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International Law: Update

By . May 7th, 2012

 

Assorted updates on international law in the news.

Afghanistan

On May 1, 2012, President Obama signed a strategic partnership agreement with Afghanistan’s President Hamid Karzai, with the goal of completely handing over responsibility for Afghan security to 352,000 Afghan security forces by the end of 2014. (The United States will assist with training and counterterrorism efforts for an additional decade.) A peace with Taliban who reject al-Qaeda, renounce violence, and agree to obey Afghan laws is also being negotiated. Thus, the majority of  U.S. and (non-Afghan) allied troops should be able to return home by 2015. Additional goals, beyond counterterrorism and security, and the “disruption and dismantlement of al-Qaeda,” include: support for democracy; increased developmental opportunities; and universal human rights (and dignity) for all Afghan citizens. Twenty of the thirty top al-Qaeda leaders have been captured or killed. One of the most notorious, Khalid Sheikh Mohammed, is scheduled to be arraigned on 2,976 counts of murder and other crimes before a military tribunal at Guantanamo Bay on May 5, 2012.

Asylum

Under both ancient and modern precepts of international laws, sovereign nations occasionally grant political asylum to citizens of other sovereign nations who allegedly are being subject to political or religious persecution. Of course, notwithstanding the intensely stressful situation for the person(s) involved, a heavy does of politics is often involved in a clash of sovereigns over a potential asylum situation. Add two nations whose economies are essentially intertwined and a 24-hour news cycle, and one has the current crisis involving Chinese dissident Chen Guangcheng. Chen took refuge at the U.S. embassy in China days before Secretary of State Hilary Clinton came to China for a summit meeting. After saying, possibly under duress, that he wanted to stay in China, Chen later called Congress, hoping to meet with Sec. Clinton and arrange for his family and himself to travel to the United States. Of course this “hot potato” issue was a distraction to, but did not ultimately derail, the difficult efforts of Secretary Clinton and Treasury Secretary Timothy Geithner to obtain “tangible economic concessions” at the previously scheduled summit.

BITs

According to the State Department, the bilateral investment treaty system has three basic aims:

  • Protect investments made abroad
  • Encourage the adoption of market-oriented domestic policies that feature transparency and non-discrimination
  • Support the development of international law standards

and six core principles/benefits:

  • “Most favored” status for investor
  • Limit expropriation and obtain prompt compensation for any expropriation that occurs
  • Provide for the transferability of funds into and out of the host country without delay using a market rate of exchange
  • Limited circumstances in which performance requirements can be imposed
  • Give both parties’ investors the right to submit an investment dispute with the treaty partner’s government to international arbitration
  • Give covered investments the right to engage the top managerial personnel of their choice, regardless of nationality

Of course, any good lawyer knows that it is easier to adopt a model legal document modified to reflect unique circumstances, if necessary, than to draft an original one sua sponte.

The final unique distinction that BITs, as evidenced by free trade agreements with Korea, Panama, and Colombia passed in October, 2011, have is that such agreements are one of the last bastions of bipartisan cooperation, besides naming post offices, PATRIOT Act extensions, and the occasional debt ceiling increase agreement.

Bribes

Of the twenty-eight nations that account for 80% of global commerce, the United States was tenth least likely to have a transaction involve a bribe, whereas Mexico was #26. That is, business people perceived bribery to be more endemic to Mexico than all the other nations, except China and Russia. A blog entry from May 4, 2012, puts it more colloquially: “la mordida” (“the bite”) is “the traditional and customary way of getting things done” … and “so institutionalized” it could take a decade to change. Walmart’s Statement of Ethics painstakingly forbids corruption and bribery within the U.S. and in other countries. Nonetheless, the Department of Justice and the Securities and Exchange Commission may be investigating whether or not Walmart engaged in bribery in Mexico, after certain disclosures the company made to the SEC and an April 21, 2012 article in the New York Times: Vast Mexican Bribery Case Hushed Up by Wal-Mart after Top-Level Struggle.

Drones

The predator drone program is a candidate for the least-best-kept-secret of the U.S. military. CodePink had sponsored the Drone Summit: Killing and Spying by Remote Control on April 28 and 29. Aside from a slip of the tongue or two (and a crash landing or two), the government did not officially acknowledge the offensive capabilities of the drone program until April 30, 2012. (Brennan Describes How U.S. Choose Drone Targets. Fox News, April 30, 2012). Of course, some nations have more direct experiences with the drones’ capabilities, with Pakistan questioning the legality of drone assassinations. (John Hudson. Someone’s Lying about America’s Secret Drone Program. Atlantic Wire, April 30, 2012).

Pirates

Here we discuss the classic maritime pirates, not intellectual property thieves or airline hijackers. Pirates are “bad” people under international law — stateless actors operating beyond territorial seas and exclusive economic zones, in  international waters (the “high seas“), for their own enrichment. Thus, for centuries, pirates flying the jolly roger instead of the flag of their home nation could be caught and punished by any legitimate captain and crew of any vessel displaying a national flag, under the concept of universal jurisdiction. Over the past decade or so, there has been a resurgence of maritime piracy, targeting oil tankers, cargo ships, or privately-owned vessels. International donors contributed approximately $5 million to establish a Kenyan court to address piracy in 2010. A nation can try pirates in their own national courts, especially in the unfortunate cases when pirates kill their victims. On April 27, 2012, Mohammad Saaili Shibin was convicted in a federal district court for his part in piracy operations during which four U.S. citizens were killed. If Shibin appeals his conviction to the Fourth Circuit, Roger J. Phillips blogs that the Court may help clarify the U.S. position on piracy under the “law of nations” and the U.N. Convention on the Law of the Sea (UNCLOS) (i.e., customary international law).

War Criminals

War criminals are also bad actors under customary international law and, some argue, universal jurisdiction. The modern era of individual rights and responsibility under international law was ushered  in by the United Nations and, more specifically, the International Military Tribunal for Germany and the (subsequent proceedings of the) Nurenberg Military Tribunals under Control Council Law No. 10. Various ad hoc tribunals and special/hybrid courts have helped crystalize and expand the concepts of war crimes and individual responsibility established at Nuremberg. On April 26, 2012, Charles Taylor was the first head of state, since Nuremberg, convicted the war crimes of aiding and abetting 11 crimes and providing materials support by the Sierra Leone Special Court at the International Criminal Court. Taylor was not convicted, however, of “either ordering or planning the atrocities,” thus, he may receive a lesser sentence than the prosecution may have wanted.

WHO (Publications, Pandemics)

Pandemics are bad, and they can kill many people. But the World Health Organization (WHO) and Google’s flu tracking service may save you from the next 1918 world-wide-flu-type pandemic. WHO has a service called the Global Public Health Intelligence Network that data mines media reports to track outbreaks of unusual illnesses.

Censorship is usually anathema, especially to librarians. But what if a scientific article gives a potential terrorist a recipe to brew the next biological pandemic? Or, perhaps, scientists should proceed diligently and cautiously with lab experimentation, since the process (of producing new flu strains) already is taking place among the wild animals in nature, as well? Lab experimentation entails some risk, but it also can be leveraged for better understanding of the disease and improved treatment options.

WTO/Cigs

Cigarettes are a lucrative product, especially on an international stage. One analyst estimated that the U.S.  statutory ban on flavored (but not menthol) cigarettes cost Indonesia up to $16 million annually in sales of clove cigarettes to the U.S. market. Indonesia could impose retaliatory duties, the U.S. could offer alternative trade concessions, or the FDA could ban menthol cigarettes, as well as flavored cigarettes.

P.S. Cigarettes are not very good for you –flavored, menthol or regular, FYI. Just ask the Surgeon General. They appear to be rather addictive, too.

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