Tag Archive | "United States"

Critical Analysis: The U.S. Should Suspend Adoptions from China

China, like the U.S., has a website that is dedicated to finding missing and exploited children called, “Baby Come Home.” Unlike the U.S., a large percentage of those children have probably been kidnapped for adoption by unsuspecting American parents. Since China opened its doors to international adoption in 1991, over 83,000 Chinese children have received American parents, the largest number worldwide.[1]

In 2006, the Chinese police uncovered six Hunan orphanages that had paid kidnappers anywhere from $400 to $538 for each child acquired. The operation had been going on for four years, so at least a thousand children had been stolen from their birth families and sent to the orphanages for international adoption. The children were usually taken from another province in China and moved to Hunan to avoid detection. It would be naïve to assume that these problems are all in the past. In June of 2012, the Chinese police arrested 76 suspects for infant abductions acquired for resale in the Yunnan province. The infants went for as high as $1,582.

Parents hold on to hope of finding their missing children. Image Source: AP

Parents hold on to hope of finding their missing children. Image Source: AP

In 2010, parents of missing children protested in Beijing about the lack of investigation by the Chinese police. China claims that only 10,000 of its children are abducted each year; however, the State Department has conceded that the numbers may be as high as 20,000 annually. Every year, approximately 30,000 to 60,000 missing children are reported to Chinese police. A child is usually taken from migrant workers because of the parents’ lack of clout with police.

Once an orphanage decides to put a child up for international adoption, it must publish an ad in the local newspaper to notify potential claimants about the lost child. Since most of the kidnapped children are routed from their homes to other provinces, it is unlikely that the local paper of the orphanage would inform searching parents of their children’s whereabouts. Sixty days after the post, the child is available for adoption to the US.

The media has often portrayed China as a land full of abandoned, healthy baby girls, but the current lack of supply and the subsequent need to refill that supply has been glossed over. In 2007, China admitted that it “lacked available babies to meet the spike in demand.” In 1991, the one-child policy (“policy”) may have contributed to the surplus of female infants in Chinese orphanages but oversupply is no longer a problem. Abortions and other forms of birth control are readily available in China. The policy has been effective at reducing China’s population from 5.81 children per family in 1970 to an average of 2.31 in 1990.[2] At 2.31, the population will no longer grow but simply replace the current generation. Moreover, with China’s increasing economic wealth, families are able to pay the penalties for having more than one child if the province strictly enforces the policy.

In an informal survey conducted by Stuy, 227 out of 259 Chinese orphanages claimed that they did not have any healthy infants available for domestic adoption even though the children were conveniently available for Americans. American parents must pay the orphanage a fee of $3,000 to $5,000 for each child adopted. Assuming the minimum fee of $3,000, almost $252 million has been transferred from the U.S. to China in exchange for children since 1991.

In the U.S., the birth parents’ rights to a child tend to supercede the adoptive parents’, even if the child has been with the adoptive parents for years. However, when it comes to international adoptions, the U.S. does not give the same amount of deference to Chinese parents’ rights to their children. As a ratifying country to the Hague Convention, the U.S. should attempt to uphold the principles of the Convention even if the treaty is not self-executing. The U.S. should suspend adoptions from China because the practice is feeding into the kidnapping of children and corruption within the country. The “best interests of the children” are not being taken into account when encouraging adoptions from China. China is more than capable of absorbing any healthy, abandoned children within the country. U.S. suspension of adoptions from China would force the country to take kidnappings more seriously, especially with the amount of Chinese parents that have lost children.

Helen Lee is a 3L at the University of Denver and a staff editor on the Denver Journal of International Law and Policy



[1] See, Elizabeth Bartholet, Int’l Adoption: Thoughts on the Human Rights Issues, 13 Buff. Hum. Rts. L. Rev. 151, app. B (2007). See also, Significant Source Countries of International Adoptions (Totals of IR-3, IR-4, IH-3, and IH-4 Immigrant Visas Issued): Fiscal Years 2003-2012, U.S. Department of State, http://travel.state.gov/visa/statistics/ivstats/ivstats_4581.html

[2] Sharon K. Hom, Female Infanticide in China: The Human Rights Specter & Thoughts Towards (An) Other Vision, 23 Colum. Hum. Rts. L. Rev. 249, 266 n.59 (1992).

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Will the United States Play a Role in Prosecuting Pirate “Kingpins?”

Somalia has no trouble producing pirates. Between a central government that controls little beyond the capitol city of Mogadishu, an utter lack of economic opportunity for young men, and a 3,025 mile long coastline with access to the world’s busiest shipping corridors, for every Somali pirate captured at sea, there are many more waiting to take his place. Accordingly, one of the most promising means to put an end to this global menace is the prosecution and detention of the financiers of pirate action groups – those benefitting most from lawlessness in the Indian Ocean but never actually setting foot on a boat.

Mohammad Saaili Shibin (AP Image)

The Eastern District of Virginia and the Fourth Circuit Court of Appeals are in the process of hearing two separate cases that, taken together, could decide whether or not the United States of America will have any role in the prosecution of these so-called “kingpins” of piracy.

One case, United States v. Shibin, is just beginning the trial phase and is the United States first attempt to prosecute a high level facilitator of piracy. The case concerns Mohammad Saaili Shibin’s role in the hijackings of the M/V Marida Marguerite and the S/V Quest. In both attacks, Shibin’s role was that of translator and hostage negotiator. Shibin was paid between $30,000 and $50,000 for his role in the M/V Marida Marguerite attack but was paid nothing in for his role in the S/V Quest, as all hostages were killed before a ransom could be negotiated. Shibin confessed to his role in both hijackings to American authorities.

At issue is, inter alia, whether Shibin can be charged with Piracy under 18 U.S.C. § 1651, which outlaws “piracy as defined by the law of nations” and carries with it a mandatory life sentence.

Because Judge Robert G. Doumar denied the defendant’s motion to suppress his confessions, it will be difficult for Mr. Shibin to argue that he did not participate in the hijackings in the manner alleged. Instead, his case will rise and fall on the way the Fourth Circuit settles a split on the legal question of whether “piracy as defined by the law of nations” is an evolving or a static concept.

This legal question comes to the Fourth Circuit in the context of a split within the Eastern District of Virginia on two cases with essentially the same set of facts. In both United States v. Said and United States v. Hasan, the defendants set out to plunder a merchant vessel and fired upon what they believed to be such a vessel. In both cases, the would-be pirates were actually firing upon a United States Naval vessel.

In Said, the trial court held that § 1651 should be interpreted in light of the nineteenth century definition of piracy, which included only “robbery at sea.” Because the defendants in Said only fired upon a ship and never actually stole anything, their acts did not rise to the level of piracy.

The Hasan trial court, on the other hand, found that “the ‘law of nations’ connotes a changing body of law,” and that Congress meant to keep pace with those changes as they relate to maritime piracy when they drafted § 1651. The court went on to find that the contemporary definition of general piracy under customary international law is embodied in the High Seas Convention and UNCLOS,1 both of which define piracy as:

(A) (1) any illegal act of violence or detention, or any act of depredation; (2) committed for private ends; (3) on the high seas or a place outside the jurisdiction of any state; (4) by the crew or the passengers of a private ship or a private aircraft; (5) and directed against another ship or aircraft, or against persons or property on board such ship or aircraft; or

(B) (1) any act of voluntary participation in the operation of a ship or an aircraft; (2) with knowledge of the facts making it a pirate ship; or

(C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B).

The cases of United States v. Shibin and United States v. Hasan are therefore inexorably tied to one another. If the Fourth Circuit overrules the Hasan trial court and holds that, for the purposes of § 1651, piracy only includes armed robbery at sea, none of the defendants in Hasan, Said, and Shibin are guilty of a crime under that statute. If it affirms the Hasan trial court’s holding that that the definition of piracy under the law of nations has expanded to include the definition embodied in UNCLOS and the High Seas Convention the result will almost certainly be the opposite. The defendants in Hasan and Said would be guilty of piracy resulting from acts of violence on the high seas, and Mohammad Saaili Shibin would be guilty of intentionally facilitating piracy. Though Shibin, as a translator and hostage negotiator, would be considered a mid-level pirate at best, the same legal reasoning that applies to him will apply to higher level facilitators who “incit[e] or . . . intentionally facilitat[e]” piracy but do not themselves commit robbery at sea.

An interpretation of § 1651 as embodying an evolving definition of piracy would make the United States an excellent venue to prosecute the financiers and facilitators of piracy, as the level of due process afforded to the defendants would be unassailable and the mandatory life sentence imposed by § 1651 would be a strong deterrent. Prosecuting these “kingpins” is, apart from solving Somalia’s broader governance problems, the surest way to put an end to maritime piracy in the Indian Ocean and Arabian Seas. Hopefully the American judicial system can adapt to this modern realities of maritime piracy.

  1. Actually, this conceptualization of piracy was first announced in a 1932 study on the international law of piracy conducted by Harvard University and later incorporated into the Law of the Sea Treaty in 1958 and reproduced in UNCLOS in 1982.

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You want to shoot our drones down now, Iran?

Occasionally alarming drones stories cross my desk. Up until this morning, this one ranked as #1 most alarming: “‘Flesh-eating robot’ is actually a vegetarian, say inventors.”

In an attempt to reassure the reader, the inventors add this gem of a quote: “The … Energetically Autonomous Tactical Robot – known as Eatr for short – does indeed power its “biomass engine” by digesting organic material, but that it is not intended to chomp its way through battlefields of fallen soldiers.” That is just great.  Eatr is not intended to devour humans, but as it gobbles up a hedgerow to sate its appetite it obviously may unintentionally scoop up a human or two in the process.

Energetically Autonomous Tactical Robot

So the Eatr article sat comfortably at number 1 for many weeks until this morning: “US draws up plans for nuclear drones.”  The Guardian article states that “American scientists have drawn up plans for a new generation of nuclear-powered drones capable of flying over remote regions of the world for months on end without re-fuelling.”  Remote regions? What, are we going to start flying drones over Western Sahara?

Most of our drones are deployed in Iraq, Pakistan and Yemen.  By my count a fair number of folks live there. And these drones crash “a lot” says Chris Coles of Drone Wars UK.  Do we really want to further infuriate inhabitants of these countries by flying nuclear materials over them?

The stated appeal of nuclearizing drones is to enhance their ability to fly for long periods of time without refueling.  But one wonders whether a second motivation is to create a huge disincentive for countries like Iran in shooting down a drone like they did last December.

 

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News Post: Int’l Spat in the Airline Industry

At the end of 2011 the largest airline interest group in the United States, Airlines for America (A4A), formerly known as the Air Transport Association (ATA), sued the U.S. Export-Import Bank (Ex-Im) over an agreement to guarantee $3.4 billion in loans for Air India.  The loan guarantee supports the sale of 30 Boeing Aircraft to Air India, including 27 new Boeing 787 Dreamliners.  While the A4A premised the lawsuit on the grounds that in granting the guarantee Ex-Im violated administrative procedure, some experts believe the move is merely political posturing.  The A4A is trying to take advantage of the current unpopularity of government policies and can be perceived as “corporate welfare” in hopes of tax dollars being kept at home and spent to support the airline industry.

The A4A claims that by acting as guarantor on these loans U.S. government is subsidizing foreign airlines, putting U.S.-based carriers at a competitive disadvantage.  Specifically, the A4A members contend that they are unable to access comparable financing terms, and thus pay more when purchasing the same airplanes.  The A4A further argues that these loan guarantees have caused U.S.-based carriers to lose significant market-share to foreign competitors.  The A4A continues to assert that the involvement of the Ex-Im Bank in aircraft financing shows that the U.S. is more concerned with the success of their largest aircraft manufacturer, Boeing, than they are of the health of the airline industry.

This lawsuit is the newest move by the A4A in their quest to dismantle the use Ex-Im financing for the export of airplanes.  The A4A advanced the same arguments during the negotiation among members of the Organisation for Economic Cooperation and Development (OECD) of the 2010 Aircraft Sector Understanding regarding export credits.  The OECD members implemented a number of changes to appease the A4A, including doubling the interest rates of export credit -backed loans.  Yet, apparently, these changes were not sufficient in the eyes of the A4A.

While it is certainly true that U.S.-based carriers have been suffering in recent years, it is difficult to calculate how much of their woes are traceable to the U.S. government providing ECA support to foreign airlines.  It is important to understand that U.S. is not the only government providing export credit support for its domestic aircraft manufacturers.  Boeing’s competitors – Airbus of the EU, Embraer of Brazil, and Bombardier of Canada – all receive similar support from their governments.  In fact, these foreign governments provide a much greater volume of export credit support for their exports than the U.S. government.  In reality, the complaints of the A4A are more traceable to the fact that U.S.-based carriers are not eligible to receive export credit support due to limitations imposed by the Aircraft Sector Understanding agreement.

Boeing 787 Dreamliner

Winning this lawsuit will not provide any direct benefit to the U.S. airlines – they will not become privy to improved financing terms through export credit support.  At most, a victory will deprive some of the U.S. airline’s competitors from accessing export credit support.  It will also prevent airlines in nations with questionable credit ratings from securing export credit support and hamper the ability of Boeing to compete in the international marketplace. This lawsuit will not stop Airbus, Embraer, and Bombardier from receiving export credit support from their governments.  If Boeing is prevented from making this sale, Air India would likely turn to Airbus to fulfill its needs taking advantage of export credit support from the EU.  Air India would not be flying Boeing airplanes, but the U.S. carriers would be no better off.

Recent developments indicate that the A4A’s attempt to gain political and popular support may be in trouble.  Recently, President Obama met with the President and CEO of Boeing, Mr. James McNerney, and the CEO of Commercial Airplanes, Mr. Jim Albaugh, and pledged his support for the continued use of Ex-Im guarantees to support the export of Boeing aircraft.  Moreover, many major U.S. airlines and A4A members have declined to become party to the lawsuit, including United Air Lines Inc., Continental Airlines Inc., American Airlines Inc., Atlas Air Inc., Federal Express Corp. and United Parcel Service Inc.  While the specific reasons for the absence of these major airlines has not yet been released publicly, it may be that these airlines believe weakening Boeing will have a negative impact on the U.S. aviation industry and the U.S. economy as a whole.

 

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News Post: Hackers intercept US-UK hacking call

Anonymous Mask

On Friday, the hacking group Anonymous posted on YouTube a recording of a confidential conversation between the FBI and London’s Metropolitan Police. Anonymous also released a copy of an email sent to the invited participant of the conference call. The email, sent January 13, contained a single code to be used by participants to gain access to the call. Along with the FBI and Metropolitan Police, members of agencies in Ireland, France, the Netherlands, Germany, and Sweden also received the email invitation.

An official from the FBI informed the press that Anonymous had not hacked any bureau system, but had probably accessed the email account of one of the call invitees. The FBI is currently carrying out a criminal investigation of the matter.

During the 16-minute-long call, which is said to have occurred on January 17 of this year, investigators from the FBI and Metropolitan Police discussed the cases of Ryan Clear and Jake Davis, two British teens who have been arrested and are charged with hacking. Both teens are wanted in the U.S.. The detectives also discussed several suspected hackers, whose names were bleeped from the recording by Anonymous. One British official referred to a hacking suspect as “a 15 year-old kid who’s basically just doing this all for attention and is a bit of an idiot.”

Since 2010 there has been an ongoing international criminal investigation into the group Anonymous. That year the group attacked Master Card, PayPal, and other websites that stopped collecting money for the organization WikiLeaks. Investigations are also underway into Lutzec, Antisec, and other hacking groups suspected of hacking the Central Intelligence Agency, Britain’s Serious Organized Crime Agency, Japan’s Sony Corporation, and Mexican government sites.

Anonymous, whose members don white Guy Fawkes masks for public demonstrations and leave the image on websites they hack, accuse the organizations they attack as having abandoned justice, freedom, and democracy. The group includes members from the US, UK, Ireland, and Germany. Many of the suspected hackers are young people and teenagers.

The group has also been linked to attacks on the Justice department; the Church of Scientology; the music industry; and Neal Puckett and Haytham Faraj, the lawyers who represented Sergeant Wutench in the Haditha case.

Following Friday’s posting of the FBI-Metropolitan police phone conversation, Anonymous attacked a Boston police website and took over a site belonging to Greece’s justice ministry.

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Iranian President Mahmoud Ahmadinejad

News Post: EU and US Impose Further Sanctions on Iran

By: Kaitlin Fox

Iranian President Mahmoud Ahmadinejad

Mahmoud Ahmadinejad with nuclear scientists

The European Union (EU) and the United States took further action on Monday to curb Iran’s nuclear program.  The EU agreed to impose a phased ban on oil purchases from Iran while the United States expanded its sanctions on Iran to include the countries’ third largest bank, Bank Tajarat.  Iranian Government Officials reacted by reiterating their threat to close the Straight of Hormuz, in which twenty percent of the world’s oil passes.  It is unclear whether the EU and U.S. actions will prove effective.  Some speculate that Iran will simply turn to alternative markets while others sense that the sanctions will cause major damage to the Iranian economy.  Either way, recent events are certain to escalate tensions in the region.

The EU’s phased ban on oil purchases does not permit EU member states to enter into new contracts for Iranian oil.  However, countries that have existing contracts will have until July 1 to end those agreements.  The EU’s decision is meant to “force a shift in policy and avert the risk of military strikes against Tehran.”  The U.S.’s sanction against Bank Tejarat is poised to further restrict Iran’s access to the international financial market.  The Treasury, under the Secretary for Terrorism, David Cohen, stated that, “At a time when banks around the world are cutting off Iran and its currency is depreciating rapidly, today’s action against Bank Tejarat strikes at one of Iran’s few remaining access points to the international financial system.”   Thus far, Iran has had little regard for its international obligations, and both U.S. and EU officials hope that these moves will increase their cost of defiance.

The EU’s action represents a shift in policy, as the EU has been reluctant to impose an embargo on Iranian oil imports. The U.S. stopped importing oil from Iran years ago where as EU member states, including France, Italy, Greece and Spain, currently import approximately 600,000 barrels of oil per day from Iran..  The EU’s shift came after the International Atomic Energy Agency reported that Iran was moving toward nuclear capability this fall.  The EU’s timeline to enforce its embargo coincides with the U.S. six-month timeframe, during which President Obama will need to decide whether to pursue sanctions on countries that import Iranian oil.    The effectiveness of recent action is unclear. Jamie Webster, a Middle East oil analyst at PFC Energy stated that the sanction could merely cause Iran to shift its customers and deliver more to Eastern markets.  What is clear, however, is that a drop in oil revenue would have a significant negative impact on an already weak Iranian economy.

Iran’s reaction to the EU and U.S. sanctions was defiant and almost skeptical.  Officials in Tehran insisted that the EU needed Iranian oil more than Iran needed its business.  Intelligence Minister Heydar Moslehi stated that, “The West’s ineffective sanctions against the Islamic state are not a threat to us. They are opportunities and have already brought lots of benefits to the country.”  The particular benefits he refers to are undefined and other officials in the region fear grave consequences of Iran’s hard-line approach.  Saudi Arabia’s ambassador to Britian, Prince Mohammad Bin Nawaf, expressed his concern that Iran’s threat to block the Straight of Hormuz would have grave consequences on the region and would undoubtedly escalate the entire situation to the detriment of Iranian citizens.  http://www.reuters.com/article/2012/01/24/us-iran-idUSTRE80N0YB20120124  If Iran’s attitude remains unchanged, the situation will certainly escalate as evidenced by the United States sailing an aircraft carrier through the straight, accompanied by British and French warships on Sunday.  The United States has asserted that, “it would not tolerate the closure of the world’s most important oil shipping gateway.” http://www.reuters.com/article/2012/01/24/us-iran-idUSTRE80N0YB20120124

Amidst this turmoil, it remains in controversy: do sanctions actually work?  Sanctions are appealing to governments like the U.S. and the EU.  In theory, sanctions force policy by blocking money from flowing in and out of a country, and thus forcing the sanctioned government to give in to political pressure.  On the surface, this seems like a much better option than forcing the issue through military action whilst risking American lives.  However, it is arguable whether sanctions do more harm to the citizens of the sanctioned country than to the governments they attempt to influence.  In this case, Iranian citizens already suffer from a weak economy and an oppressive government and it is likely that these sanctions will enhance these problems by further devaluing the currency and increasing oil prices.  The goal of these sanctions is to persuade the Iranian government to halt its nuclear program; but with the imminent risk of further stirring tension in the region and without any guarantee of success, there is the possibility that sanctions may do more harm than good.

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Senator Gary Hart

Sen. Gary Hart Wants a New “Grand Strategy” for the U.S.

Senator Gary Hart

Senator Gary Hart

On Saturday, November 5th former United States Senator Gary Hart spoke at the 44th Annual Sutton Colloquium in International Law.  Hart’s talk, entitled “Strategy, Collective Security, and the Global Commons” focused on the need for a new “grand strategy” in tackling U.S. foreign security threats and global economic concerns.

Hart began by painting the scene in history: the Cold War ended over 20 years ago, yet NATO has yet to define a twenty-first century mission. Hart said that during the Cold War, it was sufficient for the U.S. policy maker to “merely react” to foreign events as they arose, taking protectionist measures such as tightening borders.  But in the last decade, the United States has been met with a wave of new realities that call for a major reformation of national security policy.

These “new realities” are both military an economic.  First, nation-state wars are in decline.  The events of September 11, 2001 forced the U.S. military to recognize non-state actors and engage in irregular, unconventional warfare.  Second, the economy of the United States has fundamentally changed over the past decade.  Hart pointed out that information has replaced manufacturing as the economic base of the nation.  “Globalization and information are eroding the sovereignty of nation states,“ he said.

In light of these new economic and military realities, Hart said that a unilateral approach to foreign security and international economic interests is “no longer possible.” He emphasized that new global threats cannot be adequately addressed by one military or one nation alone.   In crafting a new grand strategy on national security and foreign relations, Hart provided three guiding principles: (1) economic innovation, (2) networked sovereignty, and (3) integrated security.

First, Hart discussed a need for investing public funds and private capital in science, research, and education.  He said that the U.S. will only be able maintain its global position over time through creativity and economic innovation, and that such measures cannot be financed with borrowed money.

Second, Hart discussed the idea of networked sovereignty, emphasizing the need to work with other nations to identify and fight common threats before those threats become toxic.  He suggested networking public health services through common databases to quarantine viral pandemics, and working with other countries to create an enforcement mechanism for an international treaty on green house gas reduction.

Finally, Hart discussed the creation of an integrated security network through which member states could work together to confine local conflicts.  To exemplify how an integrated security network could operate, Hart discussed the creation of a zone of international interest in the Persian Gulf, where importing nations could work together to suppress conflict in the region and ensure a continuous supply of oil.

Despite the optimistic message of the talk, audience members expressed concern at Hart’s lack of specifics. Amid the recession and national debt crisis, investment in research and education seems unlikely and impractical.  It also seems unlikely that Department of Defense, faced with massive budget cuts, is capable of spearheading the development of the globally networked security programs Hart so adamantly discussed.  Hart admitted that he didn’t have all the answers but said that the U.S. needs to keep “trying new things” until it makes affirmative progress on these issues.

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Barack Obama & the Arab Spring

Long-Term International and US Foreign Policy Implications of the Arab Spring

Panalists Dr. Paul Williams, a Professor at American University, Lt. Col. Rachel VanLandingham of the United States Air Force, and Dr. Robert Hazan, a Professor at Metropolitan State College of Denver discussed the international and U.S. policy implications of the Arab Spring in a late afternoon panel of the Sutton Colloquium.  Dr. Williams started off the discussion with remarks about the U.N Security Council Resolution 1973 (“Resolution 1973”) that allowed for a no-fly zone over Lybia and authorized all necessary measures to protect civilians.  Dr. Williams compared Resolution 1973 to previous unsatisfactory action taken in Bosnia, Darfur and Rwanda.  Unlike previous humanitarian intervention efforts, Resolution 1973 could serve as a clear legal blueprint for future humanitarian intervention.

Barack Obama & the Arab Spring

Barack Obama & the Arab Spring

Lt. Col. VanLandingham noted that Resolution 1973 strengthened the view that abuses in one country can affect global security and underscored the willingness of states to intervene to protect civilians.  She also stated that although Resolution 1973 was not a “reigning vindication” of the Responsibility to Protect Doctrine (“R2P”), it brought the doctrine closer to a binding legal norm.  Dr. Hazan stressed the importance of the U.S. and other like-minded nations being part of the humanitarian movement.  However, he also cautioned that now is the time for states to engage in active discussions regard humanitarian intervention.  Given the current state of the global economy states may find it more difficult to provide humanitarian aid in the future.

This cautionary language begs the question: how should a state balance the needs of its own citizens with the Responsibility to Protect and humanitarian aid and intervention.  As mentioned by Dr. Hazan, as the economic state of the Eurozone worsens and the U.S. economy continues in its state of instability, international humanitarian aid may take a backseat to domestic concerns.  By way of example, several U.S. polls found that a majority of Americans favor cutting foreign aid over other spending cuts.  It should be noted, however, that the percentage of the budget that is spent on foreign aid is miniscule in comparison to the expenditures such as healthcare and defense.

Resolution 1973 arguably brought R2P closer to a binding legal norm, however, R2P is a narrow doctrine limited to mass atrocities and implemented multi-laterally, i.e. via a Security Council Resolution.  In its international sense, R2P focuses on the responsibility of States to halt and prevent “mass atrocity crimes” (war crimes, crimes against humanity, ethnic cleansing and crimes against humanity).  If the situation in a state does not rise to the level of a mass atrocity, assisting States may not be as likely to intervene absent a Security Council Resolution or other political pressure.  States, however, should be cautious about withholding humanitarian aid in light of the notion that, as noted by Lt. Col. VanLandingham, abuses in one country can certainly impact global security.  Regardless of whether a state’s citizens are put in immediate danger, it should not sit idly by while abuses are committed in a foreign state.

Resolution 1973 can hopefully serve as a blueprint for future action.  As President Obama stated, “working in Libya with friends and allies, we`ve demonstrated what collective action can achieve in the 21st century.” A brutal dictator was removed from power without putting any U.S. troops on the ground.  Resolution 1973 should serve as a model for future intervention, however, the international community should be weary that humanitarian intervention could be undermined by political pressure to deal first with domestic concerns.

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President Barack Obama

Lessons to Heed in the Wake of the Free Trade Trilogy

President Barack Obama is currently intensifying talks with Colombia, Panama and South Korea regarding proposed free trade agreements (FTA) inherited from the Bush Administration. The President hopes to submit all three agreements to Congress by the end of the year.  Worrisome is that similar provisions granting substantial investor rights as those written in precursor agreements, such as NAFTA and CAFTA, are included within each of the prospective pacts, which threaten the public good of the international community.

Within the last 15 years, there has been an explosion of bilateral and multilateral FTAs around the world.  Proponents of trade agreements argue that such pacts are valuable tools for increasing foreign investment, promoting fair competition and encouraging transparent regulations.  However, in order to encourage investments by foreign multinational corporations in signatory nations, FTAs incorporate investor protection provisions that defy public interest policy by bypassing domestic regulations.  Specific provisions included in FTAs that are particularly damaging to the public interest include: (1) provisions that provide for “expropriation and compensation” to investors when the investor feels that the host nation has breached its duties under the FTA; and (2) provisions that contain relaxed regulations regarding nationality requirements for investors wishing to bring arbitration claims against signatory nations.

President Barack Obama

President Barack Obama

A good illustration of the risks posed by state-investor enforcement terms is apparent in Pac Rim Cayman LLC v. Republic of El Salvador, which is currently pending before a CAFTA arbitration panel.  The Canadian mining company, Pacific Rim, sought to establish “El Dorado”, a gold mine in El Salvador’s largest watershed, the Rio Lempa, which flows not only through El Salvador but also through the neighboring countries of Guatemala and Honduras.  Pacific Rim planned to use appalling amounts of water and cyanide to extract gold from the ore it plans to excavate.

Within the most densely populated country in Latin America, over 96% of the surface water in El Salvador is contaminated and 1.5 million people, a quarter of the population, lack access to clean water.  The threat of gold processing chemicals leaking into the Rio Lempa would affect thousands that rely on the Rio Lempa for clean water and farming to meet their basic needs.  Staunch local activism against the exploitation of Pacific Rim’s proposed gold mine prompted the Salvadoran Government to investigate and eventually refuse to issue an exploitation permit that would allow the establishment of “El Dorado”.

In 2008, the Salvadoran President, Elias Antonio Saca, announced that El Salvador would not grant any exploitation permits until the government modernized current mining laws, in addition to critically analyzing the environmental impact of proposed mines.  That same year, Pacific Rim ceased exploratory drilling, and the Canadian-based mining company changed its course of action.  Aware that El Salvador became a signatory nation to CAFTA, Pacific Rim chose to reincorporate one of its subsidiaries, Pac Rim Cayman LLC, to Nevada.  With a subsidiary now incorporated within the United States, Pacific Rim seized the opportunity to forum shop, thus permitting the corporation to file suit against El Salvador under CAFTA’s investor-state enforcement provisions.  Specifically, Pac Rim is claiming that by denying the mining permit, El Salvador expropriated any future earnings and therefore demanded hundreds of millions in compensation for possible losses in future earnings.

Thus, a legitimate fear surrounds the notion that if investor claims succeed, such as those brought by Pac Rim against El Salvador, signatory governments of FTAs with strong investor-state enforcement terms will avoid implementing new laws that promote the public interest in fear of owing millions to foreign corporations through arbitration claims brought under the FTA.  The risk, therefore, is the long term, detrimental impact that investor rights have when incorporated into FTAs, preventing domestic policy change that aim to protect the ecosystem or further public health and human rights initiatives. With the price of gold now soaring, numerous foreign mining investors have filed for expropriation permits in El Salvador alone.  Irrespective of the arbitration panel’s decision in Pacific Rim Cayman, El Salvador, one of the hemisphere’s poorest nations, will be forced to pay millions to defend itself against investor to uphold policy that protects indigenous rights, public health and the environment.

Congress cannot simply ignore the negative impact investor-state enforcement terms have once applied in international tribunals.  The United States – Korea FTA creates an additional component that is relevant to this discourse.  Unlike U.S. pacts with developing nations, South Korea, like the U.S., is a major capital exporter.  South Korea has 85 multinational companies with over 250 establishments operating in the United States.  Lori Wallach, director of Public Citizen’s Global Trade Watch, stated that under the proposed U.S.-Korea FTA, “Korean firms operating [in the U.S.] would get new rights to skirt [the U.S.] court system and laws and use foreign tribunals to demand taxpayer compensation for laws that they do not like, just like Pac Rim is doing to El Salvador.”

The United States must take note of the lessons exposed through previously arbitrated and currently pending cases that elucidate the danger of increased investor-rights in FTAs before it ratifies future trade agreements that defy the greater public good.  Congress must implement changes to state-investor enforcement terms to ensure that FTAs comport with the minimum standards of international customary law.

Posted in DJILP Staff, Kathryn StevensonComments (0)


University of Denver Sturm College of Law

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