Arbitration Costs: Myths and Realities in Investment Treaty Arbitration

Arbitration Costs: Myths and Realities in Investment Treaty Arbitration

Publication Date

2011

Abstract

Fighting for Darfur is the story of what happened when regular citizens took up this twenty-first-century challenge, adopting as their own concern the human rights of people in a remote region of the world that most Americans will never see, and demanding that their elected representatives do the same. Year after year, they held rallies, lobbied Congress, harangued newspaper editors, wrote letters to world leaders, and undertook an array of creative online activities to bring Darfur to the attention of those in power.

At the beginning of the citizen movement for Darfur the key, and somewhat uncomfortable, question was whether the American public, so derided overseas for its parochialism, cared enough about a crisis in Africa to put in the work required to move the behemoth U.S. political system to action. Six years later, this question can be answered resoundingly in the affirmative. While many millions of Americans still do not know about the atrocities that have taken place in Darfur, many millions do — and a meaningful segment among them have taken that knowledge, expanded on it, and turned themselves into tireless and increasingly sophisticated lobbyists for the cause. As one U.S. government official told me, citizen advocates turned Darfur into a domestic issue, an achievement that cannot be overstated.

But now there are new, even less comfortable, questions to be asked. What effect has this remarkable citizens’ movement had on the policy options pursued, and what effect have these policies had on Darfuris and their nation?

As the Darfur movement gained increasing media attention, many a commentator fell into the trap of attributing any policy decision — good, bad, or otherwise — to advocates. But advocacy, even at its most influential, is just one of the many drivers of a system as complex as foreign policy formulation. In starting this research, it was readily apparent that to try and understand what, if any, impact advocacy had on policy, I would need to look at the policy process as a whole and learn about all the other factors influencing policy at any given time, rather than just looking at what advocates were doing. To date, Darfur advocacy has been both blamed and credited for things that were not the consequence of its actions alone or, in some cases, of its actions at all. Part of the motivation for writing this book was to balance the excesses on both sides of this policy influence matter.

The Darfur movement is just one case of a citizen movement and only time will tell whether its lessons can be generalized. Moreover, the most interesting questions usually butt up against a counterfactual that cannot be known — namely, what would have transpired in the absence of the Darfur movement. Nevertheless, the questions I attempt to answer are: Given what we know about the history of U.S. government responses to genocide and mass atrocity, is there reason to believe that the citizen movement led the U.S. government to do anything beyond what we would have expected in the movement’s absence? If not, why not? If so, did these U.S. government actions lead to improvements on the ground in Darfur? And if they did not, then why not and what could have?

Addressing these questions led me into a second layer of issues that were not in the minds of those of us who, at the start of this new century, pinned our hopes for an end to genocide and mass atrocity on the outcry of an engaged American public: What are the options for stopping genocide when — as in Darfur — the U.S government alone does not have enough influence over the state committing the crimes to stop them? What is the future of a U.S.-based citizen movement against genocide and mass atrocity in such a scenario?

The basic structure of the book is chronological. The story takes us from the Darfur massacres of 2003 (when mainstream media and global attention was focused solely on the peace negotiations underway between the north and south of Sudan), to the subsequent shift in focus on Darfur, and finally to the aftermath of the Sudanese national elections in 2010. Individual chapters tackle the policy decisions that commentators have attributed to the Darfur advocacy movement. The final chapter stands alone as a summary what government action was and was not attributable to advocacy, what impact those actions had on the situation in Darfur, and what the Darfur story suggests might be needed to move toward a world without genocide and mass atrocity.

The four parts of this book roughly track the life of the advocacy movement from nonexistence in 2003, to emergence in the shadow of lessons from the 1994 genocide in Rwanda, and then rapidly to substantial influence in the U.S. political realm. But by late 2006 the advocacy movement began to flounder as advocates realized that the United States alone could not “save Darfur” and began to seek other channels through which to pressure Khartoum. Then finally, advocates shifted from focusing on Darfur in isolation to looking at problems between the north and south of Sudan as well.

Today in Darfur, 2.7 million people remain stranded in displaced camps. After rigged Sudanese elections in April 2010 in which most of Darfur’s displaced persons were unwilling or unable to vote, those most responsible for the destruction of their communities have an even greater grip on power than they did at the height of the massacres in 2003 and 2004. To that extent, Fighting for Darfur falls into the bleak body of work that documents the repetitive occurrence of genocide and mass atrocity and the equally repetitive failure to stop it. This time, the story came with a twist, as thousands of regular citizens did their utmost to change this depressing trajectory. But in no way can Darfur be seen as a “success story.” So is this the point at which we all throw up our hands and dismiss as idealistic any hope that mass murder will not continue into the future as it has throughout the centuries? Actually, Fighting for Darfur offers a sliver of a silver lining.

Until Darfur, the persistent failure of the U.S. government to protect civilians from genocidal violence could be all-too-easily attributed to and justified by the absence of a politically relevant outcry from citizens. The insufficiency of that alibi has now been revealed. By telling the story of what happened when citizens did create an outcry, Fighting for Darfur enables us to take the next step and begin to understand the other missing pieces of the genocide prevention puzzle.

ISBN

0230100228

Arbitration Costs: Myths and Realities in Investment Treaty Arbitration

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