To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan [...]]]> I would like to thank Sarah Waldeck and the rest of the Concurring Opinions authors for allowing me to stay on until February 15th.  A lot happened has happened in the past few days with significant implications for international human rights law, but before I turn to these events I want to finish up my thoughts on the recent decision by the European Court of Human Rights in Othman v. United Kingdom.

To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan would expose Othman to an unfair trial, in that it was likely that evidence derived from torture would be used against him.  The second holding effectively bars the United Kingdom from transferring Othman to Jordan. The United Kingdom has 3 months days to appeal the decision to the Grand Chamber.

As promised in my previous post, I want to offer some thoughts here on whether the ECHR persuasively addressed criticism of the post-transfer monitoring arrangement created by MOU and exchange of letters between Jordan and the United Kingdom. The judgment contains some significant weaknesses in this regard, as I detail here:

Human rights NGO’s have generally opposed the use of diplomatic assurances categorically, as a practice that undermines international law. If a state has a binding obligation not to torture, use of nonbinding, bilateral diplomatic assurances merely weakens the strength of that legal obligation. See the Human Rights Watch report, Mind the Gap: Diplomatic Assurances and the Erosion of the Global Ban on Torture. http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.

In somewhat modifying the categorical argument in light of previous ECHR case law, Othman argued to the ECHR that diplomatic assurances should never be relied on when the receiving country has a record of torture that is “widespread and systematic.” If used at all, they are only appropriate in situations where acts of torture are isolated and the receiving country has established an independent monitoring body. Para. 168.

The categorical argument against diplomatic assurances appears, at least at the ECHR, to have been lost, as the Court stated that it will only be in “rare cases,” par. 188, that no weight that all can be given to diplomatic assurances. The legal focus now shifts to the quality of the post-transfer monitoring arrangements. The objections raised by Othman (and by third-party human rights NGO intervener) to the body tasked with post-transfer monitoring – a small, new NGO in Jordan called the Adaleh Centre — are numerous and highly fact-specific. I’m going to by-pass most of the weeds here to concentrate on two particular weaknesses in the Court’s reasoning.

First, the monitoring body is not required to have complete political and financial independence from both the sending and receiving state.  In Gasayev v. Spain, the judgment that involves facts most similar to those in Othman, the ECHR approved a transfer from Spain to Russia only when Spanish diplomats ultimately agreed to undertake the post-transfer monitoring. Though United Kingdom diplomats will not directly be doing the monitoring in the case of Othman, the U.K. government is openly funding the Adaleh Centre.  Not only was the ECHR not untroubled by this fact – concluding that this funding “in itself provides a measure of independence for the Centre, at least from the Jordanian government,” para. 203 — it found the likelihood that the funding would continue into the future to be a factor lending weight to Jordan’s diplomatic assurances. The impact of the U.K.’s funding of the Adaleh center was not searchingly probed and the potential conflict of interest problem not examined head-on.

Second, the ECHR conceded that the Adaleh Centre did not have the “expertise or resources” of leading international NGOs, nor the “reputation or status” of leading Jordanian NGOs, para. 203, but nonetheless agreed with the conclusions in lower proceedings in Britain that “it was the very fact of monitoring visits which was important,” para. 188. If the fact of the visits is the most important feature of the post-transfer monitoring arrangement, the capacity of the monitoring body becomes almost irrelevant.  The fact that the Court went on to address concrete issues related to the Adaleh Centre’s actual capacity to undertake the monitoring suggests that this logic should not be taken too far, but it is part of its reasoning nonetheless.

Though the principle of judicial review of diplomatic is now firmly established in the ECHR’s case law, these weaknesses in the evolving jurisprudence need to be addressed.

The recognition of the US privacy torts by a Canadian court is further demonstration of a general trend – the convergence of privacy law across countries around the world.  Although profound differences in the law remain between countries, there has also been significant convergence.

Read the rest of the post over at HL Chronicle.

For [...]]]> Belated greetings to the CoOp community and thanks to Sarah Waldeck for enabling this opportunity to blog for what is left of January. I had hoped to post initially from Jordan, where I was visiting in January as a consultant for the American Bar Association’s Rule of Law Initiative (ABA ROLI), but the ABA’s regulations do not permit me to blog about the specific people or organizations that I met with during my visit.  I am still seeking clarification on the boundaries between specific information and general impressions, so for the moment I will keep my comments to the public record.  The following reflects my personal judgment only and is not based in any way on information disclosed in meetings held in my recent trip.

For my initial post, I want to set down some thoughts about the decision last week by the European Court of Human Rights in the case of Othman (Abu Qatada) v. United Kingdom, a decision effectively prohibiting the U.K. from deporting to Jordan a Islamist cleric who is currently being held in England without charge (and at least in part on the basis of secret evidence) and who has previously been convicted in absentia on terrorism charges in Jordan.

Though Jordan originally requested Othman’s extradition, it appears that the current litigation arises from the U. K.’s desire to deport him from England on national security grounds, rather than try him on terrorism charges.

The ECHR’s decision involved two main holdings:  first, that diplomatic assurances transmitted via a memorandum of understanding (MOU) between the United Kingdom and Jordan are sufficient to overcome the likelihood (based on Jordan’s human rights record) that Othman would be tortured if he were returned to Jordan to face trial on terrorism charges; second, that the U.K. would be violate Othman’s human rights nonetheless if it deported him to Jordan because evidence derived from torture would likely be used against in any trial.  My comments here focus mainly on the assurances part of the holding.

It should first be noted that the ECHR has firmly established the principle of judicial review of diplomatic assurances.   This in itself puts the European system far ahead of the United States, in which diplomatic assurances are regarded as the province solely of the executive.   See Report by Columbia Law School Human Rights Institute, Promises to Keep:  Diplomatic Assurances in U.S. Terrorism Transfers (Dec. 2010).  The ECHR initially began reviewing diplomatic assurances in cases involving the death penalty.  Its review of diplomatic assurances in terrorism cases began in the wake of revelations in 2004-2005 that, despite assurances to the contrary, Egypt had tortured two terrorism suspects transferred by Sweden, with assistance from the U.S., after rejecting their requests for asylum.  Human rights NGO’s and UN bodies have generally opposed the use of diplomatic assurances, but political consensus within Europe has split over the question whether assurances can be meaningfully regulated, or whether their use should be rejected outright.

Human rights’ NGO’s Amnesty International’s counterterrorism expert Julia Hall called the diplomatic assurances part of the Othman holding “an alarming setback for human rights” and said the decision as a whole was “a case of one step forward, two steps back.”

This I think overstates the extent to which the decision represents something qualitatively new in terms of the Court’s jurisprudence.  As a general matter, the standard used in Othman was set out in an earlier case, Saadi v. Italy (2008), in which the Court rejected assurances from Tunisia that terrorism suspects convicted in abstensia would not be tortured if returned to Tunisia, on the grounds that the assurances given by Tunisia were brief and formulaic and lacked any post-return monitoring system. The Court found that it had the obligation to review the “practical application” of the assurances and outlined a case-by-case approach in which the weight given to the diplomatic assurances depends “on the circumstances obtaining at the material time.” Saadi, para. 148. Subsequent decisions by the ECHR (more than a dozen) have identified particular factors to be considered, such as the national security profile of the individual involved, the availability of post-transfer monitoring, the specificity of the assurances in prohibiting torture, and the receiving country’s general human rights record with respect to torture.  The Court sets out these factors in Othman (para. 189), without indicating any relative weighting among them.  (For an overview of the case law, see Note (Alice Izumo), Diplomatic Assurances Against Torture and Ill-Treatment: European Court of Human Rights Jurisprudence, 42 Colum. Hum. Rgts. L. Rev. 233, 256-273 (2010)).  In at least one earlier case – Gasayev v. Spain (2009)– the court appears to have  found that diplomatic assurances from a country with a poor human rights record on torture (Russia) mitigated the risk involved in transfer, when the assurances specifically stated that international standards would be met and that diplomats from the transferring state would be able to monitor the post-transfer treatment of the detainee. (For some reason, I cannot pull up this case in the ECHR database of cases, but the Court cites it several times in setting out the factors to be considered in evaluating assurances.  Othman, para. 189 (vi), (viii), (xi)). Significantly, Othman, represented by Gareth Peirce, did not stake out a position that diplomatic assurances could in no case be adequate to mitigate the risk of torture, but he did argue that satisfactory standards would be met only in cases where 1) systemic torture had been brought under control and 2) if isolated acts of torture continue, there is an independent monitoring body with proven effectiveness and criminal sanctions against torture.  Othman, para. 168.

What seems to be emerging in the ECHR’s jurisprudence on diplomatic assurances is the requirement that, where a receiving state has a record of systematic torture, assurances must include a monitoring system. Jordan’s dismal record on torture has been the subject of numerous NGO and UN body reports, and the Court agreed with the parties that, “without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan.”  Othman, para. 192. Several factors convinced the Court that the MOU would, in effect, rebut the presumption that Othman would be tortured if returned to Jordan.  The Court found the MOU in the Othman case to be particularly strong.  Indeed, the Court stated that the Jordan-U.K. MOU is “superior in both its detail and its formality to any assurances which the Court has previously examined.”  Othman, para. 194.  More importantly, the MOU provided for a monitoring system, and the Court also examined its terms of reference.  The Othman decision also makes much of the strength of the diplomatic ties between Jordan and the U.K. and the apparent political will in Jordan to fulfill the conditions in the MOU.

In my next post, I will look at the details of the monitoring agreement in more detail and evaluate whether the general and specific objections of human rights NGO’s have been persuasively addressed by the Court.

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. [...]]]>

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information [...]]]>

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, [...]]]> Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global [...]]]> Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   

Like the rest of the Bill of Rights, the First Amendment is exceptional.  Nations are not inclined to copy its absolutist language.  As in other rights areas, many have opted instead for speech and press language similar to that found in transnational human rights instruments.  For some time now, foreign courts have been unlikely to follow American approaches with regard to hate speech, libel, and other First Amendment concerns.  The global marketplace has reached rather clear conclusions on these issues. 

With regard to both formal modeling and application, the First Amendment is likely to remain exceptional among the world’s expressive (and religious) liberty paradigms.  As I mentioned in previous posts, this has implications for “exporting” First Amendment norms and principles.  In essence, Law and Versteeg’s study provides support for the proposition that the market for exporting formal First Amendment norms has drastically diminished.  The principal export markets still open include diplomatic channels and the global market for communications technologies.  As the U.S. becomes ever more exceptional in terms of free speech and press freedoms, it might begin to exhibit greater protectionism in an effort to preserve its exceptional approach.  Or it might find there are benefits to transnational engagement and dialogue, even where cultural and constitutional expressive norms seem hard-wired and unalterable.  Whichever approach the U.S. adopts, in light of the emerging consensus on rights it will at least have to pay “decent respect to the opinions of mankind.”

Although CPC rule has been consistent [...]]]> Seeing as I spend a great deal of time thinking, talking, and writing about China, it seems fitting that my first day guest blogging coincides with the National Day of the People’s Republic of China. The celebration got off to an early start with the launch of China’s first space lab module, called Heavenly Palace No. 1 (discussed here on New Yorker correspondent Evan Osnos’s excellent blog). Today, the festivities turned to Beijing where the leaders of the Communist Party of China (CPC) are celebrating 62 years of uninterrupted rule. As election season heats up here in the United States, the DNC and RNC understandably could be envious at the prospect of not having to deal with a multi-party system.

Although CPC rule has been consistent over six decades, the experience of the individual leaders in Zhongnanhai (the headquarters near Tiananmen Square in Beijing) has been much more complicated as they jockey for power behind the scenes. The public face is one of orderly transition on a periodic basis, as seen in the handing of power from the third-generation leaders (led by Jiang Zemin) to fourth-generation leaders in the early 2000s (led by Hu Jintao) and, as currently playing out, to the fifth-generation leaders. As was on display today, in public, the top guys (and they are all still guys) wear the same suits and even have near identical haircuts and hair-dye. Yet much speculation is afoot about the future composition of and hierarchy within the Politburo and, at the pinnacle of power, the Politburo Standing Committee.

Xi Jinping is the overwhelming frontrunner for the top post, with Li Keqiang looking to be in the number two spot. Interestingly, Li was one of the first students to study law at Peking University after schools reopened following the end of the Cultural Revolution. Li was never a practicing lawyer, but even having studied law sets him apart as unusual in China’s leadership. There’s been little indication that Li will be a champion of legal reforms once the leadership transition is complete. Nonetheless, his ascent raises questions whether people with legal backgrounds are poised to take a more conspicuous role in the Party/government.

Americans like to think of revolutions as simple one-act plays. The colonists rose up against the British, ultimately defeated them at Yorktown and won liberty for us all.

In fact, it was more complicated. The nation’s future was by no means [...]]]> In a follow up to earlier commentary, Professor David Super has an insightful and important editorial in the Los Angeles Times entitled Time for the U.S. to Use its Leverage with Egypt.  As Super explains, the Egyptian revolution is not a one-act play–indeed, its fate is uncertain and the U.S. can and must play a crucial role in securing democracy by telling the new ruling generals that further crackdowns on peaceful demonstrators will bring an immediate interruption in all aid.  See the editorial below the fold.

Americans like to think of revolutions as simple one-act plays. The colonists rose up against the British, ultimately defeated them at Yorktown and won liberty for us all.

In fact, it was more complicated. The nation’s future was by no means certain in the period following victory. George Washington struggled to keep the Continental Army from revolting after Congress refused to raise taxes to honor its salary commitments. And, of course, it took 80 years before the country began extending the blessings of liberty to the millions held in slavery.

So too today is the fate of the Egyptian revolution uncertain. We wanted to believe that the drama had reached its final, happy conclusion when Hosni Mubarak resigned in the face of widespread demonstrations. But the struggle was not over.

The military replaced Mubarak, an air force general, with a committee of other generals, and this junta has retained many stalwarts of the Mubarak regime. Secret military courts have sentenced civilian bloggers and other activists to long prison terms for criticizing the military. Escalating sectarian violence has frightened millions of Egyptian Christians. The security police continue to arrest and torture peaceful demonstrators, even subjecting female protesters to “virginity tests” in front of male soldiers, according to Amnesty International.

Elections have been scheduled, but without a democratic constitution or credible election laws, it is unclear how free they will be. Despite Egypt’s history of corrupt elections, the generals are so far refusing to allow international monitoring. Indeed, in pursuit of an apparent alliance with the Muslim Brotherhood, the generals initially scheduled the elections immediately following the Islamic holy month of Ramadan. This ploy would inhibit secular parties’ campaigning while giving Islamists captive audiences five times a day in the mosques. The military has quickly recognized Islamist parties but stalled registration of secular ones.

After tens of thousands of people turned out in Cairo’s Tahrir Square, birthplace of the revolution, to protest, the election date was modified slightly. But the army is increasingly allowing heavily armed thugs to move through its lines to attack and sometimes kill peaceful democracy advocates. Two weeks ago, the army itself swept through Tahrir Square, beating and arresting demonstrators and forcibly ending the protest.

The coming months will be a crucial time in determining Egypt’s future, and it’s worth again considering the lessons of our own revolution as the U.S. considers how to aid the cause of democracy. We tend to forget the crucial role that foreign support played in our revolution. Without Lafayette, Rochambeau and the French fleet blocking British reinforcements, Yorktown might have ended very differently.

The U.S. role in Egypt is not as direct as that, but this country does have the ability to influence the Egyptian junta’s treatment of peaceful demonstrators. The United States gives more than $1 billion in military aid each year to Egypt, and hundreds of millions more has been committed to the nation since Mubarak fell.

We can’t allow Egyptian leaders to hide behind that support. In some countries in the region, regime troops have deliberately used weapons marked “Made in U.S.A.” against demonstrators. One democracy activist in the region reported that the secret police played a recording of President Obama’s speech at Cairo University while torturing him, emphasizing that American words about freedom and human rights were hollow.

To date, the U.S. has played into the hands of oppressive regimes trying to cling to power. Vice President Joe Biden insisted that Mubarak was not a dictator, and Secretary of State Hillary Rodham Clinton characterized Syrian President Bashar Assad as a reformer, undercutting and demoralizing brave Egyptians and Syrians as they risked their lives for democracy.

The Arab media have mocked the Obama administration’s self-described policy of “leading from behind.” Coming from the world’s only superpower, this lacks credibility. Democracy advocates found bitter irony in how Obama pushed Rep. Anthony Weiner (D-N.Y.) to resign after Weiner tweeted suggestive pictures of himself, but then waited so long to call on Assad to step down even after he had killed hundreds of his own people. Media in the region have also noted our eerie silence as the Bahraini monarchy, which hosts a large American naval base, brought in Saudi troops to savagely crush peaceful democracy demonstrations.

This month’s brutal crackdown in Tahrir Square came on the heels of a visit to Washington by a high-level delegation of Egyptian generals to discuss the future of U.S. military aid. In the past, assurances of continued U.S. funding also have led quickly to brutal crackdowns on dissent. For example, in 2005 and again in 2006, the regime arrested thousands of activists from the democracy movement in the weeks after House appropriators overrode concerns about Egypt’s human rights record.

But it is not too late. The administration must tell the generals in unmistakable terms that further crackdowns on peaceful democracy demonstrators will bring an immediate interruption in all aid. Taking a firm stand with the generals could help achieve in Egypt what hundreds of billions of dollars and thousands of American lives have failed to win in Iraq: a free, secular, pro-Western democracy in the heart of the Arab world.

David A. Super, a law professor at Georgetown University, is active in Voices for a Democratic Egypt.

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on [...]]]> (Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.)

At the other extreme we might think of treaties as being similar to contracts as understood by proponents of an economic analysis of law.  This doesn’t seem plausible for some treaties, such as human rights treaties, but is not implausible in all cases, I’d argue.  Something like this seems especially plausible in the cases of treaties relating to economic activity of the sort where something like expectation damages could be applied.  Here’s an example of the sort of thing I have in mind, though others might work even better.  In the “Beef Hormone Controversy”, the WTO Dispute Settlement Body found, and the appellate body upheld, that the EU was in violation of its WTO obligations in banning the sale of U.S. and Canadian beef that had been treated with certain hormones.  The DSB authorized retaliatory tariffs against the EU, and these have been in place for some time.  We might think of these tariffs as a punishment, meant to force the EU to live up to its moral obligations under the WTO treaties, but I think it might be more fruitful to think of them as damages that the EU has decided to pay rather than fulfill its contractual obligations.  If the damages fully compensate the U.S. and Canada, then it is at least arguable that the E.U. has discharged its obligations under the treaty.  (I should note that when I suggested this line of thought to David Unterhalter, then-chairman of the WTO appellate body, at a Salzburg Seminar session, he did not like it at all, though some of the junior WTO lawyers, as well as the director of economic research for the WTO, liked it more.  Unterhalter’s objections, which I won’t go in to here, had some force, but didn’t seem to me to be decisive.)

Which view of treaties is right?  I’d argue that that is the wrong question, and that we should ask instead when and why a particular approach is right.  In particular, it seems to me that the traditional view has the most force when there is no independent body that can adjudicate disputes and try to enforce remedies, and that approaches that are closer to contract law become more appropriate when we have independent bodies that can determine damages and administer the enforcement of claims.  There are more and more such bodies in international law, so we should expect to see the way we think of treaties change, at least for some treaties.  There is a general moral we might draw from this line of thought, namely, that it will often be a mistake to ask about “the nature” of treaties (or of contracts, or of law in general) in the abstract, and that we should instead look carefully at how these ideas function in particular instances and locations.  (This line of thought has some similarity, I think, with the approach Fred Schauer describes in his paper, “The Nature of the Nature of Law”, and in a more distant way, is relevant to Schauer’s re-assessment of certain aspects of John Austin’s approach to law.)

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: [...]]]> The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don’t find any of them particularly satisfactory. The cheap answer is that CRT is a “left” movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don’t think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from “friendly fire”. There have been some particular points of tension between CRT writers and the Jewish community — Mari Matsuda’s famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism “hate speech”, one of Daniel Farber & Suzanna Sherry’s critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) — but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite — it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There’s often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It’s easy to see these tropes popping up again and again in “anti-Zionist” discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don’t have enough voice or sway, are ill-equipped to talk about a group whose “problem” is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an “oppression” worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement’s energy is dedicated to refuting the idea that “it’s not race, it’s class!”). And Jewish history in particular is replete with instances of Jews being placed in the role of the “buffer”, given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the “race card” is the old nemesis of anti-racist workers everywhere, but of late the “anti-Semitism card” has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the “Judeo-Christian” tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice — while there are many Jews in politics, there are very few who speak “as Jews”, particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that “Judeo-Christian morality” is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the “love” they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that “yes, I can tolerate criticisms of Israel without labeling them anti-Semitic” is itself symptomatic of a discourse gone badly awry).

It’s not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi’s The Liberation of the Jew would have to be considered a foundational text in any “CJT” movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there’s a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

2011 marks the 100th anniversary of the Parliament Act in the UK, which stripped the House of Lords of its power to block permanently a bill passed by the House of Commons.  One interesting facet of this Act is it was intended as a temporary solution until the House of Lords could be reformed.  Here’s what the Preamble of the Act says:

“[W]hereas it is intended to substitute for the House of Lords as it present exists a Second Chamber constituted on a popular instead of hereditary basis, but such [...]]]> Before I get into the substance of this post, I should mention that I’ve finished Chapter Two of Bingham book, which brings the story up to 1840.  Hopefully I’ll have Chapter 3 (of 12) done next month.

2011 marks the 100th anniversary of the Parliament Act in the UK, which stripped the House of Lords of its power to block permanently a bill passed by the House of Commons.  One interesting facet of this Act is it was intended as a temporary solution until the House of Lords could be reformed.  Here’s what the Preamble of the Act says:

“[W]hereas it is intended to substitute for the House of Lords as it present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot immediately be brought into operation:

And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords.”

The charm of the British Constitution is in its gradualism, but this may be taking things too far.

Whatsoever is under the whole heaven is Mine. – Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t [...]]]>
תַּחַת כָּל-הַשָּׁמַיִם לִי-הוּא
– Iyov 41:3 (Tanakh)

Whatsoever is under the whole heaven is Mine.
– Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t speak to the 2004 tsunami, I did spend time earlier this month investigating the impact of the Japanese tragedy first-hand. Obviously, the effects of seeing one erased town or neighborhood after another, in three dimensions and 360 degrees, and of smelling them, and of sneezing or choking on their dust, were more than intellectual. But an unavoidable by-product of the experience is that it’s hard not to think some of our cherished intellectual positions are vain, self-serving and simply wrong. And among them, our notions of property.

I.

My first chance after the quake to visit the northern prefectures, just like that of most other people here, was during the “Golden Week” holiday period from late April to early May. Traditionally this is the peak time for recreational travel, both domestically and internationally. The shinkansen high-speed train line from Tokyo to Miyagi, Iwate and Aomori had suffered structural damage in more than 1,100 locations during the earthquake and aftershocks. Despite an initial estimated repair time of two years, it re-opened on April 30. The main highways in the region were also re-opened to civilian traffic, with greatly-reduced tolls. Tens of thousands of Japanese used their vacations to volunteer in the clean-up from the tsunami. Local authorities were overwhelmed, and wound up turning some away.

My wife and I were not quite so selfless: our priority was to see our family in Morioka, inland capital of Iwate Prefecture. This city of 300,000 had suffered some of the worst shaking anywhere in the region, but emerged mostly intact. Fortunately, too, the earthquake hadn’t woken up the active volcano that towers over the region. The damage inland was more indirect: power outages for several days, gasoline and food shortages for weeks, and a month of isolation from the country’s elaborate door-to-door delivery infrastructure, on which most Japanese households rely.

It was clear that neither staying in Morioka nor even visiting just one or two of the coastal towns most frequently mentioned in the media – the usual drill for politicians and visiting foreign dignitaries – could give an adequate idea of what had happened. One reason is that the affected coastline on the main island of Honshu was at least 500 km in length (though in light of its irregular shape, this is certainly an underestimate). Another is that the character of the coast changes radically as one travels from the Chiba peninsula in the south (which, roughly speaking, plays the role of Long Island to Tokyo’s New York City, though the NY metro population is much smaller) up to Aomori Prefecture in the north. The southern portion, including Chiba, Ibaraki, Fukushima and about 2/3 of Miyagi Prefecture, is a smooth plain. From roughly the city of Onagawa in northern Miyagi, the coast northward through Iwate and Aomori Prefectures has a deeply scalloped form known as ria, from the Spanish word for ‘river’. Although usually caused by the submergence of river valleys, in this case an undersea mountain range is being pushed upward by a subducted plate – the one that caused the March 11 quake. When a tsunami hits a ria area, it cumulates to terrible heights, but its inland progress is usually impeded by mountains. When it hits a flat area, it stays lower, but can penetrate several kilometers farther.

My wife and I spent one day visiting coastal cities and towns in Iwate, and another visiting sites in Miyagi. All told, we drove along roughly 120-150 kilometers of coast, in both the rias and the coastal plain. Eight weeks had elapsed since the tsunami, so we knew that most of what we would see would have already been highly processed by the Jietai, Japan’s Self-Defense Force (who deserve a lot more credit than they get for the tough job they’re doing). As it turns out, even those places were disturbing.

In many of the rias, the roads were open, the debris cleared down to the bare soil, and the carcasses of automobiles neatly arranged in rows. But you could still see where the ocean had bitten chunks from the walk to the seawall, whose railings were twisted or fallen away, as in Oomoto (Iwaizumi City, Iwate). In other fishing towns, giant tsunami gates still stood, with nothing left to protect behind them.

Some, though, remained terrifying despite the long lapse of time. At Ryoushichou, a village in Miyako City, Iwate, we first encountered debris scattered along the sides of the highway, high on a hill more than a kilometer from the sea. As we descended into the ria, the rubbish not only surrounded us, but was plastered against the trees and hillside retaining walls 10 or 20 meters above us. The tsunami here had been 18 meters (nearly 60 feet) high when it entered the settlement. Houses far up the hillside were destroyed. The wall of another hung flattened on a retaining wall, like a squashed bug. Close to my car window, some of the tangled mounds of refuse were planted with red flags, signifying that human remains had recently been found there. And directly in front of us, giant chunks of the roadway hung precariously over the sea.

In some denser urban areas, the signs were mixed, or even encouraging. Some familiar places in downtown Miyako, including a port-side food complex where not long ago we’d enjoyed sea-salt flavored soft ice cream, were now totally gone. Near the sea wall, we had to drive around a boat sticking into the traffic lane. But some downtown areas had been spared – it seemed that a meter or two of extra elevation had made all the difference. In others, we could see owners cleaning up even though the businesses on either side of them looked damaged beyond repair, their metal shutters banged and twisted. In downtown Kamaishi, looking up sidestreets we could see that the destruction penetrated for many blocks. Yet amid the gutted shops on one main road, someone had set out a maneki neko – a “beckoning cat,” with left arm raised to attract guests and customers.

Two days later we headed to Sendai, the capital of Miyagi. The city and environs are a sort of an oceanfront twin, or at least sibling, to California’s Santa Clara County, including a city of over 1 million, a world-class science and technology university, start-ups and agriculture. The wave didn’t reach downtown, but the surrounding plains were desolate. Thanks to help from American armed forces, the formerly inundated Sendai Airport was already functional, though the businesses around it remain broken and deserted. Many square kilometers of rice fields in the Wakabayashi-ku district lay covered with a gray, cracked, foul-smelling mud, as if the ocean had reasserted its claims on the land by licking it. Most paddies were strewn with cars and other debris; some even with boats . At least, that’s what we could see from the highway – four kilometers inland. Thanks to the highway berm, the tsunami hadn’t been able to penetrate farther; but on those sections where the road was supported by pylons, we saw damage on the landward side as well. Moments after we entered a road from the highway to the coast, police stopped us and made us turn back – access was still limited to government vehicles only.

After Wakabayashi-ku, we decided to visit the Onagawa nuclear reactor, which is located on the ocean side of a mountainous peninsula. News stories had claimed that it was undamaged by the tsunami, though post-earthquake visuals of it were rare in the media. Our route took us through downtown Ishinomaki, built on the southern delta plain of the Kitakami River, which also flows through Morioka. Driving east on a main road we noticed a dark gray line on buildings and garage doors – first appearing about 30 cm above the ground, it gradually rose to more than a meter. The mud was here too, with the smell of the ocean and worse. But the scene across the river was much more severe. Block after block of devastation, covered with the mud dust. Large and expensive-looking homes, several blocks deep from where we were driving, were mangled and shattered. Unlike what we’d seen in Miyako and Kamaishi, no signs of vitality. Just a few workers and some dazed older men riding bicycles, surveying what had been lost.

Our route east through Ishinomaki was meant to take us to the headpoint of a mountain ridge road called the “Cobalt Line,” from which we planned to take a spur road down to the reactor’s visitor center. We drove along the shore of a lagoon that had clearly overflowed its banks during the tsunami; at its eastern end was a sunken ferryboat, its windows half-submerged. But when we reached the entrance of the Cobalt Line, the police had blocked the road, and made us turn around. Only government vehicles were allowed on the road leading to the peninsula. At that moment, not far from where we idled, bodies were being buried in a mass grave – highly unusual anywhere, but especially in Japan where cremation is the norm.

Our car’s GPS navigation told us that the best way back to Morioka was to continue east to downtown Onagawa, instead of turning back the way we had come. But as we rounded the bend, we realized several things: that although we were still far up a hillside, we were entering a scene of destruction on a scale that we hadn’t yet seen; that we were the only civilian vehicle on the road; and that directly down the road ahead of us was the ocean, with nothing between us and it. We were too shaken up by the place, and too conscious that we could be interfering with the Jietai’s work, to pull over on the still-torn-up road and document the town more thoroughly.

Our first impression was that, of all the places we’d seen, this was the one that seemed as if it had been least touched during the preceding eight weeks. I later found home videos on YouTube that showed it had actually been much worse in late March — the Jietai had been working all along, but the destruction was simply extreme. All the more puzzling, then, that we’d never heard any news stories about Onagawa, even though the nearby towns of Ishinomaki, Minami-sanriku, Kesennuma and Rikuzentakata had attracted international attention. We confirmed this later with a Google search: aside from a couple of stories shortly after the tsunami, and a couple of stories obliquely mentioning some Chinese interns who had survived the town’s destruction, virtually all easily-searchable references to Onagawa for more than two months after March 14 were to generally reassuring stories about the condition of the nuclear plant, which is 7 km distant from downtown as the crow flies, and maybe double that by car. Also conspicuously absent from the media have been ground-level post-quake visuals of the plant. Our best conclusion was that the government has deliberately discouraged coverage of the destruction in Onagawa, in order not to arouse suspicions that something similarly awful had happened to the nuke that shares its name, and not to attract the curious who might want to see the reactor’s actual condition first-hand. (*)

(*) There are some press stories about the condition of Onagawa, but to find them you usually need to make a deliberate effort to search within a particular website. E.g. this Yomiuri story from mid-April came up buried deep within in the website’s search results. The May 21-22 visit to Japan of Chinese Premier Wen Jiabao (known as ‘On Kahou’ in Japanese) provided additional circumstantial evidence of information control about the town. It was well-publicized in China that Satoh Mitsuru-san, the owner of a fish processing factory in Onagawa, had led all 20 of the Chinese workers at the plant to safety from the approaching tsunami, before meeting his own death as he ran back down the hill to look after his family. The rare nuke-free appearances of the city’s name in Japanese media were often in this Chinese and human-interest context. The national Mainichi Shimbun and the Sendai-based local paper Kahoku Shimpo reported (as recently as May 12 and May 18, respectively) that Wen wanted to visit Onagawa to honor Satoh-san’s memory and kindness. In the event, Wen merely commented on Satoh-san while being interviewed and photographed far to the south in Natori, near Sendai airport. Evidently either the Japanese government blocked him from visiting Onagawa, or he complied with a request not to visit there; or else if he did visit, it was under the rather anomalous condition of a complete press blackout.

II.

Unfortunately, it is all too plausible that some political-mediatic agenda is affecting the clean-up. Japanese journalism operates under a “press club” system, which effectively means that to keep your access to government agencies and other organizations, you need to cooperate in burying information. It’s no accident that a story about TEPCO’s past actions that should have provoked outrage was released on the most invisible news day of a slow-news holiday period. Conversely, whether the government was acting on its own initiative or merely being responsive to the masukomi (as the “mass communications” estate is known here), government effort seemed to go first to the best-publicized cases. The most nightmarish places we visited were ones we’d never heard about before. And my sister-in-law, a government surgeon based in Tokyo, told us that when she was dispatched to visit communities up north, she was given a choice of only four or five of the most mediatic towns, even though she’d wanted to go to areas that were being less well-served. (*)

From its first day, the disaster has been deeply enmeshed with politics. The quake that struck in the afternoon of March 11 obliterated the morning’s news story about illegal campaign contributions to Prime Minister Kan. In the recent campaign for governor of Tokyo, the ultra-right-wing incumbent, Ishihara Shintaro (**) prefaced his run for an unprecedented fourth term by declaring that the quake was a tenbatsu – punishment from heaven – for Japan’s greed. The remark provoked an outcry, even prompting some reckless soul to deface a campaign poster (a crime here), scrawling “tenbatsu” across Ishihara’s forehead like the mark of Cain.

In an unusually perceptive article in the April 2011 Le Monde Diplomatique, American scholar Harry Harootunian points out that Ishihara’s remark was a shrewd way to blame average Japanese for their moral failings, while exonerating the political class from blame for the disaster. Visiting the sites, it’s obvious that politicians must shoulder a lot of the blame. The village of Tarou, Miyako City, had spent hundreds of millions of dollars on building tsunami walls. I stood on the innermost of them, and looked out to the ocean, quite distant. Behind me, crows were picking over the garbage-strewn ruins of a commercial center. As we drove out, we passed by several piles of refuse with red flags planted in them, to show that they contained human remains. Then we passed the monument to the tsunami of Showa 8 (1933), a sight replicated in many towns and cities along the Iwate coast. When it was erected, the local government had directed that no one should live closer to the sea than this monument. But as the years went by, the village residents put their faith in a more expensive wall — which broke on March 11. (The ocean simply overflowed the older, inner ones.) Multi-hundred-million-dollar seawalls, and the creation of business centers in historically inundated areas, don’t happen solely through the choices of private citizens.

Nonetheless, private citizens are also complicating the situation. In some towns, they’re rushing to set up temporary housing on the same ground from which their original homes were washed away – trying to create a fait accompli that will be hard to reverse. As a bengoshi (Japanese lawyer) explained to me, a problem is that many landowners feel they have an absolute entitlement to their land. The roots of this feeling lie not in any philosophy of natural right, but Meiji expediency. When imperial rule was restored in the mid-19th Century after more than 260 years of the Tokugawa shogunate (military government), the new emperor found himself short of funds. In exchange for the right to collect taxes, he surrendered imperial title to all the lands of Japan, and allowed private ownership. That still left the land concentrated in the hands of a wealthy landlord class, but the US Occupying Forces took things a step further: they initiated a land reform program that distributed almost 40% of all arable land to the tenant farmers who were working it.

It doesn’t help that the law of eminent domain isn’t as strong in Japan as in some other countries. There is a law on the books that allows governments to appropriate land for a public purpose in exchange for compensation (the Tochishuuyou-hou, Land Expropriation Act, which is authorized by Art. 29, para. 3 of the Japanese Constitution). But as years of litigation involving airports in Narita and Shizuoka, among other places, have demonstrated, the law is difficult to invoke and cumbersome to enforce. As far as I can tell, it apparently isn’t even being discussed in the present context. A proposal recently announced by the Kan administration hints that a new special law might be enacted, under which the national government would purchase land from individuals. According to press reports, localities would interact directly with the central government in effecting this scheme, by-passing the prefectural governments. If this comes to pass, no doubt it will generate inter-governmental tension and resentment for years to come.

Private citizens aren’t motivated only by a feeling of entitlement, but by practical – and social – necessity. Even if they lost their homes in the tsunami, they still need to earn a living. During the Golden Week holidays, the government broadcaster NHK presented many short documentaries abut how people in Touhoku were coping. One profiled two men in Kamaishi, a sake distributor and the owner of a fishing boat maintenance shop. The distributor pointed out that he doesn’t have any business if no one needs him. So he spends his days helping his neighbors to re-open their restaurants, before returning at night to the evacuation center where he currently lives. The maintenance shop re-opened even though no-one could pay; if fishermen can’t fish they can’t earn the money to pay the shop, either. One of the shop’s first jobs was servicing a giant crane that was used to lift boats up from the land onto which they’d been carried by the wave, and to re-deposit them in the harbor. Asked why he does it for no pay, the owner admitted self-interest plays a part, but added “Yo no tame, hito no tame – for society and for people. Otherwise the people in Kamaishi won’t have sun.” Whether these businesses should remain for the long-term in their pre-tsunami locations merits a lot of thought and debate. But the case for their re-opening in the short-term seems a strong one.

How should Japan think about the long-term? The reactive mediocrity that characterizes most Japanese politicians these days suggests that those in power, at least, simply might not. There’s a good chance the country will muddle through with an accretion of short-term measures designed to boost “productivity” and “growth,” and intended to take the country back to where it was before. Seen in this light, the Kan government’s attempts to suppress debate about nuclear power appear as nostalgic as they are frantic. But one thing they are not is benign. Even if the government sincerely believes, as many people believed before March 11, that nuclear power is necessary for Japan’s future growth, the Kan cabinet evidently also believes that anti-democratic means are justified to achieve that end. And that’s just to put the most generous spin on their actions.

(*) She’d been especially interested in visiting settlements on small coastal islands that hadn’t received any aid. From what she was told, the government’s operating assumption seems to be that they were completely overwhelmed in the tsunami, with all souls lost, and hence not worth the investment of resources. She also told us that she and many of her medical colleagues believe the dead/missing numbers to be greatly underestimated, perhaps by a factor of between two and four (i.e., up to 100,000 dead). Since official records often were lost, official estimates tend to be based on missing person reports and on bodies actually recovered. Based on personal observations of another healthcare professional in our family (who survived the tsunami in Ofunato, Iwate), only a small fraction of bodies floating in the water right after the tsunami were subsequently washed up on the beach. In many cases where all members of a family were lost to the sea, no one would have filed a report. Police won’t accept a missing persons report if the person filing lacks a close-enough relationship to the missing; this rules out filings from mere acquaintances, even though they might be the only ones to notice someone’s absence.

(**) A former actor, novelist and dandy, Ishihara is best known in the West as the co-author with Sony’s then chairman, Morita Akio, of The Japan That Can Say No (1989). Since his stiffest opposition in 2011 was a TV comedian and accused child molester who had ditched his previous job as governor of rural Miyazaki Prefecture mid-term to run for this post, many voters gritted their teeth and re-elected Ishihara anyway.

III.

The long term deserves to be re-thought more radically, and not just in Japan. The Lisbon earthquake moved many to question whether there could really be a kind and merciful divinity. Pace Ishihara, fewer people today, and almost none in Japan, are prone to such theological speculations, and even if they were, the Twentieth Century has already provided ample food for thought. But to see the condition of the coast, and to realize that the ocean rose up and covered the land everywhere, over hundreds of kilometers, more or less at the same time, is to visualize an event on a Biblical scale — or actually, on a far vaster one. The parting of the Red Sea, which the tsunami so darkly inverted, covered a stretch of just a few miles.

At a minimum, the experience of the March events should move us to realize that our relationship to this planet might be different from what we have grown up thinking it is: something along the lines of what a recent CNN promo calls “the battle to manage the earth”s resources.” Just as to see, mile after mile, the jumbled mountains of shattered houses, toppled utility poles, upended vehicles, ownerless clothes, toys and much else, all ripped out of their daily context and mangled into a new one that screams out for meaning, should make us think differently about all the things we make, we sell, and we think we need for our well-being.

One practical result should be a rehabilitation of the precautionary principle. Instead of reifying the “expectation values” of disasters, discounting them to insignificance with our estimates of their low probabilities, we should imagine and prepare for the worst, as best we reasonably can. Fortunately, support is growing for this in Japan, though it remains heretical in U.S. policy circles.

Some in Europe have developed this idea further, into an intellectual movement known as  écologie politique. In this view, precaution is couched within a larger notion of human responsibility for our actions on earth, including for our production of simply too much stuff. Building outward from this idea, and drawing on the writings of Hans Jonas, Jürgen Habermas, André Gorz, Ivan Illich, Emmanuel Levinas and others,écologie politique has developed not just an environmental ethic, but a a social and political one, based on responsibility, autonomy, solidarity and participative democracy. While the meaning of each of these terms is contestable, I’m inclined to think this might be a useful utopia to aim for.

Écologie politique, though, is too bloodless and rational to epitomize the deeper lessons of the March events. A more mythic line of thought is suggested by a passage in a recent book by Johns Hopkins political scientist Jane Bennett. Observing that politics is “often construed as an exclusively human domain,” she proposes that we consider instead “the agentic contributions of nonhuman forces … in an attempt to counter the narcissistic reflex of human language and thought. We need to cultivate a bit of anthropomorphism – the idea that human agency has some echoes in nonhuman nature – to counter the narcissism of humans in charge of the world.” Unfortunately, she doesn’t make any serious attempt to explore the practical implications of this point of view. But these few words, at least, resonated with what I’d seen.

In reflecting on anthropomorphism, it struck me that in the English-speaking world we often express impersonal agency through the image of hands. Adam Smith’s “invisible hand” may be the example that first comes to mind. John Locke provides another. Our notions of property rely on a famous passage:

Though the Earth, and all inferior Creatures, be common to all Men, yet every Man has a Property in his own Person. This no Body has any right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then that he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.[The Second Treatise, § 27 (emphasis on original)]

These are literal, not figurative hands. But they’re not the only important hands in Locke. A bit later he says:

Though the Water running in the Fountain be every ones, yet who can doubt, but that in the Pitcher is his only that drew it out? His labour hath taken it out of the hands of Nature, where it was common, and belong’d equally to all her Children, and hath thereby appropriated it to himself. [Id., § 29 (emphasis in original)]

It wouldn’t be surprising if Anglo-Saxon philosophy were shaped, in part, by the disasters within its experience. Despite their destructive power, the typical calamities – tempests, tornadoes, earthquake and fire – tend to leave their debris more or less in situ, aside from the occasional cow or truck plopped down by a tornado far from where it had stood. What we own may of course disappear in smoke; yet most fires result from human agency, and human action, too, can often arrest a fire’s progress, even when it’s already touched our possessions. But few philosophers on our bookshelves ever directly witnessed a tsunami or its effects. A few days after visiting Onagawa, I found this video taken when the 18-meter tsunami hit it. During its final sequence, much of the town can be seen being pulled back into the ocean, sucked through the two large, red buildings near the waterfront (which are also visible to the right of center in the photo of the road to Onagawa, above; the road we were on goes right between them). Watching this, I could only think how ridiculous it is for us to believe that we can take anything from the hands of Nature. Those hands can take back anything, at any time – and we are always within their reach. A system of laws, an economy, and a society based on that truth, and on the understanding that we’re only borrowing even what we own, seem long overdue.

Pictures: all photos by author, except for tsunami frame captures: Hara Yoshinori. Iwate-ken photos 2011/05/04; Miyagi-ken photos 2011/05/06. To view full size, please click on picture, and then click on it again after the page reloads.

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a [...]]]>

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.

Last week, word came out that when Fukushima Dai-Ichi was being planned in the 1960s, it was originally proposed to be sited 35 meters above sea level. However, TEPCO reckoned that this would result in unduly high recurring costs during the lifetime of the plant. In particular, it would increase the expense of pulling sea water up to the plant for use as a coolant, and would increase the cost and complexity of conveying fuel, equipment and other items to and from the small seaside port built to service the plant.

TEPCO’s planning whizzes hit on the idea of digging away 25 meters of soil – possibly a bigger up-front fixed expense, but many decades’ worth of reduced recurring expense. Only “possibly”, because the plant’s foundation had to be anchored to bedrock, so the dig made this simpler, too. Those top 25 meters were mudstone and clay, which was felt not to be so stable in a quake if the plant were built on top of it. The story quotes Masatoshi Toyoda, then a TEPCO VP for planning and now age 87, as saying it seemed a matter of “cost efficiency”. He also suggests that there may have been a way to have built much of the plant within the mudstone layer, so that it could have been safe against both earthquake and tsunami. But, he admits sorrowfully, tsunami risk wasn’t considered at all.

The decision to dig left the facility at a 10-meter elevation. In 2011, it was hit by a 15-meter tsunami. The rest is history.

Reaction so far has been muted. The announcement of this 40-year-old bit of history came in the middle of this year’s 10-day “Golden Week” period of national holidays, when fewer people than usual are paying attention to the news. Even more artfully, it was released on a “press holiday,” May 5, which meant that no newspapers were published the next day. It seems to have been carried by very few major media outlets – to my knowledge, only TV Asahi and the Tokyo Shimbun website. (You can find a rather daffy machine translation of the Tokyo Shimbun story into English here, but running the Japanese version yourself through Babel Fish will give you a more coherent read.). Both the English-language Daily Yomiuri and its parent, the conservative and influential Yomiuri Shimbun, entirely omitted to mention it when they resumed publishing. You won’t find it in this week’s edition of Nikkei Weekly, either. If my mother-in-law hadn’t been watching the morning show on TV Asahi that morning and complained about it over lunch, I might never have heard about it.

TV Asahi contrasted Fukushima Dai-ichi with another nuclear plant more than 100 kilometers north, within the city of Onagawa, Miyagi Prefecture. At that location, the tsunami reached only 13 meters. The difference is a big one, since the Onagawa plant, run by Tohoku Electric, is situated 15 meters above sea level. According to media reports, it was slightly damaged by the quake per se, but shut down safely. (My wife and I attempted to drive to this plant the next day – its PR center is easy to find on most local road maps – but were prevented by police from getting onto the mountain road that leads to it. What we discovered after our forced U-turn was unforgettable and harrowing; I’ll describe that in a future post.)

In a related development, Prime Minister Kan earned rare praise last week when he ordered the closing of the Hamaoka nuclear power plant, because of its location on a major geological fault. Except that, despite what editors around the world wrote in their headlines, he didn’t order, exactly – he doesn’t have the legal authority to do so. Asked, was more like it.

The plant is located not far from Mount Fuji in Shizuoka Prefecture, west of Tokyo — and considerably closer to Tokyo’s 30 million residents than Fukushima is. It’s run by Chubu Electric Power Co., a/k/a ChuDen, whose board of directors was unable to decide at a meeting Saturday whether to grant the Prime Minister’s request. That there is an estimated 87% likelihood of an 8.0 or greater earthquake near the fault within the next 30 years apparently weighed less in their esteem than the loss of around ¥8.3 billion (roughly, $104 million) that was projected to result from a shut-down — though in a move that would make any American PR flack proud, jobs were also gravely mentioned. ChuDen’s board scheduled another meeting for Monday afternoon, leaving the nation to wonder whether the directors would kindly acquiesce. Eventually, they did.

Tokyo has already begun to sweat under what looks to be an early tsuyu – the hot, muggy, rainy season that makes US East Coast summers seem mild. We’re also being told to expect a repeat of last summer, which set the historical record for number of consecutive days above 30°C (86°F). (This is to some extent self-inflicted: not just global warming, but a heat-island effect made worse by the pell-mell construction of high-rise towers near the Shinagawa harbor-front, cutting off breezes from much of the city.) Thanks to the Fukushima situation, available power this summer is expected to fall at least 20% below usual demand. Businesses all over town have voluntarily dimmed their lights, turned off their escalators and set their air conditioning to 27°C (a bit more than 80°F) – including in crowded rush-hour subways and at the gym where I (occasionally) work out.

Should we also have to sweat out the decisions of boards of private companies on matters of public safety? The Tokyo region’s current predicament suggests that a world with insufficient power to regulate business is much closer to an inferno than to a paradise.

Picture credit: Tokyo Shimbun.

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, [...]]]> [Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We've invited him to give his perspective on recent events in Japan. --FP]

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.

Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.

The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.

Who are the objects of this trust? Not national politicians, most of whom pour their energies into fund-raising, point-scoring and internal bickering. Least of all the current prime minister. Naoto Kan’s already abominable approval ratings would have taken a possibly terminal nosedive, but for a lucky break. A few hours after the morning news revealed that he’d received a campaign contribution from a foreign national (criminal only if with knowledge, but a strict liability political headache), the earthquake struck. Like a fluke reading of radioactivity, his approval ratings have recently spiked – to slightly above 28%. But already there is talk of party secretary and lead government spokesperson Yukio Edano as successor.

Rather, the trusted are mainly (i) bureaucrats, known by the metonym “Kasumigaseki,” for the Tokyo district where they are based, and (ii) local government. Japanese bureaucrats are unlikely heroes. Most of them are recruited straight from graduating Tokyo University, the most prestigious university in the country, or from another of a handful of top schools. Virtually none of them has any practical experience outside government.

Nonetheless, bureaucrats and local governments have shown that they can learn since the Kobe earthquake of 1995, in which their inaction was blamed for the deaths of 6,000 people from collapsed buildings and fires. Ministry officials have been streamlining import regulations, and, at least in connection with a project I’m working on that would send German portable power generators to refugee shelters, apologizing for taking more than two hours to answer emails. (It’s the German company, whose CEO has a Ph.D. in strategic management, that’s been dithering.) And pace some skeptics, thanks to stringent building codes, there seem to have been few, if any, deaths from building collapse during the recent quake. In our family hometown of Morioka, a city of 300,000 and the inland capital of one of the worst-hit prefectures, Iwate, there weren’t any.

The vast majority of deaths from the “tsunami and quake” are from the tsunami alone. Building codes don’t help much against tsunami. A perforated, air-filled box doesn’t have much chance against a wall of rushing water and the debris that it’s pushing. Even so, we’re far from helpless. Early warning systems and other measures were in place in many of the worst-hit towns. More lives were saved than lost.

A 5-meter tsunami, or a 15-meter one like that which hit the Fukushima plant, overwhelms such preparations. Once it penetrates inland in a valley, it can climb much higher. The tsunami reached just inside the front door of our cousin, a dentist in Ofunato. She lives at 50 meters elevation (about 200 feet above sea level). Geological records show that the last time such a huge tsunami hit the Tohoku region was in 869 C.E.

Media coverage in Japan has been thorough, factual and sad. For the first 10 days or so after the quake, even the commercial broadcast channels ran only public service ads, though seekers of escapist fare on cable couldn’t escape Proactiv’s saturation buy. For a while it was comforting to imagine that the country’s biggest problem was zits, or, to use the much cuter name by which they’re known here, nikibi. Until one started to wonder what happened to the two cheerful girls from Sendai, so thrilled to tell the camera about their cleared-up skin.

The tragedy, including the occasional miraculous rescue, was the dominant narrative here for a week or more. Practical issues of survival are now the main focus. The national system of designing schools to double as disaster shelters has worked well. Unfortunately, the lack of gasoline, and the damage to roads, rail and ports, made it difficult to provision them, especially against the bitter cold. Even the cities that fared better, like Morioka, are suffering from shortages.

This story will continue for months. The engineering problems seem to be getting resolved with miraculous speed. A highway famously torn apart has already been repaired, with less than a week’s effort. Today we heard that the Touhoku bullet-train line, whose 140 breaks were expected to need one to two years to repair, will be re-opened by the end of April. But some law-related problems will persist: many towns’ family registers – the key record in civilian legal systems, without which one can’t get married, open a bank account, get a professional license, or participate in many other activities of a normal life – have been swallowed by the ocean. Slowest of all to heal will be the human psychological trauma. Friends of ours in the television industry tell us about video editors afflicted with PTSD, from editing the images of dead bodies out of footage. How much worse it is for the tens of thousands who suffered the disaster in person is impossible to imagine.

Conscientiously covered, but lower on the list of priorities, is the nuclear “disaster” in Fukushima. Even on a day when the airborne radioactivity count spiked suddenly in Tokyo, it wasn’t the top item in the domestic news. The event’s impact on the national energy debate may be negligible. On Mixi and other message boards, the conclusion drawn from the events of March 11 is that Japan should switch to electric cars as soon as possible. The lack of gasoline – exacerbated by the tsunami’s destruction of several Pacific Coast tanker ports – has hampered rescue efforts, as well as the efforts of families like mine to visit loved ones in the Northeast or to ferry them to safer parts of the country.

Unlike the debate in the West, and despite a small but active Japanese anti-nuclear movement, there isn’t any talk in the mainstream here about abandoning nuclear power. Without it, Japan would be far too dependent on foreign energy sources. Instead, the resolve is just to make the next generation of reactors stronger. No one expects that a 35-year-old reactor could withstand a 9.0 earthquake and 50-foot tsunami.

In the early days there was even mild sympathy for TEPCO, the Fukushima plant’s operator, at having to deal with so many troubles at once. If that’s soured recently, it’s because of the chairman’s failure to visit Fukushima to apologize, and management’s negligence in equipping workers fighting the crisis: two shod only in sneakers were sent into a foreseeably-flooded section of a reactor building, suffering terrible burns.

Recent revelations that TEPCO may have stored too many spent fuel rods at the Fukushima facility, among other misdeeds, haven’t changed the public assessment of the tsunami’s effects. Nor have revelations of excessive chumminess between the regulators and the regulated, which are nothing new in Japan. (Those who remember the Bubble Era of the 1990s will recall nopankissa – coffee shops (kisssaten) whose panty-less waitresses helped bankers to entertain Ministry of Finance officials.) These are seen as issues with compliance or enforcement, not with the principle of regulation, or with the technology.

That Kasumigaseki is generally trusted doesn’t mean it’s immune from criticism. Complaining about it is a popular pastime. The Japanese regulatory scheme is seen as something that can always be improved – and also supplemented by spontaneous action.

When toilet paper became scarce in my Tokyo neighborhood a few days after the quake, the proprietors of the local fish shop asked their relatives to the west, near Mt. Fuji, to send over several cases. They then distributed a 12-pack apiece to seniors in the neighborhood. A friend who doesn’t have any connection at all to Touhoku stood in line to donate 13 spare blankets, which she had first washed and ironed. My neighbor the sweets-maker, whose family has lived in Edo (the ancient name for Tokyo) for centuries, put a collection jar for Touhoku on a chair on the sidewalk in front of his shop, where it sits unsupervised and unstolen for hours each day.

Civil society in Japan was born from similar efforts after the 1995 Hanshin quake. The attitude isn’t though, that private effort is better than government action. It’s more that government should do these things, but since it doesn’t, private citizens will pick up the slack.

Contrast that with the picture painted by the Western media. Unencumbered by scruples about alarming the locals, they sensationalize their headlines, as if all that hit Japan were not sensational enough. “Panic grips Tokyo” read one MSNBC headline from a few days ago. Lately, the finding of elevated but non-threatening amounts of radioactivity on the outstretched leaves of spinach plants in fields, and in raw milk that hasn’t yet left the farm, has become “contamination of the food supply.”

Foreign op-ed writers feel empowered to diagnose modern Japanese nuclear fears, based on 60-year-old monster movies. This, from a country that produces a musical about a guy bitten by a radioactive spider (leaving aside the Incredible Hulk, Daredevil, etc.) Yet despite their supposedly wounded collective unconscious, it’s not the Japanese who are fleeing Tokyo in fear: it’s the expats. The Germans, French, Australians and many others have moved all or most of their embassy staff to Osaka, Kyoto or other cities in west-central Japan. (To its credit, the U.S. embassy has stayed put.) [UPDATE 2011/04/02: I'm told that the French ambassador himself remained in Tokyo, with about 15 other staff. The German ambassador apparently did not. And more than three weeks after the quake, foreigners remain a very rare sight, even in expensive expat "ghettos" like the central Tokyo neighborhoods of Hiroo and Azabu.]

The stream of exaggeration and misinformation about the nuclear plant isn’t innocent. American business interests have a lot at stake in Fukushima – namely, whether the nuclear or the “clean coal” industry will be anointed as providing the “energy of the future” in the U.S. market. Considering that a “nuclear power expert” from D.C. told CNN a few days ago that boric acid was used to “eat stuff away” inside the reactor (actually, it’s used for absorbing neutrons emitted during fission chain reactions), you almost have to think that despite global warming, coal might not be so bad after all.

The more idealistic strain of Western commentary seeks to blame the Japanese government and TEPCO for lacking “transparency,” and continually second-guesses their decisions. A few “enlightened” Westerners suppose the reason is a Japanese cultural preference not to speak an unpleasant truth; they assume the information is known, but just too terrible to be revealed directly by Japanese folks. (In fact, the information is often unavailable, or difficult to obtain, such as about the numbers of dead and missing, or about the conditions inside some of the reactors, from whom the wave stole most monitoring devices.)

Others see something less benign. A BBC reporter on air this weekend noted that a TEPCO spokesman was “taken aback” when the reporter suggested that TEPCO was “to blame” for the Fukushima “disaster”; the reporter’s tone of voice made it clear he thought the spokesman was disingenuous to mention the magnitude of the quake and the height of the tsunami. Democracy Now interviewed a Japanese anti-nuclear activist who had long suspected that TEPCO was concealing problems about the “seismic safety” of the Fukushima plant, as if disclosure would have been sufficient in itself, or led to preparation for the extreme events of March 11. (Of course, she didn’t really want better disclosure or to improve the plant’s operational safety: rather, she preferred that it simply didn’t exist.)

A new locus classicus of this school of thought appeared in The New York Times recently under the headline ”Nuclear Rules in Japan Relied on Old Science”. According to Costas Synolakis at USC, Japanese regulators and engineers made “a cascade of stupid errors that led to the disaster.” “For whatever reasons – whether cultural, historical or simply financial – “ say the reporters, Japanese engineers ignored “relevant data that was virtually impossible to overlook by anyone in the field.”

Forget for the moment that the only sources mentioned by the Times of the impossible-to-overlook data are two draft (i.e., unpublished) papers, one by Synolakis and the other by a researcher at US Geological Survey, both men being characterized as “leading tsunami experts.” (Forget, too, the irony that a few paragraphs earlier in the story, a former TEPCO official laments, “We left it to the experts.”) To what conclusion does “new” science lead the American experts? That a 7.5 quake would have been enough to create a tsunami overtopping the 4-meter bluff at Fukushima. Not at all that there should have been a bluff higher than 15 meters, as would have been necessary to avoid an accident in this case.

The Times piece ends with what seems intended as a dramatic and chilling flourish: ” Two decades after Fukushima Daiichi came online, researchers poring through old records estimated that a quake known as Jogan had actually produced a tsunami that reached nearly one mile inland in an area just north of the plant. That tsunami struck in 869.” The smoking gun! No matter that the plant was already operating for 20 years, or that the tsunami was more than 1,100 years earlier, somewhat longer than the projected lifetime of a power plant. Those who should have known better, didn’t; and now, tragedy has struck.

[UPDATE 2011/04/02: The Times published a new installment in this narrative today: under a headline proclaiming "From Far Labs, a Vivid Picture Emerges of Japan Crisis," we're told, "For the clearest picture of what is happening at Japan’s Fukushima Daiichi nuclear power plant, talk to scientists thousands of miles away. // Thanks to the unfamiliar but sophisticated art of atomic [sic] forensics, experts around the world have been able to document the situation vividly.” From far away, but not in Japan. It turns out later in the story that the foreign experts’ insights are based on proprietary computer models (known in the trade as nuclear forensics), and aren’t “documented” by direct evidence at all.

Meanwhile, some in France have put a different twist on the story. The April 2011 issue of the left-leaning monthly Alternatives Économiques simply omits all reference to the loss of life, human suffering and destruction of communities caused by the March 11 tsunami. Instead, the cover is plastered with a view from above the Fukushima Daiichi plant, and the headline, “Energy, pollution, consumption: We need to change models!”. Within, the editors refer to “la catastrophe nucléaire” (@5) and “la catastrophe de Fukushima” (@53), even though to date no one has died from radiation or other problems at the plant. And in his back-page column, the magazine’s founder, Denis Clerc, asserts that the event “that was never supposed to have arrived … has arrived,” with “potential consequences … far beyond what one could have imagined: major radioactive fallout over dozens or hundreds of millions of people, the economic activity of the fourth [sic] largest industrial power in the world halted, thousands of square kilometers irradiated and made uninhabitable, and no doubt millions of victims” (@98). What are tens of thousands of actual deaths in the tsunami, or hundreds of thousands of actually displaced people, compared to “sans doute des millions de victimes”, especially when French eco-politics are at stake. Far be it from les chefs de la rédaction to entertain the advice of the UK’s chief science adviser, John Beddington, to the British Embassy here, that even in the worst case — meltdown and explosions at all of the reactors on the site — the impact would be far less than that of Chernobyl, and that “there is no reason from the point of view of radioactivity why you should not be able to continue to live quite happily in Tokyo.” How typically ennuyant. (See transcripts of Sir John’s conversations with the embassy on March 15 and March 25.)]

Western opinion seems compelled to unite the muckraker’s deontological zeal with the technocrat’s consequentialism. There’s no question that TEPCO and maybe others have committed, and continue to commit, bad actions. And maybe others didn’t use the most sophisticated risk assessment tools (unlike the quants at Lehman, the US Federal Reserve and elsewhere pre-2008, say). And truly, truly terrible things have happened. The fallacy is in believing that the bad actions, bad actors, and supposed “stupid errors” are to blame for the terrible things.

As my wife summarized it, “Our science was old, so we deserved what happened to us.” One has to wonder whether this sort of discourse would flourish if “cultural” factors were not so obvious. Would Americans be second-guessing say, the Swedes or Australians if such an accident were to occur in one of those countries? Does it occur to them that they are second-guessing a country with unique practical experience in dealing with the medical effects of radiation – courtesy of the United States Air Force?

The real cultural lesson here begins with a fundamental difference in the attitude toward “governance.”

Japanese political life is rife with scandals. But people can discriminate which ones should make them less confident in government, and which ones should make them less confident in particular individuals and entities. Japan has made great strides in the past, and is even now making great strides in cleaning up the mess left in the tsunami’s wake. Despite a universally-acknowledged, decades-long vacuum in competent leadership at the top political organs of government, most Japanese feel that their overall faith in government is warranted.

The current Western attitude toward government, on the other hand, is distrust. (Distrust of private utility companies is perhaps even more deeply ingrained.) Moreover, most Western media will only devote space to covering Japan – now Asia’s “loser,” compared to China – if the story is cute, bizarre, or can serve as an allegory of the West’s own anxieties. Since the aftermath of March 11 doesn’t fit into either of the first two categories, it must be adapted to the third. The archetype of the State-that-cannot-be-trusted, the Trickster government, is imposed on the narrative, and dominates it. (Or else the State as Fool, e.g. for its tragic ignorance of 1,100-year-old disasters.)

In the Touhoku disaster, these differences become entangled with differing attitudes toward nature as well. Japanese view nature as both beautiful and hostile. The risks of our life within it are acknowledged and accepted. There will be disasters, but with hard work, improvement can come step by step. The West, and America most of all, is more optimistic: the natural world is inherently perfect, or its imperfections manageable with science (the “newer,” the better, of course). So whatever the risks that people may take, if something goes wrong, someone must be to blame.

Japanese are prone to asserting that there isn’t any religion in their country. Americans pride themselves on its abundance in theirs. But the society that believes good governance is proof against acts of G-d is not at all the one those stereotypes suggest.

Image Credit: Author. The Iwate coastline, north from Kita-yamazaki, in better days.

[UPDATE: 2011/05/08: On 2011 May 5 -- late in the news-slow "Golden Week" national holiday period -- it was revealed that TEPCO might not have been so blameless as earlier thought in regards to the causation of the accident. Some news outlets (including TV Asahi and Tokyo Shumbun) revealed that when the Fukushima Dai-Ichi plant was being planned, the government had suggested that TEPCO use a site elevated 35 meters above sea level. For the sake of "cost efficiency," TEPCO excavated 25 meters of soil, bringing the plant's elevation down to 10 meters. The purpose was to lower recurring costs for using sea water as coolant, and for loading and unloading supplies, equipment, etc. from ships visiting the port built to service the plant. The tsunami that hit the plant was 15 meters high. I will discuss this more in a later post. Suffice it to say that while this affects the question of actual causation, it doesn't affect the current post's analysis of the Japanese reaction to the incident during March, based on what was publicly known about causation at the time.]

More after the jump.

During the 2008 presidential election, Sarah Palin submitted to an interview with a [...]]]> As someone who thinks and writes about transitional justice issues, I have been far more interested in recent events in Sudan than those in Tunisia, Egypt, Libya, Yemen, Bahrain, Saudi Arabia, and Jordan (more on this in later posts), but that doesn’t mean I have not been watching in wonder and admiration the events unfolding in North Africa and the Middle East.  I think we all have; and those are easy intellectual emotions to justify.  What I have been more conflicted about is whether it is also appropriate for us to feel a bit of pride.  I think it is, but not for the reasons many conservatives have been trumpeting. 

More after the jump.

During the 2008 presidential election, Sarah Palin submitted to an interview with a painfully smug Charlie Gibson, who asked for her views on “the Bush doctrine.”  It was a question so obtuse and ambiguous that it could only invite the appropriately annoyed and short response it got, which I shall paraphrase as “Which Bush doctrine do you have in mind Charlie?”  Despite the assumptions of Palin’s critics, definite articles have no place introducing the phrase “Bush doctrine.”  There are many.  A policy of preëmptive war is certainly one; but there are others, including a theory of accessory liability for states that harbor or associate with terrorist groups and, most relevant for the present circumstances, his own version of the geopolitical theory of dominoes in fashion during the Cold War. 

The Bush domino doctrine served as one of the back-up justifications for the invasion and occupation of Iraq, the theory being that if Iraq became a stable constitutional democracy then the rest of the Middle East would soon follow.  In the wake of relatively peaceful revolutions in Tunisia and Egypt, rising protests in Yemen and Bahrain, an apparent effort to bribe away murmuring dissent in Saudi Arabia, and a more bloody revolution in Libya, we have been audience to inevitable crowing from Bush’s supporters and renewed skepticism from his critics regarding the accuracy of this Bush doctrine and the wisdom of the policies it helped to justify.  I have no intention to enter this debate, in part because I view efforts to identify a single cause in the complex ecosystems of world-historical events as a fool’s errand, but more because I want to focus on another Bush doctrine, which he described forcefully, if not eloquently, in November 2003 and in December 2005:

I recognize people have—I fully recognize that some say it’s impossible, that maybe only a certain kind of people can be—can accept democracy. I just—I reject that. I don’t agree with that. I believe democracy—the desire to be free is universal.

The fundamental tenet of this Bush doctrine, as I understand it, is that certain commitments key to the American experiment inherited from Enlightenment liberals have a universal salience.  There is no doubt that Americans in 1789 and Americans today fail to live up to these ideals.  We should, then, be humble and always striving toward greater perfection; but we ought also be proud, more so now, I think.  

I am on record here and here for the view that the United States Supreme Court ought to consider international and foreign views on a narrow set of constitutional questions that engage fundamental moral norms.  My attachment to that view is Habermasian in spirit: we are more likely to get closer to the truth on these matters by expanding the conversation to include more people with an interest in the outcome.  The pride I think we can feel in recent events is born of that same spirit.  As people across North Africa and the Middle East fight for many of the rights, freedoms, and political liberties that our forbears identified as truths universal and self-evident, it seems to me that we ought to be proud, not because we did it—that’s the wrong Bush doctrine—but because when a people, in a moment of political and historical opportunity, pursue human rights, democracy, and the rule of law, we can feel ever more sure in our own continued pursuit of these ideals.