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Articles Diaspora Bonds ARTICLES DIASPORA BONDS ANuimM CHANDER* Diasporas-groupswho maintain ties to a homeland while living abroad-present a challenge to standardparadigms of internationallaw. The dominzant statistmodel of internationallav, which limits tie read of a state's laws to its own geographic boundaries, allows no legal connection between a diasporaand its homeland. The cosmopolitan model of internationallaw, wich minimizes the importance of na- tionality, also discourages such legal ties. ProfessorAnupam Chanderproposes a third paradigm-the diasporan model-which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporanmodel might settle concrete legal problems, Chanderdiscusses Resur- gent India Bonds, a medzanisin that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan sohtion to the choice-of-law question raised by foreign-issued securities: enforcing forum-sekction clauses which keep private litigants out of U.S. courts, while allowing regulatorsto enforce U.S. law againstforeign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes. * Acting Professor of Law, University of California at Davis, School of Law. [email protected]. A.B., 1989, Harvard College; J.D., 1992, Yale Law School. I thank Diane Amann, Sandy Askland, Minal Shah Fenton, Tom Heller, Kevin Johnson, Owen Jones, Dennis Karjala, Anne Marie Slaughter, and Michael Trebilcock for insightful com- ments on a draft, and Kwaku Andoh, Nathalie Augustin, Jack Ayer, Harish Chander, David Chung, Sima Gottesfeld, Bob Hillman, Bill Ong Hing, Ed Imwinkelried, Tom Joo, Fritz Juenger, Shane Kadidal, Jerry Kang, Gary Marchant, Spencer Overton, Jon Rose, Bruce Rosenstock, and Tim W"ilkins for enlightening conversations on the subject. An early version of the case study that appears herein was presented at faculty colloquia at the law schools of American University, Arizona State University, Duke University, Hofstra University, Rutgers University at Camden, University of California at Davis, University of Michigan, University of San Diego, University of Texas, and Wayne State University. I presented the theoretical framework of diaspora at the Joint Conference of the Asian Pa- cific American Lav Teachers and the Western Regional Law Teachers of Color in Haai'i, the Law, Culture, and Humanities conference at the University of Texas at Austin, and the Asian Pacific American Cultural Politics Research Group at the University of California at Davis. I learned much from all of these discussions. Thanks also to John Browder, Megan Gallagher, Guru Inder Khalsa, and Kelly Spencer for helpful research assistance. I am especially indebted to my mentors Akhil Amar, Lee Buchheit, NV. Michael Reisman, and Jed Rubenfeld for encouraging me to undertake this study. My greatest debt is to Madhavi Sunder for her insight and love. Of course, none of these generous individuals should be implicated with any wrongheadedness in this work. I am grateful to the University of Cali- fornia at Davis and Arizona State University for grants supporting my research. This Pa- per was selected for presentation at the Stanford Yale Junior Faculty Forum, held at Stanford Law School in June 2001. It also received an Honorable Mention in the 2001 Scholarly Paper competition of the American Association of Law Schools. 1005 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:1005 INTRODUCTION A Chinese American wakes up and logs on to China.com where she catches up on the previous day's events in China and in ethnic Chinese communities around the world.' A sari-clad woman on Long Island purchases Resurgent India Bonds over the phone, putting her savings into the service of her homeland.2 A Jewish American boards a subsidized flight, joining other Jewish Americans flying to Israel to vote in a crucial election. 3 Taking office as President of Ireland, Mary Robinson declares her intention to represent not just the 3.5 million people residing in the Republic, but also the other seventy million worldwide who claim Irish descent. 4 An Albanian American in Yon- kers prepares to go fight in the Kosovo Liberation Army.5 While diasporas are as old as history, diasporas at the turn of the millennium maintain bonds to their homelands and among their mem- bers that are stronger than ever. Today, the diaspora-people dis- persed from their homelands, yet maintaining ties to those homelands and to each other-votes, invests capital, participates in political life, and even takes up arms, all for a distant homeland. These expressions are markers of citizenship and nation, not only private association and culture. Because they maintain important relationships that defy na- tional borders, diasporas today do not fit easily into the simple Carte- sian geography of the nation-state system, which conceives of political communities expressed only within a nation-state, not across nation- states.6 Empowered by communication and transportation revolu- 1 This image refers to the Internet portal of China.com, which, as a U.S.-listed, pub- licly traded corporation owned in part by AOL and the Chinese state news agency, Xinhua, is itself very much diasporan. http://corp.china.com/shareholders.htm (last visited Apr. 12, 2001). 2 An advertisement for Resurgent India Bonds depicts an image of a woman in a sari advising: "You don't need to be a financial wizard. You need to be Indian." Somini Sengupta, India Taps Into Its Diaspora: Investing for Love of Country, and 7.75% Inter- est, N.Y. Times, Aug. 19, 1998, at Bi ("[T]he Government is hoping to cash in on the patriotic fervor among its departed native sons and daughters."). 3 Jackie Rothenberg, Vote May Turn on a Wing & a Low Fare, N.Y. Post, May 16, 1999, at 7 (noting that "Israelis leaving from New York, Los Angeles and Toronto, along with others departing from Europe, could make a difference" in Israeli national election). 4 Rob Brown, Putting the Sporran Into Diaspora, Sunday Herald (Glasgow), Jan. 23, 2000, at 8, LEXIS, News Library. 5 Barbara Stewart, Signing Up in Yonkers to Fight for Kosovo, N.Y. Times, Apr. 12, 1999, at Al. 6 As Thomas Franck describes: Since the Reformation, the Peace of Westphalia and the writings of Hugo Grotius, the state has been the alpha and omega of personal identity. One is Canadian or American or Rwandan or Indonesian. All persons and corporate entities have a nationality, which describes their singular and total identity as recognized by the international legal and political system. Imaged with the Permission of N.Y.U. Law Review October 2001] DIASPORA BONDS 1007 tions that help bind far-flung people, diasporas now fundamentally challenge the international legal system. The traditional response to this challenge would be to insist upon the clean demarcations of the nation-state. For "statists," the nation- state defines the borders of the political community to which one can legitimately belong.7 Statists would presume diaspora relations to be the stuff of private contacts, of sentiment that should diminish over time. To leave one's homeland is, under the theory embedded in the traditional international system, to reject any political connection with that homeland and to tie one's fortunes and loyalties entirely to one's adopted land. The statists, however, face their own critics in the form of interna- tionalists who deny the moral salience of the state. These modem "cosmopolitans," led by renowned scholars such as Brian Barry, Charles Beitz, Martha Nussbaum, Thomas Pogge, and Jeremy Waldron, believe that an individual's primary commitment should be to humankind rather than to her compatriots or national flag.8 Globalization, the cosmopolitans believe, should lead to a global citi- zenry. Like statists, however, cosmopolitans too would be hostile to the diaspora, rejecting the diaspora's patriotism either to its original or adopted patria. For the cosmopolitans, the diaspora is doubly mis- guided because of its potential commitment to not just one, but two states.9 This Article proposes a third paradigm for conceiving of the citi- zen and her relationship to a country. Rejecting both the statist and cosmopolitan worldviews as faulty accounts of who we are now, this Article offers a "diaspora model" of citizenship and the nation-state. A globalized world requires a new paradigm of the relationship of the citizen to the state. In place of the statist insistence on a singular state loyalty or the cosmopolitan call for global citizenship, the diaspora model would permit individuals to construct national and transna- tional communities of their own choosing. According to the diaspora model, one's loyalty can be to the country in which one lives, the country or countries from which one's ancestors came, the diaspora to Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l L. 359, 360 (1996); cf. James Clifford, Diasporas, 9 Cultural An- thropology 302, 307 (1994) ("Diasporas are caught up with and defined against... the norms of nation-states ....). 7 See infra notes 122-27 and accompanying text. 8 See infra notes 193-98 and accompanying text. 9 For ease of exposition, this Article speaks of the potential commitments of a diasporan individual as being to her homeland and her hostland. However, a diasporan individual may have more than two potential states to which she feels a commitment, per- haps because she has lived, for example, in India, Kenya, and then the United States. Imaged with the Permission of N.Y.U.
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