Everyday International Law

The Middle East comes to the Great White North

2009-05-20T14:55:00.001-07:00

An unusual lawsuit has been filed in Quebec, Canada alleging that two Canadian construction companies violated international law when constructing buildings for Israeli settlers in the West Bank.

The Palestinian village of Bil'in is seeking an injunction to stop further construction, and demolish apartment buildings already erected in Moddin Illit, a Jewish settlement northwest of Ramallah, and $2 million CAD in punitive damages.

The village of Bil'in was seized by Israeli forces from Jordan during the Six-Day War of 1967.

Israeli settlers have constructed 30 buildings with 250 apartments and condominiums in the village.

The villagers claim that these actions violate the Fourth Geneva Convention; Canada's Crimes Against Humanity and War Crimes Act; the Quebec Charter of Human Rights and Freedoms; and the Civil Code of Quebec.

Are the villagers right; do these actions violate international law? Even if they do, do the villagers have a right of action in Canada?

EIL will look at this issue starting with the Fourth Geneva Convention.

What is the controlling international law?

The plaintiffs in the lawsuit allege that the actions of the Canadian companies - Green Park International and Green Mount International - violated the Fourth Geneva Convention; Canada's Crimes Against Humanity and War Crimes Act; the Quebec Charter of Human Rights and Freedoms; and the Civil Code of Quebec.

Each of these conventions create or utilize international law in defending the rights of civilians in conflict zones.

The Fourth Geneva Convention - formally known as the Geneva Convention relative to the Protection of Civilian Persons in Time of War - establishes assumed responsibilities and rules followed by States during armed conflicts.

Article 2 states that these rules apply to States partially or totally occupying territory of another member to the convention. These rules apply even if one of the participants in the armed conflict is not a member to the convention.

Jordan and Israel are both signors of the Fourth Geneva Conventions.

The territory in question is still considered occupied territory.

The borders between Israel and Jordan were fixed in an armistice agreement signed between the two countries in 1949. This border is known as the "Green Line." When Israel militarily annexed Jordanian territory past the Green Line in 1967 - including the village of Bil'in - this area became an occupied territory under customary international law. A legal status that has not changed to this day.

Source: The International Court of Justice's advisory opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2003).

So, since both Jordan and Israel are members to the Fourth Convention, they are bound by the responsibilities laid out in the convention. These responsibilities apply to the area surrounding Bil'in, even after all this time. The whole area is considered an occupied territory under international law.

(There is a time limit of one year after the close of general military operations that applies to certain articles of the Fourth Convention, any provision that is past this time limit is excluded in this analysis.)

What responsibilities does the Fourth Convention mandate in this situation?

Article 49 forbids the mass forcible transfers - such as removing people from their village. There is an exception for military necessity. The same article forbids resettling your own people in seized territory. Allowing Jewish settlers to take over the village of Bil'in appears to violate this article.

Article 53 forbids the seizure of real or personal property from individuals, unless militarily necessary.

Lastly, why sue in Canada?

The Canadian Charter of Rights and Freedoms specifically incorporates international law into its legal system in Section 12(g).

This means that the villagers of Bil'in can argue certain points under international law that might be excluded in other forums.

Practically, the Canadian court has personal jurisdiction over the construction companies. So if the villagers get a favorable ruling, a Canadian court could actually stop the construction through use of penalties.

What does this mean to you?

There are many issues to be resolved in this case. Can a Canadian court hear a Fourth Convention case that involves two other states? Should a private actor be held complicit under the Fourth Convention?

But I think these are detail oriented points and miss the big picture.

Private actors are using international law against other private actors to settle humanitarian disputes.

This is not two states arguing over mineral rights. These are two groups of private individuals settling a dispute and using international law for their arguments.

The impact of this type of usage may be felt everyday.

The only comparable type of case I have see are Alien Tort Claim Act (ACTA) cases in the U.S. and they rely on domestic law. Plus, ACTA cases have been limited to the Law of Nations as it existed in 1776. (This is an incredibly limiting standard that has made cases of torture impossible to prosecute.)

Businesses may now have to consider whether their actions violate international humanitarian law. If it does, they may be subject to lawsuits.

At least in Canada.

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www.joshualenon.com

SIEL/CUP Prize for an Essay on International Economic Law

2009-04-30T08:22:00.001-07:00

A prize has been established by the Society of International Economic Law and Cambridge University Press for the best essay submitted on any topic in any field of international economic law.

The competition is open to current students and those who have graduated within the last five years.

The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication.

The closing date for submissions is 30 September 2009.

For submission details and terms and conditions, please see www.sielnet.org/essayprize.

G20 Blogging - An Opportunity

2009-03-13T11:10:00.001-07:00

In April, representatives from the top 20 economies in the world are meeting to discuss the state of the world economies.

EIL began discussing this summit back in September of 2008.

Like everything and everyone else in the world, this summit has their own website: LondonSummit.gov.uk.

Of personal interest, NGO Oxfam Great Britain, is providing 50 bloggers from around the world a chance to particpate in this summit - bringing their own fresh perspective to the negotiations and sessions.

If you think my approach to writing on international law and current events is worthwhile, I would like to ask a favor.

Please nominate me to be one of the bloggers invited to the summit.

You can do so at Oxfam's website: G20Voice.

The nomination form:

http://www.whitebandradar.org/en/g20voice/nominate

Thanks,

Joshua Lenon

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www.joshualenon.com

Call for Papers: 2009 British Institute of International and Comparative Law Conference

2009-02-24T17:26:00.001-08:00

The British Institute of International and Comparative Law is seeking papers for their 2009 Annual Conference from new scholars.

The theme of the conference will be: 'Business and International Law' and will be held on June 5 2009 in London.

The conference is specifically seeking papers from new academics, graduate students, and new legal professionals.

More details can be found here: www.biicl.org.
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www.joshualenon.com

Fighting for Women's Reproductive Rights on a Global Scale

2009-02-03T10:13:00.001-08:00

Slate has a good article titled, "Abortion Rights Go Global," written by Michelle Goldberg.

The article focuses on international legal instruments and bodies that are gradually recognizing a woman's right to control her reproductive health.

What interests me is the diversity of instruments mentioned.

The European Court of Human Rights is not surprising. Given that freedom of movement is one of the 'Four Freedoms' held central in the European Union, it was only a matter of time until women used to controlling their reproductive health in more secular countries ran into the procedural barriers erected in more non-secular nations - like Poland, Italy, & Ireland.

More interesting is the rise of cases being brought in other international settings. These include:

the U.N. Human Rights Committee which monitors the International Covenant on Civil and Political Rights,
the Inter-American Commission on Human Rights created by the 1969 American Convention on Human Rights, and
the 2003 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.

In this growing area of human rights law, a consensus is emerging about women's reproductive health and abortion.

States cannot deny a woman's right to an abortion, specifically in cases involving risks to the mother, rape, or incest.

What does this mean to the readers?

This standard is far from gaining worldwide acceptance.

Nations and non-governmental organizations are fighting this emerging standard.

I think it will be decades before this type of international jurisprudence affects people worldwide.

Still, it is encouraging to see the spread in recognition of women's rights in international forums and the use of these forums to improve the lives of women around the world.

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www.joshualenon.com

U.S. Diplomacy Losing Power

2009-02-03T09:08:00.001-08:00

Bolivia has the largest proven deposits of lithium in the world.

Almost half of the known lithium volume in the world is found in Bolivia.

Lithium is crucial in manufacturing batteries that are effective in electric cars. In order to break our addiction from polluting, rapidly depleting oil, large amounts of lithium is needed.

Bolivia is where the lithium is located.

Bolivia is also on unfriendly diplomatic terms with the United States.

Japanese and European companies are busily trying to strike deals to gain access to the lithium deposits.

“We know that Bolivia can become the Saudi Arabia of lithium,” said Francisco Quisbert, 64, the leader of Frutcas, a group of salt gatherers and quinoa farmers on the edge of Salar de Uyuni, the world’s largest salt flat.

What does this mean to the readers?

Readers in the U.S. will see a further decline in the U.S. automotive industry - with all the attending economic fallout - as this industry cannot provide quality, electric cars.

Foreign automotive companies - Honda, Toyota, BMW, etc. - with access to Bolivia's lithium reserves will trounce U.S. car companies. They will have the cheap, electric cars that consumers will demand when oil becomes increasingly more expensive.

Let's hope that the U.S. State Department's Krishna Urs can fix this rift in diplomacy with Bolivia.
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www.joshualenon.com

U.S. vs. P.R.C. in WTO = KO

2009-01-28T11:57:00.001-08:00

Canadian legal blogger - Michael Geist - has a great article breaking down the recent ruling on the U.S.'s complaint against China regarding intellectual property rights enforcement.

The article is titled, "Why the U.S. Lost Its WTO IP Complaint Against China. Badly."

The title says it all. The ruling provides some large loopholes in the enforcement of IP violations under the Berne Convention and TRIPS.

Bryan Mercurio of the International Economic Law and Policy Blog discusses these loopholes here.

His point about China's high threshold of violations required to pursue a criminal conviction is especially interesting. China requires there to be 500 instances of copyright violation before they will initiate criminal prosecutions.

Mercurio writes:

"It also would seem to allow an individual to rent premises and set up shop selling pirated copies of music/DVDs and counterfeit TMs but avoid criminal prosecution as long as only 499 copies of each item are copied and sold."

What does this mean to the average person?

China's seemingly high threshold for criminal prosecution of IP violations means China can remain a safe haven for the smart counterfeiter.

Utilizing proven business techniques like on-demand production and just-in-time inventory strategies, organized counterfeiters could easily stay below the 500 instances threshold.

"I see you have 499 copies of Underworld: Rise of the Lycans. You'd sure be in trouble if you had one more copy. I'd have to run you in as a counterfeiter."

So if you are looking for cheap knockoffs of Western products, head on down to the PRC.

They are practically given it away! These prices are too low to miss!

And it is all legal - at least under international law.
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www.joshualenon.com

ICC begins

2009-01-26T16:00:00.000-08:00

The International Criminal Court (ICC) has begun it's first hearing today.

Congolese warlord, Thomas Lubanga,is being brought on trial for war crimes that include violently forcing children to serve in his army and the use of children as sexual slaves.

Should these charges be proven true, I hope the justice of the court falls on Mr. Lubanga swiftly and harshly.

Hopefully, the sheer inhumanity of Mr. Lubanga's alleged deeds will not distract the court from it's true focus.

The ICC must have a fair and full hearing of all of the facts related to the case. There can be no doubt as to the strength and legitimacy of the outcome.

The United States is a signor of the ICC treaty. Bill Clinton signed during his presidency in 1998. George W. Bush ordered the signature withdrawn, leaving the United States as the only major Western power not to join as a court member.

This is the only way the ICC can establish itself as a force for justice in international law.

Fighting Pirates on the High Seas..with Law!

2009-01-15T08:16:00.001-08:00

The issue: Pirates!

For months now, headlines on television and newspapers scream pirates on the high seas!

In the failed nation of Somalia, pirates in tiny boats filled with men, automatic weapons, and rocket-powered grenades have been seizing ships that are filled with wealthy french couples, supertankers filled with oil, and $30 million worth of grenade launchers, piles of ammunition, even battle tanks.

The waters off of Somalia are considered the most dangerous in the world. Pirates have attacked ships as far out as 300 miles from shore.

Why off of Somalia?

First, Somalia has no functioning economy since 1991 when the country's government collapsed. Piracy is a means to bring in wealth to a desperately poor country.

Secondly, Somalia is geographically positioned at one of the busiest shipping lanes in the world - the Gulf of Aden. It's is the only maritime route that allows ships from the Indian Ocean to quickly enter the Mediterranean Sea - without traveling all the way around Africa. Cruise and cargo ships alike bunch up in this narrow area and become easy prey to former fishermen who are heavily armed.

Can international law do anything to protect people on the high seas?

Controlling International Law:

The United Nations' Convention on the Law of the Sea (CLOS) is the controlling international law. It replaces customary international law that outlawed piracy.

CLOS focuses on piracy on the high seas - areas considered outside the control and jurisdiction of any one nation.

Section VII, Article 100 imposes a duty on all member nations to cooperate in the suppression of piracy in the high seas.

Article 101 defines piracy as:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

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

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Article 105 allows one to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.

However, Article 107 limits this authority to seize pirates ships and arrest pirates only to warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

A private actor cannot go pirate hunting; they must be authorized to do so by a State.

How does this affect you?

Nations around the world are mobilizing their navies into this narrow area to fight the Somali pirates.

European nations, the United States, and China have all moved naval forces into the Indian Ocean and the Gulf of Aden to escort ships and respond to attacks.

The U.N. Security Council unanimously approved actions by States to attack pirates not just on the high seas, but also in their bases in Somalia.

How will this affect you? Unless you are a sailor in a navy or a merchant marine on a cargo ship, you are likely to see no impact on your daily life.

If you are a Somali pirate, your life is about to get much more dangerous.
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www.joshualenon.com

Milking the Issue

2008-11-13T13:08:00.000-08:00

The U.S. Food & Drug Administration announced a new policy to stop food products from China at the border.

Producers must prove that their products are not contaminated. Large scale contamination of milk, eggs, and animal feed with industrial chemicals prompted this action.

EIL looked at this issue earlier and found that such actions are allowed under the WTO.

World Leaders react to Obama's Election Victory

2008-11-10T09:04:00.001-08:00

In a followup to my previous post about the world reacting to the election of Barack Obama as the next U.S. President, here are some of the reactions of political leaders around the world.

You can read the article at the Guardian's website here.

My favorite quote:

Spanish prime minister Jose Zapatero: Obama's victory "opens a new era for dialogue in international relations".
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www.joshualenon.com

Worldwide Reactions to Obama's Elections

2008-11-05T09:23:00.001-08:00

The biggest of current events is the election of Barack Obama to be the 44th President of the United States of America.

Why is this such an important election?

In part, the election of Obama represents a repudiation of the policies of the current President, George W. Bush.

Bush's foreign policies were often at odds with international law. His theories of unilateral action conflicted with the growing interdependence of foreign relations.

Hopefully, the election of Obama will bring in an executive willing to work with the international community to build up international law.

The New York Times has a interesting summary of how this election is being viewed around the world.

You can read it here.

My favorite quote:

"The biggest economy in the world has a leader that the world can talk to," said Alejandro Saks, an Argentine television scriptwriter.

Get to work, Obama, the world is watching.
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www.joshualenon.com

China's Bailout Plan - WWWTOD

2008-11-03T12:40:00.001-08:00

China is starting to worry about the effect of the global slowdown on their economy.

China's State Council announced a plan to increase export tax rebates in order to protect domestic industries. Rebates would go to labor-intensive products like garments and textile to high-value products like mechanical and electrical products.

These measures may be against China's obligations under international law.

Worth noting, the U.S. Bush administration has become so dependent on China's purchasing of Treasury bonds needed to finance a bailout of the American financial system that they have stopped criticizing China's trade and currency policies.

China may be violating international law and there is nothing the U.S. can do.

Or is there? Let's go to EIL's big three questions:

WHAT ARE THE ISSUES?

1.) Does China's export rebates violate international law?

2.) Can China's trading partners do anything to stop China's violation of their international legal obligations?

WHAT IS THE CONTROLLING INTERNATIONAL LAW?

Issue 1's Legal Analysis

When you see a trade issue in an international setting, you should immediately look to the World Trade Organization (WTO).

Export rebates fall under the WTO's Agreement on Subsidies and Countervailing Measures (SCM).

The SCM defines a subsidy in Article 1 to be an act that either is a direct transfer of funds or failing to collect funds - by a government, public body, or a private group entrusted by the government - to confer a benefit (on domestic producers).

Article 3.1 states that subsidies would be prohibited if they fall into two types:

(a) subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I;

(b) subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.

The Annex I is the Illustrative List of Export Subsidies (ILLES).

In this list is the key to determining if China's export rebates are illegal under the WTO.

Part (g) of the list reads:

(g) The exemption or remission, in respect of the production and distribution of exported products, of indirect taxes in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption.

What does that mean? It means a government can give back to exporters the taxes they paid for materials needed to produce their goods - but only for products being exported.

Part (g) of the ILLES also limits the amount of money that can be given back to producers. The money rebated can be no more than the taxes levied on the same product being sold in that nation.

For example, a company in China manufactures televisions. Some get sold in China; some get sold abroad.

For the televisions that get sold in China, the Chinese government collects taxes. The components and raw materials used to make the television are taxed when this company buys them. Taxes are also paid when the televisions are sold. China uses a value-added tax system (VAT). Eventually, the manufacturing company gets a tax break due to the taxes on the final sale of the TV to a Chinese consumer.

For the television sold abroad, the Chinese government would not get taxes from the final sale. Those taxes would be collected by the government in whatever nation that television arrives. So the manufacturer loses money as they no longer get the tax break they would normally get for domestic sales.

Part (g) of the ILLES allows China to rebate to the television producer a similar amount as if the TV had been sold in China - but no more than that.

This is the crux of whether China's export rebates are legal.

Is China giving a rebate higher in excess of the indirect taxes levied on similar products consumed domestically?

So far, I've seen no hard details on what the final export rebate amounts will be. Some articles indicate that rebates may be raised up to 9 - 13 percent. Some rebates go as high as 17 percent.

These articles fail to compare that with the VAT for each product domestically.

If the rebates are too high, China will be in violation of their obligations under the WTO.

Issue 2's Legal Analysis

What can China's trading partners do if China's subsidy violates the WTO?

Article 4 of the SCM has a dispute resolution method.

First, the SCM encourages member nations to consult with each other when a dispute arises.

After 30 days, if no resolution can be found through consultation, members may file a dispute with the Dispute Settlement Body (DSB).

From there, a panel and experts begin reviewing the subsidy. If they determine that it is prohibited under the SCM, the offending nation is required to withdraw the subsidy without delay.

There are other processes, including possible delays and appeals.

There is a formal process in place for resolving such disputes through the WTO.

WHAT DOES THIS MEAN FOR THE READERS?

China exports a lot of goods - $1.22 trillion in 2007. Nearly 20% of those goods were shipped to the U.S.

It is in China's interest to keep their exports high. This brings in tremendous revenue to the country. These rebates allow Chinese producers to keep the costs of their products extremely competitive in the world market.

It is in the U.S.'s interest (to a degree) to keep the prices of goods low too. Consumer spending in the U.S. is dropping to record lows. Considering that consumer spending accounts for 2/3 of the U.S. Gross Domestic Product (GDP), pursuing a dispute resolution that leads to more costly goods from China may not be a smart short-term move.

What will probably happen is that China's higher export rebates will be scrutinized by their trading partners.

At some point, a trading partner will file a complaint with the WTO DSB.

Resolving the dispute will be a lengthy process that allows China to keep the costs of their manufactured goods low long enough to help their manufacturers.

Consumers worldwide will benefit from the cheap goods to which we've become addicted. When the economy rebounds, the DSB can rule on the matter of the rebates.

China can then withdraw the rebates without harming their own economy.

The imperfect system may actually work.
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www.joshualenon.com

InterNETional Law

2008-10-30T12:57:00.001-07:00

The BBC is reporting that Microsoft, Google and Yahoo have signed a global code of conduct promising to offer better protection for online free speech and against official intrusion.

This agreement, called the Global Network Initiative (GNI), is a group of technology companies and non-governmental organizations that have worked together to build a framework for this code of conduct. The current list of members can be found here.

It's interesting to note that the Electronic Frontier Foundation (EFF) - a premier organization fighting to secure online rights and privacy - is a participating member in this initiative. To me, this implies that the GNI may be more than just a public relations stunt by internet companies.

The GNI is still a work in progress, with mostly principles and guidelines having been agree upon. No reporting or enforcement has been established yet.

The GNI provides for these in the future. What's interesting is that the GNI specifically refers to international law for standards in their code of conduct.

Let's run through EIL's big three questions:

WHAT ARE THE ISSUES?

The internet is a worldwide phenomenon.

That is precisely the problem.

Internet users in radically different nations can communicate with each other directly and often without limitation.

Internet companies find value in offering their services to customers around the world.

For example, internet companies like Yahoo and Google have found it profitable to set up subsidiary companies around the world.

The problem occurs when these multinational companies hold users in different nations to disparate standards.

To be fair, it's not Google's fault that China has a different standard of online privacy than Sweden.

It does leave these multinational companies open to charges of abuse or even open to legal liability.

Is there anything these companies can do to protect themselves in the hodge-podge legal world in which they operate?

Yes, by establishing codes of conduct, companies can influence government efforts directed against internet users and these companies create a form of protection for themselves.

WHAT IS THE CONTROLLING INTERNATIONAL LAW?

The GNI specifically references three major declarations of human rights:

Universal Declaration of Human Rights (UDHR)
International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR)

Specifically, the GNI pulls its definition for Freedom of Expression from Article 19 of the UDHR and Article 19 of the ICCPR.

Article 19 of the UDHR states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

This is the very nearly the exact language used in the GNI.

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals. [emphasis added]

By specifically referencing Article 19 of the ICCPR, members of the GNI have given themselves an escape clause. If it's in a nation's interest, they can declare any type of expression as dangerous to national security, order, morals.

It's a pretty big escape clause.

However, further language in the GNI limits this clause somewhat.

The GNI continues, saying that government restrictions should comply with international human rights law. Also, government action should be necessary and proportionate to the relevant purpose.

In the end notes attached to the GNI Principles, the GNI note that Article 19(3) of the ICCPR is to be read within the context of further interpretations of international human rights bodies. The United Nations Human Rights Committee (UNHRC), the United Nations Special Rapporteur on Freedom of Opinion and Expression, and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles) are all specifically mentioned as authorities that should be referenced for determining the scale and appropriateness of government action.

An example of how these authorities limit governmental actions can be take from the Johannesburg Principles. National Security limitations do not include protecting a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

Source: Johannesburg Principles, Principle 2(b)

Lastly, the GNI takes its definition of Privacy from Article 12 of the UDHR and Article 17 of the ICCPR.

Article 12 of the UDHR states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

This language is echoed in Article 17 of the ICCPR.

The GNI utilizes this language almost word for word to define privacy.

Again, the GNI recognizes that a right to privacy may need to be restricted in narrow circumstances. These restrictions should be consistent with international human rights standards.

The GNI fails to define what authorities can define and interpret the human rights law relating to privacy.

It is clear that the GNI relies heavily on international legal principles and standards to generate it's voluntary code of conduct.

Nations will still be able to limit and control what their populace reads and writes online, but the area which they control may be limited to specific purposes as defined by international human rights law.

WHAT DOES THIS MEAN TO THE READERS?

Will the GNI prevent a political journalist from being arrested in China?

No.

Will the GNI help conceal the identities of feminists in the Middle East?

No.

The GNI will make it harder for governments around the world to oppress their populations, but the GNI will not prevent that oppression from ever occurring.

The GNI makes it less likely that GNI member companies will cooperate with nations on privacy invasions.

Here's how this might work.

For the individual, the GNI does not give a private right of action. In other words, you cannot sue Google just because they violate the GNI.

But if you are suing Google under an existing right of action, you can use the GNI as evidence of commitments Google took upon itself.

These corporate codes of conduct act as evidence of a commitment – a standard the corporations are trying to realize. Courts may find it reasonable for users to rely on such public statements of principles when weighing liability.

Because the members of the GNI have voluntarily assumed these standards, they have assumed potential liability when they violate these standards.

These companies could lose lots of money by not living up to their word.

And the one thing companies hate to do is lose money.

Employees fired for following the GNI may be able to sue for wrongful termination. Customers could use the GNI as evidence of a reasonable expectation of privacy in lawsuits

So when censorship and invasion of privacy issues arise, GNI members will have to calculate the financial costs of breaking their own word.

And that calculation makes them a little more likely to protect the privacy of you and me.

--
www.joshualenon.com

Space Law - A Primer on the Final Frontier

2008-10-22T08:30:00.000-07:00

It should come as no surprise that outer space is getting a little crowded.

Industrial and developing nations are rushing to take advantage of the benefits of satellite technology for observation and communication purposes.

Space exploration is also increasing.

Recently, India launched its first unmanned mission to the moon.

This comes only a year after China's moon project launch and a month after its third manned mission and first spacewalk.

Even the European Space Agency (ESA) is looking at building its own manned spacecraft.

And that does not even begin to consider the rise of private spaceflight companies.

A lot of people are rushing to claim their piece of the night sky.

But can they actually own a part of outer space? And can they do whatever they want up there?

Currently, outer space is getting a lot of attention in the international legal community. Issues like jurisdiction, safety & liability, and private vs. military uses all raise legal questions.

Everyday International Law (EIL) plans to look at the law surrounding military functions in outer space. This is often called the weaponization of space.

To do this, we first need to look at the existing law that governs outer space.

In a later entry, we'll look at how those laws relate to the weaponization of space. We'll also look at a possible emerging treaty; the applicability of customary international law, and the latest U.S. domestic policies that apply to outer space.

What is the existing international law for outer space?

The treaties specifically discussing obligations in outer space include:

Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water, 1963 (“Limited Test Ban Treaty”)
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 ("Outer Space Treaty")
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968 (“Rescue Agreement”)
Convention on International Liability for Damage Caused by Space Objects, 1972 (“Liability Convention”)
Convention on the Registration of Objects Launched into Outer Space, 1975 (“Registration Convention”)
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 ("Moon Treaty")

These treaties are not the totality of corpus juris spatialis (the law of outer space), but lay out most of the obligations that nations have affirmatively undertaken.

What obligations do these treaties create?

Space is to be used for peaceful purposes.
Outer Space is not subject to national appropriation by claim of sovereignty, even by occupation.
Military bases are not permitted on the moon or other celestial bodies. Use of military personnel in space exploration is permitted.
Nuclear weapons & weapons of mass destruction are not to be deployed in outer space.
Space-faring nations have a duty to rescue stranded astronauts and return other nations' retrieved space objects.
If a nation's space activities causes damage on Earth in another country, that nation is obligated to pay for those damages.
Nations launching objects into Earth orbit must register the object as soon as reasonably possible with a United Nations' registry, stating the orbiting path of the object and its purpose.

There are other duties, like giving reciprocity to representatives from other nations, but these are the main duties derived from this collection of treaties.

Interestingly, most of these treaties are signed by a large number of the international community. The Moon Treaty is not signed by many nations at all. Only 17 nations have signed it. Of the nations that are exploring the moon, only India has signed the Moon Treaty.

Next, EIL will take at look at recent developments in the weaponization of outer space and what international law may govern there.

Space Law Resources

2008-10-22T08:17:00.000-07:00

As I continue to research laws relating to the weaponization of outer space, I would like to thank P. J. Blount, Research Counsel, National Center for Remote Sensing, Air, and Space Law and Instructor of Law, for his advice on space law resources.

You should read his blog on space law: Res Communis

Also be sure to look at the University of Mississippi School of Law's Space Law Center - the first of its kind in the United States.

EIL Changes

2008-10-20T10:34:00.000-07:00

Hello, I'm making some changes to the layout of Everyday International Law (EIL).

As you can see I'm switching to a 3-column layout.

I'm also adding tags to each entry. You can see them at the end of an article.

Hopefully, these changes make it easier to navigate EIL and they should be completed this week.

Joshua Lenon

Potential Financial Summit Already Lurching

2008-10-19T14:10:00.000-07:00

President Bush recently met with French President Nicolas Sarkozy and European Union President Jose Manuel Barroso.

They discussed a potential summit to address the financial crises spreading throughout the world.

As I predicted, the U.S. is already refusing to commit to any significant action on the international level.

First, no date has been set for this summit.

But this could just be because of the looming revamping of the U.S. government. No matter which presidential candidate wins the upcoming election, they will need time to prepare for such a meeting.

Secondly and more telling, Bush is arguing that no action should be taken that hampers the 'the commitment to free enterprise, free markets and free trade.”

I think it can be argued that the markets have been too free lately. Allowing large scale speculation in land, housing, commodities, and oil has led to disastrous consequences that are just now playing out.

The rest of the world is not amused with Bush's lack of leadership on this issue.

France's Sarkozy views U.S. participation in an international scheme as necessary.

"Since the crisis started in New York, maybe we can find the solution in New York," he said. "This is a worldwide crisis, and therefore we must find a worldwide solution."

What does this mean to the readers?

I think the media will focus lots of attention on this proposed summit.

Some type of joint statement of purpose will come out of the summit.

The statement will be generic, with not a lot of details on any real action. No participant will be required to do anything specific, but each will pledge to be more vigilant on policing unregulated behavior that could lead to another financial crises.

Readers should expect no real legislative action on any proposals that come from such a summit.

Instead, readers may see executive orders requiring regulatory agencies to consider the statements expressed from the summit.

That's my cynical take on how this summit is shaping up.

Of course, results from the upcoming U.S. presidential election may make it necessary to revisit this prediction.

Future Posts

2008-10-15T09:32:00.001-07:00

I'm currently attending a legal conference, so posts may be sparse this week.

Here are two topics I'm currently researching:

The proposed Anti-Counterfeiting Trade Agreement (ACTA) and its controversial provisions
A look at the Weaponization of Space.

Of course, if there are any topics you would like me to review, please contact me using the links in my profile.

Joshua Lenon

Germany Supports Financial Summit

2008-10-15T09:26:00.000-07:00

Germany has announced support for a summit to create an international regulatory scheme to prevent future worldwide credit crises.

Such a summit was proposed by France back in September.

As predicted, it looks like the summit will happen.

Will a new regulatory scheme come out of the summit?

Well, you know my thoughts on the matter.

International Credit Check

2008-10-14T12:41:00.000-07:00

The CSM has a great article about international coordination and cooperation between industrial countries towards the credit crisis.

You can read the article here.

Still, this increased cooperation is not a regulation of the international flow of capital. For that, I still see soft law as the best hope for future international law.

Obama on UNCLOS

2008-10-10T06:44:00.001-07:00

Google tells me that Barack Obama (Democratic Presidential Nominee) is fully supporting the U.S. ratification of the United Nations Convention on the Laws of the Sea (UNCLOS).

Here's an article from the LA Times in which Obama expresses his support for the treaty.

However, nothing on this topic is listed in Obama's platform on his campaign website.
--
www.joshualenon.com

Palin Cries Uncle on UNCLOS

2008-10-09T17:26:00.000-07:00

I was not planning to spend much time discussing the 2008 U.S. presidential election, but Opinio Juris has a interesting post on Sarah Palin (Republican vice presidential candidate) in her role as Alaskan governor encouraging the ratification of United Nations Convention on the Laws of the Seas (UNCLOS).

Opinio Juris notes that Palin seems primarily concerned about losing access to mineral resources by failing to ratify.

Opinio Juris also goes on to talk about John McCain's disapproval of UNCLOS.

Swing by and give it a read.

I'm currently researching Barack Obama and Joe Biden's opinions on the matter.
--
www.joshualenon.com

WWWTOD? - What would the World Trade Organization Do? Milking China Edition

2008-10-09T14:11:00.001-07:00

China dominates world markets, especially in manufacturing.

It seems like you cannot buy anything without it being made, assembled, or containing components made in China.

But allowing one country with questionable oversight practices to control your country's access to manufactured goods does not always work out.

China has received some negative PR when several of its products have been found to possess dangerous flaws.

A run down of products from China that have recently turned out to be contaminated:

It appears that dairy companies and some Chinese government officials, knew that an industrial chemical - melamine - was being added to milk-based baby formula.

This doctoring was done to make the powdered formula seem more protein-rich.

When consumed, melamine can be harmful to humans, especially infants and children.

Apparently, the doctoring was so widespread that at least 53,000 children in China needed medical treatment and at least four died after consuming the tainted product.

China's chief governmental official overseeing quality control resigned and 22 different dairy companies recalled their product.

But that has not stopped the tainted dairy products from being discovered around the world.

Chocolate-company, Cadbury, had to recall products it had made using milk-powder from China. These products were sold not just in mainland China, but also in Hong Kong, Taiwan, and Australia.

Kraft foods has concerns about it's Oreo-brand cookies that are sold worldwide.

Tainted candies are being found by officials in Canada, Europe, and the United States.

China's milk crisis has become a global problem, but what can be done about it?

What are the issues?

Can a nation prevent tainted food products from being imported in this age of free trade and global economies?

Yes.

Countries can prevent tainted food products from entering their borders, but they must do so in accordance with legal guidelines and with the backing of sound scientific data.

What is the controlling international law?

When a problem revolves around trade of a product across borders, you sound immediately look to the World Trade Organization (WTO) agreements. These are a system of treaties that have established trade guidelines that must be followed by the participating member states.

Both the U.S. and China are WTO members.

The U.S. is one of the original signors in 1995, while China acceded to the agreements in 2001.

This means that both the U.S. and China are bound by the WTO agreements, which limits what they can and cannot do in regards to international trade.

The WTO used to have a plurilateral agreement on regulating dairy trade - the International Dairy Trade Agreement - but this agreement was allowed to lapse in 1997.

Now, the guiding agreement under the WTO is the Agreement on the Application of Sanitary and Phytosanitary Measures.

Annex A 1 (b) tells us that sanitary or phytosanitary measure are any measure taken:

"to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs..."

It seems to me that preventing industrial chemicals being used as a food additive from poisoning infants and children is exactly in the province of this Agreement.

Annex C allows member states to check and ensure that products meet sanity & phytosanitary measures so long as they do not impose undue delay or unfavorable processes on imported goods.

So, WTO members have permission to check incoming food imports.

Article 5 of the agreement stops member states from banning food imports without justification. Member states must use risk assessment techiniques appropriate to the circumstances and based on international standards or sound scientific data.

In this case, it is well documented that melamine is harmful to humans. It is a chemical used in plastics production that leads to kidney stones and other health problems when consumed.

Scientific data exists to justify testing and banning products containing melamine.

There are further measures relating to giving notice to exporting countries and dispute resolution, but I think we have enough information to see how this affects you.

What does this mean to the reader?

WTO members have the right to ban food product imports if they have reasonable justification to do so.

They can do so to protect the health of their populace.

They require scientific proof that such a ban is justified.

Here, the weight of evidence justifies banning dairy-related products that are produced in China.

Readers should expect that government agencies will begin testing food with Chinese dairy products in them and banning some of them in the near future.

Already, the U.S. and Europe do not allow that importing of baby formula produced in China. It now looks like that ban may spread to other products with Chinese dairy in them.

Expect these announcements to come from agencies like the U.S. Food and Drug Administration.

I assume such measures will be labelled temporary, "until further notice," as a way to mollify complaints from China and multinational food processors.

China will seek a dispute resolution from the WTO based on the scientific evidence used to justify these bans.

--
www.joshualenon.com

Pole Position - the race for the Arctic wealth

2008-10-06T07:05:00.000-07:00

The region of the Arctic has long been thought to be a route to riches. Now, it is looking as if the Arctic itself is where those fable riches are located. The rapid melting of polar ice is exposing new areas for exploration and exploitation. Countries with borders above the Arctic Circle are rapidly jockeying for who will control these resources.

Russia was one of the first nations to claim the untold, untapped riches lurking beneath the ice and water. In 2007, Russia attempted to claim the undersea region of the North Pole by placing a titanium version of their country's flag on the seabed 4,200m (14,000ft) below the North Pole.

Canada has disputed Russia's claim. The United States has sent a Coast Guard ship to serve a joint mission with Canada to determine the extent of the continental shelf north of Alaska and map the ocean floor. This data would be used for oil and natural gas exploration.

Britain's International Boundaries Research Unit has recently published a new jurisdictional map of the Arctic, complete with geographic and legal definitions overlayed.

Norway, Denmark - every arctic country wants a piece of the action.

What are the issues?

There issue involved here is international law relating to territorial sovereignty as expressed along coastlines.

What is the governing international law?

Unlike Antartica, the arctic regions of the north have no single treaty governing ownership and use.

Russia's planting of their titanium flag may seem like a blatant terra nullius land grab, but it was not. The accompanying statements to this event made it clear that Russia was attempting to make a claim under the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty.

UNCLOS is a convention that defines specific legal terms, duties, and responsibilities for all nations with ocean coastlines. It is meant to replace the customary law governing the oceanic borders of nations. UNCLOS specifically defines what powers a nation state can exercise in territorial waters, how territorial waters are defined, and created the concept of Exclusive Economic Zones (EEZs) where the coastal nation has sole exploitation rights over all natural resources in that zone.

A nation's EEZ extends 200 nautical miles from the low-water mark of a nation's coast or for the length of the state's continental shelf. The treaty allows states to control whichever distance is greater.

So, it becomes very important to determine if your coast has a continental shelf and how far it extends. A broad shelf gives a state more area and resources to utilize.

Source: UNCLOS

This is why the U.S. and Canada are proceeding with high-tech mapping expeditions in the polar regions. They're trying to grab more territory, just like the Russians were trying.

Countries are not allowed to claim that their continental shelf extends beyond the 200 mile limit. Instead, the U.N.'s Commission on the Limits of the Continental Shelf (CLCS) helps determine the actual distance of a country's EEZ by examining claims by member states.

The CLCS was created as by Article 3 of Annex II of UNCLOS.

Surprisingly, the U.S. is a signatory of UNCLOS, but has failed to ratify the treaty in accordance with it's Constitutional process. This means that the U.S. is not a full member to the Convention. Still, U.S. officials have announced that they will treat UNCLOS as customary law. The Bush administration has also urged the U.S. Senate to ratify the treaty – with some reservations.

With every nation possessing an arctic coastline either signing UNCLOS or admitting that it is binding international law, this treaty governs how territorial disputes in the polar sea region will be resolved.

What does this mean for the reader?

The good news is that everyone gets something. Using UNCLOS as the deciding law in this matter means that every nation with an arctic coastline will get some benefits. The British jurisdictional map mentioned above is probably a close approximation of how the upcoming territorial disputes will shake out.

Happily, no one is talking about using military solutions to claim territory in the Arctic Circle.

The Rule of Law works.

The true long term question is, "Does the adherence by these states to international law in this conflict strengthen the case for using international law in the future?"

I think the answer to this question is, "It depends."

There are several factors that contribute to why the interested states are relying on international law in this conflict:

There is already existing international law that binds all the interested parties. UNCLOS governs.
The rewards in this conflict are speculative. No one knows just what resources are available and if they exist in sufficient concentration to be profitably exploited. Why spend money, military resources, and political capital on riches that may not even be there.
On the other hand, the potential resources are too large to ignore. Failure to stake a claim could be an incredibly costly mistake.
It's friggin' cold up there. I mean seriously cold - not even navigable during parts of the year due to the ocean freezing over. The costs to keep men and equipment functioning up there are staggering, even with global warming helping to cut costs. Sometimes, it's just cheaper to talk rather than fight.

So it appears that nations turned to international law in this conflict as part of a low-risk, high-gain bit of gamesmanship. It costs them very little to make a claim under UNCLOS, but not making that claim could cost them a lot in the future.

In a sense, the arctic nations are playing the lottery rather than robbing a bank. Both may get a person a large amount of money, but playing the lottery only means you lost a few dollars if you pick incorrectly. Robbing a bank will get you despised, hunted, and possibly shot.

Which course would you prefer your country take?
--
www.joshualenon.com

Can the U.S. Bail Fast Enough? Rising Tide of Worldwide Resentment

2008-10-01T05:48:00.000-07:00

The BBC has two great collections of quotes from world opinions regarding the U.S. House of Representatives failure to pass a bailout package for the financial markets.

They can be read here and here.

My personal favorite comes from Business Daily in South Africa:

"Even with (a US bail-out plan), the world will be a tense place for a good while yet, especially if nothing is done to tackle the underlying causes of the credit crunch.

And what the demise of European banks has highlighted is that the solutions will have to cross borders rather than involve the US alone. Financial markets and those who play in them will have to be subjected to more and better regulation.

And regulators from different countries will have to work together in ways they haven't until now. But all this is not going to come together quickly, so the road ahead will be rocky. "

I think this quote reflects a growing realization that cross-border capital trading will have to be regulated on an international level.

The question is, 'Can a real framework for international financial regulation exist if the U.S. refuses to participate?"

I think so, but it will have to come about through soft law provisions.
--
www.joshualenon.com

Article Recommendation - When Judges Make Foreign Policy

2008-09-27T17:28:00.000-07:00

Just a quick note to recommend an article in the New York Times magazine.

When Judges Make Foreign Policy focuses on two decisions from the last Supreme Court term and how they reflect ongoing ideological conflicts in how Justices view international law and the U.S. Constitution.

The two decisions were Boumediene v. Bush & Medellín v. Texas. Both cases required the Court to consider the role of international law in the U.S. judicial system.

The article is interesting in that it endorses a court that acts in an 'activist' manner - looking for legal justifications that lead the country in different directions depending on what is 'good' for the country.

(It seems like I'm constantly referring to articles from the New York Times. They have had unusually good coverage of the legal aspects in international affairs lately.)

Can Soft Law Lead to Hard Financial Regulations?

2008-09-24T11:04:00.001-07:00

President Nicolas Sarkozy of France called for a summit meeting to develop greater international regulations of financial markets at the recent opening of the United Nations General Assembly. This was done in response to financial turmoil in the United States stock & credit markets that has affected the global economy.

Will there actually be a summit?

Probably.

Will the summit achieve any lasting international regulation?

Not a snowball's chance in the heart of the sun.

What are the issues?

Can comprehensive international regulation of the financial market exist? Yes, but history teaches us that it will be ineffective without universal participation.

International law works on states - in part - because they choose to be bound by international law.

A nation that refuses to sign a treaty is not bound by that treaty.

And the United States has refused to sign a lot of multilateral treaties. We've also failed to ratify even more.

With the U.S. holding regulatory control over the NYSE and its affiliated indexes, not having the U.S. as a signor is likely to have very little effect in the short term.

What is the controlling international law?

Stock exchanges tend to be regulated in two fashions, domestic regulation and domestic regulation that applies to corporations.

But stock exchanges also impose their own regulations on their listed members - even though the stock exchange is a private corporation.

What this means, is that stock exchanges help create a body of practice - given legal effect - even though the stock exchanges have no legislative abilities.

They cannot create real laws that are legally binding in a court. But they can create practices through contracts with their members that are so widespread they might as well be law.

In the practice of international law, these widespread types of self-regulation are called Soft Law.

Soft law is a controversial concept. Some legal scholars argue that soft law does not even exist. Many cite that lack of binding commitment or enforcement mechanisms mean that soft law cannot exist, except as a theory.

However, when state actors fail to take action, sometimes all we are left with is soft law.

It has been seen in areas relating to such as human rights law and environmental law that soft law can make a difference in the actions of non-state actors.

An example of soft law would be the Fair Trade Coffee initiative. There are few laws governing the purchase of coffee. The Fair Trade Coffee initiative has set standards followed by individuals and multinational corporations alike.

Soft law has the potential to affect the world.

What does this mean to the reader?

If the U.S. plays to type and refuses to sign any multilateral treaty with new obligations and financial regulations, soft law may the world's only method for creating new regulations and preventing future financial meltdowns.

Chances are pretty good that the U.S. will not sign such a treaty. Our track record says we will refuse.

So, it will be up to the stock exchanges and the countries regulating their own stock exchanges to impose regulations that might save the U.S. financial sector in the future.

Oddly, this may work through a survival-of-the-fittest model among companies.

For example, say the Toronto Stock Exchange required new types of reporting from its listed members. Companies that met this reporting standard would be considered a better investment. Their transparency would reduce the risks associated with the stock.

Those companies that are considered better would raise more capital, and potentially acquire companies that do not meet the new reporting standards.

To survive, companies would have to meet the new reporting standard or risk being acquired or driven out of business.

In this age of international business competition, even companies not listed on the Toronto Stock Exchange would have to compete with these new reporting requirements - even though they are not required.

Non-binding regulations, that affect actors around the world, that's soft law.

And it may be the only way to regulate future financial stability.
--
www.joshualenon.com

WWWTOD? - What would the World Trade Organization Do? U.S. Bailout Edition

2008-09-22T08:46:00.001-07:00

What is the Issue?

Does the massive bailout of the U.S. financial services sector by the U.S. government violate international law?

We already know that the last series of bailouts has been viewed with skepticism by the rest of the world. The bailouts have been seen as either an example of U.S. hypocrisy when insisting on deregulated markets in treaties or an admission of the failure of the U.S. guiding financial policies.

But is the bailout illegal under an international law regime?

What is the controlling international law?

The World Trade Organization governs many obligations - including domestic regulation - relating to trade and business.

The United States is a member of the WTO - voluntarily assuming obligations imposed by the Marrakesh Agreement, signed in 1994 and entering force in the U.S. in 1995.

The section of the Marrakesh Agreement that applies to financial services - like banking - is the General Agreement on Trade in Services (GATS).

Annex 1B of GATS contains the following provision in Article XXIX; Annex on Financial Services; Paragraph 2(a):

"Notwithstanding any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member's commitments or obligations under the Agreement."

(Source: WTO.org)

The seems to clearly indicate that actions taken to prop up failing domestic financial service suppliers are exempt from the WTO limits.

This includes throwing unprecedented sums of money at financial institutions in the hope that investment banks land softly and they can then proceed to swim about like Scrooge McDuck.

All perfectly legal under international law.

How does this affect the readers?

Readers can expect that many countries around the world will not contest the U.S. bailout in WTO tribunals. Get ready for your cash to help pay for executive golden parachutes.

Instead, foreign banks - like UBS - will be lining up to receive U.S. taxpayer cash. We're already seeing it happen.

The next question is, are we obligated to pay money to foreign banks as well as domestic ones?

Paul Stephan over at International Economic Law and Policy Blog tackles that issue here.

--
www.joshualenon.com

America's Latest Failing Export - Law

2008-09-17T10:13:00.001-07:00

The New York Times has a fascinating article on how the international legal community is no longer looking to the U.S. for legal guidance.

Courts around the world have looked to the United States' Supreme Court decisions and modeled their own legal systems based on those outcomes.

There were several reasons listed for this. For example, the rise of constitutions after World War II, in countries whose legal traditions had never functioned with anything larger than a civil code, left foreign courts seeking guidance. The court systems in these countries suddenly found themselves weighing constitution challenges - something the U.S. Supreme Court has been doing since Marbury v. Madison. That's two hundred years of detailed legal analysis that these courts relied on again and again.

But this is not the case anymore. With U.S. diplomacy waning and our human rights approach conflicting with the civil liberties policies of other democracies, foreign courts have turned away from American jurisprudence and are seeking guidance elsewhere.

More often, these foreign courts are looking to the Canadian Supreme Court, the Constitutional Court of South Africa, and the European Court of Human Rights.

The world no longer looks to the U.S. as a model for how to behave or how to protect their own citizens. I find that profoundly depressing.

What does this mean to you, the reader?

If U.S. law becomes increasingly disparate and isolated from legal trends in the rest of the world, we will find it difficult to convince other countries to cooperate with us in a variety of matters.

We've already had past difficulty getting suspected criminals extradited to the U.S. from other countries due to our use of the death penalty. Here's one example from the BBC, about the difficulties of extraditing a narcotics criminal from Brazil.

The farther we let the our legal norms diverge from the norms of the rest of the world, the more the rest of the world will turn their back on the U.S.

What can we do? Are we to blindly copy the legal decisions of the rest of the world, replacing our own law with theirs?

No. That is an abdication of the responsibilities voluntarily assumed by judges and lawmakers to uphold the Constitution and laws of the United States.

But what we can give serious consideration to the legal reasoning of foreign courts. Let our legal scholars and lawmakers weigh the logic and ideas of foreign courts. Let's use the knowledge of the whole world to test our ideas of justice and fairness.

Justice can be found in a court room on the other side of the world, and we would be blind not to acknowledge a new and novel way of finding that justice just because of where it was uncovered.

The U.S. used to lead the world in tackling the difficult legal problems of the modern age. Just because we are no longer the only place to which the world looks for guidance, is no reason to let ourselves be left behind.

--
www.joshualenon.com

South Diplomat Row Continues

2008-09-12T13:13:00.001-07:00

The New York Times has a nice article explaining the diplomatic maneuvers between the U.S., Bolivia, & Venezuela and some of it's implications.

Especially interesting is the Treasury Department accusal of Venezuelan intelligence officials of aiding Colombia's largest rebel group - FARC.

Read the article here.

Newsflash: Diplomatic Strife between the U.S., Boliva, & Venezuela!

2008-09-12T12:04:00.001-07:00

The U.S. and Venezuela have both declared each other's diplomats persona non grata - which is the legal term for 'get the hell out.'

According to this article, this diplomatic showdown started after Bolivia asked the U.S. envoy in La Paz to leave. Bolivia accused the U.S. ambassador of instigating violent protests amongst the lower class.

What's the controlling international law?

The Vienna Convention on Diplomatic Relations of 1961 controls - well - diplomatic relations. It ensures safe passage for diplomats and their goods and codifies the inviolability of embassies and consuls. This inviolability existed before the Convention as customary law, but controls now.

The U.S., and Venezuela are both signatories to the Convention. Bolivia has acceded to the Convention.

Article 9 of the Convention states:

"The receiving State may at any time and without having to explain its decision, notify the
sending State that the head of the mission or any member of the diplomatic staff of the mission is
persona non grata or that any other member of the staff of the mission is not acceptable. In any such
case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions
with the mission."

This means that any state that may at any time may withdraw recognition of a diplomats credentials and ask them to leave the country. There does not have to be a reason for a state to do this.

Expelling diplomats is a move often used in brinkmanship between countries.

What does this mean to you?

The expulsion of diplomats is hardly a reason to panic. Theoretically, new diplomats could be sent to replace the ones expelled. No country appears to have severed all diplomatic relations.

Still, such brinkmanship from South American countries is troubling. The U.S. relationship with many countries south of its border have become tense. Decades of intrusive narcotic policies, support for toppling local governments, and rising rhetoric by the U.S. towards South America has created an increasing sense of mistrust.

The implications from this is that the U.S. will find itself increasingly unable to influence policy in this area. From drug trafficking to mining and oil sales, South American countries may find reasons to go against the interests of the U.S. If only out of spite for decades of ill treatment.

As world politics shift to accommodate the rising economic might of China & Russia, the U.S. should be seeking to strengthen relationships, especially with it's neighbors.

Georgia on my mind...

2008-08-26T07:53:00.001-07:00

What are the issues?

Russia has recognized the formation of South Ossetia and Abkhazia as independent countries.

Just like that, Russia hopes to create two whole new countries out of nothing (or out of Georgia, depending how you look at it).

Can they do that?

What is the controlling international law?

Normally, Russia cannot create another country by recognizing a breakaway region of their neighbor.

Countries are defined under international law by specific qualities: "a state is an entity that has a defined territory and a permanent population under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities."

Source: Restatement (Third) of the Law of Foreign Relations, section 201

None of these qualities - defined territory, permanent population, government control, & capacity for formal relations with other states - depends on an outside actor. That means South Ossetia has to meet the requirements of statehood on its own. Russia's recognition - while helpful as evidence of capacity to engage in formal relations with other states - does not automatically create a new country.

This is especially true as there is a dispute to territorial integrity in the area. Georgia still claims that area as a dependent province of their own country. No legal actions - including the recent ceasefire agreement - negates Georgia's claim.

Russia might have an argument if the breakaway region was currently part of Russia. Russia could always voluntarily give up part of their own territory to create new countries. Such events were seen to occur when the former U.S.S.R. let it's member states form their own independent countries.

Also governing is the the 1975 Helsinki Final Act that specifically endorses the "Inviolability of frontiers" and "Territorial integrity of States."

Muddying the waters on this issue is the recent formation of Kosovo as a independent nation. Legally speaking, Serbia had the right to maintain control over Kosovo when it broke away. However, many Western countries - including the United States - were quick to recognize Kosovo as an independent state. This vocal support acts as a limiting factor on how Serbia reacts to this separatist movement. So far, they've turned away from military solutions to the International Court of Justice for a ruling on Kosovo's independence.

What does this mean to you?

Believe it or not, separatism movements are commonplace in North America. Quebec wants to leave Canada. Certain populations in the southern states in the U.S. have always maintained that they will 'rise again' and leave the United States. The Zapatistas in Mexico often speak of self-rule for the region of Chiapas. Sometimes, it seems like we're struggling to hold it all together.

Right now, a new precedent is emerging on how the international community deals with separatist movements and breakaway regions.

Kosovo and Georgia are test cases that will determine if our international rules are changing.

If they do change, future upheavals might make it easier for the delicate constructions of nations that we maintain to fall apart. We can go from a situation of assumed national integrity to a fragile coalition that can fall apart at any minute. More importantly, outside actors can take steps - legally - to hasten such breakups.

Russia is trying to set a precedent that outside actors can help tear apart nations to create new states.

If we allow this to be the new international rule, we shouldn't be surprised when some other nation supports Texas leaving the United States.

The Georgian / Russian Conflict and International Law

2008-08-17T14:35:00.001-07:00

There is an excellent article at Opinion Juris on an international legal view of the conflict in Georgia.

Chris Borgen takes an excellent look at the issues surrounding the possible secession movement in South Ossetia and implications in international law.

Borgen rightly notes that secession tends to be a matter of internal, domestic law but can spill over into the international arena. This is a fact of which the Russians appear to have cynically taken advantage.

Borgen goes on to address the Russian's strongest argument - that interference in Georgia is justified similarly to NATO's interference between Serbia & Kosovo.

I find Borgen's analysis to be spot on and Opinio Juris has done a thorough job reviewing the international legal aspects of this tragic affair - much more thorough than I could do.

How does this affect you?

As for North Americans, like most international affairs, the Georgian / Russian conflict has a direct impact on oil prices. Russia is the world's largest exporter of natural gas and the world's second largest oil exporter. Europe is the largest consumer of that oil.

Georgia has one of the few pipelines in the region that is not controlled by Russia. Should Russia succeed in annexing Georgia (or destroying the pipeline), they will have tightened their control on the regional oil exports. Russia will control a spigot they can turn to manipulate oil prices at a whim. Europe will have no choice but to buy oil from Russia or the global market - taking oil that would normally be sold elsewhere.

This means that North Americans would see a shrinking supply of oil and increased prices. So far, falling demand and quick diplomacy from the European Union has prevented a lasting price shock, but tensions still exist. Any resumption of blatant hostilities will lead to a rise in prices at the gas pump.

As a side note, U.S. diplomacy seems to be especially ineffective. The U.S. military invasion of Iraq on trumped up pretenses have given other would be conquerers a powerful rhetorical weapon to through back in the U.S.'s face. We've given a the tinpot dictators of the world cover for blatant acts of illegal aggression. We'll regret this for decades to come.

Mexico Invades!

2008-08-13T01:46:00.000-07:00

Many conservative pundits and voters worry an invasion of illegal immigrants from Mexico and Central America.

Very often, it's tough to get a nuanced discussion on the economic realities that encourage people to uproot their lives and work in inhumane and degrading conditions in another country. (Personally, I have no idea how bad my life would have to be to make migrant farm work seem attractive.)

Corrupt and ineffective governments force their citizens to seek better lives in our country which has corrupt business practices, and lax and ineffective enforcement of labor laws. There are few winners in the illegal immigration morass - except corrupt meat packing plant owners and consumers of cheap Californian produce.

That's my view.

However, certain events make getting a nuanced debate even harder.

For example, when Mexican army forces illegally enter the U.S.

For four tense minutes, a U.S. Border Agent was held at gunpoint by Mexican troops that had entered the U.S. accidentally in a remote desert region known for smuggling.

This was the 42nd such incident in the last year.

Let's look at the EIL International Law Breakdown in such incidents:

What are the issues involved?
Minus an actual shooting, the only issue here appears to be confusion on the location of the U.S.-Mexico border.

What is the controlling International Law?

Two pieces of International Law apply, the Treaty of Guadalupe Hidalgo of 1848 and the Gadsden Purchase of 1853. Both of these actions defined who had territorial claim over the region now known as southern Arizona.

Worries about border integrity might also look to the International Court of Justice's (ICJ) 2004 ruling on a fence built by Israel in the occupied territory of the WestBank. This ruling probably does not apply, U.S. border security measures are taken inside the U.S. border; the Israel barrier was built in occupied territory is disputed to be not owned by Israel.

How does this affect you?

Unless your looking for reasons to militarize the U.S.-Mexico border, this occurrence has absolutely no effect on the normal reader. Importantly, this mistake happened between two official bodies that were trying to secure a shared border. Putting more bodies on the border will only end with more incidents of lost officials and tense stand offs. Honestly, instead of turning to International Law as a means of resolving these border incursions, the U.S. should just donate some GPS units to the Mexican army.

Doha Round Collapses - Again

2008-07-31T06:47:00.000-07:00

Again, the Doha round of negotiation has ended with no resolution.

Developed and developing countries are not able to create a framework to lower trade barriers on agricultural goods.

The result is that world trade will continue to function unevenly through bilateral trade deals and WTO rulings.

For consumers looking for a break on rising food costs - keep looking. Right now, the governments of the world are not looking out for your pocketbooks.

Interestingly, Brazil seems to be a powerhouse in this round of negotiations. Rising commodity prices and over a decade of sound fiscal policy and social investment, have left Brazil with a strong economy and currency and a rising middle class. Because of this, Brazil was able to remain firm on issues important to them.

Focusing on improving your own country seems to make you stronger internationally. Who knew?

Personal MBA Booklist

2008-07-29T21:15:00.000-07:00

The Personal MBA website has published their 2008 reading list. The list is meant to give readers a background in business similar to studying for a MBA.

This list is so popular that the website crashed. I was able to grab a copy and have posted it hear with Amazon.com links for easy browsing.

Enjoy.

General Books

10 Days to Faster Reading

StrengthsFinder 2.0

Lead the Field

The Art of Exceptional Living

Productivity & Effectiveness

The Effective Executive

Getting Things Done

Bit Literacy

The Creative Habit

Path of Least Resistance

The Simplicity Survival Handbook by Bill Jensen

Cut to the Chase by Stuart Levine

The Unwritten Laws of Business by W.J. King

Making Things Happen by Scott Berkun

Results Without Authority by Tom Kendrick

Psychology & Communication

How to Win Friends and Influence People by Dale Carnegie

Crucial Conversations by Kerry Patterson, Joseph Grenny, Ron McMillan, and Al Switzler

On Writing Well by William Zinsser

Presentation Zen by Garr Reynolds

Made to Stick by Chip and Dan Heath

Influence: The Psychology of Persuasion by Robert B. Cialdini

Sources of Power: How People Make Decisions by Gary Klein

Secrets of Consulting by Gerald M. Weinberg

Deep Survival by Laurence Gonzales

Design & Production

Product Design and Development by Karl Ulrich and Steven Eppinger

The Design of Everyday Things by Donald Norman

Universal Principles of Design by William Lidwell, Kritina Holden, and Jill Butler

Getting Real by 37signals

The Goal by Eliyahu Goldratt

Lean Thinking by James Womack and Daniel Jones

Marketing, Sales, & Negotiation

All Marketers Are Liars by Seth Godin

Indispensable by Joe Calloway

Getting Everything You Can Out of All You've Got by Jay Abraham

The Sales Bible by Jeffrey Gitomer

The Ultimate Sales Machine by Chet Holmes

SPIN Selling by Neil Rackham

Bargaining For Advantage by G. Richard Shell

3-D Negotiation by David A. Lax and James K. Sebenius

Entrepreneurship

The New Business Road Test by John Mullins

Bankable Business Plans by Edward Rogoff

Ready, Fire, Aim by Michael Masterson

The 4-Hour Workweek by Timothy Ferriss

The Art of the Start by Guy Kawasaki

How to Make Millions with Your Ideas by Dan Kennedy

Getting Started in Consulting by Alan Weiss

Management & Leadership

First, Break All The Rules by Marcus Buckingham & Curt Coffman

12: The Elements of Great Managing by Rodd Wagner & James Harter

What Got You Here Won't Get You There by Marshall Goldsmith

Growing Great Employees by Erika Andersen

Hiring Smart by Pierre Mornell

Judgment by Noel Tichy & Warren Bennis

The New Leader's 100-Day Action Plan by George Bradt, Jayme Check, & Jorge Pedraza

The Halo Effect by Phil Rosenzweig

The Essential Drucker by Peter F. Drucker

Ethics for the Real World Ronald Howard & Clinton Korver

Strategy & Innovation

Purpose: The Starting Point of Great Companies by Nikos Mourkogiannis

Competitive Strategy by Michael Porter

Blue Ocean Strategy by W. Chan Kim and Renée Mauborgne

Seeing What's Next by Clayton M. Christensen, Erik A. Roth, Scott D. Anthony

Learning from the Future by Liam Fahey & Robert Randall

Innovation and Entrepreneurship by Peter F. Drucker

Myths of Innovation by Scott Berkun

Green to Gold by Daniel Esty & Andrew Winston

Finance & Analysis

Essentials of Accounting (9th Edition) by Robert N. Anthony and Leslie K. Breitner

The McGraw-Hill 36-Hour Course in Finance by Robert A. Cooke

How to Read a Financial Report by John A. Tracy

Turning Numbers Into Knowledge by Jonathan Koomey

Show Me The Numbers by Stephen Few

Marketing Metrics by Paul W. Farris, Neil T. Bendle, Phillip E. Pfeifer, and David J. Reibstein

Web Analytics: An Hour a Day by Avinash Kaushik

The 80/20 Principle by Richard Koch

How to Lie with Statistics by Darrell Huff

Personal Finance

Your Money or Your Life by Joel Dominguez & Vicki Robin

The Millionaire Next Door by Thomas Stanley & William Danko

The Lazy Person's Guide to Investing by Paul Farrell

The Boglehead's Guide to Investing by Taylor Larimore et al

Work Less, Live More by Bob Clyatt

It's Not About The Money by Brent Kessel

SUPPLEMENT: Business History

Money and Power: The History of Business by Howard Means

Brand New by Nancy F. Koehn

Founders at Work by Jessica Livingston

Citizen Marketers by Ben McConnell & Jackie Huba

The Book of Business Wisdom by Peter Krass

The Book of Leadership Wisdom by Peter Krass

The Book of Management Wisdom by Peter Krass

The Book of Entrepreneurs' Wisdom by Peter Krass

SUPPLEMENT: Business History

Business: The Ultimate Resource from Basic Books

The Streetwise Small Business Book of Lists edited by Gene Marks

Every Manager's Desk Reference from Alpha Books

Finance for the Non-Financial Manager by Gene Siciliano

The Copywriter's Handbook by Robert Bly

Principles of Statistics by M.G. Bulmer

Law 101 by Jay M. Feinman

2008 Business Reference Guide by Tom West

Doha Talks Close to Collapse - Again

2008-07-29T07:03:00.001-07:00

The latest round of negotiation in the Doha round of the World Trade Organization (WTO) continues to lurch one step forward, three steps back.

Emerging factors:

- Many European countries feel that China cannot continue to be treated as a developing country. Being labeled a 'developing country' allows a nation to maintain higher trade barriers than it would normally be allowed under WTO rules.

- The United States continues to demand more access to other countries in return for concessions. Depending on the demands, this is not the worst position. The U.S. remains the market every country wants to exploit.

- Germany is the world's largest exporter. I need to do more research on this one, but this is the claim by Reuters.

Doha Talks Continue

2008-07-25T21:35:00.000-07:00

The latest chapter in the seven-year ongoing negotiations in free trade is coming to a close. Since 2001, the World Trade Organization (WTO) has been periodically negotiating a new series of global free trade agreements.

The Doha round – named after the Qatar city where the talks first started – is supposed to focus on agricultural products. Food & drink are two of the products that the developing world might be able to competitively produce.

This terrifies many different parties. Why? Let's take a look at the issues.

What are the issues involved?

Environmentalists fear that increased trade in agricultural products will encourage environmentally irresponsible actions by desperately poor people. (See Brazil's problem with slash-and-burn ranchers.)

Isolationists fear what happens when a nation becomes dependent on other nations for food supplies. (Although, these same people demand tomatoes and oranges during January's icy grip and bananas year round. Where do they think this fruit grows? Not in North America.)

Lastly, North American & EU politicians fear what happens when they stop giving their local farmers subsidies. (You can't win votes in the "heartland" if you aren't writing government checks to farmers. France has an especially strong agricultural voting bloc.)

These fears have stretched the Doha talks from the projected four years to seven years with more to come.

In order to address some of these fears, the talks now include lowering tariffs on industrial and manufactured goods and services such as telecommunications. This is a large change from the original mandate of the talks. These items have been included to ease the fears of developed nations.

It is hoped that developed nations will open their markets to developing world agricultural goods if the developed can shipped finished goods and services to these poorer nations.

What is the controlling International Law?

Right now, none. The point of the Doha talks is to create a global body of international trade law governing trade barriers. Absent an agreement leading to WTO authority, the world will continue to muddle along with hodge-podge bilateral trade agreements and bootstrapped General Agreement on Tariff and Trade (GATT) provisions.

How does this affect you?

Right now, failure in the Doha talks makes it easier for the government to continue to pay farm subsidies. While helping farmers sounds good, at times it has artificially increased the price of food to the average consumer.

So, successful Doha talks may lead to cheaper food for the average American consumer.

Profitable agriculture may also stabilize developing countries desperate for income. If you can make a living farming, you may not fall into the cycle of the angry dispossessed that afflicts these nations. More peace is a possible outcome of successful Doha talks.

However, the inclusion of services in the talks means that it may be easier for multi-national corporations to outsource white-collar jobs to developing nations.

The impact of Doha can be positive, but negotiators for all side need to remain mindful of some pitfalls.

Government of developed nations should fight for stricter environmental and labor practices in the poorer countries.

Poorer countries should allow the developed world to create social insurance for their workers that might be negatively impacted by this lowering of trade barriers.

How Everyday International Law Works

2008-06-23T19:34:00.000-07:00

Everyday International Law will look at current events and ask three questions:

What are the issues involved?

What is the controlling International Law?

How does this affect you?

I'm plan to demonstrate that International Law is present in most people's daily lives.

Trade Gap Widens between Canada & the U.S.

2008-06-16T19:31:00.000-07:00

The Business Journal of the Greater Triad Area has an interesting article on the widening trade gap between Canada and the United States.

WHAT ARE THE ISSUES?

What's interesting is that this news follows talk by both Canadian and U.S. politicians on revising the North American Free Trade Agreement (NAFTA).

NAFTA is a treaty signed by Mexico, Canada, and the United States. The purpose of the treaty is to allow a free flow of goods and services across the borders between each country. It also provides an arbitration framework for reconciling disputes.

The theory went, drop trade restrictions and each country would get wealthier by providing their best resources in a wider marker.

And to be honest, NAFTA has been successful in several economic areas.

U.S. exports to Canada and Mexico grew from US$134.3 billion (US$46.5 billion to Mexico and US$87.8 billion to Canada) to US$250.6 billion (US$105.4 and US$145.3 billion respectively).

Mexican exports to the United States reached over US$138 billion, while Mexican exports to Canada grew from US$2.7 billion to US$8.7 billion, an increase of almost 227%.

Canada’s exports to its NAFTA partners increased by 104% in value.

(Numbers taken from the Office of United States Trade Representative Report: NAFTA: A Decade of Success.)

This economic success has not been felt by every person. Especially in the United States, blue collar workers and union organizers attribute continuing loss of jobs in the manufacturing sector on free trade agreements like NAFTA.

These factions want free trade agreements stifled or amended to include increased protections for manufacturing jobs in the United States.

As part of the 2007-2008 U.S. presidential primary campaigns, Democratic Party candidate Barack Obama spoke to voters about his plan to force Canada and Mexico to change NAFTA to be more advantageous to the U.S. It is widely agreed that he took this position in order to pander to working-class voters that are rightfully fearful that more of their jobs will be sent to other countries.

So, the U.S. wants a better deal that protects the U.S. manufacturing center.

Canada is probably quite happy with NAFTA - considering their ever increasing economic growth and widening gap in trade with the U.S.

Mexico's been pretty silent on the matter.

WHAT IS THE CONTROLLING INTERNATIONAL LAW?

NAFTA's own treaty controls the process of changing NAFTA.

There are two methods available:

Article 2202 of the NAFTA treaty allows for 'any modification of or addition to this Agreement. ' And that 'when so agreed, and approved in accordance with the applicable legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement.'

So for NAFTA to be changed, all of the Members of NAFTA will have to agree to change it.

Given that Canada is mostly happy with how NAFTA is functioning, such an agreement is not likely to happen.

The second method is withdrawal.

Article 2205 of NAFTA allows a country to withdraw from NAFTA six months after they give written notice to the other member countries.

So, if the U.S. truly believes the NAFTA is not in its best interest, the U.S. could pull out of NAFTA altogether.

Withdrawal may be the U.S. only method of altering NAFTA.

HOW DOES THIS AFFECT YOU?

We'll focus on the U.S. readers here.

Article 603 of NAFTA currently makes it easier for goods to enter the U.S. This includes the large volumes of oil and gas that Canada is currently extracting from its oil sands and shipping to the U.S.

The U.S. currently imports more fuel from Canada than any other single supplier. Mexico is in the top three suppliers.

(Source: Crude Oil and Total Petroleum Imports Top 15 Countries)

So, if withdrawal is the only likely alternative to remaining in NAFTA, U.S. readers should prepare for a large range of goods to become more expensive.

Oil, gas, and other raw materials shipped from Canada would increase in price due to U.S. trade restrictions.

These price restrictions would apply to everyone - not just the worried manufacturing sector. Families, companies, and everyone else would probably see a dramatic increase in prices.

With the U.S. currently grappling with high energy costs, making it harder to import goods would be disastrous to the economies of all NAFTA members.

Remember this, NAFTA equals cheap gas. Leaving NAFTA equals higher gas prices.

The U.S. can find better means of dealing with lost manufacturing jobs (unemployment insurance, increased educational assistance) than hamstringing the economies of both the U.S. and other NAFTA members.

Note: This analysis does not look at the affect of the General Agreement on Trade and Tariffs (GATT) and the World Trade Organization (WTO) on trade between current NAFTA members.