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Georgian-South Ossetian Conflict Is secession a viable solution? Tathyana Mello Amaral Brown University Author Miles Campbell Ryan Saadeh Ethan Shire Editors Fall 2018 This paper assesses the viability of secession as a possible solution for the Georgian-South Ossetian conflict. The fall of the Soviet Union in 1991 resulted in the creation of weak and unstable states that sought to establish their identity and place in the world. It triggered a wave of pervasive ethno-nationalism in Eastern Europe, led to a number of lasting military conflicts, and brought about the question of self-determination of minor ethnic groups like the Armenians, Chechens, and Kosovians. The Yugoslav Wars marked an important turning point in the history of the post-Soviet region because it resulted in the secession of Kosovo from Serbia in 2008 and created legal precedent for separatist groups. While the right to secede offers an answer to the resolution of ethnic conflicts, some scholars and theorists find it troubling. [1] The dispute between Georgia and ethnic Ossetians of the Transcaucasian region, now known as South Ossetia, highlights how the right to secede is still a point of controversy in international law. Historical Background: Nature of the Conflict Though the enmity between ethnic Georgians and ethnic Ossetians dates back to the 13th century when Ossetians were driven South from the Northern Caucasus Mountains to Georgian territory, it greatly intensified during the Soviet period.[2] During this period, South Ossetia was an autonomous administrative unit within the Georgian Soviet Socialist Republic (SSR). As historian George B. Hewitt discusses, language policy was an important point of contention between the ethnic groups since Georgia pursued discriminatory policies against its ethnic minorities.[3] The Soviet Union’s early language policy granted a lot of freedom to ethnic groups as part of a “nativization” effort that sought to liberate and win over oppressed peoples. By the late 1930s, however, fears of emerging nationalism within the federation led to a change in policy to one of “Russification”. Georgia, however, was exempted from such policies until 1953 since its leader Joseph Stalin was a Georgian native. In 1936 Georgian was declared a state language and Georgianization became the policy of the day. In 1938 the state imposed the Georgian alphabet on the Ossetian language and prohibited minority language schooling, causing great tensions between the government and the ethnic minorities.[4] When the Russification policies reached the Georgian SSR, the Georgian Nationalist Movement proposed the 1988 Draft Language Law which aimed to oblige ethnic minorities to master the Georgian language.[5] These Georgian language policies, along with other discriminatory practices, thus created deep resentment among South Ossetians towards Georgians. It is important to note that the small state of Georgia is home to other separatist ethnic minorities, including Abkhazians in the West and Adjarians in the South. Although the Abkhazian-Georgian conflict has paralleled the Georgian-South Ossetian conflict since 1991 when violent conflict first erupted during the Georgian independence movement, this paper will exclusively focus on the South Ossetian conflict. The violent experience of the 1990s was a culmination of hundreds of years of conflict. Political scientist Stefan Wolff writes that “South Ossetians wanted to preserve and remain within the Soviet Union. The Ossetians believed that their survival as ethno-cultural communities distinct from the Georgian majority would be in acute danger in an independent Georgian state.”[6] The relationship between Russia and South Ossetia was reinforced by the fact that ethnic Ossetians had their own autonomous republic within Russia, namely North Ossetia-Alana. With the support of Russia, the South Ossetian separatists managed to put up a strong resistance against the Georgians.[7] In June 1992, shortly after the election of former Soviet Foreign Minister Edvard Shevardnadze as Georgian president, a ceasefire was signed in Sochi under Russian supervision.[8] The Organization for Security and Co-operation in Europe (OSCE) sent a mission composed of troops from Georgia, Russia, South Ossetia, and North Ossetia to facilitate negotiations toward a political agreement.[9] The OSCE mission successfully maintained peace until 2003 when President Mikhail Saakashvili rose to power through the popular Rose Revolution, and made the restoration of Georgian territorial integrity a major goal of the new government.[10] The administration’s policy led to a violent flare up in 2004 when the government cracked down on a symbol of interethnic cooperation: the Ergneti Market.[11] Though the black market was a major point of contraband trade, the introduction of a harsh taxation system in the market, as a part of Saakashvili’s anti-contraband operation, significantly harmed Georgian relations with Ossetians. The market was one of the only sites of direct interaction between the two ethnic groups. Relations were made even worse by the fact that one of the targeted groups in this operation was comprised of local officials and businessmen who profited from Russian and Ossetian trade connections.[12] Violence erupted during and after the shutting down of the market. Even more detrimental to interethnic relations, in 2006 it became public that the smuggling operation still existed, but that it was now run but the ruling Georgian elite.[13] The closing of the Ergneti Market was labeled a “missed window of opportunity” for conflict resolution by academic Doris Vogl. She argued that “during the rigorously implemented state-building process of the early Saakashvili government, the informal Georgian-Ossetian relations immediately lost momentum.”[14] The events of 2004 polarized and radicalized both Georgians and Ossetians and intensified the clashes between the ethnic groups in the prelude of the war of 2008. Though Georgia offered South Ossetia federal status in 2004, the leadership rejected this possible resolution.[15] Georgian policies in the early 2000s allowed Russia to offer more substantial and public support to the separatist Ossetians. Russia distributed passports to ethnic Ossetians and intensified political, economic and military ties with the separatist region. Arguably even more important, Russia observed growing relations between Georgia and Western powers like the United States. Georgia received 1.3 billion dollars of American financial aid and oversaw the construction of BP operated Baku–Supsa oil pipeline which runs through Azerbaijan and Georgia.[16] As Georgia began to pursue NATO membership, Russia was threatened by the possibility of having the Western coalition present in its own backyard. Svante E. Cornell and S. Frederick Starr comment that before the 2008 war, “Georgia was moving rapidly toward Euro-Atlantic integration, and was doing so at a time when an increasingly assertive Russian foreign policy was being shaped by sphere of influence-thinking.”[17] With fears of further NATO expansion and growing US presence in the Caucasus, Russian policy was driven by global security concerns, dynamics of European and global geopolitical power. Also significant is the fact that dominant Western powers such as the United States, the United Kingdom, and France supported and legitimized the secession of Kosovo from Serbia in February 2008. This allowed President Putin to cite the “Kosovo precedent” when signing a presidential decree on April 16th that established political, economic and social relations with both South Ossetia and Abkhazia.[18] Rising tensions between the two sovereign nations resulted in a five day war in 2008. Controversy surrounds who actually initiated the war on August 7th 2008,[19] as reports by the European Union and the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center agree that while Georgia made the first move, Russia significantly increased the number of troops and armaments in Abkhazia, and later in South Ossetia in the prelude to the war.[20] After five days of violent conflict, Georgia and Russia agreed to sign an armistice and engaged in peace talks sponsored by the European Union, the United Nations and OSCE. Russian military troops remained in South Ossetia in order to prevent Georgia from recovering the territory.[21] On August 25th, Russia recognized the sovereignty of South Ossetia and Abkhazia. Western powers and institutions such as NATO, the European Union, and the United Nations strongly condemned this move as they believed it undermined the sovereignty of the Georgian state. In response, Georgia ceased all diplomatic relations with Russia. This made the peace process slow and ineffective as the co-sponsored EU-UN-OSCE talks in Geneva were the only mechanism for multilateral talks.[22] Since 2008, Russia has increased governmental, economic and social ties with the secessionist regions. The administrative border between South Ossetia and Georgia has also been pushed southwards and since the summer of 2015, South Ossetian-held territory includes a section of the Baku-Supsa pipeline. As Andrews Higgins puts it, the secessionist region is part of Russia’s “Frozen Zone”, which includes areas under Russian control that officially belong to neighboring states, such as Georgia’s Abkhazia, Moldova’s Transnistria, and Ukraine’s Crimea. Higgins also adds that these regions are “useful for things like preventing a NATO foothold or destabilizing the host country at opportune moments.”[23] Issues with the Secession of South Ossetia In his essay “The Cracked Foundations of the Right to Secede”, law professor and political scientist Donald Horowitz outlines a set of assumptions that are made about secessionist states which justify the right to secede. This right assumes that secession will produce a “homogenous successor” that will “respect minority rights,” and where “republican democracy is viable.”[24] It also assumes that secession will “result in a diminution of conflict.”[25] The case of South Ossetia can be analyzed as a natural secessionist experiment of history because the region has been a de-facto independent state for many years. The question then arises: have these assumptions materialized in the case of South Ossetia? In short, they have not. As Horowitz points out, secession “merely proliferates the arenas in which the problem of intergroup political accommodation must be faced.”[26] In the case of Georgia, ample evidence shows that ethnic conflict continues to haunt both Georgia and the de-facto independent state of South Ossetia. There were many reports concerning violations of human rights from both sides during the 2008 war. For example, a Human Rights Watch report showed that there was intentional destruction of Georgian villages by Russian-South Ossetian troops.[27] The majority of ethnic Georgians who resided in South Ossetia fled during the August 2008 conflict, but an estimated 20,000 still live in the disputed territory.[28] The Ministry for Internally Displaced Persons from the Occupied Territories, Accommodation and Refugees of Georgia reported that there were 34,274 internally displaced persons (IDPs) from South Ossetia as of October 2014.[29] A UN survey shows that 56.9% of IDPs from South Ossetia are unable, but would like to return to their place of origin in cities like Tskhinvali, Znauri, Java, and Shida Kartli. This demonstrates how interethnic accommodations have failed to unfold with the creation of a separate state. Additionally, with no access to the territory except in preparations for the Geneva Discussions, the United Nations High Commissioner for Refugees and Georgian authorities have been unable to implement conventions regarding rights of refugees, stateless persons, and IDPs.[30] Russian troops regularly detain Georgian civilians for illegal crossings of the “administrative boundary line” (around 320 villagers were detained in 2015 alone).[31] In fact, the Freedom House Organization states that ethnic Georgians are barred from returning to the region unless they “renounce their Georgian citizenship and accept Russian passports.”[32] Therefore, the freedom of movement of Georgian citizens is constantly threatened in South Ossetia. In July 2017, the South Ossetian authorities also shared plans “to abolish the Georgian language schooling in the region’s ethnic Georgian populated areas beginning from the 2017/2018 academic year.”[33] The language policy proposed by the South Ossetian government recalls the discriminatory policies Ossetians were subjected to at the hand of Georgians during the Soviet period. Regarding the meaningful political participation of ethnic minorities, the Freedom House states that ethnic Georgians have refused or been barred from participating in the electoral process.[34] Freedoms of expression and of organization are also threatened.[35] As Horowitz argues, the treatment of this new ethnic minority is highly discriminatory. Therefore, in the case of South Ossetia, secession does not create a homogenous successor nor does it guarantee the respect of minority rights. In the case of South Ossetia, secession does not seem feasible unless the authorities make a commitment to guarantee the rights of its ethnic minorities. But, as Horowitz warns, “guarantees of minority protection in secessionist regions are likely to be illusory.”[36] While South Ossetia is considered a de-facto independent state, the viability of an independent republican democracy in South Ossetia is questionable when considering its high dependence on Russia. Historians Andreas Gerrits and Max Bader argue that “the economic and intergovernmental linkages with Russia … directly undermine the autonomy of the region.”[37] With a dual executive system, South Ossetia maintains political institutions based on those of Russia. The 2011 presidential election demonstrates the grip of Russia on the region’s politics and shows how the South Ossetian political process is highly susceptible to Russian influence. When a candidate who criticized strong ties with Russia won the popular vote, the Supreme Court annulled the results. Elections were repeated in 2012 with four new candidates, all pro-Russia.[38] As a result of the bilateral agreements signed in 2009, 2010, and 2015 that established economic, governmental and military links between Russia and South Ossetia, South Ossetia developed a high level of dependence on Russia.[39] Russia is South Ossetia’s only relevant trade partner, the ruble is the official currency, and South Ossetia’s imports and investments are exclusively from Russia.[40] More significantly, 91% of South Ossetia’s government budget is made up from Russian financial aid.[41] These limitations arguably derive from a lack of international recognition and from the consequences of the 2008 war. However, as Russian economist Mikhail Delyagin states, “South Ossetia does not exist as an independent economic entity due to its small size and extremely low-level management,” as well as due to its reliance on Russia’s long-term military presence to protect its territory.[42] As a result of this significant dependence on Russian aid, South Ossetia does not have a sustainable future as an independent nation. Another assumption that can be contested is that secession will lead to a diminution of violent conflict. This inevitable reality is highly flawed because devolution merely turns domestic conflicts into international ones. While a political divorce has not officially occurred, South Ossetia has been de-facto independent for at least 10 years. Though ethnic enmities linger, the recent history of the conflict shows how ethnic conflicts can mutate into primarily geopolitical ones when separatist movements thrive. University of Edinburgh Professor Emeritus John Erickson writes that the implications of Georgia’s Western push “are consequently dire for those [including high level Russian officials] who insist doggedly that the post-Soviet ‘space’ in its entirety, encompassing the former states of the Soviet Union, is and must remain a closed Russian geopolitical preserve.”[43] For Russia, the possibility of NATO encroachment on the South Caucasus precludes any significant decision concerning the separatist regions. As historian David J. Smith argues, German Chancellor Angela Merkle sealed the region’s fate when she said that the resolution of internal conflict was a prerequisite for NATO membership.[44] From that moment onwards, South Ossetia became a pawn in Moscow’s foreign policy strategy, described by Svante Cornell as a “revival of a classically modern, Realpolitik culture of security.”[45] The South Ossetian “secessionist” experience, along with that of other separatist states in Eastern Europe, illustrates how ethnic conflicts can be used to further geopolitical interests of powers like the Russian Federation in the post-Soviet space. The internationalization of the Georgian-South Ossetian conflict shows how secession does not necessarily lead to a diminution of violence. Therefore, the failure of South Ossetia to protect the minority rights of ethnic Georgians, its continued dependence on Russia, and likely mutation of ethnic conflicts into geopolitical ones suggests that secession is not a viable solution for this conflict. Implications There are no clear answers to Georgian-South Ossetian conflict. Though the director of the Institute for European, Russian and Eurasian Studies Cory Welt argues that “the reintegration of South Ossetia…poses no challenges to conventional understandings of democracy and human rights,” as time passes, the collective consciousness of both South Ossetians and Georgians acquires increasingly negative perceptions of the opposing ethnic group, making future interethnic cooperation difficult to achieve.[46] Additionally, the social linkage between South Ossetia and Russia continues to grow through the Russian domination of the media, the use of Russian as the lingua franca, and the promotion of educational exchange programs.[47] A symbolic link also comes from the large Ossetian diaspora in North Ossetia, an autonomous region within Russia. Thus, South Ossetia’s reintegration into Georgia becomes more unlikely by the day. With most citizens having dual citizenship to South Ossetia and Russia, further integration of South Ossetia into Russia can be anticipated. While Russia has not stated that it will pursue the annexation of the territory, its aggressive support of South Ossetia has managed to destabilize the region, prevent Georgia from joining Western organizations such as NATO. Moreover, through its involvement in Georgia, Russia has reasserted its influence in the Caucasus region. If secession occurred and South Ossetia was recognized as independent state by the international community, Russia would be encouraged to engage in even more aggressive foreign policy in the post-Soviet sphere of influence, possibly resulting in a domino effect of secessionist movements and a higher occurrence of violent conflicts. Georgia is a multiethnic country with two separatist movements (the experience of Abkhazia is very similar to that of South Ossetia), so the secession of one region would likely lead to that of the other. The disputed territories make up about one quarter of the Georgian territory, which means secession would severely destabilize the already weak country. The fear of a domino effect, not only in Georgia, but in other disputed territories that are currently under Russian control (i.e.: Crimea and Donbass, Ukraine; Transnitria, Moldova), is already a reality shaping international geopolitics. If the right to secede is accepted in relation to the South Ossetian dispute, the legal precedent set by Kosovo’s independence will be reaffirmed. With Russia’s “Frozen Zone” in mind, the emergence and legitimization of separatist movements of small and unsustainable regions can lead to the expansion of Russian sphere of influence in the post-Soviet territory and the further polarization of the present international political dynamics. Conclusion Peace talks and conflict resolution efforts have proven ineffective for almost 25 years, since both sides are committed to achieving predetermined preferential outcomes.[48] Both sides have been haunted by the impatience of political leaders such as President Saakashvili and by a lack of trust from both sides due to the lack of interethnic communication. But, most of all, the sides have been haunted by a pro-separatist Russian mediator. Cory Welt writes that Russia’s “function as a ‘hegemonic balancer’ interposed between conflicting parties resulted in the establishment of a level playing field for negotiations, allowing Abkhazia and South Ossetia to consider themselves equals to Georgia, not subordinates.”[49] While Georgia attempted to reach an acceptable political solution, the support from a major power endowed separatist group with a decisive sense of confidence and security that hindered the resolution of the conflict. Meanwhile, Western states and institutions failed to devise a coherent response to Russian policies that threaten stability and Europe’s own interests in the region. The de-facto independence of South Ossetia encountered a continued threat to rights of ethnic minorities, a strong dependence on Russia, and the quick escalation of violence in 2008 due to the internationalization of the conflict. The region’s experience thus supports the argument that secession is not a viable solution for ethnic conflict in the Caucasus. Endnotes [1] Donald L. Horowitz, “The Cracked Foundations of the Right to Secede,” Journal of Democracy, 11. [2] George Hewitt, Discordant Neighbours: A Reassessment of the Georgian-Abkhazian and Georgian-South Ossetian Conflicts, (Leiden: 2003), 22 -23. [3] Hewitt, 41. [4] Sonya Kleshik, "I Am My Language: Language Policy and Attitudes Toward Language in Georgia" (Master's thesis, Central European University, 2010), 11 - 12 [5] Hewitt, 57 – 58. [6] Stefan Wolff, "Georgia: Abkhazia and South Ossetia," Encyclopedia Princetoniensis. [7] Ibid. [8] Ibid. [9] Marietta Konig, "The Georgian-South Ossetian Conflict ," OSCE Yearbook 2004 (Hamburg: 2004), 242. [10] Ibid, 238. [11] Doris Vogl, "Missed Windows of Opportunity in the Georgian-South Ossetian Conflict – The Political Agenda of the Post-Revolutionary Saakashvili Government (2004-2006)," Failed Prevention: The Case of Georgia (Vienna: 2010), 68 – 71. [12] Vogl, 70. [13] Ibid. [14] Ibid, 72. [15] Wolff. [16] Cory Welt, “Balancing the Balancer: Russia, the U.S., and Conflict Resolution in Georgia,” Global Dialogue 7, no. 3-4 (Summer/Autumn 2005), 24. [17] Svante E. Cornell and S. Frederick Starr, eds., The Guns of August 2008: Russia's War in Georgia (Abingdon, Oxon: Routledge, 2015), 4. [18] Ibid, 7 – 8. [19] "The Blame Game," The Economist, October 03, 2009. [20] Ibid; Cornell, Popjanevski and Nilsson, “Russia’s War in Georgia”, 23 – 24. [21] Luke Hardinng and Jenny Percival, “Russian troops to stay in Abkhazia and South Ossetia,” The Guardian, September 09 2008. [22] Wolff, "Georgia”. [23] Andrew Higgins, “In Russia’s ‘Frozen Zone,’ a Creeping Border With Georgia,” The New York Times, October 23 2016. [24] Horowitz, “Cracked Foundations,” 8. [25] Ibid. [26] Ibid, 9. [27] Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia (New York: Human Rights Watch, 2009). [28] "World Directory of Minorities and Indigenous Peoples: Ossetians," Minority Rights Group International. [29] UN High Commissioner for Refugees (UNHCR), Intentions Survey On Durable Solutions: Voices Of Internally Displaced Persons In Georgia, June 2015. [30] UN High Commissioner for Refugees (UNHCR), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights' Compilation Report Universal Periodic Review: Georgia, January 2015. [31] Vicenews, The Russians Are Coming: Georgia’s Creeping Occupation, VICE News, November 04, 2015, https://www.youtube.com/watch?v=bv00Weif0Sw . [32] “Freedom In The World: South Ossetia," Freedom House, 2016. [33] Georgian Schools to be Abolished in S. Ossetia," Civil.Ge, July 28, 2017. [34] “Freedom In The World: South Ossetia”. [35] Ibid. [36] Horowitz, 6. [37] Andre W. M. Gerrits and Max Bader, "Russian Patronage Over Abkhazia and South Ossetia: Implications for Conflict Resolution," East European Politics 32, no. 3 (July 19, 2016). [38] “Freedom In The World: South Ossetia”. [39] Gerrits and Bader, “Russian Patronage”. [40] Ibid. [41] Paul Rimple, “Economics Not Impacting Russian Support for Georgian Separatists,” Eurasianet.org, February 13, 2015. [42] Mikhail Delyagin, "A Testing Ground for Modernization and a Showcase of Success," Russia in Global Affairs, March 8, 2008. [43] John Erickson, “Russia Will not be Trifled With: Geopolitical Facts and Fantasies,” in Geopolitics: Geography and Strategy, ed. Colin S. Gray and Geoffrey Sloan (London: Frank Cass Publishers, 1999), p. 260. [44] David J. Smith, "The Saakashvili Administration’s Reaction to Russian Policies Before the 2008 War," in The Guns of August 2008: Russia's War in Georgia (Abingdon, Oxon: Routledge, 2015), 126. [45] Cornell and Starr, The Guns of August 2008, 196. [46] Cory Welt, “Balancing the Balancer: Russia, the U.S., and Conflict Resolution in Georgia,” Global Dialogue 7, no. 3-4 (2005), 12. [47] Gerrits and Bader, “Russian Patronage”. [48] Oksana Antonenko, "Failures of the Conflict Transformation and Root Causes of the August War," Failed Prevention: The Case of Georgia (Vienna: National Defence Academy and Bureau for Security Policy at the Austrian Ministry of Defence, 2010), 83. [49] Welt, “Balancing the Balancer,” 2. References Antonenko, Oksana. "Failures of the Conflict Transformation and Root Causes of the August War." In Failed Prevention: The Case of Georgia, 79-93. Vienna: National Defense Academy and Bureau for Security Policy at the Austrian Ministry of Defense, 2010. "The Blame Game." The Economist. October 03, 2009. http://www.economist.com/node/14560958 . Cornell, Svante E., and S. Frederick Starr, eds. The Guns of August 2008: Russia's War in Georgia. Abingdon, Oxon: Routledge, 2015. Cornell, Svante E., Johanna Popjanevski, and Niklas Nilsson. Russia’s War in Georgia: Causes and Implications for Georgia and the World. Singapore: Central Asia-Caucasus Institute & Silk Road Studies Program, August 2008. Delyagin, Mikhail. "A Testing Ground for Modernization and a Showcase of Success." Russia in Global Affairs. March 8, 2008. Accessed August 19, 2017. http://eng.globalaffairs.ru/number/n_12538. Erickson, John. “Russia Will not be Trifled With: Geopolitical Facts and Fantasies.” Geopolitics: Geography and Strategy. Colin S. Gray and Geoffrey Sloan ed. (London: Frank Cass Publishers, 1999). "Freedom In The World: South Ossetia." Freedom House. 2016. https://freedomhouse.org/report/freedom-world/2015/south-ossetia. "Georgian Schools to be Abolished in S. Ossetia." Civil.Ge. July 28, 2017. http://www.civil.ge/eng/article.php?id=30309. Gerrits, Andre W. M. , and Max Bader. "Russian Patronage Over Abkhazia and South Ossetia: Implications for Conflict Resolution." East European Politics 32, no. 3 (July 19, 2016): 297-313. Goble, Paul A. "Russian 'Passportization'." The New York Times. September 09, 2008. Accessed August 17, 2017. https://topics.blogs.nytimes.com/2008/09/09/russian-passportization/?_r=0. Hardinng, Luke and Jenny Percival. “Russian troops to stay in Abkhazia and South Ossetia.” The Guardian. September 09 2008. Hewitt, George. Discordant Neighbours: A Reassessment of the Georgian-Abkhazian and Georgian-South Ossetian Conflicts. Leiden: Brill, 2013. Higgins, Andrew. “In Russia’s ‘Frozen Zone,’ a Creeping Border With Georgia.” The New York Times. October 23 2016. Jentzsch, Greg. "What are the main causes of conflict in South Ossetia and how can they best be addressed to promote lasting peace." The BSIS Journal of International Studies (2009). Kleshik, Sonya . "I Am My Language: Language Policy and Attitudes Toward Language in Georgia." Master's thesis, Central European University, 2010. Konig, Marietta . "The Georgian-South Ossetian Conflict ." OSCE Yearbook 2004 (Hamburg: 2004). Rimple, Paul. “Economics Not Impacting Russian Support for Georgian Separatists.” Eurasianet.org. February 13, 2015. UN High Commissioner for Refugees (UNHCR). Intentions Survey On Durable Solutions: Voices Of Internally Displaced Persons In Georgia. June 2015. http://www.refworld.org/docid/55e575924.html UN High Commissioner for Refugees (UNHCR). Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights' Compilation Report Universal Periodic Review: Georgia. January 2015. Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia. New York: Human Rights Watch, 2009. Vicenews. The Russians Are Coming: Georgia’s Creeping Occupation. VICE News. November 04, 2015. https://www.youtube.com/watch?v=bv00Weif0Sw. Vogl, Doris. "Missed Windows of Opportunity in the Georgian-South Ossetian Conflict – The Political Agenda of the Post-Revolutionary Saakashvili Government (2004-2006) ." In Failed Prevention: The Case of Georgia, 59 - 77. Vienna: National Defence Academy and Bureau for Security Policy at the Austrian Ministry of Defence, 2010. Welt, Cory. “Balancing the Balancer: Russia, the U.S., and Conflict Resolution in Georgia.” Global Dialogue 7, no. 3-4 (Summer/Autumn 2005), 22-36. Wolff, Stefan. "Georgia: Abkhazia and South Ossetia." Encyclopedia Princetoniensis. "World Directory of Minorities and Indigenous Peoples: Ossetians." Minority Rights Group International. http://minorityrights.org/minorities/ossetians/.

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The Burden of Innocence: Arendt’s Understanding of Totalitarianism through its Victims Elena Muglia Author Emerson Rhodes Meruka Vyas Editors Hannah Arendt set out to describe an ideology and government that burst past understandings of politics, morality, and the law asunder. In Origins of Totalitarianism , Arendt argues that totalitarianism could not fit into previous political typologies. Instead, it navigates between definitions of political regimes like tyranny and authoritarianism, as well as distinctions historically made between lawlessness and lawfulness, arbitrary and legitimate power. Even then, Arendt holds on to the idea that totalitarianism can be described and analyzed despite escaping traditional understanding as a political ideology and system. In the preface of the first edition, Arendt expresses this hope, writing that Origins was: “Written out of the conviction that it should be possible to discover the hidden mechanics by which all traditional elements of our political and spiritual world were dissolved into a conglomeration where everything seems to have lost specific value and has become unrecognizable for human comprehension, unusable for human purpose.” One of the traditional elements of our “political and spiritual” world that she inquires about are questions of innocence, guilt, and responsibility. How can these concepts, which have both moral and legal implications, be applied and understood in the case of Nazi Germany, a regime void of morality and legality? Many political theorists have explored Arendt’s understanding of guilt in her report Eichmann in Jerusalem . In the report, Arendt utilizes Adolf Eichmann’s case—a Nazi Party official who helped carry out the Final Solution—to provide a concrete example of someone who is guilty but does not fit traditional understandings of what is required to be criminally guilty. Alan Norrie points out that Arendt exposes the tension between Eichmann’s lack of criminal intent, mens rea , and his criminal and evil actions (Norrie 2008. 202). The totality of totalitarianism complicates his criminal guilt, as Nazi Germany rendered every member of society complicit in its crimes. To unpack this complex nexus of guilt and responsibility, Iris Young looks at two of Arendt’s essays; “Organized Guilt and Universal Responsibility” and “Collective Responsibility” (Young 2011, 90). Young outlines how Arendt understands guilt as centered on the self, while responsibility implies a relationship with the world and membership in a political community (Young 2011, 78). Guilt arises from an objective consequence of somebody’s actions (Young 2011, 79) and is not a product of someone’s subjective state. With this understanding, everybody in Nazi Germany was responsible (irrespective of whether they took up political responsibility), but not everybody was guilty. Those who acted publicly against the Nazi Regime, like the Scholl siblings, took up political responsibility in a positive sense (Young 2011, 91). Richard Bernstein, who also discusses Eichmann, shares this understanding with Young—Eichmann is criminally guilty, but bystanders are not. Bernstein, however, elucidates that the bystanders’ responsibility is imperative to understand because their complicity was an “essential condition for carrying out the Final Solution” (Bernstein 1999, 165). By focusing on the areas of guilt and responsibility and primarily looking at Eichmann, however, these scholars leave a theoretical gap in understanding the relationship between the victims—the stateless and Jewish people for Nazi Germany—and totalitarian ideology. These groups lack political responsibility within the totalitarian system because their innocence implies a separation from the world and a political community. In her essay “Collective Responsibility,” Arendt notes that the twentieth century has created a category of men who “cannot be held politically responsible for anything” and are “absolutely innocent.” The innocence of these victims and their apoliticality strikes at the heart of why Arendt postulates that totalitarian ideology and terror constitute a novel form of government—“[it] differs essentially from other forms of political oppression known to us such as despotism, tyranny and dictatorship.” Totalitarianism targets victims en masse , but their status as victims is not based on any action they take against the regime. While Norrie, Young, and Bernstein all address that Arendt thinks that any “traditional” conception of the relationship between law and justice cannot be applied to totalitarianism directly, by focusing primarily on Eichmann, they are missing and understanding of a group of people that allowed totalitarianism to explode these notions. By tracking and parsing through Arendt’s understanding of the innocents and innocence in Origins of Totalitarianism and placing it in conversation with her understanding of action in The Human Condition, I elaborate on the unique and lack thereof, political relationship between totalitarian ideology and the innocents. I argue that the condition of innocence of the victims represents the essence of totalitarianism’s unique form of oppression and negation of the human condition. The positioning of the innocents in a totalitarian society acts as a lens for how totalitarianism aims to reshape traditional notions of political, moral, and legal personhood. I demonstrate this by first outlining what created fertile ground in the 20th century for the condition of rightlessness of the innocents. Second, I highlight how the targeting of innocents in concentration camps lies at the heart of totalitarianism’s destruction of the juridical person—someone who is judged based on their actions. Third, I argue that by bending any notions of justice, totalitarianism destroys the moral person, a destruction that is best expressed in the innocents’ lack of internal freedom. Finally, I argue that all these components entail severing the victims from a world where they can appear and be recognized as humans. Overall, I contend that while many of the techniques unleashed on the innocents apply, to an extent, to everyone under totalitarianism, including people like Eichmann, the innocents represent the full realization of totalitarianism’ attempt to alter the essence of a political and acting person. To understand how totalitarian regimes created a mass of ‘superfluous’ people who existed outside the political realm, it is first necessary to highlight what conditions Arendt thinks sowed fertile ground for totalitarian domination and terror in the first place. A crucial condition is rooted in the failures of the nation-state in dealing with the new category of stateless people in the interwar period in Europe. Following WWI, multiethnic empires, like the Austro-Hungarian and Ottoman empires, dissolved, which led Europe to resort to the familiar nation-state principle—presuming that each nationality should establish its state. As Ayten Gundogdu writes, “the unquestioning application of this principle turned all those who were ‘ejected from the old trinity of state-people-territory’ into exceptions to the norm” (Gundogdu 2014, 31). These exceptions to the norm, as were Jewish people, could not be repatriated anywhere because they did not have a nation. Instead of integrating these minorities and making them fully-fledged political members, policies like Minority Treaties codified minorities as exceptions to the law. The massive scale of refugees that existed outside a political community left a set of people without any protections apart from the ones that the state gave out of their own prerogative and charitable actions. This stateless crisis crystallized, for Arendt, the aporia of human rights—even though human rights guarantee universal rights, irrespective of any social and political category, they are enforced based on political membership. Human rights end up being the rights of citizens, leading the stateless to a condition of “absolute rightlessness.” This condition of rightlessness does not entail the loss of singular rights—just like the law temporarily deprives a criminal of the right to freedom—but a deprivation of what Arendt calls the right to have rights. Defined by Arendt as a right to live “in a framework where one is judged by one’s actions and opinions.” Instead of being judged based on actions or opinions, the stateless are judged based on belonging to a group outside the nation. This innocence, an inability to be judged based on one’s deeds and words, is the defining mark of the statelessness’ loss of a “political status” (Arendt 1951, 386), which primes these groups of people for the particular form of oppression that totalitarianism entails. While the stateless and their condition of rightlessness was constructed even before Nazi Germany, the existence and the continuous creation of a mass of innocents lies at the core of the raison d’étre of totalitarian politics. According to Arendt, totalitarianism operates based on a law of Nature and History, which has “mankind” as an end product, an “‘Aryan’ world empire” for Hitler. Mankind becomes the “embodiment” of law and justice. Jewish people, under Nazi Germany, are portrayed as the “objective enemy” halting nature’s progression, whereby every stage of terror is seen as a further development that is closer to achieving the development of the ultimate human. This continuous need to follow a Darwinian law of nature leads Arendt to define one of totalitarianism’ defining features as the law of movement: the only way that totalitarian regimes can justify their existence, expansion, and domination, and it relies almost entirely on the group of innocents. The innocents are crucial components of the concentration camps because they are placed there alongside criminals who have committed an action. If they only targeted “criminals” or those that committed particular actions, the Nazi party would have scant logic to fulfill its law of movement. The “innocents” are “both qualitatively and quantitatively the most essential category of the camp population.” in the sense that they exist in an “enormous” capacity and will always be present in society. Totalitarianism relies on innocents because their existence removes any “calculable punishment for definite offenses.” Totalitarian politics aim, eventually, to turn everyone into an innocent mass that could be targeted, not because of their actions, but their existence. Even criminals were often sent to concentration camps only after they had completed their prison sentences, meaning they were going there not because of their criminal activity but rather arbitrarily, sacrificing a mass in favor of the laws of history and nature. The condition of rightlessness combined with total domination, exerted through the concentration camps, obliterates the juridical person for all the victims of totalitarianism. The juridical person is the foundation of modern understandings of law, constituting a person who bears rights and can exercise rights and who, in derogation of the law, faces proportional and predictable consequences. By destroying the juridical person and turning its victims into a mass of people who exist outside any legal framework and logic, totalitarianism operates beyond any previously conceived notions of justice. As Arendt explains: “The one thing that cannot be reproduced [in a totalitarian regime] is what made the traditional conceptions of Hell tolerable to man: the Last Judgment, the idea of an absolute standard of justice combined with the infinite possibility of grace. For in the human estimation, there is no crime and no sin commensurable with the everlasting torments of Hell. Hence the discomfiture of common sense, which asks: What crime must these people have committed in order to suffer so inhumanly? Hence also the absolute innocence of the victims: no man ever deserved this. Hence finally the grotesque haphazardness with which concentration camp victims were chosen in the perfected terror state: such punishment can, with equal justice and injustice, be inflicted on anyone .” By “traditional conceptions of Hell” tolerable to man, Arendt means a Hell where every individual will be judged based on their actions and nothing else on the day of the Last Judgment. Totalitarianism shatters this idea and any existence of an “absolute standard of justice” through the concentration camps, which creates Hell on earth but without any rightful last judgment. Even more importantly, because of these innocents and the arbitrariness and “haphazardness” of the way they are chosen, Arendt explains that state punishment can be “inflicted on anyone.” A tyranny targets the opponents of a regime or anyone who causes disorder, but totalitarianism cannot be understood through such a utilitarian lens. As Arendt points out in various places in Origins , without understanding totalitarianism’ “anti-utilitarian behavior.” it is difficult and impossible to understand its use in targeting people who commit no specific action against the regime. Concentration camps and terror materialize the law of movement like positive law materializes notions of justice in lawful governments. The guilty are innocents who stand in the way of movement. Totalitarianism does not only operate outside any traditional forms of legality and juridical personhood but also transcends any understanding of morality—the moral person is destroyed just as the juridical one is; and this is, once again, fully expressed through the treatment of innocents who become the ideal subject of totalitarianism. The ideal subject of totalitarianism lacks both internal and external freedom—which is precisely what is imposed on the victims. A lack of internal freedom implies an inability to distinguish right and wrong. As Arendt explains, “totalitarian terror,” in the concentration camps, achieves triumph when it cuts the moral person from “the individualist escape and in making the decisions of conscience questionable and equivocal.” The Nazi Regime achieved this by asking the innocent to make impossible decisions that involved balancing their own life and the ones of their families. This often involved a blurring of “the murderer and his victim.” by involving even the concentration camp inmates in the operations of the camp. Concerning this, Robert Braun talks about Primo Levi’s discussion of the complicated victim—explaining that those who survived the concentration camps are always seen as suspect because of these blurred lines (Braun 1994, 186). Arendt has a parallel opinion to Levi that focuses more on those victim’s subjective state, explaining that when they return to the “word of the living,” they are “assailed by doubts” regarding their truthfulness. The innocents represent the perfect totalitarian subject as their doubts represent an inability to distinguish between truth and falsehood, which Arendt describes as the “standards of thought.” What is most striking about the destabilization of conscience is that it results in an inability to a freezing effect and an inability to act. As Arendt explains, “Through the creation of conditions under which conscience ceases to be adequate and to do good becomes utterly impossible, the consciously organized complicity of all men in the crimes of totalitarian regimes is extended to the victims and thus made really total.” Regardless of what “good” entails, doing it entails committing an action that is for others. Doing good can be understood as analogous to how Young interprets Arendt’s understanding of political responsibility… further explaining how the victims are left to a condition of non-responsibility through their inability to both distinguish what is right and wrong, and act on it. The erasure of “acting” in totalitarianism gains new meaning, or rather a more comprehensive explanation, when looking at Arendt’s discussion of acting in The Human Condition. Arendt’s work in The Human Condition illuminates the full extent of why acting becomes impossible under totalitarianism, especially for its victims. As Nica Siegel explains, an essential aspect of her understanding of action in The Human Condition is the spatialized logic that grounds action in a space where one can “reveal their unique personal identities and make their appearance in the world.” Only in this way can an action take place as it has a “who”—a unique author—at its root, and thus has the potential to create new beginnings. With this understanding, totalitarianism is the antithesis of action for everyone, to an extent, but completely for the innocent. Totalitarianism removes their space to act internally—through the destruction of conscience explained in the previous section—and externally—removing any place to appear publicly. The innocent are removed from the rest simply by being in the concentration camps, isolated from everyone else but also from one another. This means that totalitarianism, in practice, removes any source and space for spontaneity. Arendt defines spontaneity in Origins almost identically to how she defines action in The Human Condition , saying that spontaneity is “man’s power to begin something new out of his resources, something that cannot be explained on the basis of reactions to environment or events.” This condition of the innocent also illuminates why creating new and making a political statement is impossible under totalitarianism. As Arendt explains, “no activity can become excellent if the world does not provide a proper space for its exercise.” As with many other tactics in totalitarianism, this lack of excellence and new beginnings is rooted in the fate of the innocents. Nobody’s actions can “become excellent” if they face the same consequences of the concentration camp as the mass of those who commit no action. This is why under totalitarianism, “martyrdom” becomes “impossible.” Just as totalitarianism assimilates criminals with innocents in their punishment, political actors are also assimilated to this category, as they are “deprived of the protective distinction that comes of their having done something,” just as the innocents are. What totalitarianism does to its victims is, therefore, a symptom of its wider perversion of human individuality and action in general. Even perpetrators like Eichmann lose their sense of individuality—A.J. Vetlesen has described the phenomenon as a double dehumanization between the victims and the perpetrator Every bureaucrat in Nazi Germany was replaceable and totalitarianism made them feel, paradoxically, “subjectively innocent,” in the sense that they do not feel responsible for their actions “because they do not really murder but execute a death sentence pronounced by some higher tribunal.” Jalusic argues that both aspects of humanization have in common, the “loss of the human condition.”, but what Jalusic misses is that Vetlesen, by arguing that it is the persecutors that dehumanize themselves to avoid personal responsibility and alienate themselves from their actions—thus going against the cog in the machine theory. The perpetrators retain a level of agency that is ultimately denied to the victims. The victims do not alienate themselves from their actions, as they cannot act in the first place. When Nazi officials send victims to the concentration camp, they lose any ability to appear and thus face a loss of the human condition, as Arendt describes in The Human Condition, “A life without speech and without action, on the other hand-and this is the only way of life that in earnest has renounced all appearance and all vanity in the biblical sense of the word-is, literally dead to the world; it has ceased to be a human life because it is no longer lived among men” The emphasis she places on action as being an essential part of living “among men” explains why, according to her, totalitarianism, unlike other forms of oppressive governments, transforms “human nature itself.” While she uses the term “human nature,” she makes a strict distinction between human nature and condition in The Human Condition , arguing that it is impossible for us to understand human nature without resorting to God or a deity. Even in Origins , when talking about human nature, she criticizes those, like the positivists, who see it as something fixed and not constantly conditioned by ourselves. In light of her understanding of the human condition, I argue that Arendt means that totalitarianism undermines an essential part of the human condition, not human nature. Arendt views the human condition, as opposed to human nature, as being rooted in plurality. By plurality, she means that each individual is uniquely different but also shares a means of communication with every other individual, and thus, the ability of each individual to make themselves known and engage with one another. With this in mind, “human plurality is the basic condition for both action and speech,” as each individual can make a statement and be understood by others. The treatment of victims and their innocence as their defining factor highlights that fellow humans can distort and condition crucial aspects of our human condition in favor of laws that pretend that humans can instill justice and nature on earth. To a degree, totalitarianism subjects everyone to the conditions of “innocence” that victims face. What distinguishes the victims from other agents under totalitarianism is that they demonstrate the ability of totalitarian ideology to instill a complete condition of innocence by playing a person entirely outside any political and legal realm and, by extension, outside of mankind. Innocence under totalitarianism is not a negative condition—in the sense of not having done anything, not taking action—but it is primarily a lack of positive freedom—the ability to do something and act. Arendt’s understanding of innocence elaborates on the unique condition of superfluousness under totalitarianism. This ‘superfluousness’ is justified through a legal and political doctrine that explodes past legal and normative frameworks by being based on movement instead of stability. The law of nature is in a constant process of Darwinian development, with the superfluous innocents as the sine qua non to keep going. A lot of what happens to the innocents, as their obliteration of a space to act, does happen to everyone under totalitarianism; however, the innocents bear the full expression of totalitarianism and fight past notions of moral, political, and legal personhood. The innocents are not only cut off from this personhood but also from what Arendt thinks it means to be human, as they represent an inability to do what human beings do, which is to create beginnings through spontaneous action. The unique condition of innocence that the victims of totalitarianism face exposes totalitarianism’s own legal and political theory. The Law of Nature that Nazi Germany espouses here cannot exist without the realization of a group of innocents who prove the nihilistic idea that humans can be sacrificed for perfected mankind. As Arendt explains, the concentration camps are where the changes in “human nature are tested.” We can only understand how totalitarianism could occur by looking at this unique political erasure. The terror and fate of the innocents act as proof for everyone in the totalitarian regime that they could be next. The status of the victims also sheds lights on the inexplicable deeds that Eichmann committed, as Arendt writes that one of the few, if not only one, discernible aspects of totalitarianism is that “radical evil has emerged in connection with a system in which all men have become equally superfluous.” Totalitarianism proves that it is fellow humans who are dehumanized, albeit to a different degree, who completely sever an individual’s ties from political and legal structures meant to protect them. This conclusion and elaboration of the peculiar form of oppression and domination of totalitarianism has pressing practical and theoretical implications for modern-day politics. As Arendt explains, totalitarianism is born from modern conditions, and so looking at how modern polities can and do create superfluousness can be a thermometer for descent into totalitarianism. After all, it is important to remember that statelessness in the 20th century came before totalitarianism’s domination and terror. References Arendt, Hannah. “Collective Responsibility.” Amor Mundi: Explorations in the Faith and Thought of Hannah Arendt , edited by S. J. James W. Bernauer, Springer Netherlands, 1987, pp. 43–50. Springer Link , https://doi.org/10.1007/978-94-009-3565-5_3. ---. Eichmann in Jerusalem: A Report on the Banality of Evil . Penguin Books, 2006. ---. The Human Condition: Second Edition . Edited by Margaret Canovan and a New Foreword by Danielle Allen, University of Chicago Press. University of Chicago Press , https://press.uchicago.edu/ucp/books/book/chicago/H/bo29137972.html. Accessed 8 May 2024. ---. The Origins of Totalitarianism . 1951. Penguin Classics, 2017. Benhabib, Seyla. “Judgment and the Moral Foundations of Politics in Arendt’s Thought.” Political Theory , vol. 16, no. 1, 1988, pp. 29–51. JSTOR , https://www.jstor.org/stable/191646. Bernstein, Richard J. “Responsibility, Judging, and Evil.” Revue Internationale de Philosophie , vol. 53, no. 208 (2), 1999, pp. 155–72. JSTOR , https://www.jstor.org/stable/23955549. Braun, Robert. “The Holocaust and Problems of Historical Representation.” History and Theory , vol. 33, no. 2, May 1994, p. 172. DOI.org (Crossref) , https://doi.org/10.2307/2505383. Gundogdu, Ayten. Rightlessness in an Age of Rights . Oxford University Press, 2015. DOI.org (Crossref) , https://doi.org/10.1093/acprof:oso/9780199370412.001.0001. Jalusic, Vlasta. “Organized Innocence and Exclusion: ‘Nation-States’ in the Aftermath of War and Collective Crime.” Social Research , vol. 74, no. 4, 2007, pp. 1173–200. JSTOR , https://www.jstor.org/stable/40972045. Norrie, Alan. “Justice on the Slaughter-Bench: The Problem of War Guilt in Arendt and Jaspers.” New Criminal Law Review , vol. 11, no. 2, Apr. 2008, pp. 187–231. DOI.org (Crossref) , https://doi.org/10.1525/nclr.2008.11.2.187. Siegel, Nica. “The Roots of Crisis: Interrupting Arendt’s Radical Critique.” Theoria: A Journal of Social and Political Theory , vol. 62, no. 144, 2015, pp. 60–79. JSTOR , https://www.jstor.org/stable/24719945. Vetlesen, Arne Johan. Evil and Human Agency: Understanding Collective Evildoing . 1st ed., Cambridge University Press, 2005. DOI.org (Crossref) , https://doi.org/10.1017/CBO9780511610776. Young, Iris Marion, and Martha Nussbaum. Responsibility for Justice . Oxford University Press, 2011. DOI.org (Crossref) , https://doi.org/10.1093/acprof:oso/9780195392388.001.0001.

Author Name < Back Interview with Geoff Mulgan Catherine Nelli JPPE: Great. So, we'll start off speaking about your new book, Another World Is Possible: How to Reignite Social and Political Imagination . Could you explain what political imagination and radical political imagination are before speaking about what the book is about, your argument, and your process researching and writing it? Mulgan: So I became more and more concerned in the last few years that we might have a worsening problem of political imagination. And there were various signs of this, there was a kind of obvious one which the many activists, the many people who are politically enthusiastic can very easily see into the future, how things could go horribly wrong, could see ecological disaster, climate catastrophe, and so on. Which in many ways is a good thing, but very much harder to imagine or describe almost any kind of social progress, what would be a significantly better way of organizing welfare, or democracy, or health, or education. I observed that we have a huge capacity now for technological imagination. Vast sums of money spent on think tanks and conferences, looking at smart homes or smart cities or AI and so on, but almost nothing comparable in terms of serious work thinking about how our future society or economy could be run, rather than just the hardware. Politics—it's very striking. On the one hand, how many leaders now talk about going back to make America great again, or France or Britain or China or India. The last US election was a contest between two old men who haven’t really said very much about where they would want the world to be in a generation or two from now. I have increasingly felt that this sort of failure of imagination was fueling in a very subtle way a sort of fatalism—a sense that actually the world won't get better. Just as in our own individual lives, if we can't see something good on the horizon, something which might be better for us a year, five years down the line, it's quite hard to be happy and thriving. I think there's something equivalent for societies and the whole world. What I did in the book is partly researching the past of social and political imagination. And there'll be many ways in which people tried to look ahead; they did it through writing utopias, and there are hundreds, if not 1000s, of utopian writings from feminist utopias of the 15th century through to the great 19th century ones, like Bella , which was, I think, at the time the second best selling author ever in the US. There were attempts to create model communities, model towns, model organizations. There's the role of generative ideas. And one of the things I point out in the book is that often quite generic ideas like human rights or a circular economy may be a bit vague at first, but they then spawn lots of other ideas which become useful and change the world. And a large part of the book is about methods: what are the methods we could be using now to get better at thoughtful, rigorous imagination of the future a generation or two from now? How do you use methods, often from creativity and design, to expand your menu of options, you can then interrogate each of those, many of them might not be attractive, but at least to cultivate the habit towards the muscle of thinking creatively ahead. I look at the role of universities in that, I look at the role of political parties, which at times in history have played a big role in imagination, but have largely vacated it in much of the world. And also the role of places—how to create museums, galleries, physical places where people can come together to imagine into the future. And if nothing else, I hope the book will spark at least a bit of a debate on the question: Do we have a problem? Maybe some people will say we don't have a problem. Some people may say, well, actually, imagination is always bad, it leads to terrible results, and many of the blueprints in the last century, and many of the utopias did have horrible results. And one of the arguments I make is that now, we need to combine imagination with experiments. So you don't impose a fully formed blueprint on a city or a society; you try it out in a much more organic, experimental way. And others may say actually, technology is the answer to everything and we don't have social imagination because we don't need it. We can fix everything with a new anti-aging drug or some fantastic ecology, which will sequester carbon and so on. As I say, I think all of those will be wrong, but at least hopefully that will get a debate going. JPPE Do you look at a sort of comparative analysis of case studies from different countries? Or is the structure of the book more idea based? Mulgan It’s ideas. Basically, there were lots of references to real examples, either from history or from the present. And one of the parts of the book which is a bit more like comparative political analysis is trying to compare the dominant political imaginaries of the next 20 or 30 years globally. What are they? And I argue probably the most powerful ones or the strongest ones are nationalist techno authoritarian ones, particularly China, Xi Jinping thought, but in a different way the BJP’s to visions of the future in India. Putin doesn't really have one in Russia. But he and Erdoğan are other examples. And I argue that this is a very powerful semi-imaginary which actually is rather vague about the future but tries to tie together, in some ways, quite traditional authoritarian nationalism with high technologies. It's very 19th century Prussian militarism. I look at different imaginaries of the Green Movement and some of the frictions and issues in deep and less deep ecological thought. I look at what might happen to liberalism, a revived neoliberalism, and different strands of conservatism. But essentially, that is an attempt at a comparative analysis of both current and future imaginaries. JPPE Do you think digital technologies detract from or contribute to radical political imaginations? What are the different ways that they could contribute or detract? And in what way should they be conceptualized and used to the benefit of imagination? Mulgan So I've got quite a background in digital technology—my PhD is in telecoms and I've probably been immersed in all these things. And my answer is essentially “both and.” So sometimes thinking about things digitally can be very useful because as happened to retailing, or banking, or relationships, all sorts of things, if you look at it through a digital lens, you often deconstruct what's going on. And then you can remake it in a completely different way. So you end up with Amazon, not with, you know, high street shops or with match.com rather than people meeting in bars. And in that sense, actually, digital technology is quite useful for social imagination. And any imagination of where democracy might be in 50 years time has to have a substantial digital element. And those places like Taiwan and Iceland are reinventing democracy. The US still seems to be stuck in an 18th century model of democracy. We don't quite understand why, but that's another story. Digital is part of that, but if you only think in a digital way, as so much of the movement around smart cities, smart data, and smart homes did, you usually end up with results which are not very pleasant for humans to live in or which lose all sorts of dimensions of the present. And I think this was a big failure of the internet, where there was some incredibly naive techno optimism about how on its own the internet would spread democracy, equality, removal, corporations, etc. And often the exact opposite happened. And that tells us there was a major intellectual failure amongst the sort of Silicon Valley thinkers who simply didn't understand what they were part of. And that's why thinking simultaneously with a social lens and a technological lens is vital for the next 50 or 100 years. JPPE What’s the difference between social and political imagination? How do they coincide and interact? Mulgan I think they overlap with each other. There isn't a straightforward boundary line. By politics we tend to mean the things which politicians end up talking about put into their programs, maybe pass laws about in Congress or Parliament or the Bundestag. And that is the world of politics, which often does include or has at times included powerful visions of where society might head. There are many examples of where that happens outside politics much more through social movements and daily life. And people are getting on with social innovation and were ignoring the political realm. And often things start off social and then become political, so many ecological ideas, like the idea of a circular economy and radical recycling or veganism, you know, these tended to begin very much with social movements, and much, much later, became politicized, became an issue for laws and elections and programs and carbon taxes and so on. So one of the things I try to look at in the book is this dynamic between the social and the political, and then back into the social. For example, when you pass new laws on equality they in turn then affect the norms within every organization, ultimately, maybe back to the household and the family too. JPPE You speak about the tapering off of visions of the future. There seems to be a desire for change within the social world but very few productive outlets to channel this desire. How do you foresee this changing over time and how would you wish it to change to spark future action? Mulgan I think one answer to that lies with institutions and what role they play, especially powerful institutions can either encourage this sort of work or discourage it. So take universities. I've been doing a parallel strand of work, looking at why it is that in universities, and particularly in social science, the sort of exploratory design work, thinking ahead work, has largely disappeared from most universities all over the world. It's disappeared partly for good reasons, as people have become more data driven and more empirical, and partly because a lot of the radicals moved into a safe space of critique, rather than proposal. That was one of the weird things which happened to Marxism in universities in the last 20 or 40 years. It moved out of real active politics into academic critique. And founders haven't rewarded it because they've tended to reward deepening work within disciplines, whereas exploratory creative work has spread across multiple disciplines. And in a paper I published last year in Germany, I tried to set out in more detail what a probe of exploratory social sciences would be; what it would look like for the universities to have significant interdisciplinary teams working on the design options of a zero carbon economy or a radically transformed mental health system. And that's what I hope universities could do. At the moment they have almost no role in this and it’s incredible in a way. There's so much brain power in universities, and they don't play an active role. JPPE What would it take for them to do that? Mulgan Leadership. Money. You have to have a debate, you have to believe there's a problem. People at universities acknowledge there is a problem needing to be solved. So one of my purposes is at least a debate about that. And then political parties. I mean, the political parties in much the world have rather atrophied, hollowed out, hardened. And often it's the new political parties who are more creative than the old ones, which dominate your country and my country and some others. But if you were inventing a political party now, it would probably have much more of its core purpose being to organize a dialogue with the public about options for the future, about ideas. Instead, they tend to be captured by interest groups. They just work on winning elections or their money goes into election fighting rather than thinking. They’ve lost the capability of having broad open dialogues as opposed to campaigning, and so on. And it's interesting. Some of the newer parties have experimented with much more interesting methods of social dialogue like the Five Star Movement in Italy, Podemos in Spain, and there are quite a few others. I wouldn't say they've got there. But a political party which aspires to run a country should be owning part of this conversation about the options for the future. I think cities can do it. Good mayors often do have the resources to bring the whole of a city into a discussion about its physical future. So for example, just now we've just finished a really interesting session with a group of cities. A project I coordinate looks at what can be done over the next five or 10 years for cities to really prioritize population level mental health. And that's something which, you know, much of the public thinks is kind of obvious, that they should be doing that. And yet, politics lags far behind and nearly all the money is still in physical health, and hospitals and things like that. And very few political parties would feel comfortable actually even talking about mental health as a priority. They’re stuck in an anachronistic way of seeing the world. JPPE When did you first become invested in the power of political imagination and creative imagination? And how did you first identify the lack of the imagination that you see now? Mulgan I don't know, I suppose in different ways I’d probably be part of this. I've had a career which has partly been working in governments top-down, and I was part of some quite good exercises of political leaders trying to spark this. So Tony Blair, who has both strengths and weaknesses, but did at various times try to encourage big public conversations about the future and future priorities. I worked for an Australian Prime Minister, Kevin Rudd, who did a huge exercise, getting the whole country thinking 15, 20 years ahead on climate change and pensions and water, and then bringing 1000 people into parliament to talk about the results. So I have seen how good leaders can do this from the top down. And from the bottom up, lots of grassroots organizations, social innovation projects, I've automatically tried to think radically about the future. But I guess since the financial crisis in particular, I think horizons have shrunk right in amongst leaders, but also amongst NGOs, social movement organizations, they'd be more in case of trying to survive. And that's happened alongside this growing sense of imminent ecological catastrophe. And these have all contributed to squeezing out the capacity to imagine radically. JPPE So does it require different methods of funding so they can move past survival mode? Mulgan I think there's certainly a big role for philanthropy. Your country has enormous amounts of spare money in philanthropy, but almost none of it goes into this. There are some good reasons for that, obviously, philanthropy tends to come from the beneficiaries of the old system, so they're never likely to be very radical in challenging it. I still think a little bit more effort on the part of the Fords and Rockefellers and Hewletts would have paid off because this isn't very expensive. But who else is going to create the space for people to think, to look ahead, to range a bit more widely? And I’ve spent most of my life on much more short term practical, pragmatic problem solving. But we all need some sense of the bigger picture, what that's leading towards, to help make sense of the actions in the present. And that's what's missing. And I would say in the US, politics, philanthropy, and higher education have all essentially failed their societal role in that respect. JPPE So as you said, it requires opening the debate so that people know that there's a problem. What are the steps after that? Mulgan Well then I think it's about organizing and funding and orchestrating the more detailed work, which needs to be done. And I do use the analogy with art or film or writing. Everyone can take part in it a little bit. We can all make our movies on Tiktok and so on. But actually, if you want really good films, it's actually quite hard, it's quite skilled, it's quite professional. It requires quite a lot of people. Or for a good Netflix TV series. And it’s the same for social imagination. You can start off with sparks and some of it can be very open and participatory. But if you are going to do a detailed thinking through how to regulate or organize a netzero economy that requires a highly specialized knowledge, interrogation, and argument, and so on. That's what universities should be doing. I work with a lot of governments around the world, you know, 10 to 15 at any one point. And if they're looking at a new policy area, you sort of assume there must be off the shelf, lots of lots of options, which they could consider. Let's say a new kind of universal basic income is one, which I've been a bit involved in, and is much talked about in much of the world. And there are quite a lot of pilots now of UBIs, but the quality of the work of it is still very thin. And if you are a government wanting to introduce one, actually, you will have to do most of the work designing it, thinking through its impact. There is not a menu of options you can draw down. And the same is true with almost any field. Let's say bringing the circular economy principles to fashion or whatever, the legwork and hard labor has not been done to prepare the options for others to draw on. And this is also true at a global level. The UN was set up in the 1940s, benefitting from lots of hard work, which had been done imagining what a UN could be in the dark years of the 30s. I've been doing work recently on what could be new global governance arrangements, if conditions became more favorable. There's nothing out there in terms of well thought through options. There's lots of good description, lots of good analysis, lots of good critique of all that's wrong with the UN. But it's as if the people who are the experts feel too nervous to ever put their names to a proposal, which someone else might shoot down. So we have this sort of bizarre deficit of looking ahead, whereas in other fields, like in sciences, or the life sciences or AI, lots of people are paid to think speculatively to design possible new genomic treatments or new algorithms. And the imbalance between a world of science and tech, which was too good looking ahead, and the world of the social and the political, which has given up on it, I think it's really become a serious problem.

Statelessness A Contradiction in International Law with Asymmetrical Regional Solutions Samantha Altschuler Brown University Author Ginevra Bulgari Vance Kelly Lillian Schoeller Editors Fall 2018 An analysis of statelessness and its difficulties as explored by case studies on Slovenia and Myanmar. “Witness accounts, satellite imagery and data, and photo and video evidence gathered by Amnesty International all point to the same conclusion,” contends Amnesty International. They continue, “Hundreds of thousands of Rohingya women, men, and children have been the victims of a widespread and systematic attack, amounting to crimes against humanity."[1] How exactly is a state able to perpetrate these crimes against its own citizens in the human rights age without consequence? The answer lies in the word “citizen.” According to Myanmar’s domestic law, the Rohingya are no longer considered citizens and thus do not hold the rights of citizens. They belong to no nation, are protected by no law. They are stateless. Introduction The phenomenon of statelessness has plagued the international community since the end of World War I. This paper investigates why, despite the rise of the human rights and refugee regimes, the issue of statelessness remains unsolved. To do so, it will review the legal reality of statelessness and then argue that there exists a fundamental contradiction in international law that makes statelessness uniquely difficult to address. This contradiction, which arises from international law simultaneously protecting the individual’s human right to nationality and the state’s right to determine its nationals according to domestic law, creates the opportunity to render peoples stateless. This paper will then examine two key case studies: Slovenia will represent a successful handling of statelessness while Myanmar will demonstrate a failure. After analyzing the similarities and differences between the two cases, this paper will suggest that given the legal ambiguity surrounding statelessness, the successful resolution of statelessness depends on the values and interests of the regional supranational organization to which the state in question belongs. Those regions that, shaped by their geographies and histories, are characterized by values and interests that support human rights and intervention are more likely to resolve issues of statelessness; those regions that place a higher value on sovereignty and have interests in non-intervention will be far less likely to intervene in states’ internal affairs. Defining Statelessness At this point, it becomes necessary to legally distinguish the stateless person from the refugee or internally displaced person (IDP). The refugee is legally defined as someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country."[2] Refugees, in short, are citizens who fled their states for fear of persecution. Once outside their state, however, they are well protected under clear and strong international law. This is not to say that all states always uphold their obligations to protect refugees, but that legally the refugee outside his nation is entitled to safe asylum, medical care, schooling, work, and basic human rights and freedoms as would be extended to any other foreign legal resident.[3] An IDP is a citizen forced to relocate within his or her state “to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters.”[4] IDPs, by definition, cannot have crossed an international border. Unlike refugees who are outside their state and entitled to international protections, IDPs “being inside their country, remain entitled to all the rights and guarantees as citizens and other habitual residents of their country. As such, national authorities have the primary responsibility to prevent forced displacement and to protect IDPs.”[5] The 1948 Study on Statelessness conducted by the United Nations Ad Hoc Committee on Refugees and Stateless Persons defines the stateless as “persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one.”[6] The stateless, without citizenship, do not qualify as refugees or IDPs. Accordingly, they are not entitled to international refugee protections, nor are they protected by any state. Furthermore, acquisition of citizenship is not so simple as the above report might suggest; domestic laws often ban particular groups, primarily ethnic minorities, from acquiring citizenship. The domestic procedures for conferring citizenship are unique to each state, but typically include some combination of jus sanguinis and jus soli, that is right of blood (citizenship granted by parentage) and right of soil (granted by birth in the territory). Jus sanguinis laws prove particularly problematic, as they frequently serve to determine nationality along ethnic lines and in doing so render ethnic minorities stateless. The Difficulty: Contradiction in International Law The fundamental contradiction that allows for statelessness lies in the simultaneous sanctity under international law of the universal human right to nationality and the state’s sovereign right to determine its citizenship. The right to a nationality is upheld in the Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Nationality of Married Women, the Convention on the Rights of Persons with Disabilities, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.[7] Furthermore, many international bodies and covenants assert that the right to a nationality protects against arbitrary deprivation of citizenship. The UDHR claims “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[8] The ICCPR too holds that “No one shall be arbitrarily deprived the right to enter his own country.”[9] The ICERD further enshrines the “right to leave any country, including one’s own, and return to one’s country.”[10] In 2009, the United Nations Human Rights Council prepared a report on behalf of UN Secretary-General on “human rights and the arbitrary deprivation of nationality.” This report advocates, “The prohibition of arbitrary deprivation of nationality, which aims at protecting the right to nationality, is implicit in provisions of human rights treaties that prescribe specific forms of discrimination.”[11] Article 27 states, “Deprivation of nationality resulting in statelessness would generally be arbitrary unless it served a legitimate purpose and complied with the principle of proportionality.”[12] There is evidently no shortage of international conventions honoring the right to nationality and protection from arbitrary deprivation. At the same, however, international law grants the state the right to determine who is and is not a national. The Convention on Certain Questions Relating to Nationality law holds that “It is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”[13] The latter part of this 1st Article is rather confusing; which international conventions, customs, and principles it refers to is unclear. The case could and has be made by supporters of the human rights regime that it refers to international law discussed above. This would mean that states’ right to determine nationals would defer to international conventions protecting the right to nationality and protection from arbitrary deprivation. The opposite argument, favoring state sovereignty and the abundance of law protecting it, is bolstered by Article 2 of the same Convention, which states, “Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.”[14] This lack of clarity and the soundness of both arguments allow for each state to choose whether or not to act in accordance with conventions protecting against statelessness, and for other states in the global community to interpret whether or not they consider those acts legal. Many attempts have been made to reconcile the legal disconnect between the universal right to nationality and the domestic right of the state to determine its nationals. One such example is Special Rapporteur Córdova’s Report on Elimination or Reduction of Statelessness for the International Law Commission written in 1953. In Article 14, Córdova writes that “international law may also restrict the authority of the State to deprive a person of its own nationality. There are cases in which international law considers that a certain national legislation is not legal because it comes into conflict with the broader interests of the international community.”[15] Article 15 further clarifies that “the right of individual States to legislate in matters of nationality is dependent upon and subordinate to the rules of international law on the subject, and that, therefore, these questions of nationality are not, as has been argued, entirely reserved for the exclusive jurisdiction of the individual States themselves.”[16] These statements, however, remain both controversial and difficult to enforce. While the spirit of international law is arguably in line with Córdova’s call for states to defer to international convention, the letter of the law protects the sovereignty of states and does not directly address the gap between the individual right to nationality and the state’s right to determine citizenship. Paul Weis, co-author of the Convention Relating to the Status of Refugees, explains in his now standard work Nationality and Statelessness in International Law: “to the extent that there are no rules of international law imposing a duty on States to confer their nationality, and few, if any, rules denying or restricting the right of States to withdraw their nationality, one may say that statelessness is not inconsistent with international law.”[17] Without international law instructing the state to create in its domestic law a standard set of rules regarding citizenship, Córdova’s report is easily ignored or contested. Any such laws would constitute a breach of state sovereignty and it is extremely unlikely they will ever arise, at least in any form other than purely voluntary guidelines. Thus, the contradiction between the right of the individual and the right of the state remains, and with it the opportunity for states to deprive unwanted individuals, mainly ethnic minorities, of citizenship. Recognizing the weakness of international law concerning statelessness, the UN established the 1954 Convention relating to Status of Stateless Persons. Rather than address the cause of the problem by attempting to impose duties or restrictions on states, the Convention instead focused on easing the symptoms. According to the UNHCR, the “1954 Convention is designed to ensure that stateless people enjoy a minimum set of human rights.”[18] These rights, as will be discussed at greater length in the case studies below, are far from upheld. The 1961 Convention on the Reduction of Statelessness, on the other hand, actually attempted to address the root of the problem by providing something very close to the laws Weis referred to as non-existent. It “requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life… establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality” and “sets out important safeguards to prevent statelessness due to loss or renunciation of nationality and state succession.”[19] This convention represents the most direct attempt to combat statelessness but has unfortunately been met with minimal success. Unsurprisingly, states were slow to forgo their right to determine citizenship. Only 61 states are party, as compared to the 83 that are party to the 54 Convention. Further, the two states that will now be discussed as case studies are not party to the convention, highlighting the weakness of protections for the stateless. Case Studies Having established that international law does not conclusively protect against statelessness, the question arises as to why statelessness is successfully addressed in some cases and not in others. In answering this question, this paper next presents an example of the successful resolution of an issue of statelessness, which occurred in Slovenia, and an example of the devastating consequences of statelessness left unresolved, which is currently occurring with the Rohingya people in Myanmar. While these two cases, of course, represent only two examples of statelessness, they were selected specifically to represent the two opposite ends of the spectrum, success and failure. Case Study 1: Slovenia The Republic of Slovenia is a rather young state, having only gained independence in 1991 amidst the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY). The Slovene desire for independence, however, stretches back much further. The ethnically Slovene people (not to be confused with the “Slovenian”, meaning of Slovenia) have throughout history belonged to various states and empires, including the Roman Empire, the Holy Roman Empire, and the Habsburg Monarchy. After World War I, Slovenes for the first time attained a degree of independence through participation in the formation of the State of Slovenes, Croats and Serbs. The State of Slovenes, Croats and Serbs later joined with Serbia to become the Kingdom of Serbs, Croats and Slovenes, which was renamed the Kingdom of Yugoslavia in 1929. After occupation by Germany, Hungary, and Italy during World War II, Slovenia joined the SFRY. Under the rule of Josip Tito, Slovenia enjoyed considerable economic rights and freedoms that allowed their economy to flourish. Upon Tito’s death, politicians across the SFRY, most notably Slobodan Milosevic, mobilized support by taking advantage of existing ethnic hostilities. In addition to ethnic tension, the Slovenes felt exploited by the SFRY, which redistributed the fruit of their economic success to support the less successful economies of other SFRY republics. Slovenia held a referendum in 1990 and became independent in June of 1991. a. Rendering Stateless: Domestic Citizenship Law The history of subordination instilled in Slovenes the desire for not only independence but also the establishment of a national identity. After discontent with the communist and multi-ethnic SFRY, Slovenia was quick to write its independence into law with the drafting of a new constitution for a democratic and ethnically homogenous state. As occurred in many post-Yugoslav states, Slovenia’s constitution and citizenship laws defined the emergent state along ethnic lines. The preamble to Slovenia’s constitution invokes the identity of the majority ethnic group, Slovenes, reading “[Proceeding…] from the historical fact that in a centuries-long struggle for national liberation we Slovenes have established our national identity and asserted our statehood.”[20] Igor Štiks describes the way Slovenia drafted their new legislation, saying, “[W]hat initially presented itself as ethnic solidarity and a nationalist vision of recomposition of previously existed communities into neatly divided ethnocultural groups governing ‘their’ territory was soon enshrined in legislation” through the use of “citizenship laws as an effective tool for ethnic engineering.”[21] Under the SFRY system, each citizen held citizenship both to the SFRY and to one of its republics. The same month they achieved independence, June of 1991, Slovenia adopted the Citizenship Act of the Republic of Slovenia. The Act provided that those individuals who held both SFRY and Slovenian citizenship prior to the referendum on independence in 1990 (a year before Slovenia was actually independent) were automatically considered citizens. Those who were not had a six-month period to apply for citizenship, after which they would become illegal aliens.[22] While on its face this law may seem innocent enough, Štiks explains, “[T]he law itself becomes quite controversial when we consider that it enabled policies of ethnic engineering.”[23] After the six months passed, those who had not acquired citizenship, either because they had not applied or had not been approved, were rendered stateless. Slovenia now recognizes it left 18,205 people stateless, while the European Court of Human Rights places the number at 25,671.[24] Many of these citizens never applied for citizenship because they were born in Slovenia and assumed jus soli they were citizens, because they were simply unaware of the law at all, or because they did not understand it applied to them.[25] Others did attempt to apply, but were limited by the “short application period of six months, confusing procedures, numerous difficulties in obtaining all necessary documents at the moment of Yugoslavia’s break-up and subsequent escalation of violence, and finally by the overall political confusion since Slovenia was still legally part of the SFRY and was not internationally recognized until January 1992.”[26] Another group had their applications denied, for example, for failing to satisfy the requirement that they not “endanger public order”[27] (which was not defined) or that they possess “assured residence and sufficient income that guarantees material and social security.”[28] The government did not provide notification or explanation to those in danger of losing citizenship. Štiks explains that this “confusion was only partly the product of an unstable political context” and that the government in reality “created confusion intentionally. Arbitrariness could be found in many of the legal prescriptions and actual administrative practices, and was clearly part of a general strategy” under which “the citizenship laws and the procedures for acquiring new citizenship proved to be the main weapon of administrative ethnic engineering.”[29] The result was that those of ethnically Slovene descent were accepted jus sanguinis as citizens, while thousands of ethnic minorities, despite being born in Slovenia or having extended residence, were denied. Those ethnic minorities who did not acquire Slovenian citizenship were literally erased from the national registries overnight. “Their documents (e.g. passports, driver’s licenses and IDs) were invalidated. They lost all civic and social rights, jobs, health care and social benefits, and became ‘dead’ from an administrative point of view – they were izbrisani, i.e. erased.”[30] To be dead from an administrative point of view has very tangible consequences. Losing their citizenship meant the loss of both health care and legal employment, which in turn drove many to homelessness.[31] b. Domestic Response: Judicial Failure Though Slovenia enjoys a highly functioning judicial system, the numerous attempts of stateless peoples to bring their case to Constitutional Court saw very little success. In 1999, the Constitutional Court did find the Citizenship Act illegal and called on the legislature to correct it.[32] However, when legislation to do so was drafted, voter turnout was “less than a third of the 1.6 million electorate, and the Act was rejected by almost 95 percent.”[33] Mild, yet certainly insufficient, progress came in the form of an amendment to the Citizenship Act in 2002 creating a new article stating that “An adult may obtain Slovenian citizenship if he or she is of Slovenian descent through at least one parent and if his or her citizenship in the Republic of Slovenia has ceased due to release, renunciation, or deprivation or because the person had not acquired Slovenian citizenship due to his historical circumstances.”[34] Essentially, this amendment provided the option for ethnic Slovenes who had been rendered stateless in the confusion of 1991 to reclaim citizenship. It did nothing, however, for those who had been born in Slovenia to non-Slovene parents and thereby required citizenship jus soli. For these individuals, the new law introduced naturalization, which required the applicant “have lived in Slovenia for ten years,” “not constitute a threat to public order,” “fulfill his or her tax obligations and has a guaranteed permanent source of income,” and possess the “required knowledge of the Slovene language.”[35] This last requirement included a language examination where none existed before. Many of the stateless possessed insufficient mastery of the language, their first languages being Croatian, Serbian, Italian or Hungarian.[36] These requirements provided opportunity for ethnic discrimination, both obviously in the language examination and more subtly via the undefined “threat to public order.” c. International Response: Regional Intervention In 2006, the case of the stateless of Slovenia was brought before the European Court of Human Rights. After deliberation, the Court found “in July 2010 that Slovenia had violated the right to private life under article 8 of the European Convention on Human Rights.”[37] Slovenia appealed and the case was taken up by the Grand Chamber, which held in July 2011 that Slovenia had breached Article 8, as well as Article 14, prohibiting discrimination, and Article 13, the right to an effective remedy.[38] The Court “ordered Slovenia to pay between €29,400 and €72,770 to each of the six applicants in the case,” which amounted to “€150 per person per month” [39] spent stateless. While this case represented only a handful of the erased, it has set both legal and normative precedent for other stateless persons of Slovenia, who now have 65 cases pending. [40] James Goldstone, executive director of the Open Society Justice Initiative, remarked, “This decision should enable thousands of the ‘erased’ to finally receive legal recognition…the judgment represents an important milestone in strengthening international norms against statelessness.”[41] Case Study 2: Myanmar “The word ‘Rohingya’ is a historical name for the Muslim Arakanese.”[42] Arakanese refers to the region formerly called Arakan, now a territory of Myanmar known as the Rakhine State. Arakan experienced periods of independence and domination until 1784, when it was “formally annexed by the Kingdom of Burma.”[43] This annexation later brought the ire of the British, who also had interest in the region. This resulted in the First Anglo-Burmese War, lasting from 1824 to 1826. It is important to note that this date of 1824 is now used in Myanmar as the marker of colonial rule. Research Professor Azeem Ibrahim explains, “Up to this point in time, the histories of Burma and Arakan were largely separate...”[44] A series of Anglo-Burmese wars thereafter ended in further British conquerings and their establishing “a clear division between a central region dominated by the Burman majority and outlying regions in which a complex patchwork of ethnic groups lived alongside one another.”[45] The ethnic origins of the Rohingya have recently been questioned. One group, including Ibrahim, contends “the Rohingyas settled in Burma in the ninth century, which, through the ages, have mixed with Bengalis, Persians, Moghuls, Turks, and Pathans, in line with the historically pluralistic population of Arakan State,” while the other considers them to be “illegal Chittagonian Bengalis who arrived as a by-product of British colonial rule.”[46] Unfortunately for the Rohinyga, the latter view has become widely accepted in Myanmar. In addition to being considered foreign, the association with British colonial rule is dangerous for the Rohingya. The British placed the ethnically Burmese Buddhist majority lower on the hierarchy during their rule than the Rohingya Muslims.[47] The Burmese deeply resented their inferior status, colonial rule, and the preferential treatment bestowed upon the Rohingya. Additionally, the Rohingya supported the British occupation. Ibrahim identifies this historical “link between religion, ethnicity and anti-British sentiment” as having a “profound influence”[48] in creating the intense ethnic hatred felt toward the Rohingya today. During World War II, Japan invaded and took over the region from the British. While the ethnic Burmese ranged from indifferent to supportive of the Japanese, the Rohingya supported British rule. This further heightened ethnic tensions in the area. The British recruited soldiers from both the Rohingya and ethnically Burmese, promising both groups independence after the war in exchange for their service. General Aung San famously led the Burmese to fight, first for the Japanese who made similar promises for independence, then later for the British. When Burma became independent in 1948, the Rohingya petitioned to join the Muslim state of East Pakistan. The petition was rejected, but had the effect of leading the “Burmese authorities to regard the Muslim population of Arakan as hostile to the new regime and to see them as outsiders whose loyalty lay with a different state. These events helped create a belief that only Buddhists could really be part of the new state.”[49] Burma’s history has been complex since achieving independence, but for the sake of brevity, it is here heavily condensed. Burma experienced a short period of democracy wracked with ethnic conflict and civil strife. General Ne Win first established a caretaker government, then later launched a military overthrow in 1962. Under military rule, Burma met protest and opposition with arrest and violence. In 1988, amid severe unrest, Ne Win stepped down. Student protests were met with police brutality, triggering demonstrations and further protests that were in turn met with military-grade violence. After a period of chaos and revolutionary fervor, General Saw Maung lead a coup, became Prime Minister, and instituted martial law. It was in 1989 that the military government changed the state’s name to Myanmar. Notably, in 1991, Aung San Suu Kyi, daughter of famed General Aung San who had helped bring independence but was assassinated before it was realized, received the Nobel Peace Prize while under house arrest for her words regarding peaceful reform. Throughout the 2000s, the military government made several small steps to ease Myanmar into democracy, culminating in 2011 with political reform and the release of Suu Kyi from house arrest. Under the new democracy, Suu Kyi won a seat in parliament in 2012. She was elected to the presidency in 2015, but is constitutionally barred from the presidency. She is the de facto state leader, but called officially “State Counselor.” a. Rendered Stateless: Domestic Citizenship Law It was during the time of unrest in 1974 that an intense need to divert public dissatisfaction resulted in the Emergency Immigration Act. The Act “imposed ethnicity-based cards (National Registration Certificates), with the Rohingya only being eligible for Foreign Registration Cards (non-national cards).”[50] These cards represented the first step in depriving the Rohingya of their citizenship. The 1974 Constitution of the Socialist Republic of the Union of Burma then defined citizenship jus sanguinis, giving it to those whose parents were citizens in 1947 – a time when the Rohingya were not formally citizens (as they had never been required to register, given their assumed citizenship jus soli).[51] Finally, in 1982, the Burmese Citizenship Law created categories of citizenship grouped by ethnicity. The groups were meant to align with length of bloodline prior to 1824 (the date marking the start of colonial rule). If a group was not considered indigenous prior to British rule, they were declared foreigners. This is what happened to the Rohingya, who subsequently became stateless. The Law includes steps for naturalization, but as Ibrahim explains, “[T]he one category that is excluded is someone born to two parents neither of whom are already citizens (the Rohingyas are therefore, by definition, excluded).”[52] In the most recent census (2015), “Rohingya” was not listed among the 135 ethnic groups, and their status as illegal residents was cemented. The stateless Rohingya have been systematically abused for decades, but in 2012 there was an incident wherein an ethnically Burmese Buddhist woman was raped by a Muslim Rohingya man that escalated the crisis.[53] Violence against the Rohingya became severe and their status as stateless both intensified the hatred directed towards them (as it confirmed their status as illegal Bangladeshis) and left them without legal protection or recourse. For his report for the Journal of Contemporary Criminal Justice, Ullah conducted 29 interviews with Rohingya. He found the situation far worse than the lack of income or healthcare experienced by the erased in Slovenia. Rohingya women explained how their “status of statelessness makes them vulnerable to sexual attack at different levels by pirates, bandits, members of the security forces, smugglers, or other refugees.”[54] One interviewee, Mr. Kalam, explains his experience as follows: "We were born on this soil but we are called illegal migrants....my family is from Maungdaw, but we left a few days later the NaSaKa people raped my sister in front of my family members. My brother in-law tried to resist them but he was taken away by them and he never returned. They told us if we didn’t leave Myanmar they would kill us all brutally."[55] In October of 2017, Amnesty International reported that over 530,00 Rohingya attempted to flee the country.[56] Given Myanmar’s geographic position, that journey requires them to brave the sea. Ullah’s interviewees describe the danger of the journey, which included starvation, beatings, and observed suicide of many who threw themselves overboard.[57] Those who survived the crossing were often treated no better upon arrival. Human Rights Watch issued a report in 2009 entitled “Perilous Plight” following the emergence of graphic images of a group of Rohingya on board a boat from Myanmar to Thailand.[58] The report discusses “Thailand’s callous ‘push-back’ policy,"[59] calling out the Thai government for “saying that the Rohingya were economic migrants, not refugees, and that Thailand could not absorb the flow.”[60] Worse than sending the Rohingya back to Myanmar (which would breach non-refoulement laws if the Rohingya were legally refugees[61] , [62] ) is the reality that “In May 2015, gruesome mass graves were unearthed in southern Thailand, revealing scores of bodies belonging to mostly Rohingya refugees.”[63] The Rohingya represent the very worst possible outcome of statelessness. They exemplify the way in which a people without citizenship or refugee status become vulnerable. This vulnerability, when applied to a despised people, results in some of humanity’s darkest crimes, many of which are now being identified as ethnic cleansing[64] and crimes against humanity.[65] b. Domestic Response: Endorsement and Ignorance As described, there is an abundance of evidence supporting the fact that the violence against the Rohingya is state-sponsored. Ullah calls it “organized, incited, and committed by local political party operatives, the Buddhist monkhood, and ordinary Arakanese, directly supported by state security forces.”[66] There is no functioning judicial infrastructure to speak of in Myanmar, though if there were it would be useless given the intermittent application of martial law. Suu Kyi, to the great disappointment of the West who honored her with the Nobel Peace Prize, has been largely silent and apathetic regarding the Rohingya. She avoids using the word “Rohingya” in interviews, mentioning it only in connection with the Arakan Rohingya Salvation Army, a Rohingya resistance group, which she claims commits acts of terrorism.[67] In one interview, Suu Kyi downplayed the crisis to such an extent that she referred to it as a “quarrel.”[68] When cornered by the media, she claims the West exaggerates the crisis.[69] Furthermore, the government of Myanmar has been accused of interfering with humanitarian aid meant for the Rohingya. The Rahkine National Party spokesperson justified restricting the aid supply as follows: “When the international community give them [Rohingya] a lot of food and a lot of donations, they will grow fat and become stronger, and they will become more violent.”[70] In keeping with this logic, borders were shut to international agencies attempting to help the Rohingya, such as Médecins Sans Frontiéres (the French branch of the NGO Doctors Without Borders), in what the ISCI calls deliberate “state actions designed to systematically weaken the Rohingya community.”[71] c. International Response: Non-Intervention The international response has largely been that of naming and shaming. Both Amnesty International[72] and Human Rights Watch[73] have labeled the abuses in Myanmar as Crimes Against Humanity. The US has responded with words of condemnation. Rex Tillerson, US Secretary of State, stated in November of 2017, "These abuses by some among the Burmese military, security forces, and local vigilantes have caused tremendous suffering... After a careful and thorough analysis of available facts, it is clear that the situation in northern Rakhine state constitutes ethnic cleansing against the Rohingya."[74] Yet, the only action taken has come in the form of diplomatic visits, verbal urges, and sanctions that were lifted in 2015. The European Union also lifted their sanctions in 2013 (except for an arms embargo). The UN has crafted reports and condemnations, but there has been no mention of action beyond the normative sphere. The UN has plans drafted for providing the Rohingya in Bangladesh with resources and aid,[75] but despite the talk of crimes against humanity and ethnic cleansing, there has been no movement in the General Assembly toward humanitarian intervention beyond aid. On the regional level, Myanmar is a member of the new supranational organization ASEAN (Association of Southeast Asian Nations). The 30th ASEAN Summit in April of 2017 notably did not include the crisis in Myanmar on its agenda and made no mention of it throughout the entirety of the Summit.[76] According to an article from The Diplomat, President Widodo of Indonesia expressed to Suu Kyi “that stability in Myanmar was important not only for the country but also the region.”[77] This passing comment, representing the most direct acknowledgement of the crisis from the Summit, is a far cry from intervention or even condemnation by fellow ASEAN states. As is typical of the culture of ASEAN (which will be discussed later at length), the problem is identified as an issue of stability rather than human rights. Bangladesh, which is not an ASEAN member, has worked with the United Nations Development Programme to create a Humanitarian Response Plan.[78] The Plan seeks to raise US $434 million for humanitarian aid, resources, and improved infrastructure in the host communities receiving the influx of Rohingya. The area to which most of the Rohingya arrive, Cox Bazar, has a “population of 2,290,000 predominantly Bengali Muslims, is one of Bangladesh’s poorest and most vulnerable districts, with malnutrition and food insecurity at chronic moderate levels, and poverty well above the national average.”[79] The Plan stressed the difficulty for Cox Bazar to accommodate the Rohingya who are “adversely affecting the food security and nutrition situation, and impacting the local economy by introducing a labor surplus which has driven day labor wages down, and an increase in the price of basic food and non-food items.”[80] The Plan also identifies a need for capital to address the issue of the increase in the illegal methamphetamine “yaba” coming from Myanmar and entering the local drug trafficking circles in Cox Bazar.[81] Case Study Analysis Similarities: Both cases of statelessness begin with the establishment of independent states freeing themselves from the influence of larger empires they felt exploited by. Slovenia emerged from the SRFY, while Myanmar gained independence from British colonial rule. Both states had preexisting ethnic tensions and upon independence used jus sanguinis citizenship laws as tools of ethnic engineering to establish national ethnic identities that privileged the ethnic majority over ethnic minorities. Slovenia’s citizenship law was written in 1990, while Myanmar’s was written just a few years prior in 1982. Both states are members of the UN and have affirmed the Universal Declaration of Human Rights. Both have chosen to join regional supranational organizations: Slovenia both the European Union and the Council of Europe, and Myanmar ASEAN. The Council of Europe has a doctrine of human rights, titled the European Convention on Human Rights, while ASEAN has formed the ASEAN Intergovernmental Commission on Human Rights and has included human rights law explicitly in their Charter.[82] Differences: While both case studies feature a recent history of independence, only Myanmar has a colonial history. Among the many long-term effects of colonialism is the exacerbation of deep ethnic tensions.[83] While the ethnic Slovenes had a desire to assert their independence and bolster their ethnic identity, they did not have a history of ethnic conflict rooted in colonial oppression. The ethnic majority of Myanmar, however, harbors a hatred of the Rohingya for their support of the British colonizers and their privileged position under colonial rule. This hatred, left to fester for centuries and passed down through generations, helps to explain the view of the Rohingya dominant in Myanmar: that they are Bangladeshi foreigners that have no place in Myanmar. Another difference, also attributable (at least in part) to colonial legacy, is in development status. Slovenia is affluent and highly developed, as is typical of European states. Myanmar, like many Southeast Asian states, has been a Least Developed Country since 1987. For the last thirty years, they have not been able to reduce their Economic Vulnerability Index the requisite degree to graduate to a Developing Country.[84] Development Status, of course, reflects the state economy, but it also includes rates of literacy, undernourishment, child mortality, and education.[85] These factors influence the political realities of states. Slovenia has had the opportunity to invest in infrastructure and education that allows for high quality of life, reduced ethnic divide, and high levels of institutionalization and rule of law. Myanmar, on the other hand, has not had the resources to engage in those opportunities, and instead faced poverty that only hindered rule of law, aggravated tensions, and made people susceptible to mobilization along ethnic lines by military and political opportunists. While both states are part of supranational regional organizations, the strength, values, and interests of these two organizations are vastly different. The Council of Europe, founded in 1949, is characterized by a culture committed to Human Rights. Being an old organization comprised of wealthy and like-minded states, it has been able to develop strong institutions. The interest in and capacity to enforce human rights law manifests in the strength of the European Court of Human Rights and the European Convention on Human Rights. This culture of human rights and strength of institutions combined with an interest from regional states absorbing the stateless together brought the Court to convict Slovenia of breaching the European Human Rights Convention. Slovenia, under the weight of this powerful regional organization, conceded. Additionally, Slovenia is a new member of the EU and has such had an interest in accepting the EU’s human rights norms in order to cement their status as an EU member (and to avoid EU sanctions). The fledgling ASEAN, on the other hand, only recently adopted their Charter in 2008. As such, the organization is young, weak, and not highly institutionalized. While its Charter seeks to “protect human rights,”[86] it lacks any judicial infrastructure for doing so. It does, however, contain articles explicitly outlining: “respect independence, sovereignty, equality, territorial integrity and national identity of all ASEAN member states,”[87] “non-interference in the internal affairs of ASEAN member states,”[88] “respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion,”[89] and “abstention from participation in any policy or activity, including the use of its territory, pursued by an ASEAN Member State or non-ASEAN state or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States.”[90] From these articles it is abundantly clear that the culture of ASEAN is such that it values sovereignty and non-intervention far more than human rights. In addition to weak institutions and a culture that respects sovereignty, the ASEAN member states are not absorbing the Rohingya population and thus have no interest in intervention. Gruesome as it may be, the geographic reality of the Southeast Asian region is such that those who flee from Myanmar do so by boat, and many do not survive the oceanic crossing. Those who do are headed primarily to non-ASEAN member Bangladesh. The Rohingya who attempted to enter Thailand, which is an ASEAN member state, were either returned to Myanmar[91] or did not survive.[92] Findings: The Importance of Regional Asymmetry This paper maintains that nearly all of the above differences share a common factor: they are regional in nature. The realities of being a European state versus a Southeast Asian state are markedly different. These regions have different histories, resources, levels of institutionalization, values, cultures, and interests, all of which are reflected in the actions (or lack thereof) of their supranational organizations. Without clear international law, it falls on these regional organizations to choose whether to intervene on the part of the stateless in the name of human rights or to be silent and honor sovereignty. This essentially means that without the protection of international law, domestic law, or refugee law, the fate of stateless peoples is currently determined by the fortuity of geography. Should they be rendered stateless in a region with a strong, established supranational organization with a culture valuing human rights, their treatment will be wildly different than a stateless person born in a region with a young, weak supranational organization that values sovereignty. Conclusion This paper has demonstrated that the issue of statelessness is so difficult to address because of the fundamental contradiction in international law protecting the universal human right to nationality and the state’s right to determine who its nationals are. When these rights come into conflict, it remains unclear which law supersedes the other, thereby creating opportunities for deprivation of nationality. This paper examined one successful example of statelessness being addressed (Slovenia) and one devastating failure (Myanmar). The case studies reveal the common use of citizenship laws as tools of ethnic engineering in newly formed states. They also reveal the primary difference, and thus determining factor, to be regional. In these legally ambiguous situations it was the strength, values, and interests of the regional organizations that determined whether or not stateless peoples were protected. Moving Forward This paper contends that the highly unequal treatment of the stateless of Slovenia and Myanmar is unacceptable. Rather than allow the fate of the stateless to rest upon the nature of the regional organization in place, clear and strong legal rights and protections need be outlined for stateless peoples. One manner of achieving this goal would be an amendment to the laws of refugees to include stateless peoples. The refugee legally flees their nation for “well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.”[93] Amending the law such that this definition also includes persons fleeing for well-founded fear of persecution for reasons of statelessness would suffice. A second, more difficult, option would be to bolster a body of law specifically for stateless peoples (like that for refugees), as the current state of international law protecting stateless peoples is evidently insufficient. As the legal system stands now, the global community will likely not intervene in Myanmar until the crisis becomes so egregious as to invoke the Responsibility to Protect, and even then it is not clear if intervention will occur, and if so what form it will take. Endnotes [1] "Myanmar: Crimes against humanity terrorize and drive Rohingya out," Amnesty International, October 18, 2017, https://www.amnesty.org/en/latest/news/2017/10/myanmar-new-evidence-of-systematic-campaign-to-terrorize-and-drive-rohingya-out/ . [2] UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, September 2011, available at: http://www.refworld.org/docid/4ec4a7f02.html [accessed 16 December 2017] [3] United Nations High Commissioner for Refugees, "Protecting Refugees: questions and answers," UNHCR, February 01, 2002, http://www.unhcr.org/afr/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html . [4] "IDP definition," UNHCR|Emergency Handbook, https://emergency.unhcr.org/entry/67716/idp-definition . [5] "IDP definition," UNHCR|Emergency Handbook, https://emergency.unhcr.org/entry/67716/idp-definition . [6] Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Oxford and Portland, Oregon: Hart Publishing, 2016), 96. [7] "Right to a Nationality and Statelessness," United Nations Office of the High Commissioner, http://www.ohchr.org/EN/Issues/Pages/Nationality.aspx . [8] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [9] Article 12 (4), UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 12(4). available at: http://www.refworld.org/docid/3ae6b3aa0.html . [10] Article 12 (4), UN General Assembly, International Covenant, 5(d) (i) – (ii). [11] UN Human Rights Council, Human Rights and arbitrary deprivation of nationality: Report of the Secretary-General, 14 December 2009 (UN Doc A/HCR/13/34), available at: www.refworld.org/docid4b83acb2.html . [12] UN Human Rights Council, Report of the Secretary-General. [13] League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137, available at: http://www.refworld.org/docid/3ae6b3b00.html . [14] League of Nations, Convention on Certain Questions. [15] ILC, ‘Report on the Elimination or Reduction of Statelessness’ (1953) UN Doc A/CN.4.64;ILC, Yearbook of the International Law Commission, vol II (1963) 167 [14]-[15] [16] ILC, ‘Report on the Elimination or Reduction of Statelessness’; ILC, Yearbook, 167 [14]-[15]. [17] Paul Weis, Nationality and Statelessness in International law (Westport, CT: Hyperion Press, 1979). [18] "UN Conventions on Statelessness," UNHCR, http://www.unhcr.org/en-us/un-conventions-on-statelessness.html . [19] "UN Conventions on Statelessness," UNHCR. [20] Constitution of the Republic of Slovenia [Slovenia], 23 December 1991, available at: http://www.refworld.org/docid/4c407ae62.html . [21] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 20. [22] Citizenship Act of the Republic of Slovenia [], 25 June 1991, available at: http://www.refworld.org/docid/3ae6b5271b.html [23] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 160. [24] Igor Štiks, Nations and Citizens, 160. 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Sheldon Whitehouse is the junior United States Senator from Rhode Island. A Democrat, Sen. Whitehouse was elected in 2007, after having served as the Attorney General of Rhode Island between 1999 and 2003. He takes an active interest in environmental issues, advocating the need to find solutions to *Feature* Sheldon Whitehouse Sheldon Whitehouse is the junior United States Senator from Rhode Island. A Democrat, Sen. Whitehouse was elected in 2007, after having served as the Attorney General of Rhode Island between 1999 and 2003. He takes an active interest in environmental issues, advocating the need to find solutions to climate change. As of March 2018, Sen. Whitehouse gave over 200 speeches on the topic, urging his collogues to take concrete action. Spring 2019 Download full text PDF (3 pages) Every week that Congress is in session, I head to the Senate floor to urge my colleagues to take action on preventing climate change. In more than 225 of these speeches delivered since 2012, I have emphasized the mounting scientific evidence that our carbon pollution is driving dangerous changes in the atmosphere and oceans. I have also called out the powerful fossil fuel industry, which the International Monetary Fund reports enjoys a nearly $700 billion annual subsidy just in the United States. That immense conflict of interest—protecting that subsidy—is the reason the industry has marshalled its massive resources to promote climate change denial and prevent Congress from doing anything to reduce our dependence on dirty energy. Under President Donald Trump, former industry operatives fill executive branch posts, working to roll back climate protections. When the administration released its legally mandated National Climate Assessment in November, officials timed it for Black Friday during the Thanksgiving holiday, when it would be unlikely to get public attention. The report, written by 13 federal agencies, described the monumental damage the United States faces from climate change. It contradicted nearly every assertion Trump and his fossil-fuel-flunky Cabinet have made about climate change. Tellingly, the administration tried to bury the report, rather than contest it. That may be because the science of climate change is incontrovertible. (Back in 2009, even Donald Trump said it was “irrefutable.”) Damage from climate change is already occurring. There is no credible natural explanation. Human activity is the dominant cause. Future damage from further warming will be worse than we previously thought. Economies will suffer. And as the report declares, we are almost out of time to prevent the worst consequences of climate change. The effects of climate change are felt in every corner of the nation. From the Ocean State, we’re already seeing sea levels rise, as oceans warm and land ice melts. If fossil fuel emissions are not constrained, the National Climate Assessment says, “many coastal communities will be transformed by the latter part of this century.” Along coasts, fisheries, tourism, human health, even public safety are under threat from increasingly extreme weather events and rising seas. Out West, “more frequent and larger wildfires, combined with increasing development at the wildland-urban interface portend increasing risks to property and human life.” We need to look no further than the massive wildfires Californians battled last year for stark evidence. More than 100 million people in the U.S. live with poor air quality, and climate change will “worsen existing air pollution levels.” Increased wildfire smoke heightens respiratory and cardiovascular problems. With higher temperatures, asthma and hay fever rise. Groundwater supplies have declined over the last century, and the decrease is accelerating. “Significant changes in water quantity and quality are evident across the country,” the report finds. The government assessment finds that Midwest farmers take a big hit: warmer, wetter, and more humid conditions from climate change; greater incidence of crop disease, and more pests; worsened conditions for stored grain. During the growing season, the Midwest will see temperatures climb more than in any other region of the U.S. Climate change will “disrupt many areas of life,” the report concludes, hurting the U.S. economy, affecting trade, and exacerbating overseas conflicts for our military. Costs will be high: “With continued growth in emissions at historic rates, annual losses in some economic sectors are projected to reach hundreds of billions of dollars by the end of the century—more than the current gross domestic product of many U.S. states.” Danger warnings already flash in some economic sectors. The huge federal home loan corporation Freddie Mac has warned of a coastal property value crash, suggesting economic losses from climate change are likely to exceed those of the housing crisis and Great Recession. The Bank of England, as a financial regulator, is warning of a “carbon asset bubble.” The solution to climate change is to decarbonize, invest more in renewables, and broaden our national energy portfolio. A carbon price would allow this big shift to happen, all while generating revenues that could be cycled back to citizens, and help the hardest-hit areas of transition. The smart move we need to make does not have to be painful. It can actually be a big economic win. Nobel Prize winner Joseph Stiglitz has testified: “Retrofitting the global economy for climate change would help to restore aggregate demand and growth. Climate policies, if well designed and implemented, are consistent with growth, development, and poverty reduction. The transition to a low-carbon economy is potentially a powerful, attractive, and sustainable growth story, marked by higher resilience, more innovation, more livable cities, robust agriculture, and stronger ecosystems.” Or we could do it the hard way, continuing to do the fossil fuel industry’s bidding and racking up the dire economic consequences of flooding, drought, wildfires, and stronger storms. The status quo is not safe. Which way we now go depends on whether Congress can put the interests of our people ahead of the interests of the polluters. The record is not good, I’m afraid. Since the Supreme Court’s disastrous Citizens United decision, which unleashed unlimited corporate money into our elections, the politics of climate change is a tale of industry capture and control. So far, despite the industry’s massive conflict of interest and provable pattern of deception, and despite clear warnings from scientists and economists, the Republican Party has proven itself incapable of telling the fossil fuel industry “no.” So it doesn’t look good. But the climate report does say we still have time—if we act fast. There is one major development gives me great hope for the future. Survey after survey shows that the generation coming of political age today overwhelmingly supports taking action on climate change. They have longer to live on this planet than members of my generation, and they are determined to make it a better place. I expect they will. I’ll close with a reference to The Gathering Storm, Winston Churchill’s legendary book about a previous failure to heed warnings. Churchill quoted a poem, of a train bound for destruction, rushing through the night, the engineer asleep at the controls as disaster looms: “Who is in charge of the clattering train? The axles creak, and the couplings strain. . . . the pace is hot, and the points are near, [but] Sleep hath deadened the driver’s ear; And signals flash through the night in vain. Death is in charge of the clattering train!” We are that sleeping driver; the signals of a changing climate flash at us, so far in vain. It’s time to wake up.

*Feature* John R. Allen John R. Allen is a retired United States Marine Corps four-star general, and former commander of the NATO International Security Assistance Force and U.S. Forces - Afghanistan (USFOR-A). He was appointed by President Barack Obama as the special presidential envoy for the Global Coalition to Counter ISIL (Islamic State of Iraq and the Levant). He is currently the President of the Brookings Institution, and his most recent research addresses the effects of artificial intelligence in a variety of sectors. Allen’s piece in JPPE’s second issue explores the effects of artificial intelligence on the future of education. Fall 2018 Artificial intelligence (AI) and emerging technologies (ET) are poised to transform modern society in profound ways. As with electricity in the last century, AI is an enabling technology that will animate everyday products and communications, endowing everything from cars to cameras with the ability to interact with the world around them, and with each other. These developments are just the beginning, and as AI/ET matures, it will have sweeping impacts on our work, security, politics, and very lives. These technologies are already impacting the world around us, as Darrell West and I wrote in our April 2018 piece “How artificial intelligence is transforming the world ,” and I highly recommend that anyone just discovering the topic of AI policy read it thoroughly. There, Darrell and I describe several important implications related to AI/ET, but chief among them is that these technology developments are on the cusp of ushering in a true revolution in human affairs at an increasingly fast pace. As AI continues to influence and shape existing industries and allows new ones to take root, its macro-level impact, particularly in the realm of economics, will become more and more apparent. Control over the research and development of AI will become increasingly vital, and the winners of this upcoming AI-defined era in human history will be the countries and companies that can create the most powerful algorithms, assemble the most talent, collect the most data, and marshal the most computing power. This is the next great technology race of our generation and the stakes are high, particularly for the United States. If American society is to embrace the full range of the social and political changes that these technologies will introduce, then it is the education and training we provide our youth and workers that will fuel the engines of future AI, and therefore geopolitical success. I've studied and written extensively about the effects of AI/ET on the evolving character of war toward a concept I’ve called hyperwar – or, a new era of warfare in which, through AI, the speed of decision making is faster than anything that has come before. At a superficial level, this topic often devolves into a discussion of “killer robots,” or at the very least the impending use of AI in lethal autonomous weaponry. While those discussions are relevant and inextricably linked, they represent a narrow understanding of the greater issues at hand. The concern over AI’s potential or theoretical military applications must not distract us from how far-reaching the impact of AI will be in nearly all other policy domains. Health care, education, agriculture, energy, finance, and yes, national security, will all be reshaped in some way by AI – with education being the pivot point around which the future of the United States revolves. This is not solely a matter of social redress – which is by itself is extremely important – but in fact is a larger national security issue. The way we use education to prepare our next-generation of leaders will directly determine whether the US retains its leadership in critical fields of relevance in the emerging digital environment. Without a sufficiently educated population and workforce, the US likely will slip behind other states for whom AI/ET is not only means for improved social organization, but for strategic superiority, and potentially for digital and physical conquest. A future in which the United States is second in the race for AI technology would create a situation of national technological and digital/cyber inferiority, which could in turn result in national strategic subservience – something simply unimaginable in a world of growing strategic competition with systems of government very different from ours. Many Americans grew up with the understanding that the US’ capacity to fight and win a nuclear war was defined by its superiority in the Strategic Triad, the three legs of our strategic deterrence: our missile squadrons, our bomber fleet, and our ballistic missile submarines. Behind that dizzying array of hardware was the undisputed power of US intellectual and technical capabilities, and behind that was a near unlimited supply of talented engineers, each trained by a system of education undisputed in its excellence. That system was built from the ground up to produce crucial STEM (science, technology, engineering, and math) protégés in the quantities needed to ensure American strategic superiority, which contributed directly to the US and its allies prevailing in the Cold War. For the health of our American way of life, our competitive advantage, and the strategic security of our nation, the basis for tomorrow’s system of education must reflect a deliberately tuned and calibrated system that proactively emphasizes AI/ET, big data analytics, and super-computing. Unfortunately, in both relative and absolute terms, the US is falling behind in the race for superiority in these key technologies and AI. Where the US strategic advantage of the 20th Century was secured by American nuclear superiority, US superiority in the 21st Century will likely be preserved, safeguarded, and sustained through a system of education that envisages the changes necessary and is sufficient to embrace and apply relevant technologies. It will also be underwritten by educators who grasp the profound shifts in the pedagogical skills essential to the educational needs of the 21st Century. The need to adapt is great – and for this system to be fully embraced it must come in the form of a comprehensive and national US strategy for education in the digital age, to include the resources necessary to bring education into the digital classroom, and to educate and train entire generations of educators to be relevant in the 21st Century and beyond. The United States must at all costs preserve its position of primacy in AI, big data, and super-computing through leaders who understand these issues on a fundamental level and have the political will to develop and resource a comprehensive plan for reimagining our national education efforts. In thinking about the essence of a US national education strategy adapted to the digital age, several important questions arise pertaining to the way we think about education and develop the next generation of leaders: What will be the implications for how we educate, train, and develop teachers? A discussion on the impact of AI on education will point dramatically to those who facilitate the process in our schools. The very term “teacher” may be insufficient to adequately capture the role of this key individual in the educational experience. Teaching and learning requirements may be substantially re-ordered and the dynamic of learning versus teaching in an AI-based system of education will be very different. And while teachers today are in many ways the unsung and underappreciated heroes of the American workforce, the teachers of the digital age may define the future of America. This will raise important questions about requirements for teaching degrees and related certificates in this new environment, and the necessary adaptation of the science of pedagogy to these changes. Ultimately, the key question will be “are the teachers of today ready to develop the leaders we will need tomorrow?” A difficult question, to be sure, and the answer today is no. The national education strategy must focus on their development as it focuses on the students as well. What will the AI-based classroom look like? With AI, every aspect of the traditional learning environment is up for reimagining. Will classrooms continue to be physical spaces? Or instead, will it be a virtual "space" using networked augmented or virtual reality technologies? The answer is yes to both, and the student in tomorrow’s AI based educational experience will be exposed to an immersive, digital education heretofore unimaginable. The distributed, networked, virtual reality classroom is both enormously exciting, and at the same time frightening for the enormity of its potential. There are major challenges to measuring success in an AI-based educational process. For instance, if our students can become more deeply involved in the pathways of their own learning through AI, measurement will occur moment to moment, as well as the success of remediation. In the best-case scenario, we will know at the end of each student’s day if s/he is meeting academic requirements and quickly correct deficiencies as necessary to stay on track. In any case, there are profound moral questions to consider with a system such as this, and policymakers must understand the underlying dynamics of the technologies at play if they are to fully support society. What will this kind of system of education do to reduce inequalities in our society? One of the most profound aspects of education in the AI environment is that these technologies could unleash the potential and productivity of a huge sector of American and global society hitherto constrained by their educational experience and resulting lack of opportunity. Local governments, schools, and especially the private sector will need to routinely intersect to create synergy and symbiosis to enhance our educational processes. Through the AI-powered digital space, “opportunity for all” may become a reality for those who previously had little means of achieving their own piece of the American Dream. The profoundly limiting feature of these opportunities lies in internet and 4G and 5G penetration within the United States, and the sometimes appallingly scarce educational resources committed in some areas in America. There are large segments of the US where our education systems, and our youth, have limited-to-no access to the internet and to Wi-Fi. If we hope to achieve our digital potential, and to continue to maintain our lead in AI and other emerging technologies, a national program to bring Wi-Fi and the internet to all our citizens is absolutely essential, and will in any case help to close the sometimes yawning gaps created by racial and income inequality in the US. AI/ET promise to usher in a bold new era of human history, one where the machines we create will oftentimes be smarter, faster, and more powerful than those who created them. This reality has profound implications for the field of education and introduces complex ethical, legal, and societal implications that academics, policymakers, and average citizens alike will need to contend with as every aspect of society reshapes around them. Further, the United States risks strategic inferiority if it does not embrace a full reconsideration of education in the digital environment, to include a comprehensive strategy for reimagining our education system at the national level. Today, we are not training our young leaders with the tools required to be successful in the digital age, and that has deeply troubling implications for the future of American society. Nevertheless, just as the United States persevered through the Cold War through technological superiority, I am hopeful that the 21st Century will yet again be one defined by American leadership – with our best and brightest from across the entire society leading the charge in digital era.

Author Name < Back Unwitting Wrongdoing: The Case of Moral Ignorance Madeline Monge Should we blame and praise people for actions which they are ignorant of performing or which they take to be morally neutral? There are two competing theories for the moral assessment of ignorant agents. Capacitarianism focuses on whether an agent could have to have done something to not be ignorant but instead acquire moral knowledge. Valuationism determines an ignorant agent’s blameworthiness by looking at their values. Someone is blameworthy if they act within their values and still commit the harmful act. My paper makes three points. First, I examine how thought experiments revolving around moral issues are either written in support of, or as counterexamples to, the two theories of moral responsibilities. The description of these thought experiments causes the reader to lean in favor of what the theorist is trying to argue. In other words, these thought experiments function as intuition pumps. Second, reflection on the thought experiments used in support of the two theories of moral responsibility reveals that these theories, rather than being rivals, are two sides of the same coin. In this paper, I presuppose ignorance is a lack of knowledge. Knowledge I take to be a composite state that consists at the very least of three necessary conditions: truth, belief, and justification. This view, which can be traced back to Plato’s Theaetetus , claims that what distinguishes knowledge from mere true belief and lucky guessing is that it is based on some form of justification, evidence, or supporting reasons. The truth condition of the justified-true-belief analysis of knowledge states that if you know that p, the p is true. The truth condition need not be known; it merely must be obtained. The belief condition claims that knowing that p implies believing that p. Finally, the justification condition demands that a known proposition is evidentially supported. he justification condition prevents lucky guesses from counting as knowledge when the guesser is sufficiently confident to believe their own guess. Given that ignorance is the lack of knowledge and given that knowledge has at least three necessary conditions, there are many different sources of ignorance: lack of belief, lack of truth, and lack of justification. There are numerous psychological factors that can give rise to each of these three conditions. Among these psychological factors are forgetting, cognitive biases, miseducation, or lack of exposure. I presuppose this ignorance to be lacking knowledge. There is not only one type of ignorance, rather, there are two main classes of such: factual ignorance, and moral ignorance (Rosen, 64). There are various sources of ignorance from where factual and moral ignorance arise. When someone does not know, forgets, is lacking exposure to, is miseducated, does not retain, or misunderstands a given fact that cannot be disputed under any circumstance, they can become either factually or morally ignorant. These sources can be relieved with conscious effort, or by external involvement (Rosen, 302). Ultimately it is up to the agent to recognize errors that result from their ignorance. A debate surrounding the exculpating factors of moral or factual ignorance is important to understand. It is generally thought that immoral actions can only be exculpated by factual ignorance, but not moral ignorance. Factual ignorance hinges around objects of descriptive facts. I will be using an example of slavery in ancient slave-times to illustrate this concept. Let’s suppose someone lives next door to someone who has slaves but also does not know they are living next door to slaves. This would be a situation of factual ignorance because the neighbor does not know the fact that there are slaves living next door (Rosen, 72). It could be because they are unobservant, or because the slaveholder does a good job of keeping the slaves quiet; there is also the chance that the neighbor doesn’t care, is distracted by their own life, or denies their worry of believing that there are slaves. The slaveholder hiding slaves is an objective/descriptive fact that cannot be disputed. Even if they deny it, the slaveholder would still have slaves, and the descriptive fact would not change. On the other hand, moral ignorance arises when someone is ignorant of a moral fact. Moral facts are normative, and they prescribe courses of actions that are true simpliciter (Rosen, 64) . If the neighbor to the slaveholder knows that they are living next door to slaves, but does not know the slaveholder is harming them, this wouldbe moral ignorance. It is morally impermissible for the slaveholder to have and harm slaves. The neighbor should know the slaveholder is acting immorally by keeping and harming the slaves. Moral ignorance does not stop at the fact that the neighbor does not know it is morally wrong to harm people, but they may also not know they should do something about the harm. This ignorance of harm can be defined as, not knowing that an action may cause pain (harm) when one should know it does so. They also ought to know that, without good reason, harming people should be avoided at all costs because it is morally impermissible (Biebel, 302). Should the neighbor be exculpated because of factual or moral ignorance? If the neighbor does not know that having and harming slaves is morally impermissible, this could not be factually exculpated. This is a case of moral ignorance. The neighbor would be morally exculpated for their ignorance in this scenario because they are unaware that having and harming slaves is impermissible by moral standards (Rosen, 66). There is no opportunity for the neighbor to be factually ignorant. What prompts this type of ignorance? Perhaps the neighbor does not care that the slaves are being harmed, is distracted by other events, or is afraid of the repercussions that will incur because of speaking out against the moral injustice. The most important aspect of moral ignorance is to remember that it is prescriptive, and not descriptive. The argument of moral ignorance and blame revolves around what should or shouldn’t be done because of lacking knowledge. This is largely in part to the distinction between factual and moral ignorance. Factual ignorance may sometimes exculpate an immoral action, but it is ultimately moral ignorance that will exculpate an individual (Sliwa, 6). I. Capacitarian and Valuationist Assessments of Moral Responsibility: There are now several theories that concern moral ignorance: volitionist, attributivist, capacitarian, valuational, parity, and pragmatic. While all differ from one another in how they attribute blame to cases of moral ignorance, capacitarian, parity/pragmatic, and volitionism share a disposition of blame that focuses on someone’s capacity of knowledge (Biebel). Valuationalism and attributivism respond to blameworthy actions as being dependent on the personal volition of the agent. I’d like to classify these two categories as capacitarian and valuational. I will occasionally refer to specific points that individual theories make, but with the example of the slaveholder, I will continue the conversation with the two main theories. The capacitarian theories revolve around the counterfactual capacity that an individual has when deciding which action to take in a morally relevant situation that could’ve been prevented. They look at situations where someone is blameworthy. They want to know if it was in the agent’s capacity to correct or avoid being ignorant, and if this would have prevented them from performing the immoral action. Capacitarians consider people responsible for their actions if they are responsible for their capacity of behavior. People who lack the capacity for knowing what is morally permissible, say children, or people who are mentally incapable of retaining information relevant to moral standards, are not culpable for their immoral actions. They can be corrected, and may learn afterwards, but they are not blameworthy. They lack the ability to retain vital moral considerations. Capacitarians do not skip over the fact that people’s ignorance may be the reason they are acting immorally. If someone believes from their ignorance that what they did was the most rational and correct method of handling a situation of moral relevance, then they may be exculpated. However, this justification is only one part of the knowledge needed to have an accurate and knowledgeable conclusion. How a morally significant situation should be handled depends on someone’s capacity to know whether they had the opportunity to do something differently. This difference in choice may have changed someone’s ignorance into knowledge and prevented the immoral action. When someone is not aware why they are ignorant, they are also unaware of how they can resolve their lack of knowledge. This is the way capacitarian’s view moral ignorance to be exculpable, and encapsulates much of capacitarians’ concern. How can someone be blamed for not knowing a moral standard if they have never been socially conditioned or taught what the moral standard is? When I go over the varying vignettes that hone in on how the capacitarian theory can be utilized I will be able to further demonstrate the degrees of internal and external factors that influence moral ignorance, conveying how someone might come into the position to remedy their ignorance but lack the awareness or determination to do so. Arguing against the capacitarian theory is the valuationist theory. Valuationism responds to capacitarianism with a specific criticism. Capacitariansim uses immoral ignoramus as a clear reason to excuse someone from an immoral action, but valuationists believe that the capacitarian theory is too easily applied to every case of immorality. They do not think it is wise to exculpate someone who has forgotten or is unknowledgeable about morality. Valuationism approaches the topic of blame and exculpation surrounding immoral actions by looking at omission and forgetfulness. The theory considers omission and forgetfulness to lead to potentially harmful instances of ignorance. Harmful ignorance is when someone consistently shows blameworthy immoral actions. Valuationists trace the value systems and the past actions of agents to see what led them astray towards immoral actions. They look at recidivism rates, as well as values and virtues. Valuationalism investigates how people are held accountable for their actions and believe someone is only deserving of moral praise if they have reason to act morally. Moral responsibility is the condition of whether someone is praiseworthy, blameworthy, or excused from the former two because of their involvement in a moral act. Someone could also fail to act or omit an action. This is potentially why someone deserves a moral reward or punishment. Valuationists agree that psychological states may affect someone’s behavior to act accordingly during a moral situation. They see this as one component in the person’s link to act or neglect to act. Therefore, valuationists think it can only serve as a partial excuse for someone and is not a strong enough argument to exculpate them from a morally relevant situation. Psychological states in a valuationist framework does not make someone incapable of moral knowledge, nor does someone’s emotional attachment serve as a reason for someone to act immorally. Whether someone cares about an action does not render them more or less blameworthy. It may affect how much or little they will react, but it should not affect their moral assessment. Therefore, valuationalist’s believe that most people are, more often than not, blameworthy for their moral ignorance. If they have not responded in a morally kind manner to a situation, it’s because their values align with preconceived notions of their background. These preconceived notions are often the fundamental reasons for why someone acts immorally. Capacitarians avoid looking at an agent’s value system because they want to know if the immoral act could have been avoided, and if the agent could have prevented themselves from being ignorant in the first place. When we look at somebody's capacity to act, we are tracing their past actions and whether or not they had the ability to change their moral knowledge. Capacitarians rely on a history of someone’s actions. The values that arise from somebody's capacity to act are decided through the person's past actions from the moment they are born. Capacitarians look at past actions carefully because the culmination of them sets up the targeted subject that a valuationist uses to counter their argument. Values are deeply seated through someone’s past actions. The more they are reinforced through choice of action and external influences, the more established they become. The deeply seated beliefs that someone has grown into values are important for evaluating the response a person has to a morally loaded situation. We saw examples of this in the altered versions of the vignettes. Without the added context, a reader wouldn’t have been able to tell what the characters valued, nor what their guiding principles were. When we manifest actions as guiding principles, we are acting from a result of our values. These have been established by our capacities to act in the past. The values we are focusing on in this paper are intrinsic. For example, valuing education leads to being more productive in helping your children with their schoolwork and helping them improve when they need it. Valuing health means you likely eat a balanced diet and exercise regularly. These specific examples of intrinsic values provide a foundation for readers to rest on when making their own evaluative judgments. These intrinsic values lead to other good things, like, your children getting into a good school, and you living a life with bountiful opportunities because of your health. The Valuationist Theory focuses on such intrinsic values, and are meant for the valuationist to rationally conclude whether the characters in the vignettes are blameworthy or not. Values directly shape what people do and say. Their actions are subsets of behavior, and their behavior is a combination of capacities for potential action and values. Action is intentional behavior. Guiding principles of values will manifest as actions. The way we act is a subset of our values and that action is intentional. Each subset, whether planned or an unconscious reaction, is a value in disguise.Our actions are mostly intentional and based on our values, but sometimes they can be accidents due to forgetting. They may also be from a lack of capacity to change behaviors in the past and potentially due to a lack of values. II. Perspectives on the Assessment of Moral Responsibility with Respect to Capacitarian and Valuationist Approaches: In this next section, I will review various vignettes that scholars have introduced into the conversation of moral ignorance, discussing how our theory of moral responsibility will change depending on how the stories are described. I will be using a vignette from Alexander A. Guerrero’s 2007 article, “Don’t Know, Don’t Kill: Moral Ignorance, Culpability, and Caution”, which discusses the moral ramifications of poisoning someone with cyanide. I will also incorporate a recent, original vignette about the moral culpability of leaving a dog in a hot car. Both cases convey how the same set of events may be narrated in a way that supports the C or the V theory. . The support from these different theories is not derived from the event themselves but in how their contexts are described. Omitting and highlighting certain features will change which theory best explains whether someone should be blamed or praised. It is impossible to give a complete account of these theories in these vignettes, but we will be careful in fully describing each theory and embellishing. This will show which theory best explains each vignette. Both what could have happened and what is described will show whether one is morally blameworthy in the capacitarian sense. If a vignette lends itself to the capacitarian theory, it will focus on possible actions that could have changed depending on the capacity of the protagonist’s acknowledgement to do something differently. If the vignette falls towards the valuationist perspective, it is because of the protagonist’s present character traits and values. A. Case One: Guerrero’s Poison Let’s consider the case of Anne, who poisons Bill by spooning cyanide into his coffee. Anne believes she is spooning sugar, and she is blameless for her false belief. Is Anne blameless for poisoning Bill? Rosen concludes that an action done from ignorance is not a locus of original responsibility. This means Anne is only responsible for poisoning Bill if she is responsible for her ignorance about the fact that she is poisoning Bill. Guerrero has constructed a vignette that partially supports a theory where ignorance can be morally exculpated. What happens when details of the character’s capacities and values are introduced? I’m going to reintroduce Guerrero’s story with these details added to demonstrate the effectiveness of manipulating the story so the capacitarian or the valuationist theory provides a better explanation and justification of our natural inclination to blame the protagonist. B. Case Two: Guerrero’s Poison (modified) Let’s consider again the case of Anne, a single mother who is Bill’s girlfriend. Bill regularly comes over in the morning to share a cup of coffee because he has been dating Anne for a few months. After a long night of helping her children prepare for an important exam, Anne believes she is spooning sugar into Bill’s morning coffee and is unaware that she is poisoning him with cyanide. Anne does not know that last night after she went to bed exhausted from tutoring her children, she had a sleepwalking incident where she mistakenly poured out the sugar in the sugar dish and replaced it with cyanide. Afterwards, Anne went back to bed and did not remember what she did in the middle of the night. That morning while Anne was spooning poison into Bill’s coffee, he innocently read the morning news on his phone and did not give the sugar a second thought. Was it in Anne’s capacity to make sure she was spooning sugar and not cyanide into Bill’s coffee? If Anne does not regularly sleepwalk then we cannot expect it to be within her capacity to know that she ought to check the sugar dish just in case she had tampered with it the previous night. What about Anne’s values? We know that Anne values relationships and caring for others, as well as education. This is why she stayed up to help her children prepare for an exam, and also why she regularly invites her boyfriend over for coffee. Here Anne is not blameworthy for her ignorance, nor has she acted within a set of immoral values that would prompt her to poison Bill. This has never happened before to Anne. Anne has never sleepwalked a day in her life and has a consistent record of showing Bill hospitality and care. Under a valuationist’s account of moral blame, Anne would not be considered blameworthy because her actions do not align with her values, and after the incident, she continued to grieve and disapprove of her ignorance. She did not intend to cause suffering, nor does she value suffering. Anne unfortunately is the cause of Bill's death because she had a momentary lapse in her sleep routine which caused her to act involuntarily on account of ignorance. In this case, Anne would not be blameworthy by capacitarian standards, nor by valuationist standards. Anne is not originally responsible for poisoning Bill, and she would be considered morally exculpated. Based on what the story tells us about Anne’s character traits and values, one can see that she did not act with malicious intent. It was an honest mistake, and a serious accident. Even though Anne has never sleepwalked before, would it be reasonable to expect her to check her sugar before she gives it to Bill? I think it would be considered unreasonable for anyone to expect Anne to check her sugar because Anne does not have a past history of swapping out her sugar with other substances. If it were the case that Anne has sleepwalked before, and she has a past history of replacing her sugar with other substances, like salt, powder bleach, or baby powder, then it would be reasonable to expect her to check. If Anne had a history of swapping substances, then her negligence to check on the sugar dish would be an involuntary act in ignorance. In this vignette, how a capacitarian and a valuationist consider someone to be morally blameworthy or exculpated is revealed through the protagonist’s capacity and character traits. This example shows us that the capacity of memory to prevent a potentially harmfully ignorant situation is a mitigating factor in someone’s judgment of immoral behavior. Anne did not willfully act immorally and is not blameworthy for her involuntary action done out of ignorance (Alvarez & Littlejohn, 8). Both theories attribute a small degree of responsibility to the harm Anne has done, but not enough to judge her as being willfully ignorant nor morally culpable. Capacitarian and valuationist theories agree with each other in how they assess this vignette due to Anne’s isolated incident. Let us take another vignette to compare capacitarian and valuationist theories. In this next scenario we have the unfortunate event of a dog dying after being left in a hot car unattended for some time. C. Case Three: Hot Dog Imagine Mrs. Crawford is out running errands with her medium sized cocker-spaniel in the back seat. The dog is in good health, well-groomed and fed, and Mrs. Crawford sees to it that he is well taken care of. Today of all days Mrs. Crawford pulls into a parking lot with no shade to block out the sun from her car. There is no breeze, and it is ridiculously hot outside. Instead of bringing her dog into the store with her, Mrs. Crawford decides to leave her dog in the car with the windows rolled up. She reasons that the air-conditioner was on during the drive to the store, so the car is not muggy or hot. She also reasons that she will not be in the store for a long time because she has a list of things she wants to purchase. At this point in her decision, Mrs. Crawford locks the car and leaves for the store. Suppose Mrs. Crawford is making good time in the store. She is almost done picking out everything on her list and is careful not to get sidetracked. However, Mrs. Bailey sees Mrs. Crawford in the aisle over and makes her way to talk to her about some important matters. Mrs. Crawford is delighted to see and talk to Mrs. Bailey, and easily becomes swept up in her conversation. She remembers her dog is in the car but does not remember how hot it is outside because the store is well air-conditioned, aiding to Mrs. Crawford’s choice to talk to Mrs. Bailey for longer than expected. Now the dog is still outside in the hot car, and because it is not properly ventilated or shaded, the car quickly becomes extremely hot inside. The dog is soon unable to withstand the heat and becomes sick and passes out in the back seat before Mrs. Crawford returns from the store. Mrs. Crawford is mortified. She had no idea that leaving her dog unattended for as long as she did would result in its sickness. She quickly takes her dog to the vet. Here we have a vignette that sets up Mrs. Crawford to be morally exculpated by her ignorance if we are not considering her values or capacity to have made changes in favor of the dog’s life. We are now going to see another representation of this vignette with both capacity and values of Mrs. Crawford included. Within this next vignette, I will provide more background information that will show how someone's capacity can prevent ignorance from occurring or may cause someone's ignorance to flourish. I will also be including Mrs. Crawford's values, which will show whether-or-not by the valuation as to perspective that Mrs. Crawford is in fact acting in line with her values. D. Case Four: Hot Dog (modified) Imagine Mrs. Crawford is a steady workaholic. Mrs. Crawford decides to skip her dog’s walk and bring them to the store with her. She is alert, and well aware that bringing her dog with her might be a hinderance, but she does it anyway. Today of all days Mrs. Crawford pulls into a parking lot with no shade to block out the sun from her car. There is no breeze, and it is ridiculously hot outside. Instead of bringing her dog into the store with her, Mrs. Crawford decides to leave her dog in the car with the windows rolled up. She thinks she is doing the right thing by leaving her dog behind in the car and reasons that the air-conditioner was on during the drive to the store, so the car is not muggy or hot. At this point in her decision Mrs. Crawford locks the car and leaves for the store, confident that her decision was the right one. Suppose Mrs. Crawford is making good time in the store. She is almost done picking out everything on her list and is careful not to get sidetracked. However, Mrs. Bailey sees Mrs. Crawford in the aisle over and makes her way to talk to her about some important matters. Mrs. Crawford suddenly forgets about her need to complete her shopping trip in a timely manner. She forgets her dog is in the car, nor does she remember how hot it is outside because the store is well air-conditioned. Now Mrs. Crawford’s dog is still outside in the hot car, and because it is not properly ventilated or shaded the car quickly becomes extremely hot inside. The dog is soon unable to withstand the heat and becomes sick and passes out in the back seat before Mrs. Crawford returns from the store. When she returns, Mrs. Crawford is mortified. She had no idea that she had been talking to Mrs. Bailey for so long. She did not even think about her dog, or the possibility that leaving her dog unattended for as long as she did would result in its death. She quickly takes her dog to the vet. What can we understand about this scenario that is different from the original? With this new perspective, we can see that Mrs. Crawford was completely forgetful in the care of her dog. While she is a workaholic with a one-track mindset, her decision to bring her dog along seems out of the ordinary and not in line with her normal character traits. We can tell by this story that Mrs. Crawford values social relationships, which is why she stopped to talk to Mrs. Bailey, independence, which is why she went out to the store in the first place, and the well-being of others, hence her decision to leave her dog in the car. Did Mrs. Crawford have the capacity to change her course and make sure she took measures that would secure the safety of her dog? I believe so. She was not tired; she was not overcome with thoughts of work that would normally cause her to forget other obligations. She was distracted, but by something that she had the capacity to say no to. Here I would like to point out that Mrs. Crawford was in her right mind and within the right capacity to know that talking to Mrs. Bailey would disrupt her schedule of running errands. This change of schedule had the potential to possibly upset or cause extreme distress to her dog that she left in her car. Mrs. Crawford ought to have known that the dog in the car was the most precedent of her concerns. She knows that by moral standards her dog has moral worth and is a moral responsibility that she has tasked herself with. Mrs. Crawford is someone that knows the difference between morality and immorality, and she is fully aware that her dog has a right to life. By placing her own dog within harm's way, Mrs. Crawford showed not only ignorance of fact but moral ignorance as well. Since she did not know that she was possibly harming her dog by talking to Mrs. Bailey and staying within the store for an extra length of time. Mrs. Crawford would be considered morally blameworthy. She knew that her dog was in the car. Even though she may not have known that by leaving them in the car she was potentially endangering her animal, this shows moral ignorance because she did not consider her dog’s life to be worthy enough to take extended measures that would have ensured survival. From the capacitarian theory she is considered blameworthy, but considered innocent from the valuationist perspective. III. Capacitarianism and Valuationism are Two-Sides of the Same Coin: Before we start to cut deeper into each of the theories independently, I would like to point out that these vignettes show us how different theories about moral ignorance are more accurate attributions of blame, depending on how the story is told. The way an author prescribes a vignette will directly affect the way a reader chooses to apply a theory. The author’s choice to write objectively or subjectively will also affect whether a reader will approach the ignorant action with a mind of blame or exculpation. This mode of thinking is something we see in moral realism. There are two positions in moral realism that we might be able to categorize the capacitarian and valuationsist theories under. First, normative realism posits that ethical sentences describe positions that are grounded in objective features. Some of the objective features may only be true in that they report the descriptions accurately, such as “killing someone is bad”. These descriptions do not contain subjective opinions, which aids in their accuracy and helps to establish moral truths. Second, the version of metaethical realism that can be used to look at these theories states that, in principle, it is possible to know about the facts of actions that are right and wrong, and about which things are good and bad (Copp, 2007). This position depends on the subjective opinions of others to determine these aforementioned facts. Metaethical realism takes a more common-sense approach to ask questions like “should we reasonably expect someone to check the sugar dish before serving sugar?” The reason why we need to keep moral realism in mind while assessing capacitarianism and valuationism is because it directly affects our assessment of them. We can see that assessments about moral responsibility are sensitive to additions and omissions of information regarding capacities and values of the agents. With the incorporation of certain details about an agent’s past actions and value systems, a reader can be swayed to agree or disagree with certain theories of moral assessment. Certain details require someone to be objective or subjective in their interpretation of the events (Baumann, 2019). This can greatly affect how a story is understood by various readers. However the story is told, whether narrow or elaborate, the rationale behind omitting and adding detail will always have a direct effect on the reader’s intuition of the story. Depending on how the vignette is written, the reader can be manipulated to believe that certain events will result in one theory being more conclusive than another. What this shows us is that the philosophers who wrote the vignettes wrote them in a way to prove the point of their own theories. These vignettes function as intuition pumps. Anything the philosopher wants to say activates a reader’s intuitive approach to assessing a situation. While the capacitarian and valuationist theorists may focus on different characteristics of someone’s motivation, their approaches to assessments of moral responsibility are similar. Both look at the contexts in which the act was performed; however, they differ in which part of the context they think to be relevant in their assessments. Capacitarians consider the most relevant point of context of behavior and compare it to be the behavior leading up to the harmful act. The capacity of the agent is also dependent on their knowledge of their wrongdoing. Capacitarians ask whether or not agents could’ve done something differently in the past to prevent their immoral act from taking place. If they engage in a harmful immoral act, then it is a result of their ignorance. Whether to attribute blame to the agent who acted out of ignorance would depend on their capacity to know that there was some way they could have prevented themselves from doing so. If they did not have the capacity to know they were acting immorally, or that they could’ve prevented themselves from acting as such, then they would not be considered blameworthy. Thus, an agent acting out of ignorance without the capacity to know they are doing so would be morally exculpated. Valuationists choose not to look at the behaviors preceding the events and instead examine the value system of the agent. They do this because they think the value system of a person should be considered the relevant context of the moral assessment of an act (Arpaly, 2004). The community of moral theorists has situated these two theories in contexts of past actions or value systems. Up until this point, we have discussed these two theories independently, however, I would like to show how they are closely related. If a vignette focuses on the capacity or the value system of a person, then readers will be persuaded to agree with the theory that provides a better explanation of moral judgements concerning actions. For instance, the more detailed the information regarding the context of the agent, the easier it will be for us to apply a theory that best suits the framework. The information needs to highlight either the agent’s value system or the agent’s past actions. If the information in the vignette does not include any context for the reader, then it is natural for them to assume and fill it in themselves. The various assumptions that arise from different readers’ perspectives have the ability to lead to a deep disagreement about the moral assessments of actions. An under-described thought experiment gives you inconclusive information to fill in gaps that a narrow story leaves out. Without enough information, a reader must add their own information. When a reader substitutes the information missing in the vignette, it can pull people into a deep disagreement about the moral assessment of the agent. This makes it easy for a reader to feed into their own thoughts. A reader is then foolish for reading into the story what they hope to get out of it. This creates circular reasoning on the reader’s part. In all cases, different people will have different assumptions while reading the under-described thought experiment, which will inevitably lead to problems applying certain theories to each one. Unfortunately, there is no way to halt varying interpretations because it is unreasonable to expect anyone to be able to provide every possible angle that a situation can have. In other words, there is no way for the author to close the room for interpretation entirely. If a deep disagreement arises, then this must be a result of an author’s manipulation of the vignette. For a deep disagreement to form, the vignettes would need to have an unclear description of an agent’s past actions and capacity or an unclear description of their value system because this would pin the capacitarian and the valuationist standpoints against each other. When the contexts of the past actions and value systems are clear and detailed in a vignette, it is unlikely that a deep disagreement will occur. Rather than finding a clash of theories, the verdicts would be expected to converge due to their connection. Throughout this paper I have been providing a route to view the literature of moral assessment to show how the valuationist and the capacitarian approaches are in competition with each other. However, I think this view wrongly pins the two theories against each other. The values that a person has will manifest itself in their actions, likewise, their actions are guided by their values, whether consciously or unconsciously. When we lay out this connection, we can see how someone’s past actions and value system are actually connected. With that said, I think it would be in our best interest not to play the two against each other, and instead show they are dependent on one another. This holistic/detached perspective demonstrates how these two theories are two sides of the same coin. IV. Conclusion: The more a vignette spells out a history, the more we get a sense of the value system of the person involved. Any value system shapes how people perceive information and influences their decisions. This means it also influences their intuitions and builds peoples’ overall foundations for actions. How a person has acted up to the point of the scenario usually tells us the story of the person's value system. Here we get a better sense of how they would act in future situations based on how they have acted prior. If a vignette is written in detail, spelling out a person’s capacities, values, or both, then the competing theories proposed by valuationists and capacitarians will likely converge. However, if it's sparse with little to no information, then the two rival theories may clash. They will seemingly work against each other because the readers are left to fill in the details. Without an established history or value system described, readers do not have anything prescribing their thoughts. Clashing is due to the under-description of the vignette and not used to interpret theories. I think this is where a lot of the deep disagreement stems. In this conversation about the moral assessment of blame, we have two theories that are seemingly different but work in tandem. They have a great opportunity to change the way that we, as philosophers, attribute blame, especially since wishful thinking does not give moral valence. If readers can speculate the history and the potential for a person based on their capacity to potentially act out their value systems, then they will not need to speculate on what the author meant. After all, it is not the job of a reader to fill in the blanks, it is up to the author/philosopher to explain a thought experiment in full to establish their theory (Baumann, 2019). Any description that influences a perspective is an important factor, but we need to decide whether someone is or is not morally culpable in a particular situation. To do this, it is necessary to know all the past relevant information. Swapping things around, omitting necessary information, and changing the context to fit someone else’s narrative of events is not an effective way to correctively assess the morality of an agent, nor is it conducive to figuring out whether they are morally exculpable. Withholding information is one way to prevent knowledge, and if we are concerned with knowing whether someone has performed an immoral action, then the truth is of utmost importance (Baumann, 2019). This is the way things become known. When looking back at the argument between the valuationist and capacitarian, knowledge of the subject’s past is necessary for determining if someone should be considered morally blameworthy. For determining both a person’s capacities and values in the present, it is vital to investigate their past. A person’s past determines their values just as much as it determines their capacities. A person’s past values can be written off due to their present capacities; likewise, a person’s past capacities can be written off because of their present values. The present moment is a culmination of all the previous values an agent has upheld. Valuationists point out how a person’s values are a result of what they did or didn’t do in the past. These values are determined on the agent’s capacity to understand and act on those values. Similarly, capacitarians see capacities as manifestations of value systems. The key to finding out someone’s capacities and values is buried in their past. What is the difference between these two theories if they both require knowledge of the person’s past behavior? Are they distinct theories that have similar foundations, or are they two sides to the same theoretical coin? Since both theories require the past to determine their present conditions, it’s possible that proposing these two ideas as distinctly different theories does not hold up to scrutiny. This is because values are conditions that people think should be upheld and reinforced, while capacities are behaviors of what people are capable of doing. Values are conditions that people strive for, give people numerous filters for actions, and are considered valuable in the social world. Once someone has a set of values, their subsequent actions are determined. When capacitarians look at capacities of individuals, they are looking at what actions would have been expected to perform given their capabilities. These actions are expected to be performed because of individual values. This is where we see the two theories speaking a similar language. If we need to know as much information about an individual’s past to form a coherent judgment of blame, then it’s possible these two theories are derived from the same theoretical foundation grounded in the past. The past is important to these two theories as a person’s past actions are suggestive of their values, and the person’s past values are suggestive of what actions someone can do based on their capacities. At this point, to look further into this topic I think it is indispensable to ask, how do we know what someone’s past values or capacities are, and how can we tell if they have led to present conditions? References Aristotle. 2011. Nicomachean Ethics. Chicago: University of Chicago Press. Arpaly, N. 2004. Unprincipled Virtue: An Inquiry Into Moral Agency. Oxford: Oxford University Press. Baumann, M. 2019. "Consequentializing and Underdetermination" Australasian Journal of Philosophy , 511-527. Bernecker, S. 2011. The Epistemology of Fake News. Oxford: Oxford University Press. Biebel, N. 2017, October 12. Epistemic justification and the ignorance excuse. Retrieved from Springer Link: https://link.springer.com/article/10.1007%2Fs11098-017-0992-4 Copp, D. 2007. "Introduction: Metaethics and Normative Ethics" The Oxford Handbook of Ethical Theory . Harmen, E. 2011. "Does Moral Ignorance Exculpate?" Ratio, XXIV , 443-468. M. Alvarez, &. C. 2017. "When Ignorance is No Excuse" Responsibility: The Epistemic Condition , 1-24. Rosen, G. 2003. "Culpability and Ignorance" Proceedings of the Aristotelian Society, 103 , 61-84. Rosen, G. 2004. "Skepticism About Moral Responsibility" Philosophical Perspectives, 18 , 295-313. Sliwa, P. 2020. "Excuse without Exculpation: The Case of Moral Ignorance" Oxford Studies in Metaethics , 72-95.

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No Place Like Home Home Bias Theory to Foreign Portfolio Investment in Emerging Markets Qiyuan Zheng Wesleyan University April 2021 Introduction: Modern technology has allowed investors, especially in developed markets, to gain access to a wealth of information about events that affect equity prices almost instantaneously, ultimately making it more difficult for investors in developed economies to ‘beat the market’. Such markets, where prices fully reflect all available information, are considered to be efficient; according to the efficient market hypothesis, opportunities for arbitrage in efficient markets are scarce, if not impossible. In this context, the typical investor could only generate higher returns by taking on greater risks. If this was the case, inefficient markets would be fundamentally more profitable for the informed investor as arbitrage opportunities are abundant and riskless profit can be made once the investor correctly identifies mispriced assets. This line of reasoning suggests that inefficiency in emerging markets might attract foreign portfolio investment (FPI) inflows, since investors in the developed world would seek to exploit the arbitrage opportunities in those inefficient markets. Market inefficiency in emerging economies is often at least partially due to poor property rights and weak institutional arrangements, such as unstable and corrupt political systems, not fully as a result of economic fundamentals, such as lack of financial development and domestic investor behavior. If inefficiency in an emerging market were to be largely a result of poor property rights and weak institutions, the ability of foreign investors to properly exploit arbitrage opportunities would be low and the institutional risk borne by investing in the market would be high, as unstable political environments foster volatile asset prices. Under such conditions, one might very well expect inefficient markets to drive away FPI. However, if the institutional quality of an investing environment is held constant and market inefficiencies are a result of economic fundamentals, then one should expect such a market to attract FPI. This paper finds evidence that, after accounting for a given level of institutional risk, potential simultaneity, and time of information absorption, there is no significant relationship between market inefficiency and FPI. To explain the inconsistency between theory and empirical evidence, I suggest an extension to the equity home bias theory. Since capital is abundant in wealthy nations where markets are efficient, investors that account for a majority of FPI inflows into emerging economies would be more familiar with and thus more optimistic about efficient markets since they more closely resemble their domestic investing environment. If a large enough number of foreign investors show a clear preference for efficient markets, the magnitude of their actions may very well offset that of unbiased investors looking to exploit arbitrage opportunities in inefficient markets. The paper proposes that, while market inefficiency should theoretically attract FPI, holding institutional risk constant, empirical evidence fails to show this relationship because foreign investors from the developed world exhibit a preference for more efficient markets that they are familiar with. A Survey of Theory and Existing Literature In documenting market efficiency among developing countries, Morck et al. found that the relationship between GDP per capita and price synchronicity can largely be explained by weak institutional arrangements and poor property rights. Their research not only provides a theoretical framework for this paper but also suggests an important measure of market inefficiency. Institutional shortcomings, especially poor property rights, discourages informed trading in the market as volatile political environments make it difficult for investors to price assets and retain their earnings (Morck 15, 16). The lack of informed investors would increase the magnitude of noise trading’s effect on the market. Since noise traders are uninformed and exhibit poor market timing (the buy high-sell low effect), their actions would not only lead to excess volatility in the market, but also push prices of different stocks to move synchronously away from their fundamental values (De Long 705, 715). Morck et al.’s paper presents empirical evidence supporting the above theory, as the observed relationship between GDP per capita and price synchronicity is rendered insignificant once property rights have been accounted for (Morck 22). This conclusion directly implies that, if protection of property rights is the only factor affecting the level of information reflected in prices, one can use price synchronicity as an appropriate proxy for market efficiency (i.e. better property rights lead to more informed traders, less price synchronicity, and a more efficient market). However, there are certainly other factors affecting the level of information reflected in stock prices. I argue that, in the absence of property rights violations, price synchronicity would remain an appropriate proxy as less synchronous prices would indicate that the market captures higher levels of firm-specific information and has a higher concentration of informed traders. Additionally, the lower prevalence and less developed nature of financial institutions in emerging markets would decrease the number of informed traders and thus increase price synchronicity while lowering market efficiency. In the subsequent analysis, I will refer to the following factors as economic fundamentals affecting market efficiency: domestic investor behavior, prevalence of financial institutions, quality of financial institutions, and technological development. This claim is particularly important, as the paper seeks to differentiate between market inefficiency caused by economic fundamentals and that caused by poor political institutions. Markets are efficient if “security prices at any time ‘fully reflect’ all available information” (Fama 383). Since efficient markets already reflect “all obviously publicly available information”, it would be very difficult for investors to obtain higher returns without undertaking greater risk (Fama 414). Rational investors who seek to increase returns while lowering risk would then be drawn to less efficient markets where arbitrage opportunities are more easily available. Thus, upon first glance, it seems that inefficient emerging markets would be more attractive to foreign investors, especially those from developed countries with efficient markets. Since most foreign portfolio investment comes from wealthier nations where capital is abundant, one could expect that less efficient markets, those with higher price synchronicity, would generate higher levels of FPI. However, this conjecture fails to consider the factors that lead to market inefficiency in developing countries and the preferences of foreign investors. The following paragraphs present two potential explanations for why emerging markets that are less efficient might fail to attract FPI. The first explanation comes directly from the work of Morck et al. on price synchronicity in emerging markets. While poor property rights decrease market efficiency, they also increase both the opportunity cost—the time spent gathering information to identify asset mispricing—and risk of arbitrage trading. Political events are also typically much harder to predict in these countries and, given the poor property rights, “risk arbitrageurs who do make correct predictions may not be allowed to keep their earnings, […] especially if the risk arbitrageurs are political outsiders” (Morck 15). Thus, if the observed market inefficiency is largely the result of poor property rights and weak institutional arrangements, the expected relationship between price synchronicity and FPI becomes more complicated. While inefficient markets still present certain arbitrage opportunities for investors, the risk of investing in an environment with poor property rights may very well drive foreign investors away. Another potential explanation comes from an extension of the equity home bias theory. The traditional equity home bias theory states that investors are more inclined to hold domestic stocks despite the potential benefits of international diversification. This phenomenon was first analyzed in 1991, when French and Poterba found that domestic investors expect returns around 300 basis points higher than foreign investors when looking at the identical market (French 4). The optimism in domestic markets would then lead investors to prefer a domestic stock over an international one, even if the economic values of the two stocks do not differ from each other. The equity home bias theory implies that investors prefer assets they feel more familiar with and such preferences can often offset the actual economic differences between any two assets. This paper argues that investors from developed countries with efficient markets would naturally prefer stocks in more efficient markets of the developing world as they more closely resemble their domestic investing environment. Since most FPI comes from wealthier nations in the developed world, even if one observes an inefficient market in a country with strong property rights and therefore higher chances of arbitrage without bearing institutional risk, such a market might not attract FPI as most foreign investors would prefer to hold assets in efficient markets with which they are more familiar. Existing literature shows that a simple analysis of FPI and price synchronicity is not enough to uncover the fundamental relationship between market efficiency and FPI inflows. To properly understand whether investors are truly drawn to inefficient markets due to opportunities of arbitrage, one must first take into account the institutional risk inherent in emerging markets. Only after accounting for the protection of property rights can one expect there to be a positive correlation between price synchronicity, essentially a measure of market efficiency, and FPI inflows. Empirical results that do not align with such expectations would be consistent with the story of equity home bias theory, where foreign investors prefer efficient markets as a result of familiarity and resemblance to their domestic markets. Constructing the Data Set The paper analyzes nine emerging markets: Brazil, Chile, China, Greece, India, Malaysia, Mexico, Thailand, and Turkey. The choice of these countries is based on their per capita GDP, the size of their domestic equity market, and data availability. The time period observed ranges roughly between 2000 and 2016. I shall note here that the somewhat arbitrary decision to characterize these countries as emerging markets through per capita GDP and choosing countries with sufficient stock listings may introduce sampling bias. A future extension of this paper may be to include a larger number of developing countries and test the robustness of this study by shifting the per capita GDP cutoff used to define emerging markets. Due to limited resources, this paper uses an approximation for its main variable of interest, price synchronicity. To obtain a price synchronicity index for each country and year, I collected weekly stock returns (between 2000 and 2016) for the companies listed on a popular index of the given country. Table 1 details the exact indexes used to construct the price synchronicity data. Given a country, the price synchronicity of year T is then constructed as follows: SyncT=w∈Tmax⁡(Upw, Downw)Upw+Downw1NT The above equation states that for every week w in year T, I calculated the number of stocks that rose in share price (if closing price was higher than opening price), the number of stocks that dropped in share price (if closing price was lower than opening price), and divided the maximum of the two numbers by the total number of stocks that experienced a change in share price. An arithmetic mean is then computed for the given NT weeks in year T. Note that this calculation is based on Morck et al.’s methods of finding price synchronicity, with the denominator constructed to include only stocks with changed share prices to avoid non-trading bias (Morck 5). Given the method of calculation, a price synchronicity of 0.5 would indicate that prices do not move together at all while high price synchronicity (such as 0.9) would indicate an inefficient market. Data for other variables were obtained through the World Bank, Transparency International, and World Integrated Trade Solutions (WITS). The following section will discuss the methodologies and rationale for including each regressor. Analytical Methodology Given the panel structure of the data, the paper will use a fixed effects model on the country level with robust standard errors to analyze the relationship between market efficiency and foreign portfolio investment. The fixed effects model would allow for the paper to account for unobserved but time-constant differences between countries, therefore yielding a less biased estimate. The fixed effects model was chosen over a random effects model on empirical grounds. The Sargan-difference test of overidentifying restrictions yielded a Sargan-Hansen statistic of 566.9 when applied to a random effects regression with robust standard errors, which indicates a significant level of overidentification in the model. Initially, I estimated a simple fixed effects model with price synchronicity as the only explanatory variable: FPIit=α+βSyncit+i+eit (1) However, the coefficient for the model is difficult to interpret and meaningless to this paper’s purpose. While the paper is primarily interested in exploring the effect of market inefficiency (caused by non-institutional factors) on FPI inflows to emerging markets, the coefficient presented in Equation 1 is theoretically biased downwards as the result of institutional risks present in emerging markets with high price synchronicity. More specifically, one can see that is subject to omitted variable bias because the level of corruption drives up price synchronicity (positive correlation) and discourages foreign investors (negative correlation with FPI). Additionally, could be affected by other confounding variables as a result of selection bias. To properly identify how FPI is affected by market inefficiency caused by economic fundamentals, one must account for the level of political risk the investor must bear to participate in the market and other confounding variables with the following fixed effects model: FPIit=α+1Syncit+2Corruptionit+3Xit+i+eit (2) Note that Corruptionit reflects the Corruption Perception Index of country i in year t, obtained from Transparency International. The author calculated Corruptionit=(100- Corruption Perception Index) so that 0 represents no corruption and 100 is the value for the most corrupt extreme. Ideally, the paper would’ve liked to use the “good government” index from Morck et al.’s work that included factors specific to property rights protection but financial constraints limited the data collection process (Morck 15). Xit is a vector of time-varying country-level characteristics that consists of the following variables: GDP per capita, inflation volatility, market capitalization of domestic companies (in current US dollars), and capital openness. Inflation volatility is calculated by taking the 5-year moving coefficient of variance of each country’s consumer price index (obtained from the World Bank). Capital openness is measured by the standardized version of the Chinn-Ito Index (Chinn). GDP per capita and inflation volatility could both be omitted variables as they both are significant indicators of an economy’s stability and development, in turn affecting confidence levels in foreign investors. Market capitalization indicates both the breadth and depth of the domestic financial markets, as a higher levels of market capitalization would provide more opportunities for foreign investors and increase FPI inflows. Although intuition suggests that capital openness would be a significant factor in affecting foreign investment, empirical evidence from existing literature suggests that capital controls on FDI and FPI have no significant impact on FPI inflows (Li 228, 230). The variable was still included in Equation 2 largely because theory implies that capital controls would increase the opportunity cost for foreign investors to invest in the domestic market and therefore decrease FPI. To test for robustness of the results, I removed the variable from the model and found no significant changes to the parameters of interest. Pre-existing theory and literature suggested that each of the variables included in the vector Xit would be correlated with FPI inflows. Thus, the model should include these variables as controls in the regression to minimize standard errors and account for any sampling bias. To account for potential information absorption time, I re-estimated Equation 1 and 2 with lagged price synchronicity, inflation volatility, and GDP per capita. If these factors were to exhibit greater cross-year variations than within-year shifts, then the incorporation of the lagged independent variables would allow for the possibility of foreign investors “reacting” to changes in their values in the next time period. I chose to not pursue a fully lagged model because market capitalization and capital controls are present constraints on the foreign investor’s choice set. Further, the corruption index remained period t as well since it measures the level of corruption perceived by the public at time t, which is a direct factor in determining the level of FPI in the same time period. Additionally, a fixed effects lagged-distributed model was also estimated as follows: FPIit=α+1Syncit+2Syncit-1+3Corruptit+5Xit+6Yit-1+νi+eit (3) Note that Syncit-1 and Yit-1 are lagged price synchronicity and lagged vector of control variables, hence they are values of country i in year t-1. The paper conducted further robustness tests by removing 2008 from the estimated models. Figure 1 shows that FPI inflows in observed countries dropped dramatically as a result of the Global Financial Crisis (GFC). Figure 2 shows the average price synchronicity among the observed countries across time and indicates that average price synchronicity varies between 75% and 70% for most of the years with no significant change during the GFC. One can see that the patterns exhibited by the data during the GFC is an aberration caused by an external shock, which could affect both the precision and accuracy of previous estimations. The paper accounts for this by re-estimating all the previous models with a smaller sample size that does not include 2008. Although doing so limits the power of the test, the removal of the outlier (2008) should offer a more accurate estimate of the effect market efficiency has on FPI. Empirical Results Before estimating the models specified in the Methodology section, one must return to examine an earlier claim: “price synchronicity would remain an appropriate proxy under [scenarios in which other factors (besides poor property rights) affect the level of information reflected in stock prices] as well, since less synchronous prices would indicate that the market captures higher levels of firm-specific information”. Table 2 Column 1 shows an estimated fixed effects model that captures the relationship between price synchronicity and institutional risk (represented by the Corruption Perception Index). As expected, the coefficient for the Corruption Index is positive, since higher levels of corruption means more institutional risk and thus higher price synchronicity. The estimated coefficient is statistically significant. Most notably, the R-squared for the estimation is only around 8%, indicating that there are certainly other factors, such as market inefficiency due to economic fundamentals and the quality of financial institutions, that affect price synchronicity. Additionally, Table 2 Column 2 shows a negative correlation between corruption and FPI inflows, as expected. Although the relationship is not statistically significant, theory suggests that it would bias the estimates of Equation 2 downwards. Tables 3, 4, and 5 show the estimated regressions specified in the Methodology section. Table 3 displays the estimates obtained by using the “present” model without any lagged variables while Table 4 shows the results after lagging the appropriate independent variables. Table 5 shows the estimates obtained from the lag distributed model (Equation 3). In Table 3, the first two columns represent Equation 1 and 2 without the lagged independent variables. The first column shows a negative and marginally significant (at the 10% threshold, p=0.054) coefficient for price synchronicity, with the point estimate show approximately $0.605 billion decrease with every 1 percentage point increase of price synchronicity. This is not surprising, as price synchronicity caused by institutional risk would most likely drive foreign investors away. The second column on Table 3 also show a negative and marginally significant coefficient for price synchronicity. Although this coefficient is greater in magnitude ($0.967 billion decrease for every 1 percentage point increase in price synchronicity), it has a larger confidence interval than that of the first model and is less statistically significant (p=0.066). Columns 3 and 4, estimates after removing 2008, exhibits a similar pattern as the coefficient for price synchronicity is negative and statistically significant (at the 5% threshold) when it’s the only regressor in the model but no longer significant once the model accounts for institutional risks and other sources of selection bias (Column 4, Table 3). Table 4 incorporates lagged price synchronicity, inflation volatility, and GDP per capita. Columns 1 and 2 show the results of Equation 1 and 2 when with the lagged independent variables replacing their non-lagged counterparts. Columns 3 and 4 show those same models estimated after removing 2008 from the sample. The results across all columns are consistent in that the coefficient for lagged price synchronicity are all positive but statistically insignificant even after accounting for the downward bias caused by institutional risks. Interpreting the results of Table 3, the paper finds that market inefficiency (proxied by price synchronicity) drives foreign investors away mostly as a result of the poor property rights that created the inefficient market in the first place. This effect is exhibited by the negative and (marginally) significant coefficient for price synchronicity in Column 1 and 3. Once the model accounts for institutional risk and potential selection bias, market inefficiency remains negatively correlated with FPI inflows but at a less significant level in Column 2 and completely insignificant when 2008 is removed from the sample, as shown in Column 4. If the level of institutional risk does not change and the market becomes more inefficient (price synchronicity rises), theory suggests that more investors would be drawn to the market as they seek to exploit arbitrage opportunities. This theory implies that a model which accounts for institutional risk should generate a positive and significant coefficient for price synchronicity. However, empirical evidence does not support this conjecture and instead illustrates that market inefficiency stemming from causes unrelated to institutional risks either does not significantly affect or decreases the level of FPI inflows, depending on whether year 2008 was included in the sample. Results obtained by the lagged models fit the theory slightly better, as the coefficient for lagged price synchronicity is positive, as shown in Table 4. Both Column 2 and 4 of Table 4 exhibit point estimates that indicate a $0.42 billion rise in FPI inflows per percentage point increase in lagged price synchronicity (decrease in market efficiency). However, this estimate is not statistically significant, which could be a result of the small sample size and thus less power / minimal detectable effect. Further, Column 2 and 4 of Table 4 showed a higher point estimate than Column 1 and 3 of the same table, respectively, fitting the theory that not including corruption as a covariate would downwardly bias our estimate. Considering the empirical results on both tables (with and without the lagged component), one can see that, once institutional risks are accounted for, changes in market efficiency does not significantly affect FPI inflows. A potential explanation for this phenomenon is an extension of the equity home bias theory, in which foreign investors from the developed world feel more familiar and are thus more optimistic about efficient markets. Hence, market inefficiency (under the same level of institutional risk) can both attract investors through opportunities of arbitrage and drive away investors through its unfamiliar nature. If those effects offset each other, one would observe no significant relationship between market inefficiency and FPI inflows after accounting for institutional risk. That said, it is more probable that Table 4 is the better model, as it lagged certain independent variables that investors would be “reacting” to in period t based on their information in period t-1. To further test this, a lag distributed model was estimated in Table 5 to show that price synchronicity in period t-1 is indeed positively correlated with FPI inflows in period t, even after account for price synchronicity in period t. However, as before, the estimate is not statistically significant, most likely due to a combination of small sample size and the potentially offsetting effect from the equity home bias theory. Robustness Tests Another potential explanation for the insignificant coefficient for price synchronicity is a reverse causality chain between FPI inflows and market efficiency. The paper argues that increased FPI inflows can lead to higher market efficiency in emerging economies. As established, a majority of FPI in emerging markets come from developed countries where capital is abundant. These developed countries also have better financial institutions, which help “foreign” investors make more informed decisions than their domestic counterparts in the developing country. If one assumes that most foreign investors in emerging markets are more informed than their domestic counterparts, then an increase in FPI inflow would mean more informed investors in the market and therefore an increase in market efficiency. Incorporating this conjecture, one can obtain three distinct factors that affect market efficiency in emerging economies: level of institutional risk, amount of foreign investment (FPI inflows), and other economic fundamentals. Since the paper is only interested in the relationship between market inefficiency caused by economic fundamentals and FPI inflows, it must account for the first two factors. Equation 2 properly accounts for the level of institutional risk but fails to address the joint relationship between market efficiency and FPI inflows. I used a three-stage least squares method to estimate the following simultaneous equations system: FPI=γ+1Sync+2X+3GDP+e2 (4) Sync=α+1FPI+2Corruption+3(HH Index)+4GDP+e1 (5) The variable HH Index, the Hirschman Herfindahl Index for exported products (obtained from WITS), was added to account for the level of economic specialization, since more specialized economies tend to experience greater price synchronicity (Morck 9). Additionally, the fixed-effects approach was replaced with a least-squares dummy variable approach by adding a dummy variable for every panel value except one. The results of this model are shown in Table 6, with the coefficients for the panel dummy variables suppressed from the output. The first two columns show the estimates for both endogenous variables (Equation 4 and 5) when using the entire sample size and the second set of columns shows the results after removing 2008 from the sample. Even after addressing the simultaneity problem in the non-lagged model, the paper fails to find a significant relationship between market efficiency and FPI. Although the coefficients for price synchronicity are positive, as shown by Column 1 and 3 in Table 6, they are statistically insignificant. Additionally, these estimates fail to provide empirical evidence in favor of the claim that FPI leads to more efficient markets in developing countries; both Column 2 and 4 show insignificant positive coefficients for FPI when it’s used as an independent variable in estimating price synchronicity. As stated previously, theory and empirical evidence (from Table 4) suggest that a model with lagged price synchronicity and corruption index would better capture the causal relationship between market efficiency and FPI. If the lagged model is a better fit and the conjecture of reverse causality remains valid, then changes in FPI inflows in time period t-1 would affect market efficiency of time period t-1, which in turn would influence the FPI inflows of time period t. To put it simply, FPI and market efficiency are two endogenous variables that are both sequentially and jointly determined. A precise and accurate estimate of the effect market inefficiency (when caused by economic fundamentals) has on FPI inflows would then require a model that allows for both sequential and simultaneous relationship between market efficiency and FPI. I estimated such relationship with the following equation: FPIit=α+1Syncit-1+2Corruptit+3Xit+4Yit-1+5FPIit-1+νi+eit (6) where FPIit-1 is the lagged FPI variable. This equation would allow us to “parse out” the reverse causality effects on market efficiency caused by changes in FPI inflows. Thus, 1 would be the unbiased estimate if such reverse causality indeed exists. Results in Table 7 show a point estimate of between $0.14 to $0.28 billions of FPI increase per percentage point increase in the lagged price synchronicity (depending on whether or not 2008 is included in the sample). However, this estimate is also not statistically significant, most likely due to the same reasons addressed earlier in the previous section. Conclusion and Avenues for Future Research: Due to the lack of available data and time constraints, there are a number of robustness tests and models I wished to estimate but was unable to do so. As mentioned earlier, the paper used an approximation for price synchronicity. Although the approximated values fall somewhat around those provided by Morck et al.’s research (provided on Table 2 of Morck’s article, for year 1995), using the actual price synchronicity of all stocks, as opposed to that of index stocks, in each given country and year would reduce sampling bias in the estimated models. I also wished to estimate the same fixed effects models but replace the Corruption Perception Index with the “good government” index constructed by Morck et al. that more closely represents the institutional risks foreign investors face in emerging markets. Ultimately, using a fixed effects model and a three-stage least squares estimation of a simultaneous equations system, this paper finds evidence consistent with an extension of the equity home bias theory. Economic theory suggests that, under the same level of institutional risks, inefficient markets should attract foreign investors and therefore increase the level of FPI inflows into an emerging market. Empirical evidence shows that there is no statistically significant relationship between market efficiency and FPI inflows once the protection of property rights has been accounted for. At “best”, empirical evidence suggests a $0.42 billion rise in FPI per percentage point increase in lagged price synchronicity, but the point estimate is statistically insignificant. This paper proposes that one can reconcile the inconsistency between theory and empirical evidence by looking at an extension of the home bias theory, where some foreign investors prefer efficient markets because they more closely represent their domestic investing environment. References Chinn, Menzie D. and Hiro Ito (2006). "What Matters for Financial Development? Capital Controls, Institutions, and Interactions," Journal of Development Economics, vol. 81, no. 1, pp. 163-192. De Long, J. Bradford, et al. “Noise Trader Risk in Financial Markets.” Journal of Political Economy, vol. 98, no. 4, 1990, pp. 703–738. Fama, Eugene F. “Efficient Capital Markets: A Review of Theory and Empirical Work.” The Journal of Finance, vol. 25, no. 2, 1970, pp. 383–417. French, Kenneth R., and James M. Poterba. “Investor Diversification and International Equity Markets.” The American Economic Review, vol. 81, no. 2, 1991, pp. 222–226. Li, Jie, and Rajan, Ramkishen S., “Do capital controls make gross equity flows to emerging markets less volatile?” Journal of International Money and Finance, vol. 59, pp 220-244 Morck, Randall K. and Yu, Wayne and Yeung, Bernard Yin, "The Information Content of Stock Markets: Why Do Emerging Markets Have Synchronous Stock Price Movements?" Journal of Financial Economics (JFE), vol. 58, no. 1-2, 2000 Wooldridge, Jeffrey M., 1960-. Introductory Econometrics : a Modern Approach. Mason, Ohio :South-Western Cengage Learning, 2012. Print.

Sydney Bowen A “Shot” Heard Around the World: The Fed made a deliberate choice to let Lehman fail. It was the right one. Sydney Bowen On the morning of September 15, 2008, the DOW Jones Industrial Average plunged more than 500 points; $700 billion in value vanished from retirement plans, government pension funds, and investment portfolios (1). This shocking market rout was provoked by the bankruptcy filing of Lehman Brothers Holding Inc., which would soon become known as “the largest, most complex, most far-reaching bankruptcy case” filed in United States history (2). Amid job loss, economic turmoil, and choruses of “what ifs,” a myriad of dangerous myths and conflicting stories emerged, each desperately seeking to rationalize the devastation of the crisis and explain why the Federal Reserve did not extend a loan to save Lehman. Some accuse the Fed of making a tragic mistake, believing that Lehman’s failure was the match that lit the conflagration of the entire Global Financial Crisis. Others disparage the Fed for bowing to the public’s political opposition towards bailouts. The Fed itself, however, adamantly maintains that they “did not have the legal authority to rescue Lehman,” an argument played in unremitting refrain in the years following the crisis. In this essay, I discuss the various dimensions of the heated debate on how and why the infamous investment bank went under. I examine the perennial question of whether regulators really had a choice in allowing Lehman to fail, an inquiry that prompts the multi-dimensional and more subjective discussion of whether regulators made the correct decision. I assert that (I) the Fed made a deliberate, practical choice to let Lehman fail and posthumously justified it with a façade of legal inability, and that (II) in the context of the already irreparably severe crisis, the fate of the future financial landscape, obligations to taxpayers, and the birth of the landmark legislation TARP, the Fed made the ‘right’ decision. I. The Fed’s Almost Rock-Solid Alibi: Legal Jargon and Section 13(3) Fed Chairman Ben Bernanke, Former Treasury Secretary Hank Paulson, and New York Fed general counsel Thomas Baxter Jr. have each argued in sworn testimony that regulators wanted to save Lehman but lacked the legal authority to do so. While their statements are not lies, they neglect to tell the entire – more incriminating – truth. In this section, I assert that Fed officials deliberately chose not to save Lehman and justified their decision after the fact with the impeccable alibi that they did not have a viable legal option. In a famous testimony, Bernanke announced, “ [T]he only way we could have saved Lehman would have been by breaking the law, and I’m not sure I’m willing to accept those consequences for the Federal Reserve and for our system of laws. I just don’t think that would be appropriate ”(3). At face value, his argument appears sound; however, the “law” alluded to here– Section 13(3) of the Federal Reserve Act–was not a hard and fast body of rules capable of being “broken,” but rather a weakly worded, vague body that encouraged “regulatory gamesmanship and undermined democratic accountability” (4). i. Section 13(3) Section 13(3) of the Federal Reserve Act gives the Fed broad power to lend to non-depository institutions “in unusual and existent circumstances” (5). It stipulates that a loan must be “secured to the satisfaction of the [lending] Reserve Bank,” limiting the amount of credit that the Fed can extend to the value of a firm’s col- lateral in an effort to shield taxpayers from potential losses (6). Yet, since the notion of “satisfactory security” has no precise contractual definition, Fed officials had ample room to exercise discretionary judgment when appraising Lehman’s assets. This initial legal freedom was further magnified by the opaqueness of the assets themselves – mortgage-backed securities, credit default swaps, and associated derivatives were newfangled financial instruments manufactured from a securitization process, complexly tranched and nearly impossible to value. Thus, the three simple words, “secured to satisfaction,” provided regulators with an asylum from their own culpability, allowing them to hide a deliberate choice inside a comfort- able perimeter of legal ambiguity. ii. Evaluations of Lehman’s Assets and “Secured to Satisfaction” The “legal authority” to save Lehman hinged upon the Fed’s conclusions on Lehman’s solvency and their evaluation of the firm’s available collateral–a task that boiled down to Lehman’s troubled and illiquid real-estate portfolio, composed primarily of mortgage-backed securities. Lehman had valued their portfolio at $50 billion, purporting a $28.4 billion surplus; however, Fed officials and potential private rescuers, skeptical of Lehman’s real-estate valuation methods, argued that there was a gaping “hole” in their balance sheet. Bank of America, a private party contemplating a Lehman buyout, maintained that the size of the hole amounted to “$66 billion” while the Fed’s task team of Goldman Sachs and Credit Suisse CEO’s determined that “tens of billions of dollars were missing” (7). Esteemed economist Lawrence Ball, who meticulously reviewed Lehman’s balance sheet, however, concluded to the contrary–there was no “hole” and Lehman was solvent when the Fed allowed it to fail. While I do not claim to know which of the various assessments was correct, the simple fact remains–the myriad of conflicting reports speak to the ultimate subjectivity of any evaluation. “Legal authority” became hitched to the value of mortgage-backed securities, and in 2008 their value had become dangerously opaque. In discussing the Fed’s actions, it is necessary to point out that the Federal Reserve has a rare ability to value assets more liberally than a comparable private party–they are able to hold distressed assets for longer and ultimately exert incredible influence over any securities’ final value as they control monetary policy. The Dissenting Statement of the FCIC report aptly reveals that Fed leaders could have simply guided their staff to “re-evaluate [Lehman’s balance sheet] in a more optimistic way to justify a secured loan;” however, they elected not to do so since such action did not align with their private, practical interests (8). The “law” could have been molded in either direction–the Fed consciously chose the direction of nonintervention just as easily as they could have chosen the opposite. iii. The Fed’s “Practical” and Deliberate Choice Section 13(3) had been invoked just five months earlier in March 2008, when the Fed extended a $29 billion loan to facilitate JP Morgan’s purchase of a differ- ent failing firm, Bear Stearns. In an effort to separate the Fed’s handling of Bear Stearns from Lehman, Bernanke admits that considerations behind each decision were both “ legal and practical ” (9). While in Bear Stearns case, practical judgement weighed in favor of intervention, in Lehman’s case, it did not: “if we lent the money to Lehman, all that would happen would be that the run [on Lehman] would succeed, because it wouldn’t be able to meet the demands, the firm would fail, and not only would we be unsuccessful, but we would [have] saddled the taxpayer with tens of billions of dollars of losses” (10). While an exhaustive display of arguments and testimonies that challenge the Fed’s claim of legal inability is cogent, perhaps the most chilling evidence lies in an unassuming and incisive question: “Since when did regulators let a lack of legal authority stop them? There was zero legal authority for the FDIC’s broad guarantee of bank holding debt. Saving Lehman would have been just one of many actions of questionable legality taken by regulators” (11). iv. Other Incriminating Facts: The Barclay’s Guarantee and Curtailed PDCF Lending An analysis of Lehman’s failure would be incomplete without discussing the Fed’s resounding lack of action during negotiations of a private rescue with Barclays, a critical moment in the crisis that could have salvaged the failing firm with- out contentious use of public money. Barclays began conversing with the U.S. Treasury Department a week prior to Lehman’s fall as they contemplated and hammered out terms of an acquisition (12). The planned buyout by the British bank would have gone through had the Fed agreed to guarantee Lehman’s trading obligations during the time between the initial deal and the final approval; yet, the Fed deliberately refused to intervene, masking their true motives behind a legal inability to offer a “‘naked guarantee’–one that would be unsecured and not limit- ed in amount” (13). However, since such a request for an uncapped guarantee never occurred, the Fed’s legal alibi is deceitfully misleading. In truth, Lehman asked for secured funding from the Fed’s Primary Dealer Credit Facility (PDCF), a liquidity window allowing all Wall Street firms to take out collateralized loans when cut off from market funding (“The Fed—Primary Dealer Credit Facility (PDCF),” n.d.). While Lehman would not have been able to post eligible collateral under the initial requirement of investment-grade securities, they likely would have been able to secure a loan under the expanded version of the program that accepted a broader range of collateral. The purposeful curtailment of the expanded collateral to Lehman is one of the most questionable aspects of the Lehman weekend, and is perhaps the most lucid evidence that the Fed made a deliberate choice to let the firm fail. The FCIC de- tails the murky circumstances and clear absence of an appropriate explanation for the act: “the government officials made it plain that they would not permit Lehman to borrow against the expanded types of collateral, as other firms could. The sentiment was clear, but the reasons were vague” (14). If there had been a rational ex- planation, regulators would have articulated it. Instead, they merely repeated that “there existed no obligation or duty to provide such information or to substantiate the basis for the decision not to aid or support Lehman” (15). The Fed’s refusal to provide PDCF liquidity administered the final nail in Lehman’s coffin–access to such a loan made the difference in Lehman being able to open for business that infamous morning. v. An Intriguing Lack of Evidence The Fed did not furnish the FCIC with any analysis to show that Lehman lacked sufficient collateral to secure a loan under 13(3), referencing only the estimates of other Wall Street firms and declining to respond to a direct request for “the dollar value of the shortfall of Lehman’s collateral relative to its liquidity needs” (16). Diverging from typical protocol, where the Fed’s office “wrote a memo about each of the [potential] loans under Section 13(3),” Lehman’s case contains no official memo. When pressed on this topic, Scott Alvarez, the General Counsel of the Board of Governors of the Federal Reserve, rationalized the opportune lack of evidence as an innocuous judgement call: “folks had a pretty good feeling for the value of Lehman during that weekend, and so there was no memo prepared that documented why it is we didn’t lend... they understood from all of [the negotiations] that there wasn’t enough there for us to lend against and so they weren’t willing to go forward” (17). While this absence of evidence does not prove that the Fed had access to a legal option, it highlights a disconcerting and suggestive vacancy in their claims. Consider an analogous courtroom case where a defendant exercises the right to remain silent rather than respond to a question that may implicate them–similarly, the Fed’s intentional evasion of the request for concrete evidence appears an incriminating insinuation of guilt. The lack of “paper trail” becomes even more confounding when coupled with the Fed’s inconsistent and haphazard statements justifying their decision. Only after the initial praise for the decision soured into a surge of public criticism did any mention of legality enter the public record. Nearly three weeks after Lehman’s fall on October 7th, Bernanke introduced a strategic “alibi:” “Neither the Treasury nor the Federal Reserve had the authority to commit public money in that way” (18). Bernanke insists that he will “maintain until [his] deathbed that [they] made every effort to save Lehman, but were just unable to do so because of a lack of legal authority” (19). However, when considering the subjectivity of “reasonable assurance” of repayment, the malleability of “legal authority,” and the convenient lack of evidence to undermine his statement, Bernanke’s “dying” claim becomes comically hollow. If the Fed had truly made “every effort” to rescue Lehman, they would have relied on more than a “pretty good feeling”–had they truly been sincere, the Federal Reserve, a team of seasoned economists, would have used hard numerical facts as guidance for a path forward. vi. The Broader Implications of “Secured to Satisfaction:” a Logical Fallacy While the Fed’s lack of transparency is unsettling, perhaps the most unnerving aspect of the entire Lehman episode is the precarious regulatory framework that the American financial system trusted during a crisis. The concept of “secured to satisfaction” is not the bullet-proof legal threshold painted by the media, rather it was a malleable moving target molded by the generosity of the Fed’s estimates and the fluctuating state of the economy, instead of precise mathematical facts. A 2018 article by Columbia Law Professor Kathryn Judge exposes the logical fallacy of Section 13(3)’s “secured to satisfaction,” citing how “subsequent developments can have a first order impact on both the value of the assets accepted as collateral and the apparent health of the firms needing support” (20). The “legal authority” of regulators to invoke Section 13(3) is a circular and empty concept, hitched to nebulous evaluations of complex and opaque securities, assets that were not only inherently hard to value but whose valuations could later be manipulated. By adjusting the composition of their balance sheet (Open Market Operations) and altering interest rates, the Fed guides the behavior of financial markets, thus subtly inflating (or deflating) the value of a firm’s collateral (21). Indeed, in the years following the government’s support of Bear Stearns and AIG, the Fed’s aggressive and novel monetary policy (close to zero interest rates and a large-scale program of quantitative easing) may have been “critical to making the collateral posted by [Bear Stearns and AIG] seem adequate to justify the central bank’s earlier actions’’ (22). Using collateral quality and solvency as prerequisites for lawful action is inherently problematic, since a firm’s health and the quality of their collateral are not factors given exogenously–they are endogenous variables that regulators them- selves play a critical role in determining. Thus, acceptance of the narrative that Lehman failed because the Fed lacked any legal authority to save it would be a naive oversight. Rather, Lehman failed because the Fed lacked the practical and political motivations to exploit the law. II. The Right Choice As Lehman’s downfall is both a politically contentious and emotionally charged topic, it is necessary to approach the morality of the Fed’s decision with sympathy and caution. In the following sections, I intend to illustrate why regulators made the right decision in allowing Lehman to fail by using non-partisan facts organized around four key arguments . (1) Lehman was not the watershed event of the Crisis. The market panic follow- ing September 2008 was a reaction to a collection of unstoppable, unrelated, and market-shaking events. (2) Lehman’s failure expunged the hazardous incentives carved into the financial landscape prior. Policymakers shrewdly chose long-term economic order over the short-term benefit of keeping a single firm afloat. (3) Failure was the “right” and only choice from a taxpayer’s perspective. (4) Lehman’s demise was a necessary catastrophe, creating circumstances so parlous that Congress passed TARP, landmark legislation that gave the Federal Reserve the authority that ultimately revived the financial system. (1) Lehman Was Not the Watershed Event of the Crisis For many people, the heated debate over whether regulators did the right thing in allowing Lehman to fail is synonymous with the larger question: “would rescuing Lehman have saved us from the Great Recession?” In the following section, I assert that Lehman was not the defining moment of the Financial Crisis (as is often construed in the media); rather, the global financial turmoil was irreversibly underway by September 2008 and the ensuing disaster could not have been simply averted by Lehman’s rescue. “ The problem was larger than a single failed bank – large, unconnected financial institutions were undercapitalized because of [similar, failed housing bets] ” (23). By Monday September 15, Bank of America had rescued the deteriorating Merrill Lynch and the insurance giant AIG was on the brink of failure–a testament to the critical detail that many other large financial institutions were also in peril due to losses on housing-related assets and a subsequent liquidity crisis. Indeed, in the weeks preceding Lehman’s failure, the interbank lending market had virtually froze, plunged into distress by a contagious spiral of self-fulfilling expectations. Unable to ascertain the location and size of subprime risk held by counterparties in the market, investors became panicked by the obscured and so ubiquitous risk of housing exposure, precipitously cutting off or restricting funding to other market participants. This perceived threat of a liquidity crisis triggered the downward spiral of the interbank lending market in the weeks preceding Lehman’s fall, a market which pumped vital cash into nearly every firm on Wall Street. The LIBOR-OIS spread, a proxy for counterparty risk and a robust indicator of the state of the interbank market, illustrates these “illiquidity waves” that severely impaired markets in 2008 (24). (Sengupta & Tam, 2008). As shown in the figure below, in the weeks prior to the failure of Lehman Brothers, the spread spiked dramatically, soaring above 300 basis points and portraying the cascade of panic and contraction of lending standards in the interbank market. The idea that Lehman was the key moment in the crisis might be accurate if nothing of significance happened before its failure; however, as I outline below this was clearly not the case. The quick succession of events occurring in September 2008 – events which would have occurred regardless of Lehman’s failure – triggered the global financial panic. A New Yorker article publishing a detailed timeline of the weekend exposes how AIG’s collapse and near failure was completely uncorrelated to Lehman (25). On Saturday September 13, AIG’s “looming multi-billion-dollar shortfall” from bad gambles on credit default swaps became apparent. Rescuing AIG became a top priority throughout the weekend, and on Tuesday, the day after Lehman filed for bankruptcy protection, the Fed granted an $85 billion emergency loan to salvage AIG’s investments (26). Given the curious timing, AIG’s troubles are often chalked up to be a market reaction to Lehman’s failure; however, proper facts expose the failures of AIG and Lehman as merely a close succession of unfortunate, yet unrelated events. In a similar light, the failure and subsequent buyouts of Washington Mutual (WaMu) and Wachovia, events that further rocked financial markets and battered confidence, would have occurred regardless of a Lehman bailout. Both commercial banks were heavily involved in subprime mortgages and were in deep trouble before Lehman. University of Oregon economist Tim Duy asserts that, even with a Lehman rescue, “the big mortgage lenders and regional banks [ie. WaMu and Wachovia] that were more directly affected by the mortgage meltdown likely wouldn’t have survived” (27). The financial system was precariously fragile by the fall of 2008 and saving Lehman would not have defused the larger crisis or ensuing market panic that erupted after September 2008. Critics of the Fed’s decision often cite how the collapse of Lehman Brothers be- gat the $62 billion Reserve Primary Fund’s “breaking of the buck” on Thursday, September 18 and precipitated a $550 billion run on money-market funds. Lehman’s dire effect on money and commercial paper markets is irrefutable; however, arguments that Lehman triggered this broader global financial panic neglect all relevant facts. The Lehman failure neither froze nor would a Lehman rescue have unfrozen credit markets, the key culprit responsible for the escalation and depth of the Crisis (28). Credit markets did not freeze in 2008 because the Fed chose not to bailout Lehman–they froze because of the mounting realization that mortgage losses were concentrated in the financial system, but nobody knew precisely where they lay. It was this creeping, inevitable realization, amplified by Lehman and the series of September events, that caused financial hysteria (29). As Geithner explains, “Lehman’s failure was a product of the forces that created the crisis, not the fundamental cause of those forces” (30). The core problems that catalyzed the financial market breakdown were an amalgamation of highly leveraged institutions, a lack of transparency, and the rapidly deteriorating value of mortgage-related assets–bailing out Lehman would not have miraculously fixed these problems. While such an analysis cannot unequivocally prove that regulators made the right decision in choosing to let Lehman fail, it offers a step in the right direction–the conventional wisdom that Lehman single-handedly triggered the collapse of confidence that froze credit markets and caused borrowing rates for banks to skyrocket is unfounded. While I have argued above that Lehman’s bankruptcy was not the sole trigger of the crisis, it was also not even the largest trigger. Research by Economist John Taylor asserts that Lehman’s bankruptcy was not the divisive event peddled by the media–using the LIBOR spread (the standard measure for market stress), Taylor found that the true ratcheting up of the crisis began on September 19, when the Fed revealed that they planned to ask Congress for $700 billion to defuse the crisis (31). Arguments advanced by mainstream media that saving Lehman would have averted the recession are naively optimistic and promote a dangerously inaccurate narrative on the events of 2007–2009. The failure of Lehman did indeed send new waves of panic through the economy; however, Lehman was not the only disturbance to rock financial markets in September of 2008 (32). This latter fact is of critical importance. (2) Lehman’s Collapse Caused Inevitable and Necessary Market Change “The inconsistency was the biggest problem. The Lehman decision abruptly and surprisingly tore the perceived rule book into pieces and tossed it out the window.” –Former Vice Chairman to the Federal Reserve Alan Blinder (33). Arguments that cite the ensuing market panic and erosion of confidence that erupted after Lehman’s failure are near-sighted and fail to appreciate the larger picture motivating policy makers’ decision. Regulators’ decision not to rescue the then fourth largest investment bank, an institution assumed “too big to fail,” dispensed a necessary wake-up call to deluded and unruly Wall Street firms, which had been lulled into a costly false sense of security. The question of whether regulators did the right thing in allowing Lehman to fail cannot be studied in a vacuum; it must be considered alongside the more consequential question of whether regulators made the right decision in saving Bear Stearns. In 2007, the Fed’s extension of a $29 billion loan to Bear Stearns rewrote the tacit rules that had governed the political and fiscal landscape for centuries, substantiating the notion that institutions could be “too big or too interconnected to fail.” The comforting assumption that regulators would intervene to save every systemically important institution from failure was a turning point in the crisis, “setting the stage for [the financial carnage] that followed” (34). After the Bear Stearns intervention, regulators faced a formidable and insuperable enemy: the inexorable march of time. It would be an unsustainable situation for the government to continue bailing out every ailing financial firm. “These officials would have eventually had to say ‘no’ to someone, sometime. The Corps of Financial Engineers drew the line at Lehman. They might have been able to let the process run a few weeks more and let the bill get bigger, but ultimately, they would have had to stop. And when they did expectations would be dashed and markets would adjust. If Lehman had been saved, someone else would have been allowed to fail. The only consequence would be the date when we commemorate the anniversary of the crisis, not that the crisis would have been forever averted. ” (35). The Lehman decision corrected the costly market expectations created by Bear Stearns’ rescue and restored efficiency and discipline to markets. Throughout the crisis, policymakers, unable to completely avoid damage, were forced to decide which parties would bear losses. Lehman’s demise was a reincarnation and emblem of their past decisions–their precedent of taxpayer burden had further encouraged Wall Street’s excessive leverage and reckless behavior (36). Saving Lehman would have simply hammered these skewed incentives further into markets, putting the long-term stability and structure of capitalist markets at risk. Taxpayers would have been forced to foot a bill regardless of the Fed’s final decision: if not directly through a bailout, then indirectly through layoffs and economic turmoil (37). Instead of saddling taxpayers with the lingering threat of a large bill in the future, the Fed made the prudent and far-sighted decision to hand them a smaller bill today. The Fed heeded the wisdom of the age-old adage, “better the devil you know than the devil you don’t.” Put simply, the economic “calculus” of policymakers was correct. While rescuing Lehman may have seemed tantalizing at the time, the long-term costs would have been far more consequential than the short-term benefits (38). Political connotations often accompany this argument, evocative of what some have christened the Fed’s “painful yet necessary lesson on moral hazard;” however, partisan beliefs are extraneous to the simple, economic facts of the matter. From a fiscal perspective, policymakers made the right choice to let Lehman fail by shrewdly choosing long-term economic order over short-term benefits. (3) The Right Decision from a Taxpayers’ Perspective Given financial markets’ complete loss of confidence in Lehman and the unnervingly fragile state of the economy, an attempt at a Lehman rescue (within or above the law) would not only have been a fruitless, but also a seriously unjust use of taxpayer dollars. The health of an investment bank hinges upon the willingness of customers and counterparties to deal with it, and according to former Secretary Geithner, “that confidence was just gone” (39). By the weekend, the market had already lost complete confidence in Lehman: “no one believed that the assets were worth their nominal value of $640 billion; a run on its assets was already underway, its liquidity was vanishing, and its stock price had fallen by 42% on just Friday September 12th; it couldn’t survive the weekend” (40). For all practical purposes, the markets had sealed Lehman’s fate and a last-minute government liquidity line could have done nothing to change it. In testimony, Bernanke aptly characterizes a loan to supplant the firms’ disappearing liquidity as a prodigal expenditure, “merely wast- ing taxpayer money for an outcome that was unlikely to change” (41). After the fallout of the Barclays deal, many experts have argued that the Fed should have provided liquidity support during a search for another buyer, since temporary liquidity assistance from the government might have extinguished the escalating crisis. However, such an open-ended government commitment that allowed Lehman to shop for an “indefinite time period” would have been an absurd waste of public money (42). If the Fed had indeed provided liquidity aid up to some generous valuation of Lehman’s collateral, “the creditors to Lehman could have cashed out 100 cents on the dollar, leaving taxpayers holding the bag for losses” (43). The loan would not have prevented failure, but only chosen which creditors would bear Lehman’s losses at the expense of others. On September 15, “Lehman [was] really nothing more than the sum of its toxic assets and shattered reputation as a venerable brokerage”(44). It would have been an egregious abuse of the democratic tax system if the government were to bail out Lehman, leaving the public at the whims of the fragile financial markets and saddling them with an uncapped bill for Wall Street’s imprudence. While virulent rumors of Lehman’s failure as political save-face by regulators may prevail in mainstream media, I maintain that the Fed’s deci- sion was the right one for the American public (45). (4) TARP: Lehman Begat the Legislation that Revived the Financial System In considering the relative importance of Lehman as the cause of the crisis, scholars must also consider the more nuanced and hard-hitting counterpart: “How important was Lehman as a cause of the end of the Crisis? ” While in the context of the suffering caused by the Great Recession and the polarizing rhetoric of “bailing out banks,” this question is politically unpopular; I broach it nonetheless, since it is an important facet of the debate on whether regulators made the “right decision.” Lehman’s failure was vitally important to the end of the Crisis–it allowed the Troubled Asset Relief Program (TARP) to pass Congress, a critical piece of legislation that equipped regulators with the tools ultimately necessary to repair the financial system (46). Every previous effort of the Fed (creating the PDCF, rescuing Bear Stearns, the conservatorship of Fannie and Freddie) was not enough to salvage the deteriorating financial system–by September 2008 “Merrill Lynch, Lehman, and AIG were all at the edge of failure, and Washington Mutual, Wachovia, Goldman Sachs, and Morgan Stanley were all approaching the abyss” (47). The Fed needed the authority to inject capital into the financial system, and as described in Naomi Klein’s The Shock Doctrine , Lehman’s unexpected fall acted as the final catastrophic spark necessary to “prompt the hasty emergency action involving the relinquishment of rights and funds that would otherwise be difficult to pry loose from the citizenry” (48). With authority to inject up to $700 billion of capital into suffering non-bank institutions, TARP preserved the crumbling financial system by inspiring them to lend again. The government offered $250 billion in capital to the nine most systemically important institutions, and used $90 billion in TARP financing to save the teetering financial giants, Bank of America and Citigroup (49). Exactly how much credit TARP deserves for averting financial catastrophe is unclear, yet the fact remains that coupled with Geithner’s Stress Tests, TARP helped stop the county’s spiral into what could have been a crisis as dire as the Great Depression. IV. Conclusion In this essay, I have shown that the Fed exploited the vagueness of Section 13(3) to ad- vance their political, economic, and moral agenda to let Lehman fail, and asserted that policymakers made the right choice in allowing Lehman to fail (weighing economic facts, the implications of future economic landscape, taxpayers’ rights, and the passage of land- mark legislation). It may have been easier for regulators to hide behind legal jargon and technicalities than to defend the economic rationale and practicality of their onerous decision to an audience of distressed Americans; however, this ease is not without the costs of continued confusion, misleading conventional wisdom, and bitter citizenry. Lehman’s bankruptcy will forever be synonymous with the financial crisis and (resulting) wealth destruction.” -Paul Hickey, founder of Bespoke Investment Group (50). Lehman’s failure left an indelible mark in history and a tireless refrain of diverging and potent emotions towards regulators: contempt for the Fed that “triggered the Crisis,” disdain for the government that bailed out Wall Street with TARP, and hatred of impressionable leaders who “bowed” to political pressure. It is indeed easier to accept a visceral and tangible moment like Lehman’s failure as a cause of suffering than the nihilistic and elusive fact that the buildup of leverage and the burst of the housing bubble caused the crisis. However, it is not enough for only academics and policymakers to understand that “Lehman’s failure was a product of the forces that created the crisis, not a fundamental cause of those forces” (51). Conventional wisdom must be rewritten for the sake of faith in the government and the prevention of future crises. Our acceptance of why Lehman was allowed to die must move beyond the apportioning of responsibility or the distribution of reparations–we must redirect the futile obsession over the legality and morality of the Fed’s decision towards the imbalances in the financial system that caused the Crisis to begin with. Endnotes 1 Public Affairs, The Financial Crisis Inquiry Report, 340. 2 Ibid. 3 Clark, “Lehman Brothers Rescue Would Have Been Unlawful, Insists Bernanke.” 4 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 5 Fettig, The History of a Powerful Paragraph. 6 Ball, The Fed and Lehman Brothers, 5. 7 Stewart, Eight Days. 8 Public Affairs, The Financial Crisis Inquiry Report, 435. 9 Public Affairs, The Financial Crisis Inquiry Report, 340. 10 Ibid. 11 Calabria, “Letting Lehman Fail was a Choice, and It Was the Right One.” 12 Chu, “Barclays Ends Talks to Buy Lehman Brothers.” 13 Ball, The Fed and Lehman Brothers. 14 Public Affairs, The Financial Crisis Inquiry Report, 337. 15 Ball, The Fed and Lehman Brothers, 141. 16 Ibid, 11. 17 Ibid, 133. 18 J.B. Stewart and Eavis, “Revisiting the Lehman Brothers Bailout that Never Was.” 19 Ibid. 20 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 21 Tarhan, “Does the federal reserve affect asset prices? 22 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 23 Public Affairs, The Financial Crisis Inquiry Report, 433. 24 Sengupta & Tam. 25 J.B. Stewart, “Eight Days.” 26 Public Affairs, The Financial Crisis Inquiry Report, 435. 27 O’Brien, “Would saving Lehman have saved us from the Great Recession?” 28 Ibid. 29 Public Affairs, The Financial Crisis Inquiry Report, 436. 30 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. 31 Skeel, “History credits Lehman Brothers’ collapse for the 2008 financial crisis. Here’s why that narrative is wrong.” 32 Public Affairs, The Financial Crisis Inquiry Report, 436. 33 J.B. Stewart and Eavis, “Revisiting the Lehman Brothers Bailout that Never Was.” 34 Skeel, “History credits Lehman Brothers’ collapse for the 2008 financial crisis. Here’s why that narrative is wrong.” 35 Reinhart, “A Year of Living Dangerously: The Management of the Financial Crisis in 2008.” 36 Ibid. 37 Antoncic, “Opinion | Lehman Failed for Good Reasons.” 38 Reinhart, “A Year of Living Dangerously: The Management of the Financial Crisis in 2008.” 39 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. 40 J.B. 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