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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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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Legislatures Elected by Evaluative Proportional Representation (EPR): An Algorithm

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

By Steve Bosworth and Anders Corr1

Abstract

Illustration of grading. Source: Getty.

This article describes a new and relatively simple evaluative method to elect all the members in any legislative body, such as a city council or national legislature.2 Called Evaluative Proportional Representation (EPR), each voter grades any number of candidates on their fitness for office as EXCELLENT, VERY GOOD, GOOD, ACCEPTABLE, POOR, or REJECT.  These evaluations are counted by hand or computer algorithm (here provided in the R statistical computer language).  This evaluative method of social choice is particularly good at revealing and optimizing voters’ utilities.  It ensures proportionate minority representation in legislative bodies by enabling each voter to guarantee that his or her evaluations of the candidates will continue fully to count in the deliberations and decisions made by their elected legislative body.  Each elected member of this body is given a different weighted vote as determined by counting all voters’ evaluations. As a result, each citizen’s vote continues to count within the weighted vote given to the elected member she most highly values.

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Teaching a Tunisian to Fish: An Animating Way to Wield US Soft Power

Journal of Political Risk, Vol. 7, No. 5, May 2018

By Bhakti Mirchandani

Economic statecraft, the use of economic instruments to accomplish geopolitical objectives, dates back to the Louisiana Purchase.  American Enterprise Funds, first established by USAID following the collapse of the Berlin Wall and the breakup of the Former Soviet Union, and the Tunisian American Enterprise Fund, launched in 2013, are two examples of both economic statecraft and powerful impact investing tools.  This article provides a window into the Tunisian American Enterprise Fund’s investments, purpose, progress, strategy, and place in US foreign policy.

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The Price Of Paramount Power: Xi Jinping’s Ascension Could Make China A Much Riskier Place To Do Business

Journal of Political Risk, Vol. 6, No. 3, March 2018

By Richard Hornik

One of the peculiar pathologies of western businessmen active in China is an almost religious reverence for its lack of due process, enthralled by the combination of free(ish) markets and political stability proffered by China’s Market-Leninism (a term coined by Nicholas Kristoff). What they miss, however, is the price that must be paid for such short-term control, and during the course of Chinese history that price has proven to be very high.

The latest convert to this envy for authoritarian efficiency is Tesla’s Elon Musk who has spoken and written extensively about China’s ability to conceive, approve and build enormous infrastructure projects in a matter of a few years – or less[1].  No zoning rules, environmental regulations, cost-benefit analyses — much less property rights — can stand in the way of the gleaming high-speed rail lines, shiny new airports, massive harbors and 12-lane highways and bridges that have covered the Middle Kingdom in the past two decades. Likewise with housing developments and mega industrial installations like petrochemical plants, steel mills and refineries.

The fact that many of these projects made little or no economic sense and often created enormous capital, environmental and human costs for decades to come does little to take the shine off the power to command society and the economy to do the bidding of a brilliant meritocracy. Japan went on a similar splurge in the last three decades of the 20th century, also directed by brilliant technocrats, ending in two decades of economic stagnation, but at least Japan had its flawed democracy to serve as a break and a safety valve, something missing from authoritarian regimes.

A vendor (R) takes a nap next to posters showing the late Chinese chairman Mao Zedong (C) and Chinese President Xi Jinping (L) at a market in Beijing on May 15, 2016. Fifty years after the Cultural Revolution spread bloodshed and turmoil across China, the Communist-ruled country is driving firmly down the capitalist road, but Mao Zedong’s legacy remains — like the embalmed leader himself — far from buried. Credit: AFP / NICOLAS ASFOURI / Getty Images

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U.S., U.K., And Allies Must Increase Support To Saudi Arabia

Journal of Political Risk, Vol. 6, No. 3, March 2018

By Anders Corr, Ph.D.

Saudi Arabia’s Crown Prince Mohammad bin Salman (MBS) met British Prime Minister Theresa May in London on March 7, the first leg of his worldwide tour to get trade deals and improve diplomatic support for Saudi Arabia’s growing proxy conflict with Iran. It is unfolding in Syria, Iraq, Qatar, Lebanon, and Yemen. This trip’s agreements with Britain include $2 billion in trade deals, not least of which are Saudi Arabia’s purchase of 48 Typhoon fighter aircraft from BAE. While protesters have raised human rights concerns, and Saudi Arabia does have more than its fair share of religious extremists, the government of Saudi Arabia is actually a moderating influence in the Middle East, and a close ally against the growing alliance of China, Russia, and Iran.

Embed from Getty Images

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China’s Strategic Pivot Towards the South Pacific Island Nation of Tonga

A Hybrid Intelligence Preparation of the Operational Environment (IPOE) Analytical Assessment

Journal of Political Risk, Vol. 5, No. 12, December 2017

By Mark Anthony Taylor

The aim of this research is to critically examine the refocusing of Chinese aid, economic involvement and diplomatic attentions towards the small South Pacific island nation of Tonga.  The research seeks a deeper understanding of China’s behaviour towards Tonga and promotes a reevaluation of how the US and its allies should respond to China’s strategic calculus. China’s actions in Tonga, although appearing benign, represent a cloaked threat to Tonga’s independence, democracy and U.S. regional aspirations.  Furthermore, owing to the comparative strength of the Chinese economic and diplomatic approach, a competitive soft-power response from the US may prove inadequate. In consequence, it may be more advantageous for the US to pursue a heightened hard-power response to ameliorate any potential threat. Through undertaking an analysis of China’s fundamental motivations for the soft-power Tongan pivot and an exploration of the modus operandi employed by China to affect its strategic goals, the project will endeavour to provide a clear answer to the following research question: “Is this Chinese pivot towards Tonga merely an example of cheque-book economic diplomacy, or does it entail a cloaked malignant threat to the security and autonomy of the US and its allies?” Utilising a hybrid adaption of the Intelligence Preparation of the Operational Environment (IPOE) analytic method[1], this project will apply a structured framework in order to probe and reconceptualise the Chinese pivot towards Tonga in an effort to unravel the underlying motivations of China. In line with this approach, the project will firstly scrutinize the situational variables resident in each nation that comprises the terrain of the issue. The significant and unique political, military, economic, social, infrastructure and informational system factors (PMESII) that contribute to the rapid intensification of China/Tongan relations will be explored. From this point, the focus will be turned towards an analysis of the usefulness of the two polar theoretical explanations (liberal and realist) for the current Chinese Course of Action (COA) in Tonga. Lastly, a detailed investigation of the two key Centres of Gravity (COG’s) that underpin and impact upon the China/Tonga relationship will ensue, exploring the cultivation of pro-China sentiment in Tonga and the degree of the US pivot to the South Pacific. The project will draw from a diverse variety of academic publications, expert opinion pieces and news media sources. The analysis reveals that the Chinese strategic pivot into the nation of Tonga superficially appeared to be motivated by benign economic opportunism. However, engagement with Tonga was found to hold a minimal benefit to China in terms of resource supply or economic gain. The major strategic benefits that were found to accrue to China were through the potential securing of Tonga for the establishment of a forward operating military base in the South Pacific. Consequently, China’s pivot may be motivated by concealed Chinese hegemonic designs (the realist perspective) rather than by benign economic opportunism (the liberal perspective). This motivation was found to pose a significant security threat to the US-lead regional order.  Two significant COG’s are bolstering the effectiveness of China’s Tongan pivot. Firstly, China has successfully executed a “hearts and minds” program to facilitate the broad interweaving of pro-China sentiment into the psyche of Tongan society. Secondly, the absence of US attention towards soft-power regional engagement with Tonga has aided China’s pivot. In terms of an effective US response to China’s strategy in Tonga, a revised US soft-power push was assessed as constituting an ineffective strategy due to the resilient China-Tonga relationship that now exists and because of China’s deep aid pockets. Consequently, the evidence points towards the need for a revitalised US hard-power military presence in the region as the most viable option for dampening China’s future militaristic ambitions towards Tonga.

One pa’anga and two pa’anga banknote.
Tonga, Pacific. Credit: Getty Images.

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