On May 24, 1995, Jordan Belfort’s brokerage firm Stratton Oakmont successfully sued Prodigy Communications Corporation in a New York court for defamation. Little did anyone know Stratton’s win over Prodigy would be the catalyst that changed the internet forever. The so called Wolves of Wallstreet had unknowingly set a dangerous precedent that threated the tech industry.
Stratton Oakmont v. Prodigy Services
Prodigy was an online internet service which more or less mirrored modern day social media sites, it serviced over 2 million people at its peak. Users were able to utilize a broad range of services such as getting access to news, weather updates, shopping, and bulletin boards. One of Prodigy’s notorious bulletin boards was called Money Talk, a popular forum where members would discuss economics, finance, and stocks- similar to Reddit’s Wallstreet Bets forum. Prodigy also contracted with independent moderators to vet and participate in the board discussions, similar to editors in a Newspaper but who engaged with their audience a lot more.
In 1994, two posts would subject Prodigy to legal liability. An unidentified user posted on the Money Talk bulletin on the dates of October 23rd & 25th, claiming that Stratton Oakmont was committing SEC violations and engaging in fraud in regards to an IPO they were involved in (Solomon-Page’s IPO) . The poster claimed:
the Solomon-Page IPO was a “major criminal fraud” and “100% criminal fraud”
Daniel Porush was a “soon to be proven criminal”
Stratton was a “cult of brokers who either lie for a living or get fired.”
Ironically many of these claims would turn out to be true, however at the time they were unsubstantiated since there was no concrete evidence to back them up. After Stratton was made aware of the posts, the company and Daniel Porush (aka Jonah Hill’s character in the movie) commenced legal action against Prodigy for defamation due to the libelous statements made on Money Talks.
In the United States defamation claims are not plaintiff friendly due to the strong protections the 1st amendment offers. In general in order to succeed in a defamation, a plaintiff must prove four elements:
1) a false statement purporting to be fact;
2) publication or communication of that statement to a third person;
3) fault amounting to at least negligence; and
4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.
In the suit brought by Stratton against Prodigy the court focused on element 2 and 3. Namely whether or not Prodigy was a publisher & if the moderator’s acts or omissions while editing the Money Talk bulletin board amounted to at least negligence. The court ruled in favor for Stratton Oakmont.
The court reasoned that an operator of an online message board is considered a publisher for purposes of defamation liability. Specifically, if the online operator holds itself out as controlling the content of the message board and implements such control through guidelines and screening programs. An entity that repeats or otherwise republishes a libel post is subject to liability as if he had originally published it. But a party disseminating others’ content only faces libel liability if the party qualifies as a publisher rather than a distributor. If a party merely “distributes” others’ content, then the party is a distributor and is not subject to liabilty. The court used the phrase “passive conduits” to describe distributors. A passive conduit doesn’t face liability for libel absent a finding that the distributor knew or had reason to know that distributed content contained defamatory statements. Basically, if you had a content moderation system for user generated content your website was likely liable for defamation. Defenses such as the impracticability of moderating millions of user generated posts had no merit and would still subject the website to defamation claims. This ruling would shake the tech and internet industry, threatening to stunt and undo years of innovation.
To avoid a barrage of lawsuits the tech industry successfully lobbied Congress to act after the Stratton ruling. In 1996 Congress passed the Communications Decency Act which dealt with various internet related issues. The one most pertinent to us is Section 230(c).
Jeff Kosseff one of the leading scholars on Section 230 describes it as “the twenty-six words that created the internet.” The 26 words are:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
These words provide immunity to online platforms from being held liable for user-generated content. Basically, it means that online platforms such as social media sites, forums, and search engines cannot be sued or prosecuted for what a user posts on their platforms. Even if the posts themselves are defamatory, false, or harmful .
This immunity has been vital in enabling the growth of the internet and the rise of social media platforms. It has allowed these platforms to provide a space for free expression and to facilitate the exchange of information and ideas without fear of legal consequences, unlike Prodigy who was a victim of pre Section 230 protection. This has also allowed smaller and newer online platforms to compete with established ones without having to worry about legal liabilities. Without Section 230, the internet me and you know and love would not exist. I likely would not be able to publish my articles without exposing myself to liability.
However, recently there have been attacks and concerns over the immunity Section 230 provides. Specifically that online platforms are basically not responsible for any harmful content on their platforms, such as hate speech, harassment, and misinformation. Basically, people not in favor of the immunity argue that Section 230 has created an environment in which online hate speech and harassment can thrive. One recent case that puts forth such an argument Gonzalez v Google, has made it all the way to Supreme Court.
Gonzalez v. Google & It’s Implications
Gonzalez alleges ISIS generally used YouTube (owned by Google) to recruit members into its terror cells and “communicate its (ISIS’) desired messages.” which lead to the unfortunate events that occurred in Paris in 2015. Nohemi Gonzalez, a US citizen was unfortunately killed during the ISIS terror attacks that gripped the world in 2015. ISIS would later claim full responsibility for the attacks that lead to the untimely passing of Gonzalez.
Gonzalez argues that since YouTube videos helped fuel “the rise of ISIS” by knowingly recommending ISIS videos to its users, they are directly responsible for causing the Paris attack. They back up their argument that Google knew of such activity by claiming “[d]espite extensive media coverage, complaints, legal warnings, congressional hearings, and other attention for providing online social media platform and communications services to ISIS, prior to the Paris attacks Google continued to provide those resources and services to ISIS and its affiliates, refusing to actively identify ISIS YouTube accounts and only reviewing accounts reported by other YouTube users.”. Their argument suggests that Google’s algorithms fall out of the scope of section 230 and therefore subject them to liability.
Google contends that Section 230 fully immunizes them from such a suit based on judicial precedent and congressional intent, that their terms of services directly prohibit content that promotes terrorism, and they actively blocked such content when it was published by hiring Middle Eastern content moderators that worked 24/7 to flag terroristic content. Before the case arrived to the Supreme Court, all lower courts found in favor for Google.
Jess Miers a prominent Section 230 scholar mentions that this case “tees up a contentious question for the Supreme Court: whether Section 230 — a law that empowers websites to host, display and moderate user content — covers algorithmic curation.”. She points out that a vast majority of websites use non neutral algorithms, and that if the Supreme Court were to side in favor of Gonzalez it would open the flood gates of litigation against online services providers that rely on algorithms to function. Not only that but this ruling could incentivize states to curate the internet to achieve their ideological means, such as punishing websites for cracking down on misinformation or providing information for abortion services. This would give states too much power, and could lead to arbitrary curation of the information you see on the internet. A significant blow to consumers and arguably the facilitation of the 1st amendment for Americans.
Only time will tell what happens with Section 230 as the court is expected to makes in ruling this summer. Hopefully, they make the right decision.
Sources:
STRATTON OAKMONT, INC. and Daniel Porush, Plaintiff(s), v. PRODIGY SERVICES COMPANY, a Partnership of Joint Venture with IBM Corporation and Sears-Roebuck & Company, “John Doe” and “Mary Doe”, Defendant(s). Supreme Court, Nassau County, New York, Trial IAS Part 34.
This article is an excerpt of a larger working paper aimed at policy makers, economists, and investors. This article was aimed to be shorter and less technical than the larger paper.
International commercial arbitration has been touted by many members of the business community and legal profession as a suitable means of settling trade disputes outside of a formal court room. The reasons a person would want to choose to arbitrate a commercial dispute could range from the rapidness of arbitral proceedings in comparison to domestic courts to the ability to keep proceedings confidential. But the benefits of commercial arbitration are not strictly limited to the parties involved in the arbitrational proceedings. There have been numerous studies outlining how commercial arbitration also facilitates economic growth and social well being within nations. The United Nations has acknowledged the many benefits of commercial arbitration fact and has incentivized the use of arbitral institutions. No other continent can benefit more from arbitration than Africa.
The UN has facilitated arbitration by incentivizing a multilateral treaty regime for international commercial transactions. One of the main treaties that attempted to incentivize arbitral proceedings is formally known as United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the ‘New York Convention’). Every signatory to the New York Convention makes two fundamental promises. The first promise is to honor written agreements that call for parties to arbitrate matters that are capable of settlement by the arbitration agreement. And the second fundamental promise is that nations who are signatories to the New York Convention agree that their national domestic courts will recognize and enforce arbitral awards. (New York Convetion). Out of 193 nations, 162 nations are signatories to the New York Convention. The 162 nations include some of the worlds trading powerhouses most notably China and the United States.
Africa is the continent with the least signatories to the New York Convention. Further, in comparison to other continents, Africa is the least economically developed. (per the Global Policy Forum). This is not a correlation that should be overlooked. International commercial arbitration attracts investment and can play a vital role in developing a nation’s overall political economy. At a surface level commercial arbitration facilities trade between nations increasing trade input and output, improving economic activity. However, there is subtle message being sent when a nation has a robust institutional system of commercial arbitration and has domestic courts willing to enforce arbitral awards. That message is simple, “we want to incentivize international trade in a fair and equitable manner”. When a nation does this business are more likely to invest and contract with people/entities within that nation, because they have the confidence that domestic courts will enforce arbitral awards. Continents which are considered to be ‘highly developed’, namely Europe and North America, have robust systems that facilitate international commercial arbitration. (Latham & Watkins).
During the 20th century Africa as a continent relied heavily on aid from other wealthier nations to develop. And foreign aid to this day still plays a major role in Africa, and has it’s benefits. However, research done by Mai Abdulaziz Alghamdi suggests that foreign aid may be doing more harm than good. (Alghamdi). He argues that burdensome amounts of foreign aid can have deleterious effects on aid-recipient countries. (Alghamdi). That is because Africa is the largest recipient of foreign aid. The effect of foreign aid on economic growth is positive however the net benefit of foreign aid is small, suggesting that foreign aid does not result in drastic increases in economic growth.( Alghamdi). Countries need aid to develop but there are negative consequences if a nation heavily relies on aid to fund its government and develop its economy. For example, Bazoumana Ouattara analyzed the effect of aid flow in Senegal. He found that that a large portion of aid flow (around 41%) is used to finance Senegal’s debt and 20% of the government’s resources are devoted to debt servicing. (Ouattara). Secondly, he found that the impact of aid flows on domestic expenditures is statistically insignificant, and that debt servicing has a significant negative effect on domestic expenditure. (Ouattara). In essence, the aid given to Senegal is used to finance the government and not neccesarily used to directly develop the economy as a whole. Several African nations seem to have recognized that in order to sustain meaningful economic development then they must not rely so much on foreign aid. Many nations have attempted to stimulate business activity within their jurisdiction via various economic initiatives. But Africa’s economic powerhouses seem to have one thing in common when it comes to economic/ legal development in the 21st century. They all are utilizing the tools of international commercial arbitration to stimulate economic growth. One significant nation
Four years after Kenyan independence, that Kenya would enact its first sovereign arbitration legislation, The Arbitration Act of 1968. It was largely influenced by the Arbitration Ordinance of 1914 which was legislation used in colonial Kenya. However, for some unexplained reason, the act adopted outdated arbitral protocol when instead they ideally should have used the New York Convention as a model for Kenya’s arbitral legislation. So, in essence what occurred is that Kenya kept Britain’s colonial arbitral law intact. Unfortunately, the act allowed the court to retain their oversight over all arbitral proceedings in Kenya, meaning that parties could manipulate the court system to frustrate and delay the arbitral process. (Mbithi). In contrast to Kenya’s pre-colonial arbitral past. For example, in East African Power & Lightning Co. Ltd v Kilimanjaro Construction ltd, the Court of Appeals, declined to stay proceedings in favor of arbitration in spite of the fact of the existence of an arbitration agreement.
However a comprehensive piece of arbitral legislation would come in to effect in 1995. After Kenya aggressively pursued policies that successfully attracted foreign direct investment, it quickly became apparent that the Arbitration Act of 1968 needed reform in order to keep foreign investment within Kenya high. (Mbithi). Kenya had some of its worst economic performances between the years of 1991-92. Growth stagnated. Inflation reached a historic level. Further the government’s budget deficit was over 10% of GDP. In effect, due to treaty requirements, bilateral and multilateral donors suspended their aid programs in Kenya in 1991, resulting in economic uncertainty. One of the ways Kenyan legislature attempted to remedy the dire economic situation was by repealing the old arbitration act and creating a new framework. (Mbithi). The legislature enacted the Arbitration Act, No. 4 of 1995. The new piece of legislation adopted the UNCITRAL model law, a more modern framework arbitral framework. It also was expanded to include both domestic and international arbitration. (Mbithi). But despite these major improvements, there was a profound change to the new piece legislation. Section X of the Arbitration Act stipulated “except as provided in this Act, no court shall intervene in matters governed by this Act”. This not only had ramifications in international commercial arbitration, but it also was a check on the judiciary by the legislature, prior to this act the courts had absolute oversight over all adjudicative functions in the country.
In 2006, Kenya’s government drafted a new developmental program that would make sure that by 2030 Kenya is “newly industrialized, middle income country that provides a high quality of life to all it’s citizens”. (Vision 2030). The plan is called Kenya Vision 2030. As of 2020, the initiative has proven fruitful. (World Bank). Kenya far at performs its neighbors economically, mainly due to the influx of foreign investment and their well developed social and physical infrastructure. (World Bank). Further, in 2020 Kenya ranked number 56 in the Ease of Doing Business Index. This is a significant jump in rankings when compared to Kenya’s position in 2010 which was 95. This improvement can be partly explained by changes made within Kenya’s Constitution. In order to facilitate the Kenya Vision 2030 plan, the constitution was changed to include this provision: “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause”. (Muigua). Arbitration was now backed via statute and Kenya’s constitution. This signaled to foreign investors and businesses that commercial arbitration is being incentivized within the nation. After the constitution was changed, Kenya made exponential improvements economically, and their rankings in the Ease of Doing business index would continue to rise. (Muigua) Kenya will likely fulfill the goals set out in the Kenya Vision 2030 plan.
The United States has been under constant threat of espionage during the 21st century-particularly from China and Russia. US intelligence agencies however are no strangers to this type of behavior. During the Cold War the US engaged in several covert espionage campaigns against the USSR and were able to subvert many attempts that undermined American national security. This was no small feat, the USSR had a vastly intricate system that was proficient in gathering intelligence, covert operations, and disinformation campaigns. This level of sophisticated espionage was no fluke, the USSR inherited one of the best intelligence infrastructures the world had seen from the Imperial Russian Empire. And that system would grow and later be responsible for one the longest and most covert espionage missions uncovered on US soil in the 21st century.
In the 19th century the Russian Empire’s autocracy faced threats to its legitimacy and authority both domestically and internationally. This pressure made it imperative for the regime to know all the various intricacies of its political dissidents, who on more than one occasion attempted to assassinate various political officials (they succeeded on several occasions, the most notable being Czar Alexander II). This led to the establishment of Russia’s first intelligence agency, the Okhrana.
The Okhrana focused its operations on socialist, anarchist, and democratic organizations. They established a wide and efficient network of espionage to suppress popular dissent in a failing Russian state by utilizing informants, agent provocateurs, controlled opposition, and disinformation campaigns. Once detained dissidents would either be executed or sent into exile either in the harsh and sparsely populated Siberian countryside or Europe. Even when the Empire would eventually crumble in the 1920s the Okhrana remained the only fully functioning state run institution. The USSR would happily utilize its services after their success in the Russian Revolution.
After the Russian Revolution, Joseph Stalin would usurp power and control the USSR. Stalin was cruel, calculated, and conscientious as a ruler, many suffered while he was in power. He crushed dissidents using the intelligence backbone established by the Okhrana ( during the Soviet era it would be called the NKVD & then later the KGB). Stalin would only further strengthen and reinforce the intelligence institution, taking considerable steps to ramp up activity internationally. He would set up the intelligence apparatus that would go on to pester the United States deep into the 21st century.
One of the first notable intelligence operations the USSR conducted was the theft of nuclear weapons designs from the Manhattan Project, aided by US citizens Julius and Rosenburg. This operation directly allowed the USSR to develop its own nuclear weapons program. Another operation was a lot more subtle and utilized a complicated disinformation campaign- it is colloquially known as Operation Infektion. Released archives from the KGB describe the operation as “We are carrying out a complex of [active] measures in connection with the appearance in recent years of a new dangerous disease in the USA known as AIDS. The goal of the measures is to create a favorable opinion for us abroad — namely, that this disease is the result of secret experiments by the USA’s secret services and the Pentagon with new types of biological weapons that have spun out of control.”. The KGB were able to execute this by setting up clandestine news networks that had been created by agents in several countries who produced fake scientific papers that claimed that a lab in the US created the disease. The ramifications of this operation can still be felt to this day, plenty of conspiracy theorists claim the US created AIDS. This operation increased distrust in the US government, which was further exacerbated by the US’ inability to handle the AIDS pandemic in a timely and inefficient manner that prioritized the welfare of its citizenry.
Furthermore, the KGB wanted to create increase instability in the US so that the government was preoccupied with domestic matters instead of foreign affairs. The easiest way was to exploit Americas racist history to their benefit. The plan was a “slow burn”- the strategy was aimed to be a long-term mission of manipulating various groups and organizations, including the Ku Klux Klan (KKK), black militant groups (Black Panthers, bloods etc), and the Jewish Defense League (JDL). The KGB aimed to utilize these groups to incite violence and chaos triggering a civil war. The plan consisted of numerous missions, including the distribution of propaganda materials designed to exacerbate racial tensions, the infiltration of key organizations to gather intelligence and sow discord, and the planning of acts of violence and sabotage against critical military and civilian targets. One of the most notable elements of Operation Pandora was the plot to bomb a historically black college in New York and blame it on the JDL. These plans were foiled by US intelligence who had also infiltrated these groups.
Though people may think such pervasive operations are echoes of the past they are still in the works in the modern day. Though espionage seems to be a mostly digital affair in the 21st century, Russia’s SVR (formerly KGB) still carries out sophisticated clandestine operations on US Soil. The most notable being the ‘Illegals Program’ which was uncovered in 2010.
The Illegals Program was a network of Russian sleeper agents located within the United States- their mission was to report to Moscow on U.S. policy in Central America, U.S. interpretation of Russian foreign policy, problems with U.S. military policy, and “United States policy with regard to the use of the Internet by terrorists”. An encrypted message intercepted by the FBI that was sent to the agents specifically outlined the goals of the organization: “You were sent to USA for long-term service trip . Your education, bank accounts, car, house etc . — all these serve one goal: fulfill your main mission, i.e . to search and develop ties in policymaking circles in US and send intels [intelligence reports] to Center.”.
The way Moscow aimed to fulfill their mission was to have these operatives assume covert identities and operate deep undercover within the US. They mostly focused on infiltrating political and corporate institutions within the east coast of the US- namely New York, New Jersey, and Washington D.C.. Federal court documents revealed that the agents passed information back to Russia by messages hidden inside digital photographs written in disappearing ink, ad hoc wireless networks, and shortwave radio transmissions, and physical meetups where they swapped bags while passing each other in the stairwell of a train station (the swaps were recorded by CCTV footage). Some of the agents infiltrated the US in the 90s and married each other at the behest of Moscow’s orders. Some of the operatives were extremely sloppy with their identities, one of the Professors who was the target of intelligence gathering said she found it extremely hard to believe that the agent was a Philly native saying “”I was always puzzled by the inconsistency between a completely American name and completely Russian behavior. …[h]e had a thick Russian accent and an incredibly unhappy Russian personality.”. That agent was also criticized by his agent wife for his poor intelligence gathering. Others in the operation however were rather meticulous.
Anna Chapman (born Anna Vasilyevna Kushchenko) was one of the more sophisticated agents. It’s unclear how much of her decisions in her past life were a part of the Illegals program but outlining her life will help us paint a picture of her path to the US. In 2001, she married a British man she met at a rave in London- the marriage allowed her to obtain British citizenship allowing her a smooth transition into the labor sector, eventually working for the banking conglomerate Barclays. Anna got a divorce in 2006 and shortly thereafter moved to New York, taking up residence in the notorious 20 Exchange Place, a simple 5 minute walk from Wall Street. Once there she established a real estate business and began dating an Israeli- Moroccan businessman (the man likely had connects to the business milieu of NY allowing her access to information and other victims for intelligence gathering). Roughly a year into her residence in New York the FBI and other intelligence agencies began investigating Anna Chapman.
On or about January 2010 the FBI began surveilling Anna Chapmans movements within New York City. They observed numerous interactions Anna had with Russian government officials. The more obvious of these observations was that Anna visited the Russian mission at the United Nations headquarters, though harmless on its face this would arouse further suspicion from the FBI. Thereafter, Anna was observed on numerous occasions at a coffee shop on 47th street (not too far from the UN headquarters) with a tote bag that had electronic device enclosed inside it. The FBI investigators also noted that a minivan would drive by on numerous occasions, utilizing surveillance tech the FBI was able to determine that a wireless network communication had been setup to exchange information between Anna and the minivan. Furthermore, the FBI caught Anna utilizing a covert network to communicate with another Russian official at local bookstore near Greenwich Street. On one of the instances Anna and minivan were exchanging digital information the minivan detected that their network was being surveilled by an outside entity and aborted their communication efforts. After finding patterns in Annas behavior and exploits in her mission, the FBI initiated a sting operation on Anna.
Anna Chapman’s Mugshot
The FBI utilized an undercover agent posing as a Russian official to meet up with Anna. The undercover informant referenced the aforementioned discovery that Anna’s communications with the minivan had been caught, this inquiry was important in gaining the trust of Anna and to subtly reinforce the idea that electronic communications would not be utilized for future missions. The FBI agent attempted to convince Anna to deliver a fake passport to an undercover FBI agent posing as a Russian official. This request aroused suspicion in Anna. After meeting the agent she visited a CVS, Verizon store, Rite-Aid, and then returned back to the Verizon store. These were all tactics to lose and identify a potential surveillance team. While in the Verizon store she bought a burner phone under a fake name and address, she called her father (a high level Russian intelligence officer) who told her that the passport operation was fake. She attempted to turn in the fake passport at a local police department but FBI agents were summoned and she was arrested. Later on she would be released in prisoner swap. Anna Chapman is now a well-known political figure in Russia.
Another agent that was involved was Mikahil Semenko who was allowed to use his real name. Mikhail was educated in prestigious institutions in China and the United States, he was fluent in English, Mandarin, Russian, and Spanish. He arrived in the United States in 2005 and enrolled in Seton Hall University studying in a diplomacy and international relations masters program. He excelled in his studies and was able to obtain an internship at the World Affairs Council in Washington DC. His peers describe him as pro America and avoided political discussions in class. Semenko went back to Russia for a short period of time before returning to the States to sublet an apartment from one of his peers from class. The classmate recalls that Mikahil was oddly persistent in securing this apartment near DC : “He kept calling and calling and calling. He didn’t want to waste any time. I thought it was strange because he was always so polite to me.”. Mikahil’s cover business after his studies was that he was working as a travel agent near Washington DC that helped Chinese and Spanish speaking travelers. People who knew him did not suspect that he was a Russian spy, he was the typical mid 20 year old who liked stylish cars, was overly polite, and awkward/goofy. After his studies he would discuss international policies and China with acquaintances at length, the perfect cover for a Russian agent. The FBI surveilled Mikhail’s movements, likely after being tipped off by an informant.
The FBI used sophisticated surveillance equipment to investigate Mikhail, finding enough evidence to implicate him on espionage charges. The first piece of incriminating evidence was discovered on June 5th 2010. Agents were able to observe Mikhail enter into a popular DC restaurant, carrying with him a bag. Roughly ten minutes later a car with Russian diplomatic license plates arrived in the parking lot, drove around the parking lot numerous times, and then parked. No one got out of the vehicle. The FBI was then able to detect that a covert wireless network had been set up and was exchanging information with Mikhail inside the restaurant, in the same way Anna Chapman did in New York. Twenty days later the FBI utilized an undercover agent to make contact with Mikhail.
Mikahil’s Linkedin profile picture for his covert identity
The undercover agent used phrases Mikahil was familiar with in order to confirm that the other was an agent when on the phone. One of the phrases was “did we meet in Beijing? “ Mikhail was then to respond “Yes we might have, but I think it was in Harbin” in order to confirm that both were covert agents working for the Russian government. The undercover then planned a meet up with Mikhail in order to discuss his mission. Once they met they both used signals to confirm they were agents and proceeded with the meeting. Mikhail would go on to detail how the communication network worked, the procedure for wiping the hardrive from the network if they were discovered, and other meeting places located within the United States. The undercover had successfully gotten him to spill the beans.
After Mikahil divulged important information pertaining to the Russian cover operation, the undercover agent wanted Mikahil to make a drop, this was all done to gather evidence that Mikahil was a covert agent working for the Russian government. Unlike Anna, Mikhail trusted the undercover agent and agreed to do it. Mikhail was told to carry a newspaper with 5,000 dollars enclosed in an envelope inside and drop it off under a bridge in a secluded park. The FBI had cameras near the drop site which confirmed that Mikhail had completed his task. After this Mikhail was arrested. The FBI was able to apprehend ten individuals in connection to this Russian spy ring, but the illegals program seems to still be in use by the Russian government in 2023.
Recently another illegal operative was caught. However his cover story was far more complex. Sergey Cherkasov started acting as an Illegal agent in 2012 in Brazil using a fake alias ‘Victor Ferreira’. He moved to the United States in 2018 after obtaining admission to a graduate school program located in Washington DC. He was then looking to find work at US political institutions and was able to obtain connections to US think tanks that had insights into the US government. He was able to obtain information about the US adminstrations attitudes towards the war. He wrote to one of his handlers:
“Very important shit here… Reznikov was explicitly instructed by the administration (I don’t know by whom exactly) “not to give any conceivable signal of the US military involvement potentiality”. [sic] Meaning: the administration is definitely not in any position to help Ukrainians, if the fight breaks out. Whatever the press says or political promises were made, they are not going to be enforced beyond just words. The administration does not want this conflict, because they don’t have any meaningful way of gaining something out of it.”
In April 2022, Cherkasov attempted to obtain employment at the International Criminal Court in The Hague, Netherlands,. He was however turned away by Dutch officials (who likely knew he was a spy), Cherkasov returned to Brazil where he was arrested on fraud charges stemming from his use of the false Ferreira identity. He was formally charged by the United States on March 24th 2023.
This highlights that Russia’s covert operations in the United States have a deep history of application and are still active threats to US national security.
Going into the 21st century Germany has rapidly developed its renewable energy sector. A large reason for that growth are feed-in tariff policies. In contrast, the United States has not developed their renewable energy sector at the same rate or fashion as their European counter parts. This blog will aim to investigate why the US hasn’t developed their renewable energy policies, a large part owing to the relative lackluster feed in tariff programs.
In general feed-in tariffs (FiTs) are performance-based incentive (1) supporting renewable energy generation (2) guaranteeing payments to a producer for total kWh produced, (3) access to the grid and (4) a long-term contract, and/or similar additional terms. The origins of FiT programs can be found investigating the U.S. and Germany.
The US Energy Crisis & PURPA
The U.S. is where the first form FiT programs were implemented. During the late 1970’s, the US was facing an energy crisis stemming from various factors, both domestic and international . The Carter administration and Congress were tasked with implementing policies which mitigated the economic effects stemming from the energy crisis. The U.S. desperately needed to diversify its energy portfolio to mitigate both real and potential economic losses. The National Energy Act (NEA) was subsequently passed as legislation in response to the growing issue. The stated purpose of the NEA was to encourage energy conservation and efficiency. It also aimed to develop new energy resources which included renewable sources such as wind and solar power. The NEA contained five acts, one of which was called the Public Utility Regulatory Policies Act (PURPA) which was where the first form of FiT programs began to develop.
PURPA requires electric utilities to make purchases of electric energy from co-generation facilities and small power production facilities that are at 80 MW or less in size at a rate that does not exceed the incremental cost to the electric utility of alternative electric energy ( see Public Power, 2020, p. 1-2) This requirement is commonly referred to as the avoided cost. Due to federalist principals underpinning American jurisprudence, the Federal Energy Regulatory Commission (FERC) and the individual states are the ones that are responsible for implementing PURPA. FERC primarily determines what constitutes a qualifying facility and provides guidance on avoided costs. Avoided costs are meant to mirror the cost a utility would incur to facilitate that same electrical generation (see Public Power, 2020, p. 2-3)
As disputes filtered through the US legal system various interpretations of PURPA began to take shape. Some of the utilities and state utility commissions construed avoided costs narrowly. They believed avoided cost only included avoided fuel costs. Other utilities and state commissions chose a broader interpretation for “avoided costs” as the “avoided long-run marginal cost” of generation. Another provision included PURPA was that utilities were prevented from owning more than 50% of projects, to encourage new market entrants. Over time states began to offer contracts (known as Standard offer Contracts) to producers. These contracts used fixed prices based on the expected long-run cost of generation. (Graves, Hanser,& Basheda 2- 13). The long-run estimates of electricity costs were based on the widely held assumption that gas and oil prices would continue to increase .Id. This led to an escalating schedule of fixed purchase prices, designed to reflect the long-run avoided costs of new electrical generation. (Louise Guey-Lee, 1999, p 92-96).The adoption and implementation of PURPA lead to ample amount of renewable energy generation in certain states. Furthermore, by the mid 1990’s power producers installed roughly 1,800 MW of wind Capacity in California. Some of those systems are still being used and serviced to this day. The Standard Offer contracts can be called the first form of FiTs since producers were compensated for (1) KwH produced, (2) given access to the grid, (3) incentivized the development of renewable energy sources and (4) the contracts were long term.
Overtime, gas and oil prices went down and the energy crisis subsided. This made the PURPA Standard Offer contracts that encouraged renewable development a lot less attractive since oil and gas could now be purchased a lot cheaper. That meant there was little incentive to generate renewable energy sources because the oil and gas market recovered back to their favorable prices. Further, large utilities felt threatened when it came to their market share. That is because PURPA was partly implemented to encourage non-utility generation, which could threaten a monopolistic utility’s market share. Further, some industrial suppliers began to build inefficient generators which though met PURPA’s regulatory requirements, lead to market and ecological inefficiencies. These factors likely contributed to the steady decline of these kind of PURPA contracts that encouraged renewable generation. Though the US’s first form of a FiT program was declining into the 20th century, in another part of the world the most robust feed in tariff policy began to sow its seeds.
Stromeinspeisungsgesetz: Germany’s Feed-in Tariff
Germany is where the first comprehensive FiT program developed. In the early 1990s, a piece of energy legislation spearheaded by Matthias Engelsberger would pass through the German Bundestag to become federal law. That piece of legislation was called the Stromeinspeisegesetz (“StrEG”) (translated from German ‘electricity feed-in law’). This is the first piece of legislation that explicitly calls itself a feed-in tariff law.
StrEG was the first time the world would be introduced to a systemic feed-in tariff program that would operate in the free market. The program mandated that network operators purchase electricity produced by renewables, as long as a large utility did not produce the energy. (Allen & Davies,2014, pg 937-938). And it established incentive prices that had to be paid for those purchases (Id). These innovations were key to StrEG’s success. That’s because the mandatory purchase requirement eased the process for German renewable generators to bring their product to market. For example the law stipulated that:
“Generators were not required to negotiate contracts or otherwise engage in much bureaucratic activity”.(Lauber & Mez,, 2004, pg. 3)
This meant that StrEG removed an important barrier to entry because it was StrEG that imposed the mandate to connect and purchase electricity. This stipulation meant that the process for energy generators was significantly simplified. Had that stipulation not existed monopolistic utilities would have likely resisted efforts by new entrants to connect with their networks. (Allen & Davies,2014, pg 937-938). The graph below shows the market share of wind turbine manufactures in Germany during 1998(top) and US market share in 2015 (bottom). Germany had about the same amount of manufactures the US has now:
Going into the 21st century, the German Bundestag decided to restructure the policies found in the StrEG. In the 2000s they reinforced their FiT policy by passing the ‘Eneuerbare-Energien-Gesetz (EEG) which in English translates to ‘Renewable Energy Sources Act’. The EEG added three new initiatives to StrEGs. First, the EEG adopted the Aachen model and decoupled feed-in rates from retail electric prices. (Gipe 2007). The Aachen Model takes its name from a city in Western Germany. That city implemented one of the best policies during the StrEG era, instead of paying renewables producers a percentage of retail rates, Aachen established a solar FiT based on the technology’s cost, plus an adder to cover a modest investor profit. (Gipe, 2007). German policy makers saw this as an innovate measure because previous support mechanism tended not to reflect the price of the technology itself but rather external factors such as retail electric prices or conventional generation prices (Allen & Davies, 2014, pg 943). Second, the EEG had fixed periods of time that the feed-in rates would be paid which was usually twenty years (Id). This was a major change since previously under the StrEG, the duration of tariff payments was not specified. Finally, the EEG created a stronger investment incentive for renewables by prioritizing electricity produced from these resources over others. (Id). Therefore, German FiT had these four fundamental characteristics (1) the mandatory purchase of renewable electricity by grid operators, (2) at cost-based tariff rates guaranteed for twenty years, (3) with a priority for renewables use on the system, and (4) mandatory grid connection.
EEG was able to rapidly develop Germany’s renewable energy sector. That’s because it made renewable energy production simpler in Germany. For example, in America a typical power purchase agreement between a producer and utility would be 85 pages. While in Germany the average contract is 2-4 pages. (Farrell, 2014, pg. 14). They also make the market fairer by removing barriers of entry, entities with little to no tax liability can participate. And finally, since FiT contracts are long term they offered more stability and predictability.
Despite the EEG’s efficacy over time in developing the renewable sector, there is still plenty to critique.
The Negatives
EEG has had a beneficial impact on Germany’s renewable sector, but it has come at significant monetary cost for tax payers. In total estimated cost over these past 20 years hover around $200 billion. (Reed 2017). There are roughly 80 million Germans living during that time which means each paid about $2,500 dollars in taxes to fund these programs. Furthermore, consumers in Germany pay some of the highest rates for electricity in comparison to consumers in the US and UK. (Id).
Christop Podewils, an energy policy analyst highlights an interesting problem with EEG “It’s about saving money, but there aren’t many opportunities to save money…you can’t shave the old contracts, and new contracts are very cheap.”. Over time renewable tech has gotten better which means some electric producers are fixed at rates that do not reflect the price to produce the electricity in contemporary time. For example, a homeowner with a rooftop solar system who signed an EEG contract in 2009 is compensated 43 cents per kilowatt-hour through 2029. Now the rate for a similar system would pay no more than 13.7 cent, less than half of the 43 cent rate. Lowering new tariff prices will not affect the backlog of previous high price contracts. Lawmakers in Germany have been trying to find measures to counteract this affect, but most of the solutions run counter to principals of German contract law. (Farrell, 2014, pg. 14). The only apparent option is the passing of a new EEG bill that cuts some of the unnecessary expenditure the inefficient contracts create.
A reform bill has been proposed which would cut exemptions for industrial customers, impose a surcharge on customers who generate their own power, put caps on new developments, further accelerate the decline in payments for certain renewables, and cutting “market incentives” to sell renewables on the power exchange. (Paulos 2014). Exemptions are given to 2,100 companies that are “electricity-cost intensive and trade intensive,” according to the Ministry of Economic Affairs and Energy (BMWi). Generally these companies use 25 percent of Germany’s power, but only pay 2 percent of the surcharge. (Paulos 2014). Residential and small commercial customers pick up the cost, paying roughly 30 billion dollars a year. High energy costs are harmful for consumers. Especially indigent consumers since they will likely have to pay higher proportion of their income to meet their energy needs. The European Bank has studied this issue extensively and has noted that Germany’s EEG could exacerbate economic conditions for certain segments of their society. (Fankhauser & Tepic 2005). That is because renewable development has been focused away from poorer communities, meaning these community members may find it harder for them to heat and power their homes in an efficient manner. These consumers help finance the renewable grid, but do not get to directly benefit from the service. This can lead to resentment to the energy policy since the consumer pays but does not benefit from the service.
In essence the EEG has greatly expanded renewable development by mandating 1) the mandatory purchase of renewable electricity by grid operators, (2) at cost-based tariff rates guaranteed for twenty years, (3) with a priority for renewables use on the system, and (4) mandatory grid connection. Along with several amendment that expanded EEG. However, these measures have come at a great monetary cost for the German Government and German taxpayer.
Though the US is where the first form of FiT developed, those polices would not thrive in the 21st century. Unlike Germany, the U.S. has not implemented any federal feed-in tariff legislation. There has however been significant legislative activity within the states.
The California Model
The German Bundestag had Aachen as a model for their FiT policy design and implementation. But if the US were to enact a federal FiT program they would likely use California as a referential model. Mainly because California has one of the most robust and successful FiT programs in the US. There are plenty of factors that explain that. As noted before FiTs can be expensive to implement. Government expenditure can easily rise over time. California is an international economic powerhouse, and so their government has the capital to create a lucrative FiT program. Furthermore, California is also one of the “tech hubs” of the world which makes a favorable economic environment for developing new renewable tech. They are also leaders in renewable technology. These market conditions make California prime for FiT programs.
In 2008 The California Public Utilities Commission (CPUC) approved an FiT. The CPUC press paper stated that :
The power that is sold to the utilities under the feed-in tariffs will count toward the utilities’ Renewables Portfolio Standard (RPS) goals. California’s RPS program is one of the most ambitious renewable energy standards in the country. The RPS program requires electric corporations to increase procurement from eligible renewable energy resources by at least 1 percent of their retail sales annually, until they reach 20 percent by 2010.
This marked California’s first FiT program. Shortly thereafter, Marin Energy Authority launched the first Community Choice Aggregate Feed-in Tariff program. The program was updated in November 2012, and now offers 20-year fixed-price contracts, with prices varying by energy source (peak, base-load, intermittent) and progress towards the current program cap of 10-MW. (MCE Clean Energy). California would then enact state laws which would greatly expand it’s FiT program. Some of these laws allowed homeowners to sell excess power that they generated to utilities. One of these laws was the California Solar Initiative (CSI). Unlike the German EEF, The CSI stipulated that customers were not allowed to install systems that overproduced, encouraging efficiency. (Id).
According to a study conducted by Dan Kammen and Max Wei at Berkeley’s Renewable and Appropriate Energy Laboratory Energy and Resources Group, a well-designed FiT could bring California $2 billion in additional tax revenue and $50 billion in new investment, while adding an average of 50,000 new jobs a year for a decade. (Kammen and Wei). But such progress may be diminished. Recently a FiT program called Re-MAT was deemed to be unconstitutional by the federal courts. (See Winding Creek Solar LLC v. Michael Peevey, et al.). A company failed to secure a Re-MAT at what they deemed an acceptable price, so they decided to challenge the constitutionality of the program in federal court. The Northern District of California held that the Re-MAT program conflicts with PURPA and its implementing regulations and thereby violates the Supremacy Clause of the U.S. Constitution. The court made two factual determinations: One was that the CPUC’s imposition of caps in the Re-MAT program violates PURPA’s must-take obligation for QFs, and secondly that the procedure for setting Re-MAT pricing strays too far from the PURPA requirement that QF contract pricing be set on a utility’s but-for cost. These types of court decisions signal that the FiT market in California is not predictable and therefore not the most stable.
Lessons for the US
The most obvious measure the U.S. would likely benefit from is a federal FiT program. Ideally the federal legislation would offer a significant latitude of power to the states in implementing their state FiT programs. The US is different both culturally, geographically, and economically than Germany, so an EEG replica would not necessarily work everywhere. Some states like California could copy and paste the EEG into their state law and see significant benefits. (Stokes 2013). But some states like Wyoming would have to operate differently. If there was federal legislation it would have to be catered away from the “one size fits all” theories of legislation. FiTs need to be allowed to be flexible to develop a state’s renewable energy sector.
Another key factor would market participation from all consumers and producers. FiT’s in the US should be inclusive of both large utilities, startups, and average consumers. This could encourage market participation since everyone has an “equal” chance to participate in FiTs with little to no barriers. (Stokes 2013). But as seen in the amendments made overtime in the German EEG, any exemptions to the rules made for certain entities should be continuously evaluated to make sure participants do not financially abuse the FiT system.
It’s no secret that human trafficking is an issue that must be dealt with. Human trafficking involves the use of force, fraud or coercion to transport persons across international borders or within countries to exploit them for labor or sex.[1] The International Labour Organization estimates that 40.3 million people are victims of human trafficking.[2] These statistics mean that on any given day over 40 million people are being trafficked for the purposes of either forced labor or sexual exploitation. Sex trafficking has dominated headlines in the 21st century, and rightly so, since UN reports stipulate that 50 percent of detected human trafficking victims were sex trafficked. [3]Additionally, over 38 percent of detected victims were trafficked for forced labor purposes.[4] These alarming
figures are a wakeup call for the international community, leading to the 2030 Sustainable Development Goals (SDGs) which are committed to ending modern slavery and human trafficking by the year 2030.[5] There have also been several initiatives to combat human trafficking such as the Palermo Protocols and the 2014 protocol to the Forced Labour Convention (1930).[6] The Palermo Protocols are more focused on combating human trafficking with two of the three protocols being focused on trafficking, while the 2014 Forced Labor Protocol is focused on combating forced labor trafficking and “slavery-like practices”. [7][8]
It is worth noting that trafficking crimes are actionable under customary international law, even when asserted against private actors.[9] Since they are actionable crimes, the United Nations Office on Drugs and Crime has the right to enact measures against these crimes. However, despite these ambitious goals and protocols, there have been notable lapses in enforcing the crime on the international scale. Behavior from states following these protocols suggests that they usually attempt to address trafficking from either an immigration perspective or from a solely criminal perspective, which is limiting.[10] This is a cause for concern since, with a multifaceted issue such as human trafficking, the implementation of all possible international initiatives to combat trafficking is a priority. One legal instrument that could help facilitate the enforcement of international human trafficking would be a human rights-based approach to help tackle the issue via the establishment of ad hoc tribunals. The main argument put forth by this piece will be to suggest that human trafficking is a crime against humanity, and that the creation of an ad hoc tribunal operating under the Forced Labour Convention (1930) would likely have a positive immediate impact on efforts to enforce the law on human trafficking.
Methodology
This piece will discuss this issue in three parts. The first part will use three places as case studies to describe the large scale nature of the human rights atrocities that are occurring which are also facilitating human trafficking, making the issue of persecuting human trafficking a human rights concern. The second part will argue that human trafficking should be a crime against humanity and can likely be brought forth to the ICC. However realistically this may not happen considering the nature of the ICC. The third part will discuss the importance of creating ad hoc tribunals under the framework of the Forced Labor Convention of 1930 to combat human trafficking. Arguably this will help set further precedent to make sure it is a crime against humanity under Article 7 of the Rome Statute and therefore actionable by the ICC.
I. Modern Trafficking Issues
The reason it is important to discuss modern trafficking is show that human trafficking is a pressing issue. Framing both human rights abuses and human trafficking in context with one another will allow us to investigate the relationship between the two. This will allow us to see strong correlations between human rights atrocities and human trafficking, setting up the discussion as to how human trafficking is essentially a crime against humanity. In order to further this discussion several modern human rights abuses will be examined to show how they have facilitated the rise of human trafficking on an international scale. The first example will be the Rohingya genocide perpetuated by Myanmar; the second example will describe the human trafficking occurring to fund Boko Harams terrorism; thirdly we will describe the rise of human trafficking in Libya after the Libyan Revolutionary War. These examples will further the argument that human trafficking should be seen as a crime against humanity due to the endemic rise of various atrocities occurring in the world. It’s important to note that these are not the only instances of large scale international human trafficking. There are plenty of examples across the world that could help further the discussion.[11][12][13] These particular nations were selected due to the lack of enforcement found within their jurisdictions.
A. The Ethnic Cleansing of The Rohingya in Myanmar
The Southeast Asian nation of Myanmar has recently ramped up its campaign of discrimination and violent persecution of the Rohingya peoples.[14] The Rohingya are an ethnic minority in Myanmar and differ from the majority in several ways.[15] The main difference is that the Rohingya commonly practice Islam while the majority practice Buddhism.[16] Additionally, the Rohingya have a different physical racial makeup then the majority. [17] The first major instances of state sponsored persecution of the Rohingya can be traced back to
the Nationality Law of Myanmar.[18][19] This piece of legislation was enacted in October 15th, 1982 and basically rendered the Rohingya stateless, making them eligible for state prosecution since they did not fall under the 135 “national races”. [20][21] That meant they had no rights in the eyes of the Myanmar Government. Over time there was systematic persecution of the Rohingya, cumulating into the eventual 2012 pogroms against the ethnic minority.[22] The state of Myanmar has also been accused of requiring the Rohingyas to perform forced labor.[23] According to the Special Rapporteur on the Situation of Human Rights in Myanmar, the military has been making use of forced labor, since they have been lacking in labor resources.[24] Additionally, the government has been involved in the enslavement and trafficking of the Rohingya in Myanmar, with the Rohingya being forced to participate in the construction of various government projects.[25] Men and boys are arbitrarily picked up and are forced to immediately follow the authorities to the construction sites.[26] Rejecting these forced labor demands often results in killings, torture and rape of other family members unless the person concerned pays financial compensation to the authorities.[27]
The atrocities in Myanmar have forced residents to flee the area to avoid prosecution.[28] Unfortunately, this has led human traffickers to prey on the vulnerability of Rohingyan refugees. For example, families have been selling their children to labor and sex traffickers to raise money.[29] So far in Bangladeshi refugee camps at least more than 1,000 individuals have been identified as victims of human trafficking.[30] Further, there is evidence to suggest that officials in Thailand and Malaysia have actively participated in the trafficking of the Rohingya when they attempt to seek asylum.[31] This has resulted in countless numbers of Rohingya being trafficked for the purposes of forced labor and prostitution. According to victim’s stories, several hundred Rohingya have been deprived of their liberty by traffickers and tortured while extorted for money.[32] The Rohingya case shows us how intertwined human rights atrocities such as genocide can incentivize human trafficking of the persecuted group. Not only will the oppressors attempt to traffic the vulnerable population, but other nefarious actors will attempt to capitalize on the situation.[33]
B. Boko Haram: Funding Terrorism Through Human Trafficking
Boko Haram is a terrorist organization founded in Nigeria in the 20th century.[34] Boko Haram’s terroristic operations have been mostly focused within northeastern Nigeria and other contiguous countries such as Chad, Niger, and Cameroon. Its ideology has been centered around the teachings of Mohamed Marwa who expressed the abandonment of all western ideology, declaring that the Quran is the only book that should be read.[35] Overtime the group has become notorious for trafficking women and children for the purposes of forced marriages, forced labor, military conscription and selling victims to the highest bidder in order to finance their ideological goals.[36] Boko Haram has begun operating “baby farms.” A baby farm is where women who are trafficked have babies, and those babies are then sold to people for a profit.[37] Philip Obaji reports that “women and girls are held captive to deliver babies who are then sold illegally to adoptive parents, forced into child labor, trafficked into prostitution or, as several reports suggest, ritually killed”.[38] Prosecuting Boko Haram’s human trafficking activity has proved difficult, despite Nigerian anti-trafficking laws.[39] This can largely be attributed to enforcement issues such as the lack of funding, corruption, and inappropriate application of trafficking law by the judiciary.[40] If Nigeria cannot properly prosecute Boko Haram for their human trafficking operations, perhaps an international tribunal especially dedicated to handle these matters would prove beneficial.[41]
C. The Horrific Effects of the Libyan Revolution
Libya has gone through major institutional reforms since the fall of Muammar Gaddafi. [42] Though the revolution was supposed to liberalize Libya, the opposite seems to have occurred. After the revolution there has been a lack of institutional capacity and enforcement of human trafficking laws.[43] The current administration that is in power has failed to facilitate a fully functioning judicial system and enforcement agencies. [44] This has resulted in extrajudicial proceedings maintained and enforced by armed bans of militants.[45] These “enforcers” have committed a plethora of human rights abuses ranging from unlawful killing, forcible military recruitment, forced labor, and human trafficking.[46] Trafficking victims have included both adults and children who are vulnerable to the instability and violence that is occurring within Libya.[47] Furthermore, refugees from Sub-Saharan Africa looking to enter Europe through Libya have been subject to human trafficking, in some instances these venerable refugees are trafficked for forced labor or into prostitution.[48] These atrocities were made infamous after a couple of videos showing chained people being sold in an auction reminiscent of the times of the Trans-Atlantic slave trade were widely publicized in mainstream media outlets in the western world[49]. To this day the government of Libya has not provided any reports on prosecuting or convicting any individuals on the grounds of human trafficking.[50] Additionally, the government has no programs that encourage victims to participate in investigations and prosecutions against their traffickers.[51] This is problematic since Libya is a signatory of the Convention Concerning Forced or Compulsory Labour (1930).[52] This begs the question of what institutions will hold these people accountable for committing these atrocities when the domestic instutions fail to fulfill their obligations on international human trafficking and forced labor agreements?
II. Human Trafficking: A Crime Against Humanity Under Article 7 of The Rome Statute?
Because human trafficking has proven to be a persistent problem for the international community, it should be recognized as a crime against humanity. There has been a fair amount of scholarship advocating for human trafficking to be a crime against humanity.[53] For example scholar Tomoya Obokata has noted that “trafficking… is not an ordinary crime with transnational dimensions. It has increasingly been recognized that trafficking can rank among the ‚most serious crimes of concern to the international community as a whole‘or delict juris gentium.” [54] Furthermore, he notes that in the context of human trafficking , subsequent exploitation can be regarded as slavery which would mean that trafficking would be a crime against humanity under Article 7 of the Rome Statute. [55] This is significant since the Rome Statute established the jurisdictional parameters of the International Criminal Court.[56] Further state actors are not the only people that can be prosecuted under the ICC. Courts have noted that criminal gangs and other organized groups can also be prosecuted.[57] Furthermore, the opinion in Prosecutor v.Kunarac, decided by the International Criminal Tribunal for the Former Yugoslavia, held that “ the duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved’”.[58] On its face the durational acknowledgement by the court seems to insinuate human trafficking is a crime against humanity under the umbrella of “enslavement” under article 7 of the Rome Statute since human traffickers exercise control over a victim to perform forced labor or sex acts.[59] But the court notes that the buying, selling, or trading in humans, although an important factor to be taken into consideration, is in itself insufficient in determining whether or not that enslavement has been committed.[60] This is a problematic narrowing by the court. In order for human trafficking to become a crime against humanity under Article 7 of the Rome Statute, human trafficking would need to fall under the definition of enslavement which requires a higher level of scrutiny since “buying, selling, and trading of humans” is insufficient to prove that a crime was enslavement, according to the Kunarac court.[61] Therefore, it is paramount that human trafficking be enumerated within the Article 7 of the Rome Statute as a crime against humanity itself. The United Nations defines human trafficking as the recruitment, transportation, transfer, harboring, or receipt of persons by improper means (such as force, abduction, fraud, or coercion) for an improper purpose including forced labor or sexual exploitation, this exact definition would render the “buying, selling, and trading” of humans as crime against humanity itself had human trafficking been enumerated within Article 7 of the Rome Statute. [62] However, despite the validity of these arguments it would take a significant lobbying effort to get such a measure passed.[63]
Though all of the above may be true it is unlikely that the Rome Statute would be amended to include human trafficking within Article 7 anytime soon. Further, there are large number of nations who are not signatories of the Rome Statute, so even if human trafficking were to become a crime against humanity 43 of nations would not fall under the jurisdiction of the ICC.[64] Hypothetically these nations could become safe harbors for human traffickers. However, if a tribunal was created under an amendment of the Forced Labor Convention 2014 Protocol then arguably proper judicial remedies would be available for human trafficking atrocities that are occurring around the world. Additionally, this tribunal operating under the FLC 2014 protocol could facilitate adjudication for the ICC by setting the appropriate precedent for the ICC. History has proven that past tribunals have been instrumental in how the ICC has proceeded in its present case load. For example, the first case tried by the ICTY was Prosecutor v. Tadic. In that case the main argument Tadic had was that the court lacked jurisdiction since neither he nor Serbia ever consented to the jurisdiction of the court.[65] Proponents for the ineffectiveness of this international tribunal likely found tremendous merit in Tadic’s argument. Thankfully the court was able to assert its jurisdiction by citing prior tribunal precedent, namely the Nuremburg trials and other customary international law; the court was able to carefully dismantle the jurisdictional argument made by Tadic.[66] The court laid the criteria for establishing an International Tribunal which includes the establishment in accordance with proper international standards, the provision of guarantees of fairness, justice, and even-handedness that have been full conformity with internationally recognized human rights instruments.[67] This meant that tribunals like those created in the Tadic case are often endowed with primacy over national courts when enforcement cannot properly occur within a nation’s jurisdiction. The Tadic case provided the precedent for future adjudication for the ICTY, International Criminal Tribunal for Rwanda, and ICC, consistently being cited as the prima facie case that asserts the legitimacy of international courts when dealing with human rights atrocities. Further, since the precedent set in Tadic over 200 war criminals have been fully prosecuted under the law in international courts. Though more could always be done in regards to adjudication of international crimes in international tribunals, there has been considerable progress in regards to adjudication of crimes on the international scale. Let’s remember international courts are relatively young and need more time to fully develop their potential. After all national courts often go through a similar “infancy” stage. For example, it took the US judiciary years after its inception to develop judicial review and the idea of substantive due process.[68][69] In light of the effectiveness of international tribunals that I have outlined, another tribunal focused on combating human trafficking would likely be effective and would not be hindered by challenges to its jurisdiction.
III. Ad Hoc Tribunals That Enforce the Forced Labor Convention Would Be An Effective Way to Counter Human Trafficking When National Courts Lack the Capacity to Enforce Anti Trafficking Laws
A.The Case for an Additional Amendment to the FLC 2014
The FLC 2014 protocol puts an obligation on states to “provide protection and appropriate remedies, including compensation, to victims of forced labour and to sanction the perpetrators of forced labour.[70] It also obligates states parties to develop “a national policy and plan of action for the effective and sustained suppression of forced or compulsory labour”. [71] Considering the aforementioned case studies this has not significantly deterred human trafficking in areas where enforcement is minimal to say the least. The protocol could be further amended to include a provision which makes the failure to uphold the FLC 2014 protocol a trigger for an investigation and if ineffective implementation is found then an ad hoc tribunal would be created to make sure that the protocol is enforced via adjudication. Furthermore, a provision could be included to allow voluntary investigations, allowing nations that do not have the enforcement/ adjudicatory capacity to call upon an ad hoc tribunal to deal with a matter a national court may no be equipped to handle. The option for voluntary investigations is important considering the fact that a large amount of the ICC’s cases have come from self-referrals. [72] Often people criticize the ICC for selective enforcement, particularly in Africa. However, most of the ICC’s jurisdiction in Africa comes from self-referrals.[73] These provisions would be necessary in order to create a court that could handle human trafficking crimes on the on international scale. The main reason the FLC would be the proper vehicle to facilitate adjudication of international human trafficking is because of its broad mission to “suppress the use of forced labour in all its forms irrespective of the nature of the work or the sector of activity in which it may be performed”.[74] This would include both forced labor and sex trafficking. Additionally, all but fifteen nations have ratified the 1930 FLC convention, which makes it a powerful legal instrument on the international scale. Additionally, the 2014 protocol was approved with 437 votes in favor and 8 against (each member state has 3 votes).
B. Consistent Enforcement
If an ad hoc tribunal provision were to be promulgated under the FLC of 1930 then we could expect consistent enforcement of norms against human trafficking, especially in nations that have had issues with the rule of law. For example, the Democratic Republic of Congo and Mali have had trouble prosecuting war criminals and invited the ICC via self-referral to ensure that crimes against humanity are being punished in a consistent fashion. [75][76]. Scholars have noted that consistency of enforcing international human rights principles is one of the primary factors for establishing the rule of law within a region. [77] Establishing an ad hoc tribunal in places where human trafficking enforcement has been substandard, for example in Libya and Nigeria, would be a proper step forward in combating human trafficking.
C. General Deterrence
Furthermore, the ad hoc tribunal could serve as a symbolic deterrent since, if there is an active tribunal prosecuting human trafficking cases, potential perpetrators would be deterred for fear of prosecution. Though the deterrent effect of international tribunals is a contentious topic within international legal scholarship, there is evidence to suggest that the ICC does have a deterrent effect.[78] For example, in the Democratic Republic of the Congo, there is evidence that ICC prosecutions are having at least some impact on the militaristic behavior of troop commanders. Media reports from the region have highlighted that a significant number of ex-combatants have noticed a modification in the behavior of rebel commanders which have been designed to avoid the possibility of ICC prosecution. This phenomena has been noted in the region of Ituri, which has been the focus of the ICC’s investigative and prosecutorial activities.[79] Furthermore, after the ICC expressed interest in investigating Colombia for crime against humanity, the government subsequently took measures to promulgate laws that made sure their officers were not committing war crimes and crimes against humanity. Investigations by the Crisis Group have noted that:
“The threat of ICC prosecution appears to not only have influenced the calculations of the Colombian government – including former President Pastrana who, according to cables published by Wikileaks, expressed (unwarranted) concern that he may be prosecuted by the ICC for his actions while in power from 1998-2002 – but also by key rebels. And at least one of the leading paramilitary leaders, Vincente Castrano (AUC), was apparently sharply aware and fearful of the possibility of ICC prosecution, a fear that reportedly directly contributed to his demobilisation.”[80]
Though opponents of the ICC’s deterrent effect are plenty, the main argument against the ICC is for “specific deterrence” which is not the kind of deterrence this paper is discussing. [81] Rather this paper is concerned with “general deterance”. General deterrence focuses more on educating the general public on the legal ramifications of illegal behavior, rather than just the individual being charged with a crime.[82] The idea is that, if an individual is punished for a crime that was not enforced, the public will be aware of the punishment and be dissuaded from engaging in the same or similar activity.[83] Specific deterrence is variable and can mainly be studied on case by case basis, since specific deterrence emphasizes the deterrent effect on specific individuals charged with crimes. [84]
D.Crystallization of Legal Precedent
Creating an ad hoc tribunal via the FLC of 1930 would also allow for the crystallization of legal precedent on the international scale. Much like how Tadic solidified the jurisdiction of international tribunals, a tribunal specializing on human trafficking issues would be setting the appropriate legal precedent for human trafficking internationally. The merit of that would be that the establishment of legal norms in regard to human trafficking. Nations could use the judgments of the ad hoc tribunal as guides for court rulings, establishment of legislation, and enforcement.[85] There has been a trend for domestic courts to rely on international law and cases as guiding principless that influence court rulings, most notably in Asian nations.[86] Furthermore, if this ad hoc tribunal were allowed to function it could facilitate the ICC when the ICC is dealing with human trafficking issues. By having systemic pieces of legal precedent solidifying the norms for adjudicating human trafficking on the international scale this could facilitate the crime of human trafficking becoming a crime against humanity under Article 7 of the Rome Statute.
Conclusion
In conclusion, this piece highlighted various human rights abuses around the world that have helped facilitate human trafficking, showing us that the two offences are intertwined. If war crimes or crimes against humanity are occurring then there is the strong likelihood that human trafficking is also occurring. Additionally, the case studies in Myanmar, Nigeria, and Libya have shown us that the issue of human trafficking is a problem that must be dealt with on an international scale due to the failures of enforcement within various regions in the world. Those case studies are not the only instances of large-scale human trafficking operations but are only a few cases across a wide spectrum of human trafficking. The argument that human trafficking should be enumerated as a crime against humanity within the Article 7 of the Rome Statute has merit and should be considered. However, lobbying for such a cause would likely take a considerable amount of time. Having recognized these difficulties, this paper discussed the merits of creating an ad hoc tribunal under the FLC of 1930. Specifically amending the 2014 Protocol under the FLC of 1930 would be the best route to create the necessary triggering mechanisms to create a tribunal that can investigate human trafficking. The benefits of this ad hoc tribunal would be centered around consistent enforcement, deterrence, and the establishment of legal precedent for the prosecution of human trafficking. Though more research needs to be done to analyze the potential negatives of such a measure, the creation of ad hoc tribunals to combat human trafficking would be the right step forward in mitigating the severity of the issue.
[12]https://www.state.gov/reports/2021-trafficking-in-persons-report/liberia/ The Government of Liberia does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. These efforts included opening a new shelter for child trafficking victims, initiating an investigation into a high-profile labor trafficking case in cooperation with foreign governments, and allocating funding to NGOs to conduct awareness raising campaigns.
[13]https://www.state.gov/reports/2020-trafficking-in-persons-report/ukraine/ noting that traffickers kidnap women and girls from conflict-affected areas for sex and labor trafficking in Ukraine and Russia. Traffickers targeted internally displaced persons and subjected some Ukrainians to forced labor on territory not under government control, often via kidnapping, torture, and extortion.
[42]Vanessa A. Arslanian, Beyond Revolution: Ending Lawlessness and Impunity During Revolutionary Periods, 36 B.C. Int’l & Comp. L. Rev. 121, 125 (2013) noting that “leaders seek a return to pre-Gaddafi federalism, and demand their own legislature, courts, and police. Such increased demand for regional autonomy threatens the NTC’s plan to form a constituent assembly
[54] Tom Obokata, Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System, 2005, vol. 54, no. 2, pp. 445–457.
[57] See 53rd International Law Commission ‘Opinion of the International Law Commission work of its 43rd Session’ 1991 ILC Report 266. which stipulates that a crime again committed ‘in a systematic manner or on a large scale and instigated or directed by or by any organization or group.’the ILC states on direction of a Government or any organization or group, which may or may not be afflicted with a Government, can be a crime against humanity.
[59] Traffickers target victims using tailored methods of recruitment and control they find to be effective in compelling that individual into forced labor or commercial sex.
[60] See Prosecutor v. Kunarac, Nos. IT–96–23 ¶ 58 (Int’l Crim. Trib. for the Former Yugoslavia June 12, 2002)the court noting that: “The Prosecutor also submitted that the mere ability to buy, sell, trade or inherit a person or his or her labours or services could be a relevant factor. The Trial Chamber considers that the mere ability to do so is insufficient, such actions actually occurring could be a relevant factor”
[63] See Articles 121(3), (4), and (6) of the Rome Statute of the International Criminal Court. Amending Rome Statute would necessity a two thirds majority of the 123 signatories. The process of inclusion into the Rome Statute has 4 stages: proposal, admissibility, amendment, ratification. Further after a year it is amended another seven eighths must ratify for it to come into force for all state parties.
[68] See Marbury v. Madison, 5 U.S. 137, 137, 2 L. Ed. 60 (1803) which developed the standard of Judicial Review h
[69]See Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), overruled in part by Day-Brite Lighting Inc. v. State of Mo., 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 (1952), and overruled in part by Ferguson v. Skrupa, 372 U.S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963), and abrogated by W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937); Adair v. United States, 208 U.S. 161, 167, 28 S. Ct. 277, 277, 52 L. Ed. 436 (1908), overruled in part by Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 61 S. Ct. 845, 85 L. Ed. 1271 (1941) which helped refine the notions of substantive due process
[70]See Ratifications of P029 – Protocol of 2014 to the Forced Labour Convention, 1930
[72] Lorien Giles. “The Future of Self-Referrals to the ICC: A Path to Greater Legitimacy with State Parties and the International Community.” The International Criminal Court Forum, https://iccforum.com/forum/permalink/113/31219.
[86] Venkatachala Hegde. “International Law in the Courts of India.” Asian Yearbook of International Law, Volume 19 (2013), 2018, pp. 63–87., https://doi.org/10.1163/9789004379756_003.
Broadly speaking the equal footing doctrine stipulates that all states admitted to the Union under the Constitution in 1789 enter on “equal footing” with the 13 states already in the Union. This doctrine has implications for natural resources law, specifically, state’s title interests in their public lands. Under the Equal Footing Doctrine States’ have title to land that was navigable at the time the State entered the Union. This established equality between the states regarding their political power and state sovereignty. Several landmark cases illustrate this point.
In Pollard v. Hagan, the Supreme Court held that the shores of and land beneath navigable waters were reserved for that state. The proper test to determine navigability for Equal Footing purposes is the Daniel Ball test. The test necessitates making a factual determination about whether a source of water was navigable at the time of a state’s unionization. For example, in Ball the issue was whether a federal law mandating a permit to transport merchandise or passengers extended to wholly state activity. The court determined that it was navigable because the water way’s capacity was customarily used as a “highway for commerce” and “travel”, implicating the commerce clause.
Hagan outlined the limitations on Federal power on state lands. This case was decided during a period of growth for state rights advocacy which may have had a slight influence on the outcome of the case. The issue was whether Alabama had title to the submerged lands between the shores of navigable waters within their border. The court held that Alabama had title to the lands since the land underneath navigable waters was vested to the states under the Equal Footing Doctrine. Even dried lands that are intrastate and are modestly used for commerce are subject to the Equal Footing Doctrine (see Utah v US). The implications of that are that states hold title via the Equal Footing Doctrine but are limited in use by the Public Trust Doctrine.
In contrast, the Public Trust Doctrine comes from state law and controls what the states can and cannot do with lands underneath navigable and tidal waters that were acquired under the Equal Footing Doctrine. However, this discretion is limited by the federal government. States cannot abdicate this trust duty in the same way they cannot give up their police power (Defenders of Wildlife v. Hull (2001)). States may also not discriminate between residents and non-residents in granting access to these areas that fall under the Public Trust Doctrine (Neptune City v. Avon-By-The-Sea (1972)).
Despite these federal limits, the scope of the public trust is quite expansive and includes non-navigable tributaries (National Audubon Society v. Superior Court (1983)), as well as lands influenced by the tides, whether or not they are navigable (Philips Petroleum Co v. Mississippi (1988)).
The purpose of the public trust is to provide for navigation, commerce, fishing, and preservation (Illinois Central Railroad Co v. Illinois (1892)). The navigability “for title” test is further broken down into navigable in fact and tidal. Whether the state, using the Public Trust Doctrine, has discretion depends on whether the waters were navigable at the time the state entered the union, which falls under the Equal Footing Doctrine.
While the Public Trust Doctrine provides a method for separating public waters from private waters based on the federal Daniel Ball test, this distinction is further complicated by recreation. This led to the development of the navigability “for use” test. States vary in their application of this test. Some states like Colorado hold there is no right to recreational use over private property containing non-navigable waters (People v. Emmert (1979)) whereas other states like Montana hold that there is (Montana Coalition for Stream Access, Inc. V. Hildreth (1984)).
In conclusion there are similarities between the two doctrines, but they operate differently. The Equal Footing Doctrine allows states equal title for lands underneath navigable waters. While the states are limited by this federal doctrine, the Public Trust Doctrine allows for discretion by the states through the use of the other navigability tests.
As the world approaches another economic recession due to COVID-19, the Frugal Five (Austria, Denmark, Germany, the Netherlands, and Sweden) have decided that southern Europe is at fault for not preparing enough for the crisis. After an emergency meeting conducted by the European Union, the Frugal Four voiced their discontent for having to be punished for saving for a rainy day. This outcry has reopened an old “beef” between northern and southern European nations. Remember that in the early stages of the eurozone crisis in 2008 the Frugal Four were among the most vocal opponents of the initial Greek “bailout”. They demanded drastic austerity measures in return for emergency bailouts. The former Dutch finance minister Jeroen Dijsselbloem gained widespread notoriety for his pocket watching while negotiating the Greek debt response. Let’s remember at one time he suggested that his southern European neighbors had wasted their money on “booze and women”. He wasn’t the only high level representative to hold such views. Angela Merkel complained that southern Europeans retire too early and don’t work as hard as their northern counter parts. The Frugal Four have continuously obstructed sound responses to economic crisis for the sake of upholding an economic ideology called ordoliberalism. But times like this call for action detached from fervent idealism.
The work below will show you how ordoliberalism has negatively influenced the EU’s response to economic catastrophes. Germany will be scrutinized since it is the most influential in terms of monetary policy in the EU.
Germany’s Economic Miracle
Ever since Germany’s ’economic miracle’ that followed World War II, there’s been a plethora of research and literature investigating the methods used to bring Germany out of their economic crisis. Generally, scholars often identify ordoliberalism as the economic policy utilized by the German government to overcome the economic
Germany’s Economic Miracle in a graph
catastrophe. The framework of ordoliberalism was developed prior to World War II. In the 1930s, a few professors from the University of Freiburg in Germany developed a robust and conducive economic/legal framework that could curtail monopolistic encroachments, respond to economic burdens, and maintain a certain degree of freedom for the populous. The professors often credited for the early development are the economist Walter Eucken and two legal scholars Franz Böhm and Hans Grossmann-Doerth. Over time ordoliberalism began to solidify and was identifiable by its distinct characteristics. But what exactly is ordoliberalism? Well, like everything, it depends who you ask.
In general, ordoliberal principals can be summarized as a state centric approach that provides a viable economic framework which supports the state’s social and economic interests. In terms of monetary policy, stability is key for ordoliberalism. Fiscal stimulus measures should be avoided if they make the overall economy unstable. The direct inverse of French and U.S. fiscal policies which don’t want to necessarily intervene fiscally but if things are dire the state will apply fiscal stimuli to help the economy.
Hyperinflation rendered German currency so useless kids used it to have fun.
Germany is opposed to such measures, mainly due to the hyperinflation experienced during the 1930’s. These measures had extreme effects on society and arguably contributed to the rise of the Nazi party. Ironically, the Nazi party recognized that hyperinflation may indeed lead to societal instability and began to develop the early foundations of ordoliberalism. The post Nazi German government also utilized and implemented ordoliberal policies after World War II. However, a lot of Germany’s development can be credited to generous aide offered by the USA, with little to no strings attached. Results came fast for the German economy. Between the 1950s-60 the German GDP rose roughly 8 percent every year. In comparison to other nations in the region, Germany’s growth was faster than any other nation within continental Europe. Germany’s rapid economic growth subsequently gave rise to higher living standards within that ten-year span. This initial exponential growth would set up a new powerhouse in Europe in terms of economics. And further, ordoliberalism was then acknowledged as a viable and legitimate economic alternative to the neoliberal economic framework touted by England and the US. Instead of increased debt, nations could monitor their spending and limit government fiscal intervention to achieve economic growth.
But recently ordoliberalism has come under scrutiny. This piece will attempt to answer whether German ordoliberal policies have hindered modern economic progress for the European Union. The world economy has radically transformed since the 20th century when Germany “manifested” its economic miracle via ordoliberalism. And the argument put forth will be that ordoliberal policy is slow in recognizing an economic crisis, impacting societies ability to respond in a rapid and prudent manner. Further, when an economic crisis is finally identified, the ordoliberal policies set forth are often counterproductive in terms of successfully overcoming the crisis. In contrast, a better approach would be one which attempts to address economic crisis within the context of the crisis itself. We will call that approach “economic pragmatism”.
First, we will commence by providing a bit of a literature review on the topics at hand. After the literature review section is finished we will go on to discuss the framework I’ll be relying on. Namely, the framework will be of a pragmatist nature in terms of economics. Then a case study on Germany’s response to the Eurozone crisis will be discussed. Analyzing the Greek economic crisis will enable us to analyze the implementation of ordoliberalism to a specific modern crisis. Thereafter, a comparison between other economic policies and ordoliberalism will give us insight on where ordoliberalism gets things wrong.
Ordoliberalism as economic/legal policy has its origins in Germany. Viktor Vanberg has highlighted the development of ordoliberal thought and how the ideology has been perverted from its intellectual origins. The founders of Ordoliberalism actually fully understood that the ideology wasn’t perfect, and Vanberg notes that the idea of the strong state has been grossly misinterpreted. The “strong state” phrase that comes out of ordoliberalism was originally understood as a state that is constrained by a political constitution which prevents government from becoming the target of a special interest. For example, no single interest, such as the oil industry, should have undue influence in government affairs. Nowadays the “strong state” notion is interpreted more simply. Now people understand that the strong state only creates the economic and legal dimensions of a certain nation and the state should not interfere the economy. But the nation is limited fiscally since it is not allowed to stimulate the economy “artificially” via stimulus provisions. Research conducted by Sebastian Dullien and Ulrike Guérot suggests that the ordoliberal ideology has become the de facto rule of European Union policy in terms political and economic measures. This means that ordoliberalism has become the dominant ideology in the European Union. Though there are critiques of the ideology within the EU, Dullien and Guérot note that ordoliberalism has become “mainstream” in the EU. So that means voices of critique are marginalized in the sphere of the European Union since leading government officials commonly refer to ordoliberal principals as the “right” and only “true” ways to conduct economic policies . The de facto nature of ordoliberalism in the EU sphere can be connected to research done by Matthias Matthijs. He explains that Germany’s economic policies seem to adhere to an “ideas over interests” policy. Put simply Germany often undercuts economic stability and growth in favor of maintaining and adhering to the strict tenants of ordoliberalism. And quite often nations aren’t too keen to push back since the ideology is seen as the consensus and not only that but it is seen as the “absolute” economic truth. The domineering nature of ordoliberal thought in the EU allows readers to infer that perhaps Germany is more worried about reinforcing it’s ordoliberal rules instead of trying to ascertain the best measures to mitigate an economic crisis . That inference brings us to the theoretical framework of the paper, which will take an economic pragmatist approach to economic crises.
Pragmatism: A Better Approach?
The person often credited with innovating the pragmatic economic approach is Grzegorz Witold Kolodko. He laid out this framework in his book called Truth, Errors, and Lies: Politics and Economics in a Volatile World . The pragmatic approach will allow us to critique the current policies used by the EU. New economic pragmatism can be defined as an economic approach that attempts to solve economic crisis within the context of the crisis itself. It doesn’t rely on any specific ideology per se, but rather it attempts to compromise between economic policies at the national, international or regional economic levels. Though national, regional, and international entities may have agendas which are juxtaposed, there still exists a possibility for agreement. By mixing various elements of the juxtaposed economic policies a general consensus can be established. But what sets economic pragmatism apart is that it focuses to address three fundamental economic questions.
What’s the best route to economically sustainable growth?
What’s the best approach to insure social stability?
What’s the best approach in respects to the environmental sustainability?
Furthermore, it assumes that the recent trend of the globalized economy is irreversible and this factor must be taken into account when attempting to solve economic issues. Economic pragmatism neither endorses or disavows globalization, but quite simply globalization is categorized as a constant, a phenomena that must be accounted for when dealing with 21st century economic issues. This assumption doesn’t give way for extreme paradigm shifts. So, given that assumption, no overt disassembling of globalization will be considered within this piece. No matter how tempting revolution may be. In terms of analyzing Germany’s ordoliberal policies during the Eurozone Crisis, new pragmatic methods will be used to analyze Germany and Europe’s mistakes within the crisis. It will highlight some assumptions that were made during the crisis, and in turn discuss how and why they aren’t necessarily true via comparison to other crises. Since Germany largely relies on ordoliberalism to implement economic and political policies, the framework will display the folly of such measures. Quite simply there’s no single economic ideology that can be relied on to address any economic crisis. Strict adherents to ideological principals may in fact do more harm than good in terms of solving a crisis. But it’d be remiss to not acknowledge why such behavior exists. After all, if ordoliberalism has worked before , assuming it will work again isn’t illogical. Human’s in general are keen to use methods that they are familiar with, especially if they have worked before. But being an absolutist in terms of ideology when policies aren’t working is a cause for concern. It’s this lack of flexibility that can hamper economic development, sustainability, and innovation. The idea of inflexibility will be discussed further in the analysis of Germany’s Eurozone response. And it will be accompanied by a pragmatic study specific to the Greek crisis to describe some alternatives to the current approach taken by the Eurozone. Now that we have an understanding of economic pragmatism is coming to a close, lets shift out focus to Germany’s response to the Greek eurozone crisis.
Ordoliberalism In The Greek Economic Crisis
In order to offer a critique of Germany’s ordoliberal implementation in times of crises we must analyze the specific measures taken within a given economic crisis. The most comprehensive and recent information can be found when we investigate the German political order’s response to the Eurozone Crisis. When analyzing this response, we can find two key problem areas that have contributed to the economic downturn of certain nations, namely Greece. Firstly, German ordoliberal policy seems to vehemently deny the potential for an economic crisis, even though it’s apparent that an economic downturn will likely happen. And lastly, a strict adherence to policies that encourage austerity despite the fact that the reality of suggests that these measures are counter intuitive. These factors will be analyzed under the context of the Eurozone crisis of 2008. We will also see how these measures go against the plans of economic pragmatism which encourage economically sustainable growth, civic stability, and environmental sustainability. Now let’s transition to how Germany’s ordoliberal hegemony was slow to act to the Greek crisis.
Delay
In light of the world financial crisis of 2008, governments were quick to act to curtail the damaging effects of the crisis. In terms of short-term responses, The Federal Reserve, Bank of England, and European Central Bank all introduced measures that increased liquidity. The Federal Reserve resorted to quantitative easing which allowed banks to purchase US government debt, essentially creating bailouts for entities that were “too big” to fail. But these measures didn’t necessarily help in the long term for the European Union. Specifically, certain nations were in desperate need of bailout assistance, but those demands were largely ignored.
By dismissing and denying claims of bailout assistance, Germany’s political guard was able to make sure it was in a position to elevate the effects of the Great Recession when it came to German economic interests. Helen Thompson notes that Angela Merkel a few years into the Great Recession remarked “I don’t believe that Greece has any acute financial needs from the European community and that’s what the Greek prime minister keeps telling me” . Despite Merkel’s beliefs and the rhetoric of the Greek Prime minister, data suggests Greece absolutely needed financial assistance. Prior to these remarks roughly 100,000 Greek companies went bankrupt, and unemployment was accelerating at a rapid rate But due to Germany’s political and economic dominance in the Eurozone, Merkel’s sentiment meant that Greece’s crisis wouldn’t get any immediate active intervention to prevent a deeper crisis. Merkel’s regime continued to delay a Greek Bailout but eventual in May 2010 a bailout was absolutely necessary to avoid an economic catastrophe in the Eurozone. But aide would only be given if Greece accepted austerity measures. But such a delay hindered Greece’s potential for economic recovery, in an economic crisis time is literally money. Delaying a response to a crisis can be the difference from a comprehensive recovery and spiraling further into an economic disaster. Greece needed a quicker response. The response should have come much earlier, not ignored until the brink of a Eurozone disaster was evident. Research done by Christina D. Romer and David H. Romer has suggested that quick responses in the face of economic “shocks” are important. They write:
“In nearly every postwar recession, policymakers have been quick to discern the onset of recession and have responded to the downturn with rapid and significant reductions in nominal and real interest rates. Plausible estimates of the size and speed of the effects of these interest rate cuts suggest that they were crucial to the subsequent recoveries”
In terms of economic pragmatism, identifying the issue early would be of outmost importance. That’s because the Romers’ research suggests that economic sustainability is directly impacted by the rapidity of the responsiveness. But Germany’s delay comes from an interest to uphold the tenants of ordoliberalism. Matthjs suggests that the current German political order would much rather hold on to and uphold the dominance of their ordoliberal principals than actually attempt to solve the crisis explaining that:
“Since the German government of Christian Democrats and Free Market Liberals had quickly framed the crisis as a twin crisis of fiscal profligacy and lack of competitiveness in the southern periphery, fiscal policy would revert back to the original and rules-based consensus at Maastricht, but with substantially stronger guarantees of actual implementation of those rules”
Unfortunately, this trend of delay seems to be continuing into 2019. The German political order has refused to acknowledge the need for an economic stimulus in the face of slowing economy in 2019. Foreign demand for German exports has begun to shrink, bringing the country’s economy to a standstill. But yet the German government has done little to nothing to implement any measures that may countervail the economic contraction. Furthermore, in the midst of the Covid-19 pandemic ordoliberal nations, such as the Netherlands and Germany, have exhibited resentment for paying for southern Europes stimulus since it would be punishing the “savers”. Odd considering the dire circumstances. However, ECB president Christine Lagarde has emphasized the need for solidarity and fiscal stimuli to help mitigate the losses during the outbreak. This strict attachment to austerity may in fact be counter intuitive in terms of economic recovery and sustainability. The reasons why will be explained in the following section.
Austerity
As time has gone on it has become clear that ordoliberal measures imposed on Greece have done more harm than good for the Greek economy, people, and politics. Arguably, the specific measure that has done the most observable harm is the policy of austerity. In basic terms, austerity refers to government policies that aim to reduce public sector debt and overall government spending. Though some reduction in government spending can offer marginal assistance; extreme cuts and repayment stipulations can be detrimental to an economy. This proposition has been evident throughout history. Ironically, Germany was one of the nations that was negatively affected by austerity measures. After World War I, the “victors” of the war imposed harsh repayment plans on the Germans. These measures were austere and subsequently lead to the Nazi’s coming into power. Furthermore, Joseph Stiglitz (a Nobel Prize wining economist) notes that the phenomena of austerity doesn’t necessarily result in economic recovery. He notes:
“Austerity had failed repeatedly, from its early use under US President Herbert Hoover, which turned the stock-market crash into the Great Depression, to the IMF “programs” imposed on East Asia and Latin America in recent decades”
Stiglitz goes on to describe how things haven’t really changed in terms of modern day austerity implementation. Greece is currently suffering, and not reaping much economic benefit. The data seems to correspond to Stiglitz’s inference. In Greece, unemployment fluctuates between 20-25%, and for young adults it’s at about 50%. These figures have been detrimental to the Greek economy. Further, through 2009- 2019, the Greek GDP has fallen from roughly 90% to 60%, the consumption per capita has fallen from about 100% to 76 %, and all of these factors mean that the standard of living has fallen as well. This loss is largely attributable to the austerity measures the Greeks were coerced into by the EU. In order to receive recovery aid, a considerable cut in government spending was necessary for the Greeks. A classic quid pro quo agreement. One of the specific austerity measures that was implemented was that Greece was required to restructure its pension system to aid in cutting government spending. Pension payments had absorbed 17.5 percent of GDP, higher than in any other EU country . Austerity measures required Greece to cut pensions drastically. Higher pension contribution by workers was another perquisite along with limited early retirement in order to keep pension repayment low. Limiting government spending is often a good idea for economies but only in the correct conditions. The Greek economy wasn’t built for such a radical shift, pensions were a fundamental part of the overall Greek economy. Half of Greek households relied on pension income since one out of five Greeks were over 65 years old. We can assume that workers weren’t thrilled about paying higher contributions, and further a huge cut in retirement pensions must have aggravated retirees. Work was also drying up, so if no one was working that meant no one was contributing to pension funds. Greece was staring a looming economic depression in the face. Greek public moral took a deep dive.
Greeks Protest after austerity measures are passed.
People went to the streets to express their discontent. Civil disorder would become the norm in Greece.
Civil Unrest
Not only did the economy suffer from the ordoliberal austerity measures but civil society would be affected as well. From 2010 to 2012 a series of massive public anti-austerity movements began to demonstrate in towns across Greece. An article by Angelique Chrisafis , written in the midst of one of the Anti-Austerity demonstrations in 2011, describes the situation as thus:
Doctors and nurses recently staged walkouts over hospital cuts. Taxi drivers have hobbled Greece with strikes in the past two weeks, protesting at government plans to open up the industry. Their tactics included blocking ports and opening the Acropolis ticket office to let tourists in free….Greece’s long-running “civil disobedience” movement, where ordinary citizens refuse to pay for anything from road tolls and bus tickets…has not fizzled out in the summer holidays. The “We Won’t Pay” offensive is championed as the purest form of “people’s power”
Chrisafis’s article articulates the social moral of the Greek people during these austerity measures. The people had lost hope in their government, and responded by not complying to societal norms. Some of the demonstrations were more violent in nature, and vandalism also occurred. When a society is actively participating in acts of civil disobedience which attempt to the undermine the political/economic order then there may be economic consequences that result. The explanation for that is that when people are protesting economic policies, refusing to pay for services, and not getting paid their wages that means that the economy isn’t running at maximum efficiency. Not only that but society itself isn’t functioning the way it normally does. But not only did the austerity measures have an effect on the economy and society but it also had repercussions to the biological environment.
Environmental Consideration
The biological environment in Greece was also negatively affected by the economic crisis. Due to the aforementioned low wages caused by the crisis, Greeks were forced to look for cheap products in their daily life. Martha Nanou explains that this behavior had a negative effect on the environment. In her study focusing on the effects the financial crisis had on the overall air quality she explains:
“[I]ncreased heating fuel taxes that were used in order to support Greek economy, obliged people to find alternative, cheaper solutions that caused even more air pollution in large cities. More specifically, in Thessaloniki, the second largest city in Greece, the increased price of fuel oil led the citizens of the city to use the cheapest wood during winter. This increase of cheap wood products use for domestic heating, resulted in an increase of the levels of cesium (Cs) (Stoulos et al., 2014). For these reasons, Thessaloniki was characterized as one of the most air polluted cities within Europe during the past two years”
Changing to the wood alternatives may have had a negative effect on the air quality. But, if one takes a step back to analyze the situation, this also means that trees were being cut down at a much higher rate than before. Greek environmental authorities noted that illegal tree cutting had become the norm. And that the environmental ministry has issued over 3,000 lawsuits and seized over 13,000 tons of illegally chopped down trees.. This behavior outlines the underlying effects ordoliberal austerity measures can have on a nations that are not ready to cope.
Different Models
One of the way’s this situation could’ve been avoided is that the Greek crisis should have been addressed much sooner. But even if the crisis was caught a bit late, there could have been other measures that may have lessened the probability of a catastrophic economic crisis, societal upheaval, and environmental degradation. Namely measures which weren’t austere in nature.
Economic pragmatism would have attempted to look at a holistic solution instead of responding to the crisis via a specific economic theory. This approach would ensure that the economy wouldn’t suffer too much, society wouldn’t fall into years of civil unrest, and perhaps the environment wouldn’t be as negatively affected. Austerity wasn’t the only method available to handle the Greek Eurozone crisis. It was just the most convenient. Economic research suggests that debt restructuring doesn’t need to necessarily be strict in nature to overcome a sovereign debt crisis. Andreas Muller, Kjetil Storesletten, and Fabriziso Zillibotti are researchers who suggest austerity isn’t the only way. They provide an in depth analysis on debt restoration and reform relying on four “building blocks” , writing:
“[D]ynamic theory of sovereign debt that rests on four building blocks. The first is that sovereign debt is subject to limited enforcement, and that countries can renege on their obligations subject to real costs ….The second building block is that whenever creditors face a credible default threat, they can make a renegotiation offer to the indebted country. This approach conforms with the empirical observations that unordered defaults are rare events, and that there is great heterogeneity in the terms at which debt is renegotiated, as documented by Tomz and Wright (2007) and Sturzenegger and Zettelmeyer (2008). The third building block is the possibility for the government of the indebted country to make structural policy reforms that speed up recovery from an existing recession.1 The fourth building block is that reform effort is not contractible nor can markets commit to punish the past bad behavior of sovereign governments.”
They go on to argue that all of these measures would have an overall positive effect to a nation that’s in sovereign debt. Equilibrium isn’t achieved when austerity is implemented, but when nations are allowed to have more of a say in debt renegotiation and aren’t punished for the economic crisis then an economy can smoothly recover. This is important lesson for future economic crisis since strict adherence to economic theories may not enable a proper recovery for an economy.
Another alternative can be found by observing the US. The US avoids regional recessions by distributing risk across the states. Programs such as Social Security or unemployment insurance help support the poorer regions, and fundamentally make sure that pooer states don’t implode when they fall into recession. This idea has been propagated by several EU leaders, but due to the political clout of the Frugal Four their propositions fall through. For example, former Prime French Prime Minister Francois Hollande, has suggested that Europe move in this direction, with wealthier states funding a bigger European Investment Bank that can bankroll industrial projects in poorer countries.
Lastly, another model that can be emulated is the economic miracle which occurred in Singapore. A century ago, Singapore was an island with little to no economic clout. But after a series of pragmatic economic policies Singapore was transformed into a major manufacturing and financial center. They mixed low taxes, few capital restrictions and liberal immigration policies with policies that are often considered to be socialist such as heavy government spending on social services like housing, banking and health care. (Read more here)
In all we can see how German ordoliberlist policy may in fact make a crisis worse. However, understanding the gravity of the crisis early and responding in a manner which actively attempts to help can lessen the negative effects of a crisis. Some of those effects being economic, social, environmental. Strict adherence to austerity isn’t a necessary response to a crisis. The political dimension of this paper can be said to be of a pluralist nature. Pluralist because it doesn’t restrict itself to one economic theory but rather allows for a more flexible economic approach. But in terms of economics it takes a pragmatic approach since it attempts to take into consideration elements which attempt to solve an economic crisis by not being restricted in terms of ideology.
Sources:
“Austerity – Overview, Examples of Austerity Policies, and Advantages.” Corporate Finance Institute, corporatefinanceinstitute.com/resources/knowledge/economics/austerity/.
Eichengreen, Barry, and Albrecht Ritschl. “Understanding West German Economic Growth in the 1950s.” Cliometrica, vol. 3, no. 3, 2009, pp. 191–219., doi:10.1007/s11698-008-0035-7.
EUROSTAT. “First Estimates for 2018 – Wide Variation of Consumption per Capita across EU Member States – GDP per Capita Ranged from 50% to 254% of EU Average.” European Commission – PRESS RELEASES – Press Release – First Estimates for 2018 – Wide Variation of Consumption per Capita across EU Member States – GDP per Capita Ranged from 50% to 254% of EU Average, europa.eu/rapid/press-release_STAT-19-3245_en.htm.
Galofré-Vilà, Gregori, et al. “Austerity and the Rise of the Nazi Party.” 2017, doi:10.3386/w24106.
James, William. “Pragmatism: A New Name for Some Old Ways of Thinking.” 1996, doi:10.1037/10851-000.
Kolodko, Grzegorz. “The New Pragmatism, or Economics and Policy for the Future.” Acta Oeconomica, vol. 64, no. 2, 2014, pp. 139–160., doi:10.1556/aoecon.64.2014.2.1.
Kołodko, Grzegorz W. Truth, Errors, and Lies: Politics and Economics in a Volatile World. Columbia University Press, 2011.
Matthijs, Matthias. “Powerful Rules Governing the Euro: the Perverse Logic of German Ideas.” Journal of European Public Policy, vol. 23, no. 3, 2015, pp. 375–391., doi:10.1080/13501763.2015.1115535.
Thompson, Helen. “Germany and the Euro-Zone Crisis: The European Reformation of the German Banking Crisis and the Future of the Euro.” New Political Economy, vol. 20, no. 6, 2015, pp. 851–870., doi:10.1080/13563467.2015.1041476.
Tilford, Simon. “Germany Is an Economic Masochist.” Foreign Policy, 21 Aug. 2019, foreignpolicy.com/2019/08/21/germany-is-an-economic-masochist-recession-merkel/.
Robert Moses is a figure that’s relatively obscure to the general public. However his influence has had a lasting impact throughout the United States. He would be paramount in engineering how cities in the States were structured, effectively influencing how and where Americans would spend their money.
Who was Robert Moses? Well, to start, he was unelected public official who held about 12 positions in the Greater New York city area. His stints in public office span from 1924-66. The positions he held had tremendous influence over urban planning. Urban planners aren’t often thought of as being political behemoths but Robert Moses’s tenure in these positions forces us to reconsider the influence unelected politicians may have over society.
Mr. Moses was a relentless, effective, and a calculated worker. His ability to start and finish public projects is arguably unmatched within the scope of American history. Furthermore, his ability to manipulate power goes far beyond the scope of anything Machiavelli could have imagined within a democratic republic. Robert Moses wasn’t fully understood or recognized outside of New York until the publication of Rob Caro’s Pulitzer winning book The Power Broker. The book gives us a grandiose look into the Moses. Robert Caro spent years researching for his book which spans roughly 1,300 pages. His scholarship, alongside with years of historical developments since the initial publication, are what guide my analysis on Robert Moses. Through our investigation of Robert Moses we will come to understand how a lot of cities in the United States mirror each other in terms of structure and societal development. And, albeit indirectly, an analysis of Moses forces us to consider a few philosophical questions when it comes to ideal local governance in the United States. But before we attempt to get understand why these two inquires are relevant , we have to investigate the rise of Robert Moses.
Robert Moses assent spanned various societal backgrounds. His tenure in public office spans three major historical events in the United States. Moses held positions during the economic boom of the 1920s, a crippling Depression in the 1930’s, World War II, and the subsequent post war economic boom.
The 1920’s: The Rise to Power
After finishing up his PhD at Columbia University, Moses decides to enter New York politics as a political idealist motivated to make change. A story familiar to many young professionals who aim to change the “old guard” within political systems. Moses had plenty of issues he wanted to grapple over. The society he was living in was corrupt, had little to no consumer protection, and certain industries were dominated by monopolies. He briefly worked for the Bureau of Municipal Research and with the U.S. Food Commission. But soon he realized that philosophical theories and logic, no matter how beneficial, wouldn’t take you far when it came to political advancement. His initial propositions were brushed under the rug by the seasoned veterans of government. Though his theoretical understanding of politics would come in handy from time to time, his practical education of political power would be where he was able to hone the craft of political power.
After a series of fortunate events Moses found himself appointed as the chief of staff to a woman named Belle Moskowitz. She was the leader of a commission tasked with organizing New Yorks administrative structure. A responsibility which came with significant power. It’s worthy to note Belle Moskowitz wasn’t elected by anyone. Rather, Moskowitz was appointed by Alfred Smith the Governor of New York. Smith was of course elected. I include these details not to be redundantly informative but rather to highlight the opaque nature of local government when it comes to transparency. People who you may assume are in control are passing that responsibility to an “advisor”, meaning there are various puppeteers pulling the strings. Moses’s time with Moskowitz is where he would learn the “tricks of the trade” in terms local governance. After managing to impress Alfred Smith through the early 1920’s, Moses found himself appointed to his first positions of power. The appointments would lead him to a notorious political squabble with an eventual US president, Mr. Franklin Delano Roosevelt.
The Appointed One & The Fight with Roosevelt.
In 1924 Moses was appointed as the leader of both the Long Island State Park Commission and State Council of Parks. Moses actually drafted the legislation that created the power of these commission earlier in his career. Personally, when I read the names of these positions I didn’t immediately think POWER. But let’s remember that Moses was calculated. He strategically used the power that he did have to gain even more power. Being head of these political bodies allowed him unprecedented control over land-use and highway construction. Behind the scenes he usurped control over certain political entities from elected officials. Moses would lobby constituents, politicians, and special interest groups into allowing him to have independent control over land-use and highway development commissions. Overtime he began to resemble a mini dictator. However, his power wouldn’t go unchallenged.
Young Roosevelt.
Franklin Roosevelt, at the time leader of the Taconic State Parkway Commission, had a political spat with Moses. It all started when Roosevelt had a plan to build a parkway through a region of New York City called the Hudson Valley. Moses had different plans. He managed to funnel all the funds from Roosevelt’s project to his own project. Moses was able to keep the funding to Roosevelt’s project so low that it could barely even maintain operations. Roosevelt complained to the governor that Moses was “skinning” Smith’s administration alive. But nothing happened. Eventually, Roosevelt became governor and eventually his parkway project was completed. Roosevelt had another goal in mind, and that was to remove Moses from power. But the removal of Moses was almost impossible by the time Roosevelt became governor. Robert Moses had set up a powerful base of political independence by using legislation, public funding, the press, and young political reformers to support his positions. He would later spearhead a commission which aimed to consolidate 187 separate agencies into eighteen departments. In just 10 year’s Moses was able to absorb power from potential opponents and build a powerful network to get his projects done. But this was just the start there was much more to come from Robert Moses.
The Depression & Beyond
During the 1930’s the United States suffered an economic depression. During this economic catastrophe Robert Moses would blossom. Ironically, his former rival actually enabled this via New Deal legislation lead by President Roosevelt. Moses was granted even more executive and monetary incentive to solidify his power by the Federal Government. Roosevelt, not forgetting his political tenure in New York, attempted to get Moses ousted by making federal funds available only if Moses was removed from office. Moses wasn’t threatened. He told the press of Roosevelts demands. Subsequently, the Federal Government had to stop after increasing public pressure. But as World War II was being waged, Robert Moses’s influence on New York City began to take shape. The Master Builder started to work on his vision. One unnamed federal official commented on Moses during this era saying:
“Because Robert Moses was so far ahead of anyone else in the country, he had greater influence on urban renewal in the United States – on how the program developed and on how it was received by the public – than any other single person.”
That quote gives us an insight on the magnitude of power Moses had. He was responsible for many projects ranging from the United Nations Headquarters, Shea Stadium, and the Pratt Institute. But he also led initiatives to spur more highway developments, suburban housing developments, strip malls, and other public amenities. Moses got even better at getting projects done. A common strategy involved starting projects knowing that financially they couldn’t be accomplished , but he would leverage political clout in order to manipulate political officials to complete his projects anyway. While in the depression his projects employed a largely jobless populous during the Great Depression. During this era, he held numerous public positions at the same time. None of the positions required him to be publicly elected.
WWII & The New America
The world dramatically changed after World War II. The United States emerged as an economic and political powerhouse within the International community. Moses understood this and he wanted to further influence the new world around him. His goal for NYC was one that attempted to integrate an urban center to suburban areas which would all be interconnected via parkways. The bureaucrat’s vision would influence America for the years to come.
After World War II America’s social community began to change. Women entered the work force in droves, the nation was in better economic shape than a lot of nations in the world, and the ideal of “Americanness” began to solidify. What do I mean by Americanness? I mean white picket fences, increased home & automobile ownership, and the development of mass consumerism. After WWII plenty of soldiers came home to start anew. They were incentivized to start “nuclear” families, to buy homes, develop their market skills, and most importantly to spend money in order to expand the American economy. Robert Moses was fully aware of this societal shift. He saw the traditional layout of American cities as archaic and counter intuitive to the world’s economic demands. Small retail owners were dismissed in favor of shopping behemoths
Robert Moses and NYC Mayor Jimmy Walker.
such as Macy’s, Sears, and the advent of the shopping mall. Local restaurants were forgotten as Dairy Queen and McDonalds slowly became staples in the American diet. Automobiles slowly eliminated the reliance on public transport, allowing people to buy suburban properties further away from NYC. Moses preferred a sprawl model over concentrated urban communities. And he developed plenty of projects to incentivize the sprawl model. New Yorkers, such as Robert Caro, criticize Moses for destroying New York neighborhoods in favor of vast highways that connected the suburbs to the City. When developing these projects Moses displaced hundreds of thousands of people, destroyed economic centers, and arguably community identity. This led critics to surmise that Moses perhaps preferred automobiles and shopping centers over people. Furthermore, Moses played a part in depleting New York’s resources to develop his projects. But despite that, the Moses model was in demand in post war America. Plenty of public officials from around the country demanded Robert Moses’s expertise in developing their city plans. This may explain why many American cities, especially in the Midwest, mirror each other in a plethora of ways.
In hindsight Moses’s city planning was a perfect model for a globalized economy. It was predictable; generally people would work a similar hourly schedule, consistently consume products from publicly traded corporations, and, by driving, consumers would
Robert Moses
support the gas, oil, and automobile industry. This model has its merits. It’s predicable, safe, and allows people to consume their preferred products. However, a community too reliant on the Moses model is more susceptible to global economic crises. This isn’t just a theoretical proposition, practical examples are evident when we look at Detroit and Las Vegas during the 2008 financial crisis. But it’d be remiss to not mention how many new and innovative developments Moses was responsible for. He was able to engineer and execute massive urban plans that did help a considerable amount of people. But at the expense of displacing many people out of their communities. But one of the most disturbing things about Robert Moses is his ability to become an immensely influential political figure without having to get elected into political office.
Moses’s story forces us to think about the type of local (& perhaps national) governments people would prefer. Do we prefer governments that can be taken over by “Mosesesque” figures in order to get long term, and perhaps beneficial, projects done? Or do we want a system that is a bit more decentralized which doesn’t allow any one sole “political will” to dominate? Whatever you prefer, each has its positive and negative implication.
Which begs a peripheral question: How much do YOU know about the unelected officials in your local government? A question to consider.
Sources:
Power Broker by Robert Caro
ROBERT MOSES AND THE RISE OF NEW YORK THE POWER BROKER IN PERSPECTIVE by KENNETH T. JACKSON
A Consumer’s Republic: The Politics of Mass Consumption in Postwar America by Lizabeth Cohen
The first article of the new five part Forgotten American History series! The Forgotten American History series aims to introduce readers to the less commonly known aspects of American history. The first edition takes us to Colorado! Hope you enjoy.
Colorado’s Coalfield War is one of the most violent yet obscure events in American history. Which is a bit puzzling since The Coalfield War has all the allure of the quintessential American story. It has divisiveness, the quest for the American dream, violence, and an underdog. The Coalfield War took place after a rapid economic boom in the United States. The early 20th century saw the development of notable business magnates. Some you are most likely familiar with such as Andrew Carnegie, John D. Rockefeller, and Henry Ford. During their time they were commonly referred to as ‘industrialist”. That’s mainly due to the economic supremacy they had on industries such as fossil fuel, manufacturing, and transportation. The business strategies commonly used by these magnates were monopolistic. Common techniques used to monopolize included unilateral corporate acquisitions, price controls, and wage suppression. However, a new social development would attempt to countervail the monopolistic tendencies of these business tycoons. The development being worker’s unions.
Laborers in the early 20th century worked in abhorrent conditions. An unnamed worker who grew up in one of Pennsylvania’s mining communities provides an account on what life was like for a miner:
Our daily life is not a pleasant one. When we put on our oil soaked suit in the morning we can’t guess all the dangers which threaten our lives. We walk sometimes miles to the place- to the man way or traveling way, or to the mouth of the shaft on top of the slope. Add then we enter the darkened chambers of the mines. On our right and on our left we see the logs that keep up the top and support the sides which may crush us into shapeless masses, as they have done to many of our comrades. We get old quickly. Powder, smoke, after-damp, bad air- all combine to bring furrows to our faces and asthma to our lungs.”
Wages were often not paid in US dollars. Rather, workers were paid with metallic strips which were redeemable in company stores. A stark contrast to how modern wage payment is facilitated. Furthermore, workers often lived at their work sites. Worker’s would often build their own dwellings which ranged from tents to shacks. This led to the development of work specific settlements. In addition, workers often lacked representation in terms of corporate boardrooms. However, workers unions began to spring up providing an opportunity for representation. Exploited laborers could finally voice their frustration en masse.
Colorado’s Coalfield War gives us a perfect opportunity to examine the early relationship between industrialists and workers unions. The stereotypical relationship is often framed idealistically. The cliché often goes like this; workers are in discontent due to their impoverished work situation. They then begin to band together and organize. Managers are often against organizing but after some convincing they slowly join the workers’ cause. And in one harmonious swoop the workers walk over to administrative offices and demand that the industrialist improve conditions. The industrialist, understanding the gravity of the situation, then succumbs to their demands. And after both parties reach an agreement. But realistically it was never that straightforward. Colorado’s Coalfield War will give us a realistic glimpse of how a lot of early labor disputes panned out in the United States.
The story of Colorado’s Coalfield War begins in the coal mines of southern Colorado during the 1910’s. Colorado’s coal industry at the time was booming. So much so that roughly 10 percent of the state’s population was employed by the coal sector. At the time coal was highly profitable due to the demand of America’s expanding railroad system which needed coal to fuel their engines. One of the nation’s richest people were involved
One of Colorado’s mining families that was living in a tent community
in the coal industry. For example, John D. Rockefeller Jr (heir to John D. Rockefeller) recognized an opportunity to capitalize and acquired ownership of the Colorado Fuel and Iron company (CFI).
Coal mining for the CFI was physically arduous and hazardous work. CFI’s coal miners were under a considerable amount of fatal risk compared to other American coal miners. Statistically, miners in Colorado were twice as likely to die on the job compared to their peers in other states. That’s not to say that the other states were a pleasant place work. But Colorado’s coal mines were considerably risky. The fear of explosion, suffocation and collapsing mines was the reality for many coal miners . Ironically, Colorado had some of the best mining laws in the country. But Colorado’s mining laws were rarely enforced. The United States House Committee on Mines once declared:
Colorado has good mining laws and such that ought to afford protection to the miners as to safety in the mine if they were enforced, yet in this State the percentage of fatalities is larger than any other, showing there is undoubtedly something wrong in reference to the management of its coal mines
Furthermore, mining labor in Colorado was egregiously exploited. Worker’s were paid for the tonnage of coal produced. However, their “dead work” (maintenance, supply runs, and infrastructure repairs) were unpaid.
By 1913, 10,000 of Colorado’s miners had enough with their work environment and decided to strike. The strikers attempted to unionize via the United Mine Workers of America. They demanded improved work conditions, better wages, strict enforcement of Colorado’s mining laws, and union recognition. The CFI responded by rejecting all of the union’s demands.
Baldwin- Felts employees with an armored car.
There were considerable measures taken to countervail unionization. The CFI employed strikebreakers to keep the company running. The company evicted strikers from their company homes forcing the striker to build tents for their families nearby. Under Rockefellers orders, the CFI hired Baldwin- Felts Detective Agency (a private detective agency) to harass the strikers. The agency would shine spotlight on tents, fire live ammunition at strikers’ tents, and patrolled the tent communities with an armored vehicle that had a machine gun mounted unto it. Clearly these were terror tactics. The strikers were unphased. Strikers responded to the terror tactics by taking up arms and defending their tents. Eventually, the skirmishes were acknowledged by the governor of Colorado and he responded by sending the National Guard to the tent community in Ludlow. The strikers were under the impression that the National Guard was there to protect them. But several hundred strikers were arrested by them and often beat the strikers. The National Guard would add more fuel to the fire when they discovered that a strikebreaker had been murdered. The National Guard had been financed by the CFI to cover the expenses of deployment, so they had an implicit obligation to make sure the CFI’s interests were met. One day while the tent dwellers were at funerals commemorating two infants, the National Guard began to dismantle the tent community. However, the community members rebuilt the tents and they continued the strike, persevering through the winter. However, things would come to a boiling point on April of 1914.
The Ludlow Massacre
On April 20th 1914, two national guard posts were deployed on top of a hill, encircling the Ludlow tent community. They deployed an armed post with a machine gun overlooking the strikers. No one is exactly sure what instigated the violence. Some historical records suggest that the National Guard was demanding the release of a
The Masses cover art depicting the Ludlow Massacre
hostage, but the strikers refused to give the hostage up. One of the sides then opened fire (it’s unclear who fired the first shot). Nevertheless, a battle would ensue which lasted the whole day. The casualties included high ranking union members such as Louis Tikas. Innocent bystanders (mainly women and children) hid in their tents to avoid the gunfire. The strikers retreated. The National guard then went to the tents, doused them with kerosene, and set them on fire. One of the tents that were set on fire housed 11 children and 2 women. The women and children all died, they were either burned or suffocated to death. These casualties were deemed a massacre by several periodicals in Colorado. The news of the National Guard’s atrocities would then spread across the nation like wild fire.
Height of The Coalfield War
In Denver, the United Mine Workers declared “A Call to Arms”. They suggested that all union members should gather all “arms and ammunition legally available.” . Subsequently an insurgency would take place in Colorado. Three hundred armed strikers marched from all over Colorado to the Ludlow area. When they made it, the insurgents cut telephone and telegraph wires. And they prepared for battle. The New York Times described the event as such:
“With the deadliest weapons of civilization in the hands of savage-mined men, there can be no telling to what lengths the war in Colorado will go unless it is quelled by force … The President should turn his attention from Mexico long enough to take stern measures in Colorado
Furthermore, in an act of solidarity railroad workers refused to transport National Guard soldiers from Trinidad to Ludlow via railway. Up north in Colorado Springs, union
Colorado National Guardsman at an Outpost in Southern Colorado.
miners walked off their jobs and set off to Trinidad. They carried revolvers, rifles, and shotguns. Support was even shown on the East Coast. In New York City, picketers marched in front of the Rockefeller office located on 26 Broadway, New York City. However, these demonstrations were quickly quashed by local law enforcement.
When all the miners met in southern Colorado violence naturally ensued. They attacked antiunion town officials, supervisors/guards, and strikebreakers. Sporadic violence was rampant in southern Colorado as the miners carried out targeted killings, the statistical figures on fatalities vary considerably. So, a precise number can’t be drawn on how many people died. The insurgents also damaged a considerable amount of mining infrastructure. The Associated Press estimated the financial losses at $18 million (which is about $450,239,203 in 2019). The CFI alone lost $1.6 million. They were also able to strategically take control of an area that was roughly 50 miles long and 5 miles wide. However, this control didn’t last long. President Woodrow Wilson dispatched federal troops to Colorado, and the miners subsequently surrendered.
Aftermath
After the Coalfield Wars, Congress held hearings with John D. Rockefeller Jr, union leaders, and several high-ranking members of the National Guard. Though atrocities were recognized by both sides during the hearing, no one was ever formally indicted for their crimes. Unfortunately, a lot of the tangible benefits the strikers were fighting didn’t materialize. But all wasn’t lost. Rockefeller, feeling political pressure, lead an initiative so workers could have internal representation in the CFI. A measure akin to modern internal corporate arbitration. He also created an internal company union. And encouraged internal social services such as creating a YMCA for the Mining department. During this era, the YMCA played a substantial role in influencing morality and promoting athletic activity within American communities. But it’s important to remember these measures are a far cry from what the original demands the UMWA fought for. It can be argued that these measures were a bit of strategic marketing from Rockefeller. Think about internal company unions will always have corporate interest in mind. So full workers representation isn’t fulfilled. But there is a silver lining, the UMWA gained 4,000 new members.
In all the Coalfield War gives us an interesting look into the dynamic relationship between industrialists, the government, and workers. Namely, that when disenfranchised workers sought better work conditions that undermined corporate interests, considerable measures were taken to curtail workers goals. Measures which would disgusts modern American sentiments. Hiring private companies to terrorize workers, bringing in government officials to suppress workers, and massacring innocent bystanders would likely surprise many American households in the 21st century. We also get a key insight on what happens when “the people” get pushed too far in terms of getting their grievances acknowledged. Violent civil disobedience.
I’ll leave readers with song lyrics about the Ludlow massacre by Woody Guthrie:
The Ludlow Massacre: Class, Warfare, and Historical Memory in Southern Colorado by Mark Walker (Historical Archaeology Vol. 37, No. 3, Remembering Landscapes of Conflict (2003), pp. 66-80)
Often Bertrand Russell is revered in the mainstream philosophical community. And rightly so, the work he’s done in the fields of logic, linguistics, and mathematics have had a profound impact on the world. His influence has led him to be credited as the founder of analytic philosophy. But people often forget that Russell was also interested in history, so much so that he penned a lengthy history of Western Philosophy, which he called AHistory of Western Philosophy. This article will discuss Bertrand Russell’s account of Heraclitus and Thales. Two philosophers who came before Plato and Aristotle. The reason such a discussion is necessary is due to the fact that Russell may not be giving an accurate portrayal of either philosopher in his book. The reason being is that Russel relies on problematic sources to back his claims. This piece will attempt to outline the thoughts Russell had on these thinkers, and then we will criticize certain elements of his arguments. But in order to conduct a proper analysis we must understand the overal goal of Russel book.
In the History of Western Philosophy Bertrand Russell attempts to provide a coherent timeline for western philosophical thought. He claims that in order to successfully attempt such a project a specific method of analysis must be used. A method which is “philosophical”. By “philosophical” Russell means that he’ll attempt to synthesize the historical development of two different styles of inquiry, those being scientific and theological traditions (Russell Xiii). Both have different functions, but yet throughout history they’ve reinforced one another in various ways. For Russel, theology is useful because it allows us to make “speculation on matters as to which definite knowledge has, so far, been unascertainable.”(Russell Xiii). In other words, theology allows human reason to explore the unknowable. Now on the other hand, science allows human reason to explore the knowable (Russell Xiv). According to Russell, both have limitations; theology induces dogmatic belief (which he disapproves of), while science tells us what we can in fact know but “what we can know is little” (Russell xiv). Having acknowledged their flaws, Russell proceeds to argue that the development of human intellectual history has been shaped by those two methods of inquiry interacting with one another over time. Theology picks up the methodological flaw inherent in science, and vice versa. It’s this symmetric relationship which allows Russell to put various thinkers in dialogue with one another. Giving readers a coherent narrative to follow in terms of the development of western philosophical thought. But Russell’s methods have drawn scrutiny amongst critics. Frederick Copleston, a contemporary of Russel, acknowledged that “[Russell] treatment of a number of important philosophers is both inadequate and misleading.”. The inadequacy and misleading nature of Russell’s work is evident in his description of two philosophers who came before Socrates, Thales and Heraclitus.
Bertrand’s Thales
Thales the “scientist”
In order to understand and identify the “inadequate and misleading” elements of Russel’s work we must analyze his descriptions of certain philosophers. Some of the problematic elements of his descriptions can be found when he describes Thales, a thinker who was active in the 6th century BCE. To be frank, little is known about Thales specific work, as none of his writing survived. But despite that fact, society can get a general idea about Thales by reading some second hand accounts about his teachings. Russell provides an introduction to Thales, writing:
“There is…ample reason to feel respect for Thales, though perhaps rather as a man of science than as a philosopher in the modern sense of the word.” (Russell 24)
This sentence should warrant our attention because we can analyze and infer a few things from Russell’s statement. One, that Bertrand holds Thales in high regard compared to the other philosopher of that particular era. And secondly, we should hold a favorable opinion on him because compared to these philosophers Thales is a “man of science”. Why does Russell feel this way? Well, it all stems from a theory attributed to Thales which professes that everything is made of water. A problematic theory to credit onto Thales in the first place, but the reason for that will be addressed in a different section in this paper. Russell explains that Thales’s theory of water shouldn’t be taken as some “foolish” hypothesis but rather as a scientific hypothesis (Russell 26).
Now the reason he feels like Thales warrants such high praise is due to some scientific discoveries made while he wrote his book. While Russell was writing his book in the 20th century, the scientific consensus seemed to match well with Thales water theory. The consensus was largely contingent on the fact that the theoretical work done by the scientist Willaim Prout on atoms was true. Prout hypothesized that the hydrogen atom was the only fundamental element of the universe. Furthermore, he said that the atoms of other elements were actually just collection of different hydrogen atoms (Rosenfeld). This is similar to Thales’s theory since hydrogen is a pretty important component when it comes to water, but is different since Prout specifies the element hydrogen. So this background information helps explain why Russell felt so confident in Thales. And explains assertions such as this:
“ The statement that everything is made of water is to be regarded as a scientific hypothesis… Twenty years ago, the received view was that everything is made of hydrogen, which is two thirds water…. His [Thales] science and his philosophy were both crude, but they were such as to stimulate both thought and observation.” (Russell 26)
Now the last part of that sentence describes how his science and philosophy were “crude” but are acceptable since they aimed to stimulate both thought and observation. So, one can infer that theoretical frameworks which stimulate thought and observation, are ones which Russell approves of. But Russell also lets readers know what kind of frameworks he doesn’t appreciate. That leads us to Russell’s description of Heraclitus.
Bertrand’s Heraclitus
Heraclitus the “mystic”
The way Heraclitus is portrayed in Russell’s book plays on the theme of science and theology interacting with each other overtime. Russell generally views Heraclitus in a negative light, but acknowledges the difficulty science has had in refuting Heraclitus’s theory of perpetual flux. Additionally, Heraclitus is strangely categorized as “mystical” rather than “scientific”. Russell describes the nature of Heraclitus thought as such:
“Heraclitus, though an Ionian, was not in the scientific tradition of the Milesians. He was a mystic, but of a peculiar kind. He regarded fire as the fundamental substance, everything… is born by the death of something else “ (Russell 41)
Russell doesn’t give us a clear reason why Heraclitus shouldn’t be considered scientific, but we can imply that it’s due to his heavy reliance on intuition and speculation. Heraclitus brand of mysticism is categorized as reforming the religion of his day (Russell 42). Additionally, elements of Heraclitus doctrine are criticized by Russell. Specifically he attacks Heraclitus views on war, contempt for mankind, and his disapproval of democracy.
Now having outlined what Russell says about these thinkers. It’s time to shift focus on what Russell may have gotten wrong when discussing these philosophers. For instance we can use the reasoning Bertrand used to praise Thales to talk about Heraclitus as a “scientific thinker”. Additionally, we can also conceive as Thales as a “mystic”. Furthermore, we can learn to understand how Russell came to these conceptions when investigating the sources he decided to use.
Analysis of Russell’s claims
Our criticism of Russell should begin with looking at what kind of information Russell based his critiques on. He’s pretty transparent in letting the readers know where he got his information from, writing:
“According to Aristotle, he thought that water is the original substance out of which all others are formed; and he maintained that the earth rests on water”(Russell 26)
But there’s an issue with Russell’s apparent transparency. In the next paragraph he goes on to take Aristotle’s account as pure fact, and basis his entire scientific description of Thales on it. Never once does the problematic nature of Aristotle’s account of Thales get mentioned. But thankfully, recent scholarship done by Frede tells us why Aristotle’s writings on Thales aren’t to be taken as absolute fact. Frede explains that:
“ it is not Aristotle’s aim to provide an account of his origin of philosophy and its evolution for its own sake, to satisfy his and his readers own historical interests “(Frede 503)
Basically, Frede notes that Aristotle wasn’t entirely fair when it came down to providing accurate descriptions of certain thinkers, but rather was using their doctrines to validate his work (Frede). Now having considered that fact Thales can be seen as a mystic because not a lot of his doctrine was written down, and getting an accurate description of his work is difficult. But the school of thought he was a part of (the Milesian school) had mystical tendencies that Bertrand speaks of. Additionally, Aryeh Finkelberg notes that:
“Heraclitus, and other early Greek thinkers, did not set out to found philosophy and science, or pave the way for Aristotle—who has long been criticized “for reading his philosophical concerns into the early thinkers (Finkelberg, Heraclitus and Thales’ Conceptual Scheme). “So the method Bertrand uses to put them in dialogue together is problematic since none of these thinkers thought of themselves as either scientists, philosophers or mystics.
Now having mentioned the problematic nature of the sources, I will provide sources which allow us to think of Thales as a “mystic” and Heraclitus as a “scientist”. To begin I will refer to a source used by Russell himself- Aristotle. As noted previously Russell relies on Aristotle’s account of Thales to prove that the thinker was indeed scientific. But he conveniently leaves out an account that could hint at him being less “scientific”. In Aristotle’s work On the Soul Thales is framed as a thinker who’s influenced by “mysticism” and attempts to explain the world via religious terms. The account goes as such:
“Thales too (as far as we can judge from people’s memoirs) apparently took the soul to be a principle of movement…Some say that the universe is shot through with soul, which is perhaps why Thales too though that all things were full of Gods”( Aristotle, On the Soul 405a)
There’s a lot to unpack from this phrase. Firstly, Aristotle is relying on testimonials from various people to get Thales’s account on souls. So we can infer that Thales Soul/Movement Theory was one that was known and discussed among contemporaries that were familiar with Thales. Secondly, we can see that Thales theory is based on metaphysical concepts (soul), and that these concepts have at least some effect on our material world (movement). And lastly, we can surmise that Thales’s world view largely consists of things having Gods within them. Arguably, this is a pretty “mystical” way to perceive reality. But from this phrase it’s unclear if Gods and Soul are in the same realm in terms of metaphysics. From the quote, soul is something metaphysical since it’s “principal of movement” and not movement itself. But Gods can be seen as both physical and metaphysical, since the universe being “shot with Soul” would have impact if whether things were filled with Gods or not. But it’s unclear from this reading if Gods are physical, metaphysical, or both. What we can clearly analyze is that Thales does have some mystical element in his analysis. Rendering Russell’s description as inadequate and a bit misleading.
Furthermore, Thales theory of water as the fundamental source of everything isn’t necessarily true. He may have never postulated that. Aristotle explains that he did indeed say that water is the fundamental source, but he also claims that he may not have seen it that way after all. Explaining that the earth and water could be reinforcing each other as elements ( Aristotle,On the Heavens, 292-294b). Thales could’ve easily believed that there didn’t need to be one principal element that’s responsible for everything. For all we know Thales could’ve theorized that several elements contributed to the forces of the world. But because Aristotle is using Thales to justify his own theories, conceptualizing him as a philosopher who believes that one fundamental source is responsible for everything is necessary in order to legitimize Aristotle’s views .
Let’s transition over to Heraclitus, aka the “mystical” thinker. Firstly, I’d like to mention that Russell dismissal of the claim that “everything is fire” and approval of “everything is water” is absurd. The way he justifies his reasoning, though understandable, is equally as silly. He uses Prout’s work on atoms to back up that claim but you could do the same for Heraclitus. After all everything in the universe emits heat, and if we understand fire to mean “element that emits heat”, then (considering 21st century physics) Heraclitus theory shouldn’t be taken as foolish either. Further, he can been seen as scientific due to observations such as these:
“Sea: water most pure and most tainted, drinkable and wholesome for fish, but undrinkable and poisonous for people”( Hippolytus, Refutation of All Heresies,)
&
“Corpses should be disposed of more readily than dung” (Strabo, Geography).
The first quote is an empirical observation on how one element can nourish one animal but yet be dangerous to another. While the second can be interpreted as a public service announcement that corpses are as unsanitary as dung. Though not completely “scientific” in our modern use of the term, these statements are observations on the general nature of the world, and are valid. Thales allegedly made similar observations but Russell holds him in higher esteem compared to Heraclitus.
In all we can see that Bertrand Russell’s claims in the History of Western Philosophy are problematic. Mainly because the notion that these thinkers were either scientific or mystical are inaccurate conceptions in the first place,since the thinkers didn’t even see themselves as such. And since we can conceptualize each thinker as both a “mystic” and “scientist” Russel’s analysis is misleading. Furthermore, the evidence used by Russell isn’t the best since the source itself, Aristotle, is biased.
Sermo Civilis 