Fall 2014 Issue

CPR

vol. xiv no. 3

columbia political review

The Role of Empathy in Judicial Decision Making A Conversation with Joyce Banda, former president of Malawi Revisiting France’s “Brain Drain”

Just Compensation?

The Courts Get Creative with Eminent Domain by Cleo Constantine Abram

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cpr Volume XIV, no. 3

masthead: Editor-in-Chief Publisher Managing Editors

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Editor’s Note

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olumbia’s Manhattanville campus has been rising in recent months, obscuring behind panels of gleaming glass the muddy construction site that had scarred West Harlem for years – and with it, a history of rigorous debate among Columbians over our University’s northward expansion.

In our cover story, Cleo Constantine Abram revisits that fading debate, investigating the complex maneuvers between city, school, and landowners that made a massive new campus possible on this teeming island. But in reaching back into the annals of legal history, she also fits the Manhattanville project into a much broader debate about eminent domain – one that has seen its powers deployed with an increasing sense of abandon not just in New York, but across the country. With it, Abram brings to light fundamental tensions in the way the courts seek to balance of community benefits and personal rights.

There are stories, too, in this issue of hired guns in rural Brazil and a canal that will soon be carved through Nicaragua; analysis that reconsiders narratives about France’s waning entrepreneurial spirit, Tunisia’s democratic path, and the fate of rural land emptied in China’s relentless migration to urban centers. In our interview, a former president describes how a childhood spent amongst strong women would later shape her unlikely governance, while the role personal experience in the selection of jurists is debated in our feature on “judicial empathy.”

They’re the kinds of stories you wouldn’t necessarily expect to be told by students in the university bubble, capturing voices from far outside of it.

We hope you enjoy our first issue of the 2014-15 academic year.

Sofi Sinozich

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Angela Chen Michael Greenberg Amanda Kan Bronwen Chan

Design Editors

David Blackman Alejandra Oliva

CPRegards, Gregory Barber Editor-in-Chief

Artists: Lauren Espeseth (pp. 18, 25, 27) Melissa Figuiera (pp. 15-16) Lucy Jakub (Cover, 12, 14) Vivian Qiao (pp. 23-24) Alejandra Oliva

DISCLAIMER: The views and opinions expressed herein belong to their authors and do not

necessarily reflect those of the Columbia Political Review, or of Columbia University.

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An affliated publication

FALL.2014 table of contents Features 4

Cover Story Dictating Democracy The Autocratic Origins of Post-Revolution Tunisia

By Andrew Pasquier

10 Just Compensation?

The Courts Get Creative With Eminent Domain

By Cleo Constantine Abram

14 A Farmer’s Market?

China Rewrites Its Property Laws

By Bingcong Zhu 17 Gunning for Brazil

Private Security Encroaches on Indigenous Land

By Max Ridge 23

Digging With China graduate degrees, compared with one in eight of Nicaragua Lays the the French population as a whole Groundwork For a New Canal

By Dylan Olivia Hunzeker 25

By The Numbers: ~50%: share of French emigrants that have

Emigré Matters Re-Examining France’s Brain Drain

By Kunal Mehta

Briefing: Judicial Empathy 7 Background on the Issue and an Interview with Prof. David Johnston

By David Blackman

Interview 20 An Interview with

Fmr. President Joyce Banda of Malawi

By Kyle Dontoh

$40,000,000,000:

the estimated cost of Nicaragua’s proposed canal.

6%: the share of education.

of Tunisia’s GDP spent on

20,000:

the number of jobs Columbia University claims the Manhattanville expansion will create.

$1,000,000:

the amount Columbia University offered to property holdouts before turning to the courts for a forced sale.

3,700,000: the number of square miles of Chinese farmland.

100%:

the increase in the Chinese migrant worker population from 2006 to 2011.

60%:

the share of Brazilians that say they distrust their police force.

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features

columbia political review :: fall 2014

Dictating Democracy The Autocratic Origins of Post-Revolutionary Tunisia

By Andrew Pasquier Ash-shab yurid isqat an-nizam: “The people want to bring down the regime.”

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his chant, first heard on the streets of Tunis in December 2010 following the self-immolation of Tunisian street vendor Mohamed Bouazizi, signaled the start of a new democratic era in Tunisia. Soon, the same chant was echoed in capitals across the Arab world. Four peaceful years and a constitution later, Tunisia is poised this autumn for their second cycle of elections—elections that people will contest but likely respect.

Though this transition to democracy in Tunisia proved difficult to replicate in other “Arab Spring” nations, Tunisia stands as an example of peaceful democratization.

The reasons for Tunisia’s successful transition are manifold. Some suggest that its relatively small geo-political importance has allowed the nation to escape foreign meddling; others point to the social disposition of the comparatively highly educated Tunisian people. Whatever the exact combination of reasons, the confluence of these various factors in 2011 allowed for it to emerge as the only true democracy in the Arab world. However, Tunisia’s exceptionality in relation to the rest of the Arab world traces its roots much further back than these recent revolutions.

In the peaceful revolution of 20102011, protestors filled the tree and café-lined Avenue Habib Bourguiba.

It is important to consider how the distinctly progressive policies of that avenue’s namesake, the first President Habib Bourguiba, heavily influenced Tunisia’s unique success in the region.

After Tunisia’s peaceful independence from France in 1956, Bourguiba pursued socialist economic policies and liberal social policies that put Tunisia at odds with many of the other states in the region. His regime focused its

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investments on building Tunisia’s human capital through ambitious education and health policies rather than on military spending and resource extraction. Though his powerful yet formative 30-year rule of Tunisia was highly autocratic—for which he should be condemned—his distinct vision for a modern Tunisian state should be examined, for it laid much of the groundwork for the country’s successful transition towards democracy in 2011. Bourguiba sowed the seeds of the Jasmine Revolution with his social and educational reforms of the 1960s and 70s. Fifty years later, the grandchildren of Tunisia’s independence

“Tunisia’s exceptionality in relation to the rest of the Arab world traces its roots much further back than these recent revolutions.” generation have opened the door to democratic reform.

Bourguiba began his political career before independence as a member of the neo-Destour movement, advocating for autonomy and then independence from France. Tunisia’s progressive tendencies, however, began long before Bourguiba and the independence movement. In 1863, popular pressure forced the Bey, or the prince of then-Ottoman-controlled Tunisia, to agree to the first constitution in the Arab world. Later, benefiting from a high level of domestic autonomy during the French colonial period that began in the 1880s, successive leaders pushed for modernization and reforms. The Destour party, founded in

1920 by Abdelaziz Thâalbi, advocated for freedom from French rule, while at the same time embracing a liberalized framework for civil society and a vision for Islamic modernism. Thâalbi wrote that “through a literal, rational, scientific, liberal, and faithful interpretation of the Quran and hadiths the Muslim people will recover their past intellectual greatness,” emphasizing the role progressive Islamic interpretation should take in a modern and liberal Tunisia.

By the mid-1930s Bourguiba was heavily involved in the Destour and Neo-Destour movements that gradually ramped up pressure on the French for independence. Tunisia was peacefully granted its independence in 1956, becoming one of first states in Africa to achieve it. In retrospect, Bourguiba and the neo-Destours’ ability to navigate for peaceful independence allowed Tunisia to avoid the type of bloody militarized struggle that ensued next-door in Algeria. Algeria’s prolonged armed conflict militarized citizens and instilled a rejection of all things French in the population. But in Tunisia, the peaceful path to independence allowed Bourguiba to assume leadership of a country that was embracing the opportunity that came with its newfound independence, as well as take control of the French institutional and infrastructural endowments that remained.

Following independence, Bourguiba’s policies emphasized education, gender equality, and health, placing people at the center of his national project. Instead of focusing attention on military spending or international diplomatic jockeying, as did the leaders of many other states in the region, Bourguiba pursued policies under his one-party rule that built up the human capital of Tunisia’s citizens. Often compared to Turkish revolutionary and leader Atatürk, Bourguiba recognized with intelligence and pragmatism the need to reconcile Tunisia’s conserva-

columbia political review :: fall 2014 tive Arab-Muslim heritage with his desire to build a modern, developed state.

But such policies did not come without a cost. Bourguiba’s tactics to achieve his progressive goals were uncompromising—his government imprisoned thousands of dissidents, especially from Islamist groups who protested his sidelining of religion and tradition in favor of a secular state. The dictatorship gave him the power to pursue the very human capital programs that would later enable democratization.

Bourguiba’s emphasis on progressive socioeconomic development also led him to adopt neighborly and trade-oriented foreign policies. He realized that Tunisia largely lacked natural resources and strategic significance, making it more beneficial to promote the nation’s economic and political prospects domestically. Instead of playing into the competing ideologies and alliances of the Middle East, he set himself apart from both the conservative-monarchical and the pan-Arabist camps of regional politics. Radically, in a famous speech to the Arab League in 1965, Bourguiba supported a fair and lasting peace in Israel and Palestine based upon the 1947 United Nations Partition Plan that proposed two states. Voiced years before any other

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Arab states considered peace with Israel, such opinions ostracized him from fellow Arab leaders. At the same time, he won favor from Western leaders.

During a state visit to the United States in 1961, President Bourguiba was commended by President John F. Kennedy for being “like President Washington,” who, “when the revolution was won, had the sense of judgment, self-discipline and strength to attempt to bring good will and peace among his people and to the people of the former occupiers of his country and his surrounding neighbors.” Bourguiba understood the importance of maintaining cordial relationships with his country’s neighbors and Western powers, especially with its former colonial power France.

In many ways the lack of physical capital — resources like oil abundant in other parts of the Arab world — made Bourguiba focus on increasing its human capital through programs relating to gender, education and health.

In his post-revolutionary political manifesto Sauver La Tunisie, intellectual Lotfi Maktouf mock-assumes Bourguiba’s domestic policy thought process: “Who is going to attack us?

We have no oil, nor natural gas. And even if our neighbors decided to attack us, we could never stand up to them.

*in 2006

So therefore, let’s focus on education and health. The rest, we can deal with through diplomatic channels.” Though this lack of natural economic and strategic endowments may at first seem detrimental, in the long run this need to focus on human capital benefited Tunisian civil society immensely.

Chief among these investments in human capital was Bourguiba’s strong support for education. Recognizing how essential an educated population was to achieve his vision for a modern, developed Tunisia, Bourguiba greatly expanded education to all Tunisians, opening schools across the country at both the primary and secondary levels. In just the first ten years of independence, enrollment in secondary schooling more than tripled. The system to this day continues to be based off the French Baccalaureate system, although portions of the curriculum have been Arabized. While in neighboring countries the colonial languages were associated with the former oppressor and therefore gradually phased out in favor of a purely Arabic system, Tunisia’s decision to preserve state instruction and the widespread use of French means that much of the Tunisian populace is bilingual. Though ideologically the continued use of French could be labeled as a vestige of colonialism, its presence has been a boon to the business community in Tunisia following economic liberalization in the 70s, 90s, and especially now after the revolution—a factor contributing to the nation’s human capital.

Perhaps most telling of Bourguiba’s emphasis on education are the impressive statistics of his government’s spending in the education sector. By 1970, expenditures on education in Tunisia reached 6 percent of the GDP, higher than that of many developed, let alone developing, countries. Even in 2006, late into the rule of Bourguiba’s more corrupt and militaristic successor Ben Ali, education continued to amount to about 6 percent of GDP while only 1.6 percent of GDP was devoted to military spending. For comparison, in neighboring Algeria, military spending in the same year amounted to more than 5 percent of the GDP while Saudi Arabia currently allots a whopping 9 percent of GDP to military spending.

Bourguiba also enabled Tunisia to take advantage of the female half of its

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features human capital resources by pushing progressive gender policies. The 1956 Code of Personal Status enshrined many rights for women, including the abolition of polygamy, the right to divorce, and consent laws for marriage.

By the end of the next decade Tunisian women had the right to vote, seek public office, and even had access to contraceptives and abortion services that were not even legal in much of the West. Bourguiba’s fight to equalize men and women was even extended to the personal religious choice to wear a hijab. His government actively discouraged the hijab, and went so far as to legally ban it from public buildings like courts and schools. Famously, Bourguiba once referred to the headscarf as “that odious rag.”

This half-century choice to favor investments in his people, through education, equality, and health, over investments in the military meant that upon the 2011 uprising against dictator Ben Ali, the balance between Tunisian civil society and the army or militarized elements was such that democratic change was not violently challenged.

Riddled with neither a massive military with its own political, economic,

columbia political review :: fall 2014 and strategic interests, as in Egypt, nor the proliferation of guns and militias, as in Libya or Syria, the strength of Tunisian civil society was not threatened with violence, and the transition from autocracy to fully free democracy in the last four years has been altogether

“Bourguiba’s distinct focus on investments in human capital provided the key input to a successful democracy.” peaceful.

As an object of consideration for political theories on democratization, Tunisia’s exceptional success proves extremely important to reflect upon. In some ways its current position as the only fully free democracy in the Arab world is explained by the exceptional history of the Tunisian state, both politically and socially, as argued above.

Although it seems paradoxical that the policies of an authoritarian regime

would actually aid in democratic development, Bourguiba’s distinct focus on investments in human capital developed one ingredient towards a successful democracy that, when mixed at last with political freedom and a largely demilitarized society in 2011, enabled a peaceful democratic transition to transpire.

When asked last month after a speech at Columbia University whether the Tunisian government wants security assistance from Western powers in light of a recent rise in domestic terrorism (like the 14 military deaths from an attack last July), current interim President Moncef Marzouki replied that he trusts in the peacefulness of the Tunisian people, so “terrorism is not a threat.” Instead, he believes that the main threat to Tunisian stability is economic, and asked for private and public investment from the West—money, he thinks, that “won’t just be an investment in factories, but an investment in peace.”

The United States, and others, would be wise to listen to Marzouki’s words. Although certain inherent factors about Tunisia, such as poor natural resources or little strategic import may originally have set back national development, this less-than-ideal situation prompted Bourguiba and his successor Ben Ali to invest heavily in domestic human capital and promote civil society in areas like education, gender rights, and health. Looking forward, it is critical that the international community and Tunisia itself focuses on maintaining and expanding these elements that have proven to be the crucial components to establishing a successful democracy in this conflict-ridden part of the world. •

Andrew Pasquier is a sophomore at Columbia College studying political science and economics. His interests include economic development policy and the post-Colonial Francophone world. He spent this past summer living and working in Tunis, Tunisia with the Red Crescent and Tunisie Recyclage via AISEC (L’association internationale des étudiants en sciences économiques et commerciales). He can be reached at: asc2177@columbia.edu

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briefing

columbia political review :: fall 2014

Judging The Judges

A Look at the Judicial Empathy Debate

By David Blackman

Background

What is Judicial Empathy?

P

erhaps the most lasting legacy of an American President is not his landmark legislative achievements or his administration’s development of the nation’s foreign policy but his judicial nominations. From the Affordable Care Act to Same-Sex Marriage, increasingly it seems like nine voters rather than 300 million Americans have ultimate responsibility for the most pressing social and policy issues of the national agenda. This reality behooves Americans to think about difficult questions: What is the law? How should the most important cases be decided, and by whom? What are the foundations of the American legal system?

Barack Obama has made it clear that he believes that empathy is the most important characteristic for a federal judge to possess, while his critics decry empathy as partiality and extra-legal activism. At the heart of the debate over so-called “judicial empathy” is a fundamental disagreement about what it means to judge a legal issue—a disagreement sharpened and highlighted along partisan lines. On the one hand, there is a conception of the legal world as a social system, molded by, and therefore contingent on, the type of people who populate it; on the other, there is a legal world that should be as divorced as possible from the obscurities and partialities of human beings so that it might be as fair as possible.

In this feature, the two sides of this debate are explored, and David Johnston, Professor of Political Science at Columbia University and author of (most recently) A Brief History of Justice, offers an alternative analysis of judicial decision-making that goes beyond the partisan paradigm. •

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ustice is, as Barack Obama said, not just “some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” A system of legal justice must be based on a system of moral justice, or else it becomes nothing more than an abstract geometry used to normalize unjust social relations. There can be no law without social and ethical content, and therefore there can be no legal reasoning without moral reasoning, which requires empathy.

Indeed, legal justice that fails to correspond to moral justice is not deserving of the name; for example, everything that the Nazi regime did was “legal” according to their own legal system. Yet in this case legality fell so far from that which constitutes the pale of moral justice and respect for natural rights that it could no longer be considered a “justice system,” and

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here can be no justice without fairness. This fairness, America’s cherished notion of “equality before the law,” must be considered the fundamental basis of the legal system. As such, those who decide cases must hold themselves to as high a standard of impartiality as possible.

Perhaps true impartiality is impossible: it seems inescapable that, as human beings, judges will be influenced to some extent by extra-legal concerns.

However, this reality means not that judges should abandon legal reasoning and descend into partiality, but rather that they need to be even more careful to hold themselves to a high standard of impartiality.

Responsible judging means not accepting the presence of bias under the guise of “empathy” but working vigilantly to avoid such bias.

therefore was justifiably prosecuted ex post facto by the Allied powers.

It is a fiction—perhaps a comforting fiction, but a fiction nonetheless—that holds law to be a self-contained, autonomous system of thought, resting on its own foundation. At its core, law deals with people, with human conflicts, and rests on socially held norms of right conduct; as such, divorcing the legal system and its process of reasoning from her natural spouse—the social realities and ethical concerns of the systems’ constituents.

Judging is not Umpiring; questions of law are not answered simply by applying a formula of “legal reasoning” to a given set of facts. Rather, judging requires an understanding of the real-world consequences of a given decision and the application of a moral calculus to those results, or in sort, it takes empathy. •

The role of the judiciary is not to shape society in the way they, a group unresponsive to the democratic process, see fit, but to interpret rigidly the laws created by the political process in relation to the Constitution. Judges need not apply their own social and moral norms but instead should adopt the norms contained within the Constitution and the laws of this nation, using legal reasoning to deduce the results from the statutes and facts of the case.

To say that judges ought to start from the implications of a decision and come up with a decision that fits their preferred outcome gets the whole legal process backwards. Unless judges start from facts and laws and reach decisions from legal reasoning, we risk politicizing the legal system and thereby losing the integrity of the law. •

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columbia political review :: fall 2014

briefing

Interview

With Prof. David Johnston The confirmation hearings of Kagan and Sotomayor brought the issue of judicial empathy into mainstream public discourse, but there’s also obviously an ongoing academic conversation on this topic. How closely to these two dialogues relate to each other?

First, there is expertise that I don’t have; I’m not a scholar of the court. But there is a discussion about judicial empathy and its importance, especially on the high court, and it does mirror the discussion in the press in part. I think there is a more relevant issue though, which neither latches onto completely, but that is really significant and has to do with social understanding. There are assumptions that Justices make about the world in which they live. Let me give some examples. The Court that decided Lochner v New York in 1905, a landmark freedom of contract case, thought of markets as natural forms and based their reasoning on this idea of the market as natural. Or the fact that for much of history women were not allowed to testify in court, because a certain social worldview held that women were naturally unreliable and that therefore their testimony couldn’t be trusted, much in the same way that during the OJ Simpson trial the jury seemed to completely disregard the testimony of the Los Angeles Police Department, because, in

THE SPECTRUM OF OPINION:

a visualization of opinions on the importance of empathy for Federal Judges

their social imagination the police were untrustworthy. Empirically, the testimony of women is still much less likely to be believed in the United States, both by men and women—even female jurors are less likely to trust female testimony. So there’s a sort of social imagination driving legal decisions, socially held ideas and a certain worldview that inevitably color legal practice. And this importance of social imagination is something that is very much absent from the way that we talk about judicial empathy.

In your experience then, how do judges actually approach cases? Does a certain worldview color their thinking so that they see the facts of the case and decide upon an outcome, and then confabulate legal reasoning for it? Or, as is more “traditionally” thought, do they take the facts of the case, apply a relevant legal framework, and reach a decision?

Well this dichotomy misses the point, because the way Justices read the law is in the light of their assumptions of the social world. That is to say that the legal framework itself is a product of a social worldview. Words are ambiguous; the whole point of judging is that words can be interpreted in many ways. What the social imagination does

is to influence a judge to read some of these ways and ignore others. It is not necessarily a conscious process. A particular set of assumptions about the world, and particularly about the social world, permeates every part of the legal process—facts, reasoning, and outcome.

So are judicial decisions, especially landmark decisions, the product of general social change that has already occurred? Or, like for example Brown v Board, do they instigate new sets of assumptions about the nature of the social world that then become generally accepted?

I would say that typically—not always, but typically—decisions, including landmark decisions, are the culmination of a process of social and intellectual development that takes place outside of the courts. For example, going back to Lochner, the decision applied Freedom of Contract to the interpretation of the United States Constitution. But this was in 1905, and it has been credibly argued that the high point of Freedom of Contract was in the late 1870s. In fact people like [British Reformer and Academic Thomas Hill] Green in “Liberal Legislation and the Freedom of Contract” had already provided the important intellectual cri-

“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

Samuel Alito Associate Justice, Supreme Court

“We need someone who’s got the heart, the empathy, to understand what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old, and that’s the criterion by which I’ll be selecting my judges.”

Barack Obama President of the United States 8

briefing

columbia political review :: fall 2014 tique of Freedom of Contract in 1881.

So the court is generally slow to incorporate changing assumptions about social arrangements. Brown was actually the product of a lot of intellectual groundwork, even though it seemed like an aberration or a departure at the time. For example the Army had already been legally desegregated under Truman; Brown didn’t lead the social change, though it of course precipitated more of it. So I would say that that even landmark decisions tend to be later, often much later, results of changing social imaginations.

So given the increasing pace of change is the court then going to be increasingly irrelevant, or pressured by general public opinion? Or just seen as out of touch with the real world, as they were accused of after the Aereo [American Broadcasting Companies, Inc. v Aereo, Inc. (2014)] case this past April (April 22, 2014)? What about an issue like Net Neutrality?

That’s an interesting question. I’m not sure I have a good answer for that, but certainly the increasing complexity of legal issues—and the increasing technical complexity of legal issues— makes the decisions more difficult and visible. In the specific case of Net Neutrality, the issue intertwines the court’s understanding of technology, which it probably gets totally though briefs, and its understanding of market systems, which it probably considers as fixed.

Now I personally think that market systems also can change quite a lot, and do, but the court probably treats their

understanding of markets as fixed and tries to apply it. So this would tend to make the court more conservative—not in the political sense of Liberals and Conservatives, but in the sense of the pace of change—and slower in applying new ideas of social arrangements to the law.

So is this [slowness] a major weakness in the court, then?

I would say it’s definitely a weakness, but not necessarily a major one.

Do you have any closing thoughts on the way the judicial empathy debate has played out?

Yes: It has been interesting to see over the last 30 years how the public presentation of decisions, especially those of the US Supreme Court, a focus of great interest in this country, has changed and been shaped to the point where it is now. We have a very activist court that is politically conservative, possibly more than any court since the very early days of this country—essentially legislating from the bench—but the popular imagination has managed to take the court’s activities as not radical, and understand them as and make them something not radical. There has been this concept, this narrative, that because these people are Conservative—by which I mean the court has a Conservative, albeit narrow Conservative, majority—that then they are also conservative in employing the law.

When [Chief Justice John G.] Roberts claimed (clearly falsely) in his confir-

mation hearings that he was just there “to call balls and strikes” I cannot believe that he, in his mind, meant it; and of course he was at a Congressional confirmation hearing, and that is the sort of thing he was expected to say at a confirmation hearing, so it’s hard to read much into it, but that he then has managed to exercise a great deal of activism yet there is this story about how they [the Roberts Court] are not [exercising a great deal of activism]. And I do not think that the Justices actually think of themselves as engaging in activism, but are instead doing what I described earlier—being influenced by a certain understanding of the social world around them, but the product, if we step back and look, as been extremely activist from this outside prospective.

Why do you think this narrative exists, and how has it happened?

Well probably the The Federalist Society, a conservative association of lawyers, which has been active in the past 30 years is the single most identifiable actor in creating and sustaining this narrative of the Conservative court, and promulgating it. But there is obviously a social motivation for doing so, in that it legitimates the law as apolitical and legitimates a certain ideology. It is the same reason why the Tudor Kings created this narrative about Richard III as so depraved—he was the rival who had been overcome, so when he imprisons or beheads people it’s tyrannical, whereas the Tudors can do what they want. So it’s clearly a political narrative, for political purposes. •

“‘Empathy’ is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.”

Karl Rove Republican Political Advisor

"Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it's not law. In truth it's more akin to politics. And politics has no place in the courtroom."

Sen. Jeff Sessions (R-AL)

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cover story

columbia political review :: fall 2014

Just Compensation?

The Courts Get Creative With Eminent Domain

“L

ots and lots of people said to me, why would you want to move there? It’s ugly,” said Columbia University President Lee Bollinger, unveiling the University’s plan to build a 17-acre expansion in the West Harlem neighborhood of Manhattanville. “Nobody else thought it was beautiful.” But as he spoke, neighborhood property owners were fighting against the New York City government’s use of eminent domain to force the sale of their homes to the University. On July 24, 2010, the New York State Court of Appeals reached a decision allowing the use of this particular government power to seize private property for Columbia’s expansion. As Nicholas Sprayregen, one of the property owners forced to sell as a result of the decision, told The New York Times, “It is a terrible signal to other immigrants who look at America as a golden beacon when someone can lose everything they’ve worked for because someone more powerful covets their property.”

Four years later and three thousand miles away, Gayle McLaughlin, the mayor of Richmond, in the bay area of California, proposed a plan to use eminent domain to assist troubled property owners, stemming the tide of foreclosures in the community. The local government would buy the mortgage— forcibly, using eminent domain if necessary—then bring down the homeowners debt, permit refinancing, and pocket the difference when repaid. Opponents, including the American Bankers Association and the National Association of Realtors, used claims of unconstitutionality to stop lending, threatening a “significant contraction of credit availability, particularly in eminent domain communities.”

These cases are two of many that highlight the changing standard for eminent domain in the United States. The power of eminent domain, the authority of local, state, and federal governments to forcibly seize private property, is not today the same power it was one

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By Cleo Constantine Abram hundred years ago. It is not, in fact, the power it was 20 or even ten years ago.

The acceptable uses of eminent domain are now much broader and, therefore, its power much greater—a direct result of the expansion of the standard of “public use,” the most important benchmark for a government’s use of the legal maneuver. The term is derived from the language of the Fifth Amendment, which states that no private property shall “be taken for public use, without just compensation.” The latter has long been interpreted to mean that while a government can force the sale of land, it must compensate the owner at market price. The former, “public use,” is vastly more complicated, and its evolving interpretation is one of the most influential factors in the expansion of eminent domain. In the fertile ground of legal ambiguity, eminent domain

“The power of eminent domain, the authority of local, state, and federal governments to forcibly seize private property, is not today the same power it was one hundred years ago.” has expanded gradually to become the immense power it is today – wielded, by figures like Mayor McLaughlin in Richmond, and President Bollinger at Columbia, in ever more creative and risky ways.

Origins The power of eminent domain is the authority to acquire private property through forced seizure—albeit with important limitations—as opposed to a voluntary exchange. It is set forth in the Fifth Amendment: “no person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This section, called the takings clause, renders the power of eminent domain indubitable, but each individual case— that is, the powers’ limitations—may be called into question. As cities, however, New York and Richmond did not always have the right to use this power. Until the passage of the Fourteenth Amendment in 1868, eminent domain applied only to the federal government.

However, in Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago (1897), the Supreme Court held that the due process clause in the Fourteenth Amendment gave this power, among others, to the states.

But that power came with limitations. The first is “just compensation,” which is considered in most cases the equivalent of “fair market price.” This price may or may not equal the value of the property to the actual owner—a point of great contention in many eminent domain cases. There is, however, general agreement in legal literature that “just compensation” undercompensates the homeowner. In theory, “just compensation” should render the homeowner indifferent to the sale, but by definition eminent domain is only invoked when the owner has refused to sell. As Susette Kelo said when forced to sell her home to the city of New London in 2002, “[it has been] home to my parents and my family for a hundred years. Simply put, there is nowhere else I would rather be.” Our inability to calculate personal meaning alludes to the most important factor we must acknowledge: An eminent domain transaction is a forced seizure, and it must be limited to situations in which the public need for the property warrants such an action.

The requirement of “public use” is the second important limitation on the use of eminent domain, preventing a government from confiscating land with no clear benefit to the community.

However, the Fifth Amendment does not describe precisely what is meant by “public use.” It is this ambiguity that

columbia political review :: fall 2014 has been the fertile ground for eminent domain’s growth over the last hundred years. The most basic public uses are those that can literally be used by the public. In Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago (1897), the city government of Chicago successfully widened a public street, appropriating private land and property owned by the Chicago, Burlington, & Quincy Railroad Company. In Kohl v. United States (1875), the federal government seized land to build a post office, customs building, and other government offices.

As the roles of government expanded during the first half of the twentieth century, this simplistic understanding of “public use” gradually began to grow.

In 1954, the Supreme Court decided in Berman v. Parker (1954) that “public use” could be interpreted as “public purpose,” meaning that the actual institution or property created need not be used by the public, so long as its creation served the public interest. In Berman, the District of Columbia Redevelopment Land Agency had used the power of eminent domain to take a blighted neighborhood area. One aspect of the case would later become immensely important: the commission’s decision to transfer the property to a private company to assist in the redevelopment plans. This became precedent in the seminal Kelo v. City of New

London case in 2005, arguably the most radical expansion of eminent domain to date.

In 2000, the city of New London, Connecticut sought to condemn a property privately owned by Susette Kelo as part of a “comprehensive redevelopment plan,” intending to sell the property to a developer for the sole purpose of generating municipal revenue. In a historic 5-4 ruling, the Supreme Court sided with the city of New London, with a slim majority opinion solidifying the view that “public use” could simply be economic development for the local government or direct community. Justice John Paul Stevens wrote the majority opinion on behalf of the Court’s liberal wing, while Justice Kennedy wrote a concurring opinion that, while not binding on lower courts, outlined a more exacting and nuanced approach.

A court considering an eminent domain case, Kennedy argued, should inquire whether the development in question is “of primary benefit to the developer and private business which may eventually locate in the plan area… and in that regard, only of incidental benefit to the city.” The court should consider whether the parties “show awareness of depressed economic condition and evidence corroborating the validity of this concern,” he said, as well as the “substantial commitment of public funds.”

Furthermore, the government must have considered a variety of development options and have chosen a private developer from a group of applicants, to avoid preferential treatment and pressure.

The problem, in the view of the opposing four Justices, is one of precedent. In her dissenting opinion, Justice Sandra Day O’Connor describes the issues associated with confusing “public use” with vague “public benefit.” She writes: “under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.” By this she means all private property may be given to a new — also private — owner at the discretion of the government.

While the tectonic plates of eminent domain have been moving for a long time, Kelo v. New London radically sped up the process, spawning legislative actions and reactions across the country. Many states have since passed laws forbidding local governments

cover story from taking land for “economic development” purposes, but states and local governments continue to use eminent domain in creative ways to serve the public interest, even if not for strictly “public use.”

Manhattanville In 2003, Columbia University began an immense expansion project into the Manhattanville neighborhood, north of the university’s Morningside Heights campus. To do so, the University involved itself in a lengthy and complex series of legal maneuvers, utilizing the City of New York’s power of eminent domain. In many ways, Columbia’s efforts fall in line with the legacy of Kelo v. New London, playing the role of a traditional private entity and justifying its expansion by facilitating economic growth and development in the area: Columbia University, private developer.

In the post-Kelo world of eminent domain limitations—or lack thereof—the institution’s development goals themselves fall under the umbrella of “public use” in the sense that many would find the economic development inherent in Columbia’s expansion to be in the public interest. In other ways, however, the University goes further, arguing that it offers additional community benefits as an institution of higher education—a public interest beyond mere economic development and thus another basis for claiming its actions represent “public use.” Columbia’s most compelling claim is the educational and civic good it provides to the community, rather than any assertion of economic benefit to the neighborhood—to which, in fact, it may be a detriment.

When the University announced its plans, it owned only 60 percent of the land required, but it successfully petitioned the Empire State Development Corporation (ESDC) of New York State to use the power of eminent domain on its behalf. Justification for this decision fell into two categories: economic benefits and civic good. The ESDC found Columbia’s plans were likely to reduce blight and inspire investment in the area. In an internal presentation, Columbia claimed that the Manhattanville development would create up to 14,000 temporary and 6,000 permanent jobs.

In addition to the economic benefits, the ESDC looked particularly fondly on the civic good brought to a community by an institution of higher education.

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cover story

In addition to the secondary school, Columbia intends to create academic services for the community including “a one stop center for social services that is central, workshops for young people on employability skills, potential business development aid, [and a] hospitality training institute.” The University’s proposed financial contributions to the community are immense: in the West Harlem Benefits Agreement, signed by President Bollinger and the West Harlem Local Development Corporation (LDC) on May 18, 2009, Columbia committed to $76 million for a Benefits Fund over 16 years, $20 million for affordable housing, $4 million toward housing-related legal services, $30 million for a demonstration school affiliated with the University’s Teachers College, and $20 million for access to Columbia facilities and “in kind services.”

Responding to both the claim of economic benefit and civic good, the New York State Court of Appeals considered the question of whether the Manhattanville development met the conditions for public use and “answered in the affirmative.” Furthermore, the court concluded, “the Empire State Development Corporation’s (ESDC) findings of blight and determination that the condemnation of petitioners’ property qualified as a ‘land use improvement project’ were rationally based and entitled to deference… [and] the alternative finding of

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‘civic purpose,’ likewise, had a rational basis.”

However, there are those who refute the claim that the area was blighted in the first place, which, if true, would undermine the university’s argument and the court’s finding. In response to an article by the Columbia Daily Spectator editorial board, in which they asserted that the neighborhood “once consisted mostly of vacant warehouses and manufacturing facilities, and where long blocks with few residences made for unsafe streets,” community activist Tom Kappner questioned Columbia’s assertion that the area was vacant, pointing out that vacancies became much more prevalent after Columbia threatened property owners with eminent domain.

Despite this resistance, Columbia acquired all but two properties through voluntary negotiation; for the two in question, though, the legal struggles were seen as a personal affront. Gurnam Singh, owner of two gas stations on 125th Street, and Nicholas Sprayregen, owner of four buildings used for his “Tuck-It-Away” moving and storage business, had no desire to move their businesses nor sell them to the University. Speaking to The New York Times in September of 2008, Singh’s wife, Parminder Kaur, vocalized the emotional element of the family’s argument: “I don’t want to sell [the stations] for any amount of money. This business is like part of my family. Mon-

ey is not everything. You don’t sell your children.” With emotions running high, negative feelings came to the surface. “[Philip Silverman, a Columbia official,] is treating me like, ‘this Indian family – we don’t know anything,’” Singh told the Times. Columbia rejected the characterization.

According to Singh, Columbia offered more than $1 million for the property and a plan to find a site in Jamaica, Queens. The family felt the sum far too low and the potential location not busy enough. Amar Kaur, Singh’s daughter, spoke on the family’s finances in a way that betrayed the emotionality present even in this part of the argument.

“These properties are the bread and butter for our family,” she said in the same article. “If we lose this, it would be equivalent to losing everything we have in our lives. My parents have put blood, sweat, tears and time for the past 25-plus years to be where we are at in society today.”

Suing together, Singh and Sprayregen claimed that Columbia failed to meet the standard of public use. The New York State Supreme Court found in favor of the property owners, but the decision was decidedly reversed by the Court of Appeals. The appeals court not only found ameliorating blight a public use, but also determined that the civic good of supporting education and research could be in turn supported by the use of eminent domain. In this case, the justification fell into two bins, the first economic development and the second civic good. Columbia argued— and the court held—that each bin could independently have satisfied the standard of public use.

In 2002, University President Lee Bollinger gave his inauguration speech, saying “To fulfill our responsibility and our aspirations, Columbia must expand significantly over the next decade.” Expand it did. But former Columbia Daily Spectator Manhattanville beat chief, Theodora Raymond-Sidel, has a different perspective on the relationship of Manhattanville to what President Bollinger called Columbia’s “responsibility and aspirations.” “There’s an obvious moral quandary here,” she said.

“In doing this, Columbia is shirking its responsibility to the community; President Bollinger is referring instead to the responsibility of Columbia to serve its own interests.” Raymond-Sidel emphasized, “with Manhattanville, Columbia

columbia political review :: fall 2014 is acting against the ideals we espouse as a university.” The question then is: What responsibility does Columbia serve through the Manhattanville development? Who is served by way of this development? A different answer to these questions came to the fore in Richmond, California.

Oakland and Richmond Given these new and evolving legislative constraints, as well as the ever-tenuous financial situation of many small towns and their residents post2008, some governments began to get creative, pushing the limits set by Kelo in other ways. Among the most notable are Richmond and Oakland, California.

On July 30, 2013, Richmond became the first city in the United States to use eminent domain in an effort to stop foreclosures, a move closely watched by bankers, politicians, and homeowners across the country.

The program itself involves a significant amount of legal and financial maneuvering. Consider the hypothetical: a home mortgaged at $500,000 is now worth only $200,000, and the tenant, a resident of Richmond also fallen on hard times, is woefully behind on mortgage payments. The city would buy the mortgage—forcibly, using eminent domain and offering just compensation— from the bank for $160,000, or about 80 percent of the home’s current value.

The city would then bring down the homeowner’s debt to a more manageable $190,000, and permit the homeowner to refinance through a city-sponsored government program. Once the mortgage is repaid—hopefully within a reasonable and agreed-upon amount of time—the city receives the difference.

Banks and other financial institutions claim such a move would be “unprecedented and unconstitutional.”

Opponents include big players like the Securities Industry and Financial Markets Association, the American Bankers Association, the National Association of Realtors, and other large investors. Together, this group submitted an opposition paper in which they wrote, “Such a novel use of the eminent domain powers is unprecedented and would, in our view, not survive the multiple legal challenges that would ensue.” Other threats follow: “it will be much harder to get a loan.” With the banks’ legal rain looming, Richmond officials stood their ground. “We’re not willing to back

down on this,” Richmond mayor Gayle McLaughlin told The New York Times.

“They can put forward as much pressure as they would like but I’m very committed to this program and I’m very committed to the well-being of our neighborhoods.” The name the council chose for the program illuminates the idea behind it: Richmond Cares. When Mayor McLaughlin’s city began its program, it set a controversial and uncertain example for other cities experiencing similar economic issues.

Mayor McLaughlin speaks to the desperation of her city. According to the first of several New York Times articles written on the subject, roughly half of all homeowners with mortgages in Richmond are “underwater, meaning they owe more — in some cases three or four times as much more — than their home is currently worth.” Furthermore, there is little incentive for many of these homeowners to continue trying to keep up with their payments, since the value on their house has dropped precipitously over the last decade. In similar positions — and considering similar solutions — are cities such as Irvington, New Jersey, which passed a resolution in support of the method in July 2013; North Las Vegas, which heard debate on the subject in August 2013; El Monte, California, and Seattle, Washington; Oakland, California.

On November 5, 2013, Oakland residents Rebecca Kaplan and Desley Brooks put forward two resolutions that praised Richmond. Margaretta Lin, special projects director in the Oakland Community and Economic Development Department, gave a report on extant programs in Oakland to help homeowners at risk of foreclosure.

At the same meeting, Mayor Jean Quan cited Oakland’s history of helping residents remain in their homes. But in our telephone interview, Lin described Oakland’s actions as only “support and solidarity for the city of Richmond” and that it was primarily for the acknowledgement of the difficulties of foreclosure; “there was no council action that endorsed the use of eminent domain itself.” She further emphasized that the Oakland Council had “not seriously considered” the measure.

Seriously or not, and although neither plan has yet come to fruition, both Richmond and Oakland have considered uses of eminent domain that would have been wildly untenable

features pre-Kelo. The definition of “public use” has moved from that which could be literally used by the public, to a “public purpose,” to, in the words of Justice O’Connor, “any way that the legislature deems beneficial to the public.”

This case, using eminent domain to buy mortgages, necessitates the understanding that eminent domain applies to non-tangible property and the assertion that “public use” extends to the prevention of foreclosures and keeping residents in their homes.

These two case studies — Manhattanville, New York, and Oakland, California — each demonstrate creative interpretations of eminent domain. Set forth in the Fifth Amendment and limited by the standards of “public use” and “just compensation,” the power of eminent domain has grown to encompass much more than was originally established— what was once used for public parks and spaces is now experimented with for mortgages. In Manhattanville, New York, the city used the power of eminent domain to forcibly purchase two properties in order to sell them to Columbia University. Here, “public use” was considered by the court to be both economic development and the educational and community benefits that come with the expansion of an institution of higher education. In Oakland, California, the town weighed using the power of eminent domain to purchase mortgages on houses in foreclosure.

Here, “public use” would be keeping people in their homes who would otherwise suffer significant financial damage. In each, the term refers to a different community benefit—and both are not uncontroversial. These cases are based on the expansion that became most pronounced in Kelo v. New London, but the evolution had begun long before and will likely continue long into the future.

Cleo Constantine Abram is a senior at Columbia College studying Political Science and Middle Eastern Studies. Among other roles, she served on the Columbia University Senate and founded TEDxColumbiaCollege. Her long-standing interest in law led her to work at Cravath, Swaine & Moore and, eventually, to investigate eminent domain through this paper. When free, she loves to sail and wants to learn to rock climb.

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features

A Farmer’s Market?

China Rewrites Its Property Laws

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hinese director Jia Zhangke’s latest hit, A Touch of Sin, begins with a startling story: in a northern village in China, a man named Dahai begins a solitary campaign against the village chiefs, who have grown rich selling collective property. While his protests provoke no official response, the problem is eventually resolved with blood: Dahai kills all the village officials with a shotgun. The New York Times calls the movie “a story of lives rocked by violence… with visual lyricism, emotional weight and a belief in individual rights.” But solving real-life problems in contemporary China is much more complicated than putting bullets in the heads of a few corrupt officials.

Dahai was attempting to deal with a problem that is similar to the one faced by hundreds of millions of Chinese farmers: because all natural resources in China are supposed to be owned by the state, and all rural land is supposed to be “collectively owned,” it is not clear who is to determine how to make use of these resources. In other words, if property rights are seen as “a bundle of rights,” including ownership and rights of use, then in China the latter is often less clearly attributed to a single party.

Poorly defined property rights can lead to problems – not only does the Coase Theorem tell us that they prevent market players from bargaining freely, but they have also been the at the root of prevalent corruption and rural property disputes in China. But how did ambiguous property rights come into existence in the first place, and what has the Chinese government done so far to tackle the problem?

The Chinese Communist Party defeated the Kuomintang in the late 1940s, a victory that could be largely attributed to the Communists’ promise of land and power to the farmer class. After the Agrarian Reform Law was passed in 1950, not only was land transferred from landlords to farmers,

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By Bingcong Zhu but farmers were also granted the right to sell and lease their land. In the mid1950s, however, a second land reform during the Great Leap Forward compelled individual farmers to join “collectives,” and all rural land has been henceforth “collectively owned.” When Deng Xiaoping’s family-based contract system was implemented in the early 1980s, more than 97 percent of China’s agrarian land was contracted by rural households, marking the separation of land use rights from ownership of the land.

Since then, Chinese farmers have been “contracting” land from the “collective organizations” in the village and cultivating the land on their own.

However, the government or any developers approved by the government can claim the land through the collective organization and turn the “agrarian land” into “urban construction land,” with the agreement of only the organization, not the farmers affiliated with it.

An obvious disadvantage of having a “collective organization” in the middle of the negotiating table is the rent-seeking space it leaves for vil-

“Land reform during the Great Leap Forward compelled individual peasants to join ‘collectives,’ and all rural land has been henceforth ‘collectively owned.’” lage officials: even though compensation will be granted to the farmers, the huge difference between the land’s value as urban construction land and as agrarian land can motivate the collective organization to make decisions regardless of the farmer’s willingness

to accept the compensation.

What’s more, even with good will and the absence of greedy officials, undesirable situations can still develop.

In 2000, the government of Dengfeng, a city in Henan Province, took some land from its farmers on behalf of the Railroad Construction Company of Dengfeng. The compensation fee that the railroad company was supposed to pay the farmers was received and intercepted by the government, which used the money to invest in the railroad and back its share in the railroad operator.

In this case, the government took the compensation “for public good”—it was supposed to make more money out of its investment and serve its community better with a larger budget.

However, as the term “for public good” is poorly defined, it is unclear whether the farmers whose land had been taken should be entitled to more benefit than those who hadn’t lost their land.

So why not just put all the compensation directly in the hands of farmers?

Why are local governments allowed to stand in the way between the new land user and the old one? It makes no sense to blame the central government: for a government that already abolished agricultural tax once and for all, there seems to be nothing it won’t do to maintain the stability within its farmer communities or to prevent an outbreak of discontent among its farmers.

But the situation is not that simple: in provinces such as Guangxi and Anhui, stories of farmers who lose a just-received compensation fee overnight on the gambling table and then find it hard to find a stable job afterwards are never wanting. Other farmers spend the money excessively on renovating the graves of their ancestors or even improving their own future graves.

This, in turn, added pressure to the social welfare system run by the local government.

It would take another three decades for China to see the next big step in its land reform: the Third Plenary Ses-

columbia political review :: fall 2014

sion of the 17th CPC Central Committee under the Hu Jintao-Wen Jiabao administration, held in 2008, called for establishing a market to exchange land operating rights while further ensuring farmers’ rights to use and profit from contracted land. So, after years of underground land operating rights transactions, the transfer of “rights of use” was finally on the table. However, at least two problems remained intact: First, if it is not clear who is getting the operating rights for what, then one prerequisite for Coase’s “free negotiations” is still not met. Second, while the transfer of farmland has become a much easier task, farmers still cannot transfer their “house sites”—a piece of land reserved only for residential purposes—to outsiders without the collective organizations’ permission. As these questions wait to be answered, a potentially substantial windfall for farmers remains locked in the land under their feet.

Why not take a bolder step and allow for the ownership and sale of land?

After all, if China was shown capable of handling the market economy in most sectors after 30 years of central planning, why can’t the government slacken its grip on land transaction as well?

Well, first of all, most countries today have at least some type of restrictions on how their land can be used. After

all, China is not the only country that keeps an eye on whether its farmland guarantees its self-sufficiency. Second, once the land market is completely free, the so-called “collective ownership” would have no role to play, and rural land would be essentially privatized. Also foregone would be the economic foundation for China’s rural self-governance mechanism. This is an insurmountable ideological challenge to the current regime: If collec-

“The on-going rural land reform in China involves dealing with individual interests, historical inefficiencies, and ideological obstacles.” tive ownership of land is how the CPC gained its legitimacy 70 years ago as well as a defining element of socialism – though one with Chinese characteristics – then its absence would require a whole new system of explanation.

A third argument is that individual

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farmers would, in a free land market, have less bargaining power than experienced property developers, and farmers would tend to sell their land as soon as restrictions are lifted. This income would allow them to start living in cities. Once urbanization and industrialization slow down and jobs evaporate, however, there would be no turning back for these new immigrant workers. Free market theories tell us that some trial and error must be tolerated for success. Nevertheless, the facts remain that Chinese farmers are the far weaker party in negotiations, their counterparts are established developers and the government. Partly due to ignorance of laws and partly due to traditions, many of the land transfers in China have taken oral form instead of written form, and few poor farmers clearly understand the terms that developers ask them to agree to. The 2008 Plenum even explicitly proposed the article “rural land transfer should do no harm to farmer’s land contracting rights and interests” to address this information asymmetry.

If a free land market is out of the picture, what other alternatives will be provided to fulfill the “land transfer market” promise? To get a glimpse of the latest progress, we may look at an experiment that is being carried out in Zhejiang and Chongqing. This land

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features transfer system for house sites, by the name of “dipiao,” or “land ticket” basically says the following: If a farmer settled in the city feels that he can’t make a better use of his house site back home, he can reclaim it – that is, turn the house site back to farmland and ask the government to take it over.

When the government approves of the land’s qualification as “farmland,” the land will be included into a land transfer market, and the migrant worker will receive a “land ticket.”

This additional farmland quota would then be transformed into a construction land quota, which would be sold by the government to the highest bidder at a public auction. Among the sales revenue, 85 percent will go to the farmer and 15 percent to the collective organization. The purpose of the land ticket system is to increase the supply of construction land for urban areas while preserving the amount of farmland. Even though the land ownership has not been privatized, rural land resources can still be transferred to the hands of more efficient land users, while providing income for its original users.

During such experiments, rather than feeling excited about making profits in a freer market, farmers often needed to be “encouraged” to sell their

columbia political review :: fall 2014 land operating rights. This has much to do with the traditional view with land as a guarantee of livelihood, a result of historical policy instability: not only was the land the only thing a farmer can count on during ancient times, but with the frequent policy flip-flops since the 1950s, farmers have also come to conclude that a land in the hand is better than two contracts in the bush. As rapid urbanization demands that more paddy fields be turned into shopping malls, Chinese policymakers believe that farmers will benefit much more if they can redevelop their confidence in a trustworthy land market supervised by the government.

Such a land transfer market will also address the problem that China’s “population urbanization” is lagging much behind its “geographic urbanization.” In 2011, China’s population of migrant workers, people who are registered in a rural household but spend most of their time in a city for a living, reached 250 million in 2011, a 100 percent increase from 2006. As the current Xi Jinping-Li Keqiang administration sets out to change China’s decades-long household registration (hukou) system, it is expected that migrant workers will be entitled to more rights as urban citizens. With their land turned into cash, it will be easier

for migrant workers to start a living in cities.

Political observers and land scholars in China look forward to future moves by the Central Committee that will clarify the rural land reform policies for the coming years. Three main expectations include: more securitization forms of land property rights, similar to the land ticket, more mortgage options related to land contract rights, and the marketization of house site transactions. These expectations are based on some noteworthy moves by the administration in the last few years, including the nationwide land rights confirmation (quequan) process that was initiated in 2011 and the aforementioned reform in the household registration system.

We know from basic economics that repeated government intervention often creates sustained inefficiencies. As China’s millennium-long “small farmer” tradition and its more recent struggling with a collective land ownership clash with the insatiable demand for land during its urbanization, the government seems the best protector of farmer interests at least in the current phase.

The ongoing rural land reform in China involves dealing with individual interests and historical inefficiencies as well as ideological obstacles. Eliminating the motivation for corruption and ensuring the rights of farmers require more than melodramatic resistance through violence or foolhardy, simplistic solutions like “everybody get your share.” While the pace of current reforms may not live up to everyone’s expectations, the cautious attitude of the leadership is understandable, given the wise words of China’s former Premier Wen Jiabao: “Any small problem multiplied by 1.3 billion will end up being a very big problem, and a very big aggregate divided by 1.3 billion will come to a very tiny figure.”• Majoring in Economics-Political Science and minoring in German, Bingcong Zhu is concerned with economic and political trends in China, Germany and the States. In her free time, she writes a column for a Chinese newspaper and performs standup comedy. She can be reached at: bs2206@columbia.edu.

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features

Gunning For Brazil

Private Security Encroaches on Indigenous Land

By Max Ridge

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n March 2014, members of Brazil’s indigenous Guaraní tribe attempted to peacefully reclaim their ancestral homeland from a rural rancher. The move proved a temporary boon for the community: The landowner abdicated his property, and the Guaraní began to slowly rebuild their homes in the area, which had been taken over and cleared by ranchers in the 1970s.

The next month, however, armed men with motorcycles and pistols brought a wave of violence against the native community, documented through video evidence and witness testimonials.

Following intense confrontation, the injury of an unarmed woman, and the blockage of medical aid, the Guaraní were forced to abandon their land once again. This aggression against the Guaraní does not only amount to a human rights violation under international law—it also reveals how Brazil’s decentralized private security industry is systematically implicated in violence against indigenous peoples.

Given the context of Brazil’s untrustworthy law enforcement, small security firms complicate the ongoing global discussion on regulating larger, multinational private military and security corporations (PMSCs).

The armed group behind the Guaraní persecution was a small, unidentified private security corporation (PSC) employed by a Brazilian rancher, and its actions were clearly in violation of international human rights norms. The Declaration of the Rights of Indigenous Peoples, which Brazil voted in favor of at the United Nations, constitutes customary international human rights law. Pursuant to this declaration, the armed group’s actions should be considered human rights violations due to the Guaraní people’s indigenous background. The declaration theoretically guarantees indigenous peoples the right to a fair and transparent adjudication process for disputes over ancestral land. The Guaraní claimed the rancher’s lands

as their own due to their tribal connection to the parcel. A year before the incident, the Brazilian government itself actually demarcated the land as Guaraní territory. Moreover, the declaration requires that states obtain “consent prior to the approval of any project affecting [indigenous] lands.”

The prolonged usage of Guaraní land for cattle grazing constitutes an exploitation of resources that legally belong to the tribe. The Declaration is merely one statute under which the ranchers’ use of PSCs was a violation: Brazil is also party to the International Covenant on Civil and Political Rights, the International Labor Organization’s Indigenous and Tribal Peoples Convention, and many similar such agreements. The Guaraní ouster is a human rights violation, then, in direct contravention of laws and treaties to which Brazil is party.

Acts like the assault on the Guaraní reveal a troubling trend in Brazil’s security industry. Private gunmen have targeted—and gone so far as to assassinate—tribal leaders in Brazil.

Ranchers have been employing private security firms to intimidate tribes like the Guaraní for years, often using tactics like crop burnings and lethal

“Brazil is a harrowing example of how weak law enforcement coupled with rampant outsourcing of security contributes to human rights abuses.” drive-by shootings. Explicit reports of “unidentified people” and “private militias” attacking Guaraní homes and burning crops have been made public since 2001. Most strikingly, assassinations and assaults by PSCs hired by ranchers since 1983 have been con-

demned by NGOs, such as Survival International, as human rights violations under the International Convention on the Elimination of All Forms of Racial Discrimination, of which Brazil is, yet again, a signatory. The convention protects “the right to security of person and protection […] against violence or bodily harm, whether inflicted by government officials or by any individual group or institution” [emphasis added]. As “groups,” PSCs give rural landowners the ability to perpetuate an anti-indigenous agenda, motivated by extremely profitable markets for crops like sugarcane, that are grown on indigenous lands.

While it may be obvious that the armed group’s actions against the Guaraní were abusive, unjust, and symptomatic of a deeper trend, taking punitive measures against their crimes is markedly less simple. The specific working definition of what constitutes a PSC, or what differentiates a PSC from a private military corporation, fluctuates from state to state. However, such security firms generally take contracts that outsource physical security or security consulting on behalf of either public or private entities. Due to the sometimes-illicit nature of the industry, many groups (like those which assaulted the Guaraní) go unidentified.

As one of the most prominent sites of PSC-derived human rights violations, rural Brazil represents a harrowing example of how weak law enforcement, coupled with rampant outsourcing of security, contributes to human rights abuses similar to the Guaraní assault.

PSCs are pervasive across Brazil and pose a huge threat to those who cannot protect themselves. Over 18,000 PSCs exist in Brazil, and private security personnel outnumber its military-police force. Earlier in 2014, private security outsourcing on behalf of the Maranhão prison system was implicated in prisoner abuse; in the same year, FIFA organizers worried NGOs and journalists after employ-

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features ing Academi, formerly Blackwater, to train private security forces to quell expected protests at the World Cup. World Cup riot control was later accused of using an excessive degree of force.

But the “private police” problem in Brazil is not a legal one—in fact, Brazil’s regulation of the industry is ironically comprehensive and free of ambiguity or obvious loopholes. For example, Brazilian law defines a PSC as any entity that protects “security of the property of financial institutions and other private or public establishments; security of individuals; and security in the transportation of currency and securities, as well as in the transportation of any other type of cargo.” Private security guards must have a company-issued uniform approved by the Ministry of Justice, have guaranteed life insurance, be of Brazilian nationality, and be directly employed by a Brazilian national. Brazilian PSCs appear to face adequate scrutiny under the law, but any expectation of these

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columbia political review :: fall 2014 laws translating to action on the part of law enforcement is dispelled in the face of contrary empirical evidence.

The critical failure of Brazilian law enforcement contributes to both the prevalence of PSCs and the impunity they face when violating human rights. According to a 2009 Human Rights Watch report, police officers in Rio de Janeiro and São Paulo regularly engage in extrajudicial and execution-style killings while on duty, while some participate in so-called “death squads’ while off-duty in poor favelas.

Perhaps rationally, 60 percent of the Brazilian populace distrusts its police force. In the context of Brazil’s flawed enforcement of the law, the strength of the country’s PSC industry appears more understandable—as do its privileges.

A corrupt Brazilian police force contributes to the impunity PSCs face in situations like the Guaraní assault.

Brazilian police officers often double as private security guards while off duty—and, further complicating

the situation, the Brazilian government is one of the largest consumers of private security. The link between the Brazilian police’s violence, public distrust of police, and small private security corporations is old and well documented, especially in rural areas.

The relationship is explained in a 1991 Americas Watch Report, which states that “The principal source of killing in the countryside is not the police but private gunmen…The perpetrators of these political assassinations operate anonymously, in hit-and-run fashion, and are rarely identified or caught.

In large part this is the fault of the police, who in almost all cases have a casual attitude toward these crimes…

This of course leads the victims’ families and unions to believe that the police are in league with those who hired the gunmen.” The reasons that PSCs, more than twenty years later, can freely continue their behavior towards groups like the Guaraní at the behest of wealthy ranchers is a domestic problem deeply rooted in a flawed

columbia political review :: fall 2014

system of law enforcement. In the case of Gaspem Segurança, another PSC hired by ranchers for approximately $12,700 to assault the Guaraní, it took state prosecutors eight years to implicate the security firm in the murders of two tribal leaders.

If Brazilian law enforcement does nothing to regain the trust of the Brazilian people, wealthier Brazilians will continue to pay for enhanced security.

For the urban rich, this means buying bulletproof cars and escorts. For rural landowners, this means exploiting the growing industry to violently deny indigenous communities the reclamation of ancestral lands. The assault on the Guaraní should serve as a case study, one that implicates Brazil’s flawed law enforcement as both the reason that PSCs are so prevalent in the country and the reason that wealthy landowners can so easily subvert the law through these firms.

The plight of Brazil’s indigenous communities is not only urgent; it also brings complex questions of regulation to the fore. Current language surrounding global PMSC regulation focuses on confronting the multinational nature of the industry. The Guaraní predicament, on the other hand, involves small, decentralized security firms operating in a permissive

local environment, in which local law enforcement, not the law itself, is to blame. The United Nations Working Group on the Use of Mercenaries recently urged countries “to recognize the need for a legally binding international agreement to regulate the use and activities of private military and security companies to complement existing regulations.”

The “existing regulations” in question are largely made up of the United Nations Mercenary Convention, the Montreux Document, and the International Code of Conduct, which the Working Group admitted retain “inadequacies related to registering and licensing, and [lacking] effective and transparent mechanisms and remedies for human rights violations.” The UN working group on PMSCs clearly describes the “transnational nature of PMSCs and the difficulties in ensuring accountability for any violations that may occur.”

While further regulation should indeed be conscious of international PMSCs, Brazil serves as a case study of a purely domestic PMSC landscape.

It is therefore imperative that human rights policymakers incorporate the drivers of the Guaraní struggle into new PMSC regulation. The international push to control PMSCs is not

features

an isolated movement concerned only with large multinationals, and should be seen as directly consequential to hyper-local issues like the indigenous land rights of native peoples.

The Guaraní and their troubles demand the structuring of an international framework that takes into account smaller private security firms to properly regulate defense and security contractors worldwide. An effective framework would address not only headline offenders like Blackwater, but also micro-firms like Gaspem Segurança, along with the very different political contexts in which they both operate. NGOs and journalists have demonstrated that in order to bring reprieve to the Guaraní community, unmonitored, profligate private security activity must be stopped. It is the responsibility of the international community to make this happen. • Max Ridge is a Columbia College sophomore interested in human rights, economics, and behavior. He is currently a features editor at the Eye and a member of the Columbia Neuroscience Society and the improv troupe Fruit Paunch. He can be reached at: mar2272@columbia.edu

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interview

Interview

With Joyce Banda by Kyle Dontoh

H

er Excellency Dr. Joyce Banda served as the President of Malawi from April 2012 to May 2014, ascending to that office from the vice-presidency upon the death of then-president Bingu wa Muthrika. She is also a grassroots women’s rights and education activist, and has turned her attention towards humanitarian efforts since leaving office, and is the founder of the Joyce Banda Foundation.

Banda was Malawi’s first female president, and was named by Forbes as the most powerful woman in Africa in 2014.

Kyle Dontoh: Madam President, thank you so much for interviewing with us. I’d like to first start with your childhood. What experiences did you have that pushed you towards public service and charitable work?

Joyce Banda: In my tradition, the grandmother brings up the first granddaughter. In fact, you take your grandmother’s name. If a grandmother died early, you’d become the matriarch, no matter what age you were. Even your own mother would call you “mom”— my own mother called me “mom.” It pushes you towards responsibility.

In my case, we went into the hospital when I was born, and there was a white midwife, a British woman, who had come to establish a clinic in that area.

The midwife asks my grandmother, “What is the name of this child?” and my grandmother says in response, “What is your name?” Her name was Joyce.

She told me later that she looked at the midwife, at her imposing personality, her uniform, the fact that she had the ability to deliver babies, that she was able to run this hospital, and it straight away it occurred to her that if I took that name I would become someone like that.

KD: Someone strong.

JB: Right.

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The second influence was my grandmother, who was a very, very strong woman — self-reliant. I don’t remember any time in her life when she was not selling something: groundnuts, fish, sugar cane, tomatoes… Whenever I went home she’d give me that to go and sell. So for me, from a very early age, you needed to make your own money.

She also influenced me in the sense that because she was able to make money, she employed men. So she was always in charge — but she was not afraid of working with men under her.

And people from the village used to always come to her household because she had everything — they’d just walk in, cook food and eat, so I grew up with a grandmother who was very generous to the underprivileged.

KD: What experiences led you to want to work on women’s issues specifically?

JB: I had a good friend, Chrissy, who was a year older than me. When she didn’t have enough food at home, we would go and get some from my grandmother’s house, whether my grandmother had given permission or not, to ensure that she had sugar, she had tea, at home.

She was bright, brighter than me.

She went to the village school; I went to the urban school. When we got to the end of primary school, she was selected to one of the best girls’ schools

in Malawi, and so was I. We went to school, and at the end of term we went back to two different towns. The next term, I went back – but she did not.

And as I sit here, she is exactly where I left her, by the road. And just last week, she lost her first child, who was born when she was fourteen. This story really influenced my life insofar as girls’ education is concerned, and insofar as gender-based violence is concerned.

Another really important experience for me was the day I gave birth, the 23rd of January, 1984. I went into hospital, and suffered what was known as a postpartum hemorrhage. In Africa you have all these superstitions, and to suffer from a postpartum hemorrhage means you’re bleeding and cannot stop, so maybe you’ve been bewitched, and you would bleed to death. In my case my husband was able to get hold of a gynecologist he knew, who wheeled me to the [operating] theatre and stopped the bleeding, and here I am.

So my fight against maternal mortality is rooted in the fact that I could have died, but I didn’t die. Why? Because my husband knew that gynaecologist. And yet, there are all the women whose husbands do not know gynecologists—who die.

KD: And here you stand.

JB: And here I am.

KD: So, for those reasons, you not only went into charitable work and started

columbia political review :: fall 2014

interview

your foundation, but you also went into politics, and you moved up quite quickly. What was your motivation for going into politics?

JB: Between 1981 and 2004, I was in the civil society. I spent most of my time looking at what wasn’t going right.

In fact, the day that I went into office, instead of sitting behind the minister’s chair, I sat on the other side [in the gallery], because that’s where I had been sitting, every time I went to fight with him, the minister.

Suddenly, there was an opportunity for me. My husband, who was Chief Justice at time, was retiring, and I said to him, “well perhaps, having seen that I’ve done all this and it doesn’t seem to make any difference, I feel that it is the laws that are having a negative impact on women and children. Therefore, I need to go to Parliament and sit where the laws are made, and help pass laws that help women, and children.”

So I went to Parliament. Fortunately for me, immediately after I was elected, I was also appointed Minister of Women and Child Development. So once I got to Parliament, straight away I championed the passage of the Domestic Violence Bill, in 2006. Then my President appointed me Foreign Minister, and the rest is what you said – Foreign Minister, Vice President, then to President of my country.

KD: A very rapid rise.

As President, you have stressed that one of the keys to economic growth istrade partnerships, as opposed to aid.

But Malawi is a country that is a large aid recipient, with up to 40 percent of the government’s budget, at times, being contributed by foreign aid donors.

So how do you feel about the relationship between aid donors and the Malawian government, how would you characterise that relationship?

JB: I think it is tragic that we have been dependent on aid for so long.

Sometimes I get a feeling that even the aid-givers, they like it when we get aid, because we are dependent. So we never get to build the sort of true independence that we require, because political independence cannot be complete if there is no economic independence.

It is as if I tell you that you can’t run my life, but tomorrow I come to beg you

photo courtesy of Kyle Dontoh for food. You would say, “hmph!” So it is a very awkward situation. So what I have always said that what we need is “trade, not aid.”

So when you are getting into office and finding the economy is in a state of collapse, in disrepair, and I found there was no fuel for a day, there was no foreign exchange – forex – for imports, there was only money for a week.

Companies were only operating at 35 percent of capacity. All this, you can verify. Companies were operating at 35 percent, because they were operating at 35 percent; they were closing down, scaling down, and laying people off.

When I came into office, two million people did not have food. And so there was so much anger with the previous government – this government now, was the same government then – which had just killed twenty protesters. The president had been given 60 days to resign or call for a referendum, on wheth-

er people wanted him to stay. He died before the 60 days was up.

So my first task was to run around to assure the people that we would repair the economy. They were off-track when I came in, with the IMF [International Monetary Fund] program. The currency had gone under, the rate was fixed, so the black market was where you bought the actual position, the actual rate. So all that had to be corrected. During my first 100 days, that fuel was back, forex was back, companies started operating again, and we were back on track with the IMF. I had devalued the currency by 33 percent, because it was necessary, but then, the World Bank had also given us money to cushion that shock.

So indeed, what you were saying, how can a country rely for 40 percent on donors—we don’t have to! Because our country, we have just discovered, is very rich! We have gold, we have titanium, we have rare earths, we have oil,

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interview we have gas, we have bauxite. If only we can exploit these minerals, Malawi would not be in a position where they would need these donors.

KD: I want to ask about the role of Chinese investment in Malawi. There has been a great deal of investment in Malawi by China’s government and Chinese companies: What do you think about this relationship? And what about the relationship with the U.S., in light of the U.S.-Africa Summit back in August, which many people saw as the United States finally waking up to the fact that they have been “left behind” in Africa?

JB: I truly believe that the relationship, between China and Malawi, versus that between the West and Malawi, need to be treated separately. The relationship between the West and Malawi, and maybe America and Malawi, is based on aid and grants, while the relationship between China and Malawi is based on loans. The Chinese insist that they are developing their own country, so they cannot give anything for free.

So the relationship differs for each country. But what I have always said is that we should leave them separate.

The reason why African countries find the Chinese money easy, and attractive, is because there is not the same amount of bureaucracy, and they’re not tied with other things. “You want a check to build a road? You will pay 2 percent interest one day, but here is the check, now.” So while you are still talking to America, for a road, for five years, you’ve turned to the Chinese and the road is already finished. That is the attraction: A lack of strings. And that is what the Americans are saying they have a problem with, because sometimes governance issues are omitted when it is Chinese money.

You will find that more African countries are developing at a very fast rate, because the Chinese have come in. Is that a bad thing? Well, that is something countries need to consider, because in Malawi, it was the last Parliament, the prior sitting, that said, “don’t borrow too much, because at the end of the day our children shall pay.”

So there are all those considerations to be made, but I find that the Americans are indeed trying to race with the Chinese, and it is totally unnecessary. For me, it is unnecessary because, we just

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columbia political review :: fall 2014 need to establish smart partnerships.

We need to ensure that the American government are doing things so that those African countries are satisfied, yes. But to compare this with another country is not fair.

KD: Changing topics, we have heard a lot about communicable diseases in Africa as of late – Ebola, which has taken a lot of attention now, but also malaria, HIV/AIDS, tuberculosis. With Ebola, people have focused on external intervention, whether or not the US is doing enough financially, in terms of providing equipment, medicine, so forth. But we haven’t seen much from the continent itself in terms of supplies, medicine, or, importantly, research towards a permanent solution. In your view, what is the way forward for research in Africa, for fighting these diseases, and how would this be funded, and who should facilitate such efforts?

JB: The biggest problem we have in Malawi is public health. Weak, weak institutions, across Africa. But as far as Ebola, and other diseases, are concerned, it is also the time it took to respond. I saw a report, just today, that said that these countries in West Africa were warned as early as April to watch Ebola. Then, it was just one to two cases. By the time they addressed it, the situation was out of hand. But we must also remember that the WHO was also too late.

I don’t know what would happen if Ebola got into Malawi. I was in South Africa two months ago, and I was impressed with how prepared they are.

The day I was leaving, they were distributing, in every hospital, the decontamination equipment, quarantine suits, all in case it came into the country. That is what is required, all across Africa. But you know, it’s all about political will, who is sitting in the driver’s seat. Moving forward, some leaders are thinking about what might happen, others are not.

It’s all about the country’s priorities. By the way, Nigeria has not done very badly. We bash Nigeria for other things, that they’re not doing well, but in the case of Ebola, we must applaud Nigeria, for moving fast to contain the disease. So it is about political will.

KD: Perhaps the things you are most well-known for in West, in the United States, in Europe, are your actions concerning homosexuality, which earned you praise around the world, but criticism at home, and you have said that this is an issue that has received undue focus and has been misunderstood. I wanted to ask you in person, then, what do you have to say about this issue?

JB: I would say, yes, it has been misunderstood. I have no power whatsoever to change any law in Malawi. It is very unfortunate, because it overshadows most other issues. I never said “let us repeal it,” but rather, I passed it on to the people to make a decision. So the debate went on, and it is still going on. Instead of me being the one to say “this is the position we should take,” I passed it on to the people. Because at the end of the day, it is the people who pass the law.

What I said, in Parliament, was that they should take it to the people, debate it, and bring it back to Parliament. It did not come back to Parliament. What was very clear, in the end, was that the people were not prepared to change the law, or even to debate changing the law. It would be very difficult to do that.

But I hope you know what is going on in South Africa and elsewhere, where they are actually killing them.

Which is very unfortunate. But that is the situation. It is a matter that the people would not even discuss in most African countries. But it is a debate I started and a debate that is still going on.

KD: One final question: Would you see yourself ever returning to public life, public service? Is this something you would do?

JB: It’s difficult for me to say no; it’s too early. But I think this, what we are doing now, matters more to me, than public office. But, it’s too early for me to write that off—we’ll cross that bridge when we get to it. • Kyle Dontoh is a junior in Columbia College majoring in Economics-Political Science. He is an editor with the Columbia East Asian Review and a member of the College Republicans.

He can be reached at: knd2115@columbia.edu.

columbia political review :: fall 2014

features

Digging With China

Nicaragua Lays the Groundwork For a New Canal

By Dylan Olivia Hunzeker

O

n May 18th, 1903, the United States signed the Hay-Bunau-Varilla Treaty in Panama, winning the rights to build a canal across Panama to connect the Atlantic and Pacific Oceans. Almost exactly 110 years later, on June 15th, 2013, Wang Jing, a Chinese billionaire, and Daniel Ortega, President of Nicaragua, announced their plans to do the same in Nicaragua. That announcement went largely unacknowledged by most major world publications—and indeed, most people could not locate Nicaragua on a map.

Times have changed.

Now, Nicaragua is actively working with a major world player, China, to improve its low economic position—it is currently the second poorest country in the Western Hemisphere.

Daniel Ortega, the country’s longtime president and former leader of the FSLN (“Frente Sandinista para Liberación Nacional,” or The Sandinistas,) has been accused of manipulating his relationship with world powers in order to gain political leverage and personal wealth.

But Ortega’s fortune and Nicaragua’s poverty are not mutually exclusive.

Even if the canal is initially not economically profitable, it is worth building. This canal will benefit the people as for other reasons. This canal will benefit the people as well as the politicians, despite a deep lack of trans-

parency regarding the details of the project. Importantly, the canal’s construction is representative of China’s expanding role in the Western hemisphere.

Nicaragua’s relevance on the world stage, or lack of relevance, stems directly from its poverty. The civil war between the Sandinistas and the Contras and the political corruption that has ensued crippled the country’s economy.

Ironically, Daniel Orte-

ga, who came t o power on calls for enhanced social mobility and greater equality, has arguably played an instrumental role in this crippling.

His brand of corrupt cronyism has benefited few but those in his elite circle.

Yet Ortega’s political flip-flopping is a normal trend after civil wars, according to Columbia University professor of economics Xavier Sala-i-Martin: “It is common for countries to have a group of unsatisfied people rebel against the ruling class in a civil war, and later become similar to the ruling class against which they fought in the first place.” He counts Nicaragua as no exception. While Sala-i-Martin believes that poverty is the result of a “combination of factors, with one main cause: a lack of incentives,” extending to people’s inability to change their situation. Nicaragua, according to Professor Sala-i-Martin’s World Economic Competitive Ratings, is one of the least economically competitive and advantageous countries, ranking 110 out of 140 on the list (comparatively, the United States is 3).

Ortega and the powersthat-be in Nicaragua seem to have reached tacit agreement that something ought to be done. Without outside investment, the country will only fall into worse poverty as the government continues to take from its own people, and after a certain point this hurts the rent-extracting governors and the governed alike. Nicaragua’s most economically competitive “asset” is, in some senses, its geography. It is located in the middle of the Central American isthmus and could provide the latest bridge from East to

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West. The Chinese seem to agree, and have agreed to partner with Nicaragua in building the new canal. China is already the largest investor in Latin America as a whole. At $40 billion, the proposed canal will be the most expensive and history and certainly not a project that Nicaragua could undertake independently (for some perspective, the GDP of the entire country is estimated to be roughly $20 billion).

Chinese investment in Latin America has been on the rise for some time.

In the wake of the 2007-2008 financial crisis, an investment void was left in Latin America. European and US firms that once invested heavily in the region found themselves unable to keep pace, and investment dollars dried up. China has, largely, replaced them. The political implications of this shift are enormous. One has to wonder if the Chinese are involved in the project for profit? Or is there a deeper motivation? The canal has a low chance of being profitable, given the large initial investment required, at least in the short term—accordingly, the Chinese are probably more interested in currying political favor and forging long term partnerships than in making a quick buck.

The critics of Chinese investment in Nicaragua cite lack of transparency as

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a major problem for the political implication of the project and the actual creation of the canal as well. Leading the investment consortium, Jing’s group has been involved in a number of dubious infrastructure projects in the past. Most suspiciously, the canal agreement did not go out to vote on the Nicaraguan Senate floor before Ortega signed it. In fact, most preliminary meetings were entirely clandestine and involved only Ortega and the Chinese financiers.

While the lack of transparency is unnerving, it has provided a great degree of expediency. The proposed timelines for the canal peg its completion as early as five years from now—a project of comparable import and cost backed by the United States would take years longer to complete.

According to the Latin American Research Review, “several US initiatives” in Central America have tried to take flight, only to encounter “several bureaucratic challenges”. The Review states that “competing agencies” in Washington created disputes regarding funding on the projects. The Review also states that there was a “delay in the availability and delivery of funds and programs” for programs in Central America. The Chinese do not have to jump through so many bureaucrat-

ic hoops. At the rate at which China is investing in Latin America, the United States’ presence and influence is bound to fall.

Of course, the canal is still risky business. It is unclear when it will turn a profit, if ever, and what the corresponding benefits will be to the Nicaraguan people. If any analogies to Panama can be drawn, however, the canal portends well for Nicaragua’s future. Thousands of semi-permanent construction jobs and permanent facilities positions will be created and, assuming the process runs relatively smoothly, the door for future partnerships with the Chinese would be open.

Hopefully, then, the project will benefit the government and people alike.

This is the second time in Nicaragua’s history that it has signed over sovereignty to a country to take the land and build a canal in the country.

The first time, in 1914, with the United States after the Panama Canal was completed, Nicaragua made a deal that involved exchanging some of its sovereigntyin order to build a canal for a small payment every year. The second time, in 2013, was with the Chinese. They have the next 100 years to do what they want with a small strip of land in the middle of Nicaragua that stretches through Lake Managua and parts of the natural rainforest. Many posit that this “giving up” of sovereignty will be treacherous to US interest in the future, but there seems to be no imminent threat as of now.

Regardless of the price, Nicaragua has not chained itself to China, but rather created a clever alliance that may be useful to their interests in the future. Even if the canal does not become profitable, or does not come to fruition, an alliance with China is unmistakably good for the Nicaraguan economy as a whole and the political powers and ordinary citizens alike. • Dylan is a sophomore at Columbia College studying Political Science. She has always had an interest in Nicaragua, as her mother was born there and she is half-Nicaraguan. She hopes to one day be an active member of the political community. In her spare time she likes to explore museums, go running through new parks and read books. She can be reached at: doh2103@columbia.edu.

columbia political review :: fall 2014

features

Emigré Matters

Re-Examining France’s Brain Drain

By Kunal Mehta

“E

verything that is learnt here will eventually serve our nation,” proclaimed an upbeat François Hollande to a noticeably young audience in an address held at the start of this year. But the French president’s speech was not at a high school in Paris, a library in Bordeaux, or a university in Grenoble—it took place thousands of miles away in San Francisco, where a large group of his countrymen had stuffed an auditorium to listen to their visiting leader. Mr. Hollande’s visit, the first by a French head of state to the city since 1984, was underpinned by the growing size and prominence of the city’s

60,000-strong French community, populated mostly by entrepreneurs and technical experts. His efforts were rather well rewarded: The audience maintained an enthused and receptive presence that could only be hoped for at home, where the president’s tumbling popularity has been marked with a record-low approval rating of 13 percent as well as a string of electoral defeats of his Socialist Party to conservatives.

As anyone familiar with French media coverage of the past few years would note, Mr. Hollande’s warm reception by his compatriots would not be possible back at home, reflecting a concern-

ing development: the rising number of highly skilled French émigrés leaving home to take up lucrative professional opportunities across North America and in other parts of Europe. But although a steady stream of articles and studies has kept this subject firmly in the French spotlight and highlighted a definite trend, a more careful analysis of the relative size, permanence, and net impact of emigration from France remains warranted.

Recent statistics calculated by the Maison des Français de l’Etranger, the government branch of the Ministry of External Affairs tasked with maintaining relations with expatriates, have

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features shed some light on the issue of expatriation as a whole. According to these figures, the French diaspora, currently estimated at 2 million people, has been growing at a rate between 3 and 4 percent each year during the past decade, and currently adds 80,000 members to its ranks every year. By comparison, growth in the domestic population over the same period reached only about 0.6 percent per year. Additionally, the data not only indicates that the emigrant community is growing impressively, but also that, for the most part, it has overwhelmingly been composed of highly trained and technically proficient individuals. In contrast with the 12.5 percent of the domestic population holding advanced educational degrees, around half of expatriates possess a master’s or doctoral degree and are primarily employed in fields such as research, technology, or entrepreneurship. Those numbers have pointed to France’s most eligible graduates leaving home, sparking alarm in the country.

The periodic release of figures such as those from the Maison des Français de l’Etranger are accompanied by a splash of articles and reactions across major publications and media outlets such as Le Monde and Le Nouvel Economiste, contemplating the loss of French talent, the emergence of a French “brain drain,” and even the existence of a country of emigrants. To add to the media clamor around the subject, a growing number of think tanks, consultancies, and research organizations have also started weighing in on the issue, and offering their own estimates of the problem. This past year, consulting firm Deloitte produced a report claiming that close to 27 percent of recently graduated French students envisioned their futures overseas, while PricewaterhouseCoopers stated that the French emigrant population will most likely swell to double its present size by 2020. Meanwhile, the not-for-profit Chamber of Commerce and Industry of Paris published its own report estimating that 38 percent of new graduates hope to spend more than ten years of their life outside France.

Perhaps the clearest sign yet of the attention surrounding the issue is the establishment of a parliamentary commission of inquiry into the “Exile of Human Capital” headed by Luc Chatel,

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columbia political review :: fall 2014 who belongs to the opposition Union for a Popular Movement (UMP) party.

The commission, established in April and backed by the French National Assembly, is charged with investigating the scale of expatriation of French persons and enterprises. It is also tasked with suggesting long-term measures that could reverse such trends, if they are found to be significant. However, any potential solutions will first have to confront many of the fears over French emigration brought up by the reams of newspapers columns and piles of reports on the subject. The diagnoses offered by many of these sources appear just as dire as the scale of the issue that they suggest, falling into a morose introspection of the state of affairs in France. Some articles entertain the notion that France is no longer capable of producing enough well-paying and stimulating employment opportunities for its youth because of a stag-

“On closer inspection, France’s emigrant community is still significantly smaller than those of its closest neighbors in Europe.” nating economic model that has (depending on political affiliation) either been too deeply entrenched in leftist-thought or has shifted too far to the right. Others lament a rigid hierarchy in France that only guarantees success for well-connected graduates emerging from Les Grandes Écoles (top-tier French universities) and not for the larger number of French graduates in the population. And a third category of complaints criticizes a culture that doesn’t pay enough attention to work and professional success, nor compensates it appropriately, forcing France’s most ambitious to leave for greener pastures. All of these hypotheses find a commonality in their evocation of déclinisme, the pejorative title for the increasingly pervasive idea that the French nation has entered a long stage of diminishing importance and capability on the world stage, and is now consigned to the rank of older nations that no longer play a primary role in world affairs. The loss of French talent to other countries plays appropriately

into this narrative, and regardless of the veracity of such a theory, the linkage of the two ideas has certainly influenced a number of those who write about the issue.

Although such pessimism and critical analysis seems contagious, as a number of more nuanced articles have pointed out, there is much more to be made of the situation. It is not just a gloomy story of terminal national decline. The scale of French emigration may be unprecedented in recent times, but it must be put into perspective and balanced against countervailing factors. To begin, any discussion about emigration must be prefaced with a discussion of the recent financial crisis that has taken a heavy toll on the French economy. The lingering effects of the crisis continue to haunt the country as the unemployment rate hovers around 10 percent, while the youth unemployment is more than double the average rate at 24 percent. Under such circumstances, it is hardly surprising that fresh graduates qualified enough to find high paying employment overseas would leave, but it is also true that they should return to France as conditions gradually improve. Additionally, whether the current outflow of French workers was spurred by the crisis or occurred of its own accord, it seems in part to be an overdue reaction to the forces of the increasingly globalized world of today. With large multinational corporations transferring employees across different continents, students pursuing degrees far away from home, and researchers collaborating on projects at foreign institutions at an ever-increasing pace, an increase in the number of professionals leaving France is a natural reaction to a more connected world.

Indeed, on closer inspection, France’s emigrant community is still significantly smaller than those of its closest neighbors in Europe: While only 3 percent of France’s population is estimated to live overseas, Britain counts roughly 7.6 percent of its population as expatriates, while the figure is 6.0 percent and 5.2 percent for Italy and Germany, respectively. Although the rate of emigration may have picked up in recent years, it is still a much smaller phenomenon in France than in the country’s geographic peers, some of which have been performing better economically. Furthermore, the desti-

columbia political review :: fall 2014

nations of French emigrants is telling: Nearly half choose to relocate close to home in Western European countries such as Belgium, Switzerland, and Germany, while 15 percent have settled in North America. As a consequence, the recent increase of emigration may also be seen through the lens of an increasingly deregulated labor mobility in the Eurozone, and also as a trend that could very well change direction, as economic and political situations shift.

Lastly, France’s popularity with immigrants—both skilled and unskilled—cannot be ignored. According to a study by the Organization for Economic Co-operation and Development (OECD), the country is the third largest destination for students seeking a foreign education, and the fourth most attractive destination for highly qualified professionals. This study indicates, that, for the time being, France should be more than able to fill its requirements for skilled employment, even if it means relying on immigrant labor rather than of French graduates.

In fact, at the other end of the debate on the subject, some would even go as far as to say that France’s recent uptick in expatriation may be beneficial for the country as a whole. In the spirit of Mr. Hollande’s San Francis-

co speech, one imagines that France’s overseas community can help transmit new ideas, innovations, and cultural attitudes back home to a country that, as data has shown, has not necessarily been as exposed to global trends as some of its neighbors. Secondly, the success of French emigrants in various high-value sectors can boost the profile of French universities and laboratories overseas, paving the way for more collaborations and international exchanges. Finally, the fewer domestic graduates that apply for French jobs, the more inviting France becomes for highly skilled immigrants from other countries, further increasing the global exchange of talent.

In regard to this balance, the report from the Chamber of Commerce and Industry of Paris notes in its conclusion: “the idea of a massive outflow of talents, specific to France, doesn’t seem to correspond to [today’s] reality.” Any claims of France becoming a country of emigrants, or being completely deserted by the present generation, seem hyperbolic and unrealistic when weighed against general global trends, and ignorant of the benefits of increased global exposure for France’s youth. But while media reports that continue to make such proclamations

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in the face of more detailed analysis of the situation should be dismissed as sensationalist, their fears cannot be completely ignored. President Hollande and his government should not be complacent enough to leave the entire task of “learning” and job creation for French graduates to other countries. Though the crisis seems to have normalized the rates of expatriation for France, an economy that continues to stagnate for a prolonged period of time risks pushing the level of expatriation beyond the threshold of what is beneficial, and may even harm France’s access to immigrant labor. Cognizant that France will gain from the experiences of its citizens who have lived overseas, Mr. Hollande must now create an atmosphere that promises to welcome them whenever they may be ready to return. If not, the sensationalism of some of today’s newspaper columns may ring true in the years ahead. • Kunal Mehta is a senior at Columbia College majoring in Economics and has a keen interest in history, current affairs and politics. He enjoys exploring New York by bike in his spare time. He can be reached at: kpm2123@columbia.edu

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