How to Block China at the WTO: Use GATT Articles XX-XXI

Journal of Political Risk, Vol. 7, No. 9, September 2018 

By William R. Hawkins

The People’s Liberation Army (PLA) Liaoning aircraft carrier, bottom, sails past a container ship in Hong Kong, China, on Friday, July 7, 2017. Photographer: Justin Chin/Bloomberg via Getty Images.

The Ministry of Commerce of the People’s Republic of China (PRC) has announced it will file a complaint with the World Trade Organization (WTO) against the U.S. imposition of 25% tariffs on $16 billion worth of Chinese goods in August. This was the second tranche of tariffs imposed by President Donald Trump as the result of the U.S. Trade Representative’s (USTR) “findings of its exhaustive Section 301 investigation that found China’s acts, policies and practices related to technology transfer, intellectual property and innovation are unreasonable and discriminatory and burden U.S. commerce.” This second tranche brought the total of Chinese imports subject to higher duties to $50 billion, as announced in June. Beijing’s response was given by the state-owned People’s Daily: “By launching the complaint under the WTO dispute settlement mechanism, China is to safeguard free trade and multilateral mechanisms as well as its legitimate rights and interests.”

The USTR report on China’s use of government regulations to force joint ventures (which give majority control to Chinese “partners” of American firms); mandate technology transfers, facilitate “the systematic investment in, and acquisition of, U.S. companies and assets to generate large-scale technology transfer…[and] support cyber intrusions into U.S. commercial computer networks” is not a description of free trade.

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Is The U.S. Doing Enough To Advance Religious Freedom Globally?

Journal of Political Risk, Vol. 7, No. 8, August 2018 

By Terri Marsh, Ph.D., Esq.

Photo taken in February 2018 shows police officers patrolling in the Xinjiang Uyghur Autonomous Region of China. Photo by Kyodo News via Getty Images.

We are facing a crisis as regards U.S. corporations profiting from the sale of technology indispensable to the perpetration of egregious human rights violations in the People’s Republic of China. In 2007 Jerry Yang, CEO of Yahoo! was criticized by U.S. Representative Tom Lantos, chairman of the U.S. House Committee on Foreign Affairs, for Yahoo’s role in the arrest and imprisonment of Chinese journalist and democracy advocate Shi Tao. The case describes the actions that Yahoo! had taken to grow its business in China, complying with a government request for the identity of a Yahoo! user, which subsequently resulted in Shi Tao’s detention and torture. Cisco Systems Inc. arguably facilitated the development of the Golden Shield apparatus in China that has caught Falun Gong, Tibetan Buddhist and Uyghur dissidents in its torture/persecution network. See “Index of Relevant Allegations,” available upon request. These are but a few of the most salient examples.

While U.S. federal courts currently have jurisdiction over U.S. corporations’ international law violations under the Alien Tort Statute, the Supreme Court may deny the grant of jurisdiction, with the appointment of Judge Kavanaugh, as discussed below. The Alien Tort Statute, which became law in 1789 as part of the First Judiciary Act, enabled foreign citizens to seek justice for injuries caused by acts of piracy, which by their nature routinely occurred outside the territory of the United States. The operative part of the Alien Tort Statute (“ATS”) grants jurisdiction for torts in “violation of the law of nations or a treaty of the United States.” [1] Until 1980, the statute was used primarily for piracy cases; however, in 1980, nearly 200 years after the first Judiciary Act, the statue has been applied to human rights litigation. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Since the 1980s, the federal courts have been developing standards to define the reach of the statute. In Sosa v. Alvarez-Machain, 542 U.S. 692, 748 (2004), the Supreme Court limited the jurisdiction of the ATS to a narrow range of violations that are “specific, universal, and obligatory.” [2] In 2011, the Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, to decide whether federal courts have jurisdiction over corporations for enabling egregious human rights abuses overseas. However, because the Supreme Court resolved Kiobel on a different ground, it was not until 2017 in Jesner v Arab Bank PLC, 38 S. Ct. 1386 (April 2018) that the Supreme Court addressed the corporate liability question. In Jesner, it was alleged that the Arab Bank aided and abetted the terrorist organization allegedly responsible for terrorist attacks by maintaining bank accounts that Arab Bank knew would be used to fund terrorism and by identifying the relatives of suicide bombers so that they could be compensated with so called “martyrdom payments.” In a majority opinion authored by Justice Kennedy, the Court concluded that foreign corporations may not be defendants in suits brought under the ATS. See Jesner at 6-11, 18-19, and 25-27. However, the Court did not foreclose suits against U.S. corporations for aiding and abetting egregious human rights violations abroad.[3]

The dissent authored by Justice Gorsuch in Jesner and that authored by Judge Kavanaugh in an earlier D.C. Circuit case signal a shift away from the status quo; that is, it is likely that U.S. corporations – Yahoo, Google, Cisco, Apple and so on, may be able to further egregious human rights abuses overseas if Judge Kavanaugh is confirmed.

Justice Gorsuch’s Opinion in Jesner

Justice Gorsuch authored a concurrence in Jesner.  Concurring with the majority opinion, he distinguished cases filed against foreign corporations, which “risk reprisals from [that] country” from those filed against U.S. corporations that “ensure our citizens abide by the law of nations and avoid reprisals against this country.” Jesner at 1419. However, Justice Gorsuch has indicated his opposition to the use of the ATS in the human rights contexts. Alito appears to agree. See Just Security, “Jenser v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations,” available at https://www.justsecurity.org/55404/jesner-v-arab-bank-supreme-court-preserves-possibility-human-rights-suits-u-s-corporations/. In other words, Jesner did not quite settle the question of corporate liability.

Judge Kavanaugh’s anti-ATS/Corporate Stance

In Doe v. Exxon Mobil Corp., 397 U.S. App. D.C. 371, a group of Indonesian villagers sued Exxon Mobil, claiming that its security forces near an Indonesian plant “committed murder, torture, sexual assault, battery, false imprisonment,” and other misconduct. When a lower court rejected an Exxon motion to dismiss the case at a very early stage, the company filed an appeal, seeking to get the appeals court to take the very unusual step of reversing the preliminary decision or issuing a writ of mandamus to throw out the entire case.  The D.C. Circuit concluded that aiding and abetting is well established under the Alien Tort Statute (ATS), Exxon at 399, and neither the text, history, nor purpose of the ATS supported corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. Id. at 400-419. Dissenting in part, Judge Kavanaugh opined that the plaintiffs’ ATS claims should have been dismissed, inter alia, because: (1) the ATS does not apply to conduct that occurred in foreign nations;[4] or (2) the ATS does not apply to claims against corporations. Id. at 432-434. In light of Judge Kavanaugh’s dissent in Exxon, Judge Kavanaugh seems ready to cast a (perhaps deciding) vote against ATS corporate liability.

Competing Values

The Filartiga line of cases reflect an important principle of international law, that is, that some crimes are so heinous that the perpetrators can be brought to justice for crimes perpetrated overseas.  In the vast majority of these cases, Plaintiffs seek redress not merely for acts that are unlawful, but more particularly, for violations of jus cogens norms, including but not limited to genocide, widespread torture and slavery. As the District Court in Presbyterian Church of Sudan v. Talisman Energy Inc. and the Republic of Sudan, 244 F. Supp. 2d 289 (S. D. N.Y.), noted, jus cogens violations are fundamentally different from other international law violations by the “depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce.” [5] In a similar vein, the Second Circuit said in Filartiga, “[F]or purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.”[6]

According to the testimonials of survivors, these cases have helped heal and empower them by providing survivors and their families with an experience of justice, a sense of meaning in their survival, renewed trust in people and institutions, and a tremendous satisfaction in knowing that they have brought dignity to themselves and to the memories of those who were killed. By uncovering facts and witnesses, these cases also establish a record of accountability through, e.g., the publication of reports. Cases filed against U.S. corporations have additional advantages including a deterrence effect. Moreover, by determining that no U.S. corporations may be sued under the ATS, we are immunizing these corporations from liability for human rights abuses, no matter how egregious they may be.

Of course, one might argue that the United States is putting U.S. corporations at a disadvantage with these laws. If the goal of a U.S. corporation is solely to make a profit regardless of the cost, then any laws that hinders that goal, including tax evasion, corporate fraud, bribery and money laundering also place U.S. corporations at a disadvantage, especially when compared with corporations that operate as state-run enterprises in such authoritarian regimes as China, where they are permitted to operate without such constraints. The egregious nature of the violations including the “toll of human suffering they inflict upon the victims,” would seem to further militate in favor of corporate liability in a well-defined range of circumstances.[7]

In addition, many would agree that these laws give the United States a public relations boon globally in terms of proving our support for human rights. As President Bush (43) said when he signed the Torture Victim Protection Act of 1991 into law (a statute that does not cover corporate violations):

I am signing into law H.R. 2092, the “Torture Victim Protection Act of 1991,” because of my strong and continuing commitment to advancing respect for and protection of human rights throughout the world. The United States must continue its vigorous efforts to bring the practice of torture and other gross human rights abuses to an end.”  See President Bush’s Signing Statement, March 16, 1992, Volume 28-Number 11, pp. 431-481.

The “Bush” principle cannot be upheld while our corporations trample upon these very values overseas.

Some have argued that these cases impose a corporate tax on U.S. corporations. However, the commission of such human rights violations as genocide, widespread torture, and slavery are violations that are inherently wrong wherever are perpetrated. Moreover, the law of aiding and abetting is quite stringent requiring that a corporation know that the product they sell will be used to perpetrate acts of torture (or the like) and nonetheless customize the product for that purpose. Unless one believes corporations may engage in the business of “torture” in order to enhance profits and gain market advantage in authoritarian regimes, this is not so much a “human rights tax” as a limit beyond which corporations should not tread. Indeed, to immunize corporations for the heinous crimes they further overseas is to place them above or outside of the law.

Dr. Terri Marsh is the Executive Director and Senior Litigation partner of the Human Rights Law Foundation, which she launched in 2005. She holds a Ph.D. in Classics from SUNY and a J.D. from New York University School of Law. Following law school, she worked as a consultant for the Legal Defense and Education Fund of the National Organization for Women, the Center for Law and Social Policy, and as the Director of a D.C. Superior Court Diversion Court for juvenile offenders in Washington D.C. She is an active member of the D.C. State Bar and of the federal bars of the Illinois and the District of Columbia, the bars of the First Circuit, Second Circuit, Seventh Circuit, and Supreme Court of the United States of America. She serves on the board of several China related organizations. She is the author of numerous professional articles and presentations on Western moral philosophy. JPR Status: Opinion.

[1] The “Law of Nations” is defined by Blackstone as “a system of rules … established by universal consent among the civilized inhabitance of the world; in order to decide all disputes which … must frequently occur between two or more independent nations, and the individuals belonging to each.” 2 William Blackstone, Commentaries *66, available at http://www.lonang.com/exlibirs/blackstone/bla-405.htm.

[2] This has generally been interpreted to include such egregious violations as torture, extrajudicial killing, enslavement, genocide and other crimes against humanity.

[3] Aiding and abetting has a high threshold: one must show that the aider knew what the product would be used for and nonetheless tailored it for that purpose. In other words, the net is not so wide as to entrap the innocent corporation engaged in routine corporate conduct.

[4] Here, he is requiring that a corporation or individual directly cause the abuses overseas, thereby foreclosing aiding and abetting liability. As a result, he appears to be willing to immunize corporations that aid and abet such abuses.

[5] In a similar vein, the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M 679 defines a jus cogens norm of international law as “a norm accepted and recognized by the international community as a norm from which no derogation is permitted. [5] Vienne Convention, art. 53. See also RESTATEMENT THIRD OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. (d) adopting the Vienna Convention’s definition of jus cogens as binding on all nations and “derived from values taken to be fundamental by the international community rather than from the … choices of nations.”

[6] Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)

[7] As many have observed, there are ample constraints in place. The Department of State may intervene in a case it opines interferes with serious foreign policy concerns. Corporations are not held liable for routine corporate behavior. To the contrary, it must be shown that the corporation actually aided and abetted said violations. Cases may be dismissed if a remedy is available in the place where the principal actors perpetrated the crimes.

Forty Dollars and a Trip to Paradise

The First Green on Blue Attack of Operation Enduring Freedom, Afghanistan

Journal of Political Risk, Vol. 7, No. 8, August 2018 

by Heath B. Hansen

PFC Michael Sall in the only guard tower that existed on FOB Zurmat at the time of the green-on-blue attack. Pictured is an M-240B machine gun. PFC Sall was in the tower on November 9, 2005 during the attack but did not use this weapon, oriented away from the base, to shoot the attacker. He instead made a split second decision to use his smaller M-4 rifle to shoot from the other side of the tower, down and into the base at the ANA soldier. Paktia Province, Afghanistan, 2005. Photographer: Heath Hansen.

We entered the base between the HESCO barriers covered in concertina razor-wire, unprepared for a betrayal from one of our supposed allies. On November 9, 2005, as the convoy snaked its way into the safety of the base walls, I could see Afghan National Army (ANA) soldiers watching us from the perimeter. They didn’t wave; they didn’t smile; they just stared. Since the United States invasion of Afghanistan in 2001, there had never been an instance of an Afghan soldier attacking Americans, known as a “green-on-blue attack.” But somehow I instinctively had little trust for them. We parked the Humvees and unloaded our equipment. I took off my helmet and body-armor, and set my weapon beside me.

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Brett Kavanaugh: Casting a Shadow over SRI Investing?

Journal of Political Risk, Vol. 7, No. 7, July 2018 

By Bhakti Mirchandani

The potential for President Trump’s Supreme Court nominee Brett Kavanaugh to weaken investor, employee, and consumer protections[1] and reverse Roe v. Wade[2] is widely covered.  More critical for the $8.7 trillion US assets that are invested according to sustainable, responsible, and impact (all three together and inclusive of ESG investing, “SRI”) strategies[3] is Brett Kavanaugh’s opposition to a key driver of SRI momentum: administrative agency rulemaking.

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China’s Military Visits Endanger Philippine Sovereignty and Democratic Alliances

Journal of Political Risk, Vol. 7, No. 7, July 2018 

By Anders Corr, Ph.D.

JIANGANAN SHIPYARD, SHANGHAI, CHINA-JANUARY 4, 2012: This December 25, 2012, image shows a probable PLAN Type 052D (DDGHM) destroyer tied up alongside the Yuan Wang 5 (YW-5) space tracking ship, which is docked in the shipyard’s construction basin. The YW-5 is similar to the YW-3 in size and function, including military applications. DigitalGlobe via Getty Images

On the night of July 16, four days after the second anniversary of the July 12 Permanent Court of Arbitration win by the Philippines against China in the Hague, a Chinese missile tracking ship with 远望 Yuan Wang 3 (YW-3) emblazoned on the side, eased up to Sasa Wharf in Davao, Philippines. Davao is the home turf of President Rodrigo Duterte, now in Malacañang Palace, and the ship was likely visiting at his personal invitation. The Chinese characters for Yuan Wang (远望) mean “gazing into the distance”, and are sometimes translated as “long view”.

Last month, two People’s Liberation Army Air Force (PLAAF) Ilyushin-76 (IL-76) military cargo planes visited Davao. They were called a “personal favor” by President Duterte to China, and surprised the Philippine military. The visits were not covered by treaty.

Only the U.S. and Australia have visiting forces agreements that allow, and legally constrain, U.S. and Australian military presence. China has no such public constraints, and for that reason as well as others detailed below, poses a risk to Philippine sovereignty. Last year, Davao also hosted a People’s Liberation Army Navy (PLAN) guided missile destroyer, guided missile frigate, and replenishment ship.

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China’s Targeting of Overseas Chinese for Intelligence, Influence and Drug Trafficking

Journal of Political Risk, Vol. 7, No. 7, July 2018 

By Anders Corr, Ph.D.

Davao City Vice Mayor Paolo Duterte (L), son of Philippine President Rodrigo Duterte, and the president’s son-in-law, Manases Carpio (R), take an oath as they attend a senate hearing in Manila on September 7, 2017.
Paolo Duterte and the president’s son-in-law, Manases Carpio, appeared before the inquiry to deny as “baseless” and “hearsay” allegations linking them to large-scale illegal drugs smuggling. NOEL CELIS/AFP/Getty Images

On June 12, Philippine protesters staged coordinated protests against China in Los Angeles, San Francisco, and Vancouver. Protest organizer Ago Pedalizo said, “Duterte’s government pursues the ‘sell, sell, sell’ approach to sovereignty as a trade-off to all kickbacks he’ll get from the ‘build, build, build’ economic push of China.” His protest group, Filipino American Human Rights Advocates (FAHRA), charged that “Duterte is beholden to the $15-billion loan with monstrous interest rate and China’s investments in Boracay and Marawi, at the expense of Philippine sovereignty. This is not to mention that China remains to be the premier supplier of illegal drugs to the country through traders that include the son, Paolo Duterte, with his P6 billion shabu [methamphetamine] shipment to Davao.” 

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Alleged Corruption in Mongolia’s Resource Extraction Sector

Journal of Political Risk, Vol. 7, No. 7, July 2018 

By Enkhzul Tsatsral

Dump trucks operate in an open pit at the Oyu Tolgoi copper-gold mine, jointly owned by Rio Tinto Group’s Turquoise Hill Resources Ltd. unit and state-owned Erdenes Oyu Tolgoi LLC, in Khanbogd, the South Gobi desert, Mongolia, on Saturday, July 23, 2016. Mongolia exported 817,000 tons of copper concentrate in the first half of the year compared with 663,800 tons a year earlier, an increase of 23.1 percent. Photographer: Taylor Weidman/Bloomberg

The year is 2008 and Ulaanbaatar, the capital city of Mongolia, still resembles a gritty Soviet satellite state with its deteriorating apartment blocks and a statue of Lenin standing bold. Fast-forward a mere four years later and the apartment blocks have deteriorated further while a dazzling 25-story hotel overlooks the shadow of the recently removed statue. Today, with a plethora of Western companies ranging from luxury brands such as Rolex to the familiar Pizza Hut sprouting all over the city, you will be forgiven for mistaking Ulaanbaatar as one of the Four Asian Tigers. Unlike the Four Asian Tigers, which flourished predominately through industrialisation, however, Mongolia’s rapid ‘development’ is mainly attributed to the country’s colossal mineral wealth.

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Tackling the South China Sea Together: British and French Navies Chart a Course

Journal of Political Risk, Vol. 7, No. 6, June 2018 

By Peter M. Solomon

At a September 2015, joint press conference at the White House, China’s President Xi Jinping stood beside U.S. President Barack Obama and said, “China does not intend to pursue militarization” with respect to “construction activities that China are undertaking” on the Spratly Islands in the South China Sea.[1] Since then, China has established several offensive capabilities in the region, including surface-to-air and anti-ship missile systems on three features in the Spratly Islands and the ability to deploy strategic bombers from the Paracel Islands.[2]  In comparison to the United States, which has been a consistent critic of China’s reclamation and militarization and has embarked on numerous freedom of maritime navigation exercises in the region, the European Union (EU) has historically been reserved in its comments regarding China’s activities in the South China Sea. Instead, the EU has limited itself to general comments about the importance of maintaining freedom of the seas and resolving disputes peacefully. While these statements are not without importance, the lack of a more critical, unified EU approach to China’s destabilizing activities has left missing a crucial voice. The tides could soon turn.

Embed from Getty Images

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Reason, Imagination and Invention in the South Pacific: The Laser Beam Kiwi

Journal of Political Risk, Vol. 7, No. 6, June 2018 

By Bernard Cadogan, Ph.D.

Troops pose with the “Laser Kiwi” flag, submitted to the New Zealand Flag Consideration panel in 2015 by James Gray. Source: Reddit.

Address to the U.K. Defence Academy, Shrivenham, 7th February 2018

New Zealand is proof that nature does not always abhor, a vacuum. The country is truly, “the last, the loneliest and the loveliest” as Rudyard Kipling declared Auckland to be in his “Song of the Cities”. Strategic systems never tolerate vacuums. They punish confusion and ambivalence. New Zealand is no redoubt, nor is it overlooked.

The intention of this address is to consider New Zealand’s sense of geopolitical reality. Are we proof that the Versailles Conference unassociated Organisation for Economic Co-operation and Development (OECD) nation state has been outclassed in the 21st century Pacific? Are we a living fossil ?

Woodrow Wilson envisaged a world in which there would be no assemblages such as empires, nor alliance systems even. Sovereignty-pooling exercises such as the European Union and Mercosur or Caricom would have been anathema to Wilson. They are not an option for us.

When asked at the Versailles Conference, why we had made the effort we did in the Great War, our Prime Minister Bill Massey replied, “we did it for Civilisation”.

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Duterte’s Immigration Agreement with China: Subversion by Numbers

Journal of Political Risk, Vol. 7, No. 6, June 2018 

By Demetrius Cox

A PLA Air Force (PLAAF) military transport plane (IL-76) in Davao City on 8 June 2018. Source: Philippine Plane Spotters Group (PPSG).

“The supreme art of war is to subdue the enemy without fighting.”
― Sun Tzu, The Art of War

On June 9, 2018 the Philippine Star published an article titled “More than 3 million Chinese allowed entry into Philippines since 2016 — Immigration data”.

In what may become one of the most remarkable subversions in recent history, the article describes how the immigration floodgates have been thrown open by Philippine President Rodrigo Duterte.  With a current national population of 103 million, Duterte has allowed a 3% direct population increase (3+ million) of Chinese immigrants to the Republic of the Philippines in less than three years, which is enough to keep most demographers up at night.  And there is no end in sight.

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