The Mundanities of Negotiations

I have a perfectly fine laptop that I purchased 2 1/2 years ago, and there are many environmental and human health reasons for using a piece of electronic equipment for its full lifetime, and that’s my plan.

But having an exhausted battery that lasts only an hour or so at a stretch presents a problem at a convention center where there are no outlets in any of the rooms where anything (negotiations, plenary, side event) happens. Which is my own problem, yes, and I should get a new battery, yes, but it turns out that I share this problem with a broad group of people. Most notably, many of the negotiators, but particularly those from “Least Developed Countries” (the ‘LDC Group’). Monday in the opening session of SBSTA, a representative of the Gambia was delivering the opening statement of the LDC Group with eloquence and clarity, until she suddenly paused and said “Oh sh*t.”

That’s right, her notebook’s battery had died on her. She proceeded to borrow her neighbor’s MacBook (I’m not sure if it was Georgia or Germany, but it definitely wasn’t the Gabon) and move her thumb drive over so she could continue reading the statement. In the middle of the whole process, with a room of thousands of people waiting, she quipped “Well, that’s how you know this is an LDC.” The whole room totally cracked up.

My battery is on the verge of dying right now, so I’ll make this short. In my experience, negotiations are mostly shaped by the overal geo-political state, individual domestic situations, business lobbies, domestic support and training for a negotiating team, and sometimes pressure from social movements, scientific bodies, and lawyers… but they are also shaped by which individuals are in the room at 4 am on Friday night, their blood sugar levels, their personalities, inter-personal dynamics…. And no doubt, these two weeks, by who in any given room has a laptop with a long-life battery and who does not.

Great Sources of What is Happening Politically and Technically: – view of many civil society groups, but not all. Great articles directed specifically towards negotiators here in Durban – gets run off and passed out every morning. – IISD creates Environmental Negotiations Bulletin at all events like this, and they are priceless. For the policy wonks.



Legal Lacuna in Durban at UNFCCC COP 17

Greetings from Durban!

My friend and colleague Mai-Linh Hong has been holding her own on Legal Lacuna for quite a while. (Thanks, Mai-Linh!) But how can one not blog from the UN Framework Convention on Climate Change (UNFCCC) negotiations in Durban, South Africa? Herewith are a few thoughts from a lone geographer trying to study a mega-event of governance and spectacle.

These meetings are being referred to as “COP 17” because it is the 17th meeting of the Conference of the Parties (the States that have signed and ratified the treaty), but there are multiple meetings/negotiations happening at the same time. There is the main COP, but there is also the Conference of the Parties that are Members of the Kyoto Protocol (COP-MOP, or CMP) (ie, not the US, and, very soon, not Canada). There are a number of permanent “subsidiary bodies” within the COP, that are made up of representatives of all State Parties (States send politicians and ‘experts’): the Subsidiary Body for Scientific and Technological Advice (SBSTA) and Subsidiary Body on Implementation (SBI). There are also ‘ad hoc’ groups that have more acronyms and are extremely important. That said, I can only cover so much. I’m looking for where biofuels are brought into the negotiations and surrounding discussions (more on that as it comes up), and I’m focusing on the SBSTA meetings, scheduled to last through the first week.

One of the reasons I’m focusing on the SBSTA negotiations is that just two weeks ago I attended the week long negotiations of SBSTTA in Montreal, Quebec. Also pronounced “substa” – but this one is the Subsidiary Body for Scientific, Technical, and Technological Advice of the UN Convention on Biological Diversity (CBD). The CBD is a ‘sister convention’ to the UNFCCC – along with the Convention on Combating Desertification, they were ‘born’ at the 1992 UN Rio Convention. The CBD acts as something of a baseline experience for me, because I was at the 10th COP in Japan last year and just recently at the 15th SBSTTA in Canada. There are a lot of differences between the CBD and the UNFCCC, which I’ll discuss more in the next few days.

But I thought a SBSTA meeting would be very similar to a SBSTTA – how much difference can one “T” make?

Well. I forgot that these SBSTA meetings are not a stand-alone, low-key affair – they are an integral part of COP17, and therefore these negotiations to provide ‘scientific and technological advice’ are deeply imbricated with all the negotiations happening right now – on the Kyoto Protocol, on whether there should be a mandate for a new legal instrument, etc etc etc. At least 20-30 times more observers were present at this first session of SBSTA than at the past CBD SBSTTA, and the State delegations certainly appeared to be politicians/negotiators rather than ‘experts’ (but I can’t confirm that).

And I should have known: UNFCCC is not known for transparency or access by observers/civil society to the negotiating processes. I happily showed up for the opening plenary meeting of the SBSTA Monday (Nov 28) afternoon, along with many other ‘observers’ (our section in the way back was packed out). After the initial statements from Party groups, the Chair announced that we would go through ‘administrative’ matters so that we could move on to substantive matters Tuesday morning. He then proceeded to run through the entire agenda, putting almost every agenda item into a Contact Group or an Informal Consultation, barely pausing for any statements, and discouraging discussion because it could be done in the side group.

No doubt, there is limited time here in Durban and a very heavy agenda. But from what I’ve seen at the CBD and here with the UNFCCC thus far, there are a number of important dynamics that follow from pushing all discussion into side negotiations:

Language – In Plenary, there is simultaneous translation into the 6 UN languages. Side negotiations are uniformally conducted in English, with no translation. Tough cookies if you have a problem with that.

Transparency – Observers are generally allowed to attend Plenary. Of the Contact Groups, generally the first and last negotiating sessions are open to observers, unless any Party objects (not uncommon). The Chair may allow observers in to the sessions in between or not, as they (and the Parties) see fit. Informal Consultations are never open to observers.

Alternative Voices – In Plenary sessions, there is usually time for representatives of inter-governmental organizations, indigenous peoples, business, and civil society to make statements after Parties have made their interventions. At the UNFCCC, it seems that observer groups don’t have space to speak in the Contact Groups they are actually allowed into (at least not in the ones I’ve attended thus far). (As opposed to the CBD, where observers can speak in Contact Groups but their suggestions aren’t reflected in text without Party support). In the case of yesterday’s SBSTA, there was no time in the plenary for any observer statements. This means the SBSTA negotiations will now run for the week in these side groups, most likely entirely missing the constructive and disruptive statements of civil society.

As much as I acknowledge the cost constraints of any UN negotiations, I do wonder about the cost of shutting out voices of outsiders and even some Parties. How can we get the most robust agreements possible? More thoughts on this in the days to come…

Apologies for the length – apparently it’s hard to communicate the most basic points about the UNFCCC without going in to context and acronyms.

Check out: for some Canadian independent journalists’ take on UNFCCC; – Perspectives of Pacific Island delegates – Law students from Lewis and Clark’s International Environmental Law Project (yes, I was once a proud IELPer)

On Walls and the Spectacle of Sovereignty

My oral exams are scheduled for late January, which means the past month has been a frenzy of reading and the next three promise to be equally busy. The bright side is that my program gives us a lot of freedom in formulating reading lists, so one of mine is a rather idiosyncratic theory list focusing on race, global studies, law, and spatial theory—my small effort to chip away at the walls, so to speak, between the disciplines that have informed my studies.

Yesterday, I had the pleasure of reading Wendy Brown’s Walled States, Waning Sovereignty (MIT Press, 2010). The book begins with a meditation on the recent spate of global wall-building that paradoxically coincides with supposed weakening of nation-state boundaries. The most well-known examples are the winding Israeli West Bank barrier and the exorbitantly expensive (and ineffective) high-tech “fence” that now separates the U.S. from Mexico. Brown notes astutely that these walls are meant not really to strengthen borders between nations, but rather to keep out certain non-governmental, transnational forces perceived as a threat to sovereignty—yearning would-be immigrant masses, illegal drug trade, terrorism. Moreover, these walls serve a significant symbolic function: they are “iconographic of” and spectacularize the idea of sovereignty for a privileged population anxious about its porous cultural and political borders. Of course, to say that walls are spectacles of sovereignty is not at all to diminish their material, often destructive consequences, which have been many.

Reading Brown’s book reminded me of my visit to Germany this summer. Having only one day to spend in Berlin, I headed for the East Side Gallery, a kilometer-long section of the Berlin Wall that has been transformed by artists into an “International Memorial for Freedom.” I also walked through the bizarre historic site of Checkpoint Charlie, a former crossing point between the Soviet and American sectors, where a man dressed as a Cold War-era U.S. soldier still stands guard for photographic purposes. At both sites, I participated in the usual rituals celebrating the spread of democracy and economic freedom: that is, I took pictures (exercising my right to an individual point of view) and purchased postcards (participating in both transnational communication and the commodification of nostalgia). As Brown points out, something about walls offends the liberal worldview and westerners like to vaunt their demise, even as we deploy new walls for the “protection” of democracy.

Irony aside, the visits were actually quite moving for me, as I thought of the East Berliners who had risked (or lost) their lives trying to escape political oppression and economic stagnation, as well as my own family, which left Vietnam as boat people when I was a baby. I, like the average American, eschew romantic notions of how life would be better under communism (though my reasons might not be ordinary). Nevertheless, I know there are limits to the liberal tearing down of walls: in uncritically celebrating the spread of “freedom,” we risk forgetting the burdens we force on those living outside the walls we continue to build. It is true that freedom isn’t free—but Americans are usually not the ones who pay.

Slave Cemetery at VCU Turned Over to the Richmond Slave Trail Commission

The Root (and its partner, National Public Radio) have picked up the story of Richmond’s Burial Ground for Negroes, which we posted about a while back. The historic slave and free black cemetery (c. 1750-1816), now also known as the African Burial Ground, has been used as a parking lot by Virginia Commonwealth University since the state purchased it in 2008. Today, it will be officially turned over to the City of Richmond’s Slave Trail Commission, which plans to preserve and memorialize the 1.6-acre site. The move comes only after years of community activism, an unsuccessful lawsuit, and growing negative publicity that put pressure on the state and the university.

As The Root reports, the Richmond controversy is one of several that have arisen in recent years over historic slave and free black cemeteries. The most well-known of these is the African Burial Ground in lower Manhattan:

Chris Moore, a historian and curator at New York’s Schomburg Center for Research in Black Culture, was one of the first to inform the public about the African Burial Ground [in lower Manhattan]. According to Moore, the GSA tried to keep the excavation quiet. He said that federal officials and archaeologists initially claimed ignorance, but workmen at the site informed him they were ” … taking truckloads of bones out of here.”

The GSA initially announced that no more than a few hundred people were buried at the site; it is now estimated that there are 15,000-20,000 remains under a five-block area.

A long battle ensued, involving community protests, court hearings and support from city and state officials that finally garnered national attention. As a result, the excavation was halted for some time, and the disinterred remains of 419 people were sent to Howard University for research (and later re-interred at the African Burial Ground). A memorial was built next to the new building and an interpretive center added inside the lobby, explaining the site, now a national monument.

Other burial grounds have been rediscovered in places as varied as Portsmouth, N.H.; Rio de Janeiro, Brazil; and Dallas — and they often trigger similar community struggles to reclaim those sites. For several years, Harlem’s African-American community has been fighting to reclaim and memorialize a burial ground covered by a bus depot.

As the 150th anniversary of the Emancipation Proclamation approaches (Jan. 1, 2013), efforts to recover Richmond’s African Burial Ground — and all other sites that contain black ancestral remains — gain special significance for all Americans.

Daring Rescues, Dead Babies, and ‘Another Vietnam’

As Americans debate the recent “humanitarian” intervention in Libya, I am reminded of an NPR feature that aired last year. In the fall of 2010, NPR’s All Things Considered told the story of the U.S.S. Kirk, a small U.S. naval ship that, at the end of the Vietnam War, conducted an unusual humanitarian mission.

On April 29, 1975, as Saigon fell, the Kirk and its astonished crew were sent to retrieve thousands of refugees who were fleeing South Vietnam by boat and helicopter. The next day, the Kirk returned to “rescue . . . the remnants of the South Vietnamese navy,” about thirty ships that constituted the last sovereign South Vietnamese territory. The “rescue” of the navy was effected by lowering the South Vietnamese flag and raising the U.S. flag on each ship, transforming it into sovereign U.S. territory. Anthems were sung. Tears were shed. A Vietnamese baby who died of fever was mourned by all aboard the Kirk. All ended well, with the refugees resettled in the U.S. and elsewhere.

Bao Le, who died aboard the Kirk

The story, explicitly a redemption narrative, says a lot about Americans’ view of themselves as citizens of a military superpower, particularly in relation to the “Orient.” NPR resurrects and rewrites that other Vietnam narrative, the one usually characterized by destruction, grief, and moral failure, into a tearful rescue. The story contains all the ingredients for an American comeback on the world stage: grateful Asian refugees, brave (and hitherto unsung) American heroes, and the distinctly harmonious, shared mourning of a Vietnamese baby—an innocent, civilian “other” who dies not because of U.S. violence, but in spite of U.S. medics’ efforts to save him from illness.

It is significant that this story appeared at a time when the U.S. was engaged in two seemingly interminable, geographically vague conflicts in the Middle East/western Asia. For most of the last decade, Americans have been haunted by a discursive ghost, that nagging refrain: “We don’t want another Vietnam,” an expensive, bloody, ideologically-motivated conflict against an enemy whose low-tech warfare somehow overwhelms the U.S.’ “modern” might. This was even before the “Arab Spring” came with its tech-savvy hopefulness and its double edge of democracy and violence; we were tired of the same, old War on Terror.

NPR, in fact, gave listeners “another Vietnam,” much better than the one we remembered. Foregrounding the U.S. military’s humanitarian functions, the story of the Kirk momentarily absolves the U.S. of its other actions. The story serves as a palliative to widespread American anxieties about war, territory, immigration, and imperialism. It enables a transformation of grief caused by human conflict into grief for the lost child, who functions as a cipher for innocence and the will of God. As we cry with nostalgia and pride at the raising of U.S. flags over South Vietnamese navy ships, we are also reassured that there is such a thing as colonialism by consent.

We live in a murky world where military action causes more violence, even as it saves lives. As listeners to the NPR story, we glimpse ourselves among the refugees, rescued from the horror of real war, seeking shelter aboard the Kirk.

Earthquakes and Amnesia: Japan, the U.S., and All That Radiation Expertise

As Japan has worked to contain nuclear fallout, recover bodies, and rebuild towns after the earthquakes and tsunami, U.S. political leaders and journalists have been eager to praise the Japanese people’s “resilience” in the face of disaster. A week ago, Secretary of State Hillary Clinton expressed America’s support for Japan thus:

This has been an unprecedented disaster, but it has provoked an unprecedented show of resilience by the Japanese people and a pledge of cooperation and friendship from the American people.

It seems a kind of amnesia has taken hold of Clinton, and of many others who marvel at the speed and orderliness of Japan’s disaster response. Some have chalked up the resilience to “culture”—but that’s the default explanation when anything to do with “the Orient” seems different from “us.”

The more obvious explanation is that the Japanese have more experience with mass destruction and radiation than almost anyone. That experience comes courtesy of the U.S., which in 1945 dropped atomic bombs on two densely populated Japanese cities with the intention of killing hundreds of thousands of civilians. What happened in Hiroshima and Nagasaki were horrific war crimes, ones the U.S. has never had to account for because it was the victor in that war.

War historians might argue over whether the bombings ultimately saved lives by ending the war. But as we offer our “pledge of cooperation and friendship,” let’s at least be truthful about the history of our two nations. It’s not that Clinton has forgotten; her omission is willful, even systematic. America loves being the benefactor, the friend, especially while it is waging two (now three?) unpopular wars abroad. Maintaining our moral standing in today’s world demands a certain amount of brazenness, or apparent amnesia.

According to the Children of the Atomic Bomb project at UCLA, conservative estimates place death tolls at 150,000 in Hiroshima and 75,000 in Nagasaki. It’s hard to know the true extent of the damage because of the far-reaching and time-delayed effects of radiation. What we do know is that the bombings were multi-dimensional disasters, with death and injury occurring in a variety of ways, including burns, crushing, radiation sickness, and cancer.

Today, it is no wonder that Japan’s disaster response is fast, organized, and effective. Japan’s Red Cross Society, developed after World War II, has over two million registered volunteers. Is some of this because of “culture”? Maybe. But let’s start with the obvious explanation.

War Stories and the ‘Legal Geography’ of War

This weekend I attended (and live-tweeted) “Law and War: An International Humanitarian Law Workshop,” a two-day training for law and graduate students. It was held at the University of Virginia School of Law and co-sponsored by the ICRC, the American Red Cross, and the U.S. Army’s JAG School.

Among the highlights was Kenneth Anderson‘s presentation on the use of drones and targeted killing as part of the allied counterinsurgency in Afghanistan and Pakistan. Anderson raised some interesting conceptual issues about contemporary warfare: Does war have boundaries? When an armed conflict moves from one location to another, which laws of war govern? Is there, in Anderson’s words, a “legal geography” of war?

The law of armed conflict (LOAC) is based upon classification of conflicts, starting with the distinction between international (state-on-state) and non-international (all other) armed conflicts. Civilian protections and combatant privilege don’t kick in until a conflict has met the threshold for either category, and the rules differ substantially between the categories. Consequently, location and intensity of fighting as well as identity of the participants are key to a LOAC analysis.

A common view, according to Anderson, is that armed conflict is located wherever its participants are. If an armed conflict authorized to take place in Afghanistan spreads to Pakistan, say, through the use of U.S. unmanned aircraft (drones), it is unclear which, or whether, LOAC rules apply. And if the U.S. were to, say, have the CIA rather than uniformed armed forces control those drones, it is unclear whether the actions even fall under the umbrella of LOAC. If LOAC does not apply, then what law governs? Is the U.S. operating in a legal void?

This is one example of how modern warfare, with its fuzzy geographic boundaries and blurred distinctions between soldiers and civilians, confounds LOAC.

My interest, as a student of literature, lies in how we conceptualize and narrate war when the traditional elements of a war narrative no longer exist. Where is war set? What is a front line? Who is a combatant and who is a civilian? To the extent that LOAC follows entrenched understandings of war, sovereignty, and combatant status, it is a window into the structure of the war narrative. When war as the law describes it ceases to resemble war on the ground, interesting things happen to the stories we tell about war. More to come on this.