Darfur, Divestment, and Dialogue
Perry S. Bechky
Seattle University School of Law
January 11, 2009
University of Pennsylvania Journal of International Law, 2009
The horrors of Darfur have prompted twenty-seven states to divest from Sudan, the most notable divestment movement since the end of apartheid. Divestment is capable of serving a number of inter-related functions in the democratic process of formulating U.S. foreign policy: attention-getting, norm-changing, door-opening, and even assisting the President in pursuing his foreign policy objectives.
Divestment thus places the states in public dialogue about policy towards Sudan. This creates tension with the "one voice" view of foreign relations, which is embedded in several constitutional doctrines.
Congress cleared the doctrinal clouds away from the Darfur divestment movement by enacting the Sudan Accountability and Divestment Act. SADA creates a space - within important bounds - where states can speak on foreign policy. SADA internationalizes Brandeis' famous description of states as "laboratories of democracy," enabling each state to decide whether and how to experiment with divestment within parameters that, in Congress' judgment, avoid "risk to the rest of the country." SADA's approach to bounding preserves for Congress the flexibility to constrain divestment in the national interest, while also encouraging both Congress and the states to show due restraint and respect for each other's important institutional interests.
SADA thus exemplifies the dialogic view of federalism, in which our constitutional structure is viewed as an ongoing conversation. On this view, the federal government has the dominant voice in international relations - but not the only voice. It gives the federal government the option to tolerate, encourage, and even listen to and benefit from other speakers. Opening the formulation of foreign policy to a multiplicity of voices no doubt causes certain difficulties for the President. Still, it is democratic - and, by reconceiving the President not as a soloist but as a conductor, one may recognize the opportunities that state action generates even for the President.
Too-frequent resort to divestment risks both underdiversification of investment portfolios and dilution of divestment's power to amplify speech. The article concludes with an argument why Darfur makes a particularly compelling demand for more forceful than normal state speech.
Number of Pages in PDF File: 82
Keywords: Darfur, Sudan, divestment, economic sanctions, SADA, dialogue, federalism, dialogic federalism, genocideAccepted Paper Series
Date posted: January 16, 2009 ; Last revised: November 10, 2009
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