EU Accession and its Impact on Romania’s Political Economy - Brian Safran

             Since the collapse of the totalitarian and violent regime of Nicolae Ceausescu in 1989, Romania has miraculously transformed itself from a state of political backwardness and economic isolation into a western-style democracy and a burgeoning free-market economy. Perhaps the most influential factor initiating the drastic changes that have come to characterize modern-day Romania has been the prospect of membership in the European Union that began shortly after the Ceausescu regime was toppled and a democratic form of governance established. Along the path to membership, Romania has had to undertake a series of comprehensive structural reforms to fulfill the pre-accession requirements set forth by the European Union. Revolutionary reforms were accomplished incrementally, allowing for a progressive strengthening of Romania’s democracy, and affording it placement on a trajectory of economic growth. An analysis of Romania’s accession into the EU, and in particular, the progress it has made in reducing corruption, protecting minority rights and forging a free market economy can demonstrate how membership has consolidated its democracy and improved upon the aggregate standard of living of its peoples.

While the fall of communism initially brought economic and political instability to Romania, the objective of securing EU membership has been a driving force in reducing political corruption, social tension, and economic mismanagement in the country. (Canberra 2005:18) Although Romania became a full-fledged member of the European Union in 2007, the process of securing its accession began in 1995 when the Romanian government officially submitted its application for membership. (Lovatt 1999:1) In 2002, Romania was formally invited to join the EU upon its fulfillment of a multitude of domestic policy reforms. (Canberra 2005:18) This required that Romania agree to the European Union’s acquis communautaire, requiring its government to align its legislative framework and political and economic objectives with that of the EU. (Ram 2003:29) In exchange, membership in the EU was believed to offer Romania political stability and the means to economic prosperity.

Rampant corruption plagued Romania after the collapse of the Ceausescu regime, rendering its desire to establish a democracy a struggle. The 1991 introduction of a new constitution paved the way for democratic reform, yet true democracy was undermined by the ability of Ceausescu’s protégés and supporters to fill roles in the Romanian bureaucracy after his death. (Lovatt 1999: 1; Anyz 2005: 18) The former communists were able to gain control of the Social Democratic Party, which governed the country in the early 1990s and again in the early 2000s. (Country Watch 2007:1, 5) Under the leadership of Ion Iliescu and Adrian Nastase in the early 2000s, the SDP afforded businesses special privileges; and under their rule, flaws in the democratic institutional structure of the country were perpetuated, ranging from rampant corruption and control over the media to political interference in the workings of the judicial system. (Anyz 2005:18) Furthermore, the then existing judicial system did not promote equality before the law. Judicial proceedings were fraught with bribery and afforded the wealthy and powerful special exemptions from its authority. (BBC H 2005:1) Such occurrences perpetuated a system biased in favor of the rich; and thus impeded upon the establishment of true democracy.

Many Romanians believe that extensive corruption in their country has been the primary inhibitor to meaningful political change and improvements to its standard of living. (Sullivan 2006:2) In response to criticism by EU observers in the early 2000s, the Romanian government was advised to progress toward reducing corruption to further strengthen its democracy. (BBC H 2005:1) Popular support of EU accession in Romania dictated that the elected government adhere to its mandates; and meeting accession obligations have been a positive force for change. (Burduja 2006:64) One of the most influential individuals often credited with having placed Romania on track for accession was then Justice Minister Monica Macovei, who sought out to establish a fair and incorruptible justice system by instituting training programs for judges, establishing a computer system by which to identify and track corruption, and commencing investigations into the affairs of numerous politicians who were alleged to have engaged in corruption. (Irish Times 2006:1) The progress achieved under her direction in part afforded Romania the opportunity to join the EU in 2007.

EU influence has led to the creation of a prosperous civil-society, contributing to the establishment of a participatory atmosphere and a democratic political culture. (Phinnimore 2004: 217) In a pivotal election in 2005, election observers from non-governmental organizations found the SPD attempting to manipulate the election results in their favor; and based on their criticism, the SPD was forced to yield its power to a center-right government formed under the leadership of Traian Basescu. (Anyz 2005:19) Not only did this finding and the result that followed evidence the newfound strength of Romania’s civil-society and democracy, it also demonstrated progress in Romania’s ability to curb corruption; serving to accelerate Romania entry into the EU. Under the leadership of President Basescu that followed, Romania was able to secure an accession treaty from the European Union and pass it through the Romanian parliament, affording the country entry into the EU in 2007. (Country Watch 2007:7)

Although Romania was permitted to join the EU in 2007, it remained clear that it had yet to accomplish its obligation to establish a fully independent judiciary able to tackle prevalent, ongoing corruption. (EurActiv 2007:1) There remains throughout Romanian society a dangerous assumption that all functions performed by the political elite are done so with some degree of rule bending. (Anyz 2005: 18) In 2006, Transparency International’s Corruption Perceptions Index found Romania to rank worst in the entire twenty-seven-member European Union. (Shepherd 2007: 117) However, as noted by former Justice Minister Macovei, a widespread and fundamental transformation of the judiciary cannot be achieved overnight. (BBC H 2005:1) Nevertheless, signs of improvement of are visible. The recent establishment of a National Anti-Corruption Department demonstrates the extent of Romania’s ongoing commitment. (Sullivan 2006:2) Over the past year, numerous investigations and arrests of high-ranking public officials have occurred, evidencing continued progress. (EurActiv 2007:1) One such investigation was undertaken into the affairs of former Prime Minister Adrian Nastase, which many observers believed to evidence the newfound ability of the justice system to subject even the most powerful of politicians to its authority (Sullivan 2006:3-4) Thus, Romania has continued its effort to reduce corruption and promote democracy even after securing its membership in the EU.

Another contentious issue for Romania has been the historical subordination of minority groups such as ethnic Hungarians and the Roma to the dominant Romanians.

The continuation of this relationship between the groups stood in direct confrontation to fundamental EU principles; which require the rights of minorities be protected under the law. (Europa 2007:1) The protection of such rights is perceived to evidence the existence of a functioning democracy and is a method by which to ensure the maintenance of social stability. (Lovatt 1999:1) Ethnic Hungarians and the Roma combined compose about ten percent of the Romanian population. (Economist B 2007:1; Dianu 1997) These groups have a long history of being refused civil rights by the Romanian majority on the grounds that they pose a threat to the unity of the country. (BBC A 2007:1) Yet in order to attain membership in the Council of Europe, and subsequently the EU, Romania was compelled in the mid-1990s to agree to the supranational protection of minority rights through the European Court of Human Rights. (Ram 2003: 36) One of the most contentious issues has been the protection of Hungarian language rights under the law. In an effort to quell criticism at home and abroad just prior to the EU rendering its decision on whether to commence accession negotiations in 1997, the Education Law was revised to allow minority students to be taught in their national language. (Dianu 1999:2) In addition, evidence suggests that the decision to include the UDMR, a political party composed of ethnic Hungarians, in 1996 and again in 2000 in governing coalitions was in part based on an effort to prove its inclusion of the group to the EU and international observers. (Ram 2003:38, 45) The recent establishment of a National Council for Combating Discrimination and the passage of strict hate crime statutes to protect minorities further evidence the transformative effect of EU regulations. (Sullivan 2006:4)

Although rights of ethnic Hungarians have improved substantially, some allege that those of the Roma minority have not. (Sullivan 2006:3) However, progress has been shown. In response to a recent murder committed by a Roma migrant from Romania in Italy, Romania’s primer has created an advisory panel of experts to develop policies that aim to better integrate the Roma minority; and has called on the European Commission to do the same. (BBC D 2007:1) The need to maintain a reputable image in the larger context of EU relations has required the Romanian government to abandon its former ethnocentric stance and introduce policies that integrate all of its peoples into Romanian society. Thus, the evolution of minority rights in Romania and their incorporation into the framework of Romanian politics and society demonstrates the extent to which EU accession has furthered the democratization efforts of Romania.

In addition to strengthening democracy and reducing social tension, the requirements of EU accession have served to strengthen and consolidate Romania’s free-market economy. Prior to commencing the accession process, Romania’s economy was characterized by the existence of inefficient and unproductive enterprises, nationalized utilities, and an archaic financial system. (Phinnemore 2006:30) To adhere to the requirements of EU accession, Romania was obliged in the early 2000s to undergo an extensive privatization campaign, introduce free market reform, and achieve the capacity to compete on the European market. (BBC B 2005:1) A major step towards achieving that end was undertaken in January 2001, after property seized under communist rule was to be legally returned to its former owners. (Country Watch 2007:5)  As per EU regulations, Romania has had to establish a fully competitive business environment in which all companies are given equal treatment by the government. (Sava 2006:1) The 2005 introduction of a flat tax also served to encourage foreign and domestic investment, helping the country to achieve a staggering growth rate of almost seven percent of its GDP in 2006. (BBC G 2007:1) Romania has simultaneously been able to achieve a budget deficit rate of 2.8 percent of its GDP, below the EU-set threshold of three percent, one of the prerequisites for EU countries to join the Euro zone (Shepherd 2007:118).

In addition to improving its macroeconomic indicators, the progressive change stemming from reforms required by the EU has impacted the average Romanian citizen, who has seen substantial improvement in their quality of life and standard of living. Restaurants and shopping centers have sprung up in previously impoverished neighborhoods and a series of massive construction projects have commenced in numerous localities. (Carey 2004:553-54) Such development has allowed Romania to utilize its substantial labor pool to its fullest, affording the country one of the lowest unemployment rates in Europe. (Sava 2007:1) In addition, the expected inflow of common agricultural policy monies is expected to increase the productivity of Romanian agriculture and farming, an important source of income in the Romanian economy. (Condon 2007:29) Thus, Romania’s securing of membership into the European Union has brought about economic change for its betterment.

The extent of Romania’s effort to improve upon its political economy while meeting the requirements of EU membership has, and will likely continue to be maintained in the post-accession era. The ongoing impact of the EU is evidenced by continued democratic and free-market reform since its accession in January 2007.  In the spring of 2007, the strength of Romania’s democracy was put to the test after President Basescu was suspended from office in the on the grounds that he had failed to uphold the constitution. (Connolly 2007: 26) The fact that Romanian voters refused to impeach him in the referendum that ensued was attestation to the potency of the democratic process as it evidenced electoral legitimacy. (Country Watch 2007:9; BBC F 2007:2) On the economic front, Prime Minister Calin Popscu Tariceanu recently commenced a large-scale effort to improve upon Romania’s infrastructure and relative competitiveness vis-à-vis other European countries, propagating increasing average wage rates, rising aggregate personal consumption and declining inflation. (Economist A 2007:1-2) EU membership has reduced the perception of political and economic risk among investors, and many believe that Romania’s newfound ability to market its highly skilled yet comparatively cheap labor force will put it at a marked advantage in the years to come. (Shepard 2007: 119) Romania has not faltered in its adherence to its European Union commitment, and despite its need to undergo further reforms, it has demonstrated an unwavering desire to attain a prominent position on the map of Europe.

Some analysts fear that the drive toward reform will fade as the incentives for continued efforts to democratize and privatize fall by the wayside. (Shepard 2007: 118) However, many others note that incentives for conformity with EU demands still remain. As per Romania’s Accession Treaty, the commission retains the ability to reduce EU funding and to refuse to recognize the decisions of the Romanian court system at the EU level. (EurActiv 2007:1; Parker 2006:1) If Romania desires to use the benefits of its membership to their fullest by becoming an active and respectable participant in EU affairs, it will need to continue its effort to root out corruption and comply with the economic policies embedded in EU law after its accession. (BBC C 2006:1) Furthermore, Romania’s desire to further the cause of integration by joining the Schengen area, which harmonizes policies related to immigration and law enforcement between its members, will require the country to meet further European demands. (BBC E 2007:1) Thus, the EU will likely continue to improve upon Romania’s domestic trajectory for the years to come.

Romania has undergone a series of reforms since the Romanian Revolution of 1989 that marked the end of the Ceausescu era. Initially plagued by the remnants of an archaic, corrupt and discriminatory communist regime, the country in the post-communist period seemed unable to create and sustain a fully functioning democracy. Romania’s eventual desire for entry into the European Union was based on the belief that membership would improve Romania’s socio-economic standing, and afford it a degree of competitiveness comparable to that of other European countries. However, inclusion into the ‘club of democracies’ did not come without a price. Romania was required to make numerous concessions, compelling the country to undergo substantial political and economic reform. Among these changes were the requirements that Romania reduce the instance of corruption, protect the rights of its minorities, and align its economic policies with that of the EU. In effect, these undertakings have served to strengthen Romania’s democracy while simultaneously promoting free market reform; instilling a perception of political stability and encouraging foreign investment. An analysis of the transformations undertaken by Romania in preparation for and subsequent to EU membership demonstrates how supranational integration in Europe can contribute to the political stability of its members and the economic improvement of their citizenry.

Works Cited

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The Anglo-American Jury and Japanese Criminal Justice

      The Japanese government is in the process of transforming the nation’s criminal procedure from its traditional system whereby a judge unilaterally determines verdict and sentence to a new system whereby such decisions are to be made by a collective of a judge and jury, or ‘Saiban-in.’ The new system, which will take effect in 2008, is believed by many to be a middle ground between the Franco-German juryless system and the Anglo-American system, in which a group of ordinary citizens determine the fate of a defendant without judicial interference. However, the proposed procedural change will without doubt render the jury powerless and continue the de-facto monopoly that judges have when it comes to making judgments in criminal cases, as they will retain tremendous influence over the decisions of the jury. The establishment of a working jury system has the potential to bring about numerous benefits for the Japanese government; assuring that the decisions rendered in criminal cases are made in accord with democratic precepts, encouraging civic participation in government, and restoring public trust in the judiciary. Accordingly, it would be advantageous for Japan if it were to wholeheartedly adopt the Anglo-American jury system so as to provide criminal defendants with a fair trial and to promote civil involvement in judicial proceedings.

A plethora of arguments can be made as to why it would be in the best interest of Japan to establish a jury-based system of criminal procedure. Decisions in Japanese criminal trials have traditionally been determined unilaterally by a judge, and many have been reluctant to modify this system. They cite foreign incidents such as the Rodney King case in the United States, where a jury found white police officers to be innocent of a clearly racially motivated heinous crime, to be evidence as to why Japan should not adopt a jury system. However, judges themselves are not any less prone to making mistakes than are juries. When single political actors are enthroned with the ability to make judicial decisions without substantial oversight, they are prone to lackadaisical or purposeful errors in judgment. Two prominent Japanese cases that evidence fallacious judicial decision-making are Government v. Akabori and Government v. Menda; wherein defendants were found guilty of committing murder and were sentenced to extensive prison sentences; only to be released on appeal after spending twenty-five years behind bars. (Wakulat, 2005, 1) These incidents threaten to propagate widespread public distrust of the Japanese criminal justice system and attest to the need for change. (Cho, 1998, 1)

In addition to blatant judicial error, the traditional arrangement of the Japanese criminal justice system is such that judges have tended to decide cases on paper before testimony is rendered. An inextricable bond exists between the judiciary and the prosecutor’s office and police departments. (Asahara, 2004, 1) This is evidenced by the fact that judges often accept law enforcement claims of a defendant’s “voluntary confession” without looking into whether the defendant was coerced into making an admission of guilt (Kiss, 1999, 2). Defendants, whom can be imprisoned for up to twenty-three days without access to attorney representation, are likely to make such confessions under duress; and the processes by which police officers extract them often goes unchecked. (Richardson, 2004, 1) In addition, Japanese judges have tended to trust prosecutors, effectively affixing a “rubber stamp” to their decisions without considering the potential for falsities (Kiss, 1999, 2). This in part has resulted in an unfathomable ninety-nine percent conviction rate of Japanese criminal defendants; which many see as evidence of improper procedure. (Wakulat, 2005, 1) The institution of a jury system will serve to increase scrutiny into the previously unsupervised methods of prosecutors and law enforcement officials. Also, the nature of jury participation affords the justice system with protections that insure that each criminal defendant is given a full and honest opportunity to defend themselves against allegations. The “laymen” that comprise juries do so only temporarily, and as such, are not subject to the scheduling or monetary constraints that have fostered in judges a need for maximizing efficiency and speed. A group of citizens working together to come to decisions as a jury would be perhaps less prone to missing important details, affording them a better appreciation of the facts surrounding a particular case. In addition, as a group of actors working together, jury members can serve an oversight function, and their very appearance will force the judiciary to follow proper procedure at all times. A transition to a jury system will likely serve to strengthen public confidence in an ailing criminal justice system and government.

Some say that the only characteristics juries share is common outrage, stereotypes, and uneducated judgment. In fact, the infamous Rodney King case also pointed out the impact that racial biases can have on the outcome of a jury trial. However, the homogeneity of Japanese society in terms of race, culture, religion and language may reduce the commonly perceived biases associated with jury trials in the West (Kiss, 1999, 7). Opponents of the jury system argue that it is fallacious to assume that a group of uneducated commoners can make well-informed judgments. However, as elite members of society, judges may find themselves distanced from the moirés and customs of the average citizen. By virtue of the scholastic rigor associated with joining the judiciary, judges can become disconnected from Japanese public opinion and sentiment, and are therefore less able to render judgments in accord with contemporaneous societal views. Judges must undergo extensive training and must pass the difficult National Legal Examination before attaining a judicial post, and in effect, their education serves to propagate in themselves elitist viewpoints that do not correspond with those of the general public. (Kiss, 1999, 2) On the other hand, the “ordinary people” that compose juries will render their decisions based on “common sense and human experience;” the knowledge more applicable to understanding the context within which criminal allegations arise (Belli, 1959, 180).

Also, the existence of a jury system encourages civic participation in government. Although many may feel as though their government operates as a foreign entity having little to do with one’s personal involvement, serving on a jury can give each citizen the opportunity to participate in the workings of their government in a truly meaningful way. Some scholars make the assertion that a jury system is a disguised form of “direct democracy,” where each citizen actively participates in the workings of their government. They argue that such a system was never intended to be instituted in Japan due to the obvious coordination process that such a system would propagate. Although the practice of establishing juries resembles “direct democracy” as it existed in Ancient Greece, the commitment each citizen is required to make to the process is limited. Unlike in Ancient Greece, citizens are not asked to vote on every issue that arises and at all times; but rather each individual will take part in the process within a small subset of the total number of cases and within limited amounts of time. In addition to educating the Japanese populace about the strictures of their legal system, serving on a jury will engrain in each participant feelings of interconnectedness to one’s country, thus instilling a sense of nationalism. The jury system will strengthen Japanese democracy and reinforce the notion of “popular sovereignty,” or the understanding that Japan is ruled by its people. (Richardson, 2004, 2) These measures may help restore public trust in the Japanese legal system. In addition to strengthening democracy at home; the establishment of a jury system in Japan may have the potential to encourage and advance the spread of democracy throughout all of Asia. (Myers, 2006, 1) In fact, the recently adopted changes in Japan have already spurned a “ripple effect” in Asia, as South Korea, the Philippines, and even China have begun to reexamine their existing judicial systems (Fukurai, 2005, 1). Clearly the affording of Japanese criminal defendants a jury has significant implications for the development of democracy both at home and abroad.

Japan is also well positioned and amenable to allowing for the change. During the period of Taisho Democracy, the Japanese government experimented with limited jury system whereby the jury was to provide nonbinding guidance to the judge, who would himself make final decisions. (Von Mehren, 1963, 22) Although this system was gradually eliminated with the onset of totalitarianism, the notion of serving on a jury has been accepted and ingrained into the socio-cultural framework of Japanese society. (Fukurai, 2005, 2) Also, in the latter half of the twentieth century, Japanese citizens have become more willing to bring their quarrels to trial than in the past, thus rendering citizen involvement in the court system less of a “foreign” activity (Kiss, 1999, 7). Given the advantages of the jury system discussed above and the mindset of the Japanese citizenry, the time for change is now.

It has thus been determined that Japan has the potential to benefit from restructuring its justice system so as to afford criminal defendants a jury of their peers. However, the recently established “mixed system” must be examined so as to determine its appropriateness given the Japanese socio-cultural context. This system, which is set to be adopted in 2008, will allow for decisions as to verdict and sentence to be made by a panel of six “Saiban-in,” or jury members, and three judges in cases when there is uncertainty as to guilt; and four “Saiban-in” and one judge in those cases where there is no substantial doubt as to guilt (Anderson, 2005, 233). By virtue of its very design, this system has the potential to bias the outcome of a case. The flaws of this system can be prominently seen if one considers the unique strictures of Japanese culture. As a collectivist society, the Japanese often maintain higher levels of trust and subservience to figures of authority than do those in the West. (Kiss, 1999, 5) This cultural difference makes it likely that in Japan, jury members would be unwilling to confront and disagree with judges of higher relative power and authority. In such a system, it would be more likely that jurors would yield to the opinions of judges in an effort to “maintain harmony” and to “avoid confrontation” (Kiss, 1999, 5). For these reasons, the mixed system is unwarranted, and its establishment will merely continue the de-facto monopoly judges have on decision-making power. If the Japanese government is serious about adopting the jury system it must consider instead the Anglo-American model, wherein decision-making capabilities are transferred in their entirety to a jury; absent of judicial interference. In this setup, jury members would be less inclined to yield to the decisions of co-equal jury members than in if they were working under the de-facto authority of a professional judge. (Kiss, 1999, 6) Only without judicial interference in the decision-making process of juries can the Japanese government insure that each criminal defendant is given a fair opportunity to defend himself, face judgment from an impartial point of view, and receive justice as due him.

In conclusion, Japan stands to greatly benefit from infusing a jury system into its criminal procedure. Juries can help to ensure that trials are conducted fairly; break the previously inextricable bond between judges, prosecutors, and police officers; and utilize their collective common sense to garner an understanding of the context surrounding cases so as to come to objective conclusions. The change can also serve to the benefit of the nation, as the newfound civic participation will allow each and every Japanese citizen to feel as though they play an important role in the decision-making processes of their country. This sentiment will encourage the advancement of democracy both at home and in neighboring countries as they bear witness to the benefits of the jury system. As explained in the foregoing arguments, the “mixed system” recently adopted by the Japanese Diet will promulgate a continuance of judicial authority and render the opinions of the jury meaningless. Ensuring that decisions are made fairly and democratically requires the institution of the Anglo-American jury system, whereby judges are to be removed from the decision-making process in their entirety. Without question, the establishment of a full-fledged jury system would serve to the advantage of Japan.

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The Contribution of the Samurai to the Establishment of Modern Japan - Brian Safran

The Meiji Restoration that followed the collapse of the feudal order was an era in Japanese history in which Japan sought to abandon its traditional isolationist stance and modernize its economic and political systems, military capability and social order. The efforts undertaken by the Japanese government represent an attempt to shield the country from forces of Western imperialism by strengthening its position relative to Western powers.  The recognition of the distinctive ‘spirit’ of the samurai class fostered their successful reallocation into productive positions in government, agriculture, industry, and commerce and thus served as a major catalyst in allowing Japan to achieve the extensive socio-political modernization and sustained economic vitality that it desired during the Meiji Restoration.

The Japanese samurai emerged as a distinctive social class during the feudal era. The samurai were endowed with the ability to commit acts of violence against commoners who failed to adhere to societal norms, and maintained a monopoly on the bearing of arms; effectively serving to strengthen their power relative to others. (Norbeck, 1967, 8-9; Hayes, 2005, 13) Characterized by their unwavering might and prominent role in protecting the court aristocracy as “military specialists,” they developed their own unique identity and social construct (Ikegami, 1995, 47). In direct competition with the feudal aristocracy, they achieved and maintained their position in society by utilizing their power to subordinate and dominate those of lesser standing. (Ikegami, 1995, 49) The samurai differed from prior military men in ancient Japan by their professionalism both in terms of skill and in the realization of themselves as honorable professional warriors. (Hayes, 2005, 13) During the early stages of feudalism, this identity allowed many of them to enjoy comparable wealth to that of aristocratic society without requiring the attainment of the requisite status afforded them. (Ikegami, 1995, 47-48) Thus, the samurai had succeeded in utilizing their military prowess to escalate their position in society in early feudalistic Japan.

While it is without doubt that the early samurai possessed tremendous military capability, it was the manner in which they portrayed themselves that earned them their special place in history. At the height of their feudal prosperity, the samurai embodied an unwavering sense of self-discipline, loyalty and honor among its members that became recognized as the “spirit of the samurai” (Yamamura, 1968, 153). This ‘spirit’ permeated all actions of the samurai and became the code of ethics under which they not only fought, but lived. A samurai would rather sacrifice his own life than risk a violation of the bushido, or samurai moral code. (Ikegami, 1995, 278) The samurai sense of morality was highly regarded by the lords who capitalized on these qualities during the extensive period of relative peace during the Tokugawa period. A subsequent mutually amicable relationship arose that allowed for the incorporation of the samurai into bureaucratic, landlord-like positions highlighting their abilities. They were placed into administrative and public service posts and were rewarded with economic security as payment for their services (Black, 1975, 47).  For the first time in their history, the samurai were able to achieve recognition and economic self-sufficiency, as a result of their skills and ethical conduct off of the battlefield.

The highly regarded status enjoyed by the samurai was however temporary; challenged by the political and economic transformation experienced by Japan during the mid nineteenth century. Japan came to the realization that Western ideals and tactics threatened the continuance of Japanese independence and way of life, thus prompting the commencement of the Meiji Restoration and a newfound “commitment to social change and political modernization” (Hayes, 2005, 18). The gradual disintegration of the feudal system and the revitalization of imperial power with its concurrent industrialization and economic modernization served to adversely impact the samurai. (Gordon, 2000, 2) A shift from a predominately agricultural society to a commerce-based society destabilized the land-dependent samurai. This, coupled with a plethora of social reforms, resulted in their demotion and the accompanying revocation of their privileged ruling status while the nation was simultaneously undergoing the most miraculous transformation of its history. (Yanaga, 1955, 120; Ikegami, 1995, 360) The “Charter Oath” was declared by Emperor Mutsuhito of the Meiji regime, and it propagated a blending of social classes, encouraged Western learning in an effort to strengthen Japan’s militaristic capabilities, and thus prompted a reorganization of the military (Hayes, 2005, 18). The 1873 introduction of universal male conscription and the corollary increase in military spending reduced the aggregate competency of samurai warriors, who had lived through an extensive period of relative peace during the Tokugawa era and had been trained using outdated forms of armor and military tactics. (Black, 1975, 45-46; Berry, 2006, 227) As a result, the fate of the samurai had been in jeopardy. Thousands found themselves unemployed and facing poverty, having lost their rights to own land and property. (Black, 1975, 55) In short, the Meiji Restoration transformed Japanese society and established a new order in which the military skills of the samurai were no longer needed, and it served to relegate them to a civilian life with no prestige, power or economic security. (Yanaga, 1955, 124)

The samurai however were not ordinary citizens. Many were learned individuals and many had significant leadership abilities. (Hayes, 2005, 19) Their military training, ability to cope with hardships and selfless dedication coupled with their strict code of ethics served to distinguish them from the civilian population. (Yamamura, 1968, 145) Their sense of bushido portrayed their “honor as a cultural representation of their power and independence” (Ikegami, 1995, 34).  Internalization of these sentiments among the samurai evolved into a sense of autonomy and individuality whereby the individual was the “ultimate owner of his mind and soul” (Ikegami, 1995, 34). Their feudalistic origins, where they relied upon their lords for small stipends, endowed them with the merits of frugality and loyalty. (Norbeck, 1967, 20) During the Tokugawa period their position as landlords allowed for their accumulation of financial and administrative experience as well as entrepreneurial capability. (Gordon, 2000, 1) The samurai were far more than simple warriors whose time had past. Their attributes were of great value and their collective spirit eternal. Despite their setbacks, the ‘spirit of the samurai’ would propel them forward into an era of modernization and change.

The Meiji government of 1868 found itself facing the serious dilemma of having to reallocate the 1.8 million displaced samurai. (Harootunian, 1960, 433) The revitalization of Japan required a restructuring of the existing social system, and the changes led to the demotion and virtual annihilation of the samurai as a hereditary military class. (Harootunian, 1960, 433) But having a highly educated, dissatisfied group of people living in the throws of poverty was not conducive to Western ideals, and their frequent uprisings threatened the goals of the Restoration. (Black, 1975, 227) In addition, the government recognized the value of the political, administrative and literary accomplishments of the class to the furtherance of their own economic advancement, and as such absorbed the samurai into their new culture through the “samurai rehabilitation program” (Harootunian, 1960, 435). This program was primarily designed to assist the Meiji government in expanding its agricultural, commercial and industrial programs while secondarily providing a solution to the samurai problem (Hayes, 2005, 19). While there was some doubt as to whether or not the samurai would be able to assume their new role, most were able to adapt the characteristics that had allowed them to prosper during feudal times to their changing situation. The government assisted by enacting laws that provided the samurai with increased job opportunities in industries that fostered economic expansion. Many samurai found themselves financiers, managers and workers. (Harootunian, 1960, 434) A large number of ex-samurai were also assigned to wasteland reclamation projects where the government hoped to stimulate investment and enterprise among them while simultaneously providing them with income and housing. (Haratoonunian, 1960, 436) In an effort to expand their national banking facilities, the government established a mutually beneficial system whereby samurai pensions would be used as securities to allow for the development of bank branches. (Harootunian, 1960, 440)  Keeping with their pursuit of Western industrialization, the Meiji government enacted a capital loan program that granted funding to samurai who chose to invest in industry or commerce that resembled Western practices. (Harootunian, 1960, 442) Between 1876 and 1889, the number of samurai who owned businesses expanded rapidly. (Harootunian, 1960, 444)  Many samurai embraced their altered role in society because it afforded them a new “elite” status and its appeal to nationalism awakened the “sleeping spirit of the samurai” (Ikegami, 1995, 361). The motivations behind the samurai rehabilitation program maybe subject to challenge, but what is clear is that the program did allow an opportunity for many samurai to capitalize on their skills and “together with a growing merchant class, many of whom were themselves samurai, [were able to provide] the human resources that propelled the country politically and economically forward” (Hayes, 2005, 19).

The Meiji leaders engaged the samurai in industries in which they were most likely to reach their full potential. The samurai contributions that followed impacted all major aspects of the Meiji economy and accelerated its growth and development. (Harootunian, 1960, 444) While it can be argued that the samurai had no choice but to accept their fate and resign themselves to their new positions, it is the expertise that they brought and the spirit which they personified that heralded their position as major contributors. The knowledge of agriculture embedded in the samurai from their feudalistic upbringing, combined with their managerial skills allowed them to assist the government in cultivating thousands of acres of previously designated wasteland for commercial, investment and residential purposes. Upon the request of Kuroda Kiyotaka, the Minister of Colonization, the government established a program to develop these lands, and it was uniquely suited to the dual skills of the samurai employing both their peacetime agricultural and industrial skills and their wartime military capabilities. (Harootman, 1960, 439) These endeavors led to the recruitment of 7,500 samurai and the subsequent development of the formerly barren northern area of Hokkaido. (Harootunian, 1960, 444) The samurai were also credited with possessing “strong entrepreneurial spirit,” having channeled their medieval qualities of frugality and self-determination into an intense interest in money and profit; placing them in a position perfectly suited for “advancement of the new nation” (Yamamura, 1968, 145). It is often contended that the development of capitalism in Japan was a by-product of samurai business acumen and their ability to sacrifice self-interest for national interest. (Yamamura, 1968, 153) There were those who believed that the samurai were more suited than either the peasant or merchant class to assume the responsibilities of Western-type industrialization because they were not burdened by traditional business techniques and methods. (Haroootunian, 1960, 442) In fact, Godai Tomoatsu, the leading entrepreneur of the Meiji period was of samurai origin. (Brown, 2003, 1) What is undeniable is the multitude of samurai-owned businesses that arose during this period ranging from small companies to large corporations and their impact on promoting Japan’s modernization. (Harootunian, 1960, 444) Samurai influence was so significant that some interpretations of the modern banking system in Japan credit the samurai with its establishment. (Yamamura, 1967, 199) Samurai leadership abilities led to claims that they were “natural leaders” and that their “participation in government affairs brought to it a polished purity and virtue” (Harootunian, 1960, 433). Noteworthy among the many samurai to assume leadership positions in the Meiji government were Ito Hirobumi who went on to become the countries first prime minister; Okubo Toshimichi who led the revolution against the shogunate; and Saigo Takamori who later assumed command of the imperial army (Beasley, 1957, 91). The samurai of the Meiji Restoration had overcome the loss of their traditional infrastructure but had retained the attributes needed to become major contributors to Japanese expansion and revitalization.

The samurai were a valiant and noble group whose contributions to Japanese prosperity greatly exceeded their military prowess. Their skills in government, agriculture, industry and commerce have left an indelible mark on almost all aspects of the Meiji economy. Far greater than their materialistic contributions was the ‘samurai spirit’ which they embodied. Their code of honor permeated every aspect of their existence and integrated itself into the Japanese way of life. Reaching its height during the feudalistic period, the ‘samurai spirit’ became the propellant that allowed for their survival during the Meiji Restoration and for their emergence as a major contributor to the economic, political and social transformation of Japan. The samurai leave behind a legacy of tradition and legend and a ‘spirit’ that will forever be symbolic of the integrity and drive that characterized the successful Japanese transformation.

Works Cited:

Beasley, W G. "Councillors of Samurai Origin in the Early Meiji Government, 1868-9."

Bulletin of the School of Oriental and African Studies 20 (1957): 89-103.

Berry, Mary E. Japan in Print: Information and Nation in the Early Modern Period. 1st

ed. Vol. 1. London: University of California P, Ltd., 2006. 1-342.

Black, Cyril E. The Modernization of Japan and Russia: a Comparative Study. 1st ed.

Vol. 1. London: Collier Macmillan, 1975. 1-354.

Brown, Sidney D. "Nagaski in the Meiji Restoration: Choshu Loyalists and British Arms

and Merchants." Crossroads. 13 Dec. 2003. University of Wisconsin Oshkosh. 26 Mar. 2007 <http://www.uwosh.edu/faculty_staff/earns/meiji.html>.

Gordon, Bill. "Tokugawa Period's Influence on Meiji Restoration." Wesleyan University.

Feb. 2000. Wesleyan University. 17 Mar. 2007 <http://wgordon.web.wesleyan.edu/papers/jhist1.htm>.

Harootunian, Harry D. "The Economic Rehabilitation of the Samurai in the Early Meiji

Period." The Journal of Asian Studies 19 (1960): 433-444. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Hayes, Louis D. Introduction to Japanese Politics. 4th ed. Armonk: M.E. Sharpe, Inc.,

2005. 3-291.

Ikegami, Eiko. The Taming of the Samurai. 1st ed. Vol. 1. London: Harvard UP, 1995. 3-

378.

Norbeck, Edward. Changing Japan. 1st ed. Vol. 1. New York: Holt, Rinehart and

Winston, Inc., 1965. 1-79.

Yamamura, Kozo. "A Re-Examination of Entrepreneurship in Meiji Japan (1868-1912)."

The Economic History Review 1 (1968): 148-157. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Yamamura, Kozo. "The Role of the Samurai in the Development of Modern Banking in

Japan." The Journal of Economic History 27 (1967): 198-220. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Yanaga, Chitoshi. "Transition From Military to Bourgeois (Chonin) Society in Japan."

Oriens 8 (1955): 120-126. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

End the Cuban Embargo - Brian Safran

A series of recent developments in Cuba have called into question the sanctity of its communist regime and the validity of the continuance of the embargo the U.S. has imposed upon it. The impending death of Fidel Castro has the potential to affect a societal transformation in Cuba that challenges its long-standing stance against the United States. In addition, even under the Castro regime, signs of the onset of free-market economics have begun to infiltrate in Cuba amidst widespread poverty. Nevertheless, the United States government continues to enforce its archaic economic embargo on Cuba, effectively castrating the Cuban people from basic necessities and the means to their sustenance and wellbeing. The embargo has led to international condemnation of the United States; and the policy is considered by many to violate international law. No longer does Cuba represent a militaristic threat to the United States, yet the U.S. continues to impose sanctions on it as if the two nations were engaged in a seemingly never-ending war to the detriment of both nations. Accordingly, it is of the utmost importance that the United States government reexamines its policies vis-à-vis Cuba during this time of socio-political instability. In order to establish a mutually beneficial relationship, the U.S. should seek to put an end to the existing embargo and travel restrictions it enforces against Cuba. The upcoming regime transition and the associated weakness it will bring to the political environment highlight this moment as one of the few opportunities the United States will have to affect meaningful change in Cuba.

The United States’ longstanding embargo on Cuba was instituted in the context of a specific socio-political climate; one which no longer exists. Having lent its support to the Soviet Union, Cuba had been perceived by the United States to be a major potential geo-political and militaristic resource for the powerful Soviet empire in its efforts to dominate and undermine the United States. (Mesa-Lago, 1971, 87-88; Weinmann, 2004, 23-24) In addition, the U.S. government believed Cuban communism to be a prominent source of regional instability and thus, threatening to our political and economic standing and way of life. (Falcoff, 2003, 98) Acting on these precepts, the U.S. government promulgated an embargo on Cuba in 1962, effectively prohibiting businesses from engaging in trade in or with Cuba, and forbidding American travelers from visiting the island. (Griswold, 2005, 1; Falcoff, 2003, 132) The embargo was initially enacted to symbolize the fact that the United States refuses to support regimes that in turn do not support liberal democracy. However, in practice it has evolved into a symbol of the United States’ helplessness and inability to accomplish its desired goal of eliminating communism in Cuba. It should be noted that while many of the originally sought upon goals of implementing the embargo have been reached, such as the prevention of the formation of major military confrontations against the U.S., and a reduction in the ability of Cuban communism to infiltrate throughout Latin America, the embargo has failed to destroy the Cuban Communist regime, which has continued to prosper under its veil. (Griswold, 2005, 1) Thus, the policy is in need of a critical reexamination.

Domestically, the effects of the ongoing U.S. embargo have been disastrous. Millions of Cubans are without the food necessary to ensure survival, and many have little to no access to basic medicines. (Schechner, 1994, 8) In addition, the embargo prevents Cuban hospitals from being stocked with basic laboratory products and surgical equipment; effectively reducing the availability of emergency services for the Cuban people. (Herrera, 2003, 54) The primary reason why these goods fail to reach the Cuban people has been the continuance of the embargo, which prohibits the majority of goods from entering into the nation from the United States or through third parties. (Schechner, 1994, 8; Weinmann, 2004, 24) Among its losses have been reductions in export earnings, losses incurred based upon the fact that inflows of goods and services must circumvent the United States, inefficiencies in production and technology derived from the absence of amicable relations with the U.S., limitations on the usage of the U.S. dollar, and restrictions on remittance and foreign direct investment. (Herrera, 2003, 52) Some have estimated the damages of the embargo to the Cuban economy to be over seventy billion dollars in totality. (Herrera, 2003, 52) It cannot be doubted that the embargo has perpetuated unfavorable domestic conditions in Cuba, having left millions of people absent of basic human necessities.

The Cuban people have been reluctant to allow for economic change because communism has brought about social welfare and protection in the form of free education, equal access to healthcare, and socioeconomic equality; which before its implementation many had been without. (Schechner, 1998, 8) In essence, even though Cuba has made great strides in achieving relatively high indicators in health and education over the past half century as compared to pre-communist rule, the embargo has prevented the nation from realizing the full extent of its socio-economic capabilities. (Herrera, 2003, 54) While Cuban socialism has served to improve the lifestyle of the Cuban populace, the country as a whole has been adversely affected by its consequences. Some make the argument that the embargo should be maintained, because the economic intervention of the United States was itself the primary catalyst for the Cuban Revolution. However, Mr. Castro needed and enjoyed popular support while leading the country into the Cuban Revolution; support of which he would have been unlikely to attain if the populace were to have been aware of the long-term damage that they were inflicting upon themselves (Luxenburg, 1988, 4) Thus, the economic benefits that the Cuban people would accrue if the embargo were to be eliminated would likely serve to substantially reduce the risk of a resurgence in anti-U.S. sentiment or a provocation of a strengthening of Cuban communism.

Those that support the embargo often make the claim that as such a small Caribbean country, the economic advantage to be gained by the United States in lifting its embargo on Cuba would be negligible. This assertion is simply without merit, and the evidence proves it. A committee of former Department of Transportation economists recently noted that eradicating the embargo would add 1.6 billion dollars in revenue to the U.S. economy and establish approximately twenty thousand additional jobs in the U.S. (Weinmann, 2004, 29) Analysts have asserted that had the embargo been lifted, the Cuban people would have been able to use revenues derived from tourism to purchase significant amounts of machinery and agricultural products from the United States. (Griswold, 2005, 2) In fact, the American Farm Bureau has stated that the embargo has caused U.S. businesses to lose out on a major potential export market in agriculture which could have led American farmers to profits upwards of one billion dollars, and to an additional quarter million dollars per year in the exportation of farming machinery and accessories. (Griswold, 2005, 2) The passage of the 1992 Cuban Democracy Act, which banned all trade in foodstuffs to Cuba through U.S. subsidiaries, effectively deepening the Cuban depression, further served to damage U.S. agricultural business interests abroad. (Weinmann, 2004, 24; 29) In addition, the 1996 Helms-Burton Act, which allowed U.S. citizens, including those Cuban-Americans who had not been citizens at the time, to commence lawsuits against companies that had engaged in indirect business transactions with the Castro regime has had a crippling affect on a multitude of U.S. businesses. (Vanden, 2006, 360-61) In addition, the maintenance of the embargo requires a significant utilization of national security resources that can clearly be put to better use in protecting America from substantive terrorism threats rather than by using them to enforce an inconsequential ban on Cuban travel. (Weinmann, 2004, 30) Thus, from an economic standpoint, the United States does indeed have the potential to benefit from a liberalization of trade with Cuba.

The continuance of the embargo has incited widespread international condemnation of the Untied States. The United Nations General Assembly has consistently denounced the imposition of the embargo almost unanimously on the basis of its illegitimacy and violation of internationally accepted humanitarian standards. (Herrera, 2003, 50) The United States has also recently had to relinquish its seats on the human rights commissions both in the United Nations and in the Organization of American States, which many analysts believe to be a form of retribution aimed at the United States in response to its continuation of the Cuban embargo in the midst of its unfathomable and deplorable effects on the Cuban populace. (Weinmann, 2004, 30) Many leaders in the international community have expressed their distain for the U.S. embargo through international organizations based on the fact that the United States attempts to impose the sanctions it places on Cuba via “extraterritoriality,” or against the international community, thus clearly violating internationally-accepted standards of national sovereignty and international law (Herrera, 2003, 51). Global public opinion perceives the United States as engaging in strong economic and political tactics such as the Cuban embargo in an effort to further its own world domination. This sentiment serves to divert attention from the evils of Cuban communism, and instead focus international pressure on the United States; serving to render the existing embargo less effective. Some say that the United States would stand to lose its credibility if it were to put an end to the embargo without its having accomplished its goals in totality. However, the anti-U.S. sentiment on a global scale derived from its continuation is of much greater detriment to U.S. interests than the short-term loss in credibility it may experience by reorganizing its policy. Although in a prior historical era the Cuban embargo and its intended goals might have been seen by the international community as justifiable, the U.S. intervention in Cuba has now come to symbolize the domineering and intolerant methodology that it fosters in many of its international engagements.

In addition, U.S. public opinion appears to be shifting in favor of eliminating the embargo. By virtue of its geography, influence in national elections, near even split in terms of ideological composition, and preponderance of Cuban-Americans living within its borders, U.S.-Cuban policy is often procured by considering the views of the now anti-embargo Floridian constituency (Schechner, 7, 1994). Traditionally, Cuban-Americans living in Florida have tended to support the embargo, seeing it as a way to force democracy upon Cuba so as to make the Cuban government more responsive to the demands of the Cuban people, and by extension, their own interests abroad. (Schechner, 1994, 7) In recent years however, many have begun to view the embargo as a failure of foreign policy. In addition, the U.S. government has placed numerous restrictions upon them, prohibiting them from visiting their families in Cuba more than once every three years, and decreasing the amount of remittance that they are entitled to provide for their Cuban relatives. (Lovato, 2004, 23) Based in part upon changing public opinion, the U.S. Congress has enacted numerous measures to decrease the extent of the Cuban embargo, including the Trade Sanctions Reform and Export Enhancement Act of 2000, which allowed for limited sales of U.S. agricultural products and medical supplies. (Griswold, 2005, 2) In 2003, both the U.S. House of Representatives and the U.S. Senate passed measures designed to prevent the U.S. treasury from providing the funding necessary to enforce the ban on Cuban travel. (Weinmann, 2004, 28) Even within the Bush administration, many senior officials remain highly divided on how to best confront Cuban politics. (Weinmann, 2004, 25) Thus, many U.S. citizens and politicians believe the Cuban embargo to be unfounded and unnecessary in the contemporary world.

One may make the claim that the humanitarian concerns are a reason to maintain the embargo, citing the furtherance of and increase in human rights violations in China after the U.S. agreed to strengthen its economic ties in the 1990s. However, the applicability of this to Cuba is limited by the fact that United States shares a very different relationship with China than it does with Cuba. (Griswold, 2005, 3) In addition, the U.S. has learned from its past mistakes. Realizing that no foreign policy decision is finite, the United States should seek to gradually relax the embargo contingent upon the demonstration of measurable improvement in human rights and by continuing to oversee Cuban affairs to ensure that humanitarian concerns are being addressed and resolved. Many Cuban’s have begun to realize the need for their country to undergo economic change. In fact, even the Cuban government has recently undertaken initiatives that can be perceived as the beginnings of a transformation to a market economy, its having “cut subsidies, decentralized its economic structure, established joint ventures with hundreds of foreign private companies in a clear form of privatization, and has introduced competition between its own enterprises and companies” (Weinmann, 2004, 31-2). The desire for economic prosperity among the Cuban people is likely to supersede and undermine the ability of the Communism regime to strengthen its suppressive tactics. Fidel Castro, the prominent figurehead and individual largely responsible for the maintenance of its communist regime, is believed to be near death. (Fawthrop, 2006, 1) Many believe the end of the Castro regime will in of itself affect a hastening towards free market reform and a diminution of communist rule and hence human rights violations. The United States should consider using its lifting of the embargo as a bargaining chip for which to promulgate a diminution of human rights violations in Cuba. The United States government must come to the realization that in the midst of the political and economic instability propagated by widespread shortages in basic necessities; gradual, yet ubiquitous advances on behalf of the Cuban government towards establishing a market economy; and the foreseeable socio-political volatility likely to arise after the death of Mr. Castro, the time for change is now.

In conclusion, the embargo that the United States has placed upon Cuba has served to accomplish many of its intended goals. The policy was arguably of benefit to the United States insofar as it curbed the spread of communism and diminished the potential for military action to ensue against it. Cuban society, having undergone multiple transformations, has weathered the effects of the embargo. The Cuban people have survived years devoid of economic opportunities, and as a result have failed to achieve their maximum potential. A relaxation of the communist stance in Cuba has been fostered by a realization of the benefits that can be conferred by instituting free trade. As such, the sustenance of the communist regime stands in jeopardy, and the threat that it poses to global security has been greatly reduced. In addition, the policy has procured global anti-U.S. sentiment, threatening to lessen the United States’ standing in the international community as a result. The United States must take advantage of the foreseeable political instability set to arise in Cuba after the imminent death of Fidel Castro. Only when the United States puts an end to its Cuban embargo will it be able to affect meaningful change and greater wellbeing for both Cuba and itself.

Works Cited:

Falcoff, Mark. Cuba: the Morning After. 1st ed. Vol. 1. Washington, DC: The American Enterprise Institute for Public Policy Research, 2003. 1-241.

Fawthrop, Tom. "As Castro Fades, a Crop of New Leaders." The Christian Science Monitor 27 Dec. 2007. 13 Apr. 2007 <http://www.csmonitor.com/2006/1227/p06s01-woam.htm>.

Griswold, Daniel. "Four Decades of Failure: the U.S. Embargo Against Cuba." Cato's Center for Trade Policy Studies. 12 Oct. 2005. Rice University. 16 Apr. 2007 <http://www.freetrade.org/node/433/print>.

Herrera, Remy. "Why Lift the Embargo?" Document 1 (2003): 50-54. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Lovato, Roberto. "Rocking the Cuban Vote." The Nation 1 (2004): 23-26. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Luxenberg, Alan H. "Did Eisenhower Push Castro Into the Arms of the Soviets?" Journal of Interamerican Studies and World Affairs 1 (1988): 37-71. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Mesa-Lago, Carmela, ed. Revolutionary Change in Cuba. 1st ed. Vol. 1. London: Henry M. Snyder & Co., Inc., 1971. 3-525.

Schechner, Richard. "Cuba: Lift the American Embargo Now." TDR (1988-) 38 (1994): 7-9. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Vanden, Henry E., and Gary Prevost. Politics of Latin America: the Power Game. 2nd ed. Vol. 1. New York: Oxford UP, Inc., 2006. 238-240.

Weinmann, Lissa. "Washington's Irrational Cuba Policy." World Policy Journal 1 (2004): 22-31. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

The Influence of WTO Membership on the Rule of Law in China - Brian Safran

           The World Trade Organization (WTO) is an international body tasked with administering the rules of trade between nations, providing a forum for trade negotiations, and handling trade disputes and monitoring national trade policies. (Kobayashi 2007) Previously known as the General Agreement on Tariffs and Trade (GATT) and limited in its scope to trade in goods, a fully-functioning, multifaceted World Trade Organization subsumed the GATT at the conclusion of the Uruguay Round of trade negotiations in 1995. (Jackson 1997) The WTO introduced agreements on trade in services and intellectual property, and provided for the creation of a fully-functioning organization, and a more procedurally-sound, binding system of dispute resolution. (Jackson 1997) In 2001, China was permitted to join the WTO after a fifteen-year-long accession process that required deep reforms to China’s political, economic, and legal systems in exchange for it to be permitted to avail itself of the many benefits of membership in the WTO system. (Kobayashi 2007) Yet, almost ten years after the fact, scholars continue to question the extent to which these reforms have facilitated the creation of a more transparent, rule-based system of Chinese law. To what extent has membership in the WTO contributed to the establishment of the rule of law in China, and what is the status of the rule of law in China today?

            When it comes to trade law and policy, membership in the WTO was predicated on China agreeing to undertake a series of legal reforms and consenting to the application of the entire body of WTO substantive principles and regulations. Among these were requirements that China substantially reduce its imposition of tariffs, or taxes imposed upon imports; and that China provide for fair trade by putting an end to its practice of subsidizing its domestic industries or permitting the “dumping” of its products on other markets through the use of predatory pricing (Hu 2001: 101) China also consented to the non-discrimination principles embodied in the GATT agreement, including “national treatment,” which mandates that “treatment for foreign products be no worse than that for like domestic products,” and the “most-favored-nation” obligation, which requires “each contracting party to grant to every other contracting party the most favorable treatment that it grants to any other country with respect to imports and exports of products” (Hu 2001: 101; Jackson 1997: 157). With respect to its commercial relations, China’s Accession Agreement ultimately involved over six hundred commitments; at least ten percent of which were determined to require China to “enact, repeal, or modify” trade-related laws, policies and regulations (Westin 2002: 3).

Yet, the reforms that China was required to undertake went far beyond substantive economic policy. Among these were obligations to provide for “transparency,” “judicial review,” and the “uniform enforcement of laws” (Westin 2002: 2). With respect to transparency, China agreed to publish its trade regulations and “provide a reasonable period of public comment before implementing them” (Kobayashi 2007: 5 Westin 2002: 4). Regarding judicial review, China agreed to mandate that the “central government…address areas where WTO [law] is violated and provide a meaningful remedy” (Kobayashi 2007: 5). China also agreed to “establish or designate tribunals to promptly review trade-related actions of administrative agencies” (Westin 2002: 4). As to uniform enforcement, China agreed to apply trade-related laws and regulations “uniformly throughout China” and provide for a complaint procedure whereby “individuals and enterprises can bring complaints to China’s national authorities about cases of nonuniform application of the trade regime” (Westin 2002: 4). Finally, and perhaps most significantly, membership in the WTO required China to consent to becoming subject to the jurisdiction of the Dispute Settlement Body, an international body capable of adjudicating disputes over WTO rules and enforcing decisions against China’s own will. (Hu 2001)

It is of course, one thing to agree to a series of obligations and quite another to actually put those agreements into practice. To what extent has China followed through with its WTO commitments? For one, China began to make positive rule of law changes to its domestic legal system in advance of its securing membership to the WTO, as demonstrated by the 1999 amendment to its Constitution, which recognized for the first time that “[t]he People’s Republic of China shall be governed according to the law and shall be built into a socialist country based upon the rule of law” (Chow 2003: 78). By the end of 2002, China had already revised fourteen of its laws and thirty-seven administrative regulations, annulled twelve administrative regulations, suspended thirty-four relevant documents, and changed more than one-thousand departmental rules to comport with WTO obligations. (Zou 2006: 89)  By 2003, China had lowered its tariff rates, eliminated non-tariff measures, and relaxed limitations on foreign investment. (China Daily 2003) As a result of China’s having undertaken domestic reforms permitting increased market access, its total trade vis-à-vis the rest of the world more than doubled from $509.8 billion in 2001, to $1.2 trillion in 2004. (Winn 2005)

Furthermore, the key legal institutions in China have become increasingly accessible and transparent. (Horsley 2006) Draft legislation is now made available on the Internet for public comment, and public hearings are increasingly being held on proposed legislation believed to be of public concern. (Horsley 2006)  Additionally, as of 2006, Chinese citizens were permitted to “audit” all legislative proceedings; rendering them open to the public (Horsley 2006: 96). In June 2004, the Standing Committee of the National People’s Congress established a special office under its Legislative Affairs Commission, which was made responsible for reviewing all central and local government regulations and legal interpretations in an effort to harmonize legal process throughout the country. (Wang 2007) In January 2007, the government was set to approve China’s first-ever national, administrative “freedom of information” ordinance, a measure believed to be a precondition for the creation of an information access law (Horsley 2006: 101).

Yet in the midst of all of these reforms, scholars have noted that China still has a long way to go before it claim to have a society built on the rule of law. For one, some have said that the creation of a Chinese system of rule of law is impossible in a system marked by the subordination of law to Communist Party policy and the lack of independence of the courts. (Westin 2002: 2) In fact, it is often argued that the key function of the law to the Chinese government is “to order and regulate the exercise of government power” (Horsley 2006: 93). As of May 2009, approximately one-third of registered lawyers were party members, and almost all law firms had party committees, which allocated attorney remuneration based on loyalty to the party. (McGregor 2010) In a 2009 pronouncement by the Party, it was said that judges must remain loyal “to the Party, the state, the masses and finally, the law,” in that order (McGregor 2010: 24). Furthermore, despite the establishment of a procedure in 2005 that made it possible for individuals to file petitions with the central government to challenge the legality of local regulations, attempting to do so is said to be futile, as “the Party sits outside, and above the law,” and that “[n]o legal obstacle is so great that the party cannot brush it aside” (Horsley: 2006; McGregor 2010: 22, 25).

Another significant problem said to be plaguing the court system is the incompetence of Chinese judges. (Horsley 2006) In some respects, there have been signs of improvement. For instance, unlike in the past, where “judges were typically drawn from the ranks of the retired military” and “[a]ppointments were based more on political correctness than on relevant experience or legal knowledge,” today’s judges are “required to hold university degrees” and “pass a national unified bar exam,” as well as “participate in ongoing legal education programs” (Horsley 2006: 102). Yet, judges remain highly “susceptible to pressure” from the Communist Party, as it continues to control judicial salaries and court budgets; as well as judicial appointments and the personnel arrangements of the Courts (Inch 2010; Hung 2002: 9).

Accordingly, the aforementioned analysis suggests that there continues to be significant limitations to the rule of law in China. Although membership in the WTO marked a turning point in China’s socio-legal culture in that it ushered in a series of reforms designed to improve transparency and uniformity in the application of law, there continues to be significant barriers to the effective implementation of the rule of law; among which are the continuing retention of significant control over the legal system by the Communist Party, both with respect to litigants and attorneys, as well as over judges and their staffs. One significant limitation to empirical analysis in determining the true status of the rule of law in China is that one cannot simply come to conclusions based on documented materials since sensitive information is kept secret by the communist party, and as such, goes unreported. As a result, an analyst must look to anecdotal evidence, on a case-by-case basis, to determine the extent to which reforms are being implemented. Accordingly, based on the forgoing evidence, one can conclude that while China appears to have made great strides in consolidating the rule of law when it comes to trade-related matters in the WTO setting, it appears that these reforms have not yet firmly established the right of an individual to challenge the interests of the ruling Communist Party.

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