The Bridge

Around the World Party

2012-02-23T14:24:00.002-05:00

An Opportunity for the Department of Commerce

2012-02-23T14:05:00.008-05:00

By: Tyler Korff

It seems that China has won the latest round in its prolonged trade war with the U.S. The Federal Circuit issued a decision on December 19, 2011 that effectively precludes the Department of Commerce (“Commerce”) from imposing countervailing duties (“CVDs”) on non-market economies (“NMEs”). Back in October 2010, the U.S. Court of International Trade (“Trade Court”) ordered Commerce not to apply CVDs on pneumatic off-the-road tires from China due to the likelihood of double counting when both CVDs and antidumping duties (“ADs”) were imposed on the same good.[1] The Federal Circuit affirmed the Trade Court’s opinion, but for different reasons. In GPX Int’l Tire Corp., the appellate court held that Commerce could not apply CVDs on any goods from China even in cases where Commerce has not already imposed ADs.[2]
[1] GPX Int’l Tire Corp. v. United States, 715 F.Supp.2d 1337 (U.S. Ct. Int’l Trade 2010).
[2] GPX Int’l Tire Corp. v. United States, 2011 WL 6371903 (Fed. Cir. 2011).

The chief issue for the Federal Circuit was with Commerce’s NME methodology. In Georgetown Steel Corp. v. United States, the American manufacturers’ 1983 case against Czechoslovakia, Commerce determined and the Federal Circuit agreed that Commerce could not impose CVDs on NME countries.[3] This remained the status quo until 2007, when Commerce issued a memorandum stating that the department could apply CVDs on goods from China, an NME country, since the modern Chinese economy was “significantly different from the Soviet-style economies at issue in Georgetown Steel.”[4] For the last four years, then, the U.S. has essentially pretended that China is a market economy for trade purposes, and Commerce has used that determination in order to gain the upper hand in the two countries’ economic feud.
[3] Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986).
[4] Shauna Lee-Alaia and Lawrence Norton, “Countervailing Duty Investigation of Coated Free Sheet Paper from the People's Republic of China—Whether the Analytical Elements of the Georgetown Steel Opinion Are Applicable to China's Present–Day Economy” (Mar. 29, 2007), available at http://ia.ita.doc.gov/download/nme-sep-rates/prc-cfsp/china-cfs-georgetown-applicability.pdf.

Yet while courts ought to give considerable deference to Commerce’s CVD and AD determinations, Commerce itself cannot act in a way that contradicts Congressional intent. In particular, the Federal Circuit found that in passing CVD laws in 1988 and 1994, Congress legislatively ratified the position that CVDs could not be applied to NMEs; therefore, government payments “cannot be characterized as ‘subsidies’ in a non-market economy context.”[5] In the final analysis, Commerce may regret ever appealing the Trade Court’s decision, since the Federal Circuit decision is now binding on future cases (while the Trade Court order was not necessarily precedential). Absent an appeal to the Supreme Court, if Commerce hopes to reinstate its CVD policies, it needs Congress to amend the law.
[5] GPX Int’l Tire Corp. v. United States, 2011 WL 6371903, at *1 (Fed. Cir. 2011).

But perhaps the Federal Circuit decision may be a blessing in disguise. The U.S. media has reported extensively on China’s unwillingness to revalue the Yuan; indeed, if American politicians are to be believed, the controversy with China’s currency is the main reason why relations with China have hit a stumbling block. At the same time, however, these American tariffs are seen, to some, as equally unfair. And China is not alone. In 2009, the U.S. began to pursue CVD investigations against Vietnam, another NME country. If continued, use of CVDs against NMEs may threaten the integrity of the WTO system. More importantly, CVDs pose significant implications for Sino-American trade relations. In the 1980s, a cooperative Sino-American relationship was seen as America’s chief foreign policy success.

While CVDs may help American businesses stay competitive, the Federal Circuit opinion provides the perfect opportunity for Commerce to reevaluate its policies with respect to Vietnam and China.

Shifts in U.S.-China Countervailing Duty Law

2012-02-23T13:49:00.007-05:00

By: Hang Liu '13

In December 2011, the Court of Appeals for the Federal Circuit handed down its opinion in GPX International Tire Corporation v. United States (“GPX IV”), ruling that the U.S. Department of Commerce (“Commerce”) improperly imposed countervailing duties on tires imported by a group of Chinese manufacturers.[1] The Court’s decision appeared in the midst of ambiguous signals from Congress and the executive branch regarding the future of U.S.’ customs policies regarding the People’s Republic of China. While GPX IV upheld a traditional view of American countervailing duty law, the decision may be short lived. Considering America’s current political climate, the federal government may soon implement a considerable shift in its policies toward Chinese imports.

To better understand GPX IV, it is useful to explore existing law regarding China’s current classification as a non-market-economy (“NME”) by Commerce. The Tariff Act of 1930, as currently amended, provides two types of duties for imports injuring domestic industries: countervailing duties (“CVDs”) and antidumping duties (“ADs”). First, Commerce can impose countervailing duties on goods that receive “a countervailable subsidy” from the importer’s
foreign government. Second, Commerce can impose antidumping duties on goods “sold in the United States at less than [their] fair value.”[2] Antidumping duties are supposed to address actions taken by the foreign importer, while countervailing duties are designed to remedy government conduct. While countervailing duty law makes no references to NMEs, antidumping
law deals directly with the problem of exports from NME countries.[3]

Until 2007, Commerce adhered to the policy that countervailing duties were inapplicable to NMEs because subsidies do not exist in economies lacking ordinary market principles.[4] A subsidy (also known as a “bounty” or “grant”)is defined as any action that distorts or subverts the market process, resulting in a misallocation of resources and inefficient production. Due to the fact that the governments of NMEs retain centralized control over the market and extensively involve themselves in price planning, these economies are supposed to lack both a true market and freely allocated resources.[5]

Then, in 2007, Commerce re-evaluated the applicability of this policy toward China. On one hand, Commerce retained China as an NME for the purposes of antidumping law because of the Chinese government’s continued control over the economy through its state-owned enterprises, restriction of worker movement, and insulation of the Chinese currency from market forces. Yet, on the other hand, Commerce also concluded that substantial economic reforms in China now made it possible to identify and measure subsidies for the purposes of countervailing duty law.[6] It then levied both countervailing and antidumping duties against several Chinese companies importing tires into the U.S.

Commerce’s decision sparked a series of litigation. After seven Chinese importers contested the new Commerce policy, the Court of International Trade (“CIT”) consolidated their separate cases into its GPX I and GPX II decisions. The CIT held that Commerce's 2007 interpretation of countervailing duty law was “unreasonable” because of the high likelihood of “double counting” duties for NMEs.[7] The Court of Appeals, while affirming the CIT’s decision, overturned the tire
duties on different grounds; the Court ruled that Congress, in passing and then renewing the Omnibus Trade and Competitiveness Act in 1988 and 1994, had ratified Commerce’s pre-2007 policy of not applying countervailing duty laws to NME countries.[8]

In ruling on GPX IV, the Court of Appeals explicitly acknowledged recent Congressional actions signaling a shift in American policies toward Chinese imports. In 2010, the House of Representatives passed the Currency Reform for Fair Trade Act (the Act), a bill which seeks to implement punitive trade tariffs on countries that obtain an unfair competitive advantage by taking measures as currency manipulation.[9] A House committee report noted that the legislation authorized the imposition of countervailing duties for foreign governments that provide a subsidy by artificially undervaluing its currency.[10]

Commerce, in making its case in GPX IV, raised the Act as evidence of a change in Congressional attitudes toward countervailing duties in regards to China. The Federal Circuit downplayed the argument by stating that the Act lacked sufficient legal weight until the Senate votes on the bill.[11] Yet the Court’s decision recognizes the potential for a considerable shift in American countervailing duty law if the Currency Reform for Fair Trade Act is eventually passed as law. Such action would essentially reverse the Court’s ruling in GPX IV.

The current executive branch has indicated its support for the Act’s policies regarding China. In 2008, then-Senator Barack Obama supported legislation that would have also classified currency manipulation as a countervailable subsidy. Treasury Secretary Timothy Geithner, in his 2009 confirmation hearing, accused the Chinese government of undervaluing its currency to keep Chinese manufacturing costs artificially low, thus underselling American products and injuring
American manufacturing industries.[12] Additionally, the House cited Commerce’s 2007 decision to apply countervailing duties towards China as support for voting in favor of the Act in October 2011.[13]

Furthermore, as the 2012 general election approaches, GPX IV may face continued scrutiny from the executive branch. President Obama’s policy proclamations toward the Chinese economy bear watching. Some observers believe that during the 2008 Democratic primary Obama played to his labor base by downplaying free trade in advocating the renegotiation of the North American Free Trade Agreement and opposing the proliferation of regional and bilateral free trade agreements under George W. Bush.[14]

Currently, trade policy is not listed among the twenty-four priority issues on the White
House website.[15] However, as Americans continue to hear accounts of the U.S.’ trade deficit and of China’s significant holdings of American debt, Obama is likely to face questions concerning his future policies towards the Chinese economy. Presumptive Republican candidate Mitt Romney has already criticized the Obama administration’s “timid complaints” regarding Chinese currency manipulation and has vowed to impose countervailing duties on Chinese imports if elected.[16]

Therefore, despite GPX IV’s decision to overturn a recent policy shift by the Department of Commerce, the nature of American countervailing duty law, particularly with respect to the People’s Republic of China, may experience a fundamental shift. As the U.S. continues to grapple with its trading partnership with the People’s Republic of China as well as address allegations of currency manipulation by the Chinese government, it is clear that the issues raised by GPX IV are far from settled.

[1] GPX Int'l Tire Corp. v. United States, 2011 WL 6371903, 1 (Fed. Cir. Dec. 19, 2011). [hereinafter GPX IV].
[2] Id.
[3] Id.
[4] See Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986).
[5] Lauren W. Clarke, The Market-Oriented Enterprise Approach: The Best Response to the Questionable United States Trade Practices Scrutinized in GPX International Tire Corp. v. United States, 60 Cath. U. L. Rev. 809, 815-16 (2011). [hereinafter Clarke].
[6] Clarke, 821-22.
[7] See GPX Int'l Tire Corp. v. United States, 645 F. Supp. 2d 1231 (Ct. Int'l Trade 2009) [hereinafter GPX I]; GPX Int'l Tire Corp. v. United States, 715 F. Supp. 2d 1337 (Ct. Int'l Trade 2010) aff'd, 2011-1107, 2011 WL 6371903 (Fed. Cir. Dec. 19, 2011) [hereinafter GPX II].
[8] GPX IV, 1.
[9] H.R. 2378, 111th Cong. (2010).
[10] GPX IV, 7.
[11] Id.
[12] Alexis Early, Where the Rubber Meets the Road: What Chinese Tires Mean for Obama's Trade Policy, 6 Bus. L. Brief (Am. U.) 63, 66 (2010). [hereinafter Early].
[13] GPX IV, 7.
[14] Early, 63.
[15] See The White House, http://www.whitehouse.gov/issues (last visited Feb. 15, 2010) (listing civil rights, defense, education, fiscal responsibility, immigration, taxes and technology as some of the issues).
[16] See Mitt Romney, “China must respect the free-trade system,” Opinion published in the Washington Post, October 13 2011, online at .

Really, Gringo?

2011-11-28T18:34:00.008-05:00

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

2011-11-28T18:32:00.011-05:00

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

2011-11-28T18:30:00.014-05:00

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

2011-11-28T11:34:00.012-05:00

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”

2011-10-25T20:30:00.004-04:00

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

2011-10-25T20:18:00.006-04:00

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

2011-10-25T20:10:00.004-04:00

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

2011-10-25T19:29:00.012-04:00

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

2011-04-07T18:23:00.000-04:00

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

2011-04-07T18:19:00.000-04:00

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

2011-04-07T18:17:00.000-04:00

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

2011-04-07T18:15:00.000-04:00

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.

From the Editor's Desk

2011-01-29T12:21:00.001-05:00

Welcome to the online edition of The Bridge, a newsletter published by the International Law Society at Brooklyn Law School! Here you will find Brooklyn Law students writing on various topics of international law, such as human rights concerns in Burma, or child prostitution in Costa Rica.

We also like to highlight law students who have been successful in working abroad, whether it be the American embassy in Beijing or the International Criminal Tribunal in Rwanda.

Feel free to browse around and enjoy. If you have any questions or comments, please contact the editors at ilsthebridge@gmail.com.

— Written by Julie Geng '13, Editor in Chief

Tips on Getting International Law Internships

2011-01-29T12:21:00.000-05:00

We sat down with Steve Gordon, Brooklyn Law School’s Associate Director of Career Services, to discuss how law students can find meaningful work abroad in international law. The key to landing your dream job is to start early—some deadlines may be as early as mid-fall—and keep an open mind, he said.

• Start your search by stopping by the Career Services Office. Be sure to pick up “The Resource Guide to International Law” and “Selected Opportunities in International Law” handouts before you leave!

• Make sure you search for a position with a focus on international law—just because the job is abroad doesn’t mean it will involve international law.

• Highlight any international experience on your resume, including study abroad, teaching English overseas, Peace Corps or military experience.

• If your resume is lacking, try to parlay your local experience into international work. For example, if you’re working at a financial institution, try to get involved in international transactions. Always look for the international angle.

• Most internships are unpaid, so take time to research the different ways you can help fund your international law internship, such as the BLS International Human Rights Fellowship.

• Have an open mind! International law is a broad field, and there are many routes you can take within the profession.

• Most importantly, start early! Securing a visa and completing paperwork can be a lengthy process.

Can’t go abroad, but still want to snag an international law internship? Gordon says there are still plenty of great international law opportunities in the U.S., especially with the federal government in Washington D.C.. For a comprehensive list of government opportunities, check out:

• The University of Arizona Government Summer and Honors Handbook and The University of Arizona Public Policy programs Handbook. Your career advisor can provide you with the password.

• The U.S. Department of Justice Volunteer Internship Program

Other online resources:

• Use Martindale-Hubbell to research law firms with offices abroad.

— Written by assistant editors Nicolette Lotrionte ’13 and Elizabeth McKenzie ’13

A version of this article appeared in print in the December 2010 issue of the Bridge.

Burma or Myanmar: What’s in a name?

2011-01-29T00:42:00.001-05:00

One of the first issues one notices when becoming familiar with the situation in Burma is the fact that the country’s official name is cited as Myanmar. So why the two names? In fact, both names have historically been used in the Burmese language, with “Burma” being the more colloquial version and “Myanmar” being more formal. The country was called Burma under British rule and that official name was incorporated in the 1947 independence constitution. The short-lived Burmese democracy apparently saw no reason to abandon a name commonly used by its citizens. Neither did the military junta, until 1989.

That year, shortly after a major political uprising and subsequent brutal crackdown, the generals who run the country changed its official name to “the Union of Myanmar.” This rebranding has been resisted by pro-democracy advocates who see it as an effort the military to control the narrative of the country. The name Burma therefore continues to be used by opponents of the military regime and, in solidarity, by many foreign governments and media outlets.

On Oct. 21, as part of their latest image improvement campaign tied to the recent election, the junta once again changed the name of the country, along with the flag and national anthem. The new official name is “The Republic of the Union of Myanmar.” It appears unlikely, however, that this latest appellation will gain international acceptance; shortly after the election a number of foreign leaders, including President Obama, made a point of referring to the country as Burma when addressing widespread electoral fraud.

—Written by Eben Saling ’12

A version of this article appeared in print in the December 2010 issue of the Bridge.

Update from the Human Rights Committee

2011-01-29T00:40:00.006-05:00

The primary goals of the ILS Human Rights Committee this fall was to encourage more substantive discussion on current topics in the international human rights realm and participate in activities related to those issues. In order to do so, the committee implemented several mechanisms to facilitate dialogue concerning the major interests of committee members during its bi-weekly meetings, including: international criminal law, human trafficking, labor conditions, immigration/refugee law, and issues concerning women, gender, and children. Many of these topics will also be touched on in the spring semester.

The theme of the first several meetings was international justice, and we asked committee members to read Judge Richard Goldstone’s “The Future of International Criminal Justice – Evolving Accountability from Nuremberg to the International Criminal Court,” which was presented at a Penn State Law Symposium. Goldstone was the chief prosecutor during the early days of the ICTY and hence the article gives a sweeping look at international justice in the last 60 years, touching on Nuremberg, the Tokyo Trials, the formation of the ICTY and ICTR, and creation of the ICC through the ratification and implementation of the Rome Treaty. Members shared their experience working with various NGOs, tribunals, and other human rights organizations, as well as presented their opinions on whether they agreed with Goldstone’s premises of the progress of international justice. The committee also organized a film outing and discussed impressions of Nuremberg, the Schulberg/Waletzky restoration of the historic 1946 U.S. documentary. The NYC Film Forum’s screening marked the first time the documentary’s remarkable footage—from the Nuremberg trials as well as Allied Force’s liberation of the concentration camps—had been shown in the United States.

In order to foster communication outside of its meetings, the committee also created its own blog entitled “BLS Human Rights Committee” at http://blshumanrights.blogspot.com to 1) promote relevant events related to the law and human rights taking place at BLS and in the greater NYC area; 2) circulate articles/reports/websites that are of interest; and 3) provide a discussion forum on these topics.

The current focus of the committee is the planning of events for next spring. Already there are several ideas in the works, including roundtable discussions on the 2010 Senate immigration reform bill and Universal Periodic Review (UPR) process of domestic human rights implementation as well as a potential panel focusing on international justice. Because the committee was able to accomplish a variety of undertakings during this fall semester, it is now in a position to achieve even more this coming spring. Please be on the lookout and don’t forget to visit the new blog!

— Written by Laura A. Gretz and Brigitte Hamadey, Co-Chairs of the ILS Human Rights Committee

A version of this article appeared in print in the December 2010 issue of the Bridge.

Human Rights Abuses in Afghanistan Rooted in Political, Religious Culture

2011-01-29T00:36:00.002-05:00

By Lauren Maccarone '11

Rarely a day goes by that we don’t hear about the vast number of human rights abuses occurring in Afghanistan. Advocates, both on the ground and here in the United States, are working tirelessly to gather information on the seemingly endless abuses and to report them in the media. Sadly, this is the only tactic available under the current circumstances.

Human rights abuses in Afghanistan are extremely difficult to overcome because they are deeply rooted in the country’s political and religious culture. Taliban rulers perpetrate much of the violence. Despite the U.S. and NATO military forces’ efforts to remove these leaders, they continue to control many of the Afghan territories and to obtain high-level governmental positions. Civilians are responsible for the remaining abuses. Individuals often torture their own families and neighbors as punishment for non-compliance with notoriously rigid Sharia customs. These customs, like Taliban rulers, seem to be woven into Afghanistan’s history in a way that cannot be undone.

But what if human rights advocates had the opportunity to lessen the influence of Sharia extremism and Taliban rule? The Afghan transition movement may give them the chance they have been waiting for.

The current plan is for NATO to orchestrate the transition by systematically replacing its own forces with trained Afghan forces, while the U.S. and Afghan governments negotiate reconciliation with the Taliban.

This reconciliation entails the reintegration of Taliban leaders into Afghan society. The process will require detailed discussions on land ownership and control, governmental and military leadership and the many laws that are implicated. One can already predict proposals for land cessation, for constitutional amendments, and for the reinstatement or election of new political officials and judges. In short, the stage is set for a total makeover from the bottom up.

The transition will undoubtedly produce a new way of life for Afghan civilians. The fear is that those running the show will miss out on opportunities to make the human rights improvements that Afghans deserve. Will NATO or the U.S. ask that there be new legislation implemented to protect women’s rights? Will they create a vetting process to ensure that Taliban extremists are not given leadership positions in their newly formed society?

On the contrary, these issues are often swept to the wayside for the sake of a peaceful agreement. Human rights advocates must insert themselves into the transition discussions on behalf of civilians to ensure that the latter’s interests are represented.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Interview with Kyaw Thein Kha, Irrawaddy Reporter in Burma

2011-01-29T00:35:00.001-05:00

By Brigitte Hamadey '12

On Nov. 13, Ms. Aung San Suu Kyi, Burma’s pro-democracy leader, was released after seven years of isolation in her lakeside home. The military government has kept her confined under house arrest for 15 of the past 20 years. A few days after her recent release, Suu Kyi filed papers with the country’s High Court asking to have her party, the National League for Democracy, reinstated. Only time will tell what type of impact her new presence will have in the country, but, in the meantime, I had the rare opportunity to ask Mr. Kyaw Thein Kha, a reporter for the Irrawaddy Online Magazine, a few questions regarding these recent developments:

1) What are the Burmese community’s sentiments in response to Ms. Aung San Suu Kyi’s release?
Burmese people who have been in hunger of human rights and democracy for decades see that Aung San Suu Kyi’s release is good for the Burmese military regime to start the national reconciliation process by holding tri-talks between Aung San Suu Kyi, the army leaders and the ethnic leaders. But, we wonder if the stubborn military leaders would want to do that.

2) What factors do you believe led to her release?
I believe that the military leader Senior General Than Shwe released Suu Kyi because of the following possible points:
(1) Than Shwe might think that Suu Kyi will not be able to intervene in the election that was held on 7th November 2010 prior to Suu Kyi’s release on 13th November 2010.
(2) On the other side, the UN, U.S., E.U. and ASEAN had reportedly called on the military regime to release Suu Kyi from the house arrest.
(3) The release of Suu Kyi will help the military leaders to show their faces bravely to the international community in dignity. (But, we still have over 2,000 political prisoners that need to be released unconditionally.)
(4) Although Than Shwe knows that the release of Suu Kyi will change the fear of the public into courage to fight against them (military group), he decided to release her because of the three conditions mentioned above.

3) What significance does her release mean for the future of Burma?
Her release leads to national reconciliation between Burmese military regime and ethnic groups, including ethnic armed groups that didn’t accept the regime’s Border Guard Force (BGF) plan.

4) How likely is it that the National League for Democracy (NLD) will gain official recognition in Burma?
On [Nov. 18], NLD’s lawyers went to the supreme court trial in Nay Pyidaw regarding to official recognition of party’s existence in the country, but no result has been announced by the court.

5) In the past, Ms. Suu Kyi has been released and then detained again. Do you believe that her freedom will last?
That’s the point we (all of Suu Kyi’s supporters) are really concerned about at this moment. It’s unpredictable what the military junta will do. The government-supported thugs and other bad street [persons] can harm her anytime. We all have learned about that from Depayin assassination attempt on Suu Kyi in May 30, 2003.

6) Other general reactions or thoughts on this issue?
We believe that only Suu Kyi is a true leader who can solve the problems of Burma, such as human rights abuses across the country by the military regime and conflicts between ethnic armed groups and military groups. So, tri-talks are really needed to lead the national reconciliation. On [Nov. 14], one day after she [was] released, Suu Kyi said that national reconciliation is [the] priority among what she has to do after [her release].

Kyaw Thein Kha is a Burmese reporter for the Irrawaddy Online Magazine and is based in Thailand. He has a background in economics and engineering and has served as a Burmese/English translator, including for Al Jazeera. Thein Kha will be studying Documentary Film Making at the New York Film Academy beginning in 2011.

A version of this article appeared in print in the December 2010 issue of the Bridge.

The Failure of International Law in Latin America

2011-01-29T00:32:00.002-05:00

By Catherine Frizell '12

I was in San José, Costa Rica for about three minutes before I was completely lost. A bemused local later told me that the city government had paid to have the signs ripped down a few years back, in anticipation of new ones. The signage budget item failed to gain funding, so alas, San José has no street signs—and with dim street lamps, the city is a labyrinth for tourists at midnight. With their travel lust rapidly fading and their panic setting in, my three companions blurted out halfhearted directions as I drove up the calles and down the avenidas surrounding the Centro Mercado. I slowed down when a pool of red light broke the monotony of gray nighttime tones. From afar, it looked as though five or six women were perched outside of a party, perhaps smoking cigarettes. As the car drew nearer, two of them disappeared into a nearby house, while the four others remained. The women weren’t women; they were girls—probably about 13 or 14 years old, dressed in short skirts, high heels, painted with dark lipstick. There was no party—I looked to my friends for verification, to confirm that what I was seeing was real. Their eyes were as wide as mine were—these little girls were prostitutes.

The international legal community responded to the problem of child trafficking and prostitution with the near-universal endorsement and ratification of the Convention on the Rights of the Child in 1990. With 191 participatory nations, the CRC is the most widely ratified human rights treaty in history. It is designed to set out the “rights that must be realized for children to develop their full potential.” At the time of its signing, it was praised as the most thorough and all-inclusive of all human rights treaties. Indeed, the CRC set out to protect children from abduction, sale and trafficking, from any other form of exploitation, and from cruel and inhumane treatment. In fact, Article 19 specifically protects against offenses of child prostitution, while Article 34 explicitly protects children from sexual abuse and sexual exploitation.

The international law response did not stop with the CRC. Since the CRC does not enable the United Nations to arrest child sex trafficking offenders, the UN endorsed the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, a supplement to the UN Convention Against Transnational Organized Crime. In 2002, the UN Committee on the Rights of the Child issued an optional protocol in the CRC which signatory nations had the option of ratifying—The Optional Protocol on the sale of children, child prostitution and child pornography. Additionally, the UN adopted the 2004 version of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially women and children, which sought to standardize the international approach to the establishment of domestic criminal offenses and prosecuting trafficking in persons cases. Notably, the protocol is the first global legally binding instrument with an agreed-upon definition for human trafficking.

Despite collaborative international efforts, child prostitution and trafficking remain a serious problem in Latin America. There, an estimated 500,000 children work as sex workers, while there are an estimated 3 million children working as sex workers worldwide. In Costa Rica, sex tourism has flourished. The Costa Rican government estimates that 5 percent of the one million Westerners traveling to Costa Rica annually are pedophile sex tourists who have targeted Costa Rican girls and boys for sexual abuse. In recent years, there has been an uptick in Costa Rican sex tourism after recent sex tourism crackdowns in Asia. The little girls I saw working as sex workers in San José are not alone. Approximately 5,000 children in San José, Costa Rica live and work as prostitutes.

Economic and political upheaval in Latin America have created an environment where child exploitation thrives. The prostitution rings are typically organized involving the complicity of nightclubs, motels, hotels, taxicab drivers—and parents who view their children as a means of making an income. Often parents sell their children, rationalizing that the children may go on to work as a domestic laborer for a wealthy family, who can provide a better life for them. Other families send their children directly into prostitution if there is no other “legitimate” alternative work. Sometimes children voluntarily engage in prostitution for personal money. They may live on the street, or may be self-employed or work in gangs, forced to provide for themselves economically. This is especially true for girls and women, who are not afforded the same educational and economic opportunities available to male counterparts. As the economy worsens, girls and women become more financially vulnerable, and more likely to become financially dependent on men.

Despite the lack of funding and difficulty in enforcement, in 1998, both governmental and nongovernmental organizations developed another body in order to curtail the influx of sex tourism in Costa Rica: the National Action Plan against the Commercial Sexual Exploitation of Children (NAPCSEC). The NAPCSEC seeks to monitor child exploitation and raise awareness, but its framework, void of timelines, lacks the sense of urgency needed to eradicate the problem of child exploitation. However, it did play a role in overhauling the Costa Rican criminal code. It was not until 2002 that those who sexually exploited children could be prosecuted at all. In fact, until that time, the judiciary would drop charges of ‘corruption of minors’ when the accused adult proved that another person had already had sex with the child, reasoning that the child was already corrupt.

Latin American customary law also acts as a roadblock to eradicating child prostitution and sex tourism. While the CRC established the definition of a child as any human being below the age of 18, Latin American countries have yet to reach consensus regarding the age of consent. Even though Latin American countries agree that child prostitution and child sex tourism are immoral practices that demand an international response, the age of consent differs from country to country, and state to state, ranging from ages 13 to 18. Not only do different age of consent laws endanger girls’ well-being, they also make domestic enforcement trickier. The CRC simply set the preferred age of consent at 18, but this suggestion does not preclude other countries from establishing a lower standard. Some scholars argue that far-reaching extraterritorial legislation that aims at prosecuting American citizens who engage in child exploitation with a minor in another country would go beyond the boundaries of the Constitution and interfere with international relationships. On the other hand, some argue that aggressively prosecuting Americans who feed the demand for the Latin American child sexploitation and prostitution industry would be in the best interest of Latin American children, and should be pursued regardless of legal and political repercussions.

While prosecuting Americans for exploiting Latin American children and providing the demand that the industry thrives might seem like the right thing to do, it would not actually ensure Latin American children have more rights. Under the human rights framework adopted by the CRC, judicial analysis does not necessarily consider the “best interest of the child” when prosecuting offenders in their own country. Though Article 3 of the CRC sets forth that the “best interests of the child” should be the primary consideration in all matters affecting children, the human rights framework treats children as independent of adults. At least one scholar cites this as a contributing factor to CRC’s failure: domestic courts may be developing jurisprudence that does not ensure children’s rights. Specifically, a human rights framework treats children as adults, overlooking that children need to be protected by adults. Jurisprudence that truly uses a “best interest of the child analysis” should hold interested adults legally obligated for the protection of children and their best interests within the signatory nation.

Clearly, the international community needs to take further action to eradicate sexual exploitation of Latin American children. Though the human rights approach has successfully established child trafficking as an international crime, Latin American courts may need use a different framework in how to incorporate the “best interest of the child” standard in their jurisprudence. Since recent policies have been successful in eradicating child prostitution in Asia, the international community should employ similar tactics in its relations with Latin America. In addition, policies alleviating the plight of the poor, and supporting education and gender equality will allow girls and young women opportunities to support themselves and their families by working “legitimate” jobs.

Twenty years ago, the drafters of the CRC sought to develop a document delineating the rights that must be realized for children to develop their full potential. However, the international community has failed to provide Latin American courts with adequate guidance as to how the “best interest of the child” standard should be interpreted. In neglecting to do so, the international community is effectively messaging that the children engaging in prostitution have reached their apex. The lackluster approach to enforcing the CRC and subsequent agreements disregards the spirit of the “best interest of the child” standard set forth in Article 3 of the CRC, and leaves the children of San José reflective of the streets they walk on—nameless and forgotten.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Refugee Protection and the One-Year Asylum Deadline

2011-01-29T00:31:00.002-05:00

By Laura A. Gretz '12

Over the course of this semester, I have been interning with Human Rights first in their Refugee Protection Program as their sole legal intern. What drew me to HRF was the opportunity to learn more about immigration law while simultaneously using my knowledge of Spanish to interview potential asylum candidates. I was interested in interacting more with clients after having no client contact while working this summer in the prosecution office at the UN International Criminal Tribunal for Rwanda in Tanzania.

Unlike BLS’ Safe Harbor Clinic, HRF does not directly represent asylum candidates but performs initial intake interviews to assess the strength of asylum claims through reporting on the candidate’s personal history, fear of return to their home country, and the corresponding country’s conditions. I have written several of these intake reports, and once they are compiled, HRF’s senior counsel decides whether the information warrants assigning the candidate’s claim to one of the firms on HRF’s referral list that provides pro bono assistance to asylum seekers. HRF reasons that abstaining from direct representation of asylum seekers allows it to ultimately help more people as well as engage in more policy advocacy.

One of the policy issues most significant to HRF at present is the one-year deadline associated with asylum application, which requires asylum seekers to file within one year of arriving in the U.S. I attended an HRF briefing on a report written by several of its staff attorneys analyzing and discussing many of the pitfalls associated with this aspect of the asylum law, which has led asylum seekers to increasingly file for “withholding of removal” in place of asylum. “Withholding of removal” originated as an alternative for immigrants with asylum-barring criminal convictions who still had genuine reasons for fearing deportation.

The disadvantage of “withholding” is that recipients are permanently precluded from ever receiving permanent residency or citizenship and cannot leave the U.S. temporarily or they will be denied re-entry. This raises serious equitable concern over the fact that immigrants with no criminal convictions who have failed to meet the one-year deadline—very likely due to post-traumatic stress or simple survival reasons—are forced nonetheless to resort to filing for “withholding.” HRF is optimistic that immigration judges and attorneys are voicing their concern over the disadvantages of the one-year deadline and that its policy advocacy on Capitol Hill will help influence abrogation of the requirement.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Election in Burma: Reprieve or Rerun?

2011-01-29T00:26:00.002-05:00

By Eben Saling '12

Events in Burma have featured regularly in the news over the last few months. Along with landmark elections, the release of Nobel laureate Aung San Suu Kyi from house arrest has guaranteed heavy coverage. To the casual observer it may appear that the notoriously guarded and oppressive military junta that controls the country has suddenly changed their course. To anyone familiar with the country’s history, skepticism is the more likely response.

The elections of Nov. 7 were Burma’s first in 20 years. The junta, in power since a 1962 coup, has presented the elections as a bold step toward democracy. Many opposition members, international organizations, and foreign governments, however, argue that both the structure and results of the election were rigged to protect military power. In the inaugural parliament, the military-aligned Union Solidarity and Development Party (USDP) controls more than 75 percent of the seats.

Suu Kyi, the leader of the opposition National League for Democracy (NLD) party, has been subject to two decades of near-continuous confinement. Her most recent release from house arrest, on Nov. 13, occurred just before the official results of the vote were known. Widespread and positive public reaction to her freedom has proven that she continues to hold considerable power and moral authority inside Burma, despite the fact that she was barred from standing in the elections. Her role in the political arena, and the military’s reaction to it, are being watched carefully as an indicator of the potential for reform.

These recent developments have provided many with hope that Burma is finally moving away from its long history as a pariah state with one of the worst human rights records in the world. However, the ultimate effect of the elections, and particularly whether they will create any latitude for significant reform, remains to be seen. Suu Kyi has been granted freedom before, only to be placed back into detention as soon as she becomes a political liability to the ruling generals. If the past actions of the junta are any indication, the election and amnesty may prove nothing more than a public relations ploy meant to distract from the continuing human rights crises within the country.

Background
The reality remains that Burma is one of the least developed and most corrupt countries in the world. The ruling military has systematically committed a long list of human rights abuses in its struggle to maintain power including arbitrary arrest and detention, extrajudicial killings, forced labor, recruitment of child soldiers, and torture.

Despite the brutal tactics used by the regime to stifle opposition and consolidate control, Burma remains an inefficiently governed, fragmented state. Although rich in natural resources and arable farmland, it is one of the poorest nations in Asia due in large part to the mismanagement and corruption of the ruling regime. International aid organizations are allowed only limited access to the country, exacerbating the existing food shortages and public health crises. Burma has more annual deaths from malaria than any other Southeast Asian country and has suffered HIV and tuberculosis epidemics worsened by a lack of health services for much of the population.

Conditions are particularly dire in the rural areas of the country, where the majority of the population reside. Many outlying areas are partially controlled by ethnic minority groups who are frequently targeted by the military. Some of these groups manage a degree of autonomy and an uneasy peace with the junta. Others live as internally displaced peoples, on the run from military raids and the threat of forced labor. Hundreds of thousands of refugees have fled into neighboring countries.

In May 2008, Cyclone Nargis struck the southwestern region of the country, killing as many as 200,000 people and destroying homes and vital crops. Always fearful of outside influence, the government blocked most international aid groups from operating inside the country. The military’s own response to the disaster was so ineffective and plagued with graft that some international organizations called on the International Criminal Court to investigate for possible crimes against humanity.

Although the government was apparently unable to provide basic services to citizens who were living without food or shelter, it was eager to continue with a planned constitutional referendum held just days after the disaster. Both the timing and integrity of the referendum were widely criticized, as was the new constitution. As part of the so-called “roadmap to democracy,” it established a new election process and “democratic” parliamentary structure that guarantees the military continued power.

While the junta has made democratic overtures in the past, it has always returned to its practices of political oppression and totalitarian rule. Elections held in 1990 resulted in a landslide victory for the opposition National League for Democracy (NLD) party and were promptly nullified. Many of the Burmese citizens who worked with the NLD during that period now number among the thousands of Burmese political prisoners, or have been forced to flee the country in the years since the elections.

Suu Kyi is one such citizen. The daughter of Aung San, the martyred architect of Burma’s independence from Britain, she led the NLD to its 1990 election victory despite being placed under house arrest in 1989. Awarded the Nobel Peace Prize in 1991 for her “non-violent struggle for democracy and human rights,” Suu Kyi’s detention continued until 1995 when she was released conditionally, with restrictions placed on internal and external travel.

She was arrested again in 2000 for two years and, following a failed assassination attempt in 2003 by government-paid thugs, was placed back into detention until her most recent release. Suu Kyi continues to inspire the Burmese democracy movement despite her harrowing record of detention. Her ordeal serves as a prime example of the military’s duplicitous attempts to lessen international pressure while continuing its totalitarian practices.

Recent Events
Many believe that the latest election and amnesty is yet another episode in this pattern of feigned reform. In recent years, Burma has increased its economic ties with China, Thailand, India, and a number of other states. The lessening of international pressure and economic sanctions could mean a huge influx of investment, benefiting the generals and their allies.

The junta has tried its best to assert the fairness of the recent elections. State-run media such as the New Light of Myanmar and TV Myanmar International provided a range of stories on the elections, from the mundane, “Maj-Gen Tin Ngwe of Ministry of Defence and wife cast votes,” to the misleading “Diplomats, journalists observe casting votes in Haka and Falam.” In reality, the junta refused entry to international election observers and, while there were a few foreign diplomats present (notably, a group from North Korea), they did not provide serve any significant role in monitoring the elections.

Reports from independent Burmese observers, however, indicated widespread voter intimidation. Bribery and other abuses—such as the military taking advantage of advance voting by forcing whole units of soldiers and their families to vote in blocs—were also alleged. This, in addition to the fact that the new constitution guarantees 25 percent of parliamentary seats to military representatives, limits the activities of political opposition groups, and dictates that the president of the country, who is not elected, must be a current or former member of the military.

For these reasons, many civil society groups and political organizations, including Suu Kyi’s, boycotted the elections as part of a larger strategy of actively opposing the regime’s roadmap.

This boycott strategy was roundly supported by the exiled pro-democracy movement according to Jenny Hedstrom, a Swedish consultant currently on the Thai-Burma border who stated, “The exile groups don’t trust the military at all, and strongly believe the election was solely a charade to make the Burmese junta look legitimate in international eyes.”

That charade seems to have failed. Many in the international community, including President Barack Obama and British Prime Minister David Cameron have joined pro-democracy and human rights groups in condemning the elections as a “sham” designed to mislead the international community and add an air of legitimacy to the regime. Groups such as Amnesty International and Human Rights Watch (HRW) have been highly critical of the junta’s roadmap at every turn.

Considering the structure and administration of the elections, the final results announced on Nov. 18 surprised no one. Pro-regime parties won 946 of the 1,154 seats up for election, not counting the 25 percent of seats already guaranteed to the military. Opposition parties won less than 9 percent of the total seats.

During the period between the election and the announcement of the final results, the junta released Suu Kyi from house arrest. Additionally, her youngest son has finally been allowed to visit her, after having been denied a visa to Burma for 10 years. While pro-democracy groups are overjoyed at Suu Kyi’s release, they are also cautious in their optimism, worrying that she will eventually be taken back into custody. Caution does not seem to be the foremost concern of Suu Kyi who, since her release, has continued to speak out for non-violent revolution in Burma, saying “I think of revolution as significant change. I say this because we are in need of significant change,” while criticizing the military’s illusory approach to reform.

What Now?
One change that has taken hold recently in Burma is the foundation of numerous civil society groups working for social reform within the country. Made up of private citizens and businessmen, and sometimes associated with the ruling regime, the groups first became visible as self-help apparatuses after Cyclone Nargis and are now working on a number of domestic issues. Representatives of some groups argue that the recent election, although biased, signifies growing room for civil action.

Mindful of the reality on the ground, and with the hope that they will face fewer restrictions in the post-election environment, several of these groups are prepared to continue testing the boundaries of freedom inside the country. A senior consultant working with a group based in Rangoon posited that “as long as one does not touch direct politics, one is pretty much free to do what one wants, in particular in the fields of education or humanitarian aid.”

The pro-democracy movement is skeptical, however, and continues to place their faith in the international community and international law. They have most recently lobbied United Nations member states to support the UN human rights monitor to Burma, Tomás Quintana, in his call for a commission of inquiry to investigate the widely documented human rights abuses and war crimes committed by the regime. HRW has also been a strong supporter of the commission of inquiry, which could be seen as a possible road to reconciliation between the junta, pro-democracy activists and ethnic minority groups.

These ethnic groups, who maintain control in many border areas, have begun to organize their forces for the possibility of renewed confrontation with the regime. Mindful of the crackdowns that have occurred after past elections, they feel it is necessary to be prepared. There are reports that high-level meetings have taken place in Thailand during the last few weeks concerning strategic cooperation between several of these groups.

Regardless of the strategic intentions behind recent events, the fact remains that there is a long and difficult road to traverse before Burma can celebrate the result of a truly democratic election. Suu Kyi has, since her release, stated a willingness to work with all actors who are prepared to enter a real dialogue about the democratic future of Burma. Short of international imposition or active rebellion, we can only hope that there are actors in the military regime with the same willingness.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Evaluating the International Criminal Court

2011-01-29T00:23:00.001-05:00

By Lauren Maccarone '11

Many victims of war crimes, from all corners of the world, view the International Criminal Court (ICC) as their only hope of stopping perpetrators and obtaining justice. Most Americans, however, remain ignorant of the existence of the ICC, much less its role in and importance to international justice.
For the last eight months, I have served as a legal intern to the Coalition for the International Criminal Court (CICC). The CICC serves as the uniting force for over 2,000 non-governmental organizations worldwide that support the Court and its goals. During my time there, I researched and drafted memos on various ICC issues and met with legal advisors from CICC constituent member organizations, ICC member states, and the United Nations to discuss those issues. I truly loved every minute of my experience.

By far the most amazing part of the internship was the two weeks that I spent working with the CICC in Kampala, Uganda at the Inaugural ICC Review Conference. Originally scheduled by States Parties (those nations who have signed the ICC’s underlying treaty, known as the Rome Statute) to discuss and pass the “Crime of Aggression,” it ultimately turned into so much more.

First, the conference was attended by far more than the now 111 States Parties. Specifically, ICC officials, prosecutors and staff from other criminal tribunals, high-level UN officials, representatives from non-state parties (such as the United States), academic experts from around the world, and most importantly, war crimes victims, also attended.

Second, the conference was extended an entire week so that those present could engage in a thorough evaluation (dubbed “stocktaking”) of the Court’s work thus far. As a result, the conference not only culminated in a Rome Statute amendment on the “crime of aggression,” but also in a working plan for how the ICC could develop and improve in the future.

The knowledge and experience that I gained from working with these individuals on revolutionary international criminal laws will prove invaluable for my career going forward. I was the most impressed by the overwhelming amount of dedication and enthusiasm shown for the Court. The poorest African nations were alongside the richest of Europe, negotiating into the early hours of the morning on what seemed like impossible compromises. Victims of the Lord’s Resistance Army, the conflict in the Democratic Republic of Congo, and the Darfur genocide risked their lives and spent months of pay to travel to the Conference simply to reiterate the Court’s importance in their lives. I was shocked, and since I am an American, who can blame me?

Unfortunately, few Americans know what the ICC is, let alone support it. This is primarily due to the fact that the U.S. has not yet ratified the Rome Statute and thus, is not an ICC State Party. America’s reluctance to sign the Rome Statute stems from distrust in the Court’s use of universal jurisdiction, which allows any country to prosecute any perpetrator, regardless of his or her nationality, of crimes that are recognized as illegal by all nations under customary international law. For example, the ICC may prosecute any individual who commits the specific crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.

This does not mean, however, the United States supports impunity for these crimes. On the contrary, the U.S. delegation to Kampala was very vocal about its intention to cooperate with the Court in combating them. But is this enough?

The Court, while fragile, is progressing onto the international scene at a rapidly increasing speed and at least 111 countries are already on board. As I observed, academics, UN officials, civil society, and most importantly, the victims of the world’s most heinous crimes all see the Court as a promising future solution. At the very least, it is time for Americans to get more involved. The rest of the world is moving ahead with its support for the Court, with or without us.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Righting Wrongs: The International Criminal Tribunal for Rwanda

2011-01-29T00:21:00.001-05:00

By Hanna Morrill '12

There is no doubt that the International Criminal Tribunal for Rwanda (ICTR) continues to play an important role in the development of international humanitarian law. ICTR, which was established in 1995, was at the beginning of its 16th year when I arrived there at the end of this past May to start my summer internship. I spent two and a half months living and working in Arusha, Tanzania.
Working in Trial Chamber III, I was assigned to the case of Jean-Baptiste Gatete (ICTR-00-61), a single-accused. His trial had been completed at the beginning of the year and we were awaiting the submission of the final briefs from both the prosecution and defense teams. As the only intern on the case, I performed duties that ranged from researching precedent with regard to admissibility of witness testimony post-trial to preparing points for observation while in Rwanda. Site-visits in Rwanda were delayed until July after the submission of briefs, due to the prevalance of discrepancies in witness testimony. The delay prompted both parties to attempt to add more testimony to the case file in order to bolster their arguments.

Much of my time was spent summarizing and determining the credibility of witness testimony. It was quite harrowing to read horrifying descriptions about their family, friends, and neighbors being pursued and slaughtered. It was even harder to then step back and take a critical look at someone’s traumatizing experience to determine whether or not they were telling the truth. But it is not as simple as asking for the truth as to whether they saw a friend killed; it is about whether their testimony changed from the initial prosecution or defense interview to now include charges against the accused. Discrepancy in witness testimony is a significant problem at the ICTR and it is no wonder, after 16 years, memories still fail regardless of how traumatic the experience may have been. Besides unreliable memory, sometimes the reasons they have for testifying change. It is imperative to verify that when a witness testifies that the accused, in this case Gatete, stopped by and incentivized the militia to kill thousands, it was actually Gatete that they saw. When a witness failed to mention an accused’s name in the initial intake years before, it is vital to look at the details of the testimony to see if others corroborate this sighting.

Over the course of the summer, I attended a few days of trial and observed two judgments being passed down. Both Dominique Ntawukulilyayo (ICTR-2005-82) and Yussuf Munyakazi (ICTR-97-36A) were found guilty of genocide. It was frustrating bearing witness to the moment when Munyakazi, who the court found liable for the deaths of over five thousand people, was only sentenced to 25 years in prison, six of which had already passed as he awaited judgment. It is somewhat unfathomable that sentences for such horrible crimes can be so low. Meanwhile, during the summer, the ICTR was also faced with a new challenge when Joseph Nzirorera, one in a joint-accused trial, passed away before the trial’s conclusion. This was the first time that a party in a joint-accused case had died before the end of trial.

It was gratifying to work for and be a part of the ICTR. Exposure to the daily challenges made it possible to see how many obstacles international humanitarian law faces. At the same time, my experience with the ICTR also gave me a greater appreciation for ICTR’s work and contribution to international criminal law, given that the smallest problems can become major hurdles. Despite the criticism that the tribunal has been slow and inadequate, it is undeniable that as a result of this, justice has been delivered to many of the major perpetrators of some of the worst crimes in history.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Living the Dream: Working in the U.S. Embassy in Beijing

2011-01-29T00:10:00.001-05:00

By Anna Ansari '11

Fourteen years ago, when I was a 15-year-old student from Michigan studying in Beijing, I used to walk past the U.S. Embassy and wonder who was lucky and accomplished enough to work within the walls of that compound; this summer, I became one of those people. I came to Brooklyn Law School not because I wanted to study law, but because of my decade-plus engagement with and study of China. I wanted to—and still want to—study Chinese law and to practice in China. But when I began law school, I was unsure of how this desire would manifest itself in a legal curriculum and career. Last fall, as a 2L, I enrolled in Prof. Claire Kelly’s course on International Trade Law and loved it. During the spring of 2010, I took International Trade and Customs and, again, became enamored with it. I had found the link between China and law: trade and customs. It was with this knowledge, this final realization of how to bridge these two interests, that I applied for and ultimately accepted an internship at the U.S. Embassy in Beijing, working for the U.S. Department of Commerce. Rather than elaborate on how the internship affected me personally and professionally, I choose instead to share with you a glimpse of my daily in my life in Beijing, with the hope that seeing such a glimpse encourages other interested students to take the chance, or the leap, to work abroad during their summer.

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7:30 a.m.: I have pushed snooze on my alarm multiple times, but this time the ayi, the housemaid, knocks on my door and proceeds to walk in to see if I’m awake. I grudgingly get out of bed and head to the bathroom of the three-bedroom house I am staying in—a bathroom that consists of a toilet, a shower nozzle on the wall and a drain on the floor.

8:15 a.m.: After a 10-minute walk, I find myself at the corner of Beijing’s Yongkang Hutong and Andingmennei Daijie. The skies are gray with smog and the air heavy with heat and humidity; it sticks to the silk lining of my suit. I wait at the corner for a cab that will cost me close to nothing for 30 minutes before getting in and directing the driver, in beijinghua, to take me to the U.S. Embassy.

9:00 a.m.: The Embassy guards, provided to the U.S. government by the Chinese government, smile as I flash my yellow security badge, allowing me through the gates of the new embassy complex. As I proceed further, I walk through the metal detectors and set them off, without any indication from the monitoring guards that it matters. It never gets old: walking under that gate, setting off the alarm and simply being allowed to pass on through.

10:00 a.m.: After checking in with my bosses, I sit down to work. My morning work varies. One day is spent looking at Chinese development plans and analyzing potential subsidy issues for Import Administration and another spent organizing a golf trade show to encourage U.S. enterprises to invest in China as part of the National Export Initiative for the Foreign Commercial Service.

1:00 p.m.: My afternoons are as equally varied as my mornings. On some days, I conducted research on subsidies and export initiatives while others were spent at the offices of American law firms, assisting the head of commerce in advising firms on how their clients might best break into the Chinese market. My time was also spent meeting with American legal professionals about the state of the rule of law in China. On one occasion, I represented the Department of Commerce in a meeting with Carolyn Lamm, the head of the American Bar Association, briefing her on the state of U.S. law firms in China and their access to the Chinese market. In another instance, I had the opportunity to speak with the U.S. Ambassador to China about the development of the rule of law in China.

5:30 p.m.: My day ends as I walk out of the embassy, passing the Marines exercising in the lawn. I break into a sweat the moment I step outside the confines of the cool, air-conditioned building into the hot and heavy Beijing summer air. I travel to the corner of Dongfengdong Lu and hail a cab, knowing that not only have I made myself proud by giving my best to my day’s work but also that I have become one of those people I wondered about as a teenager, someone who has been granted the privilege of working for the government of the United States of America in China, even if it is only as an intern. I smile as I get into my taxi, and look forward to the Beijing evening that lies ahead of me.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Search for Stable Territory: Interning in Ecuador

2011-01-29T00:08:00.002-05:00

By Gillian Cassell-Stiga '11

When I landed in Quito, I was more uncertain about what to expect from my summer internship at International Rights Advocates (IRAdvocates) than how to adjust to life in Ecuador for three months. I had worked in South America before, but accepted the internship after just a single phone interview with my supervising attorney. IRAdvocates is the successor to the litigation arm of the International Labor Rights Fund and was formed in an effort to hold corporations and governments accountable for human rights violations worldwide through the use of innovative legal mechanisms. The organization devotes a large percentage of its caseload to claims brought in U.S. federal courts by foreign plaintiffs under the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act. The statute allows for federal jurisdiction over foreign human rights violations by U.S. corporations. In many cases, there is no other basis for jurisdiction in U.S. courts, which are generally pro-plaintiff and apply more stringent human rights standards than foreign courts. Federal courts in the U.S. also have jurisdiction over the more significant assets of U.S. corporations and are in a position to provide greater relief to victims in foreign countries where assets may be insufficient to meet claims.

Once settled in Quito, I began working at the offices of Conrad & Scherer LLP. Through a strategic partnership, the firm serves as the office for IRAdvocate’s sole attorney in South America. I was excited by the prospect of working on human rights litigation with the abundant resources of a private firm. A number of our cases dealt with environmental contamination and related injuries to human health. In addition, we handled suits brought on behalf of workers, community dissenters and their families, all of whom had experienced violent abuse at the hands of paramilitaries hired by corporations as “security” on development projects. In preparation for litigation, I conducted research on uncommon and fascinating legal issues including forum non-conveniens, spoliation of evidence and the procedures for deposing persons imprisoned in Colombia. Most of my time was dedicated to researching and drafting the complaint for a massive contamination case, but I also reviewed client files and interviews with minor plaintiffs from a poor Andean village and investigated the bleak prognoses of their high-level exposure. The tragic histories of these permanently disabled children helped me to understand the incredible relief that even a small settlement in their favor would provide.

But winning these cases is an uphill battle, and a recent ruling by the U.S. Court of Appeals for the Second Circuit could present a significant roadblock to bringing ATS claims. In its Sept. 17th ruling in Kiobel v. Royal Dutch Petroleum Co., the appellate court held that ATS liability does not extend to corporate defendants. Interpreting the scope of ATS liability as governed by customary international law, the court held that “because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS.” The Second Circuit ruling directly contradicts the Eleventh Circuit, which previously recognized the possibility of corporate ATS liability in Romero v. Drummond (2008). In Romero, plaintiffs alleged that corporate executives hired paramilitaries to torture and assassinate labor union leaders. While the court granted summary judgment and dismissed the claims, finding insufficient evidence of a relationship between the executives and paramilitary actors, it held that ATS provided jurisdiction over corporate defendants. It will now be up to the Supreme Court to address the clear circuit split on the issue of corporate liability, and they may do so rather soon by granting a conditional cross-petition from Presbybterian Church of Sudan v. Talisman Energy. Should the court side with the Second Circuit, another obstacle will be thrown in the way of those trying to hold U.S. corporations accountable for human rights violations abroad.

While in Quito, I prepared for a meeting in which we would advise plaintiffs to accept settlement in one of our cases. We expected there to be some resistance, as the offered amount fell short of the inflated expectations that many of our clients held regarding what could be gained from litigation. Sadly, the recent Second Circuit decision will only further impair IRAdvocate’s ability to secure such settlements and it is unclear how far the decision will roll back accountability for corporations operating abroad. But regardless of the uncertainty ahead, organizations like IRAdvocates are still working on creative solutions to uphold liability for companies and even during my last week in Quito, my supervising attorney was preparing to leave for interviews with plaintiffs for a developing case in Peru.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Spotlight: A Semester Abroad in Hong Kong, China

2011-01-29T00:03:00.001-05:00

By Adam Gibbons '12

Two Americans, two Frenchmen, a Canadian, and a Chilean walk into a bar. It sounds like the opening line of a joke, but at the University of Hong Kong, it’s the composition of people living in my flat, a veritable United Nations in the world of student housing. The Law Faculty at HKU is similarly international, with professors hailing from across Europe, Asia, and the Americas. While English is the medium of instruction, cross-culture education is an important and valuable component of the curriculum. The university’s international focus is also reflected in its course selection, as it offers courses ranging from Law of International Finance to International Environmental Law, among other international specialties. HKU also organizes a number of lecture series featuring high profile speakers; for example, the school is currently slated to welcome Lord David Edmond Neuberger, the second most senior judge in England, who will be speaking on the role of equity in modern jurisprudence. Prof. Lynn A. Stout, from UCLA School of Law, is also scheduled to lead a seminar on the common law rules regulating derivatives. In addition to receiving a great legal education for the semester, living in Hong Kong is a truly amazing experience. What Hong Kong lacks in area, it makes up for in character. From chicken feet dim sum to McDonald’s—of where there seem to be more per capita than any place I have experienced—and world-class museums to enviable beaches, Hong Kong is a great place to live and explore. Bottom line is, if you are interested in gaining an international perspective in your legal education, and have a great time doing it, you should consider doing an exchange at HKU.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Combating Human Trafficking in Bangkok

2011-01-28T23:55:00.004-05:00

By Brigitte Hamadey '12

Two planes and a 20-hour commute landed me in Bangkok, Thailand on May 29 this summer. I was about to begin a three-month internship at the United Nations Inter-Agency Project on Human Trafficking (UNIAP), where I hoped to become a veritable expert on trafficking.

I arrived in Bangkok on the last day of curfew and witnessed the ashes of political turmoil between Thai “red shirt” demonstrators and the government—an issue that, while subsided, was never fully resolved. The clashes claimed dozens of lives and injured over a thousand people.

In the weeks following the violence, an atmosphere of uncertainty plagued the city. Most Thais preferred not to discuss the political situation. Those that did confessed that they never imagined such events could take place on their doorsteps, especially since Thailand has been historically (and appropriately) dubbed the “land of smiles”—a reputation earned from its peaceful culture and society. It is a society where its citizens proudly stand at attention when the national anthem plays on loud speakers twice a day in the capitol, and where its citizens offer unwavering deference and devotion to its king.

This tone colored the backdrop to my summer at UNIAP, a project that was established in 2000 and seeks to coordinate responses to human trafficking in the Greater Mekong Subregion. During a time when everyday politics rested on extremely rocky terrain, the internship proved to be a rewarding challenge to refocus attention toward the issue of human trafficking, a crime that is often overlooked and loaded with misconceptions.

Human trafficking is the third most profitable criminal industry in the world. Its clandestine nature and fluctuating patterns, however, make it exceptionally difficult to monitor. Most people I spoke to equate human trafficking with women and the sex trade. While the sex trade comprises a large part of the industry, trafficking in persons also occurs in the form of debt bondage, labor exploitation and domestic servitude; for example, an emerging concern is the trafficking of men onto fishing boats at sea.

While tackling an independent project on cross border cooperation, I was able to meet with NGOs and agencies of the UN to determine which government efforts were successful in fighting against such examples of human trafficking. Governments are eager to collaborate against this serious crime for various reasons, including sincere concern, preservation of public reputation and a desire to make larger strides than the next country.

However, a major impediment to success against trafficking in persons is implementation. Decisions that are made at the ministerial level are often not executed by local authorities. During my fieldwork interviews, I discovered that some local authorities were not even aware of government agreements on human trafficking that dictated some of their daily duties. Infrastructure, communication, resources and willingness are often to blame for these shortcomings. But, regardless of the reasons why, it is evident that trickle-down diplomacy is not the most effective means of battling human trafficking.

This uphill struggle requires tremendous dedication by NGOs and international organizations, in addition to government actors. Without improved implementation and prosecutions in this field of law, progress will most likely remain stagnant. Furthermore, the role of actors such as UNIAP remains invariably important in eradicating the very grave and prevalent international crime of human trafficking.

A version of this article appeared in print in the October 2010 issue of the Bridge.