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The Failure to Negotiate Effective International Measures Against Transnational Bribery

I. INTRODUCTION
Despite years of negotiations aimed at addressing transnational corruption, the international community has failed to establish an effective international legal regime to curb the problem. After providing an outline of the problem and a brief history of attempts to address it, this Commentary considers some possible explanations for the international community’s continuing inability to negotiate an effective agreement to crack down on firms that bribe foreign officials. The Commentary concludes by speculating that an institutionalized enforcement mechanism might provide impetus for an agreement.

II. THE PROBLEM
A. The Problems of Corruption
Corruption, “the misuse of public power for private profit,” can include practices as diverse as nepotism, patronage, misappropriation of resources, abuse of insider information, extortion, and money laundering. International attention, however, has focused largely on bribery. Of particular importance is bribery involving high government officials and procurement, privatization, or other large-scale public decisions, also known as “Grand Corruption.”
Although once accepted by some as useful “grease in the wheels,” corruption is now almost universally seen as both harmful and immoral. Corruption has been condemned by major world religions and international institutions, and bribery of government officials is illegal in almost every country.
Corruption hurts economic growth and development, creating market inefficiencies by allocating resources based on bribery rather than merit. The corruption of regulatory systems not only transfers resources from honest people to unscrupulous ones, but can also put health and safety at risk. Widespread bribery undermines “public perceptions of how—and how well—a proper market economy works,” inhibiting liberal reforms and the rule of law.

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Article Responses

The Emergence of a Transnational Real Estate Market

Olivier De Schutter’s The Green Rush: The Global Race for Farmland and the Rights of Land Users discusses how the conquest for arable land affects the local population in countries on the sell side of these transactions. He suggests three possible scenarios that may result from these transactions and explains why his reform proposal is superior to the others both on humanitarian and environmental grounds.

In these remarks, I will briefly summarize the main contributions of Professor De Schutter’s article. I will suggest that all three scenarios assume, at least implicitly, that the transactions can be explained in terms of simple market-based supply-and-demand models that reflect increasing food prices fueling a greater demand for land, filled by countries that have an excess of arable land and a need for foreign direct investment. Professor De Schutter suggests that there are costs involved with this model – indeed he points to classic externalities: those currently occupying or using the land – typically small peasant holders, herders, indigenous people and other marginalized groups that do not have much of a voice – will be dislocated. In addition, these transactions push towards large-scale agriculture, which is not necessarily the most environmentally sustainable form of land cultivation.

In my comments I would like to emphasize some points that may not be fully accounted for in this supply-and-demand scenario.

First, while the hunt for arable land for food may explain many of the large transnational land deals, they appear to be part of a deeper structural change – the emergence of a transnational real estate market. What explains this change?

Second, if the supply/demand story was sufficient for explaining transnational land deals, we should observe primarily countries with excess land getting into this market on the sell side. However, available data on transnational land deals suggest that many more countries are selling. Why is that? Conversely, on the buy side we should observe countries that cannot meet their current or future demands on world markets. However, this does not appear to be the case either. While many of the origin countries of major land acquirers – most of which are private – may face fuel or food shortage in the future, many other countries share that too, and yet they, or rather investors from their countries, are not buying land to meet those demands. So who is buying and why?

Finally, supposing that scarcity of arable land is indeed at the bottom of the “Green Rush,” then the relevant policy question is whether the market mechanism – even in the modified version that Professor De Schutter advocates, which makes land occupied by marginalized groups essentially nontransferable – is indeed best suited for dealing with the problem of scarcity of this particular good.

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A Response to Duncan Hollis, An e-SOS for Cyberspace

Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper, An e-SOS for Cyberspace, that an analogous system should be established to respond to cyber distresses. Traditionally, an SOS call required ships in the area “to ‘proceed with all speed’ to provide whatever assistance” they could. Hollis argues that “international law needs a new norm for cyber-security: a duty to assist, or DTA.” This duty to assist (DTA) would be much like an SOS in maritime law, in that it would “marshal[] sufficient resources to avoid or at least mitigate . . . harm as much as possible.” Under Hollis’ proposal, individuals, businesses, organizations, and/or states should have a similar ability (and a similar corresponding duty) to seek and provide aid to the victims of cyber attacks. If the DTA is effective, Hollis argues that it will not only help avoid or mitigate cyber harms but that it will also act as a deterrent by making attackers “think twice about whether it is worth the effort to attack at all.” Hollis is careful to make clear that he does not “expect any resulting duty to remediate all threats nor to operate in all contexts,” but he lays out a framework, inviting the international community to accept the apparent need and to craft a solution that will provide the assistance required.

Recognizing that Hollis’ project here is not to propose a complete solution but merely a framework upon which to build, I will focus my comments on four points in Hollis’ paper: proximity, frequency, technology protection, and the continuing problem of attribution. While these four points are fundamental to Hollis’ proposal, I believe that they also present some difficulties.

 

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The Language of the Age

I.       Introduction

One of the most memorable images of the Egyptian Revolution is that of hundreds of people lined up for Islamic prayer in Tahrir Square in Cairo, in Alexandria, and in all of the other cities around the country. Hundreds organized into neat rows, standing, bowing, and prostrating in tandem to perform Islamic ritual prayer as they endured assaults of hot gushing water and tear gas by riot police. For a number of political analysts and commentators, such images of public religiosity and religious performance throughout the course of the Egyptian Revolution proved to be challenging, if not confusing. For some, it appeared paradoxical, if not incongruous, that despite the decidedly prominent role of expressions of Islamicity, whether through forms of expression of Islamic identity, such as collective prayer, or the invocation of Islamic symbolism, or the usage of Islamic phrases, the Egyptian Revolution was not a call for a theocratic government or an Islamic government. However, what is beyond dispute is that although the Muslim Brotherhood did play a limited role in the revolts, the Egyptian Revolution was not led or engineered by Islamists to bring about an Islamic state modeled after Iran or Saudi Arabia.

Nonetheless, the display of religious symbolism was not simply an expression of cultural proclivities devoid of normative ideological commitments. To the contrary, Islam, and more particularly Shari’a, which embodies a set of values and normative commitments, played an important role in fueling and engineering the Revolution, and all indications are that it will continue doing so in the future. To the extent that this dynamic seems to be fundamentally paradoxical to many in the West, the Egyptian Revolution serves as an important indicator that we need a complete paradigm shift in the way we view religion and society, and religion and politics, especially as to the role of Shari’a in the age of revolutions in the Arab world.

. . .

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After the Last Judgment

The ancient Egyptian Goddess Maat, who represented truth and justice, carried with her the Feather of Truth. In the last judgment, the feather was used to weigh the hearts of the deceased. If their hearts weighed less than the feather they would pass the first test in their journey to the afterlife. If their hearts weighed more, then they had no hope of continuing on into the afterlife. [1]

I.       Introduction
On February 11, 2011, Vice President of Egypt Omar Suleiman announced on state television that President Hosni Mubarak had resigned from the office of president.[2] After only eighteen days of mostly peaceful protests, Egyptians surprised themselves and the world by removing one of the longest-living and most brutal dictators in the Arab world.[3] The pharaoh had been judged and found wanting. Few people had expected the demonstrations that started on January 25, 2011 would result in Mubarak’s resignation[4] or influence other demonstrations throughout the region.[5]

Almost immediately after Mubarak’s removal, there were calls by various human rights groups and non-governmental organizations to implement large-scale reforms in Egypt that would guarantee Egyptians’ liberties and freedoms. This article will focus on one subset of the reforms being advocated—amending the Egyptian Constitution. Full discussion of this complex topic would require book-length treatment. This article initiates the discussion by highlighting a few key issues. We begin by providing a brief overview of the Egyptian Constitution. We then discuss some of the main amendments that the Egyptian Constitutional Amendment Committee proposed and that were recently adopted by public referendum. Finally, we recommend a few other amendments that Egypt should consider after parliamentary elections take place.

. . .

[1] See Miriam Lichtheim, 2 Ancient Egyptian Literature: New Kingdom (2006).

[2] Chris McGreal & Jack Shenker, Hosni Mubarak Resigns—and Egypt Celebrates a New Dawn, guardian.co.uk, Feb. 11, 2011, available at http://www.guardian.co.uk/world/2011/feb/11/hosni-mubarak-resigns-egypt-cairo.

[3] Sultan Al Qassemi, Op-Ed., Gulf States Must Repay Egypt Favour, Al Jazeera, Feb. 17, 2011, http://english.aljazeera.net/indepth/opinion/2011/02/2011214151229281695.html.

[4] Id.

[5] See, e.g., Amran Abocar, Analysis: Saudi Arabia, Jolted by Egypt, Now Alarmed by Bahrain, Reuters, Feb. 17, 2011, http://www.reuters.com/article/2011/02/17/us-bahrain-saudi-idUSTRE71G4JJ20110217; Ian Black, Muammar Gaddafi Lashes Out as Power Slips Away, guardian.co.uk, Feb. 21, 2011, available at http://www.guardian.co.uk/world/2011/feb/21/libya-protests-bloodiest-yet-gaddafi; Djiboutians Want President Out: Protests’ Shockwave Hits Syria and Djibouti, Al Arabiya News Channel, Feb. 18, 2011, http://www.alarabiya.net/articles/2011/02/18/138195.html.

 

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Public Corruption and the Egyptian Revolution of January 25

The January 25 Revolution, as Egyptians call it, is the fourth Egyptian revolution in the last 130 years.  The modern Egyptian national movement has consistently sought three goals: self-government in the basic sense of allowing Egyptians to be in charge of public offices; independence in the international community and effective domestic sovereignty, in particular with regard to the national economy and the ability to secure a more egalitarian distribution of national wealth and income; and governmental accountability to the people of Egypt.  While Egypt’s prior revolutions secured, to a certain extent, the first two goals, contradictions between the desire for national independence and the desire for democracy ultimately led to the Free Officers’ Revolution of 1952.  The Egyptian people discovered, however, that in the absence of internal democracy, it was impossible to preserve the gains of the previous revolutions.  The January 25 Revolution therefore affirmed the centrality of democracy to the Egyptian national movement, not just as a utopian goal—one whose practical implementation would be indefinitely deferred—but rather as the foundation for a modern, independent, and prosperous Egypt.

The Mubarak regime was the last breath of the Free Officers’ Revolution.  The Mubarak regime systematically stifled the development and maturity of democratic and egalitarian norms which are immanent in Egypt’s modern legal and political history, even as the regime paid increasingly grotesque lip service to democratic forms.  The spread of corruption and torture represented the grossest and most palpable failures of the regime to live up to the aspirations of the Egyptian state: Egyptian law prohibited both financial corruption[1] and torture,[2] yet Mubarak used his powers under the Constitution of 1971 to subvert the enforcement of Egyptian law in order to benefit himself, his family, and their allies.  It is not surprising, then, that eliminating torture and public corruption were issues that galvanized Egyptians during the January 25 Revolution.  With the resignation of Mubarak on February 11, 2011, Egyptians have now turned their attention to how the Egyptian state can recover public property from the possession of corrupt officials of the ancien regime.[3]

A quick glance at poverty in Egypt explains why corruption was such a central concern of the January 25 Revolution. In the early 1990s, Egypt began to implement structural adjustment reforms to its economy at the behest of the International Monetary Fund (“IMF”), and the Egyptian state embarked on a campaign of privatization of state-owned firms combined with a substantial reduction in the state-provided safety net and state investments in education and health.  As a result, and despite the generally high marks Egypt received from the IMF, the rate of Egyptians living on less than $2 per day remained at a stubbornly high 20%, and real wages for the working class stagnated.[4] Benefits of growth during the Mubarak era generally went almost exclusively to those sectors of Egypt that were already relatively well-off, and the class of crony capitalists close to the regime especially benefitted.[5] Consequently, both the working classes and the upwardly-mobile but politically disconnected professional middle classes could easily unite behind a revolution committed to the elimination of public corruption. The working class blamed the public sector’s failures on the corruption of Mubarak cronies who were appointed as managers of state-owned firms. On the other hand, the upwardly mobile professional classes could identify corruption as a primary cause holding back Egypt’s international competitiveness and an immediate threat to the value of their greatest asset—their human capital.

The widely held view that the corruption of the Mubarak regime was debilitating Egypt’s ability to compete internationally also reinforced the deep desire for a genuine system of democratic accountability[6]: Egyptian law already prohibited financial corruption of public officials, but Mubarak’s presidential powers effectively insulated himself and others from the reach of Egypt’s otherwise broad set of anti-corruption laws. . . .

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[1] See, e.g., Constitution of the Arab Republic of Egypt, 11 Sept. 1971, as amended, May 22, 1980, May 25, 2005, March 26, 2007, March 30, 2011, art. 95 [hereinafter Egypt Constitution]; Law No. 62 of 1975 (Illegal Profit-Making) Al-Jarida Al-Rasmiyya, 7 July 1975 (Egypt); Law No. 38 of 1972 (The People’s Assembly, as amended by Law No. 175 of 2005) Al-Jarida Al-Rasmiyya, 28 Sept. 1972 (Egypt), arts. 23–24; see also Transparency Int’l National Integrity System Study, Egypt 2009 40–43, 54–56 (2009), available at http://www.transparency.org/content/download/50747/812368 [hereinafter 2009 Transparency Int’l Study] (providing a detailed overview of Egyptian law’s extensive prohibitions against public official corruption).

[2] In 1986, Egypt acceded to the U.N. Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, and the treaty went into effect in 1987.  See Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment: Egypt, U.N. Office of the High Comm’r for Human Rights, Treaty Bodies Database, http://www.unhchr.ch/tbs/doc.nsf/22b020de61f10ba0c1256a2a0027ba1e/80256404004ff315c125638b005df964?OpenDocument (last visited Mar. 8, 2011). Under the Egyptian Constitution, treaties, once ratified have immediate effect in the domestic legal system. Egypt Constitution, supra note 1, art. 151.

[3] See, e.g., Criminal Court Upholds Mubarak Asset Freeze Order, Al-Masry Al-Youm, Mar. 8, 2011, available at http://www.almasryalyoum.com/en/node/343983.

[4] See Selected World Development Indicators, in World Bank, World Development Report 2010: Development & Climate Change 380, tbl.2 (Poverty) (2011), available at http://siteresources.worldbank.org/INTWDR2010/Resources/5287678-1226014527953/WDR10-Full-Text.pdf [hereinafter Selected World Development Indicators].  But see U.N. Development Programme & Inst. of Nat’l Planning, The Egypt Human Development Report, EGY/01/006, at 27 (2004), available at http://hdr.undp.org/en/reports/nationalreports/arabstates/egypt/egypt_2004_en.pdf. (estimating the percentage of Egyptians living at the $2 per day level to be slightly above 40%); Egypt Ministry of Econ. Dev., Egypt—Achieving the Millennium Development Goals: A Midpoint Assessment 7 (2008), available at http://www.undp.org.eg/Portals/0/MDG%20Links/Egypt%20MDG%20Mid%20Term%20Assessment%20Report%202008.pdf.

[5] Hanaa Khair-El-Din & Heba El-Laithy, An Assessment of Growth, Distribution, and Poverty in Egypt: 1990/91–2004/05, in Egyptian Economy: Current Challenges and Future Prospects 13, 53 (Egyptian Ctr. for Econ. Stud., 2008).

[6] Polling data prior to the January 25 Revolution indicated that although 88% of Egyptians believed that democracy would help Egypt progress, only 4% of Egyptians actually had voiced an opinion to a public official, the lowest figure in the world. Abu Dhabi Gallup Ctr., Egypt: The Arithmetic of Revolution—An Empirical Analysis of Social and Economic Conditions in the Months before the January 25 Uprising 7 (2011), available at http://www.abudhabigallupcenter.com/146888/BRIEF-Egypt-Arithmetic-Revolution.aspx.

 

 

 

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