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.