Sep 112012

I am in the process of upgrading my blog and debuting a new website.  Ongoing software issues have made maintaining and upgrading the blog difficult; however, after the transition, everything should work much easier.

In the meantime…

The Sunday New York Times featured an article about US Secretary of State Hillary Clinton’s assurance that US imposed trade sanctions against Russia will soon be repealed.

The US has had sanctions in place for decades, although they are not enforced.  Despite their non-enforcement, the sanctions violate World Trade Organization rules, which could allow Russia to enact harsh anti US trade policies.

The US Administration supports their repeal; however, Congress seems poised to condition the repeal on the passage of a bill, which, according to the New York Times, “would punish Russian officials accused of abusing human rights, denying them visas and freezing their assets.”

The Administration favors lifting sanctions without the human rights condition; however, the issue has gained political traction as former Governor and Presidential Candidate Mitt Romney has publicly supported the human rights legislation as a precondition to lifting sanctions.

Public international law often requires balancing factors, including pitting human rights and business/trade.  Should trade regulations with foreign nations be conditional on their human rights record, and if so, how extensive should the two be intertwined?

Mar 062012

Last week, I blogged about Kiobel v. Royal Dutch Petroleum Company, which was argued before the United States Supreme Court.

The issue was whether the Alien Tort Act allows foreign plaintiffs to sue US corporations for certain human rights violations; however, questioning ventured into the broader question of whether United States Courts could ever hear human rights cases when the alleged abuses occurred outside the United States.

It turns out that the Court may want to address the broader question.  The Court has asked the parties to file additional briefs and appear for reargument.  The Court ordered:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.

Feb 232012

For decades, the United States was considered a leader in international law and human rights, and the American public largely supported their government’s efforts in developing and abiding by international law.

While America’s commitment to international law and human rights has never been beyond reproach, many Americans’ view of international law has recently soured.  According to the Centre for Research on Globalization:

“Americans are increasingly embracing policies that undermine the international rule of law, with self-identified liberals, in particular, seemingly reversing their positions on matters such as the Guantanamo prison camp, extrajudicial assassinations and arbitrary detention.” (link)

This shift in perspective is likely caused, at least in part, by the rise of international terrorism and the Bush and Obama administrations’ practices of long-term detention, use of military tribunals, and targeted assassinations.

Americans’ decreasing support appears to be motivated by fear.  American resistance to international principles stem from a belief that such laws weaken the country’s defense and leave it vulnerable.  Much of this fear is related to many Americans’ negative view of Middle Eastern culture and their fear of Islamic-based Sharia law.  In many respects, Sharia law is oppressive, violent, and a barrier to free society.

While this fear is not wholly unreasonable, it is crucial that America does not retreat too far.  Americans must remember the benefits of international law.

International principles create a framework for nations to negotiate and adjudicate disputes, create economic opportunities, and hold oppressive and abusive political and military leaders accountable.  Unfortunately, this framework becomes more tenuous when dealing with international groups acting independent of a nation state; however, even when one nation or group violates or threatens international standards, America must hold itself and it’s peers to the standards of international law.

Of course, nothing is ever this black and white, especially in the international arena, but America has a legal and moral obligation to support well-founded rules of international law.

Dec 162010

One of the wider-reported state ballot initiatives in the November 2010 US elections was the state of Oklahoma’s decision to prohibit international law, including Islamic/Sharia Law.

In the election’s aftermath, there are news reports of more US states considering a ban on religious/foreign law, including Arizona and Florida.

I normally stay out of US political issues, but it seems like much ado about nothing – is there any documented evidence of a US court adopting (or considering to adopt) Sharia law?   Seems far-fetched to me.

Equally as far-fetched is the amount of political controversy generated by the US Senate’s proposed ratification of the new START treaty.   News agencies are reporting that the Senate will consider the treaty before the instillation of the new Congress.

Mar 022010

According to a Reuters report, Senator Dick Durbin (D, Illinois) is drafting legislation that would require US technology companies to protect global human rights.  Violations could result in criminal or civil penalties.

The Hill Blog quoted Durbin at a Senate Judiciary Subcommittee on Human Rights and the Law:

“The bottom line is this: With a few notable exceptions, the tech industry seems unwilling to regulate itself and unwilling to engage in a dialogue with Congress on … human rights challenges…

“Today, I’m announcing I will introduce legislation that will require Internet companies to take reasonable steps to protect human rights, or face civil and criminal liability. “

The legislation would likely require US tech companies doing business abroad to remain committed to unfiltered/uncensored access to technology and information while closely guarding users privacy.  It comes on the heels of an alleged Chinese-cyber attack against Google.  Google subsequently committed to stop censoring search engine results in China.

However, how far would the legislation go in regulating the creation, manufacturing and distribution process?

The legislation could have sweeping implications for tech companies that rely on numerous suppliers to provide hardware and software.   Many large tech companies contract with multiple suppliers, who often subcontract with multiple other subcontractors.  This makes it difficult (and in some cases, maybe impossible) for companies to keep track of what goes on overseas even if the company has an active audit program.

It will be interesting to see how Durbin defines “human rights” and “reasonable steps.”  It immediately calls to mind Apple’s recent admission that underage workers manufactured some of their computer components in China.  Would Apple be subject to civil or criminal liability for the violation or would their internal audit and action be deemed reasonable steps?  It would likely be the latter, but it is interesting to consider how far the legislation could reach.

It is also important to consider which government branch would receive the burden of investigating and prosecuting violations.

Durbin provided some hint into the direction of his legislation when he urged tech companies to join the Global Network Initiative (GNI).  GNI is an NGO committed safeguarding free speech, privacy and “responsible company decision making.”  Microsoft, Google, and Yahoo are among participants of GNI that commit to follow GNI’s implementation of guidelines towards “the advancement of user rights to freedom of expression and privacy.”  The cost to join GNI is based on annual revenue and can range from $2,000 to $60,000.  It is possible that Durbin’s legislation may mirror GNI’s core principles.

In reality, this legislation has yet to be drafted, and it has a long road before it would ever hit the President’s desk – including facing the business lobby.  However, speculation over such a law’s reverberations will likely run wild.