation rates over time. So although the study rejects modernization theory, there are still remnants of that theory in the evident shift toward law with marketization in many countries. Independent evidence from the Asian crisis shows that economic policy responses varied and that no uniform, market-based approach was followed. While the pathways through which the rule of law, legal and judicial institutions, and formalized dispute resolution can promote economic growth and development are empirically contested, they are at least theoretically clear. Stable and predictable rules are said to increase the long-term returns to savings and investment, crime and insecurity keep vulnerable individuals and groups in positions of dependence and poverty, and adjudication processes affect the distribution of resources.42

39 Katharina Pistor and Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960–1995 (New York: Oxford University Press, 1999), 2. 40 Pistor and Wellons 1999, 10. 41 Pistor and Wellons 1999, 12. 42 Varun Gauri, “Customary Law and Economic Outcomes in Indonesia,” Hague Journal on the Rule of Law 2 (2010): 75–94.

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A variety of national and international actors, including state authorities, local NGOs, and international donors, have attempted to invest in and strengthen customary law systems through projects related to mediation, paralegal training, the legal empowerment of minorities, and related programs. Examples include the Jastis Blong Evriwan program in Vanuatu, new initiatives in customary land management in Timor-Leste, the “Justice Delivered Locally” initiative on the part of the Ministry of Justice and Legal Affairs in the Solomon Islands, and a national access to justice survey in Papua New Guinea. The justification for these programs has been partly based on the rights of individuals to access to justice. But the justifications have also included claims regarding the benefits of access to justice for development.43 Varun Gauri points out in his case study of Indonesia that there are many reasons for a society not to rely on the law. Many people in the developing world live in rural or remote areas where formal state institutions, including courts and the legal system, have limited reach. To resolve disputes and clarify ambiguities in social rules, they typically do not rely on the state- sanctioned system of law and justice, at least not primarily, but rather on a heterogeneous set of clan leaders, village elders, official or semiofficial councils, tribal chiefs, formally elected or appointed village heads, religious and spiritual leaders, and similar individuals who are collectively thought to maintain and dispense “customary” or “informal” justice.44

The Indonesian Example

Indonesia is the world’s fourth most populous country and as the most populous Muslim nation in the world it has received recent attention. It is also the third largest democracy. Indonesians went to the polls in April 2009 to vote in their third parliamentary election since Suharto’s authoritarian regime. The elections mark a further consolidation of Indonesian democracy and an endorsement of President Susilo Bamband Yudhoyono and his secular- nationalist politics.45 One of the most interesting aspects of the democratic elections in Indonesia is the tendency of the people to vote based on the economy. Whichever candidate is able to deliver improvement seems to be well worth supporting in the eyes of many. One of the contributing factors in the victory of the Democratic Party in 2009 was the shifting Indonesian perception that the economy was improving rather than becoming worse as they had perceived the previous year.46

43 Gauri, 2010. 44 Gauri, 2010. 45 CRS—Congressional Research Services, “Indonesia: Domestic Politics, Strategic Dynamics, and American Interests,” Bruce Vaughn, Specialist in Asian Affairs, August 7, 2009. 46 CRS Report, 1.

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Another factor contributing to President Susilo Bamband Yudhoyono’s popularity was his anti-corruption drive—80 percent of Indonesians polled believed that he was good or very good in fighting corruption. The Democratic Party was believed to be the least corrupt of all the parties, despite the widely held belief by the people that the parliament and the judiciary are the most corrupt institutions in Indonesia.47 According to Bruce Vaughn, specialist in Asian affairs, the outcome of the election indicates that Islamist political fortunes are declining and not rising as was feared, and that the country is moving in the direction of democracy and rule of law, away from past authoritarian government.48 Indonesia has had a long history of alternative governments before taking its place as the world’s third largest democracy. The Dutch historically occupied Indonesia until its independence in 1949. The Dutch, however, kept control of Papua and West Papua until 1969. After a brief period of parliamentary democracy, President Sukarno ruled with “Guided Democracy” from 1959 to 1965, after which the military under General Suharto neutralized Sukarno and Suharto maintained power until 1998. The interesting part of Suharto’s 32-year authoritarian “New Order” regime is that it provided the political stability thought necessary by his supporters for fast-paced economic growth.49 Indonesia’s economy grew at an annual rate of almost 7 percent from 1987 to 1997, but economic development came at the price of corruption and repression.50 In the 1960s, most Indonesians subscribed to nationalist, statist, and collectivist beliefs, creating a significant obstacle to market reforms.51 Ethnic politics also created obstacles to market reforms: Chinese Indonesians are a minority of the population, and some became enormously rich and as a group owned the largest share of private domestic capital. This generated widespread resentment among indigenous Indonesians and was a key reason behind the state intervention in the economy that provided them with preferential access to state resources. When Sukarno launched state-led industrialization under his “guided economy” in the 1950s, economic considerations were subordinate to the government’s political priorities, and many foreign firms were nationalized, had their licenses revoked, or ceased operations. The government extensively intervened in the financial system, centralizing disbursement in state banks and restricting capital flows, which eventually resulted in the rapid expansion of

47 CRS Report, 2. 48 CRS Report, 4. 49 “Background Note: Indonesia,” Department of State, Bureau of East Asian and Pacific Affairs, October 2003; Michael Vatikiotis, Indonesian Politics Under Suharto: The Rise and Fall of the New Order (London: Routledge, 1998), xviii. 50 “The Death of Suharto: Epitaph of a Crook and a Tyrant,” The Economist, January 31, 2008. 51 Jeffrey M. Chwieroth, “How Do Crises Lead to Change? Liberalizing Capital Controls in the Early Years of New Order Indonesia,” World Politics 62, no. 3 (2010): 502; Feith and Castles 1970; Liddle 1988.

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the money supply and hyperinflation.52 The Sukarno regime collapsed in 1965, which is when Suharto’s army took control and began to create new market-oriented policies. The problem was perceived to have been Sukarno’s elevation of political priorities over economic considerations, added to bureaucratic expansion that further strained the budget and invited corruption by giving bureaucrats discretionary control over state resource distribution. The new policy plan was meant to be one that gave due consideration to prices and material incentives and that was insulated from political interference.53 It was based on orthodox stabilization, openness to foreign capital, and assistance from official creditors.54 Jeffrey M. Chwieroth, in his theory of crisis and change, suggests that in a crisis stage, the declining performance of the status quo institutions and policies destabilizes the intersubjective beliefs that underlie them.55 In the crisis, uncertain as to what has gone wrong, actors turn to an expert, which permits those with expert authority to mobilize new arguments and ideas about changing the status quo.56 Often in a crisis, credibility with external actors can be more important than the perceived need to establish legitimacy with domestic actors, and so internal actors whose ideas resonate with relevant external actors will be empowered. Most of the new arguments Suharto’s economists were making did not sit well with the majority of domestic actors, but it was the new regime’s need for credibility from external actors that allowed these new ideas to take precedence. Like many military regimes, much of Suharto’s legitimacy depended on delivering development. This legitimating principle, particularly during times of economic deterioration, elevated the group of economists Suharto relied on and their opinions. Suharto and his advisors were convinced of the need for external assistance and other countries’ resources, so external actors’ beliefs also highly influenced the direction of change. The IMF, World Bank, and the U.S. were highly influential in the market reform process. Suharto recognized that to access financial resources, Indonesia needed to commit to policies that resonated with the beliefs of external actors regardless of how they fit with domestic beliefs and interests. He knew that if he had success with stabilization and liberalization, this would foster macroeconomic stability and development, thus establishing credibility with external actors and enhancing the regime’s legitimacy with the public.57

52 Chwieroth 2010, 503; MacIntyre 1993. 53 Chwieroth 2010, 504; Bresnan 1993, 53–54. 54 Chwieroth 2010, 504; Bresnan 1993, 54. 55 Chwieroth 2010, 496–527. 56 Chwieroth 2010, 501. 57 Chwieroth 2010, 513.

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Suharto’s policy choices were effective. He reduced the fiscal deficit and restrained central bank credit creation, and inflation decelerated from an annual rate of over 600 percent in 1966, to 150 percent in 1967, to only 4 percent in 1971.58 He also radically liberalized restrictions on foreign direct investment, not caring what sector it came in but only that it would come soon.59 Measures were taken to attract foreign and domestic savings into the banking system as well, and the economy was clearly moving toward greater openness, culminating with the abolishment of restrictions on capital outflows. According to Chwieroth, radical liberalization of foreign direct investment was probably not the only way out of the crisis for Indonesia, but it was perceived to be necessary by Suharto and his experts. It was also likely a response to the needs of the wealthy Chinese businessmen, whose political support was necessary, and for whom liberalization provided hedging against their political vulnerability.60 He concludes from Indonesia’s example that the need to establish credibility with external actors rather than legitimacy with domestic elites and the mass public might be particularly intense in an authoritarian setting, and that democracy often can be at odds with market reform since the public was against the ideas behind Suharto’s reform when he first implemented them.61 By 1970 popular sentiment was turning against Suharto’s New Order because of increasing authoritarianism, corruption, and government excesses. The economic crisis of 1997–98 devastated the Indonesian economy, which was at that point one of the fastest growing in the world under Suharto. During the period of Suharto’s rule, per capita income tripled and the number of people living in poverty had sharply fallen.62 Indonesian banks and the policymakers in power, however, were not prepared to deal with a regional financial crisis of that magnitude, and so the banking and corporate sectors were destroyed and a large fiscal burden returned.63 The social costs were high as well: earnings per worker declined by 27 percent from the pre-crisis level by the end of 1999, and unemployment fell heaviest on the youth, which further aggravated social problems and contributed to the breakdown of law and order.64 After Suharto fell, Indonesia experienced a period of reform that is still moving forward today under President Yudhoyono. The economy resumed a positive growth rate, but initially the public and private debt and the inability of the banking sector to restructure hindered progress. B.J. Habibie (1998–99)

58 Chwieroth 2010, 516; Cole and Slade 1996, 16–18. 59 Chwieroth 2010, 516; Winters 1996, 64–65. 60 Chwieroth 2010, 519. 61 Chwieroth 2010, 524. 62 Angel Rabasa and Peter Chalk, 15; International Monetary Fund, IMF Concludes Article IV Consultation with Indonesia, Public Information Notice No. 99/33, April 13, 1999. 63 Rabasa and Chalk 1999, 15. 64 Rabasa and Chalk 1999, 16; Knowles, Pernia, Racelis 1999.

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succeeded Suharto, followed by Abdurrahman Wahid (1999–2001), and then Megawati Sukarnoputri (2001–2004), former President Sukarno’s daughter. In contrast to the reign of Suharto, there was political instability during this reform period, but also in contrast, key reforms were implemented that were designed to enhance good governance and expand democracy. The authoritarian bureaucratic-military vision of the state and society that dominated in the Suharto era was replaced by a greater emphasis on civil society and political parties as the prime focus of order and stability.65 One of the most important law reforms took place in 1999, when authority was transferred from the central government to provincial and district level government. This tumultuous history has provided different sources for the legitimacy of government over the years: the Dutch colonization was obviously illegitimate, and while President Sukarno sought to rule based on moral concepts, he did not provide sufficient economic development to the people. Suharto did provide this much-needed development until 1997 when the Asian financial crisis undermined his ability to do so. When economic growth declined at that point, Indonesians were no longer willing to accept his corrupt authoritarian regime, as they were no longer seeing a return on their investment in him, so to speak. An era of democratic reform followed the downfall of Suharto and the economic crisis, and has continued until today.66 Since the end of Suharto’s “New Order,” Indonesia has consolidated its democracy; civil society has expanded, open media have emerged, direct parliamentary elections have been deemed free and fair in the international community, and the most recent presidential elections of 2009 have only further consolidated the democratic process.67 The parliament is now more powerful and legitimate than at any time since the 1950s.68 One of the most important reforms since the Suharto regime has been the separation of the police and military forces, and the elimination of military seats in parliament.69 A policy has also been implemented to allow the government to take over military-owned and -controlled businesses. As of June 2008, the Indonesian National Defense Force (TNI) controlled around 1,520 businesses, 1,071 cooperatives, and 25 foundations in Indonesia. The 2004 law required that the TNI get out of all businesses by 2009.70

65 Angel Rabasa and Peter Chalk, Indonesia’s Transformation and the Stability of Southeast Asia (Santa Monica, CA: RAND, 2001), 9. 66 Congressional Research Service Report for Congress, “Indonesia: Domestic Politics, Strategic Dynamics, and American Interests” by Bruce Vaughn, Specialist in Asian Affairs, August 7, 2009. 67 Damien Kingsbury, “Indonesia: 2007,” Asian Survey, February 2008. 68 Rabasa and Chalk 2001, 9. 69 John McBeth, “The Betrayal of Indonesia,” Far Eastern Economic Review (June 26, 2003). 70 Adianto Simamora, “Policy to Put TNI Out of Business on the Way,” Jakarta Post, May 29, 2008.

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Today the economy in Indonesia is performing relatively well, mostly due to the Democratic Party and President SBY. The World Bank Country Partnership Strategy (2009–12): Investing in Indonesia’s Institutions stated that in 2007 nearly half of Indonesia’s population was living below or just above the poverty line, that job creation was growing at a slower rate than the rate of population growth, that parts of the country were still underdeveloped, and that Indonesia received low marks in certain health and infrastructure indicators.71 Corruption is still a problem, and there is unequal resource distribution between the regions. In addition to having a complex regulatory environment, global demand for Indonesian goods has fallen and so prices for commodities have dropped. According to the Congressional Research Services Report, foreign businesses have been reluctant to invest in Indonesia in the past because of concerns about the legal and judicial framework.72 In March of 2010, an article in the Jakarta Post remarked that while trade between the U.S. and Indonesia has grown by 43 percent since 2005, it is still extremely small in comparison to U.S. trade with Indonesia’s Southeast Asian neighbors, Singapore, Thailand, and Malaysia. U.S. commerce secretary Gary Locke suggested in a meeting with the Center for Strategic and International Studies that the problem with trade is mainly the development of the rule of law, particularly transparency in the decisions of purchasing and contracts by governments (whether they be federal, local, or national).73 Locke pointed out that when U.S. companies make investments in Indonesia, they want to know that the agreements and the rules they rely on are going to be long-term. Predictability is essential to investment, and thus the tie between the rule of law and the economy has been illustrated. Trade figures with Indonesia pale in comparison to the $360 billion two-way trade with China. From other perspectives in East Asia, however, Indonesia appears to be a shining example of democracy, suggesting that the connections are more complex than we used to imagine. In the Korean Times in August, Indonesia was cited as having a population of mostly moderate Muslims, “living together in harmony with other religions and beliefs.” In the Korean view, Indonesia “fully understands the complexities and challenges in realizing democracy,” and democracy has “flourished strongly in Indonesia following the fall of President Suharto’s regime.” Indonesia has indeed conducted four free and fair elections, in 1999, 2000, 2004, and 2009, and those elections were observed by many to be complex and trying, as the Korean Times points out.74

71 “Country Partnership Strategy (2009–12): Investing in Indonesia’s Institutions,” The World Bank, http://www.worldbank.org/mitrindonesia. 72 CRS Report, 17, 18. 73 “U.S. Envisions Growing RI Trade in Spite of Obstacles,” Jakarta Post, March 19, 2010. 74 “Country Has Million Friends, Zero Enemy,” Korean Times, August 16, 2010.

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Indonesia fits in well with the Asian exception to the liberal theory surrounding the tie between the rule of law and development, with its history of state-led economic growth and informal institutions. During the reign of Suharto, the economy moved from a very guided economy that was failing under Sukarno’s policies into a far more open, capitalist structure. As a result, the GDP rose and economic development was fostered. But under Suharto’s military regime, other aspects of the process of development that would improve the quality of human life in Indonesia were stagnant or reversed. Social equality and the standard of living, for example, were not improved until changes were made much later. Though a leading example (among many) of democracy today, however, Indonesia still struggles with poverty and corruption. Perhaps, as Dam says, we will know the rule of law when we see it, but in Indonesia and other parts of Asia, economic growth was at its highest rate when the rule of law was noticeably absent. Clearly there is more to growth than property rights and contract enforcement, but as evidenced by Indonesia’s example and the East Asian Financial Crisis, there is also more to economic stability than state-led policy, and more to the wealth of a state’s people than just economic growth. Perhaps we are not able to import theories and laws from other nations and expect them to be effective in a region with different history and culture, but by examining Asian and other nonwestern examples we can get closer to the truth about economic growth and development and hopefully find a way to promote laws and institutions that will pull the majority of the world out of poverty. Transplanting western culture and institutions has not been a successful development strategy; in fact it has been quite the opposite. But the failure of imposing western theory in the East Asian setting does not mean that countries like Indonesia won’t benefit from development reform. Poverty and corruption are universal evils that retard development in all countries, wherever they are, and are crippling problems in western nations as well as in Indonesia and other parts of East Asia. Addressing them from within the appropriate cultural setting and embracing successful traditions will be the key to a future economic development theory in Asia, and all over the world.

118 Spring 2012 Islamic Roots of Feminism in Egypt and Morocco

Shreen A. Khan & Knut Fournier

Women’s bodies continually serve as the contested territory for debating tradition and modernity, and for measuring the prospects for democracy in Islamic nations. In the Middle East women’s lives are governed by a wide range of Islamic ideology and practice, from gender equality and progressiveness in Tunisia to the far extreme of Wahhabi doctrine in Saudi Arabia, along with internal spectrums of interpretation as well. This paper will focus on the positioning of women in Morocco and Egypt, countries that have seen improvement in legal recognition of women’s rights in the past decade and are making prodigious efforts towards gender equality. The Middle East/ North Africa (hereafter MENA) region gives a rich base of comparison and variety of interpretation regarding women’s roles in Islamic contexts. Redefining women’s roles in the region began with the founding of Islam itself, reforming cultural practice to enhance women’s lives in the seventh century CE. To

Shreen A. Khan, an MA candidate in the Comparative and Regional Studies Middle East Program, is passionate about gender and civil society in the region. She completed a BA in Anthropology at American University 2008 and recently completed a summer Arabic immersion at Middlebury College 2011. She is a McNair Scholar and has been published in the NCUR Journal 2006; her research explored American perceptions of the iconic Muslim headscarf. She has worked at multiple non-profit organizations and has professional experience in International Education and Human Resources. She is currently interning at Washington DC based think tank The Middle East Institute in the Programs & Communications Department. After graduating with an MA in May 2012, she plans to continue Arabic study and focus on women's advocacy in the Middle East North Africa region.

Knut Fournier is an LLM candidate at Aberystwyth University, Wales, and an LLM candidate at King’s College, London. He was a legal assistant at the Federal Judicial Center, the research and training agency of the US federal courts and is currently a research fellow at the Collectif pour l’Unité du Droit, a Paris-based research center on comparative law. He is Research Associate at National Law University, New Delhi, where he taught International Law over the summer 2011. He holds a BA from Université Charles de Gaule, France, an LLB from Lille 2 School of Law, France, a MA in Public Law from Université Nanterre in Paris and a MA in Political Science from Université Nanterre, during which he was an exchange student at American University, School of Public Affairs. He currently focuses on Transnational Regulatory Networks in Asia, and on the problems of translation in International Law.

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understand the positioning of women in the MENA region in the wake of the Arab Spring, it is essential to first contextualize Islamic tenets and history, and the cultural and political histories in Egypt and Morocco. These two cases provide a rich context for the discourse on power, access, and agency for women and Islam. In the MENA region, marriage and child custody are regulated in the Personal Status Codes and Family Laws (mudawana), codifying social expectations of women into law. The source for these laws is Sharia or Islamic law, from the three revered texts of the Qur’an, the Hadith (writings that describe what the prophet did), and the Sunnah (the prophet’s actions that serve as examples of ideal behavior)—a wide expanse of interpretive documentation. Since 1999, reforms to the Family Law or Personal Status Codes in Morocco and Egypt show legal recognition of women’s advancement in the struggle for equality in the region. This paper seeks to reconcile the intellectual gulf between Islam and progressive, feminist ideals by exploring Islamic roots of feminism and providing examples from Egypt and Morocco’s Personal Status Codes. Widespread practice of Islam and, to a lesser extent, the collective memory of colonialism, plays a significant role in Morocco and Egypt today. The colonial experience is often a painful one for the colonized to endure. The clumsy colonial experiments of European powers in the Middle East have influenced many of the issues that states cope with today and have created much of the sensitivity surrounding contemporary western efforts at society building and civil change.1 In both Egypt and Morocco, many locals are hostile to foreign imports of feminism in their societies and view it as a direct challenge to their interpretation of Islamic faith. However, Islam creates its own basis for gender equality, precisely thanks to a Divine recognition of each person’s individuality and importance.2 In the discussion that follows, we will look at historical pushes for feminism in Morocco and Egypt in the twentieth century and up to today, examining Personal Status Codes and discussing the future of feminism in the wake of the Arab Spring. From this analysis we will see that Islam and feminism are indeed compatible, and follow twin histories of parallel development. The end of the nineteenth century marked the beginning of the modern Islamic feminist movement, starting with the Egyptian poet Aisha Ismat

1 See for example the refusal of U.S. aid by the new Egyptian authorities after the overthrow of Mubarak, including aid to the civil society. This reveals the distrust and resentment of western- based concepts of development and the old political ties between Washington and Mubarak: Yaroslav Trofimov, “Egypt Opposes U.S.’s Democracy Funding,” Wall Street Journal, June 14, 2011, http://online.wsj.com/article/SB10001424052702304665904576383123301579668.html (accessed November 19, 2011). 2 Catherine K. Kikoski, “Feminism in the Middle East,” Feminism, Community and Communication 11, no. 14 (2000): 134.

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Taimuyira (1840–1902) and the Lebanese author Zainab Fawwaz (1860–1914). Taimuyira and Fawwaz highlight conservative readings of Islam as inaccurate and illegitimate, rejecting the veil and the principle of women needing to cover.3 There has been a consistent call rejecting the need to cover—an interesting juxtaposition with the emergence of a recent form of Islamic feminism in which women embrace conservative dress as a form of empowerment. In the 1970s in Cairo, college women began to dress in traditional Islamic dress, without any political, external, or masculine pressure. By doing this, women developed a dress code that rejects western materialism and western reification of the feminine image.4 I believe that this counterexample and evolution of the Islamic feminist movement illustrates the fact that the debate over Islamic feminism cannot be reduced to issues of dress code, but should instead focus on the construction of a social identity of equality, whose components are evolutionary and protean in nature.

Theoretical Foundations

Constructivism forms a theoretical basis for studying marginalized identities and is particularly relevant when combined with feminist theory and Islamic studies. Constructivism is “[t]he view that some aspect of the world is an artifact of social practices, including language and institutionalized ways of categorizing the world.”5 The two main characteristics of the constructivist approach to social studies, analytical and multidisciplinary, make constructivism a suitable set of methods for the present study. In order to deconstruct the roots of feminism in the Middle East and North Africa, this multifaceted approach recognizes the complex, multilayered, and composite social phenomenon. It cannot be reduced to the textual sources of religious activities, the political support for advocacy groups, or the economic conditions of social progress individually; rather, they are integrated factors. Regarding the definition of feminism, I will use scholar and theorist Sa’diyya Shaikh’s definition, “a critical awareness of the structural marginalization of women in society” seeking to engage in “transforming gender power relations in order to strive for a society that facilitates human wholeness for all based on principles of gender justice, human equality and freedom from structures of oppression.”6 Kecia Ali writes that there are two types of modern discourses on Islamic (Sharia) law, the neoconservative and the feminist reformist

3 Ibid., 136. 4 Fadwa El Guindi, “Gender Resistance, Feminism Veiling, Islamic Feminism,” Ahfad Journal 22, no. 1 (2005) : 60. 5 “Social constructivism,” in The Oxford Dictionary of Philosophy, Simon Blackburn, ed. (Oxford: Oxford University Press, 2008). 6 Sa’diyya Shaikh, “Transforming Feminisms: Islam, Women, and Gender Justice” in Progressive Muslims, ed. Omid Safi (Oxford: OneWorld, 2003).

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approaches.7 As Kecia Ali writes, neoconservatives are the leading group calling for scaling back and (re)defining the proper legal and social rights of Muslim women. Their views are published for worldwide distribution and financed by the Saudi government and organizations.8 Feminist reformists use the Qur’an to challenge conservative juridical interpretations, both relying on its legal authority and providing new interpretations. Ali draws on interpretation from the early Islamic jurists in the ninth century. These early teachings continue today with four main schools of Sunni interpretation, Maliki, Hanafi, Shafi’i, and Hanbali.9 Each of these schools differs in its interpretation of women’s roles in relation to their husbands and fathers, and their expected roles within the home and marriage. For example, Maliki, Hanafi, and Shafi’i jurists deny any wifely duty to perform housework, while Hanbali texts don’t specifically address it. For both modern progressive and neoconservative readings of Islam there are centuries of history and an expansive literary canon to draw upon, giving both movements the ability to construct arguments that support their ideology. In order to compare these ideologies and movements I will briefly compare the foundations of progressive Islamic belief with foundations of the ultraconservative Wahhabi reading of Islam. In discussions of identity, personal constructions of the self and external constructions of womanhood are distinctly modern,10 and moreover, distinctly postcolonial in Egyptian and Moroccan contexts. As paradigms constantly shift, so do understandings of nationhood and women’s roles within them. Discussing identity theory, Craig Calhoun states that modernity has created complexities and struggles for collective understandings of identity. For postcolonial nations, understandings of identity are complicated by the legacies left by colonial powers. Part of these identity complications are with the term feminism itself. Feminism is a polarized, contentious word in the Middle East, often carrying the historical legacy of forced modernization by rulers such as Egypt’s Gamal Abdel Nasser. Nationalism in early postcolonial Egypt was framed as westernized and secular, isolating much of its population in favor of a new ideal that only fit the upper class. In Morocco, a previous French protectorate, change had to be rooted in Islam to be seen as legitimate and acceptable. Therefore, modernity has made identity problematic: without the presence of foreign powers in Egypt and Morocco, women’s social improvement may have developed organically and would not have been constructed as a foreign import. In the words of Shaikh, “Gender discourses in

7 Kecia Ali, “Progressive Muslims and Islamic Jurisprudence,” in Progressive Muslims, ed. Omid Safi (Oxford: Oneworld, 2003), 165. 8 Ibid., 172. 9 Ibid., 168. 10 Craig Calhoun, “Social Theory and the Politics of Identity,” in Social Theory and Politics of Identity (Cambridge: Blackwell, 1994), 9–36.

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contemporary Islam are prefigured by the history of a political conflict between Islam and Christianity, the European colonial encounters in different parts of the Muslim world, and the nationalist responses by colonized peoples.”11

Women’s Advancement with the Inception of Islam

In seventh-century Arabia, Islam was revolutionary for women’s rights, elevating the status of all women and codifying it into law and Islamic practice. There are many examples in the Qur’an of female leadership and independence. Women were cited as sources of religious doctrine and contributed to the Hadith, a source of Sharia law that recounts the prophet’s decisions and life. The prophet’s first wife Khadija exemplified today’s understandings of an independent woman—running a successful business in Mecca, and notably, fifteen years the prophet’s senior. The prophet Muhammad revered Khadija, and she was his closest confidant and source of support.12 Moroccan-born sociologist Fatima Mernissi writes that in histories and religious texts recounting the prophet Muhammad’s life, “women are acknowledged and their contribution generously praised as both disciples of the prophet during his lifetime and as authors of Hadith.”13 The prophet Muhammad’s third wife Aisha exercised political power, advised civil disobedience, and even led troops into battle in armed opposition in 656 CE.14 The lives and examples of Khadija and Aisha provide a rich source of women’s independence, agency, and contributions to society, at Islam’s inception. The history of women’s involvement in Islam and society through Khadija and Aisha is one that progressive Islam celebrates, though it is rejected and ignored by neoconservatism.15

Nineteenth- and Twentieth-Century Feminism in the Islamic World

Feminism in Egypt draws its roots in several historical events, including colonization by France16 and the educational reformism of Mohamed Ali.17 The rule of the General Ottoman Viceroy from 1805 to 1848 saw an increase in girls’ education, until then limited to the upper class. Schools for girls and professional training centers were created. Political leadership played an equally important role in raising the level of women’s participation in society.

11 Sa’diyya Shaikh, “Transforming Feminisms: Islam, Women, and Gender Justice,” in Progressive Muslims, ed. Omid Safi (Oxford: Oneworld, 2003), 148. 12 Fatima Mernissi, Women’s Rebellion and Islamic Memory (London: Zed Books, 1996), 99. 13 Ibid., 192. 14 Ibid., 92. 15 Ibid., 99. 16 Kumari Jayawardena, Feminism and Nationalism in the Third World (London: Zed Books, 1986), 44– 45. 17 Ibid., 45–47.

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However, the fight for women’s rights is deeply rooted in the civil society, where both men and women stand up for modernization and equality. There is a strong tradition of feminists in Islam who have advanced women’s rights. Before the founding of the modern Egyptian state, there were two prominent Egyptian men who espoused progressive ideals, Muhammed Abduh (1849–1905) and Qasim Amin (1863–1908). Both men were modernists and prominent voices on women’s rights. Abduh, an Islamic scholar and journalist, actively denounced repressive practices against women. Abduh was educated in Paris, a reflection of economic privilege, and reconciliation of Islamic and feminist ideals. He focused his writing on marriage practices and sought to debunk the misinterpretations within Islam. As a Muslim reformist, he demonstrated that there was no ground for women’s subordination in Islam, and that this subjugation of women in the Arab world came from the texts’ misinterpretation.18 Abduh became Egypt’s grand mufti in 1899, the state’s most senior interpreter of Islamic law, and through this position encouraged new interpretations of Islamic text. Abduh’s religious credentials were essential to his legitimacy as an agent of social change, although his opponents still accused him of importing foreign ideologies.19 Abduh’s contemporary Qasim Amin was also seen as a pioneer of Islamic feminism. Amin made women’s rights in Islam a central feature of his scholarship in his 1899 publication, “Liberation of Women.” Amin’s scholarship is seen as influential because it fuses religious arguments to reconcile Islam with contemporary views on women. He called for women’s emancipation, condemned polygamy, and explained in depth the social and economic costs of women’s seclusion.20 Overall, Amin’s work, and particularly his book “Women’s Emancipation” (1899), focused on the status of women in the family, calling for a reform of marriage and divorce laws that granted statutory superiority to the husband. As seen here, Amin’s progressive views on women were based on the idea of separation of the political and the religious sphere rather than a simple opposition to religious interpretation.21 Both of these men promoted the feminist cause by bringing women’s issues from the margins to the forefront of sociocultural consciousness. Notably, these authors were not alone in voicing their concerns. Progressive calls to action in Egypt occurred on multiple levels and movements simultaneous to the work of Abduh and Amin, exemplified by the intellectual Huda Sha’raoui. At the turn of the twentieth century, the struggle against female domination by men in Arab society gathered a generation of intellectuals, starting with Huda Sha’raoui. She advocated for increasing the minimum

18 Ibid., 49. 19 Isobel Coleman, Paradise Beneath Her feet: How Women Are Transforming the Middle East (New York: Random House, 2010), 46. 20 Ibid., 47. 21 Jayawardena 1986, 50.

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marriage age, demonstrated against British colonization, and helped to establish the Egyptian Feminist Union in 1923. Also at this time, the question of divorce begins to appear in Arab feminist writing. In the Arab feminist press, which thrived before World War I, some writers and journalists voiced concerns about the imbalance of divorce laws that left women in disadvantaged situations and constant fear of divorce. Journalists stated that this changed the dynamics for both women and men, as “[f]ear of divorce may distort a woman’s character and mind, drive her to conspire against her husband, and treat him as she would treat a wicked enemy rather than a love companion.” The threat of divorce distorted women’s power dynamics towards men and compromised the equality and agency of women in their marriages. Leila Abouzeid, a writer and freelance Moroccan journalist, captures this conflict in her work, particularly the short story titled “Divorce,” in which she depicts the easy process for a man seeking to divorce his wife. The foundation of neoconservative thought in Islam today is rooted in Wahhabism, a puritanical movement from Saudi Arabia. Exporting Wahhabism became official state policy of the kingdom of Saudi Arabia in the 1960s in the Pan-Islam movement. Undertaken by King Faisal, the Saudi head of state, the Sunni fundamentalist interpretation was exported along with aid to conflict zones such as Afghanistan. The oil wealth of this rentier state, and the weak states accepting aid, created an easy transfer of ideology and funding.22 Wahhabism demands the covering of women’s bodies and strict codes for moral policing, as demonstrated by its proponents, al Qaeda and the Taliban. The constructed ideology of Wahhabism, and its recent appearance in Saudi Arabia, is a distinct political history separate from mainstream Islamic history, and is leading the neoconservative movement to restrict women’s lives and to claim it is legitimate Islamic practice.

Islamic Interpretations Today

The scholarship regarding women in the Middle East produced outside of the region often fails to recognize Muslim women’s dynamic roles and reduces women to static and passive roles. Theorist Sa’diyya Shaikh writes that often, contemporary Euro-American feminist approaches reinforce reductionist views of Islam as peculiarly sexist.23 Western conceptions of Muslim women are overwhelmingly constructed negatively as submissive, veiled, and helpless— denying the agency that all individuals have. Power dynamics are fluid and changing, as are women’s relationships with education, employment, and marriage. To avoid the trap of reductionism, scholars of progressive Islam

22 Thomas Hegghammer, Jihad in Saudi Arabia: Violence and Pan-Islamism Since 1979 (Cambridge: Cambridge University Press, 2010), 17–24. 23 Shaikh 2003, 149.

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contextualize this discussion as circulations of power among cultural and religious forces in addition to political forces.24 This interdisciplinary approach aims for a nuanced, comprehensive scope by engaging with tradition, Islamic text, and contemporary and historical realities, with the aim of pursuing social and gender justice, and pluralism. This addresses tension within the discourse of identity politics, since women in Egypt and Morocco define themselves in globalized, post-9/11 contexts in opposition to external discourses surrounding their lives. Western understandings of Muslim women result in tangible decisions regarding aid, governmentality, and foreign policy. In the Egyptian and Moroccan contexts, social constructivism seeks to dismantle a constructed narrative that fuses ideas about gender roles with Islamic holy texts—a generalization or essentialism that locks definitions and conception of women’s role into society by preventing debate over the characteristics of this role. Sociologist Fatima Mernissi questions the foundations of these ideas. For example, an oft-quoted Hadith in Morocco states that “those who entrust their affairs to a woman will never know prosperity.”25 Mernissi researched Islamic jurisprudence and consulted religious scholars to discover that the source of the Hadith was of questionable legitimacy, despite the Hadith’s inclusion in a collection of a highly regarded ninth-century scholar. The textual source of this anti-woman edict was recorded 25 years after the death of the Prophet, by a man who was seen as dishonest.26 As with oral histories, the honesty of individuals contributing to Hadith was an important consideration for inclusion in the text. By dismantling the Islamic theological basis for a normative gendered idea, Mernissi is able to contend with the constructed reality to suggest a different reality. Mernissi continues the work of many Islamic scholars from the nineteenth century onwards who seek to highlight the distinction between culture and religion and ground practice more firmly in the precedence of Qur’an. This approach to feminism, achieved through a decodification of religious interpretation, matters in terms of political reality. Approximately all 60 countries in the Muslim world have Personal Status Codes or Family Laws that govern behavior for marriage, divorce, and child custody, and the application of a conservative reading of religious principles to the everyday life of women is done through the writing of these laws. Without a full understanding of the social conditions that led to the adoption of these laws and regulations, understanding the relation between determining factors such as religious authority and the kinds of rights advocated by feminists is apt to be misconceived and incomplete. The result is a prevalent male dominance over women in the Muslim world, sanctioned by law and the authority of religion. It

24 Omid Safi, Progressive Muslims on Justice, Gender, and Pluralism (Oxford: Oneworld, 2003), 2. 25 Coleman 2010, 38. 26 Mernissi 1996, 39.

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is crucial to understand the fundamental nature of marriage in Islamic contexts, since it is virtually compulsory and is the only acceptable avenue for sexual experiences. Marriage and raising children are the way that Islamic societies are organized and understood; therefore, laws governing marriage impact women’s lives to a higher degree than they may in non-Islamic contexts, where there is more opportunity to remain unmarried.27 In both Morocco and Egypt the recent changes in Family Law offer increased political and social safeguards for women. Previously, gender inequality was explicit in the Moroccan legal code, and women began organizing for reform in the 1990s. In 1993, the Union for Feminine Action emerged as it gathered one million signatures demonstrating for social change and presented its petition to King Hassan II. A series of reforms were presented to the king, and after their validity and accordance with Sharia law were confirmed, all reforms were accepted in 1999.28 Notably, these reforms were presented to the public not as a means to improve women individually, but as a return to a true Islam that benefits the family.29 The Moroccan example clearly exemplifies the need for a constructivist assessment of the relations between women’s rights and religion: the social conditions of the progression of women’s rights in Moroccan society point to a relationship between Islam and feminism that not only contradicts the simplistic view of opposition, but reveals a dynamic of progress within the religious framework. The 2004 reform of the Moroccan Personal Status code was a watershed moment for women’s rights. The family law reforms declared men and women equal partners before the law, declaring a universal minimum marriage age of 18 years and outlawing polygamy. Problematic aspects of the previous code were revoked, such as wives’ legal obedience to husbands. Additionally, the right of a man to verbally divorce his wife was outlawed. An added stipulation was passed, ensuring that all money owed to the wife and children had to be paid in full by the husband prior to the divorce.30 In Egypt, reform movements called for overturning the degraded status of women inherent in the legal code. In 1979, a series of reforms that restrained women’s rights were enacted with the 1979 Egyptian “Law of Obedience,” declaring that women were subject to their husbands’ authority, and the “Law of Return,” which allowed for a forced return of women to their husbands, even in cases of abuse.31 These laws relegated women to second-class status, and under the jurisdiction and de facto ownership of their husbands, simply on

27 Doris H. Gray, Muslim Women on the Move: Moroccan Women and French Women of Moroccan Origin Speak Out (Lanham, MD: Lexington Books, 2008), 74. 28 Ibid., 81. 29 Ibid., 82. 30 Ibid., 82. 31 Mary E. Olson, ed., Feminism, Community and Communication (Binghamton, NY: Haworth Press, 2000), 138.

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the basis of gender. Women’s rights activists also demanded the abolition of polygamy, which continues to be legal. In the minor reforms of polygamy law in 1979, women simply gained the right of notification by the husband of his polygamous intentions, and were only granted grounds for divorce in court if they were unaware of his simultaneous marriages.32 The same year, minor positive reform in personal status law occurred when President Anwar Sadat, with the support of the Cairo Family Planning Association, restrained the right of men to divorce unilaterally. Previously, the legal code enforced a verbal declaration of divorce, a right solely for men, one that could occur in the woman’s absence and without her notification. In 1979 a clause was included to notify women of the divorce. On the other hand, the law expanded the basis for calculation of alimony and expanded situations granting women automatic custody of their children.33 The task of progressive reform is to tease apart religious interpretation and cultural practice in the legal code. The broad spectrum of outcomes and interpretations in Egyptian and Moroccan law shows the value in reconstructing notions of gender roles in marriage partnerships. A recent reform of the pivotal Family Law occurred in 2000 and 2004 in Egypt. In the 2000 reforms, Egyptian women gained improved legal support for travel and mobility and expanded grounds of divorce. Women were given the right to travel internationally without the written approval of their husbands, and recognized women as equal partners who have access to mobility on their own accord—thus giving them the right to flee potentially violent or harmful situations. Law 1, the divorce reform in 2000, for the first time in the Arab region, gave women the right to file for a no-fault divorce, and the right to file for divorces from unregistered marriages. The no-fault divorce allows a person to divorce without the partner’s consent, although forfeiting any rights to financial support. Unregistered marriages were previously not recognized by the law and deprived women of spousal maintenance, alimony, and inheritance. And finally, the 2004 reforms introduced a system of family courts, and a Family Insurance Fund was established to give women a means of collecting court-ordered alimony and child support. Therefore, in addition to social reform successfully passing through the legislative processes, it demonstrated ways of reconstructing identities of women within Islam. The new legislation is a victory for Egyptian women. Women now have avenues of escape and resistance from unsafe or unhealthy marriages, and these are instituted in the legal system. However, a 2008 study conducted by the American University of Cairo discovered that these landmark reforms have been poorly publicized: women and their families were unaware

32 Hussein Aziza, “Recent Amendments to Egypt’s Personal Law,” in Women and the Family in the Middle East, ed. Elizabeth Warnock Fernea (Austin: University of Texas Press, 1985), 231–232. 33 Ibid., 229–230.

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of their new rights. As the rates of divorce increase in Egypt, there are numerous civil society organizations, such as the Egyptian Center for Women’s Rights, that are addressing the issue of rights-and-equality education as the need becomes more evident.34

Conclusions

This study would not be complete without considering the contemporary sociocultural context of the Middle East and North Africa. In that respect, the situation of women in Egypt demonstrates the fragility of the rights gained by previous generations. Women like Esraa Abdel Fattah, a blogger and political activist known as “Facebook Girl,” participated in the Egyptian revolution in a leadership position. Women participated as equals with men, creating a social contract for a different, more egalitarian future for Egypt. Notably, commentators called the Egyptian revolution a women’s revolution. However, with the growing influence of conservative Islamic interpretation throughout the Arab world comes a worry that these advances will be overturned. There is a risk of reform movements being “hijacked by the sort of Islamists that reject a pluralist version of democracy, oppress women and fly the flag of Jihad against Christians and Jews.”35 The fears over an elimination of women from the political process are particularly relevant in the Egyptian case, considering that no women are part of the current committee formed to draft a new constitution.36 In Morocco, the feminist movement has matured and prioritized a political path to attain women’s rights. Constructivism helps to explain the religious understandings of social change affecting women. The reforms in both countries are a product of civil society. Without prospects of free and fair elections, activism and lobbyism will continue to provide the movement with the necessary (male) political support to achieve its goals. In the wake of the Arab Spring, democracy can only be complete with an inclusion of all parties to the political process, including the Islamists, and likewise is incomplete without full and inclusive participation of women. Earlier attempts to reconcile Sharia law and feminist progressiveness have looked at the details of the political process that led to the adoption in Egypt of the legislative reforms mentioned in this paper.37 Clearly, inclusiveness in a

34 Aya Batrawy, “New Family Laws: A Success Story?” IPS: Inter Press Service News Agency, October 15, 2008, http://ipsnews.net/anews.asp?idnews=44281 (accessed December 5, 2010). 35 “Islam and the Arab Revolutions,” The Economist, April 2, 2011, 11. 36 Isobel Coleman, “Is Revolution Bad for Women’s Rights?” Washington Post, February 20, 2011, B03. 37 For a detailed analysis of legal changes in Egypt, including parliamentary debates, votes, and actual legal effects of the recent reform of divorce law in Egypt, see Amira Mashhour, “Islamic Law and Gender Equality—Could There Be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt,” Human Rights Quarterly 27, no. 2 (May 2005): 580–584.

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broad political debate clears the way for progressive views and creates the conditions for success in the search for common ground between Islam and women’s rights. Now that Egypt seems to be heading to a democratic form of government, this inclusiveness must be preserved, despite prima facie opposition from religious conservative parties against the right of women to continue participating in the political process. Through women’s involvement, the socially constructed theory of democracy will be transformed into a tangible reality that can set the conditions for a sustainable model of human rights. In the Mubarak regime, political developments in Egypt highlighted the limitations of women’s rights, as they were dictated by nonelected leaders who sought to contain religious influence. President Hosni Mubarak, before being overthrown by a popular movement, saw in the Muslim Brotherhood the only credible and organized opposition to his rule. Reforms favorable to women were introduced to further reduce the Islamic grip on Egyptian politics. Post- Mubarak, there is today a serious risk of backlash against women’s rights in the region. Feminism in the Middle East and North Africa is at the crossroads of a new era. It may, perhaps, choose to strengthen itself on the basis of religious mores, by way of the textual reinterpretation and Islamic progressivism explained here. But if the political balance shifts too much in favor of conservative religious forces, or if the feminist movement loses ground with the intellectual base at the forefront of the textual debate, it will continually be threatened by fundamentalists and conservative religious interpretations, especially at a time when these movements are gaining prominence. In Morocco, complex challenges lie ahead, including the need to transform legislative change into legal reality. The Moroccan feminist movement faces the risk of having produced, through the reform of the Family Law, a purely legal artifact.38 New rights need to be explained, understood, and made enforceable, which requires new skills as the target of activism shifts from politicians to judges for a full enforcement of the law. In conclusion, there has been a strong line of feminist ideology and support among scholars and interpreters from the seventh century onwards. Islam today must be understood along an ideological spectrum that acknowledges the presence of Wahhabism on one side and progressive readings on the other. In Egypt and Morocco, there has been a vibrant presence of reinterpretation and distance from conservative readings since the yoke of colonialism was removed. Human rights lawyers, academics, religious scholars, and activists have been working to refocus Islam on the plurality and equality that have always existed within it. The bonds between cultural tradition and

38 Fatima Sadiqi and Moha Ennaji, “The Feminization of Public Space: Women’s Activism, the Family Law and Social Change in Morocco,” Journal of Middle East Women’s Studies 2, no. 2 (2006): 110.

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Islamic practice are slowly being teased apart, an essential part of the discourse of women’s lives in the Middle East and North Africa. Although the Wahhabi movement is pushing against these reforms, it should be understood as only one voice among many, and not a dominant one. Feminist scholars are using the text of the Qur’an to legitimize their public presence, and they are constructing women’s empowerment as a benefit to all society and a return to true Islam. Due to postcolonial contexts, imported western feminisms have failed in the Middle East. Indeed, feminism has to be reshaped and reconstituted to fit the needs of women, by women, in each society. There will always be social forces pushing for change, and for resistance to change. The work of identity politics and political reform continues for women; challenges will be reconstituted as solutions are reconfigured. Esraa Abdel Fattah and the trailblazing women in the Egyptian Revolution worked to overthrow President Hosni Mubarak and create a new political landscape.39 Fattah and millions of others continue carrying the legacy of independent and politically powerful women from Islam’s inception to today. The world is watching as these women and men create a new social contract in Egypt and elsewhere in this dynamic region, one that honors the progressive beginnings of Islam and egalitarian visions for future.

39 “Nobel Peace Prize may recognize Arab spring,” Reuters, September 27, 2011. Available at http://af.reuters.com/article/tunisiaNews/idAFL5E7KN36P20110927 (accessed November 2011).

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