Law – Page 50 – a sibilant intake of breath

Rejecting Canada’s new copyright act

As a student, I was constantly being called upon to support various causes, through means ranging from making donations to attending rallies. Usually, such activities have a very indirect effect; sometimes, they cannot be reasonably expected to have any effect at all. Not so, recent protest activities around Canada’s new copyright act: a draconian piece of legislation that would have criminalized all sorts of things that people have legitimate rights to do, such as copying a CD they own onto an iPod they own.

Defending the fair use of intellectual property has become a rallying point for those who don’t want to see the best fruits of the information revolution destroyed by corporate greed or ham-fisted lawmaking in the vein of the much-derided American Digital Millennium Copyright Act. At their most controversial, such acts criminalize even talking about ways to circumvent copyright-enforcement technology, even when such technology is being mistakenly applied to non-copyrighted sources: such as those covered by the excellent Creative Commons initiative or those where fair use is permissive for consumers. Watching a DVD you own using a non-approved operating system (like Linux) could become a criminal offence.

For now, the protests seem to have been successful. Of course, the temptation for anyone trying to pass a controversial law is to hold off until attention dissipates, then pass it when relatively few people are watching. Hopefully, that will not prove the ultimate consequence of this welcome tactical victory for consumer rights.

Bali talks beginning

Starting tomorrow morning, there will be twelve days of talks in Bali, Indonesia intended to begin the process of drafting a replacement for the Kyoto Protocol, when the period it covers ends in 2012. This particular meeting is mostly about choosing the structure for the real negotiations. Three possibilities are likely:

The parties agree to extend the Kyoto Protocol, keeping in place many of its institutional structures
The parties decide to create a whole new instrument
The talks collapse in acrimony, with no agreement

Which of these takes place will largely depend on the stances adopted by the great powers and major emitters, especially the United States, Russia, China, Japan, Brazil, and the European Union.

Some questions of succession hang over the proceedings. The new Rudd government in Australia has only been in power for a week, and may not have a well developed negotiating position. More importantly, everyone knows the Bush administration will soon be out of power. Leading Congressional Democrats are attending the summit themselves. It remains to be seen what effect that will have.

Climate change and the Inuit way of life

At several points in the past, Arctic native groups including the Inuit have been effectively involved in the development of international regimes for environmental protection. Perhaps most significant was the role of the Inuit Circumpolar Conference in the development of the Stockholm Convention on Persistent Organic Pollutants (POPs). Studies done on the human health impact of Arctic POPs on the Inuit provided a big part of the scientific basis for the agreement. Arctic native groups were also effective at pressing their moral claim: chemicals being manufactured elsewhere were poisoning their environment and threatening their way of life.

A similar claim can be made about climate change, though the probable outcome is a lot more negative for Arctic native groups. Relatively few states and companies manufactured the bulk of POPs and, in most cases, less harmful chemicals can be used in their place. The economic costs of phasing out POPs were relatively modest. While the costs of dealing with climate change are a lot lower than the costs that will be incurred through inaction, they are nonetheless many orders of magnitude greater than the costs associated with abatement of POP use.

The threat posed to the Inuit by climate change is also quite a bit more far-reaching. It is entirely possible that the whole Arctic icecap will be gone within twenty years, or even sooner. 2007 was by far the worst year ever recorded for Arctic sea ice. Without summer sea ice, the Arctic ecosystem seems certain to change profoundly. Given the reliance of traditional Inuit lifestyles upon hunting terrestrial and marine mammals, it seems like such conditions would make it impossible to live as the Inuit have lived for millenia. This isn’t even a matter of worst-case scenarios. Even without significant new feedback effects, summer Arctic sea ice is likely to vanish by mid century. Increasing recognition of this partly explains the ongoing scramble to claim Arctic sub-sea mineral rights.

As with small island states, there doesn’t seem to be enormously much hope for avoiding fundamental and perhaps irreversible change in the Arctic.

The 2008 Beijing Olympics

The Chinese government intends for the 2008 Beijing Olympics to be a kind of coming out party for China’s “peaceful rise.” Certainly, the last few decades have been remarkable: growth has persisted around 10% and hundreds of millions of people have risen out of extreme poverty. At the same time, the Chinese government has much to answer for. Democracy and human rights are both black marks on the Chinese record – both domestically and in terms of their international relations. Because of the unacceptable character of a number of Chinese policies, Canada should boycott the games.

The first set of unacceptable policies are domestic. These include suppression of free speech and the media, as well as the repression of political and apolitical organizations (such as Falun Gong). China also executes more people than any other state, with some allegations going as far as to say that people are being killed so that their organs can be harvested. Ethnic minorities are likewise suppressed in China, with Tibet being a special case. Well corroborated accounts exist of torture by various governmental entities.

Chinese foreign policy is also not in keeping with minimum standards of acceptable conduct. China continually threatens to attack against Taiwan, with hundreds of missiles pointed across the strait. As Paul Collier details, they are also known for adopting ‘no questions’ policies in relation to truly awful regimes, such as the genocidal government of Sudan. China has actively undermined efforts by the international community to put pressure on such governments to cease their human rights violations. International law now clearly recognizes that state sovereignty provides no protection for a government that is committing atrocities. The continuing Chinese insistence on strict non-intervention undermines the degree to which international norms can be manifested, and helps to keep large numbers of people in unacceptable conditions.

The Beijing party is one that deserves to be spoiled, lest China gain international legitimacy on the basis of economic growth rather than acceptable moral and legal conduct. Concerns about things like labour and environmental standards are certainly relevant, as well, but it is the status of the Chinese government as a violator of human rights – and facilitator of their violation by others – that makes them unfit to host the Olympics. Canada coming out and acknowledging this publicly could encourage other states concerned with human rights and international law to carry out boycotts of their own. Through international peer pressure, there is hope that a government as concerned with prestige as the one in Beijing will reconsider some of its least popular policies.

The Bottom Billion

Paul Collier‘s slim and informative volume is true to my recollection of the man from Oxford. The Bottom Billion: Why the Poorest Countries are Failing and What Can Be Done About It is engaging, concise, and powerfully argued. It is also unsparing in its criticism. Collier explains that the ‘developing world’ consists of two groups of states: those experiencing sustained growth and thus seeing their standard of living converging with those in the rich world and those that are ‘stuck’ in poverty, with stagnant growth or absolute decline.

Poverty traps

The ‘stuck’ states – where the world’s poorest billion inhabitants are concentrated – are trapped in one of four ways: by conflict, natural resources, being landlocked with bad neighbours, and by bad governance. States can be trapped in more than one simultaneously and, even when they escape, there are systemic reasons for which they are unusually likely to fall back into one. The discussion of the traps is particularly informative because of how quantitative methods have been used in support of anecdotal arguments.

Not only are ‘bottom billion’ states unusually likely to suffer from conflict, corruption, and similar problems, but some of the most important paths to growth used by states that have already escaped poverty are closed to them. To grow through the export of manufactured goods, you need both low wages and economies of scale. Even if wages in Ghana are lower than those in China, China has the infrastructure and the attention of investors. The presence of export-driven Asian economies makes it harder for ‘bottom billion’ states to get on a path to development.

Solutions

Collier’s proposed solutions include aid, military intervention, changes to domestic and international laws and norms, and changes to trade policy. Much of it is familiar to those who have followed development debates: the problems with agricultural tariffs, the way aid is often used to serve domestic interests rather than poverty reduction, corruption within extractive industries, and the like. His most interesting ideas are the five international ‘charters’ he proposes. These would establish norms of best practice in relation to natural resource revenues, democracy, budget transparency, postconflict situations, and investment. Examining them in detail exceeds what can be written here, but it is fair to say that his suggestions are novel and well argued. He also proposes that ‘bottom billion’ states should see import tariffs in rich states immediately removed for their benefit. This is meant to give them a chance of getting onto the path of manufacture-led growth, despite the current advantages of fast-growing Asian states. His idea that states that meet standards of transparency and democracy should be given international guarantees against being overthrown in coups is also a novel and interesting one.

Position in the development debate

Collier’s book is partly a response to Jeffrey Sachs’ much discussed The End of Poverty: Economic Possibilities for Our Time. Sachs pays much more attention to disease and has more faith in the power of foreign aid, but the two analyses are not really contradictory. Together, they help to define a debate that should be raging within the international development community.

Collier’s treatment is surprisingly comprehensive for such a modest volume, covering everything from coups to domestic capital flight in 200 pages. The approach taken is very quantitatively oriented, backing up assertions through the use of statistical methods that are described but not comprehensively laid out. Those wanting to really evaluate his methodology should read the papers cited in an appendix. Several are linked on his website.

Environmental issues

Environmental issues receive scant attention in this analysis. When mentioned, they are mostly derided as distractions from the real task of poverty reduction. It is fair enough to say that environmental sustainability is less of a priority than alleviating extreme poverty within these states. That said, the environment is one area where his assertion that the poverty in some parts of the world is not the product of the affluence in others is most dubious. It is likely to become even more so in the near future, not least because of water scarcity and climate change.

Climate change receives only a single, peripheral mention. This is probably appropriate. Surely, the effects of climate change will make it harder to escape the traps that Collier describes. That doesn’t really change his analysis of them or the validity of his prescriptions. The best bet for very poor states is to grow to the point where they have a greater capacity to adapt and will be less vulnerable to whatever the future will bring.

‘Nuclear weapons sharing’ in Europe

One obscure but troubling legacy of the Cold War is the American nuclear weapons that are deployed in Belgium, Italy, and the Netherlands under NATO nuclear weapons sharing agreements. The arsenals consist of 150 B61 gravity bombs held in US custody, apparently for the enduring purpose of deterring a Soviet/Russian tank invasion of Europe. The bombs can be tailored to different yields: with different versions capable of producing explosions with between 0.3 and 340 megatonnes of power. In total, about 3,155 of these bombs were made, with between 1,200 and 1,900 still in service worldwide. A 1994 variant has a hardened casing and can be used as a nuclear bunker buster.

Apparently, these weapons were in place during the negotiation of the 1970 Nuclear Non-Proliferation Treaty and two arguments were privately maintained about why this usage is not in contravention of the treaty. The first was that, since the bombs were under American control, they had not been illegally transferred from a nuclear-weapons state to a non-nuclear weapon state in violation of Article I of the Treaty. The second was that the weapons would not be used “unless and until a decision were made to go to war, at which the treaty would no longer be controlling.”

The latter argument strikes me as exceptionally weak – as does the general rationale for maintaining these weapons. The existing arsenals of American submarine launched missiles, land-based ICBMs, nuclear-equipped bombers, and nuclear cruise missiles would seem sufficient to serve any conceivable purpose for which these bombs might be used. I am also willing to bet that your average Belgian, Italian, or Dutch citizen isn’t too pleased to have the things within their borders.

Disgusting situation in Saudi Arabia

In case anyone needs to be reminded about the awfulness of some world governments, here is a story about a rape victim in Saudi Arabia being sentenced to 200 lashes and six months in jail for being in the car of a non-family member. The seven rapists received sentences ranging from one to five years.

This is the kind of thing that should produce serious and public condemnation from governments that are actually serious about human rights and the rule of law. The combination of theocracy, patriarchy, and vindictiveness that created and enforces these laws has no place in any legitimate society.

On Ethiopia and birth rates

This week’s issue of The Economist includes a briefing on Ethiopia. In many ways, it reflects the ideas I am reading in Paul Collier’s The Bottom Billion: Why the Poorest Countries are Failing and What Can Be Done About It.. A bad neighbourhood, terrible governance, ethnic conflict, persistent poverty and poor quality of life indicators persist despite western aid and loans from China. It seems probable that Ethiopia is caught in one or more of the poverty ‘traps’ that Jeffrey Sachs, Collier, and others have written about.

What struck me most about the article, however, was the demographics. In order to keep unemployment constant, Ethiopia needs to generate hundreds of thousands of new jobs a year. This is because the average woman in Ethiopia will have seven children in the course of her life. On the basis of such growth, the population could rise from about 75 million now to over 140 million by 2050. While it is possible that such a spectacular rate of population growth is the product of free and voluntary choices, it seems more plausible that it reflects a lack of personal control over reproduction: especially on the part of women. It is both ethical and prudent to redress this balance in favour of women having more control of their reproductive lives.

Statistics suggest that such control is less common in poorer places. This scatter plot shows the relationship between GDP per capita and total fertility rate in 108 countries. The replacement rate of about 2.1 births per woman corresponds to a mean GDP per capita of about $10,000 (though countries with a wide range of incomes can be found with similar TFRs). This data doesn’t necessarily show anything causal. It neither confirms or denies that poverty causes high birth rates or, conversely, that high birth rates cause poverty. Nonetheless, it is suggestive of the fact that women have less control over reproduction in poorer places.

A sustainable world is probably one with a birth rate below the natural rate of replenishment. This is not true indefinitely, but only until the combination of total human population and total human impact upon natural systems can be indefinitely sustained. While people obviously should not be forced to reduce their fecundity by governments, their right to choose whether or not to have children should be upheld and made meaningful through policies such as the legality and availability of contraception. In 1994, the International Conference on Population and Development defined sexual and reproductive health as:

A state of complete physical, mental and social well-being and…not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.

Sexual politics have always been a terribly contentious area, but that doesn’t mean reasonable people should not be agitating for better recognition and implementation of sexual rights. The United Nations Population Fund has a good website linking to more information on reproductive rights.

Remembrance Day

Remembrance Day is a fundamentally problematic holiday. On the one hand, it is meant to recognize the awfulness of war. On the other, it is meant to glorify those on our side who participated in wars. A truly pacifist holiday might be more easily palatable, but it would doubtless arise the ire of those who served in past conflicts and those who recognize the righteousness of at least some of them.

Wars can be divided into three categories:

Those fought for reasons of immediate self defence (i.e. the Polish defence efforts when both Russia and Germany attacked at the outset of the Second World War).
Wars fought for purposes that we can generally recognize as morally admirable now (the defence of the innocent).
Wars fought for purposes we know consider immoral (territorial gain, the elimination of ethnic groups, etc).

What arises in response to this categorization is the question of to what degree those today can judge the wars on the past on the basis of contemporary ideas of morality. If Canada’s participation in the First World War was essentially in defence of imperialism, does our subsequent belief that imperialism is an unacceptable aim alter how we should feel about the war? Secondly, there is the matter of the individual evaluations of soldiers. If soldiers have no responsibility for assessing the rightness or wrongness of the war they are in, we are obliged to honour the Nazi machine-gun operator defending Juno Beach as much as the Canadians storming it. If soldiers are responsible for assessing the morality of the wars they participate in, we cannot simply honour them as a block.

When you move beyond crude patriotism to an ethic of equal human worth, it becomes very difficult to continue to accept war memorials at face value.

Gladwell on criminal profiling

Malcolm Gladwell, author of The Tipping Point and Blink, has an interesting article in the most recent New Yorker debunking police profiling of violent offenders. He basically argues that their methods are unsound, but that this is concealed by the same kind of cheap psychological tricks used by telephone psychics. In particular, the article discusses a set of tactics described by Ian Rowland: a magician and the author of a book on cold reading.

The tactics included focus on calculated vagueness, exploitation of known or highly probable information, and mechanisms for reducing the chances of being decisively proved wrong. The last of those is particularly crucial, as it can allow you to retain your reputation despite the inevitability of making some incorrect guesses.

Be advised that the article has graphic content.