Turnbull and Privacy of Information: A Deliberate Attempt To Prevent Open Governance?

Whilst Australian politics certainly appears lacklustre in comparison to the complications and political machinations of a number of global powers and a challenge of which I am naturally compelled, nevertheless Australia has and will always remain a country – insofar as human rights and law is concerned – that I am proud of and have an inherent respect for, regularly comparing  when researching or thinking about international relations as a whole. But it is not without its embarrassing moments, no doubt influenced by factious relations whether from powerful industry moguls or promoters of international conservatism. While I was happy to see Tony Abbott ousted, my fears that Malcolm Turnbull – being one who has public support – would cause Australians to overlook the fact that the Liberal Party contains a significant number of policies that have and continue to work against the improvement of Australian civil society. Being one more inclined to the judicial rather than executive elements of public policy, the first budget release of the Liberal government during the rather short period of Abbottism that cut funding for the Office of the Australian Information Commissioner [OAIC] proved that an intentional challenge against the very heart of the Australian Constitution appears to exist. Since the OAIC remains a legal entity, the intent of the Abbott government’ proposed abolition uniformly contradicts statutory obligations vis-à-vis section 61 of the Australian Constitution[1] in that to simply bring a legal entity to an end independent of parliament is to usurp the constitutional role of parliament itself, since only the latter has the right to legislate accordingly. This act against the OAIC raises manifold issues particularly with legislative and executive functions and the required separation of powers, the composition of the ministries and ultimately the impact such an implementation of executive powers in defiance to legislative obligations can have on the future of human rights in Australia. The Freedom of Information Act [FOI] itself was established to ensure the principle of an open and accountable government and ultimately the health of Australian democracy without polluting the overall objective of the constitution that gives people the ultimate control of the government.

Are we living in an age where privacy is no longer paramount to our individual happiness? There are complex, dynamic and swift system and processes readily available that can easily locate the details of any one. If one knows how to look, the system of finding private information is not as difficult even for a common person. So imagine that when you make your information on social media public, the technically advanced algorithms and programming can detect that information and combine it with other information in order to establish and predict private, even sensitive information. You google “prams” and suddenly every page you visit has various baby retailers and the more information one is able to attain, the more accurate the predictability. If social networking sites wanted to advantageously use the platform as an opportunity to gain more information – since retailers could use that information to sell their products – they would naturally compel people to give more information. Let’s take it one step further. You download an app that requests access to your friends list, it can detect who your best friend is or a family member because you have suggested it (I can see who last viewed my Facebook profile in less than ten seconds just by scanning through sources codes). It can also detect which page you visit the most  by using more refined systems and together, they can create a personalised facial composite using advanced software of your family or friends, whereby the image of this ‘person’ – a mash between someone you know and someone you don’t know – is used as part of an advertising or marketing strategy that implicitly compels you to a product, because you are unconsciously attracted to the image of that person that happens to be someone that you know.[2]

The abuse of privacy is not uncommon, i.e., the recently exposed News International who hacked phones to obtain sensitive data – Rupert Murdoch being on friendly terms with the Liberal Government – and there currently stands no strict policies that would prevent or protect ourselves from abusers. Whilst I could, in this instance, begin discoursing on the social contract theory and perhaps the rather calculating, Orwellian agenda where society has gradually sacrificed their privacy and freedom for the sake of ‘national security’, in principle the disclosure of even the most basic information that we supply can be used against us. I can say that capitalism and globalisation is at the very heart that compels one to disclose information openly and freely. The incredibly narcissistic marketing stratagems tell us to conform, to not care about privacy, to avoid forming our own opinion, even what we think we should desire, unconsciously manipulating the decision-making process through the inducement of receiving positive things whether it is material, or friends, or popularity, sexual pleasure etc. &c., that we end up buying products that we don’t even need or want. People will eventually believe that material determinism is the only truth when in fact they have unconsciously been told to give up their own autonomy, that we are already living in a ‘A Spacetime Odyssey’ in that the very technological mechanisms we created to advance are – ‘the root of its own destruction’ – actually working against us.

In 1996, the Australian Law Reform Commission published Open Government – A Review of the Federal Freedom of Information Act 1982 (ALRC Report 77) designed with the intent on ensuring the principles of public scrutiny and the accountability of government that encapsulates the quality of democracy is applied viz. the objective of the act itself. “The FOI Act provides a right of access to information in the possession of government departments and agencies. The fundamental reason for providing this right is to ensure open and accountable government.”[3] The publication confirmed the necessity to improve the quality of the decision making process that citizens should possess and as a consequence access to information is a criteria of democracy. Whilst democracy itself is ambiguous in definition, particularly since it poses intractable theoretical issues that limits its conceptual interpretation, broadly speaking the minimalist view of what constitutes a democracy can be defined as the ‘participation of all adult members of society, freedom to formulate and advocate political alternatives, and the credible availability of political alternatives.”[4] During the developmental stages of FOI legislation in the late 1970’s, the Senate committee reported that the significance of implementing FOI laws was to ensure that individuals have access to what information the government may have and to have the capacity to correct what they consider to be misleading; in doing so, it will enhance the transparency of the government and ultimately a community better informed can participate democratically in a more effective manner.”[5] Thus, the Freedom of Information Act 1982, an “Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies”[6] was put to force.

Whilst initially accessible, over time the administrative process became problematic and overwhelmed, particularly attributable to compliance. Accordingly, it was recommended by the ALRC[7] that a new statutory position of an FOI Commissioner to act as an “independent person to monitor and promote the FOI Act”[8] should function to ensure compliance with the FOI Act and to raise the profile of the agency to the public through the improvement of the decision-making process. At the time there existed no independent person committed to act and contribute to resolving any difficulties that the agency experienced. Thus in 2010 the freedom of information reforms were implemented by the Australian government particularly concerning the Freedom of Information Act 1982 (FOI Act) and among those reforms included the appointment of the Australian Information Commissioner supported by statutory officers, namely the Privacy Commissioner and the Freedom of Information Commissioner, both appointing Mr. Timothy Pilgrim and Dr. James Popple for a term of five years.[9] Appeals for any rejected FOI claims that previously were dealt by the Administration Appeals Tribunal (AAT) and were in addition an expensive and lengthy process can now be made directly to the Commissioner that ultimately reduced the backlog and turnaround times. It will additionally aid agency compliance, whereby “[t]he reported cost attributable to agency compliance with the FOI Act was $41.719m, an increase of 14.9% on the previous year.”[10]

However, in the budget release of 2014-2015, the Abbott government withdrew the funds necessary to maintain the OAIC with the intention of disbanding the agency by the 31 December 2014. This was challenged by parliament since legislation with the intent of abolishing OAIC was not passed and consequently funds contributing to the agency were partially reinstated in the 2015-2016 budget. The initial objective was to transfer functions over to the Attorney-General Department and the Commonwealth Ombudsman who were already enabled with the powers to exercise the same powers of the OAIC.[11] This is where the controversy lies, that without the approval of parliament for this decision, it has in point of fact exposed a deficit amid the separation of powers and the function of the executive branch of government. The withdrawal of funding and the intent to legislate the abolishment of the OAIC nevertheless appears to be a practice implemented previously. In September 2013, the Climate Commission funding was removed by the Abbott budgetary changes prior to the implementation of its abolishment by parliament.[12] This confirms that the process of abolishing depends ultimately by parliament to be sure but the progression by procedurally defunding prior to any legislative changes confirms that there exists a rather discomforting executive system that stands on a thin line between the required separation of powers.  The doctrine of the separation of powers is a concept that ensures accountability and strengthens the checks and balances through the constitution necessary to ensure a fair and just governance of citizens. Simplified, the legislature enacts, executive applies and the judiciary interprets the law and since the rigidity of the body of rules once enforced is binding, therein requires the appropriate checks that ensure the law is beneficial to society as constitutionally implied, to prohibit and regulate to the effect of protecting and enabling Australian citizens and for the “peace, order, and good government of the Commonwealth.”[13]

Thus, to what extent does the removal of a regulator and a specialist low-cost review body undercut the benefits of the 2010 reforms to the Commonwealth FOI regime? The difficulties experienced by the commissioners due to budget cuts is perhaps sufficient enough to show the difficulties they experience performing the key functions of the agency, particularly with the effectiveness that it previously achieved. This is no doubt the reasons behind liberal government’ intent to close down the Commission, since the commissioners have been successful in a very short space of time in changing the structure and processes that have simplified accessibility to Australians and facilitated transparency as the original 1982 FOI Act had purposed. For instance, a strong emphasis on interagency networking all of which are subjected to the act and publications used as part of its information policy was resourcefully published and built, working on reforms implemented viz. the publication of information, “including information about what the agency does and why it does it.”[14] In addition, the resolution of complaints that would otherwise remained fixed in a backlog of lengthy and expensive was significantly questioned and ultimately reduced allowing public access to information that would have remained locked in a loophole. The costs involved to appeal decisions particularly related to public interest cases prohibit the rights of many due to their incapacity to financially afford the associated costs. A recent and landmark decision viz., the ruling in Bare v Independent Broad-based Anti-Corruption Commission exposed this problem, whereby the Supreme Court of Victoria granted a protective cost order that limited the costs of Nassir Bare, a 17 year old Ethiopian man who was assaulted by police.[15] Mr. Bare sought his right to have an independent body from the Victoria Police – the distrust that a fair and equitable assessment is clear since Mr. Bare himself was assaulted leaving chipped teeth and cuts along his jaw and thus breaching Section 38(1) of the Victorian Charter of Human Rights and Responsibilities – and when consulting the IBAC, the latter deciding not to investigate the claim. Accordingly, public interest is tested and determined when public interest substantially outweighs the entity in question[16] and the court therefore ruled that costs associated with the case do not exceed a maximum of $5000 to allow Mr. Bare to continue with the proceedings.

The costs associated with FOI cases vis-à-vis the principle of the right to freely access information by public bodies establishes a reluctance by a significant portion of those attempting to access information and thus limits or excludes the disclosure of information. A report by the Australian Information Commissioner Prof. John McMillan highlighted the issues related to the scale of charges and the required simplification of its framework.[17] That is to say that to prevent burdens reaching to an unmanageable state, limitations to accessing documents is applied through both the ambiguous practical refusal mechanism under the former ss 24[18] of the FOI Act, along with the power to impose charges.[19] While it is clear that either a full or partial waiver of associated charges for those experiencing financial hardship are taken into account, what is considered ‘financial hardship’ indeed, what is considered ‘public interest’ itself required a more thorough definition to assist agencies with determining on a case by case basis the exemption of applicable fees.[20] The success of the commissioners indeed has caused wide-eyed nervousness amongst more than one quarter in the liberal camp, no doubt the reasons behind the attempt to shut them down as abruptly as they intended. What exactly is it that they have to hide that they sit in trepidation that disclosure of information on matters of public importance is now becoming more efficient? Are the tests that facilitate transparency going to be too transparent?

[1] §61 Australian Constitution, to execute and maintain the constitution and the laws
[2] Sonam Samat. “Visceral Targeting: Using Personalized Face Composites for Implicitly Targeted Marketing” 11 October, 2013.
[3] ARLC 77, 2.2
[4] Sylvia Chan, Liberalism, Democracy and Development, Cambridge University Press, (2002) 10
[5] ARLC 77
[6] The Freedom of Information Act 1982 (FOI Act)
[7] ARLC 77
[8] ARLC 77, 6.4
[9] Freedom of Information Amendment (Reform) Act 2010
[10] Dr James Popple, “Message from the Freedom of Information Commissioner” OAIC Annual Report 2011-2012
[11] Office of the Australian Information Commissioner PBS,  §1.1 p471
[12] Thomas J. Goreau, Ronal W. Larson, Joanna Campe, Geotherapy: Innovative Methods of Soil Fertility Restoration, Carbon Sequestration, and Reversing CO2 Increase, CRC Press (2014) 580
[13] The Australian Constitution, 1900 §52(i)
[14] Freedom of Information Amendment (Reform) Act 2010 (NO. 51, 2010) – Schedule 2: Division 1, §7A
[15] Bare v Independent Broad-based Anti-corruption Commission & Ors [2015] VSCA 197
[16] For instance, see Privacy Amendment (Private Sector) Bill 2000 (Cth) Part VI, §72: 2(b)
[17] Prof. John McMillan, Review of charges under the Freedom of Information Act 1982: Report to the Attorney-General, February 2012
[18] This is no longer applicable.
[19] Review of Freedom of Information Legislation: Submission to the Hawke Review, December 2012: Section 198
[20] Freedom of Information Act 1982 – ss11B

A Historical Comparative: Syria and Turkey

The transformation and development in Europe and the Middle East after the dissolution of the Ottoman Empire is nothing short from one of the greatest historical modifications in human society. With the fall of the Ottoman Empire, many heterodox and syncretistic religions of the Near East and Anatolia who had long experienced persecution that isolated them into an impoverished environment, found themselves tasting relative freedom and independence for the first time. For centuries, the Ottomans had poor relations with the Shi’i sects and both met with antagonism and ultimately violence, most notable with the conflict between the empire and the Safavids. Heterodox groups were never granted the status of millet that consequently left them unprotected and were often required to pay high taxes.

The region of Latakia is mostly inhabited by Alawis, yet because of the difficulty penetrating the mountains, the Ottomans could only mobilise authority in the region in the 1850’s where they introduced Sunni landlords and a mutasallim (district governor).[i] Like the Alevis, the Alawis have deep-seeded antagonism towards the Sunni elite and view them as the main oppressor. “The Ottomans and their Syrian walis repeated tried to impose their authority in and collect revenue from the Alawi and Druze areas.”[ii] Adding to this authority, numerous and violent fatwas were made against these heterodox communities in the region. “The Sunni ulema provided the religious legitimization for the persecutions. This in a fetva from 1548 the famous Seyhulislam Ebussuud Effendi declared the Qizilbaş [Alevi] heretics, the murder of whom being permissible by Islamic law.”[iii]

As Daniel Pipes clearly shows, Islamic intellectuals and theologians such as Hamza ibn Ali, Abu Hamid al-Ghazali, Ahmad ibn Taymiya and Shaykh Ibrahim al-Maghribi freely spoke about the divine necessity to kill or confiscate property from the Alawi people.[iv] It is for this reason the Alawi community fled into the isolated mountainous regions for the next several centuries. Abject poverty and the fear of violence changed the structure of their communal psyche that enveloped an attitude of leaning toward exclusivity, establishing intense internal division and tribal allegiances. As it is crucial to under the history in order to understand the present situation in Syria and Turkey, I will compare the Alawites of Syria with the Alevis of Turkey following the fall of the Ottoman Empire, explaining the differences between the struggle for power and how the Alawi experienced a sudden change of social and political fortune that sharply contrasts with the Alevis of Turkey.

 


 

Syria

The Latakia province has been the geographical position of the Alawi community since the beginning of the 10th or 11th century.[v] Their escape into the mountainous region did not end persecution nor change their lesser social class/position amongst the Sunni majority, but for a time merely lay dormant. “A fatwa was issued in the fourteenth century by a distinguished Sunni Muslim scholar, Ibn Taymiyya, stating that they [Alawi] were greater infidels than Jews, Christians and many idolaters and that waging war against them should please Allah.”[vi] Because the mountains in the Latakia region were isolated and difficult to travel through together with a lack of water resources and difficulty tending the land, the Alawi people have always been poor. As a result, they became servants to the Sunni elite and were treated with ignominy and contempt.

There are no social links between the Alevi and the Alawi, the latter viewing all Turks whether Alevi or Sunni as offspring of the Ottoman regime. This is only justified with the Turkish-Israeli alliance and the occupation of the Golan Heights by Israel, as well as the Alexandretta/Hatay controversy.[vii] Like the Alevi, the door fr modernisation was opened after the dissolution of the Ottoman Empire. Syria ambitiously developed transport, communication and roads that made urbanisation and information accessible. Syria is predominately rural; the success rate for implementing or expanding and finally assimilating the rural into urban life has been far more successful in Turkey. This could be because funding in Turkey was spread unanimously throughout the region, while in Syria priority was given mainly to the Latakia region.[viii]The 1950’s and 1960’s found the expansion of education dramatically increase. “The number of state schools grew from 658 in 1948 to 3,804 in 1964… foreign and private schools went down from 40 per cent of all schools in 1945 to 19 per cent in 1951, and almost nil in 1967.”[ix] Education allowed the Alawi to mobilise and prompted an increased desire to participate in political life, for reasons twofold: the fear of Islamist accession to power and the introduction by France for minorities to play a role in political decision-making.

Itamar Rabinovich discusses six important phases between the years 1918-1945 that defined the status of minorities in Syria.[x] Between 1918-1920, the presence of the Hashemite Emir Faysal, who sought power in the Syrian region, declared himself to be the King of Syria until the French presence and ultimate occupation that quickly put an end to his authority. In August 1920, the French established Greater Lebanon and by doing so enabled the Alawi and Druze to create their own semi-autonomous states. By 1925, Greater Lebanon was abandoned and Syria was once again re-established, although the Alawi and Druze states remained (until 1936). By 1936, a treaty was developed – though not ratified – that granted Syrian independence and incorporated the Alawi and Druze states into the whole territory (only fully implemented in 1944 – 1945). In 1941, the presence of the Vicky French came to an end when British authority took control with the support of the Free French troops; by 1943, the first elections were held.

Syria_Ethno-religious_composition.

France maintained that methods and strategies needed to be implemented in order to prevent the growing threat of theocracy. Edmond Rabbath wrote Unite Syrienne et Devenir Arabe and claimed that the Alawi and other heterodox communities are no different to Muslims, but merely ‘lag behind.’[xi] As a sharp contrast to Turkey, minorities in Syria were included in political life from the beginning of independence and the presence of the French opened the door to a new social consciousness for the Alawi community. Rabinovich claims that the unique relationship between the Alawites and the French are particularly important because Latakia contained a sizeable population of Christian and Bedouin communities.[xii] France also required assistance in an increasingly frustrated Syria and therefore provided Alawis with autonomy in order to receive unanimous support.

[T]he state of Latakia was set up on 1 July 1922. They also gained legal autonomy; a 1922 decision to end Sunni control of court cases involving Alawis transferred these cases to Alawi jurists. The Alawi state enjoyed low taxation and a sizeable French subsidy… In return, Alawis helped maintain French rule.[xiii]

When France provided the Alawites their own independent state, it established a political and social consciousness for the Alawites and consequently increased their participation in the social and political arena. “The ferment and the quest for social advancement at least for their offspring prompted numerous Alawi families to invest in education or to have a son enlisted in the French troupes speciales.”[xiv] Nevertheless, the change from French to British authority in 1941 created several issues that originally appeared detrimental for the Alawites. Afraid of deteriorating their political relationship with Emir Faysal, the British became suspicious of Alawis and instead supported Sunni nationalism and the sunnification of the heterodox communities. With the growing presence of Sunni domination, the Alawis revolted under the leadership of Sulayman al-Murshid, an elected Alawi leader who became a national figure. The rebellion was crushed and Murshid executed in 1946 with the support of British High Commissioner Edward Spears. It was at this stage that power in Syria was inherited by Sunnis, only increasing Alawi resistance for fear of repression and violence by the Sunni elite. It was only when the Druze revolt of 1954 was crushed that the Alawi became disillusioned by the political situation, but it nevertheless reflects the rise of Alawi consciousness and participation in national and political rebellion.[xv] Consequently, the ihkwan al-Muslimin or the Muslim Brotherhood were gradually developing a strong social and political ideology, leading the Alawites to strongly question the direction of their fate.

The most important change in Syria developed after the intentional collapse of leading Sunni landlords and the distribution of land ownership. However, “[t]he Alawis could not change this [poverty] situation by outing a few people as in Hama: a basic social and political revolution was required in their society.”[xvi] The Alawi needed more than merely eliminating the Sunni elite, particularly if regional politics played a predominate role in Surian political culture that could have left the Latakia region open to danger. Thus, Michel ‘Aflaq and Salah al-Din al-Baytar founded the Ba’th party during WW2 and by 1947 began to heavily recruit youths in high school. Although Turkey was much more successful with their coercive population politics and family planning that attempted to distribute communities and push for social fragmentation, there was no direct impact against the traditional social units in Syria and regional loyalty remained strong. “This gave the Ba’th party a regional, minoritarian, rural imprint that impeded its growth as an effective nationwide organisation.”[xvii] Syrian political culture contains a unique blend of traditional, regional, social and economic mechanisms. The development of the nation as a whole has not yet saturated supranational methods of political decision making or sub national administrative divisions and many citizens continue to call themselves ‘Arabs’ rather than ‘Syrians’. According to Michael H. Van Dusen, many continue to identify with local and parochial loyalties. “In Syria, the legacy of the past, the decentralized cell structure of political parties, the role of local politicians in ideological recruitment, political commitments based on high school allegiances – all have tended to perpetuate a sub-national network of political loyalties in the independence era.”[xviii]

The politicisation process began to enlarge following the early years of independence when an explosion of ideological stances with various alternatives became available. The process of modernisation did not directly affect self-sufficient and agricultural lifestyles, which maintained its uniformity and gradually developed into larger agro-cities. An agro-city is a large economic unit where the city centre is the central position for the wider agricultural towns or villages surrounding it and provides both security and health services for the population while growing in economic prominence.[xix] At the same time, specific ethnic populations reside in specific agro-cities, and it is for this reason that political culture and attitudes often revolve around regional interests rather than national. It is also the primary reason for intra-regional tension. Although national rhetoric is continuously reiterated, particularly in relation to Israel, Palestine and pan-Arabism, local loyalties are dominantly applied and national parties are still unable to penetrate intra-regional interests. It is the nature of agro-city politics that reduce the possibility for expanded support.[xx] Yet, the power of the Ba’th party came predominate became of their political stance towards the peasantry and the alleviation of poverty, something many in Syria can sympathise with.

According to Pipes, several factors played a role with Alawi ascension into power, particularly with their growing presence in the army.[xxi] The first is that the military continued to uphold the attitude of employing minorities since the Sunni majority viewed a career at Homs (Military Academy) as degrading. Secondly, while Sunni rule became dominant, they were both afraid and at the same time ignored the power of the military and avoided the provision of large funding. Finally, because of their economic situation, the Alawis could not pay the fee to avoid sending their children to the army, while at the same time found that a career at Homs an excellent opportunity for a steady income. “Alawi power resulted from an unplanned by sectarian transformation of public life in Syria.”[xxii] Minorities were originally placed in the lower ranks of the military, however this actually benefited their ascension since, “[s]enior officers engaged in innumerable military coup d’état between 1949 and 1963, each change of government was accompanied by ruinous power struggles among the Sunnis, leading to resignations and the depletion of Sunni ranks.”[xxiii] To add to this, because of the growing instability and distrust, kinship bonds became the favoured approach and thus advantageous for the Alawis whose power became increasingly visible. Thus, with the growing instability, the Ba’th party moved into an aggressive coup d’état in 1963 that finally swept them into power.

 

Senior_officials_in_the_Baath_Party_in_a_rare_un-official_photograph_with_Salah_Jadid_from_1969

Syrian Officials in the Baath Party with Salah Jadid

Salah Jadid controlled all military appointments in 1963 and he removed hundreds f officers and replaced them with Alawites.[xxiv] Although the Alawi community only make 12% of the population, they nevertheless gradually absorbed enough power to control the nation. In 1966, a neo-Ba’th movement organised a coup by a predominately Alawite administration until this was finally followed by the final coup in 1970 by Hafiz al-Asad against Salah Jadid. According to Pipes, Jadid lost his reign of power because – unlike Asad – Jadid supported the Palestinian Liberation Organisation (PLO) against the Jordanian government and was ultimately defeated. As noted by Tord Olsson, members of the al-Asad family play a chief role in political and military life in Syria.[xxv] This process began at independence and with the decline of the Sunni elite and land re-distribution after 1958, the structure of power dramatically changed. As social modernisation processes began to develop, education and career options became the primary objective for the Alawi community. Hafiz al-Asad became the president and Commander-in-Chief of the armed forces, his brother Rifat became commander of the defense unit surrounding Damascus, yet another brother Jamil became the leading member of the defence and who was later transferred to Geneva, while his cousin ‘Adnan was Commander of the Struggle unit. This has yet to change, as his son Bashar al-Asad is the current president of Syria who assumed office in 2000.

In order to maintain political power, the Alawi have sought to repress Sunni dominance – particularly in the military – by providing leading roles to Alawi and mediocre roles spread out throughout the country to Sunni. These changes in political dominance did not proceed without aggression. “They [Alawi] were given high representation (21.4%) in the military structure of the Regional Commands of the Ba’th, but the outlying traditional Sunni towns of Aleppo and Hama had no representation at all. These were the two main areas where major Sunni opposition to Alawi hegemony was strong and violent.”[xxvi] This has only made Islamist movements stronger that have shaken political stability. However, it cannot be denied that unlike Jadid, al-Asad attempted to reduce this tension by increasing his presence amongst the Sunni and positioning Sunni Commanders into leading positions.

 


 

Turkey

Turkey experienced a complex transformation from a historical and religious sovereignty by the Ottoman caliphate with multi-ethnic diversity and extensive territorial power into the nation-state that it is today. The Young Turks sough to eliminate the Ottoman and Islamic caliphate system, which they believed to be outdated and a thorn to modern progress. The Ottoman decline became highly visible during the reign of Sultan Adbulhamid II, where totalitarian enforcement and pan-Islamic propaganda dramatically increased until he was finally deposed by the Allies during World War One. In 1920, the Treaty of Sevres was signed and the Ottoman Empire partitioned, which provided the Young Turks a perfect opportunity to implement their dream for an independent national identity.

3900786_orig

Ziya Gökalp is a leading figure who influenced the modernist ambitions of the Young Turks (Committee of Union and Progress) and their nationalist plight to eliminate religion in political life. Gökalp wrote about the challenge and transformation of millet (nation), ümmet (religion) and muasirlaşma (modernisation) when developing a modern civilisation.[xxvii] By attempting to elucidate the difference between culture and civilisation, Gökalp became a prominent figure of Turkish nationalism and a supporter of political secularization, which sought to reduce the power of religious ideology and clericalism in political and social decision-making. Only when religion is separated from the State can modernity truly develop, but this does not imply the complete eradication of religion nor was Gökalp a supporter of individualism.

Gökalp believed that the egoistic and utilitarian individualist ideals found in some western societies should never be the basis for building altruistic, tolerant, and public-oriented social norms in Turkey. Accordingly, individualism was a bankrupt social and political philosophy and a “threat to equilibrium and harmony of society but also to the individual himself.”[xxviii]

Similarly, Louis Dumont claimed that ‘equality’ and ‘individualism’ is an idea of an ideal but in no way natural like the hierarchy or caste system, particularly in India. “This individualistic tendency, which became established, generalized and popularized from the eighteenth century to the age of romanticism and beyond, was in fact accompanied by… organic solidarity.”[xxix] This “purblind provincialism” or the ideology of individualism has instead made the understanding of natural nomalism even more difficult.

Nevertheless, Gökalp’s triptych involved explicating the relationship modernism has with being a Turk and a Muslim. Is there an inherent challenge between Islam and modernity, or do the gates of ijtihad need to be re-opened in order for Islamic reform to take place, allowing modernity to flourish? Gökalp reject the şeriat or Islamic jurisprudence because he believed it to be inadequate and rigid to the ever-changing processes of modern society and claimed that şeyh-ül-Islam (Islamic officials and religious courts) and the medrese (religious schools) need to be transferred to the Ministry of Justice and Ministry of Education respectively. The Republican People’s Party (Cumhuriyet Halk Partisi) remained the only single party to rule until Turkey transitioned to the multi-party system in 1946. The fall of Nazi Germany and their fascist regime had the greatest impact for this political modification and it was generally acknowledged that in order to accomplish a modern society, Turkey required less totalitarian restrictions. Consequently, Islamic political groups found an opportunity to voice their concerns and sough for religious influence to help shape social and political life. Thus synergy between maintaining political secularism and democracy vis-à-vis Islam has become an important issue when discussing Turkish laicist politics.

As a bridge between the East and the West, Turkey has attempted to set the example by removing religious influence in political life, but this has only been possible through the constitutional court, several military coup d’état and even capital punishment. By 1950, the Democratic Party (Demokrat Partisi) swept into power under the leadership of Adnan Menderes marking the first political change since 1923. The main reason for this transformation was rural frustration at the economic conditions and political antagonism toward Islam. The Demokrat Partisi relaxed on harsh demands against religion and introduced major economic and social changes. Although serious economic policies in rural Turkey were initiated by the Demokrat Partisi, paradoxically it was because the Cumhuriyet Halk Partisi consciously kept village life intact that the modernisation process was propelled. For instance, migrants who had left the village to seek employment in an urban environment could easily return to their village or their family could send food and other resources to help them manage, had they experienced poverty or failed to integrate.[xxx] If the collectivist approach had been implemented earlier and villages pushed to assimilate into the modernization process from the beginning, it could be argued that the development Turkey experienced would not have been accomplished successfully.

That the Kemalists left the villages’ social structure intact did not stem from an incapability to disturb their lives (they were undisputed masters of the land and of the armed forces) but was a deliberate, self-conscious action… the Republican People’s Party and their predecessors had a very clearly worked out rural policy, which was based on development through rural communities’ existing social life, and was not intent on destroying it.”[xxxi]

This, however, appears to contradict the situation in Dersim and other rural areas where direct policies were created during the sing-party administration who attempted to absorb communities into the Turkish nationalist ideal. The Village Law (Law no. 442) began as early as 1924 that sought to disperse villages to help the process of modernisation.[xxxii] Mandatory regulations and measures for small villages with a population of up to 2000 were coerced in order to push changes, particularly with education and hygiene. The Village Law had an ideological character that gave little consideration to the actual social and economic situation, and although the process of development included building roads and investing in schools, many communities were forced to leave their village upon instigation by the Turkish government in order to drive the assimilation process. When the Democratic Party took power and the Village Inventory (Köy Envanter Etudleri) became fully established, “[b]etween 1962 and 1968, showed that four decades after the Village Law took effect, there were mosques in 79 percent of villages, but only 55 percent had a school, 43 percent had grocery store, 32 percent had a meeting room for the community council and 30 percent had a water pipe (these were all mandatory requirements).”[xxxiii]

The standard model for a rural (Sunni) village is a mosque in the centre of a village with houses built around it, and with the increase of mosques in Alevi villages following the implementation of the Village Law, concerns about the decline of secular ambitions and an increase of Sunni domination were raised. Alevi intellectuals often claim that their tradition naturally supports modernism and Kemalism.[xxxiv] The Young Turks idealized the Alevis as ‘true Turks’, preserving national Turkish culture and religion against foreign (Arabic) influences,” though they ignored that many Alevi themselves were not in fact ethnically Turkish.[xxxv] Mustapha Kemal became the long-awaited Mahdi for the Alevis who completed the task the Qizilbaş had expected the Safavids to complete during the early sixteenth century. Cemalettin Efendi (from Çelebi) who was revered by the greater majority of the Alevis in Anatolia as the direct descendant of Haci Bektaş claimed to support Atatürk after meeting with him; he later became the second deputy of Atatürk, while other Alevi tribal leaders particularly from the Dersim region rose to leading positions.[xxxvi] Those areas influenced by Cemalettin (for instance Sivas and Tokat) still continue narratives that are noticeably Kemalist.[xxxvii] However, some Alevi groups who did not view Cemalettin Efendi as a figure of authority refused to support the Kemalist revolution, such as the Koçkiri tribe (perhaps because of their Kurdish ethnicity). Thus, these postulations about the self-evident unity of Alevilik with Turkish nationalism has been challenged by Hamit Bozarslan who states that continuous reproduction of myths – such as a natural alliance with secularism – are often left unquestioned by researchers.[xxxviii] It is paradoxical to assert that the dynamic structure of Alevism contains eternal qualities, consequently leading to inefficient research and perhaps even false conclusions. The apparent link between Alevism and democracy or equality is thus a false conclusion that must be analysed with a different sociological and historical attitude, since the internal social mechanics of Alevi society contain various levels of hierarchical authority and domination as well as differences in religious attitudes (such as Bektaşi) and ethnic heritage (such as Kurdish).

The Koçkiri and Dersim rebellions are primary examples that contradict the weak notion of an eternal position between Alevism and Kemalism. Dersim is a region located within the Tunceli province (Eastern Turkey) and contains a political history of defiance, particularly against the Ottoman Empire. “Aside from his assimilation policy, what brought Abdulhamid into evil repute among his heterodox subjects were the activities of the Hamidiye Cavalry in the Eastern provinces. Actually established by the Sultan to provide a bulwark against the Russians, the cavalry attacked the Alevi tribes in the region and confiscated their land.”[xxxix] Prior to the formation of the Turkish Republic in 1923, the Kurdistan Teali Cemiyeti formed with the hope of creating an independent Kurdish State and with incitation by Britain, organised the first Koçkiri uprising in 1920. This was followed by the Sheikh Said Piran rebellion in 1925 arranged by a different Kurdish national group, the Azadi. “Said, leader of the 1925 ‘Sheikh Said rebellion’ was a Nakşibeni Sheikh,”[xl] thus Said Piran and his brother Sheik Abdurrahman (who attacked Palu and Malatya in 1927) where Sunni Kurds. Nevertheless, the Ararat Rebellion led by Ihsan Nuri Pasha, who in 1927 claimed independence from turkey until a series of campaigns by the Turkish forces crushed the rebellion and revolt.

Turkish-War-of-Independence

While the Grand National Assembly was introduced to stimulate parliamentary and legislative authority during the Turkish War of Independence, discussions about the possibility for an independent administration for the Kurds had been made to reduce the pressure the Turkish National Movement was facing at the time. The Treaty of Lausanne failed to recognise ethno-linguistic groups – such as Alevis, Kurds, Laz and Circessians – although  it identified Jews and Christians as legitimate minorities and while it ended the war and finally established the Turkish Republic, it left Kurdistan as nothing but an imagined concept. This, therefore, led the Turkish government to purport Alevis as belonging to the majority and therefore disqualified from any rights. This consequently furthered violence where in 1937 the Qizilbaş Zaza people led by Seyid Riza rebelled against the Ataturk administration. Seyit Riza is often viewed as a symbol representing the Kurdish plight in Dersim. The distrust between tribes – for instance the Kurmanci – and the growing pressure of violence that later killed his two sons, Riza concluded that the new Turkish authorities were corrupt and consequently rebelled, leading to his eventual execution. In 1937, the government approved of a military operation in Dersim that “resulted in the annihilation of at least 10% of the population[xli] and the Tunceli Law (Tunceli Kanunlari) found thousands of people intentionally dispersed into other villages through the country to reduce the prospect of rebellion.

According to Borzalan, it was not only the Tunceli Law (a law that authorised the deportation of the Dersim population) but also the mass deportation and eventual genocide of Armenians that led to the Dersim rebellion. “They refused to go to war against the Russians during the world war and saved tens of thousands of Armenians from death.”[xlii] Over a decade of peace was suddenly converted to violence after a speech by Mustafa Kemal who pushed for an ‘Internal War of Independence’ against Dersim. It is fair to say that coercive policies in Dersim actually preceded the 1936-1938 rebellion. “A document dating back to January 1930 ordered the assessment of villagers with ‘foreign’ names and ‘foreign’ inhabitants, as well as the dispersion of these ‘foreigners’ over Turkish villages in order to make them Turks… In 1932 a law was passed in Turkish parliament that ordered the deportation and dispersion of Kurds to force their assimilation with ‘Turks’.”[xliii] In 1934, the Settlement Act was created to force an acculturation process particularly in the rural areas of Turkey, but it provided a wide margin of opportunity for authorities to apply coercive means against people by using such ambiguous language like ‘anarchist’ or ‘nomadic gypsy’.

The Milliyetçi Hareket Partisi or the National Action Party (MHP) is a far-right, conservative political group accused of human rights violations against Alevis. Including the Milli Selamet Partisi or the National Salvation Party (MSP) and the MHP youth organisation or ülkücü (idealists), a series of propaganda campaigns and offensive attacks in Sivas in 1978 and Çorum in 1980 led to mass violence and murder.[xliv] Three days in 1978 found 111 dead in the city of Kahramanmaraş after devious political machinations by ultranationalists pushed for the massacre. Such violence against Alevis involved two justifications; their left-wing or Marxist political association and the Kurdish national movement. “If nationalism is formulated in such a system of differences (A: non-A), it tends to destroy heterogeneity. The Other is then seen as the knife on the throat of the Nation.”[xlv] Türk Ameler Birliği (Turkish Workers’Union) became the first active organisation for the Alevis during the 1960’s, until replaced with Turtseverler Birliği (Patriots Union) that is affiliated with the Birlik Partisi (Union Party) in Turkey. Türkiye Komünist Partisi/Markist-Leninist or the Communist Party of Turkey/Markist-Leninist had a strong influence amongst Alevis, particularly in the Dersim region. With an increase of internal division against dedes for exploiting the community and hopelessness amongst the Alevi youth, Markist ideology became a better alternative to both Kemalism and Alevism in order to provide social unity and challenge the domination and nationalism sweeping through Turkey. “The mechanisms of domination that once were sufficient to manage the inter-community based conflicts declined, thus giving birth to massive violence, radical modes of expression and transformation of symbolic values and resources into key elements of mobilisation.”[xlvi] As Islamism began to be visually and socially perceptive, so did the growth of Alevi identity due to particularly to the restrictions that only non-Turkish (such as Kurds or Arabs) or non-Sunni (such as Alevi) were forced to experience. As the power of the left declined, it opportuned a new and modern communalism with the Alevi community.

The Jandarma, or the Turkish National Police, is a paramilitary force working under the Interior Ministry who primarily function in urban areas, particularly south-eastern Turkey. Riddled with corruption, the Jandarma are blamed for violence and torture among other abuses. “’Disappearances’ and extra-judicial executions took hundreds of lives in the 1990’s.”[xlvii] In 1995, the leader of the TKP/ML Party, Hasan Ocak, disappeared and was later found brutally murdered after being tortured. There is evidence that proved he was detained by police before his body was found.[xlviii] International and domestic human rights organisations claim that freedom of expression and human rights have been continuously undermined because of hidden but coercive violence against civilians, particularly Alevis and Kurds, which is clearly domination by the State who promote social cohesion through violence and fear or nationalism through human rights abuses. Organisations such as the TIHV (Türkiye Insan Haklari Vakfi) or the Human Rights Foundation of Turkey and the IHD (Insan Haklari Derneği) have documented both the scale of torture and the violent methods used by the military and police. The obvious use of excessive force resulted from the shift in political and social ideology particularly with the Turkish-Islamic Synthesis (Türk-Islam Sentezi) that developed following the military coup in 1980 that found several politicians, including Prime Minister Adnan Menderes, executed for high treason.

In order to deal with the social and political upheaval and several years of military rule, the Enlightenment Hearths (Aydinlar Ocaklari) were a group of political, business and academic elites who developed the Turkish-Islamic Synthesis as an apparent way to tackle the mounting left-wing activism and by promoting a national religious culture. “After the 1980 coup, where the military took control of power for three years, found military leaders adopted new policies directly inspired by the Türk-Islam Sentezi, which aimed at switching Alevi identity to Sunni identity.”[xlix] It was introduced in the referendum of the new constitution as a form of social cohesion or Unitarian nationalism to tackle the economic and social problems, thus the government decided to manage the social upheaval by inducing further national solidity; to create a national and secular Turkey with Sunni Islam as the predominate religion. Ethnic and religious diversity was reversed to exclusion or assimilation. Legislators immediately began imposing Sunni Islamic religious ideals (sunnification) within predominately Alevi communities, such as building mosques in Alevi villages. This appears contrary to Kemalism that believed the Ottoman Islamic structure to be feudal and backward, where secularisation and modernisation was supposed to gradually diminish Ottoman influence, hence the radical changes in dress code and other legal frameworks. It is for this reason that Alevis have re-created the alliance with Kemalism, claiming that these structural changes are anti-Kemalist and the return to Sunni domination. Kemalism was reconstructed to tackle both the accelerating economic and social change vis-à-vis the rapidly expanding industrialisation process, together with the advancing ultranationalist groups who were attempting to gain public support after the coup d’etat.[l]

It cannot be denied that nationalism has provided the justification for “othering” Alevi and Kurdish groups, yet far-right radicalism in Turkey also became religiously compelled. Ultranationalists like the MHP appealed to Sunni Islamic Orthodoxy as a predominant method of symbolic legitimisation. Turkish nationalists and conservatives began to associate a dialectical synthesis with Islam, and while history can be used  to under the positive and negative aspects of the process of historical development, when linked with nationalism, can also be used as a hegemonic tool. For instance, a mob of Islamists (and authorities) were incited to violence in Sivas following Friday prayers and set fire to the Madimak Hotel where the Alevi Pir Sultan Abdal Kültür association arranged a cultural festival. Police and security forces deliberately did nothing to protect the 37 people who died in the fire. The same could easily be said for the violent reaction by police to contain a protest in Gazi (Gaziosmanpaşa) after the drive-by shootings at Doğu Coffeehouse in a predominately Alevi neighbourhood in Istanbul, where police randomly shot into the crowd and killed 15 people. “This conflict was highlighted in January 2005, when Alevis in Ankara applied for permit to build a cemevi. The Diyanet responded that the cem house was unnecessary, because they could worship at a mosque instead. In May 2006, the Diyanet President rejected offering financial support for cemevis on the grounds that the DIB lacked funds for “supporting mystical worship.”[li] The Department of Religious Affairs in Turkey now has one of the highest budgets (approx. $US1Billion).


 

Conclusion

Turkey has undergone a massive transformation and in the process has developed a national ideology with a strong emphasis on modernisation. Ziya Gölkalp became the leading figure who influence the ambitions of the Young Turks (Committee of Union and Profess) and their nationalist plight to eliminate religion in political and social life, in particular Mustapha Kemal Atatürk (Father of the Turks). After the fall of the Ottoman Empire, Turkey was declared a Republic on October 29, 1923 under the leadership of Atatürk who sought to reform the country and create a modern nation-state. Consequently, many dervish orders were closed and assimilation policies were implemented throughout Turkey. Alevis and other minority groups experienced discrimination and violence that has consequently opened dialogue on the politics of recognition. The complex internal dynamics of Turkey society has led the Alevis to declare that they do not want a minority status, but seek only to be recognised as having a legitmate religion. Thus, they are faced with the requirement to scriptualise their oral tradition and consequently effectuate a theological doctrine. By codifying their oral tradition, they will not only transform Alevism into a systematic set of beliefs – something they in principle are not – but will condense their traditional methods of religious association, which developed over hundreds of years.

The Fertile Crescent has been the centre for many powerful and exclusive civilisations, while also home to the Alevi (Turkey), Alawi (Syrian), Druze (Lebanon), Ahl-q Haqq (Iran) and Yazidi (Iraq) that worship a unique form of Islam with a blend of Pagan, Zoroastrian, Buddhist and Christian influences. With increased migration into Europe and Turkey’s potential accession into the European Union, questions about the status of minorities have been raised. In 1992, Alevi intellectuals wrote a manifesto asking for political legitimacy by the Diyanet Işleri Başkanligi (Directorate of Religious Affairs), yet they remain officially unrecognised the by government.[lii] Accordingly, suspicion is only increasing and these doubts are justified by the 2007 election results. The Justice and Development Party (AKP) received the majority vote while the Republican People’s Party (CHP) – the centre-left Kemalist party – came second on the national polls. Nevetherless, a close third was the Nationalist Movement Party (MHP), the ultra-nationalist party accused of neo-fascism with just over five million votes, nearly three million more than in 2002. That is five million votes too much.

Although the Alevis have remained under the control of the Sunni majority in Turkey, the Alawi of Syria have transformed from a persecuted and impoverished minority to a leading political and military power. Former power-relations began to dissolve particularly in the urban context that transformed Syria into a new political force. Unlike Turkey, who sought to repress minorities in Syria were encouraged to participate politically in order to reduce the strength of the growing Islamist position. “The French had encouraged minority recruitment as a means to counter the nationalist tendencies of the Arab-Sunni majority and to secure the alliance of the minority communities.”[i] Union with Egypt interrupted state politics that eventually paved the way for the Ba’th party to sweep into power, and though only a minority group statistically at 12% of the Syrian population, the Alawi held most of the majority posts and were represented only second to the majority Sunni population in the government.

 

 

[i] Itamar Rabonvich, “The Compact Minorities and the Syrian State, 1918-1945” Journal of Contemporary History 14:4 (Oct 1979) 703
[ii] Ibid., 694
[iii] Paul J White and Joost Jongerden, Turkey’s Alevi Enigma: A Comprehensive Overview, (Boston: Brill, 2003) 55
[iv] Daniel Pipes, “The Alawi Capture of Power in Syria” Middle Eastern Studies 25:4 (Oct 1989) pp 434-435
[v] Elisabeth Ozdalga, Tord Olsson and Catharina Raudvere, Alevi Identity: Cultural, Religious and Social Perspectives (Stockholm: Swedish Research Institute in Istanbul, 1998) 167. The Alawites were persecuted from the beginning of the Mamluks which consequently forced them into the mountainous regions of Latakia.
[vi] Ibid., 152
[vii] Ibid., 165. Alexandretta/Hatay were incorporated into Turkey in 1939 after the French made a compromise with the Turkish government. The region has a sizeable portion of Alawites.
[viii] Mahmud A. Faksh, “The Alawi Community of Syria: A New Dminant Political Force” Middle Eastern Studies 20:2 (April 1984) 133-153. Although Latakia received most of the funding and improved more than any other region, it is claimed that Latakia was given priority because of its impoverished and rural situation rather than it being predominately Alawi. Whether this is true or not remains unknown.
[ix] Ibid., 140
[x] Rabanovich, op. cit., pp 695-696
[xi] Ibid., 699
[xii] Ibid., 703
[xiii] Daniel Pipes. “The Alawi Capture of Power in Syria” Middle Eastern Studies 25:4 (Oct 1989) 429-450
[xiv] Rabinovich, op. cit., pp 695-696
[xv] Faksh, op.cit., 139. This was also followed by the Druze rebellion in 1954; the Druze or Ahl- al-Tawid are populated mostly in Syria and follow Ismaili Shi’i Islam, but are not like the Alawi as they are officially recognised as Muslims.
[xvi] Michael H. Van Dusen, “Political Integration and Regionalism in Syria,” Middle East Journal 26:2 (Spring 1972) 132
[xvii] Faksh, op. cit., 141
[xviii] Dusen, op. cit., 135
[xix] Ibid., 124
[xx] Ibid., 129
[xxi] Pipes, op. cit., 440
[xxii] Ibid., 430
[xxiii] Ibid., 441
[xxiv] Olsson, Ozdalga and Raudvere, op. cit., 161
[xxv] Ibid., 167
[xxvi] Faksh, op. cit., 145
[xxvii] Andrew Davison, Secularism and Revivalism in Turkey: A Hermeneutic Reconsideration (New Haven: Yale University Press, 1998) 92
[xxviii] Ibid., 97
[xxix] Alan Mcfarlane, “Louis Dumont and the Origins of Individualism” Cambridge Anthropology 16:1 (1993) 3
[xxx] David Shankland, The Turkish Republic at Seventy-Five Years. (Cambridgeshire: The Eothen Press, 1999) 60
[xxxi] Ibid., 58
[xxxii] Erhand Franz, Population Policy in Turkey: Family Planning and Migration between 1960 and 1992 (Hamburg: Deutsches Orient-Instit, 1994) 221
[xxxiii] Ibid., 222
[xxxiv] Olsson, Ozdalga and Raudvere, op. cit., 107
[xxxv] White and Jongerden, op. cit., 57
[xxxvi] Ibid., 59. “The entire order was governed by Celebi, who resided in the mother-monastery (pir-evi) Haci Bektas, constructed over the saint’s tomb (between Kirsehir and Kayseri).”
[xxxvii] Ibid., 60
[xxxviii] Ibid., 3
[xxxix] Ibid., 56
[xl] Ibid., 26
[xli] Ibid., 66
[xlii] Ibid., 10
[xliii] Ibid., 77-78
[xliv] Ibid., 83
[xlv] Ibid., 84
[xlvi] Ibid., 14. Abdullah Ocalan is a prominent figure in the Kurdish domain who in 1974 established the PKK under Marxist ideology.
[xlvii] Ibid., 71
[xlviii] Ibid., 86
[xlix] Olsson, Ozdalga and Raudvere, op. cit., 80
[l] Ibid., 7
[li] David Shankland, op. cit., 65
[lii] Olsson, Ozdalga and Raudvere, Op. Cit., 127

Business Law and Vicarious Liability

Business law is complex and international business law is even more convoluted. Definitions of terms such as ’employment’ itself is wholly ambiguous, thus making it difficult to ascertain what legal rights people have in the workplace both for employees and employers. Vicarious liability exposes this complexity. It is a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties as requested and entrusted to act on their behalf. As a legal term, vicarious liability confirms that employers are thus responsible for negligible acts pertaining to discrimination and harassment that occur within the workplace by supervisors and management, individual or group employees, and agencies and contract workers with the ambiguity of the latter certainly exposing the complexity of the subject. It is complicated as an Australian legal doctrine primarily because of the absence of a clear and distinct definition vis-à-vis the various legislative formulations and the broad scope utilised by Australian federal, state and territory jurisdictions along with a culmination of common law interpretations. In addition to this complication, civil cases particularly pertaining to discrimination rarely reach the court due to the associated costs of such litigation and tend to be resolved prior through conciliation.

Employers must ensure that they have taken reasonable steps to demonstrate their commitment to the prevention of any form of discrimination and harassment as required by both Victorian and Federal legislation to prevent liability claims made against them, the liability itself used as a deterred to prevent human rights abuses. Whilst vicarious liability is customarily applied using judicial precedents rather than relying solely on legislation, in some cases particularly relating to sexual harassment the interaction with other provisions can effect and ultimately lead to an incongruous result, for instance in Jones v Tower Boot Co Ltd that exposes the necessary reach of vicarious liability – where an employee commits a serious act of sexual harassment though off-duty and thus appears that the employer is less likely to be liable as a consequence – in addition to claimants selecting one jurisdiction to reduce this probability of an absurd conclusion. The custom to utilise judicial precedents and thus apply the ‘Golden Rule’ of law, namely, to ensure that courts take a purposive statutory approach by appreciating the aim and purpose of the law and thus apply a fluid and flexible method favouring justice for the people, is in effect the reason for maintaining the broad and thus ambiguous definition of vicarious liability.

In order to initiate a better understanding of the subject, it is vital to establish an introduction on the scope of and interactions between legislations within the limitation of a non-exhaustive blog post, thus a brief account of anti-discrimination, human rights and industrial laws. Thus to begin, what exactly constitutes discrimination? In part two of the Equal Opportunity Act 2010 (Vic), discrimination is defined as, “direct or indirect discrimination on the basis of an attribute.”[1] Direct discrimination is clearly purposed to treat an individual discriminately based on any of the attributes, whilst indirect discrimination occurs when a condition, practice or any such imposition that is likely to result or have an effect on an individual that disadvantages them due to an attribute.[2] These attributes include age, sex, disability, race and religion amongst others.[3] Discrimination can go even further, such as an individual’ past or intellectual capacity [too smart, not smart enough] or other physical attributes etc &c. As employers themselves must ensure that they do not breach their obligations as set by the law and reiterating the previously mentioned Golden Rule, namely that the law has be established to protect the rights of citizens and democratic principles in general, the scope of vicarious liability sits under the umbrella of human rights.

Generally, the scope of industrial laws fails to afford the protections offered by established anti-discrimination laws. In Victoria, this would include the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) along with the Equal Opportunity Act 2010 (Vic). In addition, a complainant must select which jurisdiction – namely State or Federal – they wish to pursue the proceedings. Under section twelve of the Age Discrimination Act 2004 (Cth) it states that a person is not entitled to institute a proceeding if a law relating to discrimination is dealt with by the State of Territory,[4] thus a complaint can be lodged at the statutory commission within their state jurisdiction; however if so, they cannot proceed the complaint to federal anti-discrimination laws and jurisdiction. What that means is that if a complainant initiates a case under Victorian anti-discrimination law, they are not permitted to withdraw and apply for a recourse under Commonwealth anti-discrimination laws. Similar requirements are stated in other legislations,[5] thus confirming that if someone has already made a complaint under Victorian legislation is therefore unable to commence proceedings at federal level. Nevertheless, there are differences between state and federal anti-discrimination laws – whilst minor – can impact on the application and operation of the law, as a consequence the complainant can initiate and select which jurisdiction they would prefer the proceedings to fall under (dependant on the scope and details of the claim made against the employer). While the Equal Opportunity Act 2010 (Vic) functions similarly to federal anti-discrimination law, an example of these differences can be seen between the Disability Discrimination Act 1992 (Cth) that states “circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments”[6] obligations of which render a difference to the Equal Opportunity Act 2010 (Vic).

To continue further and assist with the amplification of pre-existing knowledge hidden in the corners of my mind, what exactly is vicarious liability? According to the Equal Opportunity Act 2010, vicarious liability is a person or agent engaging in conduct that contravenes discrimination as described earlier along with sexual harassment regulations as prohibited by the act.[7] Sexual harassment is defined as an unwelcome sexual advance or requests for sexual favours along with conduct of a sexual nature that offends, humiliates or intimidates.[8] In order to assess whether it is a vicarious liability claim, the negligible behaviour must have occurred during employment in addition to whether the employer has failed to take reasonable steps to prevent such contravention of the abovementioned.[9] “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[10] In addition, vicarious liability holds a broader function, namely that the legislative obligations and requirements by employers works as a preventative measure or deterrent to reduce risk of harm against an employee. The ambiguity of vicarious liability lies in understanding the definition of an employee and of even the period during which one is employed. As said by CJ Gleeson, “Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.”[11]

This is clearly observable when ascertaining the difference between a contractor and an employee. While it is generally viewed that independent contractors that are assigned employment carry out the required duties under the principle that they are in business for themselves and as such employers are not held vicariously liable, this has been proven not to be an absolute principle and there are instances in which the employer is deemed responsible for the negligent acts by independent contactors. In Sweeney V Boylan Nominees[12] the High Court rejected the vicarious claim made against the respondent for an injury against the appellant, who had entered a service station owned by Boylan Nominees and opened a refrigerator door that was not correctly serviced by an independent contractor that resulted in injury. Initially, this area of tort law held an employer to be liable for the tortuous acts of an employee but not a contractor as cited in Quarman v Burnett (1840)[13] however as continuous employment conditions and changes within the Australian labour market occur, the concept of contractors and vicarious liability challenges the meaning of what it is to be considered as an employee. Changes to interpreting the relationship between employer and contractor utilising the control test method – namely the attempt to ascertain the degree of control an employer has over a contractor – has also developed in preference for an analysis of the totality of the relationship.[14]

This test of ascertaining the status of an employee in contrasted in the case of Hollis v Vabu[15] that applies indicators which overall ascertain the actual relationship rather than focusing solely on the obligations as required by the contract itself. The plaintiff, a cyclist who was injured in a collision with a contractor that had the defendants’ name of Vabu visible during the accident brought to light the problem regarding the view that employers of independent contractors are not vicariously liable. The high court case thus attempted to clarify the issues respective of what a relationship entails with respect to employers and vicarious liability. As said, “[t]he system which was operated thereunder and the work practices imposed by  Vabu  go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.”[16] Similarly, in Deatons Pty Ltd v Flew, during an altercation at a hotel, the plaintiff was struck in the face with a glass of beer that the barmaid threw following his abuse toward her during an intoxicated scene.[17] As stated, “[a]n employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to this employment.”[18] The case of Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia[19] was mentioned by Justice Kirby in light of the fact that the employer was vicariously liable for the negligence of the independent contractor since the latter was a representative or agent of the employer since he was wearing the uniform.[20] Whilst the absence of a clear distinction that defines the differences between an employee and an independent contractor clearly arouses complications, Justice Bromberg in On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation[21] discussed the ‘totality approach’ that examines the question, stating;

“Viewed as a “practical matter”:

(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?

If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”[22]

The ‘entrepreneur test’ viewed in a practical manner purports that an independent contractor as a representative can be considered an employee.[23] As mentioned by Justice Kirby in Northern Sandblasting Pty Ltd v Harris, several areas still remain unclear and further analysis on focal points such as non-delegable duty, the retreat from the control test and the increasing use of independent contractors due to changing social conditions requires more coherency.[24] Nevertheless, an independent contractor is advancing the interests of the employer and therefore can be considered representative of the employee and liable accordingly. Thus, attempting to ascertain whether an employer is vicariously liable for the negligent behaviour of independent contractors requires the analysis of the totality of indicators as part of a weighting process, considering whether there are clear benefits for the employer, whether the independent contractor is a representative of the entrepreneur, the terms of the contract ect. &c., until a formulation of the relationship can be ascertained. As was clarified in Sweeney V Boylan Nominees, “Mr. Comninos was not required to accept jobs from Boylan, did not wear a Boylan uniform, was not based on a Boylan premises and invoiced Boylan for the hours of work he performed.”[25]

Liability does not necessarily require geographical or time-related specificity, for instance at the location of the employment or during working hours. In South Pacific Resort Hotels Pty Ltd v Trainor[26], Ms. Trainor was employed at a hotel in Norfolk Island and consequently had a part of the building arranged for the optional living quarters of employees. She had experienced sexual harassment from a fellow employee at the premises whilst both were off-duty and the court nonetheless found the employer vicariously liable since the premises itself was built for the purpose of their employment and the conditions and environment of the building therein allowed for the conduct to occur. “It [vicarious liability] is not premised on any culpable act or omission on the part of the employer; an employer who is not at personal fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device.”[27] Exploring the concept of vicarious liability under both Federal and Victorian anti-discrimination legislation, employers can be responsible for the acts made by employees including management, agencies, contract workers among others as long as it is in connection with a person’ employment and does not necessarily require being on or within a specific locale or premises of the employer or within working hours. In Leslie v Graham,[28] Ms. Leslie was subjected to sexual harassment by Mr. [Lincoln] Graham at an apartment outside of working hours and following the situation she was unfairly dismissed by her employer Roger Graham and Associates – with Roger Graham being the father of Mr. Lincoln Graham. The line that separates an employer from the conduct and behaviour of employees or contractors clearly becomes obscured vis-à-vis sexual harassment cases. “Vicarious liability can more readily arise for trespassory torts such as sexual assault, based on a close connection between the employment and the tortious act in question.”[33] Confusion is further amplified when attempting to ascertain the vicarious liability of employers outside of working hours. In the Sex Discrimination Act 1999 (Cth)[34] whereby vicarious liability does not apply when it is established that an employee or agent of a person, “took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph”[35].

The employers’ responsibility vis-à-vis vicarious liability is not solely a matter of where failure itself had occurred, but rather whether the employer had taken reasonable steps to ensure that attempts were made to practicably prevent breaches from occurring. In R v Commercial Industrial Construction Group Pty Ltd[37] CICG had breached health and safety regulations by failing to provide a working environment for its employees that was safe following Peter Bacon – site manager – who had asked labourers to perform unsafe duties that resulted in an accident. As part of the plea mitigation, CICG stated that they had taken all the necessary steps to ensure that a safe working environment had been enforced, thus it was Peter Bacon as a supervisor who failed to comply Job Safety Analysis (JSA) requirements. This was rejected in court, whereby, “[w]hen the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company’s breach is increased, not reduced. It is difficult to understand how the company could have allowed someone with Bacon’s apparent indifference to risk to occupy such as position.”[38] It was concluded that it had not been the case for CICG by employing a site supervisor who failed to adhere to health and safety obligations and consequently behaved negligently. Similaraly, in Gama v Qantas Airways Ltd,[29] Mr. Gama was employed as a licensed aircraft mechanical engineer and who was subjected to racial slurs by co-workers in the presence of supervisors, the latter failing to take reasonable steps to stop the racist behaviour. On the contrary, Mr. Gama was further subjected to discrimination particularly related to his reporting requirements and any opportunity for promotion due to alleged systemic racial intolerance[30] in addition to injuries he sustained during the course of his employment that resulted in less favourable treatment. As a consequence, Qantas was found to be in breach of the Racial Discrimination Act 1975 (Cth)[31] and the Disability Discrimination Act 1992 (Cth), namely that it is “unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability, [d] by subjecting the employee to any other detriment,”[32] and as such vicariously liable particularly for the treatment he received by co-workers in the presence of supervisors.

Vicarious liability is not necessarily about whether an employer authorises tortious acts but rather about whether they are responsible for acts of negligence made by an agent they have employed and as such it is a requirement to ensure that legislation remains broad. Perhaps it is ambiguous to ensure that judges approach the subject on a case-by-case basis by examining the details regarding the nature of the employment. “Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely, or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends.”[39] It is nevertheless commonsensical to assume that should an employee engage in conduct that is deemed offensive outside of the contractual obligations as required by the employer – or “engage on a frolic of his (or her) own”[40] – then the employer cannot be held vicariously liable for such conduct. But should an employer see and fail to do anything about acts of negligence or harassment, then they are absolutely liable.

Comparatively, the legislative and common law processes that we have in place in Australia is certainly commendable when viewing the injustice of the legal systems in other nation-states around the world. It does not, however, change the fact that many employees unfortunately experience discriminate behaviour for personal attributes and ultimately such employers go unpunished.

Also see:

Scott v Davis (2000) 204 CLR 333
Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135.
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.

 

 

[1] Part 2, §7 Equal Opportunity Act 2010
[2] Part 2, §8-9 Equal Opportunity Act 2010
[3] Part 2, §6 Equal Opportunity Act 2010, “(a) age; (b) breastfeeding; (c) employment activity; (d) gender identity; (e) disability; (f) industrial activity; (g) lawful sexual activity; (h) marital status; (i) parental status or status as a carer; (j) physical features; (k) political belief or activity; (l) pregnancy; (m) race; (n) religious belief or activity; (o) sex; (p) sexual orientation; (q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.”
[4] §12 Age Discrimination Act 2004 (Cth)
[5] §6A Racial Discrimination Act 1975 (Cth), §10 Sex Discrimination Act 1984 (Cth), §13 Disability Discrimination Act 1992 (Cth)
[6] §5(3) Disability Discrimination Act 1992 (Cth)
[7] §109 Equal Opportunity Act 2010
[8] §92 Equal Opportunity Act 2010
[9] §110 Equal Opportunity Act 2010
[10] Fleming, Law of Torts, 410
[11] Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
[12] Sweeney v Boylan Nominees Pty Ltd. (2006) 227 ALR 46; [2006] HCA 19.
[13] Quarman v Burnett (1840) 151 ER 509
[14] Stevens v Brodribb Sawmilling Company Pty Ltd 1 TLR 101 at 111
[15] Hollis v Vabu (2001) 207 CLR 21
[16] Ibid,. Also see Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.
[17] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (12 December 1949) 2
[18] Ibid., 5
[19] Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41
[20] Ibid.
[21] On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation (No 3) [2011] FCA 366.
[22] Ibid., 208
[23] Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997)
[24] Ibid.
[25] Burnett, Jonathan — “Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees” [2007] SydLawRw 5; (2007) 29(1) Sydney Law Review 163
[26] [2005] FCAFC 130
[27] Barbara Harvey, John Marston, Cases and Commentary on Tort, Oxford University Press (2009) 572
[28] Leslie v Graham [2002] FCA,
[29] Gama v Qantas Airways Ltd (No 2) [2006] FMCA
[30] Christine Fougere, ‘Vicarious liability for race and disability discrimination in the workplace’, Law Society Journal, April (2007) 37
[31] §9 Disability Discrimination Act 1992 (Cth)
[32] §15(2)(d) of the Disability Discrimination Act 1992
[33] Rick Glofcheski, ‘A Frolic in the Law of Tort: Expanding the Scope of Employers’ Vicarious Liability’ (2004) 12 Tort Law Review 18, 1
[34] §106 Sex Discrimination Act 1984 (Cth)
[35] §106 (2) Sex Discrimination Act 1984 (Cth)
[36] Brook Hely, “Open all hours: The Reach of Vicarious Liability in ‘off-duty’ sexual harrassment complaints.”
[37] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
[38] Ibid., 43
[39] Glanville Williams, Vicarious Liability and the Master’s Indemnity, The Modern Law Review, 20:3, 220–235 (1957)
[40] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).

Multinational Corporations and International Crime

The criminal proceedings of the Nuremburg Trials following the atrocities of the Nazi regime’ genocidal violence against humanity strengthened an international understanding of the concept of complicity to violence and soon thereafter developed the international law of human rights. Leaders in the Nazi regime were prosecuted for crimes against humanity in a series of international trials that were divided into two primary groups, namely that of organisations and that of individuals.[1] The tribunal at Nuremberg in addition to charging the defendants with heinous crimes also charged some as conspirators, namely that of mens rea or the subjective criminal intention that indicates liability. At the time, the laws of conspiracy were utilised in the United States to tackle the growing trends of organised criminal behaviour, whereby “it is a useful one [the charge of conspiracy] to bring against a gang leader who does not himself blow the safe, kill the bank guard or drive the getaway car.”[2] Under the Control Council Law[3] of the International Military Tribunal in Nuremburg, conspiracy was considered to be crimes against peace,[4] which is planning in anticipation of committing such violations and remains the most controversial aspect of the proceedings. The question of responsibility and complicity to acts of gross human rights violations was further amplified when tribunals were established for the atrocities committed in Rwanda and the former Yugoslavia. While these cases have charged individuals and organisations for state-led oppression, violence and genocide, the problem with Multinational Enterprises working in foreign countries and their immunity due to limitations in international law has been raised to the fore as an important topic for discussion vis-a-vis international law.

The continuous changes to the expanding economic structure in a globalised world along with the broadening of knowledge viz., the long-term impact environmental and human rights abuses can have, processes that emphasise responsibility by multinational enterprises has gradually started to form in the international arena. This includes the developments of international obligations and processes that assist States – particularly vulnerable countries in the developing world that often experience negligent abuse from Multinational Corporations – to develop legislation that will protect them from potential abuse, along with the willingness of domestic courts to implement domestic laws on crimes committed internationally, such as the United State’ District Courts and the Aliens Tort Claims Act 1789. The Maastricht Guidelines is another and explains the obligations of the State to adhere to Economic, Social and Cultural Rights as explicated in the international covenant. The growing pressure from NGO’s and the poor reputation that multinational companies encounter also work as preventative measures to ensure compliance to international codes of business conduct and corporate behaviour. This includes the supply chain that multinational enterprises do business with or contractually hire, becoming vicariously liable for any violations of human rights perpetrated by entities with which it does business.

These violations can include poor labour standards, environmental damage and serious harm to the welfare of inhabitants from pollution, and complicity to serious oppression and violence from private contractors, the government or the military. Conversely, a multinational firm can play a vital role in the positive contribution to a State that can include employment and thus improve the capacity for communities to acquire   needed services, infrastructure and economic growth. Whilst I will try and attempt to broadly detail several areas of concern when discussing Multinational Enterprises [MNE’s], these being a brief analysis of existing laws and international covenants relating to international business and human rights; this is vital as it amplifies an understanding of the second area of concern, namely whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business. Delving through particular situations and cases, a brief comparative to existing, domestic tort procedures and laws such as the concept of vicarious liability and contract workers as I have discussed in previous posts, or command responsibility in martial courts, I will attempt to ascertain what corporate responsibility is and how the adoption of human rights principles can ensure sustainability and address the obligations as required by international covenants.

Corporate crime can involve economic, political and industrial failures leading to organisational decisions that can possibly affect not just the individual employee or employees, but also the broader community in general. From well known litigation cases against chemical companies guilty of both environmental and human rights abuses or pharmaceutical companies restricting access to life- saving medications, the topic of human rights and business responsibilities on a global scale is at the forefront of the international economic agenda, particularly since the capacity for multinational entities to commit serious crimes at a large scale can – in reverse – also be capable of effectively promoting and even safeguarding human rights. This is particularly the case for States in post-conflict situations or in an humanitarian emergency or crises that requires immediate assistance and support. It is for this reason the United Nations established the UN Guiding Principles on Business and Human Rights to remedy the abuses and the failure of multinational corporations adhering to the standards as required by international human rights law. The preamble to the Universal Declaration of Human Rights, which was established following the atrocities committed during World War Two and that illustrates a global commitment to the inalienable rights of humankind, states that, “[w]hereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.”[5] All state actors and by extension multinational firms that agree to support the integrity and dignity of the human person as espoused in the UNDHR are prohibited to breach the obligations articulated within the body of international human rights laws.

The legal protections required to enforce UN conventions remain dependent on domestic legal systems, and notwithstanding the many member states that have effectively implemented human rights law into domestic legislature, there remains many States that have failed to comply with the required obligations of international law. This collision between international and domestic human rights laws can be comparatively identified in Islamic countries that expose the inconsistencies between Sharia laws and the requisite universality of human rights and the sovereign equality of State actors. “The contentious nature of Sharia’s interpretation of individual rights and its arguable incompatibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities with which Islamic societies have operated.”[6] Accordingly, the foundational principles and obligations in the Guiding Principles on Business and Human Rights purports that States themselves must take appropriate steps to prevent abuse through the implementation of domestic legislation and policies.[7] While a plethora of resources have become available to promote such domestic changes, the protections afforded by legal rights is wholly reliant on their implementation into domestic law that adequately remedies the cooperation between state and non-state actors within the international arena opinio juris sive necessitatis.[8] Regarding the latter, relations at transnational level can be exemplified through mutual collaboration on the enforcement of anti-terrorism activities, further still and equally as intricate is state immunity and human rights.[9]

Nevertheless, the Organisation for Economic Co-operation and Development (OECD) have established guidelines specific to multinational enterprises[10] that promote responsible business conduct through appropriate stakeholder engagement models that heighten transparency of the activities of multinational organisations. Followed by the Declaration on International Investment and Multinational Enterprises, the recommendations themselves, whilst voluntary, attempt to ensure that companies adhere to human rights standards and combat fraudulent and criminal behaviour. The benefits that it can have on the economy of the State encourage social progress and thus contribute to positive domestic development. And what exactly is a multinational organisation? The OECD Guidelines does not contain a precise definition of a multinational enterprise and states that multinational companies may be private, state or both that coordinate and operate in more than one country.[11] In addition to the OECD, UN documents such as the Declaration on the Establishment of a New International Economic Order,[12] the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy[13] along with United Nations Set of Principles on Competition[14] each attempt to regulate and supervise the activities of transnational corporations. An ‘enterprise’ has been defined as “firms, partnerships, corporations, companies, other associations, natural or juridical persons, or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in commercial activities, and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them.”[15] The purpose and incentive of the guidelines is to entice States regulate the behaviour of multinational entities with accountability mechanisms that legislate protections particularly through tort law that will safeguard against any potential abuses. For instance, the Australian government recently reached a compromise and passed a new Multinational Anti-Avoidance Law (MAAL) that requires multi-national companies in Australia to practice efficient financial and tax reporting publications to ensure better transparency in the prevention of tax fraud.[16]

 

Contracted to protect? DynCorp instead trafficked young girls in the Balkans.

 

However, as there remains no internationally enforceable remedy against potential multinational corruption and when considering the power of multinational enterprises’ particularly in the developing world or even failed States, national sovereignty becomes questionable and criminal acts such as bribery of public officials and human rights abuses become increasingly possible.[17] In Bosnia and Herzegovina, for instance, following the tragedy of war and violence in the region, Dyncorp Enterprise – private security contractors – had staff responsible for the rape and trafficking of girls as young as twelve years of age.[18] Whistleblower Kathryn Bolkovac, who was deployed on a peacekeeping mission and who uncovered the scandal was instead threatened and finally dismissed, a case of unfair dismissal confirmed by the employment tribunal in the United Kingdom.[19] The staff responsible for committing the criminal act of human trafficking in the region were merely moved and have yet to be charged since any remedy to such crime is based on the State’ duty to protect, evidently an issue when considering failed states, along with little explanation on what the State – being the United States in the case of Dyncorp Enterpise – has in regulating such criminal behaviour. Pressuring states is not uncommon even in developed countries, with international tobacco corporations pursuing action against Australia in Philip Morris v Australia. Whilst it is clear Australia’ aim is to protect human health and safety through plain packaging as an investment procedure toward the reduction of preventable deaths,[20] Philip Morris Asia disputed the change by claiming breaches to provisions in trade agreements with Hong Kong. “The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.”[21]

Accordingly, along with the International Court of Justice and the World Trade Organisation’ Dispute Settlement function,   to place pressure to legislate domestic human rights avenues such as sanctions and – certainly dependent on the circumstances of the State in question – military force are used as coercive methods to prompt pressure on the countries in question. The economic opportunity that multinational entities bring to States can be employed as part of this method to endorse sustainable development, defined as: “[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[22] If one considers the responsibility that MNC’s have as inadvertently contributing to human rights violations by supporting third-party organizations that commit such crimes, their capacity to ensure that their supply chain remains free from any such abuse would conversely promote human rights obligations. The reliance that some States have on MNC’s can opportune legal and procedural changes for the better. The attention to the global failures from MNC’s in developed countries have led to valuable growth in the dedication for goods and services that promote fair and equitable conditions. For instance, foods including coffee, chocolate and other produce that contain the Fairtrade logo are steadily being promoted as a method to advocate proper labour conditions in developing countries. This can be similarly seen in Fair Wear ensuring the apparel industry adopts similar trademark assurances for consumers who desire to purchase items of clothing in confidence that workers are not exploited along with ethical diamonds and gemstones purchased as a preventative measure against the violence and slavery in mines. After extensive campaigning and lobbying by Greenpeace and other environmental activists against tissue paper company Kimberly-Clark for clear cutting endangered forests,[23] the company has agreed to approach the acquisition of required materials utilising an environmentally sustainable approach. Inter-organisational empowerment programs where negotiations between NGOs and MNCs is developing significant changes to the not only the exploitative practices of the latter, but also develop sustainable standards that promote a commitment to human rights and environmental protection.[24]

However, as goods and services are becoming regulated, reliance on petroleum in the developed world and access to lifesaving medications through the pharmaceutical industry in the developing world still remains difficult to challenge with jurisdictional restrictions failing to impose accountability laws for any violations that may be perpetrated. However, domestic courts in the Australia, the UK and the USA have developed processes that allow them to accept international cases and in turn impose penalties and responsibilities for violations for acts committed on foreign soil.[25] The Aliens Tort Claims Act 1789 (ACTA) was established in the late eighteenth century to tackle the problem of pirates and granted non-US citizens the capability to bring a law suit to the US District courts for civil cases that may have occurred anywhere in the world by individuals or organisations that contravenes treaties the United States is a signatory of.[26] Dormant for over a century, Filártiga v. Peña-Irala[27] raised the statute to the fore; the landmark case found the Filártiga family suing former state official Américo Peña for the torture and violent death of Joelito Filártiga by Peña while they both lived in Paraguay.[28] The Filártiga family won the suit and found Peña had violated international human rights laws. The question of whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business may appear clear, however the circumstances and the scope of responsibilities in the international arena still remain convoluted. Whilst accountability mechanisms and guidelines as mentioned earlier do exist, depending on the State in question, enforceability is often reliant on existing domestic laws and agreements particularly relating to labour rights, environmental protection and other safety legislation. While the United States established the Aliens Torts Claim Act 1789 that allows domestic laws to be used as a remedy for extraterritorial abuses, including the recent tort case against Chocolate company Nestle. Global Exchange and several former child slaves brought a class action suit against Nestlé, Archer Daniels Midland and Cargill who sourced cocoa from the Ivory Coast in Africa where children who had been captured from Mali were enslaved on the plantation farms. It is alleged they had breached the Aliens Torts Claim Act 1789 with the United States Supreme Court confirming that the case had justifiable merit.[29] This comes after a report from Save the Children in Canada that purports that over 15,000 children from Mali were sold into slavery in the Ivory Coast,[30] in addition to UNICEF’ study that almost 200,000 children are trafficked yearly along the West Coast of Africa.[31] Accordingly, the company was aware of the use of children and instead offered financial assistance so as to source the cheapest cocoa and thus, by extension, should be held accountable for the slavery. This comes after the company itself agreed that forced labour was being used in Thailand with supply chain company Thai Union with which it does business for its Fancy Feast cat food product.[32] “A report commissioned by Nestle SA found that impoverished migrant workers in Thailand are sold or lured by false promises and forced to catch and process fish that ends up in the global food giant’s supply chain.”[33]

While Nestle had in fact admitted to their failure following the report they commission with company Verité – a business that attempt to ensure transparency in supply chain processes – which exposes the developments for MNC’ to internally become more behaviorally responsible, nevertheless the company itself is tainted with a history of human rights abuses being one of the most boycotted companies in the world.[34] During the 1980’s, Nestle was found to have promoted the use of baby formula in Africa over breastfeeding, the latter of which civil society groups encouraged due to evidence of better nutrition and antibodies present in the milk.[35] As a consequence, the socioeconomic conditions of mothers in developing countries who, being impoverished and thus the costs associated with purchasing the baby formula taking a large portion of the family’ income, mothers began to dilute the powder in order to stretch the use.[36] With no other information supplied to them other than the marketing that baby formula was better than breast milk, infant mortality in the region was exasperated particularly due to the poor sanitary conditions of the water used in the formula. This resulted in the World Health Organisation developing a Marketing Code,[37] whereby, “[r]ecognizing further that inappropriate feeding practices lead to infant malnutrition, morbidity and mortality in all countries, and that improper practices in the marketing of breast-milk substitutes and related products can contribute to these major public health problems.”[38] Sporting giant Nike, with an annual turnover of more than $US27 billion, became well known for being linked to deplorable labour conditions or ‘sweatshops’ throughout South East Asia and Latin America. Business magnate Phil Knight outsourcing the manufacturing of the apparel to countries that offered cheap labour and instead poured much of its financial resources toward the adoption of a strong marketing strategy.[39]

Thus the success of the business has been built on abysmal working conditions for many labourers in developing countries, earning notoriously low salaries [at about 20 cents per hour][40] where such transnational sourcing of cheap labour supplanting the opportunity for human rights abuses. While Filártiga v. Peña-Irala certainly paved the way for justice against human rights abuses, the problem of jurisdiction and the examination of liability is central to the problem of multinational enterprise’ and gross negligence. One of the primary issues being whether a multinational enterprise can be held responsible for private non-state perpetrators. In Kadic v. Karadžić[41] where Ms. Kadic filed a suit against Radovan Karadžić for rape camps in Bosnia, it was confirmed the district courts were willing vis-à-vis the Aliens Torts Claims Act 1789 to cover private, non-state actors.[42]

Taking a comparative approach to the question of who should bear the responsibility for violations of human rights perpetrated by entities with which it does business, the concept of vicarious liability – a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties to act on their behalf that I have previously discussed in a post here – can insist the responsibility of MNC’ supply chain management. As a legal term, vicarious liability ensures that employers are responsible for any negligible behaviour that occur within the workplace and not just by employees, but also agencies and contract workers. “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[43] It was generally viewed that independent contractors who are assigned specific duties for a company were in principle in business for themselves and thus responsible for any incident or damages that may occur during the contract, however the growth and ultimately changes to employment structures and processes prove employers are responsible for the negligent acts by independent contactors.[44] In Doe v Unicol Corp [45] it was confirmed that corporations can be held responsible for working in concert with state officials, whereby companies are not necessarily immune from the scope of international law.[46] The pipeline project in Burma under the management of Unicol Corp [Union Oil Company of California], where the plaintiffs whilst building off-shore drilling stations in the Andaman Sea intended to build a pipeline through the Tenasserim region of Burma into Thailand found the Myanmar military units or State Law and Order Restoration Council (SLORC) – hired to manage security during the project – for committing gross human rights violations against villagers in the region.[47] This included torture, rape, forced labour and forced relocation[48] where it was alleged that Unicol was aware of these acts of human rights violations and had the capacity to prevent or stop the atrocities.[49]

“According to plaintiffs, when Unocal and Total entered into the agreement by which SLORC undertook to clear the pipeline route and provide security for the pipeline, defendants knew or should have known that SLORC had a history of human rights abuses violative of customary international law, including the use of forced relocation and forced labor… [p]laintiffs assert, on information and belief, that defendants Unocal and Total   were aware of and benefitted from, and continue to be aware of and benefit from, the use of forced labor to support the Yadana gas pipeline project.”[50]

This reasoning is similarly seen in cases for alleged criminal behaviour by individuals in military courts vis-à-vis the doctrine of command responsibility, particularly the case of U.S Army Captain Ernest Medina in Vietnam. What has become notoriously known as the Mai Lai Massacre,[51] taking place in a hamlet in Southern Vietnam where over five hundred unarmed civilians – including women and children – were brutally murdered, raped and mutilated by US soldiers in one day of carnage,[52] only one court-martial conviction against Second Lieutenant William Laws Calley Jr. for ordering the murders of the civilians was made and even so, through a presidential pardon his life imprisonment was overturned to several years of house arrest.[53] Accordingly, Calley claimed that he was acting on orders given to him by Medina, who during the massacre chose not to intervene and was nevertheless acquitted of any crime during his trial.[54] While it is clear that the case of Mai Lai is violations of the laws and customs of war and can be constituted as war crimes and devastation not justifiable as necessary, the question of who is responsible for preventing, repressing or failing to take reasonable measures to prevent crimes against humanity, as is applicable in Rule 153 of Customary International Humanitarian Law: “Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”[55] In the case of Doe v Unicol Corp, holding corporations liable for aiding and abetting crimes by applying international law, the courts utilised two ‘tests’ that attempted to ascertain liability, namely that of actus reus and mens rea,[56] whereby, “accountability for a certain harm because of objective (actus reus) and subjective (mens rea) criteria”[57] and to thus identify criminal responsibility. Whilst the scarcity of sources relating to the liability of aiding and abetting in international law, both actus reus defined as “the wrong act”[58] in Latin and is the actual physical act, along with mens rea or “a guilty mind” and the subjective mental state of mind have been utilised at the Nuremburg Trials and the International Criminal Tribunals for both the Former Yugoslavia (ICTY) and Rwanada (ICTR). Accordingly, the judgement of Prosecutor v. Anto Furundžija, it was stated that to establish actus reus, “the cases which follow indicate that in certain circumstances, aiding and abetting need not be tangible, but may consist of moral support or encouragement of the principles in their commission of the crime.”[59] That is, that the likelihood and extent of the crime indirectly increases in effect of their behaviour.

 

Exxon Mobil hired security forces that committed acts of torture and murder. Does that make them responsible?

 

In Doe v Exxon Mobil, a group of Indonesian villagers from Aceh filed a lawsuit against oil company Exxon Mobil Corporation where the plaintiffs held that the company had hired security forces that committed human rights abuses against members of the village including torture, kidnapping, arbitrary arrests and murder.[60] It is thus alleged that the company’ negligent hiring and supervising of the security forces carries responsibility since they indirectly facilitated the violence. A multinational enterprise’ purpose is to ‘advance their own economic interest’ and doing so with entities that perpetrate human rights violations expose their indirect contribution to negligence and thus by extension contributory to the harm suffered. Thus, the question is, how far does the scope of responsibility extends? As instantiated at the beginning, whilst we are aware of the rights of the human person, corresponding and equally as significant are our obligations.

It cannot be denied that particular MNC’s certainly have an influential capacity over governments, policies and politics in general. Fox News’ Rupert Murdoch, despite the notorious international phone hacking privacy breaches by News Corp, is an example of the power and influence an MNC can have with governments. The media mogul recently tweeted a series of comments regarding the Turkish elections, his controversial   relationship with the Erdogan government along with his acquired television and media rights in the country have raised concerns about his capacity to have an influence on social decision- making in the country. “Almost everywhere in the world, most of the media is still politically differentiated along with general political orientations.”[61] Whilst it is clear that media liberalisation is essential for democracy and thus by extension human rights, suspicions that the Turkish press had been infiltrated by centre- right political influence was solidified with the recent Gezi Park Protests in Istanbul, a story rarely mentioned on popular television broadcasters owned by Murdoch in Turkey during the tumult. The AKP in addition has attempted to strengthen legitimacy by showcasing popular domestic support and falsely representing themselves as significant actors of democracy, it is evident that media representation of the party is one-sided with Turkey becoming notorious for arresting journalists and restricting the independence of journalism and the media, social media becoming an expressive platform to expose the discontent displayed by the population. Notwithstanding the case against Nestlé, Archer Daniels Midland and Cargill, a plethora of other tort litigations have nevertheless been rejected under the Aliens Torts Claim Act 1789 due to forum non conveniens, whereby the legal system of the country in question is adequate to pursue the case independent of the United States. Yet, often the laws particularly of developing countries remain deficient particularly if the sovereignty or governance of the State remain dependent on the investment and thus coverage of the areas of potential abuse by MNC’s is often insufficient to merit legal action. With a yearly revenue of more than $US120Billion, petrochemical company Chevron Corporation is an example of how a multinational organisation plays an instrumental role in environmental destruction and   human rights abuses. Their   notoriety   is perhaps more prominent in Ecuador, whereby the subsidiary Texaco had dumped millions of gallons of toxic bi-products over several decades causing not only serious environmental contamination that has resulted in ocean acidification and producing the drastic global changes with global warming and other effects.[62] In addition, the indigenous communities were struck with terminal illness and death due to the poisonous corruption of the local water system. “The company dumped untreated crude oil into open and unlined pits, from which toxic chemicals then leached into water system and through the soil of village lands.”[63]

Litigation against the multinational company by a group of Ecuadorian citizens in 1993[64] and was later dismissed by the Federal Court almost a decade later due to forum non conveniens whereby the complaint could be adequately served in Ecuador.[65] A similar case against Union Carbide Corporation in India that found thousands killed or seriously injured for the leak of methyl isocyanate gas,[66] whereby the State District Court of New York dismissed the case purporting that India had an adequate forum to launch legal proceedings against the disreputable company. This raises the question of extra-territorial tort proceedings. In 2006, Chevron filed for an international arbitration claim at the Hague claiming that the Government of Ecuador violated a bilateral investment treaty with the United States,[67] purporting that the 2003 class action against the multinational in Ecuador had been corrupted by influencing the judiciary, with the arbitration panel ruling in favour of Chevron that requested the suspension any enforcement until compliance with an Interim Measures Order had been met.[68] Criminal proceedings are still underway at the International Criminal Court against CEO of Chevron[69] for ignoring the requirement to clean the toxic waste in the Amazon and while a tumultuous case at the Ecuadorian Supreme Court that imposed damages of almost $US10 Billion[70] against the company, blatant disregard of their responsibilities is clearly manifest even on their website that states: “Chevron is defending itself against false allegations that it is responsible for alleged environmental and social harms in the Amazon region of Ecuador.”[71]

Whilst I have tried to elucidate in different sections of this blog post relating to what type of enforcement mechanisms could be used for human rights violations, including domestic laws and better approaches between MNCs and NGOs that negotiate sustainable frameworks that safeguard human rights principles as applicable in international law, therein nevertheless exists obstacles to these enforcements. It is clear that the United Nations and other national and international bodies are focusing on more effective methods to reduce MNC crime, whereby in 2003 the U.N Sub-Commission on the Promotion and Protection of Human Rights implemented the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights that detailed business obligations and to a degree ensured clarity that businesses must ensure their obligations to human rights has been met. Prior to that, Kofi Annan whilst addressing the World Economic Forum proclaimed the Global Compact initiative that encouraged businesses to ensure the adoption of internal policies and procedures that ensured a sustainable approach to human rights. Combined efforts developed the draft norms that attempts to solidify business compliance in a legally binding set of principles and avoid MNCs from being complicit to human rights violations. Nevertheless, whilst these norms begin the process of developing into a binding treaty, organisations such as the International Organization of Employers opposed the draft norms.[72] In fact, hostilities to the framework as a remedy were rejected even by States including Australia, UK and the United States.[73] The guidelines themselves, as stated in the preface, “encourage the positive contributions that multinational enterprises can make to economic, environmental and social progress and to minimise the difficulties to which their various operations may give rise.” Whilst voluntary in character, the general principles and policies with a context of their global application, ensure not just sustainable development and supply chain responsibility, but also calls for the establishment of local capacity building procedures. Such encouragement could certainly have a long-term, normative impact particularly as a preventative measure against any social or environmental risks via the encouragement of ensuring they are combating any adverse practices that motivate corruption, violence and other abuses that impact on society and the environment. It is therefore foreseeable that the guiding principles may have a normative effect in resulting behavioural changes. This is followed with the recent adoption of resolution 26/9 on the 26th of June, 2014 that sought to develop working group on MNEs and other businesses to mandate internationally legally binding instrument that will officially regulate corporations inclusive of States and non- State and private actors. These negotiations are underway and it is clear that internationally enforceable mechanisms to ensure compliance to human rights norms – whilst yet to be achieved – nevertheless is certainly developing toward processes that places duties directly on not only States but also private, non- State entities and multinational corporations.

There are also other tactical advantages that can be utilised against MNC’s to place pressure for the adoption of internal policies and procedures that will result in an overall behavioural change that safeguards rights. The demands of consumers themselves are changing, with companies adopting the purchase of ethically sourced products, for instance the multinational company Starbucks who has adopted a sustainable strategy known as C.A.F.E [coffee and farmer equity] for ethically sourced coffee, tea and cocoa.[74] Additionally, the company also has ensured that farming communities linked in any way to their supply chain are managed by working closely with Conservation International, in addition to re-forestation projects.[75] Organisations like Conservation International and Amnesty International are adopting preventative strategies that build or strengthen relationships with MNC’s as well as developing frameworks76 that supplant compliance through collaboration. In addition, the implementation of sanctions to pressure States to ensure compliance to human rights has also been an effective method that promotes change.

“Sanctions imposed in the past, such as those imposed during WWII, the trade and financial sanctions against China, the Iran hostage sanctions, and the ongoing Iraqi sanctions, have been very effective means of achieving well- defined foreign policy objectives. Whether imposed for such broad policy reasons or in response to specific human rights concerns, sanctions usually, and perhaps inevitably, involve an immediate human cost within the target state. Short of abandoning sanctions as foreign policy tools, however, there is probably no practical way to ensure that sanctions both narrowly affect only the targeted state actors and still remain effective.”

However, sanctions can also work in reverse. In 2011, France began a process of approving of a Bill that would recognise the acts committed during the last phase of the Ottoman Empire prior to its dissolution against the ethnic Armenians as ‘genocide’ where more than 1.5 million died during a process of ethnic cleansing, an accusation the Turkish government staunchly opposes.[77] In response to the potential legislation, Turkey applied numerous sanctions particularly relating to trade agreements and reprisals against multinational entities located in Turkey from France that it is assumed the potential law was struck down due to the dwindling relationship between both States.[78] Whatever the case is, it appears that at this very moment, international law is ineffective in controlling the free-reign that multinational corporations enjoy and the only real preventative measure is the effects civil society can employ through boycotting sales of the products that they make or purchase through the international supply chain. This would mean that “hippies” who care about our environment and human rights activists that have fought corrupt companies by exposing such atrocities are in effect the champions of change as in doing so, Fair Trade products have come to fruition among many more. Thus the biggest change possible is by stopping the use of products that are damaging communities and the environment in developing countries by the people spending the money in countries like mine; we all have the blood on our hands and thus it is all our responsibility.

 

1 George Ginsburgs and Vladimir Nikolaevich Kudriavtsev, The Nuremberg Trial and International Law, Martinus Nijhoff Publishers (1990) 62
2 Ibid., 64
3 Nuremberg Trials Final Report Appendix D, Article II of the Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity
4 Juliet Okoth, The Crime of Conspiracy in International Criminal Law, Springer (2014) 94
5 Universal Declaration of Human Rights (1948). Also see Vienna Declaration and Programme of Action (1993).
6 Javaid Rehman and Susan Breau, Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices, Brill (2007) 14. In Article 5 of the Vienna Declaration, it states: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
7 §1(1) UN Guiding Principles on Business and Human Rights (2011)
8 Benedetto Conforti and Angelo Labella, Introduction to International Law, Martinus Nijhoff Publishers (2012) 33
9 See GFCC, Judgment of the Second Senate of 18 July 2005 – 2 BvR 2236/04 -paras. (1-203)
10 Organisation For Economic Co-operation and Development, Multinational Enterprises of the Organization for Economic Co-operation and Development (2008)
11 Ibid., 12
12 A/RES/S-6/3201 Declaration on the Establishment of a New International Economic Order. Also   see 3202 (S-VI) Programme of Action on the Establishment of a New International Economic Order (1974)
13   International Labour Organisation, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (2014)
14 United Nations Set of Principles and Rules on Competition: The Set of Multilaterally Agreed Equitable Principles   and Rules for the Control of Restrictive Business Practices TD/RBP/CONF/10/Rev.2 (2000)
15 Ibid.
16 Tax Laws Amendment (Tax Integrity Multinational Anti-Avoidance Law) Bill 2015, Exposure Draft Explanatory Materia. See: http://www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/Consultations/2015/Tax%20Integrity%20Law/Key%20Documents/PDF/EM_Tax_Integrity_Multinational_Anti-avoidance_Law.ashx
17 It is for this reason that legislation such as Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) was developed.
18 Carissa A. Rarick, “Fighting War and Furthering Slavery: The Alarming Truth About Private Military Firms and the Solution to End Their Involvement in Human Sex Trafficking,” Journal of Global Justice and Public Policy [Vol. 2/65]
19 Human Rights Watch, ‘Bosnia and Herzegovina Hopes Betrayed: Trafficking of Woman and Girls to Bosnia and Herzegovina for Forced Prostitution’ [Vol 14:9] 55
20   In addition, the WTO   Dispute Settlement Body received five primary complaints from Honduras, Indonesia, Cuba, Ukraine and the   Dominican Republic with an excess of 40 third-party complaints, the ruling expected to be finalized later this year.
21   §44 Australia’s Response to the Notice of Arbitration, Under the 2010 Arbitration Rules of the United Nations Commission on International Trade Law
22 Report of the World Commission on Environment and Development: Our Common Future. Document A/42/427
23 Mandy Haggith, Paper Trails: From Trees to Trash: The True Cost of Paper, Random House (2008) 46
24   Michael Yaziji and Jonathan Doh, NGOs and Corporations: Conflict and Collaboration, Cambridge University Press (2009) 151
25   Joseph, Sarah, ‘An Overview of the Human Rights Accountability of Multinational Enterprises’, in Kamminga, Menno T, and Zia-Zarifi Saman (eds), Liability of Multinational Corporations under International Law (Kluwer Law International, The Hague 2000) 78. Also see Menno Kamminga, ‘Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC,’ The EU and Human Rights OUP (2000) 565
26     Muzaffer   Eroglu,   Multinational   Enterprises   and   Tort   Liabilities:   An Interdisciplinary and Comparative Examination, Edward Elgar Publishing, 1 Jan. 2008, 124
27 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
28 Op. Cit., Eroglu 124
29 The United States ratified the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. See Michael Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law Through US Torts Law, Martinus Nijhoff Publishers (2009) 139.
30 Theodore Harney MacDonald, The Global Human Right to Health: Dream Or Possibility? Radcliff Publishing (2007) 89
31 Jonathan Cohen, Togo, Borderline Slavery: Child Trafficking in Togo Human Rights Watch (2003) 8
32 The Associated Press, Fishermen Slaves: Human Trafficking and the Seafood We Eat, Mango Media Inc., (2016)
33 Ibid.
34 Anna Hutchens, Changing Big Business: The Globalisation of the Fair Trade Movement, Edward Elgar Publishing (2009) 77
35 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
36 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
37 International Code of Marketing of Breast-milk Substitutes, World Health Organization, Geneva, 1981
38 Ibid.
39 K. Aswathappa, International Human Resource Management, Tata McGraw- Hill Education (2007) 293
40 Andrew Delios and Paul W. Beamish, International Business: an Asia Pacific Perspective, Pearson/Prentice Hall (2004) 300
41 Kadic v. Karadžić 70 F.3d 232 (1995).
42 Ibid.
43 John G. Fleming, An Introduction to the Law of Torts, Clarendon Press (1985) 410
44 Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
45 Doe v. Unocal, 395 F.3d 932
46 Op. Cit., Eroglu, 124
47   Sarah Joseph, Corporations and Transnational Human Rights Litigation, Bloomsbury Publishing (2004) 69
48 Daniel Aguirre, The Human Right to Development in a Globalized World, Ashgate Publishing, Ltd., (2008) 259
49 Doe v. Unocal, 963 F.Supp.880 (C.D Cal. 1997)
50 Ibid.
51 William Thomas Allison, My Lai: An American Atrocity in the Vietnam War, JHU Press (2012) 43
52 Carl Boggs, Masters of War: Militarism and Blowback in the Era of American Empire, Routledge (2013) 209
53 Valerie Plaza, American Mass Murderers (2015) 84
54 United States v. Captain Ernest L. Medina (1971)
55 Rule   153,   Customary   International   Humanitarian   Law,   “Command Responsibility for Failure to Prevent, Repress or Report War Crimes”
56 John Cheverie, United States Court Finds Unocal May Be Liable For Aiding and Abetting Human Rights Abuses in Burma, Human Rights Brief (Vol 10:2) 2002
57 Kai Ambos, Treatise on International Criminal Law: Volume 1, OUP Oxford, (2013) 100
58 Beth Walston-Dunham, Introduction to Law, Cengage Learning (2011)
59 §199 Furundžija (IT-95-17/1)
60   John G. Dale, Free Burma: Transnational Legal Action and Corporate Accountability, U of Minnesota Press (2011) 248
61 Rasit Kaya and Baris Cakmur, “Politics and the Mass Media in Turkey,” Turkish Studies, (Vol 11:4) 521-537, December 2010
62 Marylee Stephenson, The Galapagos Islands and Ecuador, 3rd Edition: Your Essential Handbook for Exploring Darwin’s Enchanted Islands, Mountaineers Books, 28 Sep. 2015
63 Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital, Cambridge University Press (2013) 141
64 Aguinda v. Texaco, Inc. 33 ELR 20010
65 Aguinda v. Texaco, Inc. 33 ELR 20010
66 Malcolm J Rogge, Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in Re: Union Carbide, Alfaro, Sequihua, and Aguinda, Texas International Law Journal, Texas International Law Journal [VOL. 36:299] 2001
67 Almut Schilling-Vacaflor, New Constitutionalism in Latin America: Promises and Practices, Routledge (2016)
68 They also held proceedings in a separate case claiming that Ecuador breached the Investment Agreement and the Settlement Agreement between Texaco and the State.
71 https://www.chevron.com/ecuador/
72 Criminal Justice in International Society By Willem de Lint, Marinella Marmo, Nerida Chazal, Routledge (2014) 238
73 Ibid.
74 Cheryl J. Baldwin, The 10 Principles of Food Industry Sustainability, John Wiley& Sons (2015) 29
75 Ibid.
76 Kinley, David; Joseph, Sarah — “Multinational corporations and human rights: questions about their relationship” [2002] AltLawJl 3; (2002) 27(1) Alternative Law Journal 7
77 Note that it is actually illegal in Turkey to claim that there ever was an Armenian Genocide. The Bill itself in France would have made it a criminal offence if one denied that there was a genocide.
78 Evangelia Axiarlis, Political Islam and the Secular State in Turkey: Democracy, Reform and the Justice and Development Party, .B.Tauris, (2014) 126

What Is Ideology?

With the continuous discourse on ideology that is often accompanied by words such as terrorism, globalisation or imperialism, the definition is not only ambiguous but has an unsavoury association to other terms that are themselves vague. Indeed, there certainly exists an adverse meaning to ‘ideology’ as being a belief system that legitimises a doctrine for violence and subordination. But what exactly is ideology? An ideology is said to be, “[a] cultural representation of the social order that makes this order seem immutable and supremely legitimate… placing it beyond change by human agencies, outside the history of human actions and social relations, and beyond the framework of material constraints, which are its ultimate determinants.”[i] According to Karl Marx, ideology or the superstructure is a conceptual method of social organisation. The collective are enticed into believing in ideological and material values, the latter of which is merely invented by the bourgeois; the oppressed are thus inadvertently supporting the ruling class’ domination. “Everyone believes his [bourgeois] craft to be the true one… [i]n consciousness – in jurisprudence, politics, etc. – relations become concepts.”[ii] Thus the superstructure contains a collection of historically retained ideas that legitimise the dominate classes.

Conversely, Michel Foucault analysed ideology – what he later names discourse – as a social function of truth that authenticates social stratification and hierarchical arrangements, whereby “like it or not, it [ideology] always stands in virtual opposition to something else which is supposed to count as truth.”[iii] Power in discourse can only emerge effectively when interpretation is no longer needed and is automatically processed as truth, which prompts repression and power. However, power in discourse is not always negative, but provides a pleasant and a productive network that efficiently conditions and closes the gap between politics and culture. This distinctly coincides with the superstructure, for not only are the elite exercising dominance over the masses but ideology exists because citizens desire it. Eric Hobsbawm highlighted the existence of what he referred to as the imagined national community,[iv] namely that the values set within ideological beliefs are merely invented to hold the administration of a State together by motivating a national character and providing political and social cohesion. “Politics is so deeply rooted in the native genius of each nation that the continuity of separate political traditions constantly resist the levelling forces at work in the social and economic spheres of modern life.”[v] However, this does not make the nation ‘unreal’ but should instead be viewed as a concept that enables, “[e]xperience and the interpretation of the world.”[vi]

Ultimately, power requires recognition.

The relationship between power and identity is most obvious in the new concept of the nation: the nation, first as a community of equal individual citizens and then as a community founded upon a shared culture, becomes the legitimate locus of power… strategically, identity not only legitimizes power but provides also an effective instrument for mobilization.[vii].

The legitimisation of ideological constructs often involve Othering or the proposition that x is more legitimate than y within essentialists categorisations, which is the view that all properties in an entity must contain the same attributes. Jean-Paul Sartre claims that the anti—Semite creates the ‘Jew’ by becoming an object representing what is loathed and thus causally becoming the very purpose or reason for his being and identity.[viii] The belief in the existence of properties or characteristics that are either universal or essential consequently legitimises these properties that are apparently eternally fixed. For instance, if the properties in x are eternal or essential, than it must be that the properties in y are not and in such instances, the legitimisation of x leads to the domination or subjugation of y. Membership thus requires the acknowledgement that certain properties within the entity are eternal or essential, leading to recognition and thus power.

Nevertheless, subjugation is not always violent and can contain positive elements that are tolerated even by those being subjugated.[ix] As an instrument for political and social development, the ideological attitudes to modernisation have often been used as an apparatus in Turkish political rhetoric. Ziya Gökalp, a Turkish sociologist and political activist who influenced Mustafa Kemal Atatürk, claims that there are two functional processes of modernisation that have caused such massive structural changes in society. “The first was in culture-nations (Durkeim’s term for societies) where the advanced division of labor was creating an occupational group structure in which individuals were incorporated… the second level was that of civilisation, which Gökalp saw as the supranational grouping to which different nations belonged and in which they related.”[x] Atatürk believed that secularisation and modernity will gradually relegate the position religion has in both politics and society, yet, along with many secularists, this imagined interpretations of the possible future has thwarted the possibility of understanding alternative social and political processes. Instead, radical fundamentalism and religious and cultural revivalism are interpreted as a retrograde condition where people are reverting back to the old and inferior position because of their failure to adapt to the precipitating social transformations.

“The sense that religion has no place in contemporary politics is evidence in common claims that people “retreat” or “take refuge” in religion to escape so-called rapid socio-political change. The implication of this language is the theopolitical actors and movements are at odds with historical necessity (almost pathologically so), and should not be as predominant as they are.”[xi] Modernity has paradoxically increased the vitality of religion. Originally thought to be unsympathetic to culture and society, globalisation has instead provided the room for religious and cultural development. Andrew Davison labels this as interpretative perplexity; what we once thought to be clear becomes more perplexing than originally presumed.[xii] Davison attempts to analyse the meaning behind these political prejudices (made especially by political scientists who engage in policy assessment), particularly the convincing idea of historical development and the saturation process of social and political globalisation. Prejudices regarding the apparent direction of secularism have interrupted a better comprehension of theopolitics (theocracy) in contemporary political discourses.

Instead of acknowledging these prejudices and attempting to work comparatively, political theorists and scientists have adopted methodological attitudes that only justify secularisation. Thus, using hermeneutics to explain the interpretation of political language and the deeper expressive meanings behind these interpretations, Davison references Hans-Georg Gadamer’s idea that prejudice guides interpretation.[xiii] Though some have argued that cultural change and development through global expansion and modernity threatens the existence of past traditions and long-established customs, others maintain that it is a necessary historical process that improves the conditions of society. “[P]atterns of behaviour identified as modern tend to prevail over those considered to be traditional… when universalistic norms supersede particularistic ones.”[xiv] Emile Durkeim was an early figure who sought an understanding of the function and significance religious has vis-à-vis maintaining the balance of society. Structural functionalism is a social systems paradigm that analysis how smaller elements in society play a functional role in the whole of the social system.

According to Durkheim, collective representations are conditioned ideals, a type of intellectual and emotional semiotic interaction within a group or society that legitimise shared historical meaning. “It is also a symbolic resource: an actor who does not conceive of him/herself as a link to an historical chain cannot elaborate a discourse of legitimization or a teleological vision that gives a sense to his actions’ he/she cannot give a meaning to his/her present combats.”[xv] According to Lowell Dittmer, symbols transcend objective interpretations and are no longer dependent on referential meaning, thus extending space and time.[xvi] Symbols become the autonomous link between a political structure and political psychology, whereby “[s]ymbols tend to merge with ‘language’ on the one hand and with the substantive ‘reality’ that language represents on the other.”[xvii]

Semiotics expose features of cultural symbolism and the interaction with belief-systems since group symbols can illustrate peculiar features that the materialist approach to social analysis may not achieve. It can provide a useful introduction to the influences and properties of a given culture by reducing communication to symbolic exchanges. “Although it is legitimate to treat social relations – even relations of domination – as symbolic interactions, that is, as relations of communication implying cognition and recognition, one must not forget that the relations of communication par excellence – linguistic exchanges – are also relations of symbolic power in which the power relations between speakers or their respective groups are actualized.”[xviii]

While Sartre believed that all people are essentially free and are built by nothing but the choices that they make, identity and recognition plays a pivotal role in current political and social dynamics that therefore makes it wholly deterministic. This dichotomy between individuality and the deterministic social environment is that the latter can facilitate the decision making process and since individuality or freedom is isolating and thus fearful by extension, or at the very least the co-deterministic environment substantiates this fear of individuality so as to endorse conformity, what eventuates is the diminishment of one’s humanity.[xix] To overcome this fear and escape from freedom, the individual makes one choice and that is to submit to the precipitating social environment; thus identity becomes symptomatic of this conformity and ‘being’ or individuality becomes unconscious and identity inauthentic. This is particularly effective in a social environment that lacks agencies that support individual autonomy, such as education and justice. Thus prejudice becomes a product of this dynamic between the individual and society and is utilised as a socio-communicative tool to interpret the dialectic of nature and historical determinism, albeit the formula is paradoxically detrimental to a just social environment since state legitimacy can be undermined by exclusive identity politics and antagonising relations between citizens and the state.

[i] J. Oppenheimer, “Culture and Politics in Druze Ethnicity”, 1:3 (1977) 623
[ii] Karl Marx, The German Ideology (Moscow: Progress Publishers, 1976) 101
[iii] Paul Rabinow, The Foucault Reader (London: Penguin Books, 1984) 60
[iv] E.J. Hobsbawm, Nations and Nationalism Sine 1780: Programme, Myth, Reality (New York: Cambridge University Press, 1990) 159. See Also Benedict Anderson’ ‘Imagined Communities’
[v] Lucian W. Pye and Sidney Verba, Political Culture and Political Development (New Jersey: Princeton University Press, 1998) 111
[vi] Martin Sokefeld. Struggling for Recognition: The Alevi Movement in Germany and in Transnational Space (New York: Berghahn Books, 2008) 22
[vii] Ibid., 29
[viii] Jean-Paul Sartre, Anti-Semite and Jew: An Exploration of the Etiology of Hate
[ix] Martin Sokefeld, op. cit., 30
[x] Andrew Davison, Secularism and Revivalism in Turkey: A Hermeneutic Reconsideration (New Haven: Yale University Press, 1998) 111
[xi] Ibid., 2
[xii] Davison, op. cit., 114
[xiii] Hans-Georg Gadamer is a German philosopher who wrote Wahrheit und Methode (Truth and Method).
[xiv] Pye and Verba, op. cit., 12
[xv] White and Jongerden, op. cit., 13
[xvi] Lowel Dittmer, “Political Culture and Political Symbolism”. World Politics 29:4 (July, 1977) 577. To extend space and time is to emotionally – rather than rationally – accept words to be true even if it is clearly to be proven false, i.e. Holocaust deniers.
[xvii] Ibid., 558
[xviii]Pierre Bourdieu and John B. Thompson, Language and Symbolic Power, Harvard University Press (1991) 37
[xix] Jean Paul Sartre, Critique of Dialectical Reason

Semiotics and Political Legitimacy

In the Book of Matthew, the disciples question why Jesus spoke to the people in parables, for which he responded with, “Because it is given unto you to know the mysteries of the kingdom of heaven, but to them it is not given… Therefore I speak to them in parables: because they seeing, see not; and hearing, they hear not, neither do they understand.” Let us assume for a moment that since the kingdom of heaven is the location for those morally worthy (the loving and virtuous) and awareness of these mysteries of the kingdom of heaven is moral consciousness that enables access to subjectively  understand love and virtue, indirect communication using parables or stories that illustrate moral lessons enable us to digest and gradually form a narrative that articulates this moral consciousness. For us to ‘see’ the value of morality without feeling confronted or overwhelmed as one would when our own personal actions of wrongdoing are directly demonstrated. A parable is a story that contains a symbol that prompts our imagination to find meaning of this symbol vis-à-vis our own interpretations of the external world, the choices we make, the perceptions we have; it is an internal process that validates the motivation and the will to conduct ourselves parallel to this symbol.

Unlike Hermeneutics that is concerned with the methodological application of interpreting text, discourse and art, Semiotics captures the complex relationship between our interpretation of a sign and the meaning and significance this interpretation has to the structure of our representations. A sign is the medium that enables us to attach significance as we interpret certain features and mediate an effect that vehicles our understanding. Immanuel Kant in his Critique of Pure Reason discusses a concept known as Transcendental Idealism, whereby objects are merely appearances in relation to our temporal and spatial experience of the external world and that we can “only cognize that we, in principle, only intuit.”[1] When a person looks at an object, how is meaning constructed? For linguist Ferdinand de Saussure, the most sophisticated interpretive tool we have is language, however syntax and semantics are a part of a broader system that examines meaning and form. Accordingly, the fundamental basis of a sign requires a signifier or the object and the signified or what it represents[2] and it cannot be a sign without one or the other. A red rose is a flower, but it can also signify romance and love. An image of an apple can also signify health, or temptation to evil, or even an iPhone or iPad. The combination between a signifier and the signified (though arbitrarily linked) is psychological rather than a substance that illustrates a recognisable association predisposed by an assortment of sociocultural and religious connotations and denotations. A logo of a brand such as Mercedes-Benz promotes an abstract intension of prestige and wealth; however the process for which this occurs is not formless, but rather linked through an association of mental constructs and sensory linguistic impressions that indirectly identify concepts or content to real-world referents. A number of anthropological, psychological, sociological, and political stimuli relationally contained within a linguistic structure motivate how we feel and perceive.

One intriguing aspect to structuralist theory is the view of negative differentiation, whereby, “[I]n a language, as in every other semiological system, what distinguishes a sign is what constitutes it.”[3] What this purports is that meaningful contrasts in relational identity of signs is explained by oppositional combinations between what one is and what one is not; two negatives that form a positive result. For instance, we differentiate through this opposition the letters of the alphabet against one another and the result is forming a word. The differences between the signifier and signified are either syntagmatic – define meaning through the narrative structure or flow – or paradigmatic – define meaning through a thematic structure or an interrelation with other subgroups – that organise our vocabulary.[4] There is no word BBBBBB and conveys how meaning is formed because of the arbitrariness of language in contrast and opposition between combinations rather than an acquisition of predefined structural categories. The question here is whether language reflects reality or whether it constructs it? Is there a fundamental unity between the signifier and the signified, or is one an authority over the other making language autonomous to reality?

Unlike Saussure, Charles Pierce divided this communication into a tripartite between the representament (signifier), object (signified) and interpretant (the sign), whereby the latter sign is utilised as a tool to translate the representament. Communication between the three is interdependent and contingent on social conventions that enable one to form order and structure to the narrative flow, with the signs themselves being symbolic, iconic or indexical. An index is representative of causally identifiable fact, while an icon is reliant on a shared quality defined by a sensory feature, but a symbolic sign contains no anchor or clear relationship with the signified and while it holds no substance or value until the subject can form such complex combinations, meaning is given to a symbol via an associative process of signification between sign and object. The broad characteristics of symbols are not identified but constructed by capturing a rather narrow and general logic consisting of social convention and other general features as well as singular variables like habits; a public speech – such as those given by Adolf Hitler – exemplify how power and legitimacy is asserted in the symbolism of the effectiveness of the display rather than the logic of the speech itself and the motivation that gives meaning to this symbol is a combination of a number of social and political conventions. As said by Erich Fromm in the Fear of Freedom:

We forget that, although freedom of speech constitutes an important victory in the battle against old restraints, modern man is in a position where much of what “he” thinks and says are the things that everybody else thinks and says; that he has not acquired the ability to think originally – that is, for himself – which alone gives meaning to his claim that nobody can interfere with the expression of his thoughts.

In an exploration of Freudian psychoanalytic thought, the relationship between the unconscious and conscious similarly engages in a discourse where the subject is confronted by the psychic processes, namely the Ego – the identification of the ‘self’ or the conscious realm – and the by the Id – the instinctual unaffected by reality or the unconscious realm. The Supergo or the identification of an ideal and moral person formed by this communication between the two psychic processes vis-à-vis the relationship a person has between their subjective experience and their experience with the external world. The structure of this narrative remains arbitrary to capture a continuum that provides the versatility that make the complex system functional, developing meaningful contrasts using negative differentiation to form a positive result, namely a morally conscious person. Jacques Lacan purports that the signifier is master over the signified[5] whereby the latter is determined by the former and governed by mental correlations with its environment. He identified a triptych of human experience between the Imaginary, the Symbolic and the Real: “’Imaginary’ is the deceptive universe of fascinating images and the subject’s identification with them: ‘Symbolic’ is the differential structure which organizes our experience of meaning; ‘Real’ is the point of resistance, the traumatic ‘indivisible remainder’ that resists symbolization.”[6] Lacan viewed the unconscious as having a language, but symbols contain a number of characteristics including the individual subjectivity and their identification within their social environment and structure that inevitably asserts an influence over the formation of any realistic narrative. This begins during childhood, whereby the lack of cognitive sophistication in children where motor and linguistic skills mature as a result of identifying and learning by mirroring, their development can potentially be thwarted where they channel the imaginative – which is a part of the structure of subjectivity and the unconscious – as a coping mechanism to articulate an identification with the external world or Other (they imagine what the other person or object is). An individual’ singular variables could be distorted by childhood experiences where they become caught in the symbolic and imaginative realm that relies on social convention, distinguishing him/herself by contrasting a relational identity with the Other and forming negative differentiation to solidify a self-identity. Discourse is thus saturated by the unconscious, the symbolic, the imaginative.

Comparatively, capitalism is only constructed by the supporting notion of the ideological position it holds and it is not a reflection of reality, but rather its reality is determined because of the legitimacy the superstructure contributes to it. Slavoj Žižek utilizes Lacanian psychoanalysis to examine ideology as a political discourse that secures public consent, however this consent must appear to be an independent expression; it is not about enslaving an ideological position, but rather enabling a distance to the portal of this identification with political life, where ideological rituals saturate social and political values and ideals that shapes the identification to the Lacanian master signifier. It is a decisive penetration of values implemented by the signifier that utilises the vulnerabilities of the unconscious or imaginative through a symbolic identification. “We make our individual contribution like the soccer fan who supports his team in front of a TV screen at home, shouting and jumping from his seat, in the belief that this will somehow influence the game’s outcome.”[7] The arbitrariness of political and ideological positions that enable political change are not necessarily an outcome of sharply changing views from A to B, but rather a type of disillusionment or disenchantment that establishes a cynicism due to a lack of credibility; when the soccer team is year after year losing games. Democracy can thus camouflage existing ideological positions and Žižek’ thought experiment on The Fisher King paints a picture of what a person, politics and indeed society would actually be should this subjective, symbolic or imaginative domain no longer dominate our identification with the external world. Following a Foucauldian view of power (see my article here) that enables a productive social matrix vis-à-vis this negative differential with the Other, legitimacy or authority is narrated through claims of individual capacity to act as an authority or ruler; a person cannot just label themselves as a ruler but must articulate why they are capable above all else to be a ruler.[8] Hitler, notwithstanding his clear methods of cutting any opposition was nevertheless democratically elected as he narrated an Aryan struggle of the Germanic people – a highly imaginative symbol – together with his position to transform this condition by coherently proving why they are the key person or key political party to enable this.

We identify and understand formal categories under the structure similar to Kant’ transcendental object, namely that we intuit representations of objects through the thing-in-itself or the pure concept as interpreted a priori. That is, ideology can function in a way that makes sense of and enables subjects to believe and accept outcomes despite these outcomes being potentially irrational and even extremely violent as legitimacy in these decisions are communicated and represented to be a part of an indivisible pure concept or a transcendental object. In paternalistic, male-dominated or misogynistic environments, all women are categorized as the same and symbolise the necessary Other, the negative association that forms positive self-identification. Power in Hitler’ legitimacy was primarily sourced by the Jew, the Roma gypsies, people with disabilities; Othering enables a distinction and the ideology is fundamental foundation that signifies legitimacy to this identification without necessarily being subject to the signified or what Kant referred to as transcendental illusions. What this means is that ontologically power in ideology is afforded legitimacy by the presupposition that we, “[t]ake a subjective necessity of a connection of our concepts…for an objective necessity in the determination of things in themselves,”[9] and tricks reason rather than the senses. Laws that bind ideological communities cannot be questions, they just are, necessary and thus legitimacy is given power when entrenched with imaginative ideological symbols grounded in the assumption that it is a part of an unquestionable, transcendent or higher plane of authority. Political legitimacy is constructed in the same way as language, forming a narrative that motivates an associative process of signification between sign and object that establishes meaning to a symbol.

Kant’ dialectic is to expose these illusions (or perhaps I should say this illusion) and the identification of legitimacy in political and social discourse predicates how the architecture of power is constructed. Power can be symbolised in many ways and does not need to be pronounced, for instance propaganda and the use of imagery as a symbolic technique that can reinforce a belief in this power. The question thus formed is what exactly makes people susceptible to conform and confidently articulate a devotion to a potentially hegemonic power with a deadly agenda? Semiotics can be used to translate this method of mobilisation and ascertain how communication within this sphere of influence can frame the construction of a political and social will. At an epistemic level, consciousness is wedged into the dominion of our imagination where the symbolic message is so powerful that it can enable conformity without the individual even being aware of why. On the contrary, real power is afforded when the individual assumes that they are the ones effectively making this decision.

 

[1] Critique of Pure Reason (A239)
[2] Ferdinand de Saussure, Course in General Linguistics (trans. Roy Harris), Duckworth (1983) 66
[3] Ibid., 119
[4] Ferdinand de Saussure, Course in General Linguistics (trans. Roy Harris), Duckworth (1983) 121
[5] Jacques  Lacan, Écrits (trans. Alan Sheridan), Routledge (1977) 149
[6] Slavoj Zizek, Jacques Lacan: Critical Evaluations in Cultural Theory, Psychology Press (2002) 2
[7] Slavoj Žižek, ‘O Earth Pale Mother!’ In These Times (2010)
[8] See http://www.iep.utm.edu/zizek/
[9] Paul Guyer, The Cambridge Companion to Kant, Cambridge University Press (1992) 251

The Art of War

Eastern philosophy has been of great interest to me. I resonate with the strict treatment of virtue where principles of righteousness, loyalty and moral strength are absolute and where cowardice and deceit are viewed as traits of the dishonourable. Martial arts is the physical symbol that applies the same austere practices, where practitioners often link the required physical strength to the same psychological characteristics necessary to lead a life of virtue. The Zhou Dynasty, a dynasty that stretched its lengthy arm in ancient China for over eight hundred years lived the great philosopher Confucius (551-479 BCE). During his life, a cohesive royal system of ancestral aristocrats controlling principalities under the rule of the Zhou monarchy gradually disintegrated into feudal rivalries for power between each of the states. Caught toward the end of the Spring and Autumn period (770-475 BCE) where the Eastern Zhou Period begun following the move of the capital east of China to Luoyang so as to adequately protect itself from possible invasion, small fiefdoms and nomadic tribes united forces with various states that gradually matured to onset the Warring States period (475-221 BCE) just following Confucius’ death. Confucius is said to have written Chūnqiū or the Spring and Autumn Annals[1] that chronicled the vassal state of Lu now an area of the modern province of Shandong and the home of Confucius. It was also the oldest record mentioning techniques of hand-to-hand combat, or martial arts, utilised during the Spring and Autumn period likely because of continuous violence with minimal weaponry.

Confucian political and social ethics is clear by his commentary on civil society and ethical pluralism, strengthened by principals of harmony that reinforce ‘hard’ moral concepts including loyalty and honesty but balanced by a ‘soft’ humble wisdom. The Analects of Confucius, a compilation of teachings that reference the importance of cultivating and demonstrating moral and ethical education and behaviour and attributed to the philosopher also deliberates on the subject of war, moral refinement and the authority of rulers.

The 
Master
 said: “To
 lead
 the
 people
 to 
war 
without
 having
 taught
 them
 is
 to 
throw 
them
away.”[2]

While there exists controversy surrounding the historical accuracy of Sun Tzu as a military leader and strategist, it is no doubt that his treatise The Art of War became highly influential particularly throughout the Warring States period where the growth in numbers, the sophistication and the brutality of war became visibly ruthless and chaotic. Philosophers including Mencius and Xun Kuang turned their attention to the philosophy of law and legalism, on war and just war theories, and social and political education as the period was marked by intense battles. Both Sun Tzu and Confucius were said to have lived during the same period toward the end of the Spring and Autumn period. It is said by Sima Qian, a historian of the Han dynasty that wrote the Records of the Grand Historian that Sun Tzu was a general from the Wu province and commanded the great victory between the Wu army during the Battle of Boju,[3] where numbers were significantly lower than the Chu army, but the accuracy of this is widely contested.

While the Art of War is certainly the most well known Chinese text on military strategy, it was canonised among other military doctrines during the Song Dynasty, entitled as the Seven Military Classics.[4] Notwithstanding the tactical practices and other systematic components of warfare that embody strict commandment through lessons that deliberate victory or defeat, the Seven Military Classics is a historical illustration that exemplifies the influence of analytical ruminations on Chinese military science. The texts including The Art of War are T’ai Kung Liu-t’ao (Six Secret Teachings), Ssu-ma Fa, Wu-tzu, Wei Liao-tzu, and Huang Shih-kung San-lueh (Three Strategies).[5] They broadly encompass a variety of warfare operations that attempt to understand the nature of war and strategies that include a variety of topics such as leadership, cavalry and infantry, as well as weaponry. For instance, the Six Secret Teachings attributed to T’ai Kung covers tactical advantages of employing disinformation and psychological manoeuvring through manipulation and deception that would enable victory without actual fighting.[6]

The bloody wars during the Warring States Period and continued through the Imperial Era of China combined complex tactical strategies that innovated armament. It was a period where the sophistication of the instruments of war propelled by the continuous hegemonic struggles that elicited the continuous advancements of military equipment. Ancient China soon invented semi-automatic crossbows, multi-phase rockets, naval fortresses with catapults, and the use of gunpowder that bear a striking resemblance to modern lethal weaponry. And what would advanced lethal weaponry look like today? The Aero Vironment Nano Hummingbird is an unmanned aerial vehicle [UAV] and as an ornithopter drone appears like the bird in flight only it carries a video recorder that feeds back aerial information. This spybot has a wingspan of only sixteen centimetres. Further still, the Northrop Grumman X-47B UCAS-D (Unmanned Combat Air System Demonstrator) currently being tested by the US Navy is a lethal drone that has the capacity to work automatically, which changes naval aviation activities considerably. If a machine made autonomous decisions, who would be accountable for the deaths caused by it? With increasing technological advancements, automaton lethal weaponry and the utilisation of artificial intelligence for killing, questions about the scope of violence and how international humanitarian law will adapt to these sweeping changes has been raised a focus on weapons and tactical strategy since tens of thousands of people are being killed with no chance of even being remembered or buried. The United States since the Obama Administration increased its covert activities in several key states including Afghanistan, Pakistan, Somalia, Libya and Yemen utilising drone weaponry that has resulted in a huge number of civilian deaths, including women and children.[7] The administration has failed to adequately answer how the numbers differentiate between sources and the scope of the strikes.

The territorial disputes and strategic rivalries continued in China well into the twentieth century, clearly accountable for the invasion of Tibet along with numerous campaigns in Korea, Vietnam, India and the Soviet Union. But a new strategy of warfare developed in the late 70’s that intended to win the war for economic power. These reforms began through the statesmanship of Deng Xiaoping that changed the staunchly critical China as a closed economy to one that opened the doors toward a global reach through foreign investments.[8] As such, the China’s Gross Domestic Product (GDP) has steadily increased since then and the balance of power is now starting to shift in China’s favour, forecasted to increase and surpass that of the United States. This economic strategy was followed by changes to its military strategy, particularly visible when they witnessed the advances of US military power during the Gulf War, which displayed the advanced technology in modern warfare. As visible in China’s historical battles between warring states, strategic victories were possible when economic strength enabled advantages in military might and weaponry. Decisive changes to China’s economic approach matched with the growth and expenditure to their combat capability.

Disclosure on military matters in China remains well guarded and though difficult to ascertain the exact defence budget, in 2015 defence spending was at $146 billion. Though, they cannot hide the sheer size of the Peoples Liberation Army [PLA] whereby the active reserve personnel and perceived fighting strength is totalled at over 2.3 million in manpower.[9] Tactical efforts to change China’s aviation capabilities is clear including very discomforting advances in weaponry such as the DF-ZF [formerly Wu-14] hypersonic glide vehicles[10] that project missiles out of the Earths’ atmosphere and overcome defence shields before re-entering at much faster speeds. Other weapons include the Xian H-6 Bomber capable of long-range and anti-ship missiles and maritime powers through investments in cruisers such as the Type 055 Destroyer.[11] This is amalgamated with a strengthening space program and the interest is certainly not scientific with satellites boosting radar and electronic capabilities that strengthen intelligence and counter-offensive navigation among other tactical advantages.

More than just weaponry, military strategy also includes a range of other factors including battle logistics, geographical values, and resources such as petroleum and nuclear power. This begins to raise questions about the recent changes between China-Russia relations and their steadfast position to support Iran and Syria. Improved relations particularly during the late 90’s between Jiang Zemin and Boris Yeltsin[12] that developed corporation particularly around common geopolitical interests along with changes to improve offensive military technology through arms sales, clarifying that there is indeed an invisible war and one that would determine who the global superpower will be.

The Warring States period exposed China as a practitioner of merciless strategies for power and expansion, an adaptation that continues in contemporary Chinese politics as seen during the Warlords Period between 1916-1928 where bandits, cliques and militias plagued the country with wars until the People’s Republic of China (PRC) following the Chinese Revolution of 1949 unified the country under the leadership of Mao Zadong. The ruthlessness of the political system, brutality toward dissenting opinions, and authoritarian leadership is markedly influenced by the political history and cultural attitudes that has stretched for hundreds of years and defined by the philosophies in the Hundred Schools of Thought that continue to inspire the attitudes and social consciousness present until this day. China has an extensive population and resources that may ensure the continued management of economic growth despite the size of the country raises concerns of territorial claims. Though it is clear that the international community believe that China is far behind the military prowess of the United States with comparatively feeble technology… is it really?

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away… If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant.”

― Sun Tzu, The Art of War

[1] Charlene Tan, Confucius (2014)
[2] 13:30, The Analects of Confucius
[3] Jann Tibbetts, Fifty Great Military Leaders of All Time (2016)
[4] Sarah Foot, Chase F. Robinson, The Oxford History of Historical Writing: Volume 2: 400-1400 (2012)
[5] Ralph D. Sawyer and Mei-chün Sawyer, The Seven Military Classics of Ancient China (2007)
[6] Ralph D. Sawyer, D Sawyer One Hundred Unorthodox Strategies: Battle And Tactics Of Chinese Warfare
[7] See more information at the Bureau of Investigative Journalism https://www.google.com.au/search?tbm=bks&hl=en&q=obama+drone+killings#q=obama+drone+killings&hl=en
[8] M.Y.M. Kau, Susan H. Marsh, Michael Ying-mao Kau, China in the Era of Deng Xiaoping: A Decade of Reform: A Decade of Reform (2016)
[9] Michael Codner, Michael Clarke, A Question of Security: The British Defence Review in an Age of Austerity (2011)
[10] http://www.popularmechanics.com/military/research/a20604/china-successfully-tests-hypersonic-weapon-system/
[11] Anthony H. Cordesman, Steven Colley, Chinese Strategy and Military Modernization in 2015: A Comparative Analysis (2016)
[12] Jeanne Wilson, Strategic Partners: Russian-Chinese Relations in the Post-Soviet Era: Russian-Chinese Relations in the Post-Soviet Era (2015)