Really, Gringo?

Really, Gringo?
Marty Schubert '13

I got involved when I met a former director of the Central Bank of Paraguay a couple of summers ago at an economic education conference in Mexico City when I was working for the U.S. Department of Education. We stayed in touch, I emailed him when I was exploring summer opportunities, and he was able to help me out. The student works in the legal division of the Office of Banking Regulation at the Central Bank of Paraguay in Asunción and can expect to work in Spanish on a variety of banking issues. Housing is not provided, but modestly priced hostels and "host family" arrangements may be available. The interns will be completely immersed in the Spanish language, so fluency is highly recommended.

When the angry mob of disgruntled travelers began to aggressively chant at the airline staff at our gate in the international terminal of Jorge Chávez Airport in Lima, I began to think that going cheap on that four-stop flight from New York to San Salvador to Lima to Montevideo to Asunción may have been a bad idea. Volcanic activity in Chile had clouded the South American skies and cancelled all flights, an announcement that caused each air traveler to either jump from their seat in animated protest or slouch further into their chairs in resignation. I fell into the latter category and so did Carlos, a Paraguayan-born American citizen living in Washington who was going home with his wife and young daughter to visit family. After exchanging typical airport talk about where we were coming from and where we were going (with Carlos getting distracted as he tended to his overtired child), I learned that he had experience in government in the region. I asked him if he had any advice for me as I began my internship with the Central Bank of Paraguay. His face said it all, something like, "Really, gringo? You want to spend your summer working for a dysfunctional third world government? Good luck, dude."

It's safe to say that Paraguay is a forgotten country in Latin America. Sandwiched between regional giants Brazil and Argentina, Paraguay is one of only two landlocked countries on the continent (Bolivia is the other). In terms of name recognition, Paraguay doesn't even win the Battle of the Guays; it was not uncommon for my American friends to G-Chat me with "How's Uruguay?" All of these factors got me more excited for the adventure and the first day was just that. I got my picture taken with the President of the Central Bank and a former director of the Bank, an intimidating early test for my Spanish. The president had studied at the University of Illinois and, as a student of Spanish and Big Ten basketball, I directed the conversation to U of I's 2005 NCAA Championship run (which unfortunately ended in defeat). The strategy worked. Crisis avoided.

The president directed me to the legal division of the Office of Banking Regulation, known to Paraguayan government functionaries as "Asuntos Legales de la Superintendencia de Bancos." Here, I was introduced to my boss, Juanchi, considered a rising star within the Bank. A year younger than me, Juanchi had met the right people and shown his ability to get things done, rising to director of his office in only a couple years. Juanchi was anxiously preparing for his upcoming sabbatical to London, where the Bank was sending him to earn his L.L.M. from the London School of Economics. We hit it off immediately, and Juanchi put me to work. I was tasked with reviewing petitions from Paraguayan citizens attempting to re-open checking accounts that the government had closed because of fraud. These folks had written bad checks, lost their bank accounts, and were trying to get them back. The work exposed me to Paraguayan law and, most importantly, infused my Spanish with a confidence it never had
before.

I also had the opportunity to live with a co-worker, Marcos, a lawyer at the Bank with a love for soccer, women, and a good party. Marcos showed me around town like only a Paraguayan could, bringing me to local asados (cookouts), showing me the countryside, driving me to work, and shuttling me to pick-up fútbol games - where I was occasionally allowed to play but was NEVER allowed to touch the ball. Paraguayans don't pass la pelota. I didn't care, content with being included and experiencing a new cultural from an insider's perspective.

Overall, the people were great, the work increased my marketability as a Spanish speaking lawyer, and I ate a lot of meat. If I have one piece of advice for 1Ls looking for the right summer job, it's this: go abroad. And if someone gives you that "Really, gringo?" look, shoot them one
back, "Yes, really."

Fighting Terror with Terror in Afghanistan

Fighting Terror with Terror in Afghanistan
Ryan O’Connor ’14

On October 10th, 2011, the United Nations Assistance Mission in Afghanistan, or UNAMA, released a report documenting the torture of hundreds of detainees in several detention facilities and jails run by the National Directorate of Security (NDS) and Afghan National Police (ANP) across the war-torn nation. The study found that of the 273 conflict-related detainees held by NDS, 125, (46 percent) experienced torture, as defined under international law. Additionally, 41 (35 percent) of the 117 detainees held by the ANP experienced torture or other forms of cruel, inhuman or degrading treatment.[1] The report will only embolden the disposition of the now 62 percent of Americans who believe President Obama should lower troop presence in Afghanistan, and the 50 percent of Americans who believe the war has not been a success.[2] Irrespective of this public policy debate, lies a legal issue of great importance that could affect the United States’ involvement in Afghanistan.

At the National Directorate of Security facilities, the claims of torture by prisoners were specific and consistent enough to enable UNAMA to validate their legitimacy. UNAMA’s report on torture states,

The forms of abuse most commonly reported were suspension (being hung by the wrists from chains attached to the wall, iron bars or other fixtures for lengthy periods) and beating, especially with rubber hoses, electric cables and wires or wooden sticks and particularly on the soles of the feet. Other forms of abuse reported included electric shock, twisting of the detainee’s penis and wrenching of the detainee’s testicles, removal of toenails and forced prolonged standing.[3]

This torture was known to have taken place at five different NDS facilities, as well as the NDS Counter-Terrorism Department in Kabul.[4] One detainee, referred to as Detainee 371, expounded on the torture tactics he received, saying that he was told by an interrogator, “[y]ou should confess to what you have done in the past as Taliban; even stones confess here.”[5] This quote fittingly, if menacingly, sums up the dire straits human rights advocates face in Afghanistan. Despite significant international intervention, the West’s, and specifically the U.S.’s desire to have an international-law-abiding Afghan partner has not come to fruition.

The release of the U.N. report has given the United States a subtler cause for concern, dating back to past Congressional legislation. The Leahy Law, a provision found in the United States Senate’s 2001 Foreign Operations Appropriations Act, states:

None of the funds made available by this Act may be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights, unless the Secretary determines and reports to the Committees on Appropriations that the government of such country is taking effective measures to bring the responsible members of the security forces unit to justice.[6]

The Defense Appropriations Act also includes a similar position, albeit affording the responsibilities to the Secretary of Defense, not the Secretary of State. The implications the Leahy Law could have on the United States’ funding of the Afghan NDS and ANP cannot be understated. First, UNAMA undoubtedly qualifies as a credible source to be relied upon under the Leahy doctrine. Further, the evidence the agency provided, if true, would prove the existence of gross violations of human rights under international law. Assuming these two statements to be true, one can paint an awkward picture of Secretary of State Clinton, or Secretary of Defense Panetta vouching for Hamid Karzai’s government before the Committee on Appropriations on Capital Hill. Given the growing tensions between Afghan and American governments, the growing bipartisan disdain for the Afghan War in Congress, as well as the national consensus to bring the troops home, such a scenario seems unlikely given the foreseeably vitriolic reaction the Administration would receive from the public at large.

Yet, despite the requisite demonstration of faith in the Afghan government needed by the American government, it is highly unlikely that the Administration would simply stop funding the NDS and ANP. The Obama administration, while cognizant of the at-times contentious relations between the U.S. and Afghan government, also values a U.S. presence on the ground in Afghanistan as a stabilizing force in the country. Yet, the requirements set forth by the Leahy Law seem exceedingly relevant to the situation at hand. And so, throughout the next few months the American government’s response to the alleged torture in Afghanistan should be indicative of how seriously they view the Leahy Law. Does the Obama Administration sweep the alleged torture under the rug, further pushing the Leahy Law into irrelevancy? Or do they acknowledge the issue and make a point to come out on one side or the other?

While the documented torture in Afghanistan facilities was systematic, this network of human rights violations did not necessarily originate in the higher echelons of the Afghani government. In fact, “UNAMA’s findings indicate that mistreatment is not an institutional or Government policy,” said Staffan de Mistura, the Special Representative of the Secretary-General for Afghanistan.[7] Essentially, while torture may be promoted, even instituted, by certain government facilities, it is not the Afghani Government’s official policy. Ostensibly, this may appear to be good news. However, this lack of cohesion throughout the government speaks to the central dilemma facing the Afghani Security Agencies—a lack of accountability and oversight. Even still, the U.S. will continue to invest resources into the Afghani security agencies without a vivid picture as to where exactly this money will end up. Yet, the Leahy Law remains. While the notion may seem far less than ideal to Administration officials, it may be necessary for President Obama to instruct his Secretaries of State and Defense to personally vouch for the human rights policy of Hamid Karzai’s administration before Congress. On that day, it may be worth flipping the channel over to C-SPAN to hear what the Administration has to say.

[1] Treatment of Conflict­Related Detainees in Afghan Custody, http://unama.unmissions.org/Portals/UNAMA/Documents/October10_%202011_UNAMA_Detention_Full-Report_ENG.pdf
[2] Alex Sundby, Poll: Half of the U.S. says Afghan War Not a Success (October 3, 2011, 7:40 AM), http://www.cbsnews.com/8301-503544_162-20114666-503544.html
[3] Treatment of Conflict­Related Detainees in Afghan Custody, page 16
[4] page 16
[5] page 1
[6] http://www.ciponline.org/facts/leahy.htm
[7] http://unama.unmissions.org/Portals/UNAMA/Press%20Releases/Oct10_%202011_UNAMA_Detention_Report_ENG.pdf

Alabama Immigration Law

Anne Cataldo ‘13

Since September 11, 2001, national and state policies have seen a shift in how they address immigration issues. In particular, many have called for some kind of better assessment of illegal immigration. The result has been increased measures of enforcement. However, the result of such an increase in more drastic enforcement measures and harsher repercussions is a loss in terms of equal treatment of those immigrants who can potentially contribute to our country’s growth.

Alabama law H.B. 56 leads the charge of several recent state laws upping the ante in terms of strict immigration policies as part of a new wave of anti-immigration enforcement. Portions of the law were recently upheld in the district court and are currently up on appeal in the Eleventh Circuit. Section 28 was one of these provisions, which requires students to provide birth certificates indicating their citizenship status[1] as part of a measure “requir[ing] public schools to determine the citizenship and immigration status of students enrolling [in public school].”[2]Additionally, it “require[s] school districts to compile certain data and submit reports to the State Board of Education; . . . [and] require[s] the State Board of Education to submit an annual report to the Legislature.” “Immigration and human rights experts say that no other developed country has passed an immigration law as stringent as Alabama’s.”[3]

The Alabama government claims that the law was the result of a failure of the federal government to provide adequate illegal immigration enforcement measures.[4] In addition, it maintains that HB 56 will help the state overall by “reduc[ing] illegal immigration to the state and [by] ‘provid[ing] equal opportunities for all people who want to come to Alabama legally.’”[5] Further, “Alabama Attorney General Luther Strange [stated] at the hearing [that] the law would not prevent undocumented immigrants from having access to public school education,” and Alabama Governor Robert Bentley claimed that “[t]his law was never designed to hurt fellow human beings.”[6]

While supporters of the law maintain that it is not expected to have a negative effect on school attendance and that it is not a per se bar on illegal immigrant children attending school, reports indicate that illegal immigrants are “afraid to go to the hospital, . . . go to the police, . . . [and] to send their children to school.”[7] The New York Times reported that “the most frightened families pack[ed] up their cars as soon as they heard the news” that portions of HB 56 would go into effect.[8] The Washington Post reported that “scores of immigrant families have withdrawn their children from classes and some towns and urban areas also reported a sudden exodus of Hispanics.”[9] Now that the law has gone into effect, “racial profiling is rampant throughout the Alabama school system.”[10] The law even discourages legal American citizen children from receiving a public school education. As one news article pointed out, [t]he legal status of family members is often mixed – children are often American-born citizens – but the decision whether to stay rests on the weakest link.”[11] Thus, while children may have no fear of going to school, fears of their illegal immigrant parents for discovery of their own illegal status could result in pulling the children from school and leaving the area. Many families have resorted “to tak[ing] their children out of school, to avoid the risk that they’ll be asked about their immigration status – despite the fact that in theory, this provision is not supposed to apply to students who have already enrolled.”[12] Even further, many families have reached out to the Hispanic Interest Coalition of Alabama to find out “how they can grant legal power to relatives or neighbors to take care of their U.S. citizen children . . . if they’re deported.”[13]

This law could have a potentially devastating effect on future immigration policy because assessing the validity of HB 56 Section 28 “would allow the Supreme Court to reconsider [the Plyler v. Doe] decision that said a kindergarten to high school education must be provided to illegal immigrants.”[14] Some have argued that it is unlikely that the Supreme Court would overturn its previous ruling, but questioning the validity of this law in and of itself could stand to weaken what effect it has had in the past by furthering opposition groups and opening the door to new challenges. As New York Times journalist Campbell Robertson remarked, “[i]t is . . . a first step in a larger and long-considered strategy to topple a 29-year-old Supreme Court ruling that all children in the United States, regardless of their immigration status, are guaranteed a public education.”[15] With new information-gathering technology and invigorated efforts to produce more evidence to overturn the Plyler decision,[16] Plyler may be challenged. Some scholars maintain that the threat is minimal.[17] However, even if Plyler is not overturned, to some extent, the damage has been done.

Case law and history suggest that such action on the part of states like Alabama violates both the Equal Protection and Supremacy Clauses of the Constitution, and must be enjoined. It has long been established that the federal government retains control over immigration policies,[18] and because Alabama takes regulation into its own hands through this law, it should not be allowed to stand. Furthermore, federal law has recognized the importance of the right to go to public school,[19] and the impact of H.B. 56’s overly strict immigration measures has had the effect of creating a separate disparate class of people. Moreover, immigration law in schools is particularly critical, for the “educational policy in the United States . . . determines not only integration of immigrants into our communities, but also the effects of immigration outside the law on U.S. citizens.”[20] Allowing H.B. 56 to stand could have a devastating effect on assimilation practices. While federalism principles tout the importance of states being able to retain a large amount of leeway in coming up with policies that can effectively address the needs of their specific states, the history of our country and the principles put forth in the United States Constitution indicate that policies like HB 56 – that not only deter future students from receiving an education to which they are entitled, but also turn back the clock in how far assimilation and civil rights teachings have come – should be stopped.

[1] This portion of the law is currently enjoined, pending appellate review by the 11th Circuit.
[2] Text of Alabama Immigration Law, HB 56, Alabama State Legislature (June 9, 2011), http://latindispatch.com/2011/06/09/text-of-alabama-immigration-law-hb-56/.
[3] Nicolas Mendoza, Alabama immigration law is the strictest in the developed world, The Colorado
[4] Bill Mears, Obama administration asks court to block parts of tough Alabama immigration law, CNN Justice, (October 7, 2011 updated 2:07 PM EST), http://www.cnn.com/2011/10/07/justice/alabama-immigration-law/index.html (“Alabama Gov. Robert Bentley, who signed the law in June, has said the law he signed would not have been
needed ‘if the federal government would have done its job and enforced the laws dealing with this problem. However, they have failed to do that.’”)
[5] Id.
[6] Id.
[7] Jeremy Learning, Ala. Anti-Immigration Law Providing Example of Ill-Conceived Attempt at Reform, ACSblog, (October 5, 2011), http://www.acslaw.org/acsblog/ala-anti-immigration-law-providing-example-of-ill-conceived-attempt-at-reform.
[8] Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, N.Y. Times A1 (October 3, 2011), available at http://www.nytimes.com/2011/10/04/us/after-ruling-hispanics-flee-an-alabama-town.html?scp=6&sq=alabama%20immigration%20law&st=cse.
[9] U.S. asks court to halt immigration law, video, Washington Post via Associated Press (October 7, 2011), http://www.washingtonpost.com/world/national-security/us-asks-court-to-halt-immigration-law/2011/10/07/gIQA1wpPTL_video.html.
[10] ACLU Report from Alabama, ACLU (Oct. 11, 2010), http://www.aclu.org/print/aclu-report-alabama.
[11] Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, N.Y. Times A1 (October 3, 2011)
[12] Maribel Hastings, HB 56: American Kids Pay the Price, Huff Post Latino Voices (Oct. 6, 2011 at 3:48 PM ET), http://www.huffingtonpost.com/maribel-hastings/hb-56-american-kids-pay-price_b_998788.html.
[13] Id.
[14] Justice Department Sues South Carolina Over State’s Strict Immigration Law, Associated Press (Nov. 1, 2011), available at http://www.foxnews.com/politics/2011/10/31/justice-department-sues-south-carolina-over-states-strict-immigration-law/.
[15] Campbell Robertson, Critics See ‘Chilling Effect’ in Alabama Immigration Law, N.Y. Times
A14 (Oct. 28, 2011).
[16] Id.
[17] Id.
[18] See, e.g., Seth M.M. Stodder & Nicolle Sciara Rippeon, State and Local Governments and Immigration Laws, 41 Urb. Law. 387, 387 (2009) (“The United States Supreme Court has repeatedly held that the ‘authority to control immigration . . . is vested solely in the federal government.’”) (citing Traux v. Raich, 239 U.S. 33, 42 (1915) (emphasis added)).
[19] See, e.g., Plyler v. Doe, 457 U.S. 202, 221-222 (1982).
[20] Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2096-2097 (2008).

WTO PUBLIC FORUM 2011

Professor Claire R. Kelly organized a WTO PublicForum, co-sponsored by the International Economic Law Group of the American Society of International Law, entitled "The Evolving International Trade Order: The Global Sourcing and New Challenges tothe WTO System." Here is an inside look at what the paneldiscussed and the panelists themselves.

"The Evolving International Trade Order: The Global Sourcing and New Challenges to the WTO System"

Reporter: Claire R. Kelly, Professor of Law and Co-Director of the Dennis J. Block Center for the Study of International Law, Brooklyn Law School

Summary of the Panel
This panel explored the implementation of the current trading and investment rules in light of today’s global trading patterns. In particular, the panel considered standards established under the General Agreement on Tariffs and Trade, the Agreement on Customs Valuation, the WTO Agreement on the Rules of Origin, the World Customs Organization and the international investment law regime. Despite the increasingly complex and diversified sourcing realities today, the rules that govern trade and investment are based on outdated trading patterns of the 19th and early 20th century in which trade flows were linear and supply chains were not very diversified, if at all. Today, however, there is a very different picture. Production processes, through economies of scale and intermediate input trade, depend on increased outsourcing. Unlike pre-World War II, where vertical integration of the production in one country, with few if any intermediate inputs, was commonplace, today fragmentation in the production process characterizes global supply chains. Importers now source from multiple countries, sell in multiple countries and are themselves incorporated in multiple countries. Yet the current trading rules are premised on mono-location and a linear trade flow endemic to a mercantilist structure under which state actors compete to maximize exports while containing imports.

As a threshold matter one can see how these evolving global supply chains challenge outmoded trading rules and exert mounting tolls within the global trading system. For example, the current trading patterns are enormously complex making it difficult for businesses to track themovement of goods through the supply chain. The current trading patterns suggest the need for businesses to make use of sophisticated systems, such as master data systems. Such systems should be available in a purportedly harmonized trading system. However, one can see many examples, particularly in relation to the classification of imported merchandise, where the implementation of the trading rules are not in fact harmonized. The subjectivity and discretion within national customs systems, with classification in particular, makes the use of programs such as master data systems often unavailable as a practical matter.

Likewise, importers confront both country of origin rules and the rules relating to value that have failed to keep pace with the realities of today's trading patterns. As the WTO’s Made in the World Initiative reflects, country of origin rules that try to identify a single source for a product are deceiving. Many products are truly multinational in origin with value from components, labor, and intellectual property, not to mention advertising and marketing, spanning not just countries but continents. The value rules for customs purposes can conflict with value rules for tax purposes in the transfer pricing area, making valuation more complex and costly than it needs to be for related parties.

Origin and value chain fragmentation is accompanied by what many would call a broader fragmentation, that of the international trade system itself. The proliferation of preferential trade agreements through regional and bilateral trade agreements containing their own set of rules around rules of origin for example, further blurs the effectiveness and applicability of the current multilateral trade rules and may lead to competing rules.

Likewise, an increasingly important regulatory layer is international investment law which presents a potential regulatory mismatch between trade and investment rules. Conduct which may be consistent with international trade law may be inconsistent with international trade rules and vice versa. The potential for regulatory clashes persists in a number of sectors including the technology sector. Trade in technologies requires a great deal of capital and coordination. Many actors working across the globe are subject to various jurisdictions as well as both the trade investment regimes.

These current trading and investment rules offer a fertile ground for a perverted political debate on trade and to some extent the panel explored whether the current crisis over the Doha Round negotiations is due, in part, to such misguided political debates on trade.

Panelists

Professor Elizabeth Trujillo (Suffolk University Law School) moderated the discussion. Ms. Trujillo gave the audience an overview of the panel and noted that some of the themes discussed in the earlier session would be revisited, including M. Pascal Lamy’s discussion of the “Made in the World” label as a much more accurate reflection of the realities of today’s complex global supply chains. The “Made in the World” initiative, among other things, encourages us to think about the international trade regime as a “trade in tasks paradigm” and in turn, look for specific ways that the WTO may better address value-added trade. As a result, international trade no longer functions in its specific silo of trade rules and customs control; but rather, it has acquired transnational qualities where a single territorial locus loses its importance and actors involved are more than any one national government or private national company.

Mr. Philippe Orban (KPMG) started the panel with a discussion of the harmonized
tariff system. Mr. Orban provided an overview of its background, and described its significance for countries in classifying and monitoring goods in order to assess tariffs and address the challenges and proposed solutions for a fully operational harmonized system in the context of global supply chains. Significantly, Mr. Orban illustrated that despite its nature as a harmonized
system, there are many components of the system where significant discretion is granted to national authorities. As a result, the system is a great deal less harmonized than is desirable.

Professor Claire R. Kelly (Brooklyn Law School) discussed the reality of global supply chains today with respect to both valuation concerns and rules of origin. After describing the realities of global supply chains and noting the WTO Made in the World Initiative, she illustrated how these realities create difficulties in terms of both value and country of origin rules. One of the difficulties discussed was that of multinational enterprises that find themselves confronted by tax authorities who assume businesses are inflating costs and customs authorities who assume that businesses are deflating costs. Similar uncertainty persists with respect to country of origin determinations. The determination of the country of origin of a particular good often requires a subjective analysis. Global businesses face subjective country of origin determinations in multiple jurisdictions adding to their costs. Professor Kelly suggested that better use could be made of networks of trade professionals to find ways of mitigating some of this uncertainty.

Professor Jorge Viñuales (The Graduate Institute of Geneva) discussed the several regulatory layers that are part of the global supply chain system. Aside from international trade law, an increasingly important regulatory layer is international investment law. International investment law presents many differences from international trade law, three of which were raised in his presentation. First, unlike international trade law, international investment law allows private investors to sue the host State directly (instead of having to persuade their home State to bring a claim before the WTO DSB) as well as to get compensation even for past effects (which is not the case of international trade law). Second, domestic measures affecting global supply chains present significant litigation risk not only from an international trade law but also from an international investment law perspective. Third, the situation is further complicated by the potential emergence of 'regulatory mismatches', when the measure that would be WTO-consistent is potentially inconsistent with international investment law and vice-versa. An example is the carbon equalization measures. It has been persuasively argued that granting subsidies to local producers facing competition from exporters based in pollution havens would be better, from a WTO perspective, than import restrictions. Yet, from an international investment law perspective, such subsidies would likely be much more problematic than import restrictions, as the overwhelming majority of investment treaties do not restrain regulation of entry.

Ms. Konstantina K. Athanasakou (White & Case, Geneva) discussed the landscape of global supply chains. She discussed trade challenges with respect to providing access and dissemination to technologies operating on the basis of the global supply chain structure. She noted that the main challenge of promoting access and dissemination of technologies that operate on the basis of global supply chains is the involvement of large capital requirements and the presence of multiple actors across different continents. She emphasized that it is important to consider how the trade framework affects global supply chains for technologies, and in particular, whether the trade framework helps or hinders dissemination of the technologies and whether it encourages or discourages investment.

Conclusion

The panel highlighted that international trade no longer functions in specific silos of trade rules, customs control, or investment rules; but rather, it has acquired transnational qualities where a single territorial locus loses its importance and actors involved are more than any one national government or private national company. International trade today is therefore no longer a function of a geographical place at any given time, but a much more fluid transnational phenomenon where various commercial and government interests may converge and translate common interests into new and modern rules.

A Sneak Peek at Professor Kelly’s Latest Research: “The Promises and Perils of Global Governance: The Case of the G20”

Professor Claire Kelly has been working with Professor Sungjoon Cho (of Chicago Kent School of Law and currently visiting at Fordham Law School) to study the workings of international coordinated governance through the use of networks. They presented their initial project at the 2010 World Trade Organization Public Forum and subsequently presented their research at a variety of venues throughout the country in 2010-2011.

In the wake of the 2008 financial crisis, a new global governance structure emerged. During and subsequent to the crisis, the G20 emerged as a coordinating executive among international governance institutions. It set policy agendas and prioritized initiatives. Working through the Financial Stability Board, the G20 coordinated with other governance institutions and networks to set standards, monitor enforcement and compliance, and aid recovery. Its partners included the International Monetary Fund, the Basel Committee on Banking Supervision, the Organization of Economic Cooperation and Development, the World Trade Organization, the International Association of Insurance Supervisors and the International Organization of Securities Commissions. Its authority cuts across regimes and creates collaborative linkages between economic law and social issues such as food security and the environment. Its leadership role, born out of exigency, now continues to evolve as part of the new international order of economic laws.

The G20’s coordination of institutions and networks exemplifies a new form of global governance. Network coordination offers an opportunity to confront complex problems with a needed comprehensive approach. The institutions and networks engage in an ongoing dialectical process that propels standard setters toward convergence on a number of fronts. The actors in this process employ a variety of tools to forge consensus and the G20 leverages this consensus-creating process to achieve its goals. Unpacking these tools can help scholars tackle intricate questions that arise from the G20’s coordination role. In particular, we focus on concerns regarding the effectiveness and legitimacy of the G20’s coordination of multiple networks and institutions.

Their paper, “The Promises and Perils of Global Governance: The Case of the G20,” is being published in the Chicago Journal of International Law.

Federal Reserve Bank of New York

The Federal Reserve Bank of New York is one of 12 regional Reserve Banks which, together with the Board of Governors in Washington, D.C., make up the Federal Reserve System. The Fed, as the system is commonly called, is an independent governmental entity created by Congress in 1913 to serve as the central bank of the United States. It is responsible for
· formulating and executing monetary policy,
· supervising and regulating depository institutions,
· providing an elastic currency,
· assisting the federal government in its financing operations, and serving as the banker for
the U.S. government.

In addition, the Federal Reserve System has important roles in operating the nation's payments systems, protecting consumers' rights in their dealings with banks and promoting individual community development and reinvestment.




The New York Fed oversees the Second Federal Reserve District, which includes New York State, the 12 northern counties of New Jersey, Fairfield County in Connecticut, Puerto Rico and the U.S. Virgin Islands. Though it serves a geographically small area compared with those of other Federal Reserve Banks, the New York Fed is the largest Reserve Bank in terms of assets and volume of activity.

The New York Fed (as it is commonly referred to) has several unique responsibilities, including conducting open market operations, intervening in foreign exchange markets, and storing gold for foreign central banks, governments and international agencies. Foremost among its functions is the implementation of monetary policy. The other two missions are supervision and regulation and international operations. http://www.newyorkfed.org/aboutthefed/whatwedo.html


STUDENT EXPERIENCE:
Yael Port ‘13

In the summer of 2011, I worked for The Enforcement, Litigation, Protection and Investigations Division of the Federal Reserve Bank of New York. This department has attorneys, investigators and staff handling litigation in which the Bank has an interest. In addition, this Division pursues regulatory enforcement investigations and formal actions under authority delegated by the Board of Governors. The Division is also responsible for conducting internal investigations in the Bank as well as having the responsibility of overseeing the Federal Reserve Law Enforcement Unit, which entails providing training and legal support for the law enforcement officers.

When interviewing for the position last year, I had mentioned that I have an interest in international law, but I did not think that would make a difference in my assignments. When I arrived, however, I found out that my mentor had saved an international tax law case for me to work on. It started out simple: looking through memoranda of understanding, finding applicable cases on Westlaw and LexisNexis, researching international standards, etc. I soon realized, however, that in order to write my memo I would have to draw on a variety of skills, some of which I would need to learn.

It was not easy at first, and I spent some time googling every possible permutation of my research terms to get a better idea of the big picture. I asked the librarians in residence for help, and they pointed me in the right direction. I learned how to find treaties using the Library of Congress and how to check their status via the United Nations. I discovered how problems arise when one country or organization has ratified a treaty but the other has yet to do so. For example, treaties often include new provisions that completely replace sections of an older treaty. One contracting state may ratify the treaty right away, but another country could take a long time to review it. If a dispute arises during that time, each country will likely claim to be bound by the version of the treaty that is most favorable to it, even the treaty itself contains a provision specifying that it does not come into effect until all parties have ratified it.

Additionally, I analyzed bilateral tax treaties in conjunction with a particular country’s tax laws in order to find ways for privileged information to be exchanged in cases of possible tax evasion and/or fraudulent activity. Furthermore, I examined not only the tax treaties and tax laws, but I also tried to tie in with the particular fact pattern at issue the relevant international guidelines, such as the Organization for Economic Co-operation and Development (OECD) Model Tax Treaty, so that I could come up witha favorable definition of tax fraud for the scenario at hand.

Ultimately, one of the most important things I learned over the summer is that bilateral agreements are only as strong as the existing relationship between the contracting states. It seems obvious now, but before I spent my summer analyzing them, I had the idea that treaties existed separately from everyday diplomacy and cross-country relations. It seemed to me that once written, signed, and ratified a treaty was binding. Now I know that while that may be true, treaties may not be executed fully if the relationship between the two states is strained or tenuous. A country may seek to act under a treaty, particularly one that is outdated and likely to be replaced, in order to persuade another state to act a certain way. It may even delay negotiations on a new treaty or amending protocol because it knows that the current treaty has become unfavorable to both sides and so it is unlikely that the other contracting state will execute the treaty against it.

It was an amazing and incredibly eye opening experience to learn about how countries actually interact with each other and how such interaction is influenced by third parties such as international or regional policy organizations. Thanks to my summer experience, my international research skills are much better than before, and I have become an expert on tax treaties!

Yael Port can be reached at yael.port@brooklaw.edu

Setting Standards at the United States Court of International Trade

Peter Tringali ’13 Block Fellow

This summer I worked as a judicial intern at the United States Court of International Trade (“the Court”). One of my responsibilities involved drafting an order and opinion on a Motion for Judgment regarding the Department of Commerce’s calculation of an antidumping duty for a “separate rate”1 company in a non-market economy investigation.

Antidumping duties are assigned to goods that are imported in to the United States and sold for less than fair value. Due to the fact that the Department of Commerce has limited resources, they cannot fully investigate each importer or producer of the merchandise at issue. The “separate rate” calculation is therefore necessarily imprecise to some extent. However, the Department still has an obligation to calculate an antidumping duty rate that is reasonably reflective of potential dumping margins, that is a rate that will ensure the goods are sold at fair market value.

The Court will hold unlawful any determination “unsupported by substantial evidence” or “not in accordance with the law.” Supporting a finding with substantial evidence essentially requires the Department of Commerce to make a rational connection between the facts found and the choice made. Here, the Department calculated the separate rate by using a simple average of the rates of the only two fully investigated parties (the mandatory respondents). A de minimis rate was assigned to one of the respondents, and an adverse facts available rate was assigned to the other for failing to cooperate with the investigation. An adverse facts available rate is calculated using facts that are adverse to the interests of that party when selecting among the facts otherwise available. The practical effect of using such an adverse facts available rate is that the uncooperative party is assigned the highest possible rate based upon the record.

To determine whether the Department’s decision was in accordance with law, the Court relies on the two-part Chevron test: 1) whether Congress directly spoke to the precise question at issue by expressing its purpose and intent in the statute; 2) if the first prong is not satisfied, whether the Department’s interpretation amounts to a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Analyzing this factual issue posed to be the most challenging aspect of the case in addition to raising interesting trade implications, particularly with regards to United States’ relationship with China (a country that is still considered a non-market economy by the Department of Commerce). The Department, with its limited resources, faced a difficult situation. While their decision to select only two mandatory respondents is permissible under the relevant statute, they are also obligated, statutorily, to calculate rates accurately, fairly, and realistically.

Ultimately, the Court held that the Department of Commerce failed to support their separate rate calculation with substantial evidence. There was no evidence indicating that the prohibitively high separate rate calculation (half of the adverse facts rate assigned to the non-cooperating respondent) was reflective of plaintiff’s commercial activity. Furthermore, the calculated separate rate was exceptionally higher than the rate calculated for the one cooperative respondent.

While balancing these considerations, I was struck by the economic implications of the decision. In particular, I realized the fine line between applying an antidumping duty that prevents the sale of imports for less than fair value and a rate that does not accurately reflect dumping margins. If the rate is too low, domestic industries cannot compete and are shut out of the market. Conversely, if the calculated rate is too high, smaller companies would be swiftly foreclosed from the market, thereby frustrating the theory of comparative advantage, one of the guiding principles promoting international trade.

Although calculating antidumping duty rates can be a technical and fact intensive inquiry, it is an important area of regulation that constantly implicates interesting policy concerns that can have significant affects on international trade.

1 “Separate rate” companies are parties to a non-market economy investigation that establish their de jure and de facto independence from government control, thereby avoiding the (likely) prohibitive adverse facts available rate that applies to companies that cannot establish their governmental independence.

Peter Tringali can be reached at peter.tringali@brooklaw.edu

Watching the Sun Rise in the Far East

Mark Falcon '13
Associate Editor

Whether you are a 1L or 2L, you cannot pass up on the amazing experience that is the China Study Abroad program at BLS. Yes, the flight will be over twenty hours long with, hopefully, a lay over, but think of it this way: hasn’t the school year prevented you from seeing all those bad movies that you really wanted to pay $15 for? The flight is well worth the two week immersion into a completely foreign culture with peers that will grow into close friends.

Usually led by Dean Gerber, students this past summer had the pleasure to be accompanied by statutory interpretation master Professor Solan. The program offers two courses that are worth up to 3 pass/fail credits. Even though the Professors do a good job of recognizing that it is a study abroad program, I would recommend registering for one class to have more time to explore. Besides classes, the program includes paid-for excursions to legal institutions

There are two law related trips that provide students with a good overview of China’s legal system. One outing takes students to visit the Headquarters of the China International Economic and Trade Arbitration Commission (CIETAC). This commission hears international economic and trade disputes through the process of arbitration, the frequency of which has rapidly increased due to China’s entry into the WTO in 2001. At the Headquarters, students participated in a panel-like discussion on the process of arbitration in China.

More impressive, however, was the outing to the Supreme People’s Court (SPC) where a Grand Justice discussed China’s judicial history, structure and civil law system.

In the early 1980s, the Organic Law of the People’s Court formed the judicial system in mainland China. The SPC reviews cases from two distinct Courts: the Courts of Special Jurisdiction, which is comprised of the military, railroad, water transportation, and forestry courts; and the Local People’s Courts, which is a three-tiered system comprised of the basic, intermediary, and high people’s court. The SPC is made up of 13 Justices: one Chief Justice or President of the SPC, one Grand Justice of First Rank or VP, and 11 Grand Justices. Unlike in the U.S., The SPC does not have a ‘cases or controversies’ requirement when reviewing appeals, hearing original jurisdiction cases or adjudicating disputes that have the greatest influence in China.

From this visit, I was most impressed by the development of China’s judicial system within a civil law system. A common law judiciary will turn to precedent to explain gaps or ambiguities in legislative law. Court decisions are interpretations of law which are later relied upon by judges in their process of applying legislative law to novel but similar facts. Contrastingly, in a civil law system, gaps in legislative law are not recognized. The role of the judiciary is to apply the law as intended, not to “interpret” laws as in common law traditions. Decisions are reduced to an application of a clear law rather than an interpretation of a law that supplements the written legislative law. In a civil law system, the concept of stare decisis does not exist. However, the SPC has a novel third responsibility: to give judicial explanations of the specific utilization of laws in the judicial process that must be carried out nationwide. This additional responsibility provides the SPC with the ability to influence legislative law application, similar to the role judicial decisions play in a common law system.

The judicial system in China will continue to strengthen in its process and application of the law.

In 1998, the government began a comprehensive internal shake-up of the judiciary resulting in the punishment or dismissal of over 4,200 judicial branch employees. Along with governmental actions legitimizing the judicial system, it is foreseeable that a growing affluent population will soon demand legal protection of their recently acquired “property” (generally, real property cannot be owned, but rather leased for long terms from the state). These forces provide for a strong judicial system pivotal in supporting China’s continued growth.

All this is great for China. But let’s be honest, students are not going to travel half-way around the world to solely study legal topics.

After classes, students will have time to visit cultural sites, go shopping, and experience a lively nightlife. The most famous sites, such as Tiananmen Square, the Forbidden City, and the Great Wall of China, are just the highlights of the school excursions. To help plan out your trip, I have discussed below some additional must see sites as well as what they famously have to offer.

After visiting Tiananmen Square and the Forbidden City, I would advise staying around the area and hiking up to the top of Jingshan Park. This park was the royal family’s personal playground, and is located across the street from the Forbidden City. At the end of the day, the sun will set behind the picturesque mountain line illuminating the Forbidden City and Beihai Park with its fleeting orange glow. The reflection off Beihai Park’s massive lake along with the cool breeze that hits the top of the Park will surely set the scene for a great moment of reflection.

Among all the beauty that night, just make sure to stick together with your group because it does get dark quickly, and the small paths in the park have limited visibility.

After shopping at the Pearl Market during a school excursion, spend the afternoon exploring the Temple of Heaven Park across the street. Not only does this park include the Temple of Heaven, but groups commonly gather in the impressively pedicured grounds to play board games such as mahjong– a popular pastime in China, play hacky sack with shuttlecocks, and duel their qins – a traditional Chinese string instrument.

During the weekend, take a day trip to LongQing Gorge, which is rumored to have inspired the floating mountains in the film “Avatar.” Here, there are several outdoor activities including riding the longest escalator in China that happens to be encapsulated by a colorful dragon and clinging to the side of the mountain, kayaking, and bungee jumping. Keep in mind that the gorge is about a one and a half hour bus ride from Beijing, so leave very early to avoid long lines and crowds. The sun will set behind the picturesque mountain line illuminating the Forbidden City…with its fleeting orange glow

The program will also include a visit to the Yashow market. Feel free to indulge in this market that has four floors selling popular clothing brands for cheap, and is topped off with a floor solely dedicated to tailors. You cannot and should not leave China without buying a tailored suit or shirt. Although the tailors’ style may be stuck in the 90s, they are very talented and just require detailed, consistent direction. A tailored French-cuff shirt can cost you $15, a two piece suit $150, and a three piece suit around $200, plus or minus 20% depending on your haggling ability. Furthermore, the more you buy, the greater the discounts and additional articles they may throw in to the purchase. Be careful – you may end up leaving with 8 suits!

There are also rumors that the Olympic Park will be closing soon due to the high maintenance costs. The Park includes the bird’s nest, water cube, and the fan. It is a beautiful large area, which lights up after sunset and is a must see while it’s still around.

Make sure to also visit the Hutongs or narrow traditional streets that provide you with a view into historical Beijing. The two most popular Hutongs are the Liulichang Hutong and the Yandai Xiejie Hutong. Liulichang is known for its traditional art stores–here is where you would get your loved ones beautifully personalized jewelry for fractions of the cost. Yandai Xiejie Hutong has more modern stores targeting the younger Beijing generation.

When visiting the latter Hutong, make sure the group you go with is interested in making one more stop. Yandai Xiejie Hutong leads into Houhai Lake, a man-made lake surrounded by bars whose vibrant lights are reflected off the water. As a foreigner, you will be hassled to enter every bar. Do not talk to any sponsor unless you are sure you want to enter their bar or they will follow you around the whole lake until you do. The best bars in this area have outdoor roof seating so you can take in the stunning sights and bustling streets that surround the tranquil lake.

There are two other nightlife locations that are a must. One is an expatriate area called Sanlitun (located in the Chaoyang District) which is next door to the Yashow market mentioned earlier. Sanlitun provides you with the comfort of English speaking bartenders with stunning views of modern Beijing.

Most of the bars in Sanlitun will be comparatively high-end, outdoor roof bars, and filled with foreigners, which for some reason mostly turn out to be Australian. The other must-see nightlife experience is located on the 80th floor in Beijing’s World Trade Center. If the lavish interior décor does not impress you, the views of Beijing will. It may be expensive relative to most of the bars you go to in Beijing, but the fantastic view and ambiance are well worth it. Sadly, it’s still comparable to your average NYC bar prices.

Lastly, your final week in Bejing may coincide with a DJ festival on the Great Wall of China.
This festival is on the grounds of the Great Wall and is an eight hour DJ festival. Most DJs will be of Chinese descent and unknown to the casual electro listener, but the headliner is usually famous - Fat Boy Slim was last summer’s closer. Although the festival might conflict with the last group dinner or may make your race to the airport the next day interesting, to hear the music and light-show play off the Great Wall is an experience that cannot be reduced to words.

All this traveling and site seeing may seem daunting but Beijing has several features that make it all possible. First, the subway fare is 25 U.S. cents to go anywhere. The system is expanding, incredibly clean, on time, and in English. Secondly, a cab’s starting fare is 5 yuan, and goes up in 50 cent increments after the first 2 minutes. Cab fare will never cost you more than $5. Lastly, Beijing is incredibly cheap. Lunch at the school cafeteria is 6 yuan or $1. An average beer, which is a 750ml bottle of Tsingtao costs 15 yuan or $3. Gifts can range from 50 to 200 yuan, or $8 to $30. You will not be spending a lot of money while in Beijing especially if you have any ability to do some haggling.

The only hurdle when traveling in China is the language. Most Chinese people are unable or too shy to speak English. Be prepared to improvise and letting matters just play out. Luckily, the era of smart phones has provided the tourist with a great tool: workable apps that display Chinese characters. Notwithstanding, you’ll find it helpful to learn a few commonly used phrases beforehand, so as to aid you in your travels.

I hope this article minimizes any fear of traveling to a truly foreign country, and encourages you to take a chance to greatly enhance your perspective on one of the fastest rising stars in the international community: China.

Lessons from Cambodia Redefine Path Toward Global Justice

By Anna Ansari '11


In the not-so-successful 2002 film adaptation of Graham Greene’s eerily prophetic and insightful novel, “The Quiet American,” a main character opines that, “They say whatever you’re looking for, you will find here. They say you come to Vietnam and you understand a lot in a few minutes.”  

I knew what I was looking for—a job and a deeper understanding of Chinese law, something about which I am passionate—when I decided to spend this semester, my last, participating in Brooklyn Law School’s study abroad exchange program at Hong Kong University. I did not, however, know or expect to encounter in these few short months, an experience that not only would be so enriched by the public international law concepts, laws and conventions that I studied at Brooklyn Law School in courses such as International Law and International Human Rights, but also would challenge, educate and provoke my thinking in such an unexpected fashion as I encountered during my February “Reading Week” break from HKU.

When I booked a round-trip ticket from Hong Kong to Saigon for 12 days, I knew that I would be exploring a country, culture and history inescapably tied to 20th century U.S. history, consciousness and sensitivity, but I did not expect to spend seven of those 12 days in neighboring Cambodia, exploring not only the spectacular temples of Angkor Wat, but also the atrocities and legacy of the Khmer Rouge—a short-lived government about which, prior to this trip, I knew very little. Pol Pot. The Killing Fields. These names were familiar to me, but did not yet hold any real deeper meaning.

I did not know, for instance, that over the course of the Khmer Rouge’s four years in power, the regime killed an estimated 2 million of its own people, out of a population of approximately 8 million, that even needing reading glasses could brand you an intellectual and condemn you to a short life of torture, eventual extermination and a place in a mass grave. I did not know that resistance to the establishment of a tribunal to bring those responsible for the crimes of the Khmer Rouge to justice in the 1980s was spearheaded by China and the United States, or that a tribunal, when finally established in 1997 in conjunction with the United Nations stagnated, only to deliver its first conviction in July 2010—the man known as “Dutch,” who ran the Tuol Sleng Prison, where between 1975 and 1979, an estimated 17,000 people were held, tortured, starved and bussed out to be killed to the Khmer Rouge’s Killing Fields, was convicted to 35 years in prison for war crimes.

Visiting Tuol Sleng Prison and the Killing Fields taught me not only historical facts of the Khmer Rouge’s regime, but also spurred me to think seriously and deeply about the importance and necessity of international criminal law and the concept of “global justice,” thoughts and notions that continued to percolate in my mind over the course of my five post-Cambodia days in Saigon.

For a number of years now, the International Law Society has sponsored a “Global Justice Fellowship,” of which I was a recipient in 2009. We at ILS distinguish this fellowship from the International Human Rights Fellowship both in name and because our Fellowship is entirely student-run and supported. However, though different in name from the Human Rights Fellowship, we do not delve into the substantive difference between “human rights” and “global justice,” and, in fact, the ILS fellowship is open to students pursing internships that fall into both categories. There is, however, a difference, and one I never understood fully, despite having been awarded the fellowship, having acted as the Fellowship Chair the following year, and as ILS Co-President this year; this “Reading Week” break has made me realize to some extent what that difference is and what “global justice” entails.

Starting in 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the formal name for the Khmer Rouge Tribunal, has sponsored a three-pronged study tour for interested citizens—first stop, Tuol Sleng Prison; second stop, the Killing Fields, and finally, the Tribunal itself. Since the tour’s initiation, over 70,000 Cambodians have participated. These are citizens who lost family and friends under the Khmer Rouge, as well as former “combatants” who participated in the atrocities of and under the direction of the Khmer Rouge. They go to see and remember, to understand and repent, to memorialize those whose lives were cut short by the Khmer Rouge, and to demonstrate their need for and belief in bringing those responsible for the death of their countrymen and the destruction of their society and homeland to justice. They go, as a former Khmer Rouge combatant quoted on a display in Tuol Sleng put it, “to prevent [them] from having such a regime again.” They go in the name of “legal accountability and justice.”

This past fall, at the close of Professor Lee’s International Law course, he asked who had begun the course believing in the importance and efficacy of public international law, and would now leave believing the opposite. It turned out that the majority of the class, myself included, would leave believing less in international law than at the outset.

After this trip to Cambodia, however, I actually feel the opposite and now believe strongly in the importance of binding international rules and laws that can and will hold legally accountable those that break them and, in doing so, provide justice to the victims and survivors left in their wake—not only because to have mechanisms can provide global justice and hopefully prevent future atrocities, but also because of the importance of providing closure and solace to the victims and survivors. Cambodia has finally begun to have such justice meted out and closure provided; Vietnam, on the other hand, has not.
I was warned by a friend not to visit the War Remnants Museum in Saigon (recently renamed as such after years of being known as the Museum of Chinese and American War Crimes), was told that it was “intensely disturbing,” but I visited the museum all the same. And, it was intensely disturbing. It was disturbing to be confronted with the Vietnamese depiction of America’s actions and legacy in Vietnam—through photo after photo of dead Vietnamese men, women and children, and photo after photo of Vietnamese disfigured by American chemical warfare.

What was most disturbing, however, was the clear lack of closure with which Vietnam and its people suffer, their inability to ever bring us to justice.  While it was the placard in Phnom Penh’s Tuol Sleng Prison pointing out that an ECCC study tour participant had recognized a family member whom they had never known what had become of from amongst the photos of inmates on display, in Saigon’s War Remnants Museum, it was the following 2009 letter to President Obama, written by an Agent Orange victim, that moved me the most—a cry for justice, a cry for assistance, a cry for closure.

President Obama!

My name is Tran Thi Hoan. I am 23 years old and was born in Duc Linh District, Binh Thuan Province, Vietnam with no legs and without a left hand. I am a second generation victim of Agent Orange. My parents were exposed to this deadly chemical, left over from the Vietnam War, while farming our land. Agent Orange has not only killed people living during the war, but has been killing several generations of their children, among whom I am one. It damages my country and other nations beyond imagination. I am writing to ask for your help in providing assistance to more than 3 million victims of Agent Orange like me in Vietnam and for the children of U.S. veterans suffering from Agent Orange in the U.S.

I have read your letter to your beloved daughters, in which you put it like this: “These are the things I want for you—to grow up in a world with no limits on your dreams and no achievements beyond your reach, and to grow into compassionate, committed women who will help build that world. And I want every child to have the same chances to learn and dream and grow and thrive that you girls have. That’s why I’ve taken our family on this great adventure.” I was deeply moved by the love you have for your daughters and the dreams you have for children of other countries, and I believe that you could have included children of Vietnam in your words. I dream that you were including innocent children slowly killed by dioxin, and their suffering. I dream you had in mind what to do to help every child to have the same changes to learn and to dream and grow and thrive like your daughters.

A few words about myself. When I was born, my parents were consumed with grief when they saw me. When I was in junior high school, I studied hard to become a doctor to help people in my hometown because they were so poor. But this dream was taken away from me. When I entered college, I was advised not to study medicine because I had no legs and only one hand. I was told not to dream about raising a family for fear that my children would be born deformed like me or even worse. From my personal story—just one among three million victims of Agent Orange—you may guess how our parents suffer. 

You are a father of two beautiful daughters, and you know how parents love their children. U.S. Vietnam veterans, sick from Agent Orange, have gotten some compensation for their illnesses, but their children have not. How do their children live a decent life the way your daughters do?

In the case of my poor country, Vietnamese veterans of the U.S. war and their children and grandchildren here have not received any justice from the U.S. courts: they refused to hear our case against the U.S. chemical companies. I know because I was one of the plaintiffs, representing millions of Agent Orange victims, in a lawsuit against 37 U.S. chemical manufacturers in U.S. Federal Court, the two richest of which are Dow and Monsanto. 

This denial of justice may have rendered void your dream for every child to have the same chances to learn and dream and grow and thrive. When I visited U.S. cities last October, I found the American people were deeply concerned about the problem of Agent Orange. Yet we are now faced with the lack of many things—sufficient medical care, vocational and physical rehabilitations, long term care, home care. The land like my family’s, which contains dioxin in the soil, has yet to be cleaned up. 

I understand that you are very busy with the urgent matters that face your country. I hope that you will consider the damage that the poison Agent Orange does to the lives of its victims with as much urgency because every life is important to the future of humanity. I hope that you, a symbol of hope not only for the United States, but also for the world, a father who loves his children dearly, and a man of humanity, will spare a little time to resolve this forgotten problem.

Thank you!

I returned to Hong Kong from Vietnam and Cambodia with a new understanding of and appreciation for public international law and global justice. This may not have been what I was necessarily “looking for” when I came here this semester, but is certainly something that I have “found here.” I am still a student, however—we all are and always will be, no matter our graduation dates and degrees—and can only hope the education I receive after graduation continues to provoke, challenge and inspire me as much as that which I have learned here and in the BLS classrooms has. As the quotation from “The Quiet American” continues, “They say you come to Vietnam and you understand a lot in a few minutes, but the rest has got to be lived.”

Spotlight On: Prof. Aaron Warshaw

By Nicolette Lotrionte '13


Patience and determination. These are the two words of advice that Professor Aaron Warshaw would offer to students looking to pursue a career in law. And judging from his successful career, it appears obvious that these are two words that Warshaw lived by.

Warshaw, a Brooklyn Law School graduate, currently teaches an International Legal Writing course to first-year students. Although his career has not always led him in the international direction, it is an area of law that he has been interested in for a long time.

As a 1L at BLS, Warshaw had only a vague understanding of what international law actually was. But that changed once he was selected for the Brooklyn Journal of International Law, where he eventually held the position of Editor-in-Chief.

One aspect of international law that Warshaw was particularly interested in dealt with conflict of law among countries and transnational issues.

“The thing that I liked most while I was on the journal,” he says, “is that international law is a very unsettled area, things are still changing.” Warshaw addressed an aspect of this in the note he wrote for the Journal of International Law.

“I wrote my note about defamation law as it relates to European Union treaties and how it relates to cross-border publication,” he said. This means “that if The Wall Street Journal publishes in Australia and it is read online by someone in Australia, do they sue for defamation in Australia or in New York?” In fact, this was a real case. Warshaw’s question was answered when the High Court in Australia held that it was permissible to sue The Wall Street Journal in Australia.

It seems that Warshaw is very happy with where his BLS education and career have taken him so far. Prior to his current position, an associate in the Labor and Employment Department at Seyfarth Shaw LLP, Warshaw worked as a law clerk in the Eastern District of New York. He says he is mostly drawn to areas of law that are “intellectually engaging,” such as international law. His work now, which revolves around employment law, appeals to him in the same way. The work is intellectually engaging, the case law is not settled, and new decisions are constantly coming down. Although his position now has very little to do with the international realm, Warshaw says that it has given him a leg-up when it comes to teaching.

“In some ways, having some distance from international law gives me a perspective for my legal writing class,” he says. “Now I can really look at the issues the students are addressing.”

Warshaw has plenty of advice for students who want to pursue a career in international law, such as to take a straightforward international law class in the fall semester of 2L year. International law is a different field with a different language and different courts. A course that provides a survey of international law is helpful.

As for law students in general, “first and foremost, make good contacts with professors or professionals within your field, because opportunities come through the relationships that you build, as much as your demonstrated ability as a student,” he adds.

China Creates Panel to Scrutinize Foreign Investments

By Kan Zhang '13

On Feb. 3, the General Office of China’s State Council issued the Circular on Establishing a Security Review System for Mergers and Acquisitions of Onshore Enterprises by Foreign Investors (the “Circular”), which just became effective on March 5.

The panel functions similarly to its U.S. counterpart, the Committee on Foreign Investment in the United States (CFIUS) under the U.S. Department of the Treasury. Unlike CFIUS, which is chaired by Secretary of the Treasury and includes representatives from 16 U.S. departments and agencies, China’s panel is jointly headed by two of its ministry-level agencies, the National Reform and Development Commission (the agency in charge of economic policies) and the Ministry of Commerce (the key regulator of foreign investment). Other ministries will be called upon for consulting purposes based on each particular transaction.

The Circular sets out the scope, content, working mechanism and procedure for merger and acquisition security review. It also provides a degree of clarity and certainty to foreign investors in cross-border acquisitions. However, as “national security” can be broadly interpreted, relevant Chinese authorities will certainly have discretion to the interpretation of some provisions and the scope of application of such provisions.

Coming under scrutiny are foreign mergers and acquisitions of domestic enterprises in certain obvious sectors such as military industry and industry related to national defense and security. The Circular also applies a concept of “actual control” in terms of foreign merger and acquisition of domestic enterprises in sectors such as major agricultural products, major energy and resources, infrastructure, transportation services, key technologies and major equipment manufacture. It is interesting to note that any foreign merger and acquisition of domestic enterprises “located near major and sensitive military facilities” is subject to review, while most of such facilities are in fact unknown to the public. Moreover, the Circular does not define a limit as to how far from military facilities it must be, allowing this provision to create much uncertainty for foreign investors as well as greater discretion in their review for the Chinese regulators.

The acquisition of actual control by foreign investors means foreign investors become the holding shareholders of or actually control a domestic enterprise after the merger and acquisition. The Circular defines “actual control” to the extent possible. It adopts a hard threshold of direct or indirect holding of 50 percent or more of equity of the target entity. Percentage of foreign ownership is calculated in aggregate. In addition, certain transactions that fall short of the 50 percent threshold but where foreign investors will obtain the actual control over the target’s business are also subject to review. Such transactions include those where foreign investors hold sufficient voting right to influence the resolutions to be adopted by the shareholders meeting or the board of directors and other circumstances where foreign investors actually control a domestic enterprise’s operational, financial, personnel, technology and other matters. Such non-exclusive list is seen as a development from previous regulations on acquisition of domestic enterprises by foreign investors. For instance, the 2006 Provisions Concerning the Acquisition of Domestic Enterprises by Foreign Investors, which is the predecessor regulation on the same subject, only uses the percentage of equity holding as a threshold. The Circular undoubtedly will be putting much stricter limitations on foreign investment.

As for how the U.S. has responded to Chinese investors, since China started expanding its offshore investment into the U.S., CFIUS has been reported to be closely scrutinized deals involving Chinese acquirers and challenged several. To name a few: Lenovo’s acquisition of IBM’s personal computer and laptop unit; state-owned China National Offshore Oil Corporation’s failed acquisition of UNOCAL (2005); Huawei abandoned its bid to acquire a 19 percent stake in 3Com after coming under politically-charged CFIUS scrutiny (2008); Northwest Nonferrous abandoned its bid to purchase Firstgold, a Nevada mining company, after CFIUS indicated that it would recommend that the President block the deal (2009); Tangshan Caofeidian Investment Corp withdrew notification of its bid for Emcore’s fiber optics division in light of CFIUS’s objections (2010); members of Congress unsuccessfully lobbied CFIUS to block Anshan Steel-Steel Development Company’s purchase of a minority stake in a reinforcing bar manufacturing plant (2010); CFIUS is currently reviewing AVIC International’s purchase of Teledyne’s general aviation piston engine business.

Coincidentally, on the same day that China’s State Council released the Circular, CFIUS reportedly proposed its recommendation that President Barack Obama block China Huawei’s $2 million acquisition of 3Leaf System assets. The impact that the Circular will have on U.S. investment in China and its effect on U.S.’s attitude towards Chinese investors remains to be seen.

Additional information can be found at: http://www.ssd.com/new_review_system_for_foreign_investor_m&a_deals_with_domestic_enterprises.

ICC To Investigate War Crimes in Libya

By Lauren Maccarone '11


On Feb. 26, the United Nations Security Council unanimously adopted Resolution 1970 referring the situation in Libya to the Prosecutor of the International Criminal Court. Since Libya is not a State Party to the Rome Statute, the referral provides the basis for ICC jurisdiction over alleged crimes committed in Libya since Feb. 15. The resolution, like Resolution 1593 on Darfur, purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver, and bars the UN from bearing any costs associated with the referral. On March 3, the Prosecutor announced that his office decided to open an investigation into alleged crimes against humanity committed in Libya.

Background of Conflict
In February of 2011, protests broke out in various parts of Libya to oppose the 41-year totalitarian rule of President Muammar el-Qaddafi. Qaddafi blamed these protests on foreign colonialist influence and attempted to quell the protesters with a violent crackdown. On Feb. 25, he allegedly ordered his security forces to begin air raids on the unarmed civilians congregating in the streets. Soon after, he reportedly conscripted mercenaries from neighboring countries such as Chad, Sudan and Niger to attack the unarmed civilians on the ground. His alleged actions and the resulting death toll led to a wave of public outcry around the world. The international community quickly responded with several actions in the United Nations, including in the Security Council.

International Response
The Feb. 25 air raids prompted the UN Human Rights Council to suspend Libya’s membership and to pass a resolution calling for an independent commission of inquiry to investigate the alleged human rights violations. The following day, the UN Security Council passed a unanimous resolution “deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators.” More importantly, it invoked its Chapter VII powers, responding to threats to international peace and security, to refer the situation in Libya from Feb. 15 to the ICC Prosecutor. This is the first time that the Security Council has unanimously referred a situation to the Court under Article 13(b) of the Court’s Rome Statute.

The United States strongly supported this referral. U.S. Ambassador Susan Rice stated in a press conference that the U.S. was “very pleased with the outcome and also with the unity of purpose that the Council has showed in acting quickly and decisively in accordance with its responsibility to protect.” Then, on March 1, the U.S. Senate passed its own resolution explicitly supporting Security Council Resolution 1970.

These actions demonstrate that the United States is willing to support the ICC where this support also bolsters its national interests. Despite the condemnation of the ICC referral by some conservative critics in the U.S., it could be a starting point for accelerating the growing relationship between the U.S. and the ICC.

Acceptance by the ICC
An Article 13(b) referral invites, but does not require, the Prosecutor to open an investigation into the country situation in question. However, on March 3, the ICC Prosecutor, Luis Moreno-Ocampo, announced the Court’s acceptance of the Security Council’s referral of the situation in Libya. Under the Rome Statute, the Prosecutor shall proceed with an investigation referred to it unless there is no reasonable basis to believe that crimes falling within ICC jurisdiction have been committed. He may conduct a formal investigation without the Pre-Trial Chamber authorization required in other circumstances. Here, a preliminary examination of the violence committed against civilians in Libya provided sufficient evidence that crimes against humanity were committed. Thus, the Prosecutor’s decided to open an investigation.

Once the Prosecutor feels he has accumulated enough evidence, he will ask the judges of the Pre-Trial Chamber to issue an arrest warrant for Qaddafi and possibly others alleged to have committed atrocity crimes. Under Article 58 of the Rome Statute, an arrest warrant is proper where the Pretrial Chamber is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court, and the arrest of the person seems necessary to ensure the person’s appearance at trial, to prevent obstruction of the proceedings, or to prevent continued commission of the crime.

Next Steps
Given their recent commission and the wide breadth of international coverage on the alleged crimes, the Prosecutor should have little difficulty meeting his burden of proof. Yet there are number of questions that still surround the case.

For one, the Prosecutor must determine whether to limit his investigations to crimes against humanity as opposed to expanding them to prepare for the inclusion of war crimes charges. When the Security Council referred the situation in Libya to the Court, the fighting between Qaddafi’s army and the rebel forces amounted only to an internal revolt. Article 8(2)(f) states that the war crimes provisions within the Rome Statute are not intended to apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence,” such as the case is here. However, the severity of the fighting has greatly increased since that time.

In fact, on March 18, the Security Council authorized military action led by Britain, France and the United States, against Qaddafi’s forces to quell their barrages against civilians. Should the conflict escalate into an internal armed conflict (known within the Rome Statute as a “conflict not of an international character”) the Prosecutor may consider additional charges such as war crimes.
Second, many doubt the Court’s ability to capture Qaddafi even after the issuance of an arrest warrant. The ICC has experienced great difficulty in arresting Omar Al-Bashir of Sudan and the fact that he is still at large years after his warrant’s issuance seriously undermines the Court’s goal to end impunity. Many are wondering, “Does Qaddafi really have anything to fear?” While it is hard to assure arrest, the Security Council’s unanimous referral of the case binds all members of the United Nations to arrest Qaddafi in the case that he is present on the state’s territory. The Prosecutor should work quickly in getting a warrant to prevent his assassination or flight into hiding, and thus increase the Court’s chances for arrest.

A final concern stems from the cost of this unforeseen investigation. The ICC has already decided on its budget for the fiscal year and there is little room for the case in Libya. The President of the Court, Judge Sang-Hyun Song, publicly confirmed that there are no budgeted funds available for the case. Worse still, is the fact that Security Council Resolution 1970 contains a reservation that prevents the UN from contributing funds to the case. As a result, the Court may ultimately need to dip into its contingency funds in order to move forward with the trial.

Conclusion
Despite the aforementioned hurdles, the referral of the situation in Libya to the Court is a positive reflection of the Court’s growing legitimacy as an international tribunal. It is important that the ICC and its supporters use this case to prove the Court’s ability to aid in fighting impunity and to bolster its global reputation.

This article by Lauren Maccarone was originally published for the American Non-Government Organizations Coalition for the International Criminal Court.