Press Reaction to the November 2018 speech by Dr. Peter Navarro, Director of the White House Office of Trade and Manufacturing Policy, was biased in a negative direction.
Journal of Political Risk, Vol. 7, No. 12, December 2018
By Anders Corr, Ph.D.
Dr. Peter Navarro, Director of the White House Office of Trade and Manufacturing Policy, gave a speech on November 9 at the Center for Strategic and International Studies (CSIS) in Washington, D.C. The title of the speech was “Economic Security as National Security”, which Dr. Navarro, a Harvard-educated economist, argues is the maxim of the Trump Administration. After the speech, Dr. Navarro was attacked in the media, but not about his main points. The negative, and one might argue biased, coverage came from the Wall Street Journal, CNBC, the Atlantic, and Director of the National Economic Council, Larry Kudlow, among others. The negative response centered on Dr. Navarro’s controversial claim that Wall Street elites have undue influence on U.S. policy having to do with China. Tempers were likely frayed at the time due to planning, negotiations and internal maneuvering in advance of a high stakes late November meeting then being planned between Presidents Trump and Xi Jinping at the G-20 meeting in Argentina. Worries were high that lack of progress on at least the outline of an agreement at the meeting could lead to deepening tariffs between the countries, and fears in the financial sector of falling stock markets or even a recession. But the bias and infighting of the attacks were unbecoming of these media outlets, and of Mr. Kudlow, the Director of the National Economic Council.
Journal of Political Risk, Vol. 7, No. 11, November 2018
By Anders Corr, Ph.D.
China is one of history’s most dangerous countries. In August, the United Nations reported that China is holding approximately one million minority Muslims in Xinjiang concentration camps. China supports anti-democratic regimes and terrorist groups worldwide. Its military is seeking to expand its territory in: Japanese and South Korean areas of the East China Sea; Philippine, Malaysian, Bruneian, Indonesian, and Vietnamese parts of the South China Sea; and Indian and Bhutanese territory in the Himalayan mountains. President Xi Jinping has since 2013 increased military spending, hyped China’s nationalism, repressed minorities and human rights activists, eliminated term limits on his increasingly personal form of rule, and extended the geographic reach and individual depth of state surveillance.
Average citizens in democracies who see this trend can feel powerless in response. But there are tools at the disposal of empowered citizens and social movements to encourage, complement and accentuate actions taken by our democratic governments. Both citizen and government action is essential to encourage democracy and democratic elements in China, history’s most powerful totalitarian state.
These tools include consumer boycotts and protests at Chinese embassies, for example. But there is an additional social movement tactic that could powerfully communicate the world’s criticism: a boycott of mainland China’s national language, Standard Mandarin, a combination of the Putonghua dialect spoken in Beijing with simplified characters. Putonghua is also called Modern Standard Chinese, which was promoted since the 1940s, and which the People’s Republic of China (PRC) and Chinese Communist Party (CCP) have zealously promoted since 1956 as a form of increasing state control beyond Beijing. I here call the combination of simplified characters and Putonghua, “PRC Mandarin” or “CCP Chinese”. Taiwan uses traditional characters and speaks a slight variant of Mandarin called Taiwanese Mandarin (Guoyu).
Journal of Political Risk, Vol. 7, No. 10, October 2018
By Anders Corr, Ph.D.
China is powerfully influencing U.S. elections, as President Donald Trump alleged, but one will not necessarily find a Chinese intelligence agent stuffing ballot boxes in the local City Hall, or tampering with a voting booth. Facebook and Twitter claim they found no coordinated messages from the Chinese government. Bloomberg news and three digital security firms all claimed they found no evidence of digital or web-based misinformation campaigns. They apparently don’t count China’s ongoing anti-Trump propaganda, available through state-run media like China Daily and radio stations in the U.S. Nor do they count a new China-linked propaganda film advertised on Facebook, called “Better Angels“.
Plus, China’s immense wealth gives it more sophisticated and effective means to influence the general public, districts that voted for Republicans, the candidates themselves, the businesses that fund candidate elections, the universities and think tanks that hire politicians after they leave office, and the news media that voters will rely upon to choose their representatives on November 6, 2018. That is a far more powerful set of tools than anything the Russians used in 2016.
Vice President Mike Pence had it right when he said, “There can be no doubt: China is meddling in America’s democracy.” He said that Beijing was involved in “an unprecedented effort to influence American public opinion, the 2018 elections, and the environment leading into the 2020 presidential elections.”
Perhaps the most powerful influence that China wields over the U.S. public is the leverage that its $8.59 billion in box office sales provides to its “Propaganda Department” in Hollywood. American movie producers and directors actively self-censor in order not to alienate Chinese censors who could cut millions of dollars of ticket sales by denying access to the Chinese market. This leads Russians or terrorists to be the main villains in most Hollywood films, rather than China. Perhaps in part for this reason, 53% of Americans view China favorably according to a February 2018 poll, despite China’s human rights abuse at home, and ongoing economic and military transgression against the U.S. and our allies. That latent pro-China sentiment will make elections more difficult for Mr. Trump and the Republicans on November 6. This is China’s growing soft power, and is only infrequently commented upon in the media.
China’s sharper power to interfere with elections was demonstrated by the country’s recent attempt to use targeted tariffs to cause economic pain in districts that voted for Trump in 2016. In two rounds of tariffs, including over the summer, China hurt states and congressional districts that voted for Trump and other influential Republicans with $110 billion of targeted tariffs, focusing on commodities like soybeans, sorghum and pork that are overwhelmingly produced in rural pro-Trump districts. China also hit whisky, produced in Kentucky, and cranberries, produced in Wisconsin. Senate Majority leader Mitch McConnell represents Kentucky, and House Speaker Paul Ryan represents Wisconsin. “Mapping the counties that voted for Mr. Trump in 2016 and those affected by China’s tariffs shows the extent to which Trump voters’ jobs rely on the products being targeted,” according to the New York Times. “Beijing hopes it can convince those voters — and their elected representatives — that the president’s trade war could hurt them.” China’s counter-tariffs threaten more than double the jobs in districts Trump won in 2016, compared with those that Clinton won.
But China has many other ways to influence voter opinions in the U.S., and thereby interfere with how voters vote. China also does an end-run around voters by influencing the political choices provided at the voting booth, in that most politicians of both parties are influenced to be soft on China by an environment conditioned by Chinese money and giveaways, including to U.S. students, the media, professors, congressmen, businessmen, and even U.S. military officers.
Journal of Political Risk, Vol. 7, No. 10, October 2018
By an Anonymous Filipino
This is a critical time for the Philippines, in terms of economics, politics, and national defense. Immediately at the start of President Rodrigo Duterte’s term the congress was already submissive to him. There were just a few dissenting Senators. But Duterte is taking them down one by one, especially the opposition stalwarts. Senator Leila de Lima was accused of a sham case, conspiracy to commit illegal drug trading (1), and is now in prison. Senator Antonio Trillanes is having his amnesty revoked . Duterte is under criminal investigation, breaking the Constitution, running the Philippines into the ground, and gradually giving our sovereignty away to China. The Armed Forces of the Philippines (AFP) is slowly losing its allies and competitive edge against China, the Philippines’ biggest threat. Duterte should immediately be removed, and the AFP should seek the help from its traditional allies to quickly modernize.
Journal of Political Risk, Vol. 7, No. 9, September 2018
By William R. Hawkins
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.
Journal of Political Risk, Vol. 7, No. 8, August 2018
By Terri Marsh, Ph.D., Esq.
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.”  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.”  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.
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; 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.
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.”  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.”
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.
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.
 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.
 This has generally been interpreted to include such egregious violations as torture, extrajudicial killing, enslavement, genocide and other crimes against humanity.
 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.
 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.
 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.  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.”
 Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)
 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.
Journal of Political Risk, Vol. 7, No. 7, July 2018
By Anders Corr, Ph.D.
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.”
Journal of Political Risk, Vol. 7, No. 7, July 2018
By Enkhzul Tsatsral
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.
Journal of Political Risk, Vol. 7, No. 6, June 2018
By Bernard Cadogan, Ph.D.
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”.