Tutkimus pureutuu poliittisen edustuksen käsitteeseen, keskittyen erityisesti edustuksen ja demokratian yhteyteen. Tutkimuksessa tarkastellaan teoreettisessa ajattelussa tapahtunutta siirtymää siitä, että edustus ymmärretään edustuksellisen demokratian kontekstissa siihen, että edustus ymmärretään ideaksi ja prosessiksi, joka on demokratialle välttämätön. Tätä siirtymää analysoidaan ja kehitetään eteenpäin tarkastelemalla Talvivaaran kaivoksen ympärille kehkeytynyttä poliittista toimintaa ja edustuspuhetta. Vaaleja, edustajien responsiivisuutta edustettaville, universaalia äänioikeutta ja tasa-arvoa pidetään tavallisesti edustuksellisen demokratian tunnusmerkkeinä. Tässä katsannossa edustuksen demokraattisuuden katsotaan toteutuvan, kun vaaleilla valitut edustajat pidetään mahdollisimman lähellä heidät auktorisoineita kansalaisia. Tämä läheisyys on tarkoittanut muun muassa sitä, että lainsäätäjien päätöksiltä vaaditaan vastaavuutta kansalaisten mielipiteiden kanssa, että päättäjien pitäisi olla vastaanottavaisia (responsiivisia) kansalaisilta tuleville ärsykkeille, ja että kansanedustuslaitos olisi kansan pienoiskuva suhteessa erinäisiin sosio-demografisiin piirteisiin. Edustusta sinänsä ei pidetä demokraattisena, ellei se seuraa vaaleista ja ellei yllä kuvailtu läheisyys edustajien ja edustettavien välillä toteudu. Demokratiateoriassa on kuitenkin viimeisen 20 vuoden aikana tapahtunut niin sanottu edustuskäänne, tai konstruktivistinen käänne. Sen keskeinen huomio on, että edustus ei ole demokratian välttämätön lisäke vaan demokratia itse asiassa edellyttää edustusta. Tällä ei kuitenkaan viitata elitistiseen, schumpeterilaiseen, näkemykseen edustuksellisesta demokratiasta eikä siihen, että suuret yhteiskunnat voisivat olla demokraattisia vain edustuksen kautta. Sen sijaan edustuksen katsotaan mahdollistavan kommunikaation ja symbolit, joiden seurauksena edustettava kokonaisuus muodostuu. Edustus ymmärretään siis ennen kaikkea ajatukseksi eikä institutionaaliseksi muodoksi. Edustamisväitteillä (representative claims; Saward 2006; 2010) sekä edustaja että edustettava rakennetaan symbolisesti. Nämä väitteet ovat vääjäämättä valikoivia, esteettisiä ja performatiivisia. Tämä edustuksen esteettinen ominaisuus tekee vallankäytöstä näkyvää ja kutsuu kontrolloimaan sitä. Edustamisväitteiden tekemistä ei kuitenkaan tule ymmärtää vaaleilla valittujen edustajien yksinoikeudeksi, vaan niiden tekeminen on auki kaikille subjekteille. Edustamisväitteet mahdollistavat erilaiset käsitykset 'meistä' ja 'meidän' eduistamme ja näiden käsitysten keskinäisen kamppailun, mikä on välttämätöntä demokraattisen politiikan jatkuvuudelle. Monet empiiriset tutkimukset ovat ottaneet edustuskäänteen lähtökohdakseen. Koska siirtymä uuteen teoreettiseen ymmärrykseen on tapahtunut verrattain hiljattain, empiiriset tutkimukset eivät kuitenkaan muodosta vielä yhtenäistä tutkimusperinnettä. Edistääkseen edustuskäännettä seuraavaa edustustutkimusta, esitetään kaksiosainen tutkimusongelma: (1) Mitä oikeastaan tutkimme, kun tutkimme edustusta? ja (2) Mikä tekee edustuksesta demokraattista? Näitä kahta kysymystä tarkastellaan sekä teoreettisesti että tutkimalla edustuspuhetta (representational speech) käyttäen Talvivaaraa tapaustutkimuksena. Edustuspuhe on laajempi käsite kuin Sawardin edustamisväite, ja sillä viitataan mihin tahansa lausumiin ja (esimerkiksi visuaalisiin) symboleihin, joilla rakennetaan edustajaa ja edustettavaa tietynlaisiksi. Edustuspuheen käsitteeseen sisältyy myös eksplisiittinen puhe edustuksesta ja sen merkityksistä. Aiempien teoreettisten keskusteluiden pohjalta tutkimuksessa esitetään, että edustus toimii demokratian ehtona erityisesti siksi, että (1) se on epäsuoraa ja mahdollistaa siten kommunikaation; (2) se mahdollistaa symboliset esitykset edustajasta, edustettavasta ja todellisuudesta, eikä siten ole vain kahdenvälinen suhde; ja (3) se näin ollen mahdollistaa politiikan. Demokratia ei ole mahdollista ilman politiikkaa. Tätä teoreettista näkemystä tarkastellaan edelleen Talvivaaran tapauksen valossa. Tapaustutkimuksen aineisto koostuu 41 haastattelusta ministerin, kansanedustajien, kunnanvaltuutettujen, viranhaltijoiden, kansalaistoimijoiden ja Talvivaara-yhtiön edustajien kanssa. Aineistoon sisältyy myös osallistuvaa havainnointia mielenosoituksista, kansalaiskokoontumisista ja paneelikeskustelusta, hallinnollisia lausuntoja ja virallisia tiedotteita, eduskuntalähteitä (kirjallisia kysymyksiä, talousarvio- ja lisätalousarvioaloitteita sekä täysistunnon pöytäkirjoja) sekä Stop Talvivaara -liikkeen tiedotteita ja YouTube-videoita aikaväliltä 2005–2015. Tapaustutkimus havainnollistaa teoriaa käytännössä. Tutkimus osoittaa, että edustuksen (edustuspuheen) tutkiminen johtaa huomaamaan poliittisen toiminnan reunaehdot ja ymmärtämään, mitkä tekijät ovat tärkeitä toimijoiden legitimiteetille tietyssä kontekstissa. Talvivaaran kaivoksen kontekstissa oli paradoksaalista, että kansalaistoimijoilta edellytettiin paikallisuutta, vaikka sekä vaaleilla valitut että muut toimijat laajasti arvioivat, että Talvivaara oli kansallinen kysymys. Kansalaistoimijoiden edustamisväitteet näyttäytyivät marginaalisilta korostaessaan ympäristönäkökulmaa. Sen sijaan kansanedustajien edustamisväitteet olivat monin paikoin ympäripyöreitä ja reaktiivisia, pyrkien löytämään kultaisen keskitien. Edustamisväitteet mahdollistivat 'meidän' tulkinnan niin, että tästä tulkinnasta saattoi vetää johtopäätöksiä siitä, mitä tulisi poliittisesti päättää. Samalla edustamisväitteet paljastivat syvempiä jaettuja merkityksiä, joissa talouteen viittaavat argumentit olivat hegemonisempia kuin ympäristöön viittaavat. Tutkimuksen tulokset haastavat perinteisen edustustutkimuksen siinä, että perinteinen tutkimus jakaa edustusfokukset vaalipiiriin, koko valtioon ja puolueeseen. Tapaustutkimus osoittaa, että paikallisten ja kansallisten intressien määritelmät ovat poliittisia ja ne esitetään tietyllä tavalla riippuen puhujan poliittisista kannoista. Edustuspuheeseen liittyy merkityksiä, jotka johdattavat poliittisten (puolue)kantojen äärelle, mutta nämä kannat perustellaan puoluetta useammin viittauksilla paikallisiin tai kansallisiin etuihin. Samalla edustuspuhe tarjoaa näennäisesti neutraalin tavan puhua poliittisesti. 'Kaikkia' väitetään edustettavan, mutta mitä etuja 'kaikkiin' liitetään, riippuu puhujan poliittisista kannoista ja siitä, miten hän esittää käsillä olevan poliittisen kysymyksen. Viittaamalla 'kaikkiin' mahdollistuu poliittisten päämäärien ja ideologioiden kommunikointi tavalla, jonka kuulija voi hyväksyä mahdollisesti helpostikin. Edustamisväitteillä pystyy 'myymään' poliittisia näkökantoja yleisölle. Edustuspuhe onkin kaksiteräinen miekka: se toisaalta mahdollistaa demokratialle tarpeellisen väittelyn 'meistä' ja 'meidän' eduistamme, mutta samalla mahdollistaa poliittisuuden hämärtämisen edellä kuvatulla tavalla. Tämä edellyttää yleisöltä taitoa lukea edustamisväitteitä. Valpas yleisö tunnistaa edustamisväitteet ja pystyy arvioimaan niitä kriittisesti. Epävalpas yleisö sen sijaan ei ymmärrä edustamisväitteiden vääjäämätöntä osittaisuutta ja sitä, että mikään edustamisväite ei ole lopullinen totuus 'meistä'. Epävalppaan yleisön ollessa kyseessä edustamisväitteet avaavat tilaa populismille. Talvivaara-tapaustutkimus vahvistaa Dischin (2011) esittämän käsityksen, että demokraattisesta näkökulmasta normatiivista empiiristä tutkimusta tehdessä on kiinnitettävä huomiota edustamisväitteiden tekijöiden institutionaalisiin positioihin. Tutkimus ehdottaakin, että edustuksen demokraattisuuden tutkijoiden tulee huomioida positiot, joista edustamisväitteitä esitetään, eikä tarkastella vain yleisesti edustamisväitteiden moninaisuutta. Näin ollen tutkijoiden tulisi olla kiinnostuneita myös ei-vaaleilla valittujen toimijoiden tekemistä edustamisväitteistä ja näiden väitteiden suhteesta vaaleilla valittujen toimijoiden edustamisväitteisiin. Edustuspuheen tutkiminen paljastaa valtasuhteita, joiden analyysi on välttämätöntä poliittisen edustuksen tutkijoille. ; The dissertation studies the concept of political representation. Specifically, it examines the connection between representation and democracy. It discusses the shift in theoretical thinking from understanding representation in the context of representative democracies to understanding representation as an idea and process necessary for democracy. This shift is analyzed and developed further by an examination of politics and representational speech during the Talvivaara mine controversy in Finland. In the standard (traditional) account, elections, responsiveness of elected representatives to citizens, universal suffrage, and equality are understood as characteristic to representative democracies. In this account, normative requirements for democratic representation arise from keeping elected representatives and the represented as close to each other as possible. This requires congruence between the decisions of legislators and the opinions of citizens, responsiveness of the representatives to the represented, and descriptive similarity between the two in terms of socio-demographic characteristics. Representation as such is not held to be democratic unless representation emerges from elections and the closeness between representatives and the represented is realized. The representative, or constructivist, turn in democratic theory argues otherwise. This turn in theoretical thinking on representation has taken place over the last 20 years or so. Its central observation is that representation is not second-best to direct democracy, but democracy in fact presupposes representation. However, this argument refers neither to the elitist Schumpeterian view of representative democracy nor to the notion that representation would be the only imaginable way of organizing government in large-scale societies. Instead, it views democracy as an idea rather than an institutional form, in which representation allows for communication and symbols through which the represented constituency emerges. In making representative claims (Saward 2006; 2010), both the representative and the represented are constructed. These claims are necessarily selective, aesthetic, and performative. This aesthetic quality of representation makes power visible and invites control over it. According to this view, claims-making should not be understood as a privilege of the elected, but as open to anyone. Claims make it possible to create and contest portrayals of 'us', and thus sustain democratic politics. While there have been numerous empirical studies departing from this account, these studies point to different directions in terms of how to bring the theoretical turn into (normative) empirical research. This thesis aims to contribute to this state of affairs by addressing two research questions: (1) What do we study when we study representation after the representative turn? and (2) What makes representation democratic? These questions are addressed by studying representational speech. Representational speech is a broader concept than the representative claim. It refers to anything that can be interpreted as constructing a represented category or presenting someone as a representative. Speech about political representation is also included under the umbrella term of representational speech. The dissertation takes the representative turn further by clarifying, confirming, and defining its assertions. Based on analysis of previous theoretical accounts, it is argued that representation functions as a precondition for democracy through its indirectness. It invites communication and symbolic action, and makes politics possible. This theoretical account is further examined in the Talvivaara case study. The case study data consists of 41 interviews with a minister, MPs, local councilors, public officials, civic actors, and Talvivaara representatives. The data also includes participatory observation of demonstrations, citizen assemblies, and a panel discussion, ministerial and administrative statements, parliamentary sources (written questions, budgetary and supplementary budgetary motions, and parliamentary minutes), as well as press releases and YouTube videos by the Stop Talvivaara movement between 2005 and 2015. The case study provides an example of an application of a theory, and is illustrative, or exemplifying, in nature. The case study shows that studying representation (through representational speech) leads to unraveling institutional terms for political action and to understanding what factors are relevant for gaining legitimacy in a specific context. In the context of the Talvivaara mine, it was paradoxical that locality was required from civic actors as a proof of their legitimacy, whilst actors across the political landscape, both elected and non-elected, viewed the Talvivaara case a national issue. At the same time, representative claims made by civic actors were marginal in their emphasis on the environment, as opposed to the rather vague, reactive, and middle-of-the-road representative claims made by MPs. While representative claims allow an interpretation of 'us' that sets the stage for immediate decisions, studying representational speech reveals deeper shared meanings. In the context of Talvivaara, economic arguments were privileged over environmental concerns. The findings of the dissertation challenge traditional representation research that separates electoral district, the party and the nation as representational foci. The case study shows that local and national interests are political matters. How they are represented and defined depends on political standpoints. Representational speech carries meanings that can be traced back to political (party) standpoints. However, these standpoints are often backed with references to local and national interests rather than party affiliations. At the same time, representational speech offers a neutral way to speak politically. 'Everybody' is claimed to be represented, but 'everybody's' interests and how these interests are best served depends on the speaker's political standpoints and representations of the issue. The reference to 'everybody' allows communication of political aims and ideologies in ways that can potentially be accepted quite easily. Claiming to represent 'the people' works as a way to 'sell' policy standpoints to the public. Indeed, representational speech is a double-edged sword. On the one hand, speaking 'representationally' opens space for debates about who 'we' are and what is important to 'us'. On the other, representative claims offer ways to communicate political standpoints in a seemingly neutral way. This requires that audiences be attentive. A politically attentive audience recognizes representative claims and is able to assess whether the portrayal of 'us' is desirable or not. But a politically inattentive audience fails to see that representative claims are necessarily selective and not the final truth about 'us'. If the audience is inattentive, individual representative claims can open space for populism. The case study confirms Disch's (2011) argument that the institutional positions of would-be representatives need to be included when the representative turn is applied to normative empirical research from a democratic perspective. The study of democratic representation should take into account not simply the plurality of representative claims, but the plurality of the positions from which the representative claims are made. This is why representative claims made by non-elected actors and the relationship of these claims vis-à-vis representative claims made by elected actors are worth studying. Addressing representational speech reveals power relations whose analysis is imperative for scholars of political representation.
The European Convention on Human Rights (ECHR) – supervised by the European Court of Human rights (ECtHR) – coexists with other normative (human rights) instruments that have been created at the national, regional, and international level, both by State and non-State actors. The ECHR represents one legal piece of this normative 'jungle', characterized by legal 'fragmentation'. Whereas a lot is said about the negative aspects of this diverse world, this doctoral thesis aims to focus on its positive sides. To support its interpretation and application of the ECHR, the Strasbourg Court makes reference to a diverse range of instruments other than the ECHR, which we call external instruments. The Grand Chamber-case of Demir and Baykara v. Turkey of 12 November 2008 provides a rare overview of the characteristics of this 'referencing practice'. In this judgment, the Court included a separate heading to specifically explain its interpretative use of international law, discussing the legal basis as well as the type of instruments that it considers relevant. Two major conclusions follow from the Court's explanations: firstly, it puts external referencing in the light of some rules on interpretation provided in the Vienna Convention on the Law of Treaties (VCLT) (particularly in Article 31 paragraph 3 (c) VCLT); secondly, it stresses that soft and non-ratified external instruments might equally offer support for (evolutively) interpreting the ECHR. These statements are controversial; the Court has been criticized for misinterpreting the rules of the VCLT, for not well justifying its references as well as for exceeding its powers by incoherently relying on (non-binding) external materials for interpretative purposes.The case of Demir and Baykara v. Turkey left many questions open in respect of the importation of external instruments. There is some confusion about the functions and the weight of (non-binding) external instruments in legal reasoning. In addition, the justificatory arguments developed in this case lack precision and persuasiveness. Addressing these gaps, this study firstly offers an elaborate 'mapping' of the usage of external instruments by the ECtHR. For that purpose, all references in each Grand Chamber-case since Demir and Baykara v. Turkey of 12 November 2008 (until the end of 2015) have been analyzed and categorized. Secondly, this work develops arguments to better justify the Court's practice of using external instruments. Both from a legality and a users' perspective, this thesis demonstrates how external referencing may (under certain conditions) be a valid method to give meaning to the provisions in the ECHR. The 'mapping' of the referencing practice demonstrates that, to support the interpretation and application of the Convention in the 'law'-section of the decision, external instruments have been invoked by the Grand Chamber in almost 70 percent of the examined cases. This interpretative technique covers a wide variety of instruments, diverging according to their origin as well as to their scope ratione materiae, ratione personae and ratione loci. The legal status of the instruments constitutes an additional root of diversity; the ECtHR imports legal instruments that have been ratified by the Member States, instruments that have not been ratified by some of the Member States and/or by the respondent State, soft instruments created by politically (non-)representative bodies, and finally, case law developed by other (quasi-)judicial bodies. The Grand Chamber references these instruments for different purposes: to dismiss their content, to establish interpretative rules, to support the interpretation of notions and requirements of the Convention, to enable the creation of harmony between the Convention and external legal requirements, or to consider a State's freedom of manoeuvre when applying the ECHR. An example of a contested – but rather rare – usage of external instruments consists of comparing a mixture of binding and non-binding instruments in order to progressively evolve (and change) the Court's case law. Overall, however, the Grand Chamber adopts a rather traditional approach to its interpretative 'sources', not according to non-binding instruments an independent decisive weight.In the Grand Chamber cases issued after Demir and Baykara v. Turkey, the Court did not undertake efforts to further justify and explain its referencing practice. In our view, two provisions might nonetheless operate as valuable vehicles to enhance the legality of some references. It concerns, more particularly, Article 31 paragraph 3 (c) VCLT, inciting the Court to take into account external applicable norms, and Article 53 ECHR, offering a 'safeguard' for human rights. Article 31 paragraph 3 (c) VCLT is regularly used by the Court in connection to the method of 'harmonious interpretation', accommodating the obligations of the ECHR with external obligations (that risk to conflict with the Convention). We agree that Article 31 paragraph 3 (c) VCLT – covering a principle of 'systemic integration' – offers a legal basis for a coordinative integration of external applicable requirements. Some caution is nonetheless required; the creation of convergence between the ECHR and external legal domains should not supersede the aim of effective and progressive human rights protection. Therefore, when a conflict arises between the ECHR and an external provision, this should be clearly acknowledged instead of being artificially ignored under a pretext of 'harmonisation' and 'anti-fragmentation'. Subsequently, the conflict should be solved by means of 'hierarchical integration' (giving precedence to human rights law) rather than by 'coordinative integration'.Although the Court references Article 31 paragraph 3 (c) VCLT to support harmonious interpretation between the ECHR and external instruments outside the human rights domain, this case law study demonstrates that it does generally not cite this provision in respect of references to human rights catalogues other than the ECHR. For that reason, a criticism claiming that the Court misuses Article 31 paragraph 3 (c) VCLT to expand the ECHR on the basis of external higher human rights provisions, largely misses ground. This does not mean, however, that Article 31 paragraph 3 (c) VCLT has no relevance in respect of the importation of other human rights catalogues. Although this does not accord with the Court's general practice, we are of the opinion that Article 31 paragraph 3 (c) VCLT mandates the Court to integrate (higher) protection standards applicable in all Member States of the Council of Europe. In other words, the ideal of 'systemic integration' is not only relevant in relation to the landscape of (general) international law, but should also permeate the domain of human rights law. As a harmonizing principle, it is supposed to encourage the Court to take account of ratified external human rights catalogues, including their authoritative interpretation by external monitoring bodies. Article 53 ECHR supports this argument too. This provision offers a human rights safeguard ensuring peaceful coexistence between the ECHR and higher protection standards. The message of Article 53 ECHR towards the Strasbourg judges is twofold. In its procedural dimension, the Court should use it directly, to sanction a State that, on the national level, did not give precedence to the highest applicable human rights standard. In its substantive dimension, this provision has effects similar to those of Article 31 paragraph 3 (c) VCLT. When higher and binding human rights standards are applicable in all Member States, Article 53 ECHR obliges the Court to substantively integrate them into its interpretation of the ECHR. In addition, we argue that Article 53 ECHR offers a symmetric human rights safeguard, preventing a downward evolution of the ECHR on the basis of external human rights instruments offering lower standards. The proposed interpretation of Article 53 ECHR is innovative, yet controversial; so far, the Court has not used it in this manner. In line with Articles 31 paragraph 3 (c) VCLT and 53 ECHR, we argue that external instruments, under certain conditions, exercise a binding authority. Apart from that, referencing could be exercised in an optional manner, for instance in order to support argumentative purposes such as 'evolutive', 'practical and effective', and 'autonomous' reasoning and/or the establishment of a 'margin of appreciation'. Essentially, these interpretation principles are covered by a holistic reading of the rules of the VCLT. A concept that catches well a combined reading of the rules of the VCLT, without losing sight of the specificity of human rights law, is the search for 'opinio juris under the treaty'. Under this interpretative framework, an emerging or an ambiguous State consensus may suffice to develop a dynamic interpretation of the ECHR, provided that the incomplete consensus is confirmed by an opinio juris. To establish an emerging or ambiguous State consensus, 'hard' and ratified legal instruments (of national or international origin) are of particular relevance. In addition, a wide variety of (non-binding) external instruments might be useful to demonstrate the opinio juris. Besides legal provisions, some other, less formal, users' arguments may validate some aspects of the referencing practice. The usage of external human rights catalogues – possibly containing higher protection standards, rights of other 'generations', or more specialized and specific provisions – contributes to the creation of human rights that are effective, universal and indivisible. This serves the rights holders who have an interest in equal treatment by a law that operates as a 'ius gentium', and in an adjudication process that does justice to all specificities of their identity and lived experiences. In addition, referencing could contribute to progressively evolve the protection of human rights. The referencing practice also enhances the coherence of the system, which is beneficial for 'legal certainty' vis-à-vis all users of human rights. Moreover, external referencing may contribute to a more nuanced and 'shared' decision-making, inspired by the positions and insights of various actors. Indeed, by means of comparative law, judges can build a dialectic network of mutual influences and communicative enrichment on a global scale. When we acknowledge that it is the Court's task to translate pluralism in balanced outcomes and to canalize the different interests underlying a case, the importation of external views from across the globe may help the Court is assuming that responsibility. The Strasbourg judges find particularly valuable tools in external instruments. Not only could their usage enhance the procedural economy and the deformalization of the decision-making process, external citations may also make a reasoning more convincing and authoritative towards the audience. However, these benefits only play to the extent that external referencing is transparent, consistent and systematically relies on a solid legal framework.To optimize the justification of the referencing practice, this doctoral thesis recommends the Court to better embed its external citations in both formal and informal arguments. We have done several suggestions as to how such arguments might be developed in practice. Their use could boost the valid usage of external instruments, which, under certain conditions, offers good opportunities for a persuasive interpretation and application of the ECHRWe started our research with a sketch of the present normative environment; it is disordered and can be metaphorically compared to a jungle. The Strasbourg judges walk through this area and use lianas to make connections between all elements that compose this forest. Through their referencing practice, they communicate, learn, and argue. In an ecosystem, all organisms are dependent on one another; they cannot survive in isolation. Following the rules of nature, the organisms mutually profit from each other's existence and finally, provide each other with oxygen. In order to be good rangers in this jungle, the Strasbourg judges should recognize and acknowledge the existence and the value of all the other organisms. In addition, to ensure a high degree of balance in the ecosystem, they should keep an eye both on the system's rules (legality) and on the views and interests of those that benefit from the system (the users of human rights). ; (Faculté de droit) -- FUSL, 2017
The European Convention on Human Rights (ECHR) – supervised by the European Court of Human rights (ECtHR) – coexists with other normative (human rights) instruments that have been created at the national, regional, and international level, both by State and non-State actors. The ECHR represents one legal piece of this normative 'jungle', characterized by legal 'fragmentation'. Whereas a lot is said about the negative aspects of this diverse world, this doctoral thesis aims to focus on its positive sides. To support its interpretation and application of the ECHR, the Strasbourg Court makes reference to a diverse range of instruments other than the ECHR, which we call external instruments. The Grand Chamber-case of Demir and Baykara v. Turkey of 12 November 2008 provides a rare overview of the characteristics of this 'referencing practice'. In this judgment, the Court included a separate heading to specifically explain its interpretative use of international law, discussing the legal basis as well as the type of instruments that it considers relevant. Two major conclusions follow from the Court's explanations: firstly, it puts external referencing in the light of some rules on interpretation provided in the Vienna Convention on the Law of Treaties (VCLT) (particularly in Article 31 paragraph 3 (c) VCLT); secondly, it stresses that soft and non-ratified external instruments might equally offer support for (evolutively) interpreting the ECHR. These statements are controversial; the Court has been criticized for misinterpreting the rules of the VCLT, for not well justifying its references as well as for exceeding its powers by incoherently relying on (non-binding) external materials for interpretative purposes.The case of Demir and Baykara v. Turkey left many questions open in respect of the importation of external instruments. There is some confusion about the functions and the weight of (non-binding) external instruments in legal reasoning. In addition, the justificatory arguments developed in this case lack precision and persuasiveness. Addressing these gaps, this study firstly offers an elaborate 'mapping' of the usage of external instruments by the ECtHR. For that purpose, all references in each Grand Chamber-case since Demir and Baykara v. Turkey of 12 November 2008 (until the end of 2015) have been analyzed and categorized. Secondly, this work develops arguments to better justify the Court's practice of using external instruments. Both from a legality and a users' perspective, this thesis demonstrates how external referencing may (under certain conditions) be a valid method to give meaning to the provisions in the ECHR. The 'mapping' of the referencing practice demonstrates that, to support the interpretation and application of the Convention in the 'law'-section of the decision, external instruments have been invoked by the Grand Chamber in almost 70 percent of the examined cases. This interpretative technique covers a wide variety of instruments, diverging according to their origin as well as to their scope ratione materiae, ratione personae and ratione loci. The legal status of the instruments constitutes an additional root of diversity; the ECtHR imports legal instruments that have been ratified by the Member States, instruments that have not been ratified by some of the Member States and/or by the respondent State, soft instruments created by politically (non-)representative bodies, and finally, case law developed by other (quasi-)judicial bodies. The Grand Chamber references these instruments for different purposes: to dismiss their content, to establish interpretative rules, to support the interpretation of notions and requirements of the Convention, to enable the creation of harmony between the Convention and external legal requirements, or to consider a State's freedom of manoeuvre when applying the ECHR. An example of a contested – but rather rare – usage of external instruments consists of comparing a mixture of binding and non-binding instruments in order to progressively evolve (and change) the Court's case law. Overall, however, the Grand Chamber adopts a rather traditional approach to its interpretative 'sources', not according to non-binding instruments an independent decisive weight.In the Grand Chamber cases issued after Demir and Baykara v. Turkey, the Court did not undertake efforts to further justify and explain its referencing practice. In our view, two provisions might nonetheless operate as valuable vehicles to enhance the legality of some references. It concerns, more particularly, Article 31 paragraph 3 (c) VCLT, inciting the Court to take into account external applicable norms, and Article 53 ECHR, offering a 'safeguard' for human rights. Article 31 paragraph 3 (c) VCLT is regularly used by the Court in connection to the method of 'harmonious interpretation', accommodating the obligations of the ECHR with external obligations (that risk to conflict with the Convention). We agree that Article 31 paragraph 3 (c) VCLT – covering a principle of 'systemic integration' – offers a legal basis for a coordinative integration of external applicable requirements. Some caution is nonetheless required; the creation of convergence between the ECHR and external legal domains should not supersede the aim of effective and progressive human rights protection. Therefore, when a conflict arises between the ECHR and an external provision, this should be clearly acknowledged instead of being artificially ignored under a pretext of 'harmonisation' and 'anti-fragmentation'. Subsequently, the conflict should be solved by means of 'hierarchical integration' (giving precedence to human rights law) rather than by 'coordinative integration'.Although the Court references Article 31 paragraph 3 (c) VCLT to support harmonious interpretation between the ECHR and external instruments outside the human rights domain, this case law study demonstrates that it does generally not cite this provision in respect of references to human rights catalogues other than the ECHR. For that reason, a criticism claiming that the Court misuses Article 31 paragraph 3 (c) VCLT to expand the ECHR on the basis of external higher human rights provisions, largely misses ground. This does not mean, however, that Article 31 paragraph 3 (c) VCLT has no relevance in respect of the importation of other human rights catalogues. Although this does not accord with the Court's general practice, we are of the opinion that Article 31 paragraph 3 (c) VCLT mandates the Court to integrate (higher) protection standards applicable in all Member States of the Council of Europe. In other words, the ideal of 'systemic integration' is not only relevant in relation to the landscape of (general) international law, but should also permeate the domain of human rights law. As a harmonizing principle, it is supposed to encourage the Court to take account of ratified external human rights catalogues, including their authoritative interpretation by external monitoring bodies. Article 53 ECHR supports this argument too. This provision offers a human rights safeguard ensuring peaceful coexistence between the ECHR and higher protection standards. The message of Article 53 ECHR towards the Strasbourg judges is twofold. In its procedural dimension, the Court should use it directly, to sanction a State that, on the national level, did not give precedence to the highest applicable human rights standard. In its substantive dimension, this provision has effects similar to those of Article 31 paragraph 3 (c) VCLT. When higher and binding human rights standards are applicable in all Member States, Article 53 ECHR obliges the Court to substantively integrate them into its interpretation of the ECHR. In addition, we argue that Article 53 ECHR offers a symmetric human rights safeguard, preventing a downward evolution of the ECHR on the basis of external human rights instruments offering lower standards. The proposed interpretation of Article 53 ECHR is innovative, yet controversial; so far, the Court has not used it in this manner. In line with Articles 31 paragraph 3 (c) VCLT and 53 ECHR, we argue that external instruments, under certain conditions, exercise a binding authority. Apart from that, referencing could be exercised in an optional manner, for instance in order to support argumentative purposes such as 'evolutive', 'practical and effective', and 'autonomous' reasoning and/or the establishment of a 'margin of appreciation'. Essentially, these interpretation principles are covered by a holistic reading of the rules of the VCLT. A concept that catches well a combined reading of the rules of the VCLT, without losing sight of the specificity of human rights law, is the search for 'opinio juris under the treaty'. Under this interpretative framework, an emerging or an ambiguous State consensus may suffice to develop a dynamic interpretation of the ECHR, provided that the incomplete consensus is confirmed by an opinio juris. To establish an emerging or ambiguous State consensus, 'hard' and ratified legal instruments (of national or international origin) are of particular relevance. In addition, a wide variety of (non-binding) external instruments might be useful to demonstrate the opinio juris. Besides legal provisions, some other, less formal, users' arguments may validate some aspects of the referencing practice. The usage of external human rights catalogues – possibly containing higher protection standards, rights of other 'generations', or more specialized and specific provisions – contributes to the creation of human rights that are effective, universal and indivisible. This serves the rights holders who have an interest in equal treatment by a law that operates as a 'ius gentium', and in an adjudication process that does justice to all specificities of their identity and lived experiences. In addition, referencing could contribute to progressively evolve the protection of human rights. The referencing practice also enhances the coherence of the system, which is beneficial for 'legal certainty' vis-à-vis all users of human rights. Moreover, external referencing may contribute to a more nuanced and 'shared' decision-making, inspired by the positions and insights of various actors. Indeed, by means of comparative law, judges can build a dialectic network of mutual influences and communicative enrichment on a global scale. When we acknowledge that it is the Court's task to translate pluralism in balanced outcomes and to canalize the different interests underlying a case, the importation of external views from across the globe may help the Court is assuming that responsibility. The Strasbourg judges find particularly valuable tools in external instruments. Not only could their usage enhance the procedural economy and the deformalization of the decision-making process, external citations may also make a reasoning more convincing and authoritative towards the audience. However, these benefits only play to the extent that external referencing is transparent, consistent and systematically relies on a solid legal framework.To optimize the justification of the referencing practice, this doctoral thesis recommends the Court to better embed its external citations in both formal and informal arguments. We have done several suggestions as to how such arguments might be developed in practice. Their use could boost the valid usage of external instruments, which, under certain conditions, offers good opportunities for a persuasive interpretation and application of the ECHRWe started our research with a sketch of the present normative environment; it is disordered and can be metaphorically compared to a jungle. The Strasbourg judges walk through this area and use lianas to make connections between all elements that compose this forest. Through their referencing practice, they communicate, learn, and argue. In an ecosystem, all organisms are dependent on one another; they cannot survive in isolation. Following the rules of nature, the organisms mutually profit from each other's existence and finally, provide each other with oxygen. In order to be good rangers in this jungle, the Strasbourg judges should recognize and acknowledge the existence and the value of all the other organisms. In addition, to ensure a high degree of balance in the ecosystem, they should keep an eye both on the system's rules (legality) and on the views and interests of those that benefit from the system (the users of human rights). ; (Faculté de droit) -- FUSL, 2017
Thèse en cotutelle internationale avec l'université Aristote de Thessalonique - Grèce ; The construction of a big dam is a project of important economic and social consequences and this is the reason why it should be preceded by a careful socio-economic and operational study. On one hand, the operational investigation should take into account the dam's dimensions and purpose, the location of its wartershed and its hydrology characteristics as well as the environmental constraints according to the international and national legislation. On the other hand, the socio-economic study should take into account all the variables which ensure the sustainability of the project. Until a few years ago, the vast majority of dams were funded and consequently owned by the public sector, thus project profitability was not of highest priority in the decision of their construction. Nowadays, the liberalisation of the electricity market in the developed world has led to the privatisation of energy infrastructures and has set new economic standards in the funding and management of dam projects. Investment decision is conditioned to an evaluated viability and profitability over the full life cycle of the project, typically 50 years, on the basis of quantitative criteria such as the Net Present Value (NPV). However, since the fuel of a hydropower plant is water, its operation interferes with the water resources management of the river basin where it is situated. To this respect, new practices and regulations have recently developed such as the EU Water Framework Directive (WFD). They constrain any water resources project into following guidelines regarding its social and environmental impacts in accordance with long term issues such as its sustainability under climate change conditions. The present work aims at exploring the coupling of mathematical models of hydrology, hydropower operation, climate change and economics in order to propose ways of making balanced decisions merging the demands of project investment criteria, public well being and river basin management best practices. It is illustrated by the investigation of the new hydropower and irrigation project of Temenos in the Mesta/Nestos river basin. This basin is shared between Bulgaria in its upstream northern part and Greece for its downstream part. The river ends in Aegean Sea after expanding into the Nestos delta which is occupied by a vast expanse of irrigated fields. Currently, two hydroelectric power plants are located in the mountainous part of the Nestos basin: the Thissavros plant with a reservoir capacity of 565 millions m3 and further downstream, the Platanovryssi dam with a reservoir capacity of 11 millions m3. Both dams have been designed to operate in pump-storage mode for electricity generation. The future Temenos project is planned to be financed exclusively on private funds. Situated downstream from the previous dams, it is designed for: electricity production, irrigation regulation and should contribute to the improvement of the power produced by the existing complex. The climate change scenarios developed by the Intergovernmental Panel of Climate Change (IPCC) with the publication of the Special Report on Emissions Scenarios (SRES) reveal possible future climate modifications at global scale. More specifically, according to the output of the several global circulation models (GCM), the global average surface temperature is predicted to increase by 1.4 to 5.8°C over the period 1990 to 2100. These temperature increases should drive evaporation rate increases and precipitation fluctuations. Consequently, a severe impact could result upon hydropower generation as it is sensitive to the amount, timing, and geographical pattern of precipitation as well as temperature. Climate change studies over the Mesta-Nestos area have been based on the output of the CLM regional climate model from the Max Planck Institute for Meteorology, Germany. They concern the SRES scenarios A1B and B1. The CLM model uses a dynamically downscaling technique where boundaries conditions provided by global scale models such as ECHAM5/MPIOM are adapted to local conditions such as relief. The temperature, precipitation and evapotranspiration results obtained from CLM were used as input data to the spatially distributed hydrology model MODSUR-NEIGE for simulating the future water regime of the river basin. It was coupled with the HEC-ResSim reservoir simulation tool using a detailed technical representation of the dams and irrigation networks systems planned for the expansion of the existing irrigation in the Nestos delta and Xanthi plain areas. Finally, the appraisal of the Temenos project viability under future climatic conditions was carried out with the use of a special purpose economic tool which is based on the NPV rule. The thesis proposes a holistic approach to project evaluation which goes beyond strict project financing practices. The NPV based rule has been extended the merging of economic elements (energy and water selling prices) with social benefits (compensation to farmers in case of lack of water) and the value of the environment (costs for restoration good water status in case of failure to preserve a minimum environmental flow). It is argued that this combined approach offers a useful evaluation of the sustainability of water projects. Furthermore, climate scenarios have been augmented by transboundary politics hypotheses based on the execution of on-going flow treaty existing between Bulgaria and Greece about the Mesta-Nestos waters. Finally, in the context of compliance with the WFD basin management guidelines, the use of multicriteria decision analysis methods is explored in order to balance the conflicts of interests between all the actors which should be participating in the ultimate decision of financing and operating a multipurpose dam project such as Temenos. ; La construction d'un grand barrage est un projet aux conséquences économiques et sociales importantes voila pourquoi elle doit être précédée d'une étude opérationnelle et socio-économique détaillée. En premier lieu, l'étude opérationnelle doit porter sur les dimensions et le régime d'utilisation du barrage, la configuration géographique de son bassin de drainage et ses caractéristiques hydrologiques aussi bien que sur les contraintes de type environnemental qui peuvent s'exercer dans un cadre législatif national ou international. En second lieu, l'étude socio-économique doit prendre en compte tous les paramètres susceptibles d'influencer sur la durabilité du projet. Jusqu'à une époque récente, la large majorité des barrages était financée et gérée par le secteur public. Ainsi la profitabilité des projets n'était pas un élément prépondérant dans la décision de les construire. De nos jours, la libéralisation du marché de l'énergie dans les pays développés a conduit à la privatisation des infrastructures énergétiques et par voie de conséquence à l'application de nouveaux objectifs économiques dans le financement et la gestion des projets de barrage. Les décisions d'investissement sont conditionnées par l'évaluation de leur viabilité technique et de leur profitabilité tout au long de leur durée de vie qui est typiquement de 50 ans. Cette évaluation est basée sur l'usage d'un critère quantitatif nommé Valeur Actualisée Nette (VAN) aussi appelé Net Present Value en anglais (NPV). Cependant, comme l'eau est le fluide nécessaire au fonctionnement des centrales hydroélectriques, leur exploitation interfère avec la gestion des ressources en eau du bassin hydrographique qui les accueille. De ce point de vue, de nouvelles pratiques et réglementations ont été introduites dans l'Union Européenne par la Directive Cadre sur l'Eau (idem, WFD en anglais). Cette directive contraint chaque projet d'exploitation des ressources en eau à suivre des recommandations portant sur ses conséquences sociales et son impact sur l'environnement en respectant des contraintes à long terme relatives à sa durabilité en cas de changement climatique. Le travail présenté porte sur l'exploration du couplage entre différents modèles mathématiques traitant de l'hydrologie, l'exploitation hydroélectrique, le changement climatique et l'évaluation économique dans le but de proposer les moyens d'effectuer des décisions équilibrées satisfaisant aux exigences des critères de financement de projet , au bien-être du public et aux pratiques qu'exigent la gestion de bassin hydrographique. Ce travail est illustré par l'étude du futur barrage de Temenos, projet mixte de production électrique et d'irrigation intéressant le bassin hydrographique du Mesta-Nestos. Ce bassin est partagé entre la Bulgarie pour sa partie amont et la Grèce pour sa partie aval. La rivière termine son cours dans la mer Egée après avoir formé le delta du Nestos dont la majorité de la surface est occupée par un système d'irrigation. Deux ouvrages hydroélectriques occupent actuellement la partie montagneuse du bassin du Nestos. Il s'agit du barrage de Thissavros dont le réservoir a une capacité de 565 millions m3 et du barrage de Platanovryssi situé en aval du précédent et dont la capacité est de11 millions m3. Les deux barrages sont liés par un système de rétro-pompage STEP (Station de Transfert d'Énergie par Pompage). Le futur projet Temenos devrait être exclusivement financé sur fonds privés. Situé en aval des deux barrages précédents, il est configuré pour augmenter la production d'électricité du précédent complexe et pour réguler le système d'irrigation de la basse vallée agricole du Nestos Les scénarios de changement climatique (SRES) développés par le Groupe d'Experts Intergouvernemental sur l'Evolution du Climat (GIEC ou IPCC, en anglais) prévoient de possibles changements climatiques décrits à l'échelle mondiale. Plus précisément, selon les résultats des modèles de circulation globale (GCM), la moyenne mondiale annuelle de la température de surface pourrait augmenter de 1.4 à 5.8°C sur une période allant de 1990 à 2100. Cette augmentation de température pourrait entrainer une augmentation de l'évaporation et influencer le régime des précipitations. Dans ce cas, un impact notable pourrait en résulter sur l'exploitation des installations hydroélectriques dont l'exploitation est particulièrement sensible à la quantité, au rythme et à la répartition géographique des précipitations et des températures. L'étude du changement climatique sur la zone du Mesta-Nestos est base sur les résultats du modèle climatique régional CLM de l'Institut de Météorologie Max Planck, Allemagne. Elle s'intéresse plus particulièrement aux scénarios B1 et A1B produits par le SRES. Le modèle CLM effectue un transfert à l'échelle locale des résultats du modèle global atmosphère-océan ECHAM5/MPIOM utilisés comme forçage. CLM est en particulier conditionné par les conditions aux limites du relief local. Les séries mensuelles de température, précipitation et évapotranspiration produites par CLM ont été utilisées comme données d'entrée du modèle hydrologique distribué MODSUR-NEIGE de manière à simuler le régime hydrographique du bassin en cas de changement climatique. Ce modèle est couplé au modèle de barrage HEC-ResSim décrivant en détail tous les éléments techniques du complexe hydroélectrique du Nestos et des réseaux d'irrigation existant dans le delta du Nestos ainsi que leur future extension à la plaine de Xanthi. Enfin, l'évaluation de la viabilité du projet Temenos en conditions de changement climatique a été effectuée à l'aide d'un nouvel outil économique basé sur le calcul de la VAN et spécialement développé pour les besoins de l'étude. La thèse propose une approche holistique de l'évaluation de projet qui dépasse le strict cadre économique. Le calcul de la VAN a été étendu de façon à réunir les éléments de strict rendement économique (recettes tirées de la vente de l'énergie électrique et de l'eau d'irrigation ainsi que l'accroissement du revenu des agriculteurs) avec des éléments concernant les « externalités » du projet que sont la valeur de l'environnement (coût de restauration du bon état des eaux de surface dans le cas où le débit environnemental minimal ne peut être maintenu) et les bénéfices sociaux (compensations aux agriculteurs dans le cas où les débits d'irrigation ne peuvent être délivrés). On argumente le fait que cette approche combinée offre un outil efficace d'évaluation du projet selon une approche de développement durable. De plus, l'étude d'impact des scenarios de changement climatique a été augmentée d'une étude portant sur les conséquences que pourraient avoir différentes hypothèses d'évolution de la politique de gestion transfrontalière du bassin en relation avec l'exécution du traité de débit signé entre la Bulgarie et la Grèce à propos des eaux du Mesta-Nestos. Enfin, dans un contexte d'application des recommandations de la Directive Cadre de l'Eau (WFD), on propose d'explorer l'utilisation des méthodes de décision multicritère (MCDA, en anglais) pour gérer les conflits d'intérêt des différents acteurs du bassin dans la phase d'acceptation du projet Temenos et dans sa phase d'exploitation.
Brussels Ii Conference On 'supporting The Future Of Syria And The Region': Co-chairs Declaration ; Council of the EU PRESS EN PRESS RELEASE 219/18 25/04/2018 Brussels II Conference on 'Supporting the future of Syria and the region': co-chairs declaration 1. The Second Brussels Conference on "Supporting the Future of Syria and the Region" took place on 24-25 April 2018. It was hosted by the European Union and co-chaired by the United Nations. 2. One year after Brussels I, and following the previous three pledging conferences in Kuwait as well as the London Conference in 2016, the Conference renewed and strengthened the political, humanitarian and financial commitment of the international community to support the Syrian people, the neighbouring countries, and the communities most affected by the conflict. Brussels II brought together 86 delegations including 57 States, 10 representatives of regional organisations and International Financial Institutions (IFIs) as well as 19 UN agencies. More than 250 Non-Governmental Organisations (NGOs) were also associated throughout the preparations and the two days of the Conference. 3. The former co-chairs of Brussels I: Germany, Kuwait, Norway, Qatar and the United Kingdom (UK) brought substantial input to the preparations and the proceedings of the Conference. Jordan and Lebanon were closely associated, in a spirit of partnership and in full acknowledgement of their tremendous efforts since the beginning of the Syrian conflict. Turkey also provided important contributions, both as the country hosting the largest number of Syrian refugees and as a key regional actor. 4. Civil society and NGOs were very closely and substantially associated to Brussels II and its preparations, including through extensive consultations with NGOs implementing humanitarian and resilience programmes in the region. The first day of the Conference was devoted to a high-level dialogue with representatives from 164 NGOs, including 15 from Syria and 72 from the three main refugee-hosting countries. 5. In addition, Syrian Civil Society Organisations (CSOs) from across Syria and neighbouring countries discussed their role in the future of Syria in a closed-door side event undertaken by the EU and the Office for the Special Envoy for Syria. The CSOs' views were further presented during the ministerial plenary on 25 April. The international community, and the EU in particular, will continue to work with Syrian civil society as essential stakeholders towards reaching a peaceful solution to the conflict and in its legitimate aspirations to contribute to the country's future. 6. Syria's artistic community was also given prominence through a string of cultural events, including a Syrian art space, "Tourab", that ran for ten days in central Brussels around the dates of the Conference. These events were meant as a tribute to the remarkable individual efforts of the Syrians since the start of the conflict. 7. The Conference reaffirmed that only an inclusive, comprehensive and genuine political solution in accordance with UNSCR 2254 and the Geneva Communiqué, that meets the legitimate aspirations of the Syrian people for dignity and freedom will ensure a sustainable end to the Syrian conflict, prevent regional escalation and a return of ISIL/Da'esh, and guarantee a peaceful and prosperous future for Syria and the region. It reiterated the international community's commitment to Syria's sovereignty, independence, unity and territorial integrity, and safety and security for all citizens. Participants stressed the importance of women's engagement in the political process, including through their adequate representation within the delegations of parties to the conflict. 8. The humanitarian and resilience needs of people inside Syria and in the region remain enormous. Current UN appeals are severely underfunded. In 2018, the UN-coordinated appeal for Syria requests to cover assistance and protection needs inside Syria amounts to US$ 3.51 billion. In addition, through the Regional Refugee and Resilience Plan (3RP), an appeal of US$ 5.6 billion, inclusive of US$ 1.2 billion already committed, is required to support refugee and host community humanitarian and resilience related assistance in Turkey, Lebanon, Jordan, Iraq and Egypt. 9. The Conference acknowledged the continuing generosity of neighbouring host countries and their communities in providing refuge to millions of displaced people. Participants pledged, for both Syria and the region, $ 4.4 billion (€ 3.5 billion) for 2018, as well as multi-year pledges of $ 3.4 billion (€ 2.7 billion) for 2019-2020. In addition, some international financial institutions and donors announced around $ 21.2 billion (€17.2 billion) in loans, of which elements are on concessional terms. The Conference noted that pledges made at Brussels I in 2017 had been largely fulfilled, and in some cases exceeded. Co-chairs and main donors agreed to widen the resource base and ensure greater predictability, coherence and effectiveness of the aid. The attached fundraising annex sets out the pledges made at this Conference. Political 10. The Conference expressed its strong support for the work of the UN Special Envoy for Syria in his mandate to facilitate the political process, with a view to a lasting political settlement based on the Geneva Communiqué and the full implementation of relevant UNSC Resolutions, including UNSCR 2254 (2015). It welcomed the twelve "Living Intra-Syrian essential principles" developed as commonalities in the Geneva process, offering a perspective of a vision of a future Syria that can be shared by all. It also welcomed the parameters on the constitutional and electoral baskets and the importance of a safe, calm and neutral environment, as outlined by the UN Special Envoy for Syria in his Security Council Briefing on 19 December 2017. Participants gave their full support to the Special Envoy's efforts to facilitate, in consultation with all concerned, the implementation of the Sochi Final Statement (as circulated to the Security Council on 14 February 2018) for the establishment of a Constitutional Committee for Syria in Geneva, under UN auspices and in accordance with UNSCR 2254 (2015). 11. The Conference reiterated the importance of preventing and combating terrorism in Syria in accordance with relevant United Nations Security Council resolutions. They took note of considerable progress in military operations to combat ISIL/Da'esh since the last Brussels Conference, while underscoring the continuing need to combat terrorism in accordance with international law. Efforts to combat terrorism do not supersede other obligations under international law 12. The co-chairs expressed their strong condemnation of the use of chemical weapons by any party to the conflict and under any circumstances. Their use is abhorrent and a clear violation of international law. It is very important that any alleged use be followed by an impartial, independent and effective investigation. Ensuring accountability for the use of chemical weapons is our responsibility, not least to the victims of such attacks. Co-chairs called upon all participants to use their influence to prevent any further use of chemical weapons. Humanitarian 13. Violence and human suffering have increased in Syria, with military escalation by parties to the conflict further increasing to an alarming extent in 2018. The civilian population has continued to endure the bulk of the suffering caused by the conflict, including severe, constant and blatant violations of International Humanitarian Law (IHL) and human rights law, in particular: deliberate and indiscriminate attacks on civilians and civilian infrastructure, reported and ongoing use of chemical weapons, forced displacement, arbitrary detention, enforced disappearances, and torture, including sexual exploitation and abuse and gender-based violence. More than 12 million people have now been displaced, including more than 5.6 million refugees hosted in neighbouring countries and 6.6 million displaced inside Syria. Nearly 13.1 million people, almost half of whom are children, urgently need humanitarian assistance and protection inside the country. 14. The co-chairs, together with all participants, reiterated their appreciation for Kuwait's and Sweden's efforts in drafting UNSC Resolution 2401 (2018) and called for its immediate and full implementation, as well as all other relevant resolutions on Syria. They urged all parties to the conflict to strictly adhere to their obligations under IHL. Attacks against civilians, humanitarian workers as well as any civilian infrastructure, particularly health facilities and schools, violate the most basic human rights, may amount to war crimes under international law, and must stop without delay. They also requested that humanitarian mine action programming be accelerated as a matter of urgency. 15. The Conference reconfirmed the importance of delivering needs-based humanitarian assistance to all civilians, in line with humanitarian principles of humanity, neutrality, impartiality and independence. Participants stressed the critical link between protection and access. They called for unconditional, unimpeded and sustained humanitarian access through the most direct routes, including to the 2.3 million people still living in besieged and hard-to-reach areas across Syria through all aid modalities: cross-line, cross-border and regular programme, in line with UNSC Resolution 2393 (2017). 16. Particular concerns were noted over the escalation of fighting and dramatic humanitarian situation still faced by civilians in many parts of Syria. The Conference stressed the need to ensure that any evacuation of civilians must be safe, informed, temporary, voluntary in nature and a solution of last resort including the destination of their choice, the right to return and the choice to stay, as per IHL. All efforts should be made to ensure the unconditional medical evacuation of those in need of urgent medical treatment. Denials of medical supplies and of access to healthcare are violations of international law and should be stopped at once. The systematic removal of life-saving medical items from humanitarian convoys is unacceptable and needs to be addressed once and for all. 17. Participants agreed that present conditions are not conducive for voluntary repatriation in safety and dignity. Significant risks remain for civilians across the country as the situation remains characterised by continued fighting and displacement, with 2.6 million people displaced in 2017 alone. Conditions for returns, as defined by the UNHCR and according to international refugee law standards, are not yet fulfilled. Any organised return should be voluntary and in safety and dignity. Regional/development 18. The international community acknowledged and commended the huge efforts made by the neighbouring countries and their citizens, in particular Jordan, Lebanon and Turkey, as well as Iraq and Egypt, in hosting millions of refugees from Syria. Participants recognised the deepening vulnerability of Syrian refugees, Palestinian refugees from Syria and host communities, which should be addressed through sustained humanitarian and resilience support. 19. Participants committed to remaining fully engaged, in a spirit of partnership, in supporting neighbouring countries to address the challenges they face. Substantial progress has been made by governments, donors and the UN in implementing the commitments undertaken in London in 2016 and in Brussels in 2017, including through the EU Compacts with Jordan and Lebanon. However, more should be done to ensure the continued and effective protection of refugees against risks of forced evictions and returns and improvement of their legal residency status. 20. While the countries of the region continue to face enormous humanitarian challenges, the Conference agreed that increased focus is required to support reform and longer-term development in a sustainable manner. It remains critical to support health and education, economic development, job creation and integration into labour markets, for both host communities and refugees, especially vulnerable groups such as women and youth. The Conference underlined the essential need to reach all children and young people, who will one day have a key role in the recovery and rebuilding of the region, with quality education and skills training. It expressed support for targeted resilience programming and an increase in allocations to women and girls. Extremely vulnerable refugees and host communities will continue to require support through cash assistance and enhanced social protection mechanisms. Resettlement was recognised as an essential protection tool for refugees with heightened protection risks and its importance was highlighted, together with other legal pathways, in offering safe and dignified access to safety beyond the immediate region. 21. The Conference welcomed the Lebanese Government's Vision for Stabilisation, Growth and Employment including the Capital Investment Programme together with its commitment to establish a timetable for reforms that were presented in Paris on 6 April 2018, whose implementation and follow-up with the support of the international community is critical. The Conference also welcomed the Rome II ministerial meeting in support of Lebanon's armed and internal security forces that was held on 15 March 2018. 22. The Conference equally welcomed the fiscal and structural reforms that are being implemented by the Jordanian Government in a difficult economic environment, with a view to ensuring fiscal sustainability and improving the investment climate in line with the "Jordan 2025" vision document and with the Economic Growth Plan for 2018-22. The Conference also welcomed the UK's intention to host an international Conference with Jordan in London later this year to showcase Jordan's economic reform plans, its aspiration to build/enable a thriving private sector, and mobilise support from international investors and donors. 23. The Conference commended the Turkish Government for its generous and large-scale efforts in hosting millions of Syrian refugees and integrating them into national services, including health, education, employment and other municipal and social services. Joint frameworks have been established with the international community under programmes such as the EU Facility for Refugees in Turkey and the UN Regional Refugee and Resilience Plan 2017-2018. Addressing the protracted refugee situation will require continued co-operation along those lines. 24. Participants committed to supporting further investments to foster inclusive economic growth and social development in Lebanon and Jordan, including through concessional financing, blending of grants with loans and the use of the EU External Investment Plan in cooperation with the support of European Financial Institutions and the private sector. They commended the efforts made by host countries to open access to education, water and sanitation and health services and encouraged further progress. Investment in infrastructure and in human capital is necessary to improve the quality of services and will continue to be supported. Participants also noted the importance of vocational training for refugees and host communities, closely aligned with private sector labour needs. Protection measures, in particular the provision of legal residency, should be reinforced. 25. Inside Syria, support to inclusive and accountable service delivery and to livelihood opportunities for the affected populations, particularly women and youth, should continue while ensuring that it does not condone, or indirectly entrench, social and demographic engineering as a result of forced displacement and intentional creation of obstacles to return. Work will address needs related to safe and equal access to civil documentation, housing and property rights to ensure that the rights of Syrians are protected and that those displaced are provided the basic conditions to be able to return to their homes in a dignified, safe and voluntary way when conditions allow. It is also important to support Syrian civil society, social cohesion/dialogue and seek to promote accountability and transitional justice. Funding decisions shall be conflict-sensitive and shall in no way benefit or assist parties who have allegedly committed war crimes or crimes against humanity. The UN reiterated that its Parameters and Principles for UN assistance in Syria will guide UN assistance beyond emergency life-saving aid in Syria. Future steps 26. The EU and the UN committed to tracking the commitments made during the Conference and reporting regularly on their delivery, including through reviews at key international events during the year. 27. Donor countries present at the Conference reiterated that reconstruction and international support for its implementation will only be possible once a credible political solution, consistent with UNSCR 2254 and the Geneva Communiqué, is firmly underway. A successful reconstruction process also requires minimal conditions for stability and inclusiveness, a democratic and inclusive government, an agreed development strategy, reliable and legitimate interlocutors as well as guarantees in terms of funding accountability. None of these conditions are fulfilled in Syria. In the meantime, participants agreed to regularly review post-agreement plans, including those produced by the UN-led post-agreement planning process initiated by the 2016 London Conference on Syria. 28. Participants also called upon all parties to release all persons who are arbitrarily detained, in line with UNSC Resolutions 2254 (2015) and 2268 (2016). Access to all detention facilities should be granted to independent monitors and information provided on cases of forced disappearances. Ongoing work on the release of detainees and abductees by all parties is valuable and can help build confidence between them. Participants expressed support to the UN proposal for a Standing Secretariat under UN auspices, recently proposed to support the working group formed by the Astana guarantors. 29. Finally, participants recalled that transitional justice and accountability are required for sustainable peace and an inherent part in any meaningful process of reconciliation. War crimes and violations of international humanitarian law and human rights abuses need to be investigated. Any entities and individuals guilty of such violations, including the use of chemical weapons, must be held accountable. The co-chairs commended the role of the Commission of Inquiry and welcomed progress in the work of the International Independent and Impartial Mechanism (IIIM) and called for continuous efforts to ensure the necessary means for its functioning. They called for the situation in Syria to be referred to the ICC. Annex - Fundraising - Supporting the future of Syria and the region Annex - Situation inside Syria Annex - Jordan partnership paper Annex - Lebanon partnership paper Annex - Turkey partnership paper Press office - General Secretariat of the Council Rue de la Loi 175 - B-1048 BRUSSELS - Tel.: +32 (0)2 281 6319 press.office@consilium.europa.eu - www.consilium.europa.eu/press
Máster Universitario en Ingeniería Industrial ; El sector de la automoción engloba un mercado muy exigente, donde los clientes poseen expectativas de calidad muy altas y donde las empresas proveedoras de vehículos están sometidas a grandes presiones y regulaciones. En los años ochenta, las empresas conocidas como "The Big Three", Ford, Chrysler y General Motors (en aquel momento entre las tres se repartían la gran mayoría de la cuota del mercado de la automoción), unieron sus fuerzas en busca de un objetivo común, y nominaron a una comisión de expertos para hacer frente a la amenaza que suponía la creciente expansión de la industria automovilística japonesa. Además, estas tres empresas crearon el AIAG ('Automotive Industry Action Group'), una asociación sin ánimo de lucro que se compone de un diverso grupo de profesionales y actores interesados de este sector, que incluye, por ejemplo, proveedores de todos los tamaños de piezas y material, fabricantes, proveedores de servicios, e incluso el mismo gobierno, además de las propias empresas automovilísticas. Esta asociación vela por la existencia de un trabajo colaborativo entre todos los miembros, buscando sinergias y apoyos mutuos para que todas las partes salgan beneficiadas. En el contexto actual, las empresas proveedoras del sector de la automoción deben cumplir con los estándares definidos por el AIAG con relación al APQP. El APQP ('Advanced Product Quality Planning'), es, como su propio nombre indica, una planificación avanzada de la calidad del producto. Se trata de un proceso que sigue una metodología totalmente estructurada, orientada hacia el cumplimiento de los requisitos del cliente sobre el producto final, involucrando para ello en el proceso a proveedores y al cliente final. La estructura del proceso se basa en cinco grandes etapas, que incluyen entradas y salidas en cada una de ellas. Las salidas se generan a partir de una combinación de las entradas, y en ocasiones directamente a partir de otras salidas. La clave reside en que se trata de un ciclo sin fin de mejora continua, donde se busca en todo momento mantener la calidad del producto fabricado por encima de unos mínimos, que corresponden siempre a los requisitos especificados por el cliente. Al ser un ciclo, las salidas de una etapa, son las entradas de la siguiente, y cuando se llega a la última etapa se vuelve a comenzar (de ahí el término de mejora continua). De esta manera, se consigue establecer un proceso estándar y reproducible, mediante el cual se asegura cierto rigor en cuanto a la calidad del producto, que es aplicable a cualquier proceso de producción de cualquier producto (en este caso vehículos), donde lo único que cambia de uno a otro es la particularización de las entradas para cada caso en concreto, siendo los factores los mismos. El APQP se basa en el 'ciclo de Deming', también conocido como 'círculo PDCA' (de sus siglas en inglés, 'plan, do, check, act'). O lo que es lo mismo, "planear, hacer, verificar y actuar". En el caso del APQP, este ciclo se divide en cinco etapas, ya que la fase de "do" se parte en dos. Las etapas son las siguientes: 1) Planificación y definición del programa: se produce la traducción de las necesidades y expectativas del cliente en especificaciones y objetivos de calidad del producto. 2) Diseño y Desarrollo del Producto: se produce una revisión crítica de los requisitos de diseño y de la información técnica del producto. Tiene lugar el desarrollo y verificación del diseño, evaluando los problemas potenciales de éste en relación a la posterior fabricación y su factibilidad. 3) Diseño y Desarrollo del Proceso: se asegura que el proceso será efectivo de cara a cumplir con las necesidades y expectativas del cliente. 4) Validación del Producto y del Proceso: el proceso de fabricación es validado mediante la evaluación de una tirada de producción piloto de prueba. 5) Retroalimentación, Evaluación y Acciones Correctivas: etapa final, en la cual se recoge todo lo analizado y aprendido en las etapas anteriores, y se hace uso de ese conocimiento adquirido para corregir las partes que han dado un resultado negativo y han hecho que el rendimiento del producto no sea el óptimo y el requerido, así como para añadir los detalles y partes que faltan para conseguir un mejor resultado final. Es la etapa más importante y en la que reside el sentido del APQP. El problema es que la implementación y aplicación del APQP es una tarea ardua y muy complejo, que conlleva numerosos retos que deben ser superados y donde las herramientas tradicionales no sirven, ya que su uso para la gestión del APQP provocaría retrasos y bloqueos en el proceso de producción y en el suministro. Sin el uso de una herramienta tradicional que dé soporte al APQP, las empresas proveedoras son incapaces de hacer un buen seguimiento del proceso para así reutilizar y aprovechar datos del producto en el paso de un programa al siguiente. La consecuencia es que los beneficios del APQP se ven reducidos o incluso eliminados. Es en este contexto precisamente donde nace la aplicabilidad, utilidad y practicidad del sistema PLM. PLM ('Product Lifecycle Management') es un enfoque estratégico de negocio para la gestión eficaz y el uso del capital intelectual corporativo (CIC). El CIC es la suma de todo el conocimiento que una organización acumula a lo largo de sus actividades para alcanzar sus objetivos. Esto incluye: la definición del producto, el historial del producto y la experiencia adquirida por la organización respecto al producto. el PLM es una solución informática a nivel empresarial que busca implementar una estrategia de gestión de toda la información que se genera a lo largo de la vida de un producto, también denominada CIC. No obstante, es importante destacar que, en esencia, PLM no es un sistema informático o una tecnología, sino más bien la estrategia que hay detrás, que se apoya en esa tecnología para poder ser aplicada. De manera muy sintetizada, se puede decir que existen dos funciones que son implícitas al PLM: 1) Gestión eficaz del CIC: Garantizar la precisión, integridad y seguridad de toda la información. 2) Uso eficaz del CIC: Hacer que la información esté disponible de forma inmediata en el lugar y formato adecuados, para los usuarios adecuados (ya sean personas o programas), y para las tareas adecuadas. Un sistema PLM se basa en un flujo de información global y común a todos los actores que intervienen en el proceso, de forma que todos puedan interactuar entre ellos en tiempo real y de manera segura y práctica. El pilar de la estructura que hace esto posible es una base de datos en la que cada persona que interviene en el desarrollo del producto puede volcar la información que considere que debe quedar registrada para que otros puedan hacer uso de ella. Esta idea es una de las bases de todo sistema PLM: la reutilización del conocimiento. En esencia, lo que se está consiguiendo a través del uso de un sistema PLM es optimizar el proceso. Esta es la meta que se persigue en todo momento y el objetivo final que subyace en cada acción de PLM: que con menos esfuerzo y menos tiempo invertido se alcancen mejores resultados. En este documento se ha estudiado la aplicabilidad y utilidad de emplear un sistema PLM para la gestión del proceso APQP. Estos son los beneficios principales que se han observado: Se proporciona un excelente cimiento para cualquier empresa automovilística a través de flujos de trabajo integrados, una base de datos común, accesible y de gran capacidad, la gestión eficaz de proyectos, la creación de informes y de la capacidad de integración con otras herramientas. Es una solución "todo en uno", que sustituye la necesidad de la coexistencia de varias herramientas. Se llega a mejores tomas de decisión, al tener visibilidad de las tareas en proceso y de los ítems asociados, por ejemplo, el conocimiento de los múltiples proyectos donde es empleada una misma pieza. Se puede gestionar el desarrollo de productos complejos para vehículos y de todos los requisitos de documentación asociados a ellos. Reducir los costes de los cambios de diseño, gracias a detectar antes los cambios necesarios e implementarlos con un efecto más positivo y generando menos coste. También poder comunicar esos cambios a los distintos departamentos y equipos, mejorando así la calidad del producto y, consecuentemente, la satisfacción del cliente. Aumentar o posibilitar la reutilización del conocimiento a través del acceso rápido y sencillo a proyectos previos APQP. Se consigue la introducción de nuevos productos en el mercado en el tiempo programado y respetando el presupuesto disponible. Por tanto, se puede concluir que una solución PLM que dé apoyo al proceso APQP y a todos sus requisitos, es una poderosa herramienta de negocio que conlleva numerosos e importantes beneficios, los cuales ya han sido probados en el sector de la automoción. Sin embargo, se debe puntualizar que el PLM no debería de ser el fin en sí. El uso de un sistema PLM suele actuar de catalizador para un cambio en el negocio de manera conceptual y profunda. Para poder aprovechar todo el potencial del PLM y su máximo beneficio, deben revisarse todos los procesos y estructuras de la organización, y aplicar cambios que impulsen la tecnología PLM allí donde se necesiten. Esto hará que se optimicen a nivel global los procesos internos del negocio, así como la forma en la que las empresas automovilísticas se relacionan con sus socios, proveedores y clientes. En el mundo actual y el sector de la automoción, donde el entorno empresarial es cada vez más global, exigente y hostil, la tecnología PLM es el vehículo necesario para crear y mantener un negocio innovador que pueda competir eficazmente en todos sus mercados. ; The automotive industry involves a very demanding market, where the clients possess very high expectations regarding quality and where the supplying companies of vehicles are under big pressures and have to follow strict regulations. During the 1980s, the companies known as "The Big Three", Ford, Chrysler and General Motors (at that moment they shared between them most part of the automotive market share), joined their strengths in the search for a common target, and they nominated an expert committee to face the threat that the increasing expansion of the Japanese industry represented. Moreover, there three companies created the AIAG ('Automotive Industry Action Group'), a nonprofit association made up of a diverse group of professionals and stakeholders of this sector, which includes, for example, suppliers of materials and parts of all sizes, manufacturers, service providers, and sometimes, even the government itself, as well as the automotive companies. This association supports the existence of a collaborative environment within all members, searching for synergies and mutual support so that every party can benefit from this alliance. In the actual context, the supplying companies of the automotive sector must comply with the standards defined by the AIAG with respect to APQP. APQP is, as its names states for itself, a way of anticipating a plan for the product's quality. It consists of a process which follows a highly structured methodology, focused on the compliance of the client's requirements over the final product, involving the suppliers and the final client in this process. The structure of the process is based on five big phases, which include inputs and outputs in each one of them. The outputs are generated by a combination of the inputs, and occasionally directly from other outputs. The key resides on the fact that it is never-ending cycle of continuous improvement, where the target is always to maintain the product's quality over certain minimum level, which always corresponds to the requirements specified by the client. As it is a cycle, the outputs of a phase are the inputs of the next one, and once you fulfill the last phase, you start over again from the beginning (that is why it is said to be a continuous improvement). This way, standard and repeatable procedure is successfully established, through which certain level of rigor is assured in terms of the product's quality, which is applicable to any kind of production process of any kind of product (vehicles in this case), where the only thing that changes from one to another is the group of inputs for that case in particular (the factors remain constant). APQP is based on the Deming cycle, also known as the PDCA circle (Plan, Do, Check, Act). In the case of APQP, this cycle is divided into five phases, since the second phase ("do") is split into two. These are the APQP phases: 1) Program planning and definition: translation of the client's expectations and needs into the product's specifications and objectives. 2) Product design and development: there is a critical revision of the designing requirements and the technical information of the product. The design's verification takes place, evaluating its potential issues towards the future manufacturing and its viability. 3) Process design and development: it is assured that the process will be effective regarding the compliance of the client's needs. 4) Product and process validation: the manufacturing process is validated through the evaluation of a test production run. 5) Feedback, evaluation and corrective action: final phase in which everything that has been analyzed and learnt from the previous phases, and that acquired knowledge is used in order to correct the parts which have performed negatively and which have avoided the performance form being the optimal and expected, as well as to add the details which are missing, so as to achieve a better result. This is the most important phase and on which the purpose of APQP lies. The problem is that APQP's implementation and application are very arduous and complex tasks, which involves multiple challenges which must be overcome and where traditional tools are not enough, since their use for APQP would cause serious delays and even blockades in the production and supplying process. Without the use of a tool which supports APQP, the supplying companies are incapable of satisfactorily monitoring the process, in order to reuse the product's information from one program to the next. The consequence is that the benefits of APQP are seriously reduced or even eliminated. It is in this context precisely in which the PLM system becomes applicable, practical and very useful. PLM ('Product Lifecycle Management') is a strategic approach of the business for the effective management and use of the corporative intellectual capital (CIC). The CIC is the sum of all the knowledge that an organization accumulates throughout its activities in order to reach its targets. This includes: the product's definition, the product's history and best practices. PLM is a technological solution at a business level that tries to implement a management strategy for all the information which is generated throughout the whole product's lifecycle, also called CIC. However, it is important to point out that, essentially, PLM is not a computing system or a technological tool, but the strategy which lies beyond, which finds in that technology the path in order to be applied. In a very summarized way, it can be said that two main functions are implicit to PLM:1) Effective management of CIC: guaranteeing the precision, integrity and safeness of all the information. 2) Effective use of CIC: making the information be readily available, at the right place and format, for the right users, and for the right tasks. A PLM system is based on a global information flow, common to all actors who take part in the process, so that all of them can interact among themselves in real time and in a practical and safe manner. The structure's pillar which makes this possible is a data base into which each person who intervenes in the product's development can enter the information which they consider should be registered so that other can make use of it. This idea is one of the basis of every PLM system: the recycling of knowledge. Essentially, what is being achieved through the use of a PLM system is the optimization the process. This is the goal that is pursued at all time and the final target which lies under every action of PLM: achieving better results with less effort and less time waste. In this document, the applicability and usefulness of implementing a PLM system for the management of the APQP process have been studied. These are the main benefits which have been observed: An excellent basis is provided towards any automotive company throughout the use of integrated workflows, a common data base, accessible and of great capacity, the effective management of projects, reports creation and the capacity of integration with other tools. It is an "all in one" solution, which substitutes the need for the coexistence of several tools. There is better decision making, having better visibility of the tasks in process and the associated items, for instance, the knowledge of the multiple projects in which a same component is being used. It is possible to manage the development of complex products for vehicles and all of its associated documentation requirements. Minimizing the costs caused by changes in the design, by detecting earlier the necessary changes and implementing them with a more positive effect. Also being able to communicate those changes to the different departments and teams, improving thus the product's quality and, consequently, the client's satisfaction. Increasing or making it possible to reuse the knowledge through quick and simple access to previous APQP projects. The introduction of new products into the market respecting the planned schedule and the available budget. Henceforth, it can be concluded that a PLM solution which supports the APQP process and all its requirements, is a powerful business tool which involves multiple and significant benefits, which have already been proved in the automotive industry. However, it must be remarked that PLM should not be the end itself. The use of a PLM system usually acts as a catalyzer for a change in the business in a conceptual and transcendent way. To be able to make the best use of PLM's potential and its maximum benefit, all of the processes and the organization's structures must be revised, so that the necessary changes to boost PLM technology can be applied. This will optimize the internal business processes, as well as the way in which the automotive companies interact with their partners, their suppliers and their clients. Nowadays, in the automotive industry, where the business environment is each time becoming more globalized, demanding and hostile, PLM technology is the necessary tool in order to create and maintain an innovative business which will be able to compete effectively in all its markets.
In the 15-years I have served in the United States Army, the focal point of my tactical and academic study has been almost entirely centered on the Middle East and its unique cultural complexities. As an Infantryman, I was embroiled in the early efforts to prevent a Sunni-Shia civil war in post-invasion Iraq, while also hunting down al-Qaeda operatives under the leadership of Abu Musab al-Zarqawi. A year later, during General Patraeus's troop surge, I was in the urban sprawl of Northwest Baghdad fighting not only a Sunni insurgency, but also the Iranian-backed Jaysh al-Mahdi, comprised of local Shia militia groups. In 2010, I led a battalion reconnaissance team in the Arghandab River Valley of Afghanistan against the Taliban near the very birthplace of their Salafi-jihadist movement. In subsequent years, following my graduation from the Special Forces Qualification Course, I served in the 5th Special Forces Group (SFG) on a variety of missions in support of Operation Inherent Resolve in Turkey and Syria. As a fluent Arabic speaker, I was heavily involved in early efforts to train and equip the Free Syrian Army for its fight against the Islamic State. Following this deployment, I served as a liaison officer to the United States Embassy and Turkish General Staff in Ankara, having daily interaction with foreign dignitaries, defense attachés, and military officials in strategic level planning and coordination efforts. I culminated my time with 5th SFG as the assistant operations sergeant of a detachment fighting the Islamic State in Syria. My understanding of the culture of jihad, the various jihadist groups operating throughout the Central Command (CENTCOM) area of responsibility, and the intricacy of Middle Eastern problem sets as a whole, has come from years of dedicated cultural analysis, in-depth study of Sunni and Shia Islam, and field experience from the strategic to the tactical level. It is because of this experience that I am compelled to discuss the culture of jihad in the 21st Century. ; Winner of the 2020 Friends of the Kreitzberg Library Award for Outstanding Research in the College of Graduate and Continuing Studies Degree Completion category. ; 1 The Culture of Jihad in the 21st Century Michael J. Bearden Norwich University SOCI401: Cultural and Anthropology Studies Dr. Timothy Maynard April 30, 2020 2 The Culture of Jihad in the 21st Century In the 15-years I have served in the United States Army, the focal point of my tactical and academic study has been almost entirely centered on the Middle East and its unique cultural complexities. As an Infantryman, I was embroiled in the early efforts to prevent a Sunni-Shia civil war in post-invasion Iraq, while also hunting down al-Qaeda operatives under the leadership of Abu Musab al-Zarqawi. A year later, during General Patraeus's troop surge, I was in the urban sprawl of Northwest Baghdad fighting not only a Sunni insurgency, but also the Iranian-backed Jaysh al-Mahdi, comprised of local Shia militia groups. In 2010, I led a battalion reconnaissance team in the Arghandab River Valley of Afghanistan against the Taliban near the very birthplace of their Salafi-jihadist movement. In subsequent years, following my graduation from the Special Forces Qualification Course, I served in the 5th Special Forces Group (SFG) on a variety of missions in support of Operation Inherent Resolve in Turkey and Syria. As a fluent Arabic speaker, I was heavily involved in early efforts to train and equip the Free Syrian Army for its fight against the Islamic State. Following this deployment, I served as a liaison officer to the United States Embassy and Turkish General Staff in Ankara, having daily interaction with foreign dignitaries, defense attachés, and military officials in strategic level planning and coordination efforts. I culminated my time with 5th SFG as the assistant operations sergeant of a detachment fighting the Islamic State in Syria. My understanding of the culture of jihad, the various jihadist groups operating throughout the Central Command (CENTCOM) area of responsibility, and the intricacy of Middle Eastern problem sets as a whole, has come from years of dedicated cultural analysis, in-depth study of Sunni and Shia Islam, and field experience from the strategic to the tactical level. It is because of this experience that I am compelled to discuss the culture of jihad in the 21st Century. 3 Since its beginning in circa 610 CE, when the prophet Muhammad ibn Abdullah was visited by the angel Gabriel in a cave near Mecca, Islam has shaken the foundations of the Middle East and remained in a state of near-perpetual conflict with the Western world. Islam is an Arabic term most closely relating to the English words submission or surrender. Mujahedeen, or holy warriors, spread this new religion by the sword throughout Asia, forcing the "submission" of thousands, and have hardly been at peace with their neighbors since. Centuries later, in the two decades following the attacks on the World Trade Center and Pentagon in the United States, radical Islam's stance against the West has altered the diplomatic landscape between the world's great powers, fundamentally changed the United States' national strategic direction, and caused youth from all walks of life to sacrifice the best years of their lives in holy war to protect the supra-national community of Islam. From the invasion of Afghanistan to the subsequent invasions of Iraq and Syria to the ongoing peace talks with the Taliban, diplomatic and military efforts to eradicate jihadists from the Middle East have to-date been nearly ineffectual. Not only have these efforts failed to contain or defeat jihad, but at times have served to strengthen Islamic extremists' resolve in their call to arms against the West. Because jihad is such a fundamental part of the Islamic faith, it can never be "defeated" in the sense of traditional military eradication of an enemy force, but it can be confronted, contained, or refocused, as this paper will address. I argue that enabling local solutions and promoting education, alongside tailored surgical strike and security cooperation operations where necessary, are the keys to confronting, containing, and countering jihad. 4 Background Defining Jihad and Salafism Jihad is a transliterated form of the Arabic word meaning to struggle or to strive. In the traditional teachings of the Islamic faith, jihad is broken into two distinct categories: Greater jihad and lesser jihad. Greater jihad includes the personal struggle against selfish desires, emphasizing discipline and morality, as well as the struggle against Satan and the forces of evil. It includes jihad of the heart, jihad of the mind, and jihad of the tongue, involving praise for those who follow the will of Allah and correction for those who have gone astray (Gorka, 2016). The second category, lesser jihad, is viewed as the struggle against the enemies of Islam and the defense of its people. Lesser jihad is commonly referred to as Jihad of the Sword. Gorka (p. 60) reveals that, over time, this category of jihad has been used as justification for at least seven different subsets of holy war: 1. Using holy war to build an empire 2. Going after apostate regimes or individuals 3. Revolting against non-pious Muslim leaders 4. Fighting against the forces of imperialism in Muslim lands 5. Countering the West's pagan influence 6. Guerrilla warfare against a foreign invader 7. Using jihad as justification for terrorist attacks against civilian targets In a broad sense, lesser jihad can be viewed as offensive or defensive martial action. On the offensive side, jihadists use religion to justify building an empire, such as the Islamic State, attack apostate regimes, like those of the Taliban against Afghan government forces, and use terrorism against civilians, like the attacks on the World Trade Center. This offensive action 5 often takes jihadists beyond the borders of the ummah, or the people of Islam, striking fear into hearts of unbelievers around the globe. The defensive variety, especially in recent history, has most often correlated directly with the use of guerrilla warfare against foreign invaders, such as al-Qaeda's attacks on the international military coalitions that invaded Afghanistan and Iraq. This radical view of Islam is mostly practiced by those who follow the way of the Salafi, or the pious predecessors from the time of Muhammad, who experienced Islam in its purest form. It is believed that the first three generations who practiced the teachings of the prophet Muhammad are the ones who all Muslims thereafter should try to emulate. Themes of Salafism focus on complete adherence to sharia law, the fight against apostate Muslim regimes, and the spread and protection of Islam and its followers. At its core, Salafism is a very traditionalist view of Islam and has been practiced by multiple 21st Century terrorist organizations. The terms jihad and Salafi have shared such a close relationship in the last few decades that they have become nearly synonymous, at times described as Salafi-Jihadism or Jihadi-Salafism (Gorka, 2016; Nilsson, 2019) What Cultural Influences Lead One to the Path of Jihad? Before the attacks on 9/11, the largest call to jihad answered by the international Muslim community was in response to the Soviet invasion of Afghanistan in 1979. Stopping the spread of communism and defending the ummah against the atrocities of Russian ground forces was seen as a noble and just cause for young Muslim men, and not just among Muslims (Gorka, 2016; Nilsson, 2019). Many nations, including the United States, funded, equipped, and trained the Afghan mujahedeen (those who conduct jihad) for the fight against the Soviet empire. Jihad in the 21st Century has been viewed in a much different light, as it is most closely associated with acts of extreme violence against Western nations. While the piles of rubble that used to be the 6 World Trade Center smoldered, and a gaping hole scarred the wall of the Pentagon, people of the world were forced to ask themselves, "How could a person do this? Why would someone take their own lives and thousands of others in the name of Allah?" Religious Justification for Jihad. Though jihad has become almost entirely associated with Islamic holy war, the term itself is still simply the Arabic word for striving. Struggling against one's selfish desires, striving to maintain traditional values, and defending a community against a common enemy are not just Islamic concepts, they are universal to most tightly-knit cultures. Similarly, Christians and Jews are taught self-discipline, adherence to moral codes, and defending their belief against enemies of their faith. So, why has the Islamic flavor of this common cultural theme become so violent, causing deep unrest around the world in our modern era? Verses from the Qur'an can begin to unpack why horrific public executions, suicide bombings, and advocating for generalized violence against non-Muslims may be justifiable in jihadist culture. The Qur'an (2015) lays out the following decree in chapter 9, verse 29: Fight those from among the People of the Book who believe not in Allah, nor in the Last Day, nor hold as unlawful what Allah and His Messenger have declared to be unlawful, nor follow the true religion, until they pay the tax with their own hand and acknowledge their subjection (p. 208). My personal study of Islam and conversations with Muslims in the field revealed that this bit of prose has been used as motivation and justification for jihad by groups like al-Qaeda, the Taliban, the Islamic State, and Hay'at Tahrir al-Sham of our modern age. Some of the following themes are evident in the translation: 7 • Jews and Christians are recognized as People of the Book, but are required to accept the following—Allah as the one true god, sharia as the acceptable law, and Islam as the one true religion. • If Jews and Christians refuse to accept these statutes, they must pay a tax called the jizyah to show their subjugation. • If they refuse to do either of these, they are to be put to the sword (p. 208). Salafi-jihadist groups such as the Taliban and Islamic State have tried to revive the jizyah tax in areas under their control. Likewise, hundreds of Christians, Jews, and even Muslims who refuse to adhere to strict sharia law have been publicly executed. This vehement enforcement of arcane Islamic law is seen as a return to the purest form of Islam, as pious as the first few generations who followed the Prophet Muhammad. Another common religious cultural theme that ties these jihadist organizations together is a message of religious oppression. They preach to young Muslims that the Islamic world is under siege by the West and that their god, their value systems, and their way of life are being threatened by the evils of capitalism and democracy (Venhaus, 2010). In joining organizations like al-Qaeda or the Islamic State, young men from across the globe find a sense of purpose and direction in their cause to protect the ummah. This theme is manifested in the teachings of Anwar al-Awlaki, the spiritual leader of al-Qaeda and the father of home-grown terrorism in the United States. He calls on Muslims living among those in the West: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? How can you have your loyalty to a government that is leading the war against Islam and Muslims? Hence, my advice to you is this, you have two choices: either hijra [migration 8 to an Islamic land] or jihad. You either leave or you fight. You leave and live among Muslims or you stay behind and fight with your hand, your wealth, and your word. I specifically invite the youth to either fight in the West or join their brothers on the fronts of jihad: Afghanistan, Iraq, and Somalia (as cited in Gorka, 2016). This way of thinking is also captured in chapter 9, verse 5 of the Qur'an (2015): Kill the idolaters wherever you find them and take them prisoners, and beleaguer them, and lie in wait for them at every place of ambush. But if they repent and observe Prayer and pay the Zakat, then leave their way free (p. 204). When taken literally, as they are by followers of Salafi-jihad, scriptures such as these leave no choice. To these men who have committed themselves fully to the ways of the pious ones, they are compelled to become shahid, or martyrs in the protection of the ummah. The Qur'an promises paradise for those who do: Surely, Allah has purchased of the believers their persons and their property in return for the Garden they shall have; they fight in the cause of Allah, and they slay and are slain—a promise the He has made incumbent on Himself in the Torah, and the Gospel, and the Qur'an. And who is more faithful to his promise than Allah? Rejoice, then, in your bargain which you have made with Him; and that it is which is the supreme triumph (p. 222). The concept of becoming a martyr in the struggle for Islam is romanticized by jihadist groups, like al-Qaeda and the Islamic State, and even state governments in local programming. In Lebanon, Mothers of Martyrs are interviewed to share the stories of their sons' glorious end while fighting abroad against the infidels (Venhaus, 2010). The Qur'an itself calls this sacrifice the supreme triumph for a jihadist, striving for the glory of Allah. 9 Though enforcing the jizyah, publicly executing those who do not follow sharia law, and seeking opportunities to kill infidels through suicide attacks represent a very small, extremist cultural sect of Islam, each of these practices is still justifiable if one looks to the Qur'an. This could be viewed as no different than a rural Pentecostal church in the Deep South who maintains strict standards for how women must dress and act: it all comes down to interpretation and a community's willingness to subjugate themselves to these standards. Spiritual leaders of jihadist groups in the 21st Century have used the Qur'an as continued justification for a variety of cruel, inhumane, and brutal actions that served to shock the West. The holy book of Islam acts as the essential glue, binding together all facets of Arab and Islamic culture. Artistic Inspiration for Jihad. A far cry from the harsh proclamations of the Qur'an, Arabic poetry predates Islam by centuries and serves as a bedrock of Arabic culture across the Middle East. Early desert nomads composed poems mostly in mono-rhyme and in one of sixteen standard canonical measures, which made them easy to commit to memory (Creswell & Haykel, 2015). Naturally, this beautiful form of cultural expression has found a home in the modern jihadist movement, where it has become an inspiration for new recruits to join the cause and crucial in the sustainment of those already fighting infidels abroad. Creswell and Haykel assert that although analysts have generally ignored this facet of jihadist culture, it is woven deeply into the fabric of modern Islamic extremism. Osama bin Laden, most recognized as the former head of al-Qaeda, was also a highly-celebrated jihadist poet. Without question, his lyrical genius inspired young Arabs with stories of a return to the heroic and chivalrous past of Islam. One of his most famous works celebrates the martyrdom of the 9/11 hijackers. This is a theme among modern jihadist poetry, which preserves the tales of suicide bombers, the conquered apostate regimes of Iraq and Syria, and the glories of jihadist heroes (Creswell & Haykel). Likewise, in a 10 group of individuals who have each traveled far from home to defend Islam against the kuffar, these poems help to establish a sense of cultural identity, strengthening their wartime bond and solidifying their resolve. In seeing the videos of the Islamic State as they carved a path of destruction across large swathes of Iraq in early 2014, it may be difficult for one to believe that its members were motivated by the rhythmic lines of jihadist poetry. It is hard to accept that the same young fighter who is willing to behead an infidel for all the free world to see, could also be found passionately reciting lines celebrating the glorious return of an Islamic caliphate. During its rise, the Islamic State capitalized on the lyrical talent of a Damascus-born woman named Ahlam al-Nasr. In her first broadcast, called the Blaze of Truth, she sang each one of her 107 works a cappella, in accordance with the Islamic State's ban on musical instruments. The video was uploaded to Youtube, receiving thousands of views and further shares on multiple social media platforms (Creswell & Haykel, 2015). In the early days of the group's brutal campaign in Iraq, al-Nasr celebrated victory in Mosul as a new dawn for the country: "Ask Mosul, city of Islam, about the lions— how their fierce struggle brought liberation. The land of glory has shed its humiliation and defeat and put on the raiment of splendor" (as cited in Creswell & Haykel, 2015). Her choice of words helps one sense her deep passion for jihad, hidden within the lines. Mujahedeen are called lions and liberators. Mosul is called both a city of Islam and a land of 11 glory that, because of its liberation, has been released from the chains of shame and can now live in the splendor and pride of its former renown. Poetry has succored those serving in times of war for hundreds, even thousands of years. In the same manner, this key element of artistic cultural expression has helped bind together the modern jihadi movement, capturing the heroic deeds of martyrs who would otherwise remain nameless and unrecognized by the outside world. Serving in lands far away from home, young jihadists find inspiration, strength, and a renewed sense of identity in these haunting bits of rhyme. Social Pressure to Join Jihad. Abdullah Anas was an Algerian who served as one of the mujahedeen in Afghanistan in the 1980s and spent several years studying under Abdullah Azzam, the Palestinian "Father of Resistance to the Soviets" (Gall, 2020). Working to help Algerians achieve nonviolent change in their government, Anas, now in his 60s, has spent a life living and working among jihadists. To Anas, jihad is a fundamental principle of Muslim culture through which mujahedeen receive rewards in heaven: "I will never denounce jihad. As a Muslim, I know this to be a noble deed—where man can be the most beastly" (Gall). In a study of three Swedish jihadists, with experiences ranging from 1980s Afghanistan to the modern fight in Syria, Nilsson (2019) suggests that one of the fundamental social justifications for joining jihad is the sense that Islam and Muslims are collectively under attack. This, again, is a theme that applies to more than just the modern jihadist movement: Americans lined up in droves outside recruiting stations following the attacks on Pearl Harbor and decades later after September 11, 2001. Following the invasion of Afghanistan and Iraq, many Muslims from around the world began to see this not as just the West going after the 9/11 conspirators, but as a global attack on Islam. Each day, fresh news stories of coalition soldiers' crimes against 12 Muslim civilians and pictures of burning villages continued to motivate men to join the fight to protect the ummah from the foreign invaders. Nilsson contends that since most jihadists are very young, in their teens and early twenties, they are very susceptible to the influences of close friends and social groups. Safet, a young Muslim living in Sweden, was pressured by a friend to join the Islamic State in Syria, saying that he became convinced by his friend Ahmed that the group was fighting to protect Muslims (Nilsson). However, after realizing that the Islamic State was actually killing other Muslims in a practice called takfir, or excommunication, Safet became disillusioned and returned to Sweden (Nilsson). From the fight against the foreign invaders in the early 2000s in Afghanistan and Iraq, to the struggle for the establishment of an Islamic caliphate in 2015, it seems jihadists have most often been motivated by the need to protect the international Muslim community. Aside from the social responsibility of defending their faith and people, the need for adventure also seems to permeate the ideations of young men seeking to join a jihadist group. One of Nilsson's (2019) most interesting theories is that jihad is not the radicalization of Islam, but rather the Islamization of radicalism. Individuals who are already naturally predisposed to such adventurous or nihilistic behavior get caught up in the social dynamics of their time, ending up in a jihadist movement. Venhaus (2010) explains that in interviews with over 2,000 al-Qaeda prisoners from Iraq to Guantanamo Bay, he found that young Muslim men sought the cause of jihad for a number of normal social pressures felt by normal teens worldwide: "Revenge seekers need an outlet for their frustration, status seekers need recognition, identity seekers need a group to join, and thrill seekers need adventure" (Venhaus). The Effects of Social Media and Technology on Jihad. In the modern era, news is no longer bound by the time it takes for an article to be published, printed, and distributed across 13 great distance in a community. Social media platforms like Facebook, Youtube, Twitter, and Instagram have made sharing news instantaneous. Additionally, the advent of the smartphone, which acts simultaneously as a hand-held computer, high definition camera, and telephone with nearly world-wide coverage has forever changed the media landscape. In the era of modern jihad, one can post a single video that moves the minds of thousands in a matter of seconds. Following the 2003 invasion of Iraq to topple Saddam Hussein's regime, news stories of atrocity among the efforts of coalition troops over the next decade served to further the cause of local and foreign jihadists to protect the ummah from these invaders. Accidental bombing of civilians, mistreatment of the prisoners at Abu Ghraib, and a general ignorance toward Muslim culture were fueled by social media and smartphone technology. Venhaus (2010) claims that throughout this early phase of the war in Iraq, al-Qaeda very rarely had to actively recruit, their global brand was aggressively promoted through satellite television, internet chat rooms, and social media platforms; willing candidates sought them out. This use of media continued to be perfected by jihadist organizations like the Islamic State, who published a digital magazine called Dabiq, named for the ideological capital of the proposed caliphate, which rallied Muslims to jihad through stories of glory and heroism in the cause for Islam. The Islamic State also posted grisly execution videos, with stunning music and production value, including super high-definition shots of their brutality. Publications and videos such as these could be copied, saved, shared, and re-shared before any sort of government intervention could stop them. Creswell and Haykel (2015) reveal that jihadists were running a massive, secret network of social media websites and fake accounts that could be rapidly assembled and dissembled by hackers. The effects of social media and technology on modern jihadist culture are easy to understand, but challenging to measure in scope and reach. Just as easily as videos of Islamic 14 State propaganda or poetry can be shared, so too can stories of coalition force atrocities in Afghanistan and Iraq. This has put strategists in a unique position, where it is nearly impossible to control the narrative. Unfortunately, the story that breaks first is still the one that is liked and shared the most, even if the truth comes out after. Effects of Western Culture on Jihad. Rapid globalization, including the widespread diffusion of the internet and technology into the Middle East in the last two decades has continued to foment jihadist hatred for the West. Personal conversations with multiple Muslims in Iraq and Afghanistan revealed that the decadence, lavish richness, and sinful lifestyles portrayed by Western movies and media served to fuel the fires of disdain among the pious Salafi-jihadists. Additionally, Muslim men living in Western nations following the attacks on the World Trade Center were ostracized and feared by society, often leading them to an eventual radicalization process. Being denied a peaceful coexistence because of continued Western misperception, caused many young Muslims to become angry and seek community and brotherhood among other Muslims experiencing the same problems. Venhaus (2010) notes that out of the over 2,000 captured jihadists interviewed, more than 30 per cent of them sought al-Qaeda because they were angry. Under the tutelage of local al-Qaeda mentors, the frustrations of these young men were then turned upon their neighbors through careful instruction and manipulation. They were taught to see the West as the enemy of Islam, with hundreds of the ummah being harmed by their military coalitions in Afghanistan and Iraq each day. They were instructed in the ways of the pious ones who came before them, inspiring them to turn from the sinfulness of their Western neighbors and take pride in their newfound self-discipline and righteousness in the eyes of Allah. Eventually, many of these young men would travel to their 15 ancestral homelands to join the struggle, or conduct terrorist attacks on their own Western communities. Analysis A Unique Challenge Given the litany of reasons one might join jihad, the incredibly complex cultural and social environment, and the fluidity of the modern jihadist movement, how can the United States begin to contain this problem? The reasons one individual might join a jihadist cause are as various and sundry as why one might choose to join any movement or profession over another. As Nilsson (2019) and Venhaus (2010) have detailed, there appears to be no singular marker: one could be an extremely religious or a passive Muslim, rich or poor, single or married with a family, have a completely stable social life or be isolated with no friends. Jihadists can be from any country, any walk of life, and usually do not widely broadcast their intentions prior to taking part in acts of violence for the cause of Islam. It is because of the near-impossibility of clearly identifying a pattern of distinguishable cultural markers that make it such a challenge for the United States government and its allies to address the threat of jihad. Targeting an individual before they become a jihadist or before they commit a terrorist act has been one of the most formidable challenges of our time for military and law enforcement professionals alike. Usually, the much simpler job is finding a jihadist who has allowed their communications discipline to slip before an act, or catching them in a pitched battle on foreign soil. In order to protect citizens of the West and East alike against jihadists' aims, the United States Government must be prepared to confront, contain, and counter the jihadist narrative "left of bang," before an attack occurs. 16 The Global War on Terrorism: Taking the Fight to the Jihadists. In the months that followed September 11, 2001, President George W. Bush deployed Central Intelligence Agency (CIA) paramilitary officers and US Special Operations Forces (SOF) to find, fix, and finish pockets of al-Qaeda militants being harbored by the Taliban in Afghanistan. A fierce campaign of relentless aerial bombardment and mounted assaults by the forces of the Afghan Northern Alliance led to a swift and decisive defeat of al-Qaeda and the Taliban. With Kabul and Kandahar in allied hands, and an interim government established under the leadership of the Pashtun Hamid Karzai, the future of a free and prosperous Afghanistan seemed assured, but what came to be known as The Long War had only just begun. Trillions of dollars, thousands of lives, and 19 years later, the United States and its allies have been forced to the negotiating table with the Salafi-jihadist Taliban. Likewise, after Saddam Hussein's continued disregard for international law, threats against the United States, and open violence against his own people, the administration of President Bush decided again to pursue a military option. Much like Afghanistan, the coalition was led by CIA operatives and SOF operators, coordinating airstrikes on key positions in a tactical display of American firepower affectionately titled Shock and Awe. However, unlike Afghanistan, a massive conventional invasion followed the bombing campaign, bent on toppling the Baathist regime and finding Saddam's chemical weapons stockpiles. What followed was a series of policy failures, leading to a steady influx of jihadists partnering with local insurgents seeking to oust the foreign invaders and protect the ummah from the atrocities of the kuffar. In my professional opinion, Iraq is still recovering from the decade-long military occupation, cleaning up the destruction left by the Islamic State, and on the brink of civil war due to concerns about being an Iranian puppet state. 17 Ineffective Military Methods to Combat Jihad Operation Iraqi Freedom. During my first combat rotation as an Infantryman in the Triangle of Death in southern Iraq in 2005-2006, I experienced the initial rumblings of a civil war between the Sunni and Shia Muslims in Iraq, each wrestling for power in a post-Saddam world. I was also witness to the inundation of foreign jihadists, joining the ranks of al-Qaeda in Iraq under the leadership of Abu Musab al-Zarqawi, who at times headquartered in my area of operations. As I analyze our highly-kinetic and aggressive initial campaigns years later, I can see that the coalition's fight, first against Saddam, then against al-Qaeda, only bolstered jihadist motivation. In being a foreign invader, we inadvertently created a jihadist resistance movement, bent on the removal of their occupiers. Kilcullen (2010) explains this dilemma by explaining that focusing on the wrong metrics in a fight against insurgents can be deceptive: If you kill 20 insurgents, they may have 40 relatives who are now in a blood feud with your unit and are compelled to take revenge. Again in 2007-2008, I was deployed to Iraq as an Infantry squad leader to the sacred city of Khadimiyah in Northwest Baghadad. This was during the famous troop surge, meant to fix the ongoing problems with stability throughout the country. Being in the home of the beautiful Shrine of the Seventh Imam, it was a predominantly Shia area. Over the course of 15 months, my unit fought several engagements against Iranian-backed Shia militias and worked on project after project to strengthen local civil infrastructure, all while maintaining the utmost discretion against damaging homes or creating civilian casualties. Yet again, although we had conducted a nearly perfect counterinsurgency fight, it seemed that Kilcullen's insurgent math still applied: Fighting the jihadists only served to create more unrest within the population, no matter if we were restoring essential services and reducing damage to homes or not. 18 Operation Enduring Freedom. Nearly a decade after the fall of al-Qaeda and its Taliban hosts, I was deployed to the mountains of Afghanistan from 2010-2011. Stationed along the Arghandab River, just north of Kandahar, we were in the heart of the Pashtun Taliban. Again, the same story remained true: We fought the Taliban jihadists almost daily, but could not seem to win over the true key terrain in a counterinsurgency fight: The hearts and minds of the people. The Taliban would harass our unit's base of operations with a few pop shots as we called them, which would unleash a massive response in firepower and resources. Thousands of rounds of machine gun ammunition would be fired into the farm fields surrounding our Combat Out Post (COP), squads would be sent in pursuit of the attackers, and helicopters would spend hours scouring the terrain in an attempt to heap justice on the insurgents. This massive effort against so few served to erode the unit's motivation, exhaust our supplies, and alienate the civilian population whose homes and fields had been damaged in the process. Reflections on Personal Combat Experience. After years of combat experience and deeply studying Muslim culture, I can now see how the mistakes the coalitions made early-on in both operations only fueled the fires of insurgency, resistance to foreign occupiers, and generalized hatred for the West. Porch (2013) argues brilliantly that US counterinsurgency doctrine made the same mistake as its imperialistic predecessors of centuries before: Believing that military action was a proper vehicle for providing Middle Easterners with Western values, as well as a foundation for governance, social programs, and economic transformation in a region. This became evident in my own experience, realizing that no matter what sort of social, infrastructure, or economic programs ran alongside our military efforts, the people of both Afghanistan and Iraq felt the enormous social weight of being occupied by a foreign power, rendering these efforts nearly ineffectual. On the contrary, local and foreign jihadist movements 19 capitalized on each and every mistake of coalition forces, increasing their recruitment and resolve against the West. Though our military may have been winning every major battle against the jihadists, our policy makers and field commanders made the fundamental mistake of believing that these non-Western nations lived in some sort of time-warp, in which the adoption of Western democracy, rule of law, and capitalism would allow them to thrive as a nation (Porch). Effective Military Methods to Combat Jihad Surgical Strike and Precision Targeting. A unique feature of the Global War on Terrorism was the US military's continued perfection of covert strike operations with surgical precision deep into enemy safe havens. This was put on display in the rout of al-Qaeda by CIA and SOF in Afghanistan, in the kill/capture missions against the Baathists in the deck of cards in Iraq, and later in the killing of Osama bin Laden in Pakistan and Sheik Abu Bakr al-Baghdadi in Iraq. Having the ability to appear out of nowhere in the middle of the night, kill or capture an intended target with zero damage to infrastructure or civilian casualties, and leave within minutes of arrival struck fear into the hearts and minds of jihadists across the globe. The success and efficacy of this type of operation was acknowledged in the 2015 National Military Strategy, which stated: "The best way to counter VEOs [violent extremist organizations] is by way of.military strengths such as ISR, precision strike [emphasis added], training, and logistical support" (p.11). Likewise, President Obama's massive expansion of the use of drones, which could watch individuals for days and execute a precise strike that only touched the intended target, has continued to sow fear and deny jihadists' freedom of maneuver on a global scale. The US military and its allies have only continued to master these types of operations throughout the 20 fights in Afghanistan, Iraq, Syria, and other locations. The jihadists know this, and realize that one wrong move at any time could mean disaster. Security Cooperation. An additional theme that has spelled the end for jihadists throughout the globe has been the training, advising, and equipping of security forces and partners within Afghanistan, Iraq, Syria, and other nations. Enabling the host-nation military to handle jihadist movements on their own helps the United States military work itself out of a job. US Army Special Forces are uniquely suited to accomplish this mission: With specialized training, language capability, and cultural understanding, they are able to train foreign security forces through a variety of Principle Tasks. These tasks include Foreign Internal Defense, which focuses on a holistic approach to internal security and protection of citizens against lawlessness and insurgency, and Security Force Assistance, which can be focused internally or externally against threats to a nation's stability and security. The success of these mission sets was evident in 2014, during my own experience with the Afghan Commando Kandaks' continued fight against the Taliban and in closely following the Iraqi Counterterrorism Service's efforts against the Islamic State. Both of these forces, built from the ground-up by US Army Special Forces have continually fortified weak conventional military force operations against jihadist groups in their respective nations. Muslim Youth Efforts Against Jihad Globalization, though it has been proven to bolster the jihadists' narrative against the West, has also been beneficial to the movement against jihad itself. Because youth of the world have access to technology that allows them to see the atrocities and lies associated with global jihadist organizations, they are beginning to turn the tide. During the Islamic State's rise to power in Iraq and Syria, Muslim youth from across Europe travelled to join the jihadists in their 21 fight against the West. However, groups of Muslim youth also spoke up to counter this narrative. In 2015 the Muslim Youth League, an anti-Islamic State cultural movement, declared a holy war against all extremist organizations (Dearden, 2015). The group called on all Muslims to stand united against those who have hijacked Islam and misrepresented the faith. Through engagement work in schools and communities, as well as a robust online campaign, the Muslim Youth League is fighting back against jihadist propaganda that bids young Muslims join the Islamic State and other extremist groups (Dearden). Since the time of this publication, the Muslim Youth League has spread to several countries throughout the Middle East, Asia, and Europe, each with their own social media presence, outreach programs, community events, and websites. Local Government Efforts Against Jihad In the years following the Islamic State's spread across Iraq and Syria, the United Kingdom has developed a robust strategy to help at-risk Muslims avoid the radicalization process. The program itself is called Contest, and includes four distinct categories: Prevent, Prepare, Protect, and Pursue (British Broadcasting Corporation [BBC], 2017). Police departments and social organizations have built relationships with doctors, faith leaders, teachers and others, who are required to report suspicious persons to the proper authorities. In response to these reporting requirements and recommendations, over 7,500 reports were filed between 2015-2016, with one in 10 being actionable intelligence for government and police forces (BBC). In 2015 alone, over 150 people, including 50 children, were kept from traveling to conflict zones in Iraq and Syria (BBC). The strategy has of course drawn criticism, for fear that it will further alienate Muslims from their local communities, but it presents as an excellent plan of action for identifying individuals who are at risk beyond just using traditional signals intelligence and 22 surveillance techniques. It does more than just target the individual, it also seeks to reform them through education, outreach, and community programs. Counterarguments You Can Kill an Idea. I have heard the opinion throughout my time in the military that jihad and the idea of Islamic supremacy can be completely eradicated. The example most often given is that Nazism, including the idea that the Aryan race was superior to all others, was effectively destroyed by a global military campaign. This argument is weak. The Nazis represented a very small portion of German culture, including among those serving in the military, so it was relatively easy to contain once there was an overwhelming military victory by the Allies. However, although the German Army of the 1940s was defeated militarily, the idea of white supremacy lives on in small social groups throughout the world to this day. The Ongoing Taliban Peace Talks. I have colleagues throughout the military who are convinced that the current negotiations with the Taliban are a key indicator of success in our two decades at war against the Salafi-jihadist group. The issue with this is that temporary cease fires have already been violated several times, leading one to believe that the strategic level leadership's messages are simply not reaching their subordinates or that local factions are not adhering to the agreement. Trusting that radical Muslim extremists will not allow Afghanistan to become a future safe haven for other jihadists, as it has in the past, is simply unrealistic. Believing some sort of quasi peace deal is going to miraculously pacify an organization that hates everything the West stands for is misguided. My own experiences throughout the Middle East have proven that the spirit of jihad and hatred will live on in Afghanistan. The Islamic State is Nearly Defeated. Multiple global media outlets continue to run stories about the dismantling of the Islamic State, as though the battle is won. Though Sheik Abu 23 Bakr al-Baghdadi has been killed, and the proposed Islamic caliphate was never fully realized, it would be naïve to think that the Islamic State's jihad is over. The movement will metastasize and take on new forms in other parts of the globe: It is already happening. Jihadists are continually leaving the battlefields of Iraq and Syria, headed back to their former homes in mainland Europe. As these individuals reenter the diaspora, the concern is that they will radicalize other individuals and conduct terrorist attacks within the continent. Conclusion The reasons an individual seeks to join a jihadist movement are deeply rooted in personal social dynamics, the security situation of their country, and a multitude of other religious, cultural, and economic factors. I agree with Venhaus (2010) and Gorka (2016) who assert that there is no singular military operation or strategy that can bring about a decisive victory against something so intangible as why one might join the modern jihadist movement. Use of the US military as a vehicle for the establishment of Western democracy and nation-building efforts in tribal nations like Afghanistan and Iraq only served to invigorate the jihadists' call to arms. Jihad is not something that can be eradicated completely by military force. Jihad must be confronted, contained, and countered through a comprehensive approach that empowers state and non-state actors to develop local solutions and directs expeditious military applications only where completely necessary. Recommendations Promote and Protect the Muslim Youth Leagues In order to truly create a cultural paradigm shift in Muslim youth at risk of radicalization, groups like the Muslim Youth League (BBC, 2017) should be promoted by governments worldwide as a bastion of true and peaceful Islam. While they should no doubt be supported, 24 governments must also protect these organizations from becoming targets for violent acts of terrorism or influence operations by jihadists. Through a combination of deep cultural understanding and positive messaging, the Muslim Youth League has already shown its effectiveness in the United Kingdom and beyond. Because the youth of each nation understand the social pressures and cultural influences that may lead one to seek jihad, they can effectively develop tailored, local solutions to persuade at-risk individuals. The Muslim Youth Leagues are on the front lines of countering the jihadist worldview, taking a stand and declaring war on jihad and its misrepresentations of Islam. Enable Local Solutions for Local Problems This should be accomplished through unified government action that involves all the United States' instruments of national power including diplomacy, information sharing, military action where necessary, and economic stimulus as needed. The specific issue with efforts like these, is that they cannot be accomplished during what is perceived by locals as a military occupation. This was proven true in Afghanistan and later in Iraq. Despite massive efforts to rebuild infrastructure, aid in agricultural processes, build schools, and organize community projects, the United States and its allies were still viewed as pushing Western values and democracy on nations through military occupation. As much as possible, we must limit our military presence in areas that are ripe for developing a jihadist movement, or in ones that are recovering. I have seen firsthand that government efforts against jihadist organizations or at-risk communities have often been fragmented, poorly staffed, and uncoordinated. Venhaus (2010) suggests the creation of an agency that is staffed, trained, funded, enabled, and equipped for strategic communications, calling it the United States Strategic Communications Agency. An 25 agency like this could ensure that a comprehensive national communications strategy is developed and achieved, with a focus on enabling local community efforts to counter the jihadist narrative. By promoting social outreach, religious education, and community programs, this agency could bolster the efforts of community leaders and stifle jihadist aims in their areas. Support Religious Education and Reintegration Reintegration programs in Saudi Arabia, Indonesia, Singapore and elsewhere have successfully rehabilitated former jihadists through religious education (Venhaus, 2010). Countering the apocalyptic world view of jihadist groups like al-Qaeda and the Islamic State requires local religious leaders who understand their community's issues to band together and refute the extremist narrative. Through careful, patient, and individually-tailored instruction, Muslim religious leaders can invalidate each and every one of the extremists' claims. Individuals who turn to jihad are often seeking this type of direction, they just find it in the wrong places. Counter Threats with Tailored Military Force Packages Continued themes among the military failures in counterinsurgency and counterterrorism operations during the early years of the Global War on Terrorism are indiscriminate use of force, lack of cultural understanding, and hyper-focus on tactical gains while failing at the strategic level. US government nation-building efforts on the backs of the military cost our country trillions of dollars, thousands of lives, and years of frustration, bogged-down in an endless quagmire of misunderstanding. US Army Special Forces are selected, trained, equipped, and enabled to clandestinely handle complex problem sets in denied or politically-sensitive environments. Each Special Forces Group is regionally-aligned, with Operational Detachments developing deep cultural understanding through Area Studies and continuous relationship-building with regional state and 26 non-state actors. Special Forces operators understand the complex cultural and security situations in their areas of responsibility and have the language capability and strategic understanding to operate with complete independence of outside support. Frankly, if given the authority and autonomy to do their jobs, Special Forces can coerce, disrupt, or overthrow jihadist organizations unilaterally, or train, advise, and equip foreign security forces to accomplish this task on their own. This can all be done independent of a large, slow, and expensive conventional military occupation. Organizations like al-Qaeda must be kept in a state of constant fear and uncertainty. US Special Operations Forces are uniquely suited to this task. Through structured, rapid application of military force, SOF can find, fix, and finish intended targets with surgical precision. This has proven true in the capture of Saddam Hussein and the elimination of Osama bin Laden and Abu Bakr al-Baghdadi, among numerous other targets throughout the Global War on Terrorism. Continuing to deny safe havens through short, precise applications of combat power is crucial and does not rely on a conventional military occupation of the target area. Operations such as these, characterized by discriminate use of force and strategic impact, should be the main avenue for denying the relative safety, security, and freedom of maneuver of jihadist organizations. 27 References British Broadcasting Corporation (2017, June 4). Reality check: What is the prevent strategy? Reality Check. https://www.bbc.com/news/election-2017-40151991. Creswell, R., & Haykel, B. (2015, June 1). Battle lines: Want to understand the jihadis? Read their poetry. The New Yorker. https://www.newyorker.com/magazine/2015/06/08/battle-lines-jihad-creswell-and-haykel. Dearden, L. (2015, March 21). Young British Muslims declare own jihad against ISIS and other terrorists who 'hijack' Islam. Independent. https://www.independent.co.uk/news/uk/home-news/young-british-muslims-declare-own-jihad-against-isis-and-other-terrorists-who-hijack-islam-10146534.html. Dempsey, M. (2015). The national military strategy of the United States of America 2015: The United States military's contribution to national security. The Joint Staff. https://www.jcs.mil/Portals/36/Documents/Publications/UNCLASS_2018_National_Military_Strategy_Description.pdf. Gall, C. (2020, January 31). From armed struggle to peaceful protest, a road still to travel: A veteran of the Afghan jihad working for nonviolent change in Algeria. The New York Times. https://www.nytimes.com/2020/01/31/world/middleeast/from-armed-struggle-to-peaceful-protest-a-road-still-to-travel.html. Gorka, S. L. (2016). Defeating jihad: The winnable war. Regnery Publishing. Kilcullen, D. J. (2010). Counterinsurgency. Oxford University Press. Nilsson, M. (2019, 18 June) Motivations for jihad and cognitive dissonance: A qualitative analysis of former Swedish jihadists. Studies in Conflict and Terrorism. https://doi.org/10.1080/1057610X.2019.1626091. 28 Porch, D. (2013). Counterinsurgency: Exposing the myths of the new way of war. Cambridge University Press. Qur'an (M. Ali, Trans.; 7th ed.) (2015). Islam International Publications. (Original work published ca. 1537). Venhaus, J. (2010). Why youth join al-Qaeda. Special Report, 236(1), 1-12. https://www.usip. org/sites/default/files/SR236Venhaus.pdf.
SENTIERI Project (Mortality study of residents in Italian polluted sites) studies mortality of residents in the sites of national interest for environmental remediation (Italian polluted sites, IPS). IPSs are located in the vicinity of industrial areas, either active or dismissed, near incinerators or dumping sites of industrial or hazardous waste. SENTIERI includes 44 out of 57 sites comprised in the "National environmental remediation programme". For each IPS contamination data were collected, both from the national and local environmental remediation programmes. Contamination data are mainly for private industrial areas; municipal and/or green and agricultural areas were poorly studied, therefore it is difficult to assess the environmental exposure of populations living inside and/or near IPSs. Each one of 44 SENTIERI IPSs includes one or more municipalities. Mortality in the period 1995-2002 was studied for 63 single or grouped causes at municipality level computing: crude rate, standardized rate, standardized mortality ratios (SMR), and SMR adjusted for an ad hoc deprivation index. Regional populations were used as reference for SMR calculation. The deprivation index was constructed using 2001 national census variables on the following socioeconomic domains: education, unemployment, dwelling ownership and overcrowding. A characterizing element of SENTIERI Project is the a priori evaluation of the epidemiological evidence of the causal association between cause of death and exposure. Exposures for which epidemiological evidence was assessed are divided into IPSs environmental exposures and other exposures. The former are defined on the basis of the decrees defining sites' boundaries; they are coded as chemicals, petrochemicals and refineries, steel plants, power plants, mines and/or quarries, harbour areas, asbestos or other mineral fibres, landfills and incinerators. The other exposures, considered for their ascertained adverse health effects are: air pollution, active and passive smoking, alcohol intake, occupational exposure and socioeconomic status. The epidemiologists in SENTIERI Working Group (WG) developed a procedure to examine the epidemiological literature published from 1998 to 2009; the WG identified a hierarchy in the literature examined to classify each combination of cause of death and exposure in terms of strength of causal inference. The selected epidemiological information included primary sources (handbooks and Monographs and Reports of international and national scientific institutions), statistical re-analyses, literature reviews, multi-centric studies and single investigations. This hierarchy relies on the epidemiological community consensus, on assessments based on the application of standardized criteria, weighting the studies design and the occurrence of biased results. Therefore, to put forward the assessment, the criteria firstly favoured primary sources and quantitative meta-analyses and, secondly, consistency among sources. The epidemiological evidence of the causal association was classified into one of these three categories: Sufficient (S), Limited (L), and Inadequate (I). The procedures and results of the evidence evaluation have been presented in a 2010 Supplement of Epidemiologia & Prevenzione devoted to SENTIERI. SENTIERI studied IPS-specific mortality and the overall mortality profile in all the IPSs combined. Some IPS-specific results are noteworthy and are herementioned. The presence of asbestos (or asbestiform fibres in Biancavilla) was the motivation for including six IPSs (Balangero, Emarese, Casale Monferrato, Broni, Bari-Fibronit, Biancavilla) in the "National environmental remediation programme". In these sites (with the only exception of Emarese) increases in malignant pleural neoplasm mortality were observed, in four of them the excess was in both genders. In six other sites (Pitelli, Massa Carrara, Aree del litorale vesuviano, Tito, Area industriale della Val Basento, Priolo), in which additional sources of environmental pollution were reported, mortality from malignant pleural neoplasm was increased in both genders in Pitelli, Massa Carrara, Priolo and Litorale vesuviano. In the twelve sites where asbestos was mentioned in the decree, a total of 416 extra cases of malignant pleural neoplasms were computed. Asbestos and pleural neoplasm represent an unique case. Unlike mesothelioma, most causes of death analyzed in SENTIERI have multifactorial etiology, furthermore in most IPSs multiple sources of different pollutants are present, sometimes concurrently with air pollution from urban areas: in these cases, drawing conclusions on the association between environmental exposures and specific health outcomes might be complicated. Notwithstanding these difficulties, in a number of cases an etiological role could be attributed to some environmental exposures. The attribution could be possible on the basis of increases observed in both genders and in different age classes, and the exclusion of a major role of occupational exposures was thus allowed. For example, a role of emissions fromrefineries and petrochemical plants was hypothesized for the observed increases in mortality from lung cancer and respiratory diseases in Gela and Porto Torres; a role of emissions frommetal industries was suggested to explain increased mortality from respiratory diseases in Taranto and in Sulcis-Iglesiente-Guspinese. An etiological role of air pollution in the raise in congenital anomalies and perinatal disorders was suggested in Falconara Marittima, Massa-Carrara,Milazzo and Porto Torres. A causal role of heavy metals, PAH's and halogenated compounds was suspected for mortality from renal failure in Massa Carrara, Piombino, Orbetello, Basso Bacino del fiume Chienti and Sulcis-Iglesiente- Guspinese. In Trento-Nord, Grado and Marano, and Basso bacino del fiume Chienti increases in neurological diseases, for which an etiological role of lead, mercury and organohalogenated solvents is possible, were reported. The increase for non- Hodgkin lymphomas in Brescia was associated with the widespread PCB pollution. SENTIERI Project assessed also the overall mortality profile in all the IPSs combined. The mortality for causes of death with a priori Sufficient or Limited evidence of causal association with the environmental exposure showed 3 508 excess deaths for all causes, corresponding to 439 per year; the number of excess deaths was 1 321 for respiratory diseases, 898 for lung cancer and 588 for pleural neoplasms. When considering excess mortality with no restriction to causes of death with a priori Sufficient or Limited evidence of causal association with the environmental exposure, the number of excess deaths for all causes was 9 969 (SMR 102.5, about 1 200 excess deaths per year; the excess was 4 309 for all neoplasms (SMR 103.8, about 538 excess deaths per year), 1 887 for circulatory systemdiseases, and 600 for respiratory systemdiseases. Most of these excesses were observed in IPSs located in Southern and Central Italy. The distribution of the causes of deaths showed that the excesses are not evenly distributed: cancer mortality accounts for 30% of all deaths, but it is 43.2% of the excess deaths (4 309 cases out of 9 969). Conversely, the percentage of excesses in noncancer causes is 19%, while their share of total mortality is 42%. SENTIERI is affected by some limitations, such as the ecological study design and a time window of observation possibly inappropriate to account for induction-latency time; the analyzed outcome (mortality instead than incidence) might be unsuitable as well. Despite its limitations, SENTIERI documented increased mortality for single IPSs and an overall burden of disease in residents in Italian polluted sites. These excesses could be attributed to multiple risk factors, that include also the environmental exposures. The study results will be shared with the Ministries of Health and Environment, Regional governments, Regional environmental protection agencies, Local health authorities and municipalities. A collaborative approach between institutions in charge of environmental protection and health promotion will foster, among else, a scientifically sound and transparent communication process with concerned populations. ; Il Progetto SENTIERI (Studio Epidemiologico Nazionale dei Territori e degli Insediamenti Esposti a Rischio da Inquinamento) riguarda l'analisi della mortalit? delle popolazioni residenti in prossimit? di una serie di grandi centri industriali attivi o dismessi, o di aree oggetto di smaltimento di rifiuti industriali e/o pericolosi, che presentano un quadro di contaminazione ambientale e di rischio sanitario tale da avere determinato il riconoscimento di "siti di interesse nazionale per le bonifiche" (SIN). Lo studio ha preso in considerazione 44 dei 57 siti oggi compresi nel "Programma nazionale di bonifica", che coincidono con i maggiori agglomerati industriali nazionali; per ciascuno di essi si ? proceduto a una raccolta di dati di caratterizzazione, e successivamente a una loro sintesi. La maggior parte dei dati raccolti proviene dai progetti di bonifica ipotizzati per i diversi siti, da cui si evince che oggetto di caratterizzazione e di valutazione del rischio sono state prevalentemente le aree private industriali, quelle, cio?, ritenute causa delle diverse tipologie di inquinamento (definite in SENTIERI esposizioni ambientali). Le aree pubbliche cittadine e/o a verde pubblico e le aree agricole comprese all'interno dei SIN sono state poco investigate. I SIN studiati sono costituiti da uno o pi? Comuni. La mortalit? ? stata studiata per ogni sito, nel periodo 1995-2002, attraverso i seguenti indicatori: tasso grezzo, tasso standardizzato, rapporto standardizzato di mortalit? (SMR) e SMR corretto per un indice di deprivazione socioeconomica messo a punto ad hoc. Nella standardizzazione indiretta sono state utilizzate come riferimento le popolazioni regionali. L'indice di deprivazione ? stato calcolato sulla base di variabili censuarie appartenenti ai seguenti domini: istruzione, disoccupazione, propriet? dell'abitazione, densit? abitativa. Gli indicatori di mortalit? sono stati calcolati per 63 cause singole o gruppi di cause. La presenza di amianto (o di fibre asbestiformi a Biancavilla) ? stata la motivazione esclusiva per il riconoscimento di sei SIN (Balangero, Emarese, Casale Monferrato, Broni, Bari-Fibronit e Biancavilla). In tutti i siti (con l'esclusione di Emarese) si sono osservati incrementi della mortalit? per tumore maligno della pleura e in quattro siti i dati sono coerenti in entrambi i generi. In sei siti con presenza di altre sorgenti di inquinamento oltre all'amianto, la mortalit? per tumore maligno della pleura ? in eccesso in entrambi i generi a Pitelli, Massa Carrara, Priolo e nell'Area del litorale vesuviano. Nel periodo 1995-2002 nell'insieme dei dodici siti contaminati da amianto sono stati osservati un totale di 416 casi di tumore maligno della pleura in eccesso rispetto alle attese. Quando gli incrementi di mortalit? riguardano patologie con eziologia multifattoriale, e si ? in presenza di siti industriali con molteplici ed eterogenee sorgenti emissive, talvolta anche adiacenti ad aree urbane a forte antropizzazione, rapportare il profilo di mortalit? a fattori di rischio ambientali pu? risultare complesso. Tuttavia, in alcuni casi ? stato possibile attribuire un ruolo eziologico all'esposizione ambientale associata alle emissioni di impianti specifici (raffinerie, poli petrolchimici e industrie metallurgiche). Tale attribuzione viene rafforzata dalla presenza di eccessi di rischio in entrambi i generi, e in diverse classi di et?, elementi che consentono di escludere ragionevolmente un ruolo prevalente delle esposizioni professionali. Per esempio, per gli incrementi di mortalit? per tumore polmonare e malattie respiratorie non tumorali, a Gela e Porto Torres ? stato suggerito un ruolo delle emissioni di raffinerie e poli petrolchimici, a Taranto e nel Sulcis-Iglesiente-Guspinese un ruolo delle emissioni degli stabilimenti metallurgici. Negli eccessi di mortalit? per malformazioni congenite e condizioni morbose perinatali ? stato valutato possibile un ruolo eziologico dell'inquinamento ambientale a Massa Carrara, Falconara, Milazzo e Porto Torres. Per le patologie del sistema urinario, in particolare per le insufficienze renali, un ruolo causale di metalli pesanti, IPA e composti alogenati ? stato ipotizzato a Massa Carrara, Piombino, Orbetello, nel Basso bacino del fiume Chienti e nel Sulcis-Iglesiente-Guspinese. Incrementi di malattie neurologiche per i quali ? stato sospettato un ruolo eziologico di piombo, mercurio e solventi organo alogenati sono stati osservati rispettivamente a Trento Nord, Grado e Marano e nel Basso bacino del fiume Chienti. L'incremento dei linfomi non-Hodgkin a Brescia ? stato messo in relazione con la contaminazione diffusa da PCB. Ulteriori elementi di interesse sono stati forniti dalle stime globali della mortalit? nell'insieme dei siti oggetto del Progetto SENTIERI. In particolare, ? emerso che la mortalit? in tutti i SIN, per le cause di morte con evidenza a priori Sufficiente o Limitata per le esposizioni ambientali presenti supera l'atteso, con un SMR di 115.8 per gli uomini (IC 904.4-117.2, 2 439 decessi in eccesso) e 114.4 per le donne (IC 902.4-116.5; 1 069 decessi in eccesso). Tale sovramortalit? si riscontra anche estendendo l'analisi a tutte le cause di morte, cio? non solo per quelle con evidenza a priori Sufficiente o Limitata: il totale dei decessi, per uomini e donne, ? di 403 692, in eccesso rispetto all'atteso di 9 969 casi (SMR 102.5%; IC 902.3-102.8), con una media di oltre 1 200 casi annui. Si ritiene opportuno ricordare che il Progetto SENTIERI, per obiettivi, disegno e metodi, rappresenta uno strumento descrittivo che verifica, in prima istanza, se e quanto il profilo di mortalit? delle popolazioni che vivono nei territori inclusi in aree di interesse nazionale per le bonifiche si discosti da quello cause delle popolazioni di riferimento. Ai fini dell'interpretazione dei risultati, si ricorda che la presenza di eccessi di mortalit? pu? indicare un ruolo di esposizioni ambientali con un grado di persuasivit? scientifica che dipende dai diversi specifici contesti; invece, un quadro di mortalit? che non si discosti da quello di riferimento potrebbe riflettere l'assenza di esposizioni rilevanti, ma anche l'inadeguatezza dell'indicatore sanitario utilizzato (mortalit? invece di incidenza) rispetto al tipo di esposizioni presenti, o della finestra temporale nella quale si analizza la mortalit? rispetto a quella rilevante da un punto di vista dell'esposizione. La condivisione dei risultati con i ministeri della salute e dell'ambiente, le Regioni, le ASL, le ARPA e i Comuni interessati consentir? l'attivazione di sinergie fra le strutture pubbliche con competenze in materia di protezione dell'ambiente e di tutela della salute, e su questa base l'avvio di un processo di comunicazione con la popolazione scientificamente fondato e trasparente. Parole chiave: siti di interesse nazionale per le bonifiche (SIN), mortalit? geografica, impatto sanitario ambientale, Italia
In this dissertation I explore the co-emergence of multinational corporations and the consolidation of the discourse on human rights at the level of the United Nations throughout the second half of the twentieth century and analyse the resulting conceptual gap that created tensions in the international legal order. Despite attempts by developing countries to alleviate this imbalance through the New International Economic Order (NIEO), a multitude of soft law initiatives and the reluctance to address human rights issues in MNCs at the level of the United Nations failed to make MNCs incorporate human rights standards in their operations. The merging of the two concepts became increasingly more challenging throughout the 70s and 80s when the world was faced with the oil crisis and the rise of neoliberalism. This shift in the global legal architecture forced the Third World to take a new approach to tackle the conceptual gap, this resulted in the emergence of the Third generation of human rights and ultimately, the concept of Corporate Social Responsibility (CSR). CSR is a concept of international private business self-regulation that aims at merging human, socio-economic, and political rights into the world of the corporation. As a response to the concerns for human rights violations by corporate actors, CSR slowly came to the forefront of the global business scene to enable the continuation of the operation of multinational enterprises. CSR presented a platform for global soft law initiatives to minimise the conceptual gap they had created over throughout the preceding decades. This allowed people such as John Ruggie to develop the Guiding Principles, the most successful initiative to date. This dissertation will provide its readers with a fruitful understanding of the crucial role that international law played in this development and further, what implications this had on the political and economic level. - Introduction In the words of Sundhya Pahuja and Anna Saunders, the second half of the twentieth century staged a 'series of encounters between rival practices of world making, each of which travelled with rival accounts of international law'.[1] Anti-colonial disputes, the Cold War, the rise of developmental issues and the increasing popularity of neoliberalism are only some of the events that generated these competing views of the international legal order. These events brought different coalitions across the Global North and Global South, and different 'alliances of interest between 'public' and 'private' actors'.[2] At the heart of the system that emerged lie two fundamental elements: the modern multinational corporation and human rights. How to conceptualize multinational corporations (MNCs) and how to define their relation to the law and the State was part of these rival stories. In this paper I explore the co-emergence of multinational corporations and the consolidation of the discourse on human rights at the level of the United Nations throughout the second half of the twentieth century and analyze the resulting conceptual gap that created tensions in the international legal order. In particular, I examine how this encounter, which became evident as calls for a New International Economic Order (NIEO) were being advanced within the UN, came to produce the idea of 'Corporate Social Responsibility' (CSR). I show that CSR emerged from the failure of the NIEO, particularly in relation to the roles and responsibilities of private actors in the global economy and how this can be traced to the limits of initiatives addressing the tensions between human rights claims and the interests of multinational corporations. In so doing I provide an understanding of the crucial role that international law played in this development and the implications this had at the political and economic level. The first section of this essay examines the lack of direct use of human rights language in the UN literature focusing on MNCs and their role in world development from the 1960s to the 1970s. This includes an analysis of the report entitled 'Multinational Corporations in World Development'.[3] I demonstrate the emphasis and enthusiasm for multinational corporations displayed at the level of the United Nations and how the concepts of the corporation and human rights were kept separate due to their respective supporters during the Cold War. I then focus on the attempts by the Organization for Economic Co-operation and Development (OECD), the International Labor Organization (ILO) and the 'Group of 77' (G77) to bridge this conceptual gap through the imposition of policies and initiatives, though without major success. The second section analyzes the influence of the oil crisis and the rise of neoliberalism on the shift of the global legal architecture, ultimately promoting the birth of the new developmental state. Here concern is with the new legal structures' attempt to merge the concepts of multinational corporations and human rights through a third generation of human rights, [4] and I engage in theoretical approaches by legal scholars such as Samuel Moyn and Antonia Darder. In the third section investigates the concept of Corporate Social Responsibility (CSR) and analyzes its application and limitations. CSR is a concept of international private business self-regulation that aims at merging human, socio-economic, and political rights into the world of the corporation. As a response to the concerns for human rights violations by corporate actors, CSR slowly came to the forefront of the global business scene to enable the continuation of the operation of multinational enterprises. I demonstrate how CSR aspired to close a gap between human rights and corporate action in a way that would harmonize them through a multitude of soft law initiatives. This leads to the question of whether direct regulations can apply to MNCs under international law and a discussion of the UN Global Compact, at the time the world's largest and most far-reaching CSR initiative.[5] Finally, this paper closes with the most recent developments in the global legal order designed to tackle the conceptual gap between MNCs and human rights, namely through the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises[6] and the development of the Guiding Principles. Dawn of co-existence The United Nations lies at the heart of the international regime with its normative, institutional and procedural human rights activities.[7] By adopting the Universal Declaration of Human Rights in 1948, the UN created a milestone document in the history of human rights. The Declaration has had an enormous influence on the world both in terms of 'spreading the philosophy of human rights, and in terms of inspiring legal texts and decisions'.[8] New states have used the Declaration as a basis for their constitutions, while domestic and international courts have invoked the Declaration in their judgments.[9] As human rights law developed, the International Covenant on Economic, Social and Cultural Rights, followed by the International Covenant on Civil and Political Rights, were both drafted under the auspices of the United Nations, adopted in 1966 and entered into force in 1976. Together, these three instruments make up the 'International Bill of Human Rights'.[10] Throughout the 1960s and 1970s, the world became a stage for global changes that altered the legal order. The end of colonialism dawned in the Global South, and during the height of the Cold War the West faced the Soviet Bloc and its mission of 'exporting revolution'.[11] Leaders of nationalist resistance movements received military as well as financial aid from the Soviet Bloc which intensified anti-colonial mobilization for self-determination.[12] Simultaneously, globalization was increasing rapidly, with multinational corporations emerging onto the global scene with heightened awareness of their existence as an entity with legal personality. As outlined by Sornarajah, their distinct bases of power allowed them to assert their interests through the law. With economic resources often exceeding those of their host state, MNCs had the ability to sculpt and manipulate legal outcomes through arbitration processes concerning foreign investment protection. This was done by exerting lobbying pressure on a host state which might be reluctant or even unable to object to the activities of MNCs.[13] The 'Multinational Corporations in World Development', report drafted by the UN Secretariat's Department on Economic and Social Affairs in 1973, considers 'the role of multinational corporations and their impact on the process of development, especially that of developing countries [.] [and] international relations'.[14] From the outset, the Report identifies the emerging phenomenon of the MNC in international economic affairs, how its size and spread has increased, and identifies the wide array of its activities and its use of natural resources which 'rival traditional economic exchanges between nations'.[15] It is surprising therefore, that a Report from the Department on Economic and Social Affairs, does not contain the term 'human rights' throughout the entire document. In the Report's introduction the UN makes a clear distinction between the differing views of impacts MNCs have on host countries. While 'depicted in some quarters as key instruments to maximizing world welfare, [they] are seen in others as dangerous agents of imperialism'.[16] The fact the United Nations recognized the potential neo-colonial nature of multinational corporations further highlights the need for guidance on human rights violations by MNCs. Yet the Report's reluctance to engage in the area of human rights provides a first glimpse into the divergence of the concepts of multinational corporations and human rights. An explanation for this can be identified by analyzing the Conventions, on Civil and Political Rights and on Economic, Social and Cultural Rights, with the UN's reluctance to avoid tensions between the supporters of both Conventions, respectively the United States and the Soviet Union. The US pushed for the development of civil and political rights, reflecting the protection of the freedom and liberties of individuals. Stemming from a Western philosophy, John Locke identified that in a 'state of nature' humans had 'natural rights' including the right to life, liberty and property. Similarly, French legal philosophers such as Rosseau, Montesquieu and Voltaire argued that such rights emerge from the inherent nature and virtue of man.[17] As Joseph and Castan argue, 'natural rights theories were highly influential [.] particularly in the revolutionary fervor of the United States'.[18] The advancement of civil and political rights reflects the capitalist ideology of the United States, conforming to the libertarian nature of Western capitalist societies.[19] In contrast, the Soviet Union pushed for the advancement of economic, social and cultural rights. These included the right to work, the right to an adequate standard of living, and the right to physical health. Contrary to the civil and political rights, these rights were based on the idea of equality, one deeply rooted in the political ideology of socialism. As the US would not commit to a proposition that there is a right to social goods, the US has never ratified this Convention.[20] The Soviet Bloc promoted the right of self-determination by providing military and financial aid to indigenous political activists in their fight for independence; an idea enshrined in Article 1 of the Covenant which states that: 'All peoples have the right to self-determination'.[21] For the Soviets 'national self-determination was an adjunct to revolutionary communism'.[22] They envisioned self-determination as the tool for the transition from dismantling a colonial empire to establishing a socialist state.[23] However, while the United Nations was reluctant to adhere to human rights in the framework of multinational corporations, other international institutions were motivated to develop this area. The OECD attempted to impose human rights on MNCs by adopting the Guidelines for MNCs (hereinafter 'OECD Guidelines') in 1976.[24] These were 'voluntary recommendations for business practices relating to human rights, disclosure of information, anti-corruption, labour relations, taxation, the environment and consumer protection'.[25] The Guidelines were intended to strengthen the international investment climate by improving the relationship and confidence between MNCs and host countries. National Contact Points (NCPs) were created that bore the responsibilities of enforcing and promoting the Guidelines, and any natural person could make a claim related to the violation of the Guidelines.[26] This aspect of the Guidelines provided an enforcing mechanism accessible to the public. But although the Guidelines were formally adopted by member states as a corporate responsibility instrument, they were subject to widespread criticism in the international legal order. As explained by Cernic, the Guidelines are ambiguous while the NCPs are limited in their influence on host states. Even though they outlined the need to respect human rights, the obligations were not framed in mandatory terms.[27]. Since the Guidelines lacked legal basis, the OECD was unable to assert sanctions on non-compliant corporations, and critics labeled them weak and ineffective. However, it was the intention of the OECD to guide rather than to legislate, because they saw voluntary versus legally binding standards as less of a dichotomy and more a continuum.[28] Although voluntary, corporations would be under scrutiny and potentially harm their reputation if they violated the Guidelines.[29] Yet, the Guidelines were hardly successful in the international legal order. A year later, in 1977, the ILO attempted to bridge this gap by adopting the Tripartite Declaration of Principles Concerning MNCs and Social Policy. These also attempted to 'encourage the positive contribution the MNEs can make to economic and social progress'.[30]. Article 8 emphasizes the respect for the Universal Declaration and the International Covenants. However, its voluntary and non-binding nature, as well as its weak monitoring process made this instrument as frail as the OECD Guidelines.[31] The lack of responsibility and perseverance stemming from international organizations and their disappointing attempt at bridging the gap between multinational corporations and human rights forced national and regional change. On the one hand, developing nations began taking matters into their own hands. To portray unity and solidarity throughout the 'Third World' the G77 coalition, formed in 1964 by developing member countries with the primary intention of promoting its members' economic and humanitarian interests through cooperation at the level of the United Nations, took a strong initiative. In the late 1970s the Group expressed its concern at the 'imbalance of negotiating power between TNCs [transnational corporations] and their host countries and inability on the part of the latter to control the activities of the TNCs within their territories'.[32] Simultaneously, home countries wanted to ensure their investments abroad would be protected, 'specifically from expropriation without a commitment to compensation based on international law'.[33] In accordance with the principles and concerns of the freshly adopted NIEO, developing countries raised the issue of the dominance of MNCs over natural resources and strongly urged the UN for a reaffirmation of their sovereignty over their resources. The NIEO was an attempt by Third World developing states, in the wake of decolonization, to deploy international law to achieve economic justice and improvements in the areas of development and socio-economic rights.[34] Pushed by the G77, the United Nations General Assembly (UNGA) member states devised a set of NIEO proposals in 1974 including (1) that developing states are entitled to control and regulate all activities of MNCs within their territory; and (2) that international trade must be based on equitable, stable and remunerative prices for raw materials.[35] Despite its impressive aims and careful compilation, the NIEO was unsuccessful. It failed 'to displace the power and advantage held by influential states', it failed to alter international law which favoured the economic interests of capital-exporting states and, most importantly, it demonstrated the Third World's acceptance of the economic ideology of the capitalist mindset, inflating the value of foreign capital including the exploitation of local labour in developing countries.[36] Consequently, the UN set up the United Nations Commission on Transnational Corporations which drafted a code of conduct for TNCs, one of the first formalized instruments drafted by the UN that set an obligation upon MNCs to respect human rights in host countries.[37] However while developing countries insisted on the idea of adopting an international instrument that was binding on MNCs, developed countries were not prepared to go beyond the voluntary sets of guidelines already in place.[38] On the other hand, due to the ineffectiveness of the international institutions, some MNCs that sought to abide by human rights law attempted to create some provisions themselves. An example is the Sullivan principles designed by Leon Sullivan, former member of the General Motors' Board of Directors. These principles included the elimination of discrimination based on race, and the concept of equality in the workplace. The objective was that by engaging in human rights concepts like dignity and respect, MNCs could be a lever for the elimination of apartheid in South Africa. However, like the previously established soft law on obligations on multinational corporations, these principles were voluntary and unlike the OECD Guidelines which had the NCPs, there was no enforcement mechanism. The great majority of MNCs that adopted his principles did so with the sole motive of being able to continue to prosper in South Africa.[39] In summary, throughout the 1960s and 1970s, there were attempts at a variety of levels to bring together the concepts of human rights and multinational corporations. Though it was largely absent on the level of the United Nations until the late 1970s there were many first steps by international institutions to bridge this gap. The NIEO was the first set of concrete economic principles that were prescribed in international law 'articulating a form of justice based not on domination of one people over another'.[40] It was an 'effort to assert the sovereign autonomy of the non-western world',[41] exemplifying the importance of linking human rights and development, and the fundamental values of duties of international cooperation. However, there was still much to be done as the new decade of the 1980s saw a drastic restructuring of the global trade and investment system - ultimately ending in massive international debt and a dramatic increase in foreign direct investment. A Change in the Global Legal Architecture An accumulation of capital obtained by the main oil producing states in the Middle East led to the establishment of the Organization for Petroleum Exporting Countries (OPEC) Cartel in 1972. With the intention of creating a monopoly and obtaining major profits, OPEC raised the price of oil by approximately 400%, with its members keeping revenue in US or European banks, from which developing countries regularly borrowed in the form of aid and loans.[42] However, banks were now lending at higher interest rates to these countries as they were deemed less creditworthy. As a result of sovereign debt and the surplus problem in the international banking system, developing states were forced to rely on foreign direct investment (FDI), as opposed to private borrowing. The very principle that developing states wanted to control with the establishment of the NIEO was now negated by Western states selling MNCs to the developing world as necessary for their survival.[43] Simultaneously to the effects of the oil crisis, the political ideology of neoliberalism emerged on the global scene. Conservative governments gained power in western countries, communism collapsed in Eastern Europe with a move towards market economics, and Latin America implemented stabilization policies to boost their economies.[44] This process saw neoliberalism became an enemy for structural equality, political inclusion, economic access and human rights.[45] Prior to the implementation of neoliberal policies, the relationship between multinational corporations and their host state was formed through the conflict between the host country's national developmental interests as opposed to the corporation's global investment interests. The state being the more powerful actor, attempted 'to channel its private investments to serve its own developmental objectives'.[46] However, as Michael Peters argues, neoliberalism provides 'a universalist foundation for an extreme form of economic rationalism'[47], which according to Paul Haslam, was a re-forming of the modern state rather than the perceived notion of the state 'unambiguously withering away'.[48] As a result, power shifted from host countries towards multinational corporations as the era was characterized by liberalization of foreign investment rules.[49] As the United Nations World Investment Report of 2000 showed, out of the 1035 changes made in national legislation regarding Foreign Direct Investment (FDI) from 1991 to 1999, only 5.9% were directed at restricting FDI.[50] Now more than ever before, the existence and nature of human rights were jeopardized in the sphere of multinational corporations led by neoliberal politics. Yet when analyzing human rights and neoliberalism, the two concepts have a plethora of similarities that run counter to this assertion. Samuel Moyn states that human rights and neoliberalism share (1) a predecessor and (2) a target, namely the welfarist West and the post-colonial nation state seeking economic autarky respectively.[51] Both concepts emerged and were formalized in the West. As a target, developing countries need both economic (neoliberalism) and social (human rights) elements to establish economic control. Furthermore, the two concepts share key foundational building blocks. Firstly, the principle of prioritizing the individual 'whose freedoms matter more than the collectivist endeavours' and secondly, their shared antipathy toward the state due to their rejection of its moral credentials.[52] As described by Darder, neoliberalism is characterized by a rampant greed that subsumes any notions of equality and public responsibility.[53] At the heart of this lies the ultimate subversion of human rights. When faced with the powers of global capitalism, human rights struggle to maintain themselves in the Third World. A prime example countering this thesis is the idea that human rights are a handmaiden to neoliberal policies. The argument follows that human rights are so tightly related to the role of a freely functioning market that there could be no socio-economic rights without extreme capitalism.[54] Unfortunately under this notion, human rights fall victim to being seen as dependent upon the capitalist order, creating the illusion that multinational corporations enhanced and promoted human rights in the developing World. What Wolfgang Streeck termed as 'non-market notions of social justice' became impossible to secure. Any attempt to place social commitments over economic ones were expelled, leaving market pressures to form human obligations and be governed by the dictatorship of neoliberalism.[55] The World Bank and the IMF, backed by the United States and other western states, became key in the project for liberalization, privatization, and market-friendly policies, known as the Washington Consensus. MNCs were given the protection they needed to flourish, be it proprietary or intellectual property rights. The interests of human rights on the other hand were not regarded. Though excelling and growing more than ever before, human rights had done so 'on a discrete track spearheaded internationally through the UN'.[56] Directed by developing states, human rights were intentionally dealt with by the United Nations while international economic law was being dealt with by the international institutions where they hold the balance of power.[57] Simultaneously, the developing world saw the third generation of human rights emerge as a result of anti-colonialist movements in the post-Second World War era. Newly born independent nations voiced their concerns over repeating their colonial past and demanded a new set of rights. These included the right to self-determination, the right to a healthy environment and the right to participation in cultural heritage. These are reflected in Declarations and Conventions such as the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, the Proclamation of Teheran of 1968 and the Stockholm Declaration of 1972.[58] What makes this generation of human rights exceptional however is that while they reflect neither the traditional individualistic approach of the first generation, nor the socialist tradition of the second generation, they simultaneously demand certain recognitions from the state while being able to be invoked against the state. Most importantly though, as articulated by Vasak, the third generation of human rights 'can be realized only through the concerted efforts of all the actors in the social scene: the individual, the State, public and private bodies and the international community'.[59] In other words, these rights belong to the community as a collective, rather than to an individual.[60] Drafted in 1986 by the UNGA, the Declaration on the Right to Development [61] (DRD) calls for effective international cooperation towards development objectives through the enhancement of human rights and the distribution of benefits.[62] The DRD gained inspiration from the NIEO as it relied on providing equal national opportunity through measures of fair distribution of natural resources and income. Alongside neoliberal policies, the two contradicting concepts were forced to work in tandem. Foreign investment in the developing world could proceed under the neoliberal ideology as long as it did not infringe the DRD. Interestingly, the right to development was coined by the former UN Independent Expert on the Right to Development, Arjun Sengupta, as 'growth with equity'. Growth should not only focus on the economic aspect, but also emphasize human rights and the principles of justice. This focus on equity, would require a 'a change in the structure of production and distribution in the economy to ensure growth was equitable', including the required international cooperation and not having to rely on the market.[63] Though the United Nations are promoting and enhancing the development of human rights, they are disregarding the fact that their work should be focused more on the human rights aspects entailed in the market, rather than solving human rights issues outside of the market framework. The development of human rights and the regulatory frameworks supporting multinational corporations attended very different interests. The new global legal architecture born of the oil crisis and rise of neoliberalism reorganized the relations between the Global South and Global North. At this point human rights and the regulation of corporations, with their distinctive genealogies, were forced to come together, but the failure of this exercise could not be challenged until the late 1980s when the third generation of human rights provided another opportunity for the merging of the two concepts. The outcomes of these new sets of discussions produced a more clearly defined relationship between human rights and multinational corporations which, although more sophisticated, was still unable to produce a satisfactory result. Nevertheless, the right to development began to take root in the corporate world. For the sake of their reputations, corporations were forced to appreciate the power held by vulnerable individuals that could act together as a strong collective.[64] As Claire Dickerson argues, multinationals became more aware of their relationship with human rights not only in regards to the individual, but rather to the society as a collective.[65] These were the first formalized steps to the recognition of what came to be known as Corporate Social Responsibility (CSR). The Heterodox Approach What became apparent in the sphere of business and human rights were two situations, (1) that states were either unable or unwilling to implement human rights; and (2) that multinational corporations acting in such states were unprepared to deal with the risks of harming human rights through their activities. This was seen especially in the private extracting sector, such as oil, gas and coal, using aggressive means to exploit remote areas and leaving large physical and social 'footprints'. Local communities began resisting the activities by the multinationals and the language of human rights became increasingly popular in challenging corporate norms.[66] Some of the world's largest MNCs had become culprits of violating human rights standards, including Nike, Shell or Yahoo. Nike was guilty of using child labour, while Shell misused public funds to practice corruption and theft at all levels.[67] The effects were reflected in local communities that resorted to violence and criminal behaviour, significantly affecting the living conditions of these areas. In the early 1990s, some corporations began adopting measures to comply with responsible business conduct. CSR was a voluntary form of business self-regulation that attended the current societal goals. It involved the creation of monitoring schemes that regulated the workplace standards and policies of the global supply chains. However, what caused CSR to emerge, was not only pressure exerted by nations that felt their human rights had been impinged, but also a wider global political ethos. With its emphasis on privatization and deregulation, neoliberalism promoted CSR initiatives in order for corporations to gain self-control and rely less on direct government initiatives. Due to its voluntary nature, CSR was not conceived as a regulatory instrument but as a learning forum to promote strategies that enhanced socially responsible policies. This included the enhancement of human rights, environmental protection and anti-corruption efforts. [68] CSR had now progressed to the forefront of the global business scene by morphing out of corporate philanthropy.[69] Corporations began adopting voluntary schemes that not only adhered to social policy, but at times even went beyond the standard set by local requirements, which occasionally created conflict between the two.[70] Unilateral corporations produced company codes, with companies such as Gap and Nike adopting theirs in 1992. This involved internal audit teams and ethics officers to be established, verifying that contractors were complying with their company's codes of conduct. Gradually, social audit teams emerged onto the global scene. As one of the most prominent, the Fair Labour Association (FLA) monitored the working conditions for some of the top athletic brands such as Nike, Puma and Patagonia. In the food industry, the label of Fair Trade emerged, ensuring for local farmers the social, economic and environmental standards they deserved. Corporations adopted CSR measures mainly to improve their reputation. However, perhaps a greater incentive for corporations to adopt CSR measures lies in the financial risks posed by community pushback as a result of human rights violations. These pushbacks cause delays in design, operation, construction, siting, granting of permits etc. Further, they can create problems and relations with local labour markets, higher costs for financing, insurance and reduced output.[71] In a study of a large multinational company that wished to remain anonymous, Goldman Sachs found that it had accrued $6.5 billion in such costs over a two year period.[72] A great percentage of these costs could be related back to the staff time in managing conflicts that arise in communities as a result of human rights violations. In some instances between 50% and 80% of an assets manager's time can be devoted to these issues. Thus, it is clear that in this lose-lose situation, where MNCs violate human rights and thus incur losses, it makes sound corporate sense to adopt some sort of CSR measures.[73] Despite the improvements and the clear step forward the business world took in addressing human rights, CSR involved limitations and fragmentations that challenged its success. It was built on the assumption that it is an effective mechanism for a corporation to positively reconnecting with the community it is based in. Thus, in practice, CSR operates under the presumption that society has granted authority to corporations with naturally applying legal responsibilities.[74] In 2000 John Ruggie conducted research in the Fortune Global 500 and a wider range of corporations to assess the extent and success of voluntary initiatives promoting human rights. Staff monitoring schemes had evolved, demands by socially responsible investors had grown, and large public sector funds all aided in this development. However, the research also found 'company-based initiatives fell short as a stand-alone approach'.[75] Most companies still did not have the capabilities of managing human rights risks and instead were acting on a reactive based notion. Moreover, it was within the company's discretion to decide which human rights the company would address and furthermore how to define its measures. Thus, their voluntary nature could often be used as a camouflage to delay real reform.[76] A logical response to such a broad limitation would be to impose direct obligations under international law upon MNCs. Though only states and international organizations have legal standing in international law, the general view on this contention is that it would be possible to impose obligations upon MNCs due to their major economic and political influence as explained earlier, and their capabilities of influencing the enjoyment of human rights.[77] However, as explained by Zerk, the challenge lies in 'developing jurisprudence which refines and makes precise the vague aspirational statements [.] in the CSR debate'.[78] However, as the law stands, the most promising and efficient method for applying obligations on multinational corporations remains to be the national courts. Yet the fact that claims must be raised as a tort-based litigation proving a violation of domestic tort principles rather than claiming a violation under international human rights casts doubt over this method. An interesting exception to this is the US Alien Tort Statute of 1789. The tort states that district courts 'have original jurisdiction of any civil action by an alien for a tort only, committed in violations of the law of nations or a treaty of the United States'.[79] The original intention of the statute was to establish a civil remedy for violation of international law norms such as piracy, mistreatment of ambassadors and the violation of safe conducts.[80] This piece of legislation lay dormant until the 1980s when human rights lawyers discovered its potential for foreign plaintiffs to raise a claim for certain human rights abuses against an individual of any nationality, or a corporation as long as they had a presence in the United States. The question whether the Act could be enforced against a corporation was considered in 2012 in the U.S. Supreme Court case of Kiobel.[81] The court held that there was a presumption against extraterritoriality applying to claims under the Statute. There is therefore no application of the statute abroad unless it is explicitly stated in the international law which is the subject of the claim.[82] As stated by John Ruggie in his advice to the Human Rights Council in 2007 'no single silver bullet can resolve the business and human rights challenge. A broad array of measures is required, by all relevant actors.'[83] Ultimately, as a measure to seek guidance on the matter, this led to the UN Global Compact in 2000, the largest global CSR initiative.[84] The UN Global Compact was a strategic policy initiative posed by the former UN Secretary General Kofi Annan that aimed at improving corporate conditions in areas such as human rights, environmental protection and labour rights.[85] It was a prospective and hopeful initiative that was designed as a learning forum to develop, implement and disclose sustainability principles among corporate actors.[86] At its time, the Global Compact was the most far-reaching, non-governmental set of policies aimed at catalyzing the voluntary nature in the corporate citizenship movement.[87] Legal scholars such as Meyer and Stefanova felt the Global Compact could shape the relationship between MNCs and human rights through 'rewarding responsible TNCs [MNCs], while shaming at least some of the irresponsible TNCs [MNCs] into better promoting human rights'.[88] Their only concern about the extent of the success of the Global Compact lay, in the Global Compact's voluntary nature. Comparing it to the OECD Guidelines implemented 25 years earlier, an initiative like the Global Compact will only be successful if there is commitment to the initiative at all levels of the international system. Thus, the main task is to put a human face on globalization through the values and principles shared by the people, the corporation and the state.[89] However, Aravalo and Fallon dispute this. Published in 2008, their Report uses the Compact Quarterly and UNGC Annual Review to critique the Global Compact's activities and practices throughout its eight years of existence. Published by local networks and the UN respectively, they evaluate new businesses adhering to the Global Compact, as well as Global Compact practices and responses. Aravalo and Fallon found that after evaluating the various progress reports, the Global Compact falls short of being a successful initiative. According to the UNGC Annual Review, there are a multitude of gaps existing in the Global Compact framework. Research instruments for instance, under the principles of human rights and labour protection, have been deemed as inadequate as participants have failed to voice their concern over the protection of such rights within their corporation. The Global Compact has solely used online surveys to administer data, which smaller businesses are often unwilling or unable to provide. The methodology applied by the Global Compact was ambiguous and did not show the extent of the success of CSR initiatives.[90] Alavaro and Fallon argue that it would be highly beneficial for the Global Compact to re-think its methodology process of evaluating its success by introducing a chronological component into its future research models. [91] It would allow for a clearer comparison not only for participants of the Global Compact, but also for the comparison with non-Compact companies in the area of corporate responsibility.[92] As a result of this poor research methodology, the Global Compact has difficulty assessing its direct influence on the broad and voluntary concept of CSR. There are key principles of CSR that fail to receive the attention they deserve in the scope of the Global Compact. However, this is not to say that the Global Compact has been an outright failure. The Annual Review, though lacking quantifiable data, has provided a wide array of case studies providing evidence for the practical influence of the Global Compact on participants. These include programs in education and working relationships the Global Compact has encouraged and facilitated. It can be said therefore, that the Global Compact is making a difference, even if only in these cases. Until shortly after the turn of the millennium, neither company codes nor multilateral initiatives such as Global Compact, successfully achieved the necessary, concrete obligations in regard to human rights and environmental protection demands. This was set to change with the arrival of the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises (Norms). Drafted in 2003, the United Nations Sub-Commission on the Promotion and Protection of Human Rights attempted to merge the concepts of MNCs and human rights and transform these newly developed principles into hard law. The intention was to impose human rights obligations upon companies through the domestic legal systems of their host countries. The Norms clearly express that 'states retain primary, overarching responsibility for human rights protection' and that corporations are identified as 'Duty-bearers' based on that expectation of following human rights principles.[93] The expectations expressed by the Norms are supported by enforcement mechanisms for their implementation which address the requirements that MNCs must adopt in terms of their internal practice. Furthermore, there are a multitude of rights that go beyond what is traditionally accepted as international human rights law. Examples include rights associated with consumer protection, the environment or corruption which are covered by different areas of the law.[94] However, the Norms failed to achieve promising results. Described as a 'train wreck' by John Ruggie, the Norms fell under heavy criticisms for a plethora of reasons. Firstly, the Norms fall under heavy scrutiny for attempting to impose obligations upon corporations, while simultaneously imposing parallel obligations on the state. The intention was to address the fact that MNCs operate in a legal vacuum due to their status of acting as a multinational. To alleviate this issue, it was thought that binding MNCs to hard international law would be the best option. On the one hand, minimalists argue that binding multinational corporations to international law is not an appropriate method as this would go beyond the concept of soft law initiatives such as Global Compact. This argument is developed by stating that binding corporations to international law would 'privatise human rights'. The Norms would be placing obligations on an entity that was never democratically elected, nor eligible to make reasonable decisions in regard to human rights at the level of international law.[95] On the other hand, maximalists lobby for a judicial body solely focused on the practice of multinational corporations and argue that corporations should be bound by international law.[96] Secondly, there was severe backlash against the Norms from states, corporations and businesses who argued that there was a lack of consultation from the Sub-Commission when drafting the Norms. However, this argument has since been disputed by institutions such as the Corporate Europe Conservatory or the scholars Weissbrodt and Kruger.[97] In regard to the discontent presented by states, many argued that there was a lack of involvement on their behalf in the Norms' development. As stated by Kinely, Nolan and Zerial, it is of vital importance that in issues revolving around CSR and their wide variety of stakeholders, everyone's voice must be heard when protecting human rights.[98] Thirdly, issues were raised regarding the language used by the Norms. Terms like 'sphere of influence'[99] and 'complicity' were deemed as vague and unclear.[100] It is agreed upon, even by supporters of the Norms, that such terms must be defined more definitively and where possible, draw definitions from more grounded areas of the law like criminal law, tort or contract law. This attitude towards the Norms from corporations shows the extent of their distrust and the scare factor used to attempt to dismantle the Norms.[101] However, even though the Norms failed as a concept, as Kinley, Nolan and Zerial maintain, 'the Norms have been a beneficial and fruitful initiative, reinvigorating debate on business and human rights'.[102] Previous to the imposition of the Norms, CSR had found itself in a position that was stagnant, focusing solely on codes of conduct that should be implemented by corporations using a bottom-up approach. The Norms altered the position of CSR to now provide a top-down approach and provided human rights activists with hope that human rights protection in regard to multinational corporations was now in the hands of the United Nations. However, the reactions to the Norms from the CSR community varied. CSR had been a newly emerging concept which was still unclear when fitted into the international legal order. It was still in its early years of development with highly broad-reaching initiatives in the fields of both soft and hard law. The playing field for CSR was simply too big for such an underdeveloped concept to handle. Further, it was attempted to implement CSR through domestic laws and quasi-legal initiatives raised to the level of international law. It is therefore often perceived that the implementation of the Norms were an attempt to remedy CSR by uniting these various aspects into one document at the level of the United Nations. The Norms conjoined national and international levels of CSR while maintaining that states continued to hold the primary responsibility of ensuring that businesses protect human rights. The world was a 'deeply divided arena of discourse and contestation lacking shared knowledge, clear standards and boundaries; fragmentary and often weak governance systems concerning business and human rights in states and companies alike'.[103] A range of governments still expressed their demand for further attention to be given to the relationship between human rights and the practices of multinational corporations. Thus, the United Nations appointed a team led by John Ruggie to establish the Guiding Principles. Rather than establishing a new international framework as was previously attempted with the Norms, Ruggie was 'urged [.] to focus on identifying and promoting good practices and providing companies with tools to enable them to deal voluntarily with the complex cluster of business and human rights challenges'.[104] Ruggie moved away from the traditional 'mandatory approach' which involved the compliance of national laws in correspondence to a corporation's voluntary measures and practices, to a heterodox approach. This heterodox approach was devised to create an environment of mixed reinforcing policy measures that provided cumulative change and large-scale success. The Guiding Principles lay on three foundations: (1) the state duty to protect against human rights abuses; (2) the responsibility by corporations to respect human rights and the implied obligation of acting in due diligence; and (3) the need for greater access to remedies for victims. However, there are two things that the Guiding Principles fail to accomplish. Firstly, to create binding international law and instead rely on normative contributions which further elaborate the implications of existing standards. Secondly, the Guiding Principles 'fail to ensure the right to an effective remedy and the need for States' measures to prevent abuses committed by their companies overseas'.[105] Amnesty International goes further by reiterating that aside from lacking accountability measures, the Guiding Principles should mandate a due diligence approach rather than only recommending it, as this would solve internal as well as extraterritorial accountability issues. Alongside Amnesty International, Human Rights Watch criticized the Guiding Principles for not adopting a global standard in corporate responsibility, and instead resort to a 'sliding scale' based on a corporation's size and geographic location.[106] However, when compared to other governance regimes in the past and present, the Guiding Principles seem to be a robust framework. Although various human rights organizations and NGOs identify neglect of human rights in the framework of MNCs, the Guiding Principles reiterate business as an instrument to contribute to societal welfare.[107] Thus, it acts as a basis for the empowerment of society and a benchmark to judge practices and conduct of corporations and governments.[108] Conclusion The discourse of the co-emergence of multinational corporations and human rights took the world by storm. The ongoing globalization of multinational corporations and the evolution of the concept of human rights were born attending different aims in the global legal order. Their greatest challenge however was not necessarily their harmonization and co-existence, but more importantly co-existing under the intentional gap created through the world's largest and most influential actor, the United Nations. This was clearly visible in the 1960s and 1970s. Throughout the various Reports and Declarations that were passed through the international institution, the two concepts were kept separate. While the United Nations was enthusiastic for the growth of both MNCs and human rights, it intentionally avoided discussing the harmonization of both concepts. Due to the underlying pressures imposed on the United Nations by the tensions from the Cold War, the UN was left in a legal vacuum unable to merge the two distinctive genealogies. The global international legal order was unaware of the extent of the importance of such a gap being eradicated before adopting a resolution as complex as the NIEO. Thus, from this point onwards, the NIEO was therefore already bound to be unsuccessful. Not only had international law not developed enough to impose such obligations upon MNCs, the corporations themselves were not aware of the ramifications and necessity for abiding human rights obligations as I showed in the third section of this dissertation. Enthusiasm for further initiatives such as the push by the G77 or the United Nations Commission on Transnational Corporations was only short lived. The events of the 1980s greatly disrupted the already turbulent environment of the global international legal order creating a greater gap between the concepts of multinational corporations and human rights. The 1980s became a stage which saw a great change in the global legal structure. The NIEO was an already broken concept from the outset as the conceptual gap had already created a disparity in the relationship between MNCs and human rights. This meant that although they were not aware of it at the time, the Global South could not rely on the imposition of the NIEO. Fostering the Western neoliberal policies, the conceptual gap between MNCs and human rights was now well established. For human rights to become a globally instructed concept, MNCs are a useful tool to spread, promote and enhance human rights across the globe. This of course is under the condition that the MNC does not violate human rights. From the other perspective MNCs rely on human rights in terms of their societal and financial risks. It becomes clear that when this is not realized by the proponents of both concepts, it can lead to major discrepancies and disparities as was proven in the Global South during this period. If there had not been this conceptual gap, and instead there had been a clear and devised relationship between MNCs and human rights, the effects of the oil crisis and neoliberalism would not have left the detrimental mark in developing countries that they did, potentially allowing the NIEO to prevail. However, the ongoing persistence of developing countries and their call for the third generation of human rights to gain prominence forced MNCs to catch up with their relationship to human rights. What emerged, were essentially the first initiatives and practices of CSR. CSR was heavily affected by the fact that it relied on the voluntary nature of businesses to adhere to as well as practice CSR. Even though corporations had an incentive to adopt CSR measures, weak monitoring systems allowed violations to still occur on a grand scale. The issue was that the multinational corporation as a concept was still unclear and lacked definition and that tying MNCs down with hard international law was not possible due to the diversity of MNCs. CSR allowed for too large a divergence from the issue at hand and required to approach human rights at a different angle. This was the key reason for the partial success of the Guiding Principles. Ruggie's unconventional, heterodox approach provided clarity and distinct concepts that individuals, business and states could adhere to. Although the conceptual gap has still not vanished, the UN has after an array of various attempts, managed to narrow the gap that it had created almost sixty years ago by continuously forcing society to rethink and redefine the relationship. What exactly lies in the future is uncertain and impossible to foresee. It can be said with great certainty however, that if initiatives such as Global Compact or the Guiding Principles are enhanced and given more attention, the world will be faced with a much clearer and concise relationship between multinational corporations and human rights. Focusing on monitoring mechanisms, methodological research and greater transparency and accountability among all actors involved will undoubtedly seal the conceptual gap that has caused the international legal order to experience such unsettling times. [1] Pahuja, Sundhya. Saunders, Anna. Rival Worlds and the place of the Corporation in International Law in Dann and Von Bernstorff (eds). Decolonisation and the Battle for International Law (OUP, 2018) p.1 [2] Ibid. [3] UN, Multinational Corporations in World Development ST-ECA/190 [4] Linarelli, John. Salomon, Margot. Sornarajah M. The Misery of International Law. (OUP, 2018) p.245 [5] Ruggie, John. Just Business. (W.W. Norton & Company, 2013) p.70 [6] United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises E/CN.4/Sub.2/2003/12/Rev.2 [7] Alston, Philip. Mégret, Frédéric. (eds) The United Nations and Human Rights: A Critical Appraisal (Second Edition, OUP, 2020) p.1 [8] Clapham, Andrew. Human Rights: A Very Short Introduction (OUP, 2007) p.42 [9] (n.8) p.108. [10] ibid . p.109 [11] Allina, Eric. Imperialism and the Colonial Experience in Paul A. Haslam, Jessica Schafer and Pierre Beaudet, Introduction to International Development (3rd Edition, OUP, 2017), pp. 24-42. p.39 [12] Ibid. p. 40 [13] Sornarajah M. International Law on Foreign Investment (CUP, 2010) p.5 [14] United Nations Department of Economic and Social Affairs, Multinational Corporations in World Development, 1973 ST-ECA/190 p.VI [15] ibid. p.1 [16] ibid. [17] Joseph, Sarah. Castan, Melissa. The International Covenant on Civil and Political Rights: Cases, Materials. (3rd Edition, OUP, 2013) p.4 [18] ibid. p.5 [19] ibid. [20] Alston, Philip. U.S. Ratification of the Covenant on Economic, Social And Cultural Rights: The Need for an Entirely New Strategy. The American Journal of International Law Vol.84, No.2 (CUP,1990) pp.365-393, p.4 [21] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 1966, Article 1 [22] Simpson, Gerry. The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age (Ashgate Publishing, 2000) p.266 [23] Ibid. [24] Organisation for Economic Cooperation and Development, OECD Guidelines for Multinational Enterprises, 1976 [25] Carasco, Emily. Singh, Jang. Towards Holding Transnational Corporations Responsible for Human Rights. European Business Review Vol.22, No.4, (Emerald Publishing Group, 2010). p.4 [26] Cernic, Jernei. Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises Hanse Law Review, Vol.4, No.1, (2008). p.16 [27] Ibid. p. 12 [28] Sanchez, Juan Carlos Ochoa. "The Roles and Powers of the OECD National Contact Points Regarding Complaints on an Alleged Breach of the OECD Guidelines for Multinational Enterprises by a Transnational Corporation." Nordic Journal of International Law (2015) Vol.84, No.1, pp: 89-126 p. 18 [29] Bolt, Cassidy. "Leveraging Reputation in Implicit Regulation of MNEs: An Analysis of the OECD Guidelines for Multinational Enterprises' Capacity to Influence Corporate Behavior." Corporations and International Law, 20 Jan. 2018, Available at: sites.duke.edu/corporations/2018/01/20/leveraging-reputation-in-implicit-regulation-of-mnes-an-analysis-of-the-oec
