Author name: Branden Loizides

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Constitutionalizing Tobacco

Abstract:

The Treaty Establishing the European Community announces the principle that the powers of the European Community (“Community”) are limited to those specifically conferred on it: “The Community shall act within the limits of powers conferred upon it by this Treaty and of the objectives assigned to it therein.” However, experience has shown that, in practice, the allocation of power between the Community decisionmaker and Member States is neither clear nor immutable. For example, there is a traditional perception that it is the responsibility of the Community decisionmaker to implement internal market regulations in order to promote the “free movement of goods” and the “free movement of persons, services, and capital,” while individual Member States retain autonomy in regulating public health. The European Constitution has also formally embraced this longstanding private (market regulation) versus public (health regulation) dichotomy, using it to divide competences formally. However, the public/private distinction is hazy, as reflected by the history of the Community decisionmaker’s regulation of tobacco. Regulation of the manufacture and advertisement of tobacco products necessarily implicates both free market and public health concerns, and a given regulation may be characterized as a market measure in some circumstances and as a public health measure in others.

In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (“Public Health Article”) is a public health provision that expressly refers to the regulation of tobacco:

5. European laws or framework laws may also establish incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, as well as measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.

To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, however, this “constitutionalization” of tobacco does not guarantee Member States’ autonomy. As long as the Community decisionmaker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States’ national health standards.

Part I of this Recent Development charts the progress of tobacco regulation through Community-issued directives, harmonization, and the early jurisprudence of the European Court of Justice (“ECJ”). Part II describes the struggle over the allocation of competences and the illusory public/private distinction, reflected in Federal Republic of Germany v. Parliament and Council (“Tobacco Advertising Judgment”), The Queen v. Secretary of State for Health ex parte British American Tobacco (Investments) Ltd. (“Tobacco Products Judgment”), and in cases now pending before the ECJ. Part III discusses the constitutionalization of tobacco and the ambiguity it engenders with respect to the Community’s federal structure. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include “monitoring, early warning of and combating serious cross-border threats to health.” On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. The Community thus bears the burden of proving that its proposed legislation is actually a market correction measure (rather than a disguised health measure) and does not violate the Subsidiarity Principle. Because of this ambiguity, the provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the constitutionalization of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes.

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Liberal Internationalism, Feminism, and the Suppression of Critique

Article:

I have been asked to reflect on the significance of the range of new visions of global public order now circulating in the United States, and to consider, in particular, what has happened to the liberal consensus of twenty years ago. There are, of course, many directions that a response might take. One could question whether there really was a liberal consensus twenty years ago and, if there was a seeming consensus, what underlying concerns and tensions it attempted to mediate. One could focus on political science, economics, history, critical theory, postcolonial theory, or feminist theory and discuss how one or all of those has played a role in various challenges to liberal legal internationalism inside the United States. One could attempt to understand liberal legal internationalism in relationship to U.S. foreign relations and question the extent to which it emerged and coalesced around a particular view of the United States’ role in the global order. One might consider what, if any, causal relationship exists between the dissolution of the apparent consensus and the rise of what many consider to be a new American exceptionalism. And one might even consider whether liberal legal internationalism has unwittingly participated in constructing a new American exceptionalism.

I will not explore all of these questions here. Yet I will attempt to touch upon many of them through the consideration of a couple of recent examples of the Bush administration’s deployment of international legal rhetoric and process to protect women’s rights, and by examining the various critiques they have and have not engendered. In particular, I will look at the Bush administration’s intervention in Afghanistan and its support of international efforts to end sex trafficking.

I have chosen these case studies to understand contemporary views of international law within the United Sates for a variety of reasons. Since September 11, it seems that almost every international legal scholar in the United States has felt the need to write something about the war on terrorism, often specifically challenging or defending U.S. responses to September 11. As a result, it is more difficult today than it has been for some time to separate visions of public order circulating within the United States from visions of public order about the United States. Moreover, with the rise of a real right within the discipline of international law in the United States over the past decade and its manifestation in at least some of the Bush administration’s interpretations of international law, proponents and even designers of parts of the war against Iraq and the war on terrorism have effectively participated in and even altered the terms of much of the debate within the international legal academy. While liberal internationalists often contend that the Bush administration opposes international law, I would suggest instead that the administration is in many instances pursuing a vision of international law that does not accord with the liberal internationalist version that has dominated the past few decades. That is, the administration is often promoting a classical view of international law that is based on sovereign consent, at least on the sovereign consent of the United States.

The case studies suggest, however, that the Bush administration policies also contain a liberal internationalist streak. With regard to Afghanistan, the administration has appealed to liberal internationalist and feminist rhetoric about respecting human rights. In the context of trafficking, it has appealed to a liberal internationalist process that favors international cooperation. Thus, by offering examples where the United States claims to be protecting international human rights and even does so through a rhetorical, and in one instance procedural, commitment to international cooperation, these case studies question the characterization of U.S. foreign policy as an example of American exceptionalism. In addition, they show how the assertion of acting in the name of international human rights, particularly women’s rights, serves to silence much of the opposition that the substantive positions themselves might otherwise invoke.

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How Corporations Govern

Abstract:

It would seem to be a relatively uncontroversial claim among scholars, activists,and policymakers that corporations are significant contributors to the shape and content of national and transnational regulation and that their contributions have significant effects on social welfare. Yet, despite this general consensus, scholars have focused little attention on explicating the precise mechanisms through which corporations contribute to transnational regulation and governance or the extent to which the social welfare effects of regulation and policy may be attributable to corporate activity.

In this Article, I suggest the broad contours of a methodology for beginning to think about the question, “How do corporations govern in the transnational arena?” In so doing, I explore how scholarly attention to the role of corporations in transnational regulation and governance can contribute to the development of a richer understanding of the functioning and effects of the existing transnational governance regime. At the same time, through an analysis of some examples drawn from twelve years of practice as a transnational business lawyer, I suggest how an understanding of transnational governance, enriched through a focus on corporate activity and decisionmaking, can expose new sites for political contestation and new strategies for intervention by regulators, policymakers, and activists seeking to harness and shape corporate power for the public good.

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Gambling with the Psyche

Abstract:

Legal action against those accused of committing brutal violations of human rights has flourished in the last decade. Saddam Hussein awaits trial in Iraq. Augusto Pinochet, Chile’s former military leader, has been pursued by European and Chilean prosecuting judges since Spain’s Balthasar Garzón sought his extradition for murder in October 1998. Meanwhile, at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), Slobodan Milosevic is preparing his defense against charges of genocide and war crimes. Even U.S. Secretary of Defense Donald Rumsfeld, with other senior officials, has been accused in a privately filed criminal complaint in Germany of being responsible for the torture of prisoners held in Iraq. Such legal actions were almost unimaginable a decade ago.

These are only the most prominent cases. A dozen senior Baathist officials face prosecution by Iraq’s new government. In Argentina, a 2001 court ruling abrogated laws giving immunity to military officers who oversaw andparticipated in the kidnapping and secret execution (“disappearance”) of as many as 30,000 people between 1976 and 1983.  Two years later, Argentina’s parliament annulled the laws, mooting a pending appeal and reversing nearly two decades of hostility by the country’s elected leaders to criminal prosecution of perpetrators of atrocities during the dictatorship. In 2001, a Belgian jury sentenced four Rwandans to prison for participating in the 1994 genocide of Tutsis and moderate Hutus. Victims of Chadian dictator-turned expatriate Hissène Habré brought a criminal complaint against him in Senegal in January 1999, alleging torture, barbarous acts, and crimes against humanity. While the case was dismissed, it opened up new possibilities for calling Habré to legal account in Chad, as the Pinochet case had in Chile.

In addition to national courts, international criminal tribunals have recently become important forums for human rights cases. The prosecutor of the new International Criminal Court (“ICC”), veteran Argentine human rights lawyer Luis Moreno Ocampo, is investigating atrocities in Uganda, the Democratic Republic of Congo, and Sudan. The ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) have imprisoned dozens of perpetrators of unspeakable horrors after trials and guilty pleas11 and have delivered groundbreaking judgments advancing international law. “Hybrid” courts with varying degrees of international involvement and independence from national court systems are prosecuting perpetrators of human rights violations in East Timor, Kosovo, and Sierra Leone.

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Building an Investor-Friendly Shareholder Derivative Lawsuit System in China

Abstract:

Despite claims that China’s capital markets resemble a “casino,” China has in fact made extraordinary strides in its quest to develop stable and mature capital markets. Although the Shanghai and Shenzhen stock exchanges only opened in the early 1990s, by the end of 2004 they boasted a combined list of 1377 corporations with a total market capitalization of RMB 3.7055 trillion ($447.5 billion). Currently, China’s capital markets rank as the twelfth largest in the world.

What is most striking about Chinese capital markets is the dominance of individual investors. There are now more than seventy-two million securities trading accounts in China. At the close of 2003, of the accounts trading shares on the Shenzhen Stock Exchange, only 172,700 out of 33.21 million were held by institutional investors. Individual investors also generated more than 70% of the total trade turnover in 2003. Most of these individual investors are middle-aged individuals or senior citizens, with an average age of 43.01 years. The majority of them (86%) are low- or middle-income, and 55.63% have an annual income below RMB 20,000 ($2,418). In addition, many Chinese individual investors may lack basic financial or investment knowledge, as 43.81% of them have no higher education.

Faced with booming capital markets packed with unsophisticated individual investors, China’s securities regulators have faced tough questions about the adequacy of shareholder protections. The regulatory body adopted policies based on La Porta’s scholarship on the positive link between capital market development and public shareholder protection. As stated by Meilun Shi, former vice chairman of the China Securities Regulatory Commission (“CSRC”), “investors’ confidence and participation are critical to the healthy and stable development of China’s capital markets. They have a direct impact on the successful implementation of reform and the Open-Door Policy, as well as on social solidarity.” Since 2000, therefore, investor protection has consistently been “the top priority” of the CSRC. In January 2004, China’s State Council, in a policy declaration regarded as an important milestone in the history of China’s capital markets, reiterated that “protecting the legitimate interests of investors, particularly those interests of public investors” shall be one of the ongoing guiding principles in the reform and development of capital markets. Most recently, this principle was incorporated for the first time into the State Council’s Annual Government Work Report, which signifies the Chinese government’s determination to further protect investors.

Book Reviews, Print Archives

Book Review: The Dark Sides of Virtue: Reassessing International Humanitarianism

Review of The Dark Sides of Virtue: Reassessing International Humanitarianism. David Kennedy. Princeton University Press: Princeton, N.J., 2004. Pp. 400. $29.95 (cloth).

In The Dark Sides of Virtue: Reassessing International Humanitarianism, Professor David Kennedy asks how the many devoted, resourceful, and well-intentioned individuals who make up the international humanitarian community can so often fail in their most basic goals. According to Kennedy, humanitarianism has many unintended costs stemming from the failure of humanitarians to acknowledge their increasing influence on international policymaking. Government officials and political actors recognize that they ultimately bear responsibility for the consequences of their policies, and, therefore, they pragmatically consider the risks and potential costs of their actions as well as the benefits. Humanitarians have traditionally seen themselves as outsiders with respect to global “rulership” and thus do not feel the same accountability for their actions. In addition, humanitarians often mistakenly assume that because their actions are well-intentioned, they will have only benefits. Kennedy argues that if humanitarians identified with their power in global governance, they would engage in pragmatic cost-benefit analysis more often and avoid many of the dark sides of humanitarianism. Although Kennedy offers few concrete solutions, his broad exploration of the problem through his own experiences is thought provoking and compelling. Kennedy’s goal is to provoke the human rights community to engage in the type of self-critical, pragmatic thinking that might reduce, if not eliminate, the costs of humanitarian action. The result is a challenging, engaging, and complicated book that may well have the desired effect.

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