Dec 3, 2015 | Content, Student Features
By Jisan Kim
International trade creates opportunities for nations to cooperate for a higher standard of living. Trade agreements facilitate cross-border trade by lowering tariffs and setting rules on a broad range of issues. But trade agreements also serve as instruments for superpower nations to expand their economic and geopolitical influence. And as inevitable participants of this power struggle, middle powers need to consider not only economic concerns but also diplomatic consequences of joining these trade agreements. This article discusses early trade liberalization, various trade agreements, the U.S.-China conflict, and South Korea as an example of a nation caught in the middle of that conflict.
I. From Multilateral to Bilateral/Plurilateral Agreements
In the early years of trade liberalization, the United States and Europe led the formation of the rules of international trade. Multilateral trade agreements under the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) maintained global trade order. However, WTO negotiations are in an impasse since the Doha Development Round that began in 2001.
As multilateral agreements under the GATT/WTO regime became increasingly difficult to reach, nations started to turn towards bilateral and plurilateral trade agreements. With fewer negotiating parties, bilateral and plurilateral trade agreements with far-reaching clauses could be more readily concluded. These agreements include detailed provisions that not only affect market access but also could potentially shape global rules on a number of non-trade issues, such as environment, labor practices, and state-owned enterprises (SOEs). Given the enhanced geopolitical significance of these trade agreements, foreign and security policies are playing greater roles in states’ decision to pursue trade relations. As a result, trade relationships are becoming more complicated and difficult to balance.
While bilateral and plurilateral trade agreements promote trade liberalization, they could also divide the world into “competing, discriminatory regional trading blocs.” The Regional Comprehensive Economic Partnership (RCEP) and Trans-Pacific Partnership (TPP) exemplify the competition among the major powers to gain more influence in the global economy.
II. The Power Struggle
On October 5, 12 countries, including the United States, Japan, and Australia, reached an agreement on the TPP, which will account for about 40 percent of the global GDP. The TPP will reduce over 18,000 tariffs and set common standards on issues such as intellectual property, environment, and dispute resolution. Its “open architecture” allows non-party nations to join in the future and gives the TPP a potential of becoming a “de facto template for a new system of rules.”
The United States emphasizes the geopolitical importance of securing a significant bloc of the global trade. President Obama noted, “The TPP means that America will write the rules of the road . . . [and] if America doesn’t write those rules – then countries like China will.” The U.S. Secretary of Defense also stated that the TPP has a geopolitical significance similar to that of an “aircraft carrier” and will “promote a global order that reflects both our interests and our values.”
The United States hopes that China will be forced into accepting the trade rules set by the TPP. The TPP’s strict regulations on SOEs, environment, labor, and intellectual property would require China to significantly reform its economic and legal structure. Instead of accepting the rules formed by the TPP, China is aggressively pushing for its own economic order through the Asian Infrastructure Investment Bank (AIIB) and the RCEP. The AIIB is considered by the Obama administration as China’s effort to counter the U.S.-oriented World Bank, while the RCEP is a China-led regional agreement that embodies “China’s version of global trade.” If concluded successfully, RCEP would be the world’s largest trading bloc, with 16 member nations including Japan, India, South Korea, and the ASEAN nations.
With the TPP, the Unites States plans to contain China and secure a strong U.S. presence in the Asian Pacific. However, the TPP failed to include a few of the most important players in Asia: India, South Korea, and, of course, China. Without the participation of these major Asia Pacific nations, it will be difficult for the United States to gain a “lasting position of supremacy in China’s backyard.”
III. Caught in the Middle: South Korea
Among the nations that did not participate in the founding membership of the TPP, South Korea presents an interesting case. In 2014, South Korea was the sixth largest exporter in the world, and recent statistics show that South Korean products account for considerable global market shares: 37 percent in LCD televisions, 33 percent in cellphones, and 9 percent in automobiles.
As an active middle power, South Korea wishes to maintain its longstanding U.S.-Korea alliance and build a China-Korea relationship at the same time. But this balance is difficult to achieve due to the intensifying rivalry between the United States and China. Both the United States and China want South Korea on their sides.
South Korea signed on to the RCEP but is hesitating over joining the TPP. In addition to affecting foreign relations for South Korea, the TPP may benefit some domestic industries but hurt others. This tricky situation puts South Korea in a dilemma.
A. U.S. Alliance
The Korean peninsula has long been central to the conflict between the United States and China. During the Korean War, the United States defended South Korea while China supported North Korea. South Korea still has a strong military alliance with the United States and is considered as “one of America’s closest allies and greatest friends.”
The United States seeks to maintain influence in the Asia Pacific region through considerable military deployments to Asia Pacific countries including Japan and South Korea. Neighboring North Korea and China, South Korea has a great geopolitical importance in U.S. foreign and security policy. As a signal of such significance, almost 30,000 U.S. troops are stationed in South Korea. But the United States’ involvement does not end with the deployment of its troops. Ever since the Korean War, the United States has had wartime operational control of the South Korean military. If a war breaks out, the United States, not South Korea, will have control of the South Korean troops. Although the wartime operation control was to be returned to South Korea in 2012, it is still yet to be transferred.
With such extensive and somewhat paternalistic U.S. involvement, it will be difficult for South Korea to keep ignoring the pressure from the United States to join the TPP. As Nobel Prize winning economist Thomas Schelling mentioned, “Trade is what most of international relations are about. For that reason trade policy is national security policy.”
Future military involvement by the United States is a subject of a heated debate in South Korea, the outcome of which may affect Korea’s trade and foreign policy. Liberals argue for less reliance on the United States, while conservatives oppose such change. If South Korea decides to remain dependent on U.S. military’s support, joining the TPP will help strengthen the U.S.-Korea alliance. If South Korea chooses to rely less on the U.S. military, RCEP could be more valuable than the TPP in terms of regional security. Absent U.S. troops, South Korea may not be able to maintain stability within the peninsula without the help of China, which has the power to keep North Korea in check. A close economic relationship with China through the RCEP and China-Korea Free Trade Agreement (FTA) may help secure that support from China.
B. China Relations
Because China is South Korea’s largest trading partner as well as Asia’s most powerful nation, Seoul has much to lose if it distances itself from Beijing. Especially with China leading the RCEP and AIIB, South Korea may face economic and geopolitical disadvantages if it does not actively participate. Accordingly, South Korea was recently busy pursuing a closer relationship with China through the China-Korea FTA, AIIB, and the RCEP. Commentators noted that South Korea might have refrained from joining the TPP in furtherance of this pursuit. In the past, China-Korea relations used to be described as “cold in politics, hot in economics,” but it is now being labeled as “hot in politics, hot in economics.”
But despite positive developments with China, it is unclear whether South Korea will be able to strike the right balance between the United States and China. The United States remains a close ally of South Korea, and China is disdainful of that relationship. China has viewed the U.S.-Korea alliance as “a remnant of the Cold War system” and “a regional security threat.” Hoping to relieve this tension, South Korea recently proposed the Northeast Asia Peace and Cooperative Initiative (NAPCI).
C. Additional Considerations
Because South Korea already has FTAs with 10 of the 12 members of the TPP, Korean policymakers had thought that the TPP would be redundant and provide no significant geopolitical benefits. In light of the recently revealed full text of the TPP, some commentators argue that South Korea should join while others are hesitant.
The TPP will result in lower trade barriers in several major industries compared to the current FTAs between South Korea and the TPP members. Especially with Japan as a TPP member, South Korea’s electronics and automobile industry may lose competitiveness if South Korea does not join. But a lower trade barrier in the agriculture industry could be detrimental for South Korea. By not participating in the drafting of the TPP, South Korea lost the opportunity to negotiate favorable terms into the agreement.
Private interests will likely influence South Korea’s decision to join the TPP. The TPP is predicted to have disparate consequences for different industries in South Korea. On the one hand, the agriculture and fishery industry as well as state-owned companies will face disadvantages if South Korea joins. On the other hand, the electronics sector will benefit from the TPP because the agreement significantly lowers tariffs on electronics.
South Korea must carefully assess the economic and geopolitical consequences of joining trade partnerships. In attempting to accommodate the wishes of both the United States and China, South Korea may end up weakening relations with both countries. It is a difficult situation. And in the midst of the U.S.-China conflict, South Korea is only one example of the many nations that will have to balance various interests in navigating the complicated global trade relations.
Jisan Kim is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.
Nov 9, 2015 | Content, Recent Developments, Student Commentaries, Student Features
By Christopher Mirasola
October was not a good month for China in the South China Sea. The United States Navy sent a guided missile destroyer on a freedom of navigation exercise to assert that artificial islands are not entitled to a 12 nautical mile territorial sea. Despite strong protests from Beijing, the exercise was unsurprising. Washington had been hinting for weeks at a stronger response to China’s maritime claims. Far more surprising was a decision only three days later from the Permanent Court of Arbitration (PCA) in which the Court unanimously decided to hear all fifteen claims against China’s policy in the South China Sea.
Background
In January 2013 the Philippines invoked Article 287 of the U.N. Convention on the Law of the Sea (UNCLOS) to challenge China’s claims to a majority of the South China Sea.
Source: What’s China’s basis of the 9-dash line? Quora https://www.quora.com/Whats-Chinas-basis-of-the-9-dash-line
As stipulated by Article 287, an ad-hoc tribunal at the Permanent Court of Arbitration was convened and invited both parties to submit briefs based on the Philippines’ statement of claim. China, however, refused to recognize the PCA’s authority and opted out of the Court’s formal proceedings. After hearings that closed this past July, the PCA had to decide whether UNCLOS gave it the authority to adjudicate the Philippines’ claims against China.
Broadly speaking, the Philippines has three claims. First, it argues that the nine-dash-line is contrary to UNCLOS provisions, which should be the only basis for maritime sovereignty and jurisdiction. Second, it asserts that a number of contested maritime formations (i.e., reefs) are not entitled to a 200 nautical mile exclusive economic zone or the adjoining continental shelf. Third, it contends that China’s law enforcement and fisheries behavior in the South China Sea is contrary to UNCLOS obligations and interferes with Philippine sovereignty. Of course even if the Philippines won on all these claims, the PCA cannot settle which country is sovereign over islands in the South China Sea. But even if we assume that China has uncontested sovereignty to all properly defined islands, a decision favorable to the Philippines would leave China with far less jurisdiction than it currently claims under the nine-dash line.
Source: Award on Jurisdiction and Admissibility (Phil. v. China), 51 (Per. Ct. Arb. 2015) http://www.pcacases.com/web/sendAttach/1506
The Court’s Decision
We can decompose the PCA’s analysis into three parts.
The arbitration was convened correctly
The Philippines was justified in calling an ad-hoc tribunal since neither country opted for a specific type of dispute resolution when they adopted UNCLOS. The Court also found that China’s non-participation did not impact the PCA’s jurisdiction because Annex VII Art. 9 states that, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” They also cited ways in which the PCA protected China’s rights, including repeated invitations to comment on procedural steps, advance notice for hearings, transcripts, and an invitation to join formally at any stage. The Court similarly argued that Vietnam’s non-participation didn’t impact the PCA’s jurisdiction despite the fact that it has rival claims to the same region.
The Court’s most stinging rebuke of China’s non-participation, however, was to adopt a weaker standard for whether the Philippines abused process in requesting this arbitration. The PCA defined ‘abuse of process’ as “blatant cases of abuse or harassment” because China did not request a more rigorous test under Article 294. By adopting such a weak standard it was much more likely that the Philippines would win on this particular jurisdictional argument. While we cannot be sure that a more stringent standard would have changed the Court’s decision, China certainly lost an opportunity to more substantially protect its interests.
Past agreements between China and the Philippines do not affect whether the PCA can adjudicate this dispute
The PCA focuses on three agreements signed by both countries: (1) the 2002 Declaration on the Conduct of Parties in the South China Sea (an agreement between all ASEAN countries and China to lessen regional tensions by working towards a joint code of conduct), (2) Joint China/Philippines statements to find a peaceable solution, and (3) the 1976 Treaty of Amity and Cooperation in Southeast Asia (an agreement to settle differences by peaceful and cooperative means). China argued that these documents precluded the Philippines from starting arbitration under Art. 281 and 282. The PCA, however, found that each of these documents (1) didn’t represent a settlement between both parties, (2) didn’t exclude other dispute resolution mechanisms, and (3) don’t require that the parties indefinitely pursue unsuccessful negotiations.
The PCA does not necessarily have definite jurisdiction over all fifteen Philippine claims
And this is where the story gets interesting. The PCA found that it has definite jurisdiction on seven claims, reserved judgment on another seven claims, and asked for clarification on a final claim. In short, it found that seven of the claims presented issues where the jurisdictional and substantive questions were too closely connected to make a preliminary decision.
Implications
The PCA dealt China a substantial blow in its bid to solidify control within the nine-dash-line, but it is far too early for the Philippines to pop the bubbly. The Court will now hold additional hearings, decide if it has jurisdiction for the seven reserved claims and render a decision. This puts China in a bind if it continues to boycott the proceedings since it will again run the risk of loosing input on pivotal legal questions. More problematic is that China has never articulated a robust legal defense for its historic claims in the South China Sea. There will be less material the judges can use to independently construct a likely Chinese response to Philippine arguments. Without a robust defense, it seems more likely that China’s historic claims may fail to convince the Tribunal.
We must, however, recognize the limits of even this most pro-Philippines scenario. The Court will not resolve territorial disputes to contested islands like Itu Aba (currently garrisoned by Taiwanese forces). It will not resolve boundary conflicts between overlapping Exclusive Economic Zones and territorial seas. Given China’s official pronouncements, it also will not change the ongoing increase in Chinese construction and presence in the short-term.
But we can begin to ask how this decision may start to change the playing field for Southeast Asian countries that dispute China’s claims. Whether it might catalyze more coordination between countries that have been deeply divided about how to balance regional strategic concerns with the reality of economic dependence on Beijing. Though only halfway through this arbitration, we may already be witnessing the start of a much different chapter in the South China Sea.
Christopher Mirasola is a 2018 J.D./M.P.P. candidate at Harvard Law School and Harvard Kennedy School. He is an Executive Symposium Editor of the Harvard International Law Journal.
Nov 5, 2015 | Content, Op-Ed, Student Features
By Marissa Florio
Under international and U.S. law, individuals can be prosecuted for membership in criminal enterprises. But what do we mean by “criminal enterprise”? The FBI defines a criminal enterprise as “a group of individuals with an identified hierarchy, or comparable structure, engaged in significant criminal activity.” Typically, we think of drug cartels, racketeering enterprises, or even the Gestapo. But what about corporations? They have shown themselves to be capable of egregious and criminal behavior: insidiously evading regulations or instigating and carrying out violent acts. Corporations should likewise be eligible to be labelled as criminal enterprises, as they are groups of individuals with an identified hierarchy that can engage in significant criminal activity. Corporate directors and officials could thus then be found guilty for the corporation’s bad acts much more easily, which I find appropriate.
Both international law and U.S. domestic law provide for criminal liability for membership in a criminal enterprise. Simply being a member in such a group is enough to warrant prosecution, without further evidence that a specific individual committed any other crime. Domestically, membership in an enterprise that participates in racketeering activity is penalized under the Racketeer Influenced and Corrupt Organizations Act (RICO). Internationally, at the Nuremburg trials, the Gestapo was declared a criminal enterprise and all members were automatically penalized. Similarly, in the ICTR, a defendant can be found guilty for the acts of others under the theory of extended joint liability for a joint criminal enterprise. What would it take for a corporation to be deemed a “criminal enterprise”?
Domestic Law
In Doe I v. Unocal Corp., the Ninth Circuit assessed whether there was a genuine issue of material fact as to whether Unocal, as a corporation, aided and abetted the Myanmar military’s perpetration of forced labor, murder, and rape. The Myanmar military was providing security and other services for Unocal’s project of producing, transporting, and selling natural gas deposits off the nation’s coast. Allegedly, the military was committing human rights violations in connection with the project, forcing men to work on the project under threat of violence, killing those who tried to escape from the forced labor program, and torturing their families:
“For instance, Jane Doe I testified that after her husband, John Doe I, attempted to escape the forced labor program, he was shot at by soldiers, and in retaliation for his attempted escape, that she and her baby were thrown into a fire, resulting in injuries to her and the death of the child. Other witnesses described the summary execution of villagers who refused to participate in the forced labor program, or who grew too weak to work effectively. Several Plaintiffs testified that rapes occurred as part of the forced labor program. For instance, both Jane Does II and III testified that while conscripted to work on pipeline-related construction projects, they were raped at knife-point by Myanmar soldiers who were members of a battalion that was supervising the work.”
The Circuit court assessed Unocal’s knowledge that the Myanmar military was allegedly committing human rights violations in connection with this project. The court found there to be sufficient evidence of knowledge to withstand summary judgment. The court stated,
[E]ven before Unocal invested in the Project, Unocal was made aware – by its own consultants and by its partners in the Project – of this record that the Myanmar Military might also employ forced labor and commit other human rights violations in connection with the Project. And after Unocal invested in the Project, Unocal was made aware – by its own consultants and employees, its partners in the Project, and human rights organizations – of allegations that the Myanmar Military was actually committing such violations in connection with the project.
The parties in Unocal settled shortly after this ruling on summary judgment. However, had the case gone to trial, could plaintiffs have presented an argument that Unocal was a criminal enterprise?
In domestic cases, the answer is no. The Ninth Circuit held that RICO could not be argued, as the statute did not apply extraterritorially. (For more on the presumption against extraterritoriality in U.S. domestic law, see also EEOC v. Arabian American Oil Co.)
International Law
Could international law be applied in these types of cases to hold a corporation as a whole liable as a criminal enterprise, and therefore extending criminal liability to its officers without proving personal involvement in specific acts? Several international tribunals do just that.
The Nuremburg Charter provides: “At the trial of any individual member of any group or organisation the Tribunal may declare . . . that the group or organisation of which the individual was a member was a criminal organisation.” This declaration is final and cannot be challenged in subsequent cases against other members of the same organization: “In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organisation is considered proved and shall not be questioned.”
The Nuremburg Tribunal is not the only international tribunal that can find a group to be a criminal enterprise in this fashion. A recent International Criminal Tribunal for Rwanda (ICTR) ruling could lay the groundwork for the International Criminal Court (ICC) to similarly use the theory of a criminal enterprise to find greater liability for a corporation’s wrongdoing. (The ICTR rulings can have some precedential value for the ICC under the Rome Statute.)
In Edouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, the ICTR found two politicians culpable under a seldom-used theory of liability, whereby the defendants were found guilty for the acts of others, because they participated in a scheme that had a plausible consequence of certain human rights violations. The ICTR found two high-ranking politicians from Rwanda’s 1994 interim government liable for human rights atrocities during the Rwandan genocide, specifically the mass rape, mutilation, and sexual assault of thousands of Tutsi women and girls. There was no evidence that either defendant personally perpetrated rape, mutilation, or sexual assault, or even that either politician ordered such acts to be committed. They were convicted on the grounds of extended liability for joint criminal enterprise. Id.
Under extended liability for joint criminal enterprise, a defendant must be found liable for participating in a “basic” joint criminal enterprise (here, the destruction of the Tutsi people) and significantly contributing therein. The defendant can then be found liable for a crime outside of the purpose of the basic joint criminal enterprise that was committed by another joint criminal enterprise member, so long as it was “foreseeable that the extended crime was a possible consequence of the implementation of the basic [joint criminal enterprise].” A defendant could similarly be found liable for the acts of a non-member of the original joint criminal enterprise if: (1) the non-member has the requisite intent to participate in and significantly contribute to the joint criminal enterprise, (2) it was foreseeable that the non-member would commit the extended crime in the execution of the common purpose of the joint criminal enterprise, and (3) the defendant knew the extended crime was a possible consequence of the implementation of the common purpose of the joint criminal enterprise and he willingly took the risk it would be committed.
Were this same theory to be applied to a corporation, a corporate official could be found liable for participating in such a joint criminal enterprise, such enterprise being the corporation. Therefore, even if a corporation were being prosecuted as a person/entity independent of its officers, as in Unocal, the corporate structure could still be used as a framework around which to build cases against individual officers, specifically in establishing duties to know and act, and knowledge of improper actions.
Moving Forward
International law thus appears to be better suited than U.S. domestic law to finding that a corporation is a criminal enterprise, since Ninth Circuit precedent now blocks RICO from applying in all cases where the bad acts occurred outside of the United States. If a case with facts similar to Unocal did emerge and the corporation therein was declared to be a criminal enterprise under an international tribunal, would this be a move in the right direction? Should the U.S. defer to the jurisdiction of international tribunals in cases like Unocal, making it possible to penalize corporate officers? Could the U.S. defer jurisdiction? How far could this theory go: could all employees of a corporation become criminally liable, regardless of their involvement or personal knowledge of the extent to which the corporation was involved in illegal activities? Is this just?
Marissa Florio is a 2016 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.
Sep 26, 2015 | Content, Op-Ed, Student Features
By Lucas Bento
At the heart of the current refugee crisis affecting Europe’s borders is the poor exercise of sovereign judgment. Sovereignty, as a fundamental principle of international law, implies that countries have absolute control over what happens within its borders, free from foreign interference. A state’s power to exclude people from crossing its borders flows directly from this power. Whether it is Hungary’s use of tear gas against asylum seekers, Slovakia’s decision to only accept Christian refugees, or Croatia’s separation of refugee families, the use of sovereign powers in this crisis raises important questions about the role and responsibilities of states as members of the international community.
Most legal scholars and political scientists trace the right to sovereignty to the Peace of Westphalia in 1648, which put an end to Europe’s brutal Thirty Years’ War and laid the foundations for respecting the territorial integrity of states. Europe has since been at the forefront of defining and refining the meaning and practice of “sovereignty,” with the fall of empires and independence of new states, the origination of two world wars, and ultimately the creation of a European Union that partly absorbed the sovereignty of individual member states.
In light of its historical role, Europe should be leading by example. The refugee crisis may be challenging established notions of sovereignty by forcing states to consider the extent to which they are bound by extraterritorial obligations. The right to sovereignty should not be taken for granted. A state cannot have its cake and eat it too. In practice, the right to sovereignty entails significant responsibilities, and must thus be counterbalanced by values such as respect for human rights and the protection of minorities.
Take, for example, the founding text of the European Union. Article 2 of the European Union Treaty proclaims that the European Union is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” Yet the refugee crisis has shown that many European states are failing to uphold these values.
The right to asylum is a basic “human right”, enshrined in international conventions and protocols, such as the 1951 Refugee Convention. Using violence on those fleeing persecution is also an infringement on the “human dignity” of the victims. Hungary’s enactment of a law allowing the army to use rubber bullets, tear gas grenades and net guns against refugees is a saddening example of democratically legitimizing bad policy. While a state’s right in using force to repel foreign invasion is well-established under international law, it was never designed to be unleashed on non-combatants, let alone asylum seekers looking for a safe haven. Cherry-picking which asylum seekers to let in based on their religious belief blatantly undermines any attempt to create a Europe that promotes “equality”.
Sadly, refugees flee violence and discrimination in their homeland only to encounter more of it in Europe.
Of course, Europe should not open its borders without controls. It should monitor, register, document and process all asylum seekers that come in to ensure that asylum applications are based on a well-founded fear of persecution, rather than on economic or as some have noted, more nefarious, reasons. But for some states to close their borders in the hopes that the crisis will go away or that someone else will collect the tab is preposterous. Europe needs a unified solution. As the United Nations High Commissioner for Refugees (UNHCR) noted, “individual measures taken by countries will make an already chaotic situation worse, furthering suffering and increasing tensions among States at a time when Europe needs solidarity.” The agreement for a relocation quota is a step in the right direction, though it has been criticized as insufficient by the UNHCR, and may face enforcement issues as some states, like Slovakia, have already vowed not to implement the measures.
Others should drop the xenophobic and hyperbolic rhetoric. Viktor Orban, Hungary’s Prime Minister, unhelpfully described the inflow of migrants as “breaking the doors” and “running over us.” Refugees are running away from harm, seeking safety abroad when there is none at home, hoping to receive an acknowledgment of their humanity where the alternative includes slavery, rape, and death.
In many ways, Europe’s approach to the refugee crisis demonstrates the poverty of philosophy in European political circles. Germany’s backpedaling from a message of absolute solidarity to one of controlled migration would make Immanuel Kant weep in disappointment. Kant believed in a cosmopolitan world, where individuals as “citizens of the earth” enjoyed rights of hospitality, and where states had no right to refuse visitors if it would lead to the latter’s demise. Europe cannot let the repercussions of ISIS brutality become a humanitarian tragedy for Europe. Enough with the violence and discrimination. This is the time for European leaders to demonstrate their commitment to “human dignity,” “human rights,” “equality,” and “the protection of minorities.” The true indicia of humanity comes not in how much we say we care (though compassion is necessary) but in how much we care to share: our time, our land, and our resources. Here, actions speak louder than words.
Europe should be doing more on a global level to form partnerships and alliances with others in the international community to find a coordinated solution to this crisis. It should reach out to Brazil, whose President has recently stated that the country is welcoming refugees “with open arms.” It should also leverage diplomatic channels to put pressure on the United States to take on more refugees, and demand greater support from countries in the Gulf that have been criticized for their “tepid” response to the crisis. It should also listen to its own citizens who are helping refugees at train stations, providing shelter and food to those in need, and even developing mobile applications á-la Airbnb to help good Samaritans share their homes with refugees.
Whereas ISIS preaches violence and discrimination, Europe should fight back, if only ideologically, by standing united in solidarity with those in need. Sovereignty should not be used as a weapon of oppression and exclusion, but as an emancipatory reminder that states are members of a community striving for a more peaceful world. Of course, the exercise of sovereign power will always trigger a division of opinions. But in a world where states are increasingly sharing power with non-state actors, the sword of sovereignty should be raised wisely, wielded responsibly, and seldom left to the discretion of political expediencies.
Lucas Bento is an associate at the New York office of Quinn Emanuel Urquhart & Sullivan, LLP.
Sep 13, 2015 | News, Student Features
By Josh Macfarlane
The Trans-Pacific Partnership (TPP) has had quite the summer. With the help of some adroit political maneuvering and an unexpected alliance between President Obama and congressional Republicans, Congress just managed to pass the necessary legislation to advance the trade deal to the next state of negotiations. The TPP, an international trade deal representing 40% of global GDP, is particularly divisive within the President’s own party. Many criticize the deal for neglecting labor rights, sacrificing American jobs, and the clandestine nature of the negotiations. But it is the Investor-State Dispute Settlement (ISDS) clause that perhaps provokes the most ire.
The ISDS provision essentially allows investors from one country to file claims against the government of another. Controversially, an international tribunal, which operates outside the confines of domestic courts and laws, adjudicates the claims. For supporters, the tribunal promotes neutrality, fairness, and predictability. For critics, it represents an unprecedented cession of power to an unaccountable body.
Critics argue that the ISDS provision allows investors, including multinational corporations, to circumvent United States law, thereby undermining national sovereignty. There is some truth to this. After all, the tribunal’s decision cannot be appealed in a nation’s courts. Making matters worse, foreign investors do not even need to file a claim to get their way. Merely threating to bring a claim has proven sufficient. Earlier this year, the Guardian reported that an American tobacco company effectively threatened the Canadian government with an ISDS claim, forcing them to withdraw a proposal that would require plain packaging on tobacco products. Critics see this as the beginning of the end: the TPP will enable foreign corporations to bring claims against the government—at the state, federal, and local levels—on the grounds that a domestic law is discriminatory. To put it another way, a Japanese corporation could bring a claim against the government of Billings, Montana on the grounds that a local ordinance gives a marginal advantage to local manufacturers.
Supporters see things differently. They argue that while trade agreements facilitate cross-border investment, foreign investors require (and even deserve) access to an impartial adjudicatory body to protect their interests. There is a long history of courts favoring the home team – it is one of the reasons we have diversity jurisdiction in the United States. This problem is only amplified when a nation’s courts are charged with adjudicating between a domestic defendant and a foreign claimant, particularly when the defendant happens to be the government. The solution? An independent tribunal. The ISDS provision is thus a means of ensuring that investors operating abroad have protection and recourse against discrimination, uncompensated expropriation of property, and denial of justice.
In response to critics’ admonition that the TPP will result in a deluge of claims against the United States, Mr. Obama’s administration regularly cites facts and figures: over 3,000 international agreements include ISDS provisions, of which the United States is party to 50. Take NAFTA as an example, where only 20 claims have been brought against the United States, none of which has been successful. (It should be noted that these figures do not address those instances in which an investor threatened to bring a claim but never did.) But, critics argue, things will be different under the TPP. Countries like Australia and Japan, two TPP members, are home to corporations with the necessary resources to aggressively pursue claims. This is debatable. The United States already has existing trade agreements, containing ISDS provisions, with six of the eleven other TPP members. This includes countries like Canada, Singapore and Mexico, which have their fair share of wealthy corporations.
Interestingly, it was not the ISDS provision that stymied negotiations between TPP members this summer. Rather, it was differences over sugar and dairy exports, among other things. What seems to matter most to the critics is not what is holding up the talks. This is largely because those seated at the negotiating table accept that an ISDS provision is critical to a final deal; they feel that critics have overblown its implications.
If negotiators cannot resolve their differences, discussions may be indefinitely postponed. The upcoming Canadian general election and the 2016 U.S. Presidential race have been identified as possible roadblocks on account of candidacy ambivalence towards the TPP. Time is of the essence, and September is likely to be a pivotal month. Perhaps that local ordinance in Billings will not be challenged after all.
Josh Macfarlane is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.
Aug 31, 2014 | Student Features
Kiobel v. Royal Dutch Petroleum Co. has generated concerns that a governance gap will emerge for corporations that propagate human rights violations abroad. In Kiobel, the U.S. Supreme Court barred most “case[s] seeking relief for violations of the law of nations occurring outside the United States.”[1] The U.S. had previously offered victims straightforward access to justice in its courts.[2] As American courts grow less open to extraterritorial claims, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Specifically, Kiobel has provided the European Court of Human Rights with the occasion to interpret the European Convention on Human Rights [3] to require the right to an extraterritorial forum and counterbalance the shift in the U.S. that Kiobel represents.
Read full article (PDF).
[1] Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).
[2] See 28 U.S.C. § 1350 (amended 2012) and its interpretation in, for example, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 172–74 (2d Cir. 2009); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000).
[3] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, [hereinafter ECHR] (entered into force Sept. 3, 1953) (as amended by Protocols Nos. 11 and 14, which entered into force on Nov. 1, 1998 and June 1, 2010, respectively).
