Asian Issues, American Courts:
Understanding New Challenges to American Business
Tuesday, September 9, 2003, New York City

Co-organized by the Asian Affairs Committee, Association of the Bar of the City of New York

Keynote with: William H. Taft IV, Legal Advisor to the Secretary of State, US Department of State

Panel Discussion with:
Scott Greathead, Asian Affairs Committee, Association of the Bar of the City of New York
Michael Posner, Executive Director, Lawyers Committee for Human Rights
Edwin V. Woodsome, Partner, Orrick, Herrington & Sutcliffe
Edwin Williamson, Executive Committee, US Council for International Business

Address to the Asia Society Regarding the Alien Tort Statute

William H. Taft, IV
Legal Adviser

New York, September 9, 2003

Members of The Society, distinguished colleagues, and guests:

I am very pleased to have this opportunity to share with you some thoughts regarding the Alien Tort Statute (ATS)—an ancient and, until very recently, obscure law that has lately become, in the words of The Washington Post, “the somewhat improbable subject of a fierce political debate.”

As the Legal Adviser of the Department of State, I have become involved over the past few years – also somewhat improbably - in a number of lawsuits under the ATS, partly by virtue of the fact that my office has been asked by federal judges in a number of such cases to provide the views of the Department of State on whether and how the pendency of these suits affects the foreign policy interests of our nation. More recently, as many of you are aware, the DOJ filed a significant brief in one of these cases – the Unocal litigation in the 9th Circuit – setting out the Administration’s views on several important legal issues under the ATS, in particular whether the statute is merely jurisdictional or also provides a federal cause of action. Not to keep anyone in suspense on this point, our view is that in providing the federal courts with jurisdiction Congress did not intend also to create a cause of action.

My intent this evening is to say a few words about both aspects -- the legal issues as well as the impact of the litigation on foreign policy interests of the United States. I must begin, however, with a word of caution, because some of these cases are still pending, and a number of people here this evening, indeed here on this panel, are involved in these cases. So I’ll do what we ask our staff attorneys to do when they give talks in public, and make the disclaimer that my remarks this evening are personal and do not necessarily reflect the formal views of the USG or the Administration. I will also in discussing pending litigation confine myself to stating what positions the government has presented in court.

Text and Background

The current text of the ATS is short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute was originally enacted in 1789, as part of the first Judiciary Act, and so far as I am aware, to this day no one knows with certainty why it was enacted. There are different theories about what specific problems the Congress intended to settle; we may hear some pretty strong opinions on that question from other panelists or members of the audience. There is little question, however, about the legal issues it raises for us today – the statute does not define exactly what Congress means by “a tort only, committed in violation of the law of nations.” The ATS clearly grants jurisdiction; over what is far less clear.

For many years, this didn’t much matter, because the ATS was essentially dormant. In 1980, however, the statute received an expansive construction when the Second Circuit, in the landmark case of Filartiga v. Pena-Irala, allowed a case brought by Paraguayan nationals to go forward against a former Paraguayan official who was allegedly responsible for the torture and death of their son in Paraguay. The cause of action question in that case was whether torture could properly be considered a tort under the law of nations. The court said that it could.
This decision opened the door for victims of human rights abuses around the world to bring into U.S. courts claims relating to alleged human rights violations committed in foreign countries by foreign governments or others acting under color of governmental authority against non-U.S. citizens. I’m sure you are all familiar with these Filartiga-type cases, in which foreign victims sue foreign governmental officials for abuses which took place abroad. Often these cases have little or nothing to do with the United States except that victims are able to take advantage of our open courts. The range of cognizable abuses has grown markedly over the years. A current example here in New York is the pending suit against Mr. Mugabe, brought by Zimbabwean citizens who allege various human rights abuses in connection with the recent elections in that country.

Such cases when brought against foreign officials often raise service of process issues, and not infrequently issues of immunity. And while plaintiffs typically seek money damages, they rarely succeed in recovering any, since individual official defendants tend to default and have no assets in the US against which judgments can be executed. Such default judgments are also generally unenforceable abroad. To greater or lesser extents, the proceedings may give the victims of human rights abuses – many of which are of the most deplorable sort - a measure of publicity and a “day in court.” But observers can and do differ about whether that is a sufficient justification for allowing such cases in our domestic judicial system, and whether any demonstrable benefit comes from what are often, in practice, only declaratory judgments.

More recently, litigation under the ATS has taken a different tack, targeting U.S. and foreign corporations for committing or being complicit in the commission of human rights abuses in other countries while engaged in the pursuit of their general commercial activities. I am certain you have all heard of the pending Unocal case in the 9th Circuit, in which a U.S. corporate defendant is alleged to have “aided and abetted” the commission of serious human rights abuses in connection with the construction of a natural gas pipeline in Burma. Other cases involve those against British and Australian subsidiaries of Rio Tinto Zinc, an international mining group headquartered in London, for its activities in Papua New Guinea and Exxon-Mobil for its activities in Indonesia, and more recently there have been filed approximately ten suits against US and foreign corporations and banks for their activities in South Africa during the time of apartheid.¹

We are also continuing to see more ATS cases that involve human rights-based charges against foreign states or their high-level officials (officials are often targeted even if the plaintiffs are unable, under existing rules of foreign sovereign immunity, to sue the foreign governments directly). Of particular interest to this audience may be the recent cases dealing with Japan and the People’s Republic of China, including one that involves Jiang Zemin, China’s former head of state.² The Japanese case arises from allegations of sexual slavery committed against the badly misnamed “Comfort Women” during World War II by Japan and the Imperial Japanese Army. The Chinese cases focus on current Chinese government repression of the Falun Gong movement in China and elsewhere.

The one of course, is largely a matter of history, the other involves more recent events. In both cases, however, the underlying challenge is to policies and practices pursued by foreign governments, and whether those governments and/or their officials can be held liable in U.S. courts for acting in accordance with those policies.

These cases present a number of important legal issues, including jurisdiction and standards of liability, but since they remain in active litigation, I do not think it appropriate to go into details. I would like, however, to comment on two particular aspects of these cases as they have been considered by the courts.

First is the issue whether the ATS provides a clear federal cause of action or is simply a grant of jurisdiction for causes of action already established or to be established later. And if it did create a cause of action itself, what is its scope? Courts have been increasingly liberal in interpreting the statutory requirement of “a tort only in violation of the law of nations” to create a cause of action for conduct in addition to torture, which was considered by the Second Circuit in Filartiga. Forced labor, arbitrary detention, and other abusive conduct have been found by various courts to fall within the statute’s intent on the basis of a very expansive reading of customary international law without any specific congressional endorsement. In identifying “violation[s] of the law of nations,” courts have relied on treaties the US has not ratified, resolutions of the UN General Assembly and other UN bodies we have not accepted, as well as academic writings.

The second issue concerns whether foreign policy implications are relevant to the continued pendency of such cases. Generally, when it comes to private litigation, foreign policy concerns have no relevance and are not cited to deprive victims of serious human abuses of their right to a remedy – assuming, of course, for the moment that the right has been given to them. There are, however, exceptional cases where the consequences of entertaining the litigation for the conduct of foreign policy are significant. Courts have developed doctrines to decline to hear such suits and the executive branch, which has the responsibility for conducting foreign policy, has shared its views and expertise in specific cases, particularly when called upon to do so by the courts.

Legal Issues

Let me turn, briefly, to the main legal issues posed by these various ATS cases.

- ATS provides no private right of action

Perhaps the more important question from the point of view of the executive branch is whether the ATS itself provides, or was intended to provide, a private right of action or whether it requires separate congressional enactment of a specific substantive statute or applicable treaty.

As expressed in the Unocal brief, the United States view is that the ATS, “which is a simple grant of jurisdiction, cannot properly be construed as a broad grant of authority for the courts to decipher and enforce their own concepts of international law.” ³ This position derives from the premise, fundamental to our system, that it is the role of the Congress to import substantive rights from international law into domestic law, not the courts. It would not be difficult, of course, for the Congress to specify exactly which “torts under the law of nations” it proposed to make actionable and under what conditions, as indeed it has already done in the Torture Victims Protection Act. There is no basis for thinking that in enacting the ATS in 1789, however, the Congress intended to delegate this function to the courts.

The DOJ brief also addressed the issue of foreign policy implications:

the “[w]ide-ranging claims the courts have entertained regarding the acts of aliens in foreign countries necessarily call upon our courts to render judgments over matters that implicate our nation’s foreign affairs. In the view of the United States, the assumption of this role by the courts under the [ATS] not only has no historical basis, but, more important, raises significant potential for serious interference with important foreign policy interests of the United States, and is contrary to our constitutional framework and democratic principles.”

There has been some pointed opposition to this position. For example, Human Rights Watch called the government’s stance “a craven attempt to protect human rights abusers at the expense of victims,” and the Lawyers Committee for Human Rights described it as an attempt “to run a stake through the heart of a law which has proven to be a valuable tool in pursuing justice for human rights abuses.”

These charges are quite obviously not to be taken seriously. The government’s position is, indeed, both reasonable and prudent. No one in the government wants to protect human rights abusers. We make enormous efforts to promote human rights around the world.

One can understand why the plaintiffs are eager to exploit the ATS for an ever broader range of abuses. The acts of which they complain are frequently appalling: for example, Japan’s barbaric and inhumane treatment of the so-called Comfort Women during World War II; the forced labor and mistreatment of Burmese natives near the Yadana gas pipeline; the repression of the Falun Gong spiritual movement in China; the environmental and other depredations against the Bougainville islanders in Papua New Guinea; and the human rights abuses suffered by the people of Aceh, Indonesia in the course of the Indonesian efforts to crush the separatist rebellion in Aceh Banda. The U.S. government has recorded, publicized and strongly opposed the conduct and the policies involved in these cases.

Gross and systematic human rights abuses are always deplorable. And clearly publicity, and international and public pressure, are some of the effective measures to bring accountability to human rights abusers and to end such abuses. Yet it is an entirely separate issue whether the U.S. courts can best provide that publicity and that pressure. Unlike, say, the news media, our courts were created with limited jurisdiction. Whether or not the courts are the most appropriate forum for determining the extent to which such actions are violations of local or international law, and remedying them it is a separate issue – and an entirely legal one - whether Congress has actually given the courts this authority. Even if the local courts in foreign countries are not able or willing to examine such claims, that failure does not mean the U.S. always should, or indeed can, pick up the task. Congress has certainly not given our federal judiciary universal civil jurisdiction over abuses taking place anywhere in the world, having no connection to this country, its citizens or its government. Yet that is the use to which they are being put under the expansive interpretation of the statute.

- Cases against governments and/or their officials are not truly adversarial

In most of the cases against foreign officials or their governments, the defendants either will not or cannot (as a practical matter) present a defense. The courts then typically render default judgments based on the plaintiffs’ allegations, with no rebuttal. Generally, no monetary recovery is or can be obtained.

The Falun Gong lawsuits provide an example. These cases are against high-level Chinese government officials (including former President Jiang Zemin and other Chinese officials, including diplomatic and consular officers) or Chinese government agencies. It will not, I suspect, surprise you to know that the PRC, which has not embraced broad exceptions to the doctrine of absolute sovereign immunity, refuses to appear in foreign courts to defend against private foreign challenges to its national policies. And it objects strenuously to the assertion of U.S. jurisdiction over acts and policies carried out within its own territory, with little or no connection to this country.

The United States similarly objects to subjecting its high-level officials to jurisdiction in foreign court proceedings in connection with the performance of their official duties. Here, I have in mind, for example, Belgium’s recent attempt to assert universal jurisdiction over alleged human rights violators—including, inter alia, Secretary of Defense Rumsfeld and General Tommy Franks. Our government’s reaction if Chinese courts entertained litigation against U.S. officials about religious discrimination, or freedom of opinion and belief, or the treatment of Muslim prisoners in the United States may be easily imagined.

- Case resolution requires information unavailable to the courts

Even where ATS defendants do appear in court, as in the cases against major corporations (which – unlike foreign states – do not allow a suit against them to go undefended), in many instances a just resolution of the case requires information unavailable to the courts. Even when the claims against companies don’t directly challenge the actions of foreign governments/officials - and therefore arguably don’t need access to internal foreign government material - they are almost all premised upon the company’s knowledge of, involvement in or reaction to the actions of foreign governments, and thus their resolution depends upon a prior decision about the nature of the foreign government’s activities.

The 9th Circuit, for example, has adopted a standard of liability in which a corporate defendant can be liable under ATS if it has “aided and abetted” in alleged atrocities. Yet, when the atrocities are alleged to have been committed by a foreign government, our courts and the corporate defendants may lack access to foreign government officials and sensitive internal foreign state documents that would be essential to reaching a sound judgment on the merits.

- Cases cause foreign policy frictions

There is yet another problem: such lawsuits can, and sometimes do, generate serious friction between the United Sates and other governments. While such friction is not, of course, always to be avoided – and certainly not when vital interests are at stake – it can actually in some circumstances hinder broader United States government efforts to modify foreign government behavior in areas that are both related and unrelated to the subject matter of the individual lawsuits.

For example, the United States undertakes a variety of serious diplomatic efforts to discourage the Chinese government’s mistreatment of the Falun Gong adherents, and in many ways attempts to improve the situation of the Falun Gong in China. But the Chinese government says these efforts are hindered when it is the object of what it considers to be unjustified findings and pronouncements by U.S. judges concerning Chinese government officials, policies, and actions in these areas.

Other potentially adverse foreign policy implications may also arise when litigants file lawsuits against high-level foreign government visitors who are invited guests of our government. For example, Chinese concerns about possible service of process on visiting Chinese government officials caused the Chinese government to refrain from sending representatives to the U.S. to participate in an important anti-narcotics training course. Chinese government officials have also refused to accept from State Department officers official USG communications because of stated concerns that these officers might have been designated as process servers by U.S. courts. Such reluctance by foreign leaders and officials to come to the United States to engage in diplomacy is disruptive to the government’s ability to conduct foreign relations.

In some instances, foreign governments complain that the issues submitted to our courts have already been resolved by their own internal processes. In the pending apartheid cases, for example, the Government of South Africa has objected, pointing out that it has pursued other mechanisms for resolving issues arising from apartheid, in particular through the Truth and Reconciliation Commission, and that it does not seek or desire financial compensation to be paid by foreign companies that did business in Sourth Africa. Other governments have similarly protested the filing of charges against their corporations and banks for their dealings in South Africa during the apartheid era.

- Cases involve political rather than legal questions

In some instances – certainly not all, but surely in more than a few - pendency and pursuit of these cases can also be disruptive to the executive’s ability to conduct foreign relations – a sensitive and nuanced exercise that requires specialized expertise and a weighing of many factors, including those of which the courts know little. The courts have recognized this problem in other areas, and have created the “act of state” and “political question” doctrines, which counsel them to decline to rule on cases the resolution of which requires too detailed an examination of these sensitive political subjects. As the Supreme Court held in Baker v. Carr more than forty years ago:

“Several formulations … may describe a political question, although each has one or more elements which identify it as essentially a function of separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”⁴

The Constitution commits the conduct of foreign relations solely to the Executive Branch, and it is not appropriate for the courts to interfere with the government’s efforts to work on vital foreign policy matters.

- Cases could harm the interests the plaintiffs are trying to protect

On top of all this, adjudication of such matters by US courts can potentially have unintended consequences at odds with the interests of those whom the plaintiffs seek to protect. This is not, of course, to say that human rights abuses are not justiciable or are within the exclusive domestic purview (or “sovereignty”) of the abusing country. We have long since passed that point. But it is still true that when U.S. courts issue judgments holding foreign states and their highest officials liable for having pursued official government policies, those states and officials are generally less likely to cooperate with USG diplomatic efforts to address similar allegations on a more systemic basis. And if a case is against a “deep pocket” U.S. company, this could discourage other U.S. companies from investing in certain foreign states. Such investment can, however, be important in improving the human rights of the people there.

- Cases are decided by differing standards in each jurisdiction, creating more uncertainty

The ATS problems I’ve mentioned are compounded because our courts are not bound by any common understanding of the causes of action, the limits of ATS accountability, or the legal standards to be applied in reviewing any given case. In the absence of more specific congressional guidance, and because the Supreme Court has not ruled on the scope of the ATS, every federal court remains free to intrude itself into the foreign policy realm to the extent deemed appropriate in its own Circuit. Currently, there is a significant diversity of judicial opinion on this subject, and standards are in flux. This climate of judicial unpredictability heightens the foreign policy risks and commercial uncertainty that the broad interpretation of ATS jurisdiction already creates.

Conclusion

Before I close my remarks, let me emphasize that the “fierce political debate” to which The Washington Post editorial refers is not in any way a debate about ends. This Administration is a world leader in its quest for improved international human rights, including particularly religious freedom and labor standards. We produce annual written reports such as the Human Rights Report, the Report on supporting Human Rights and Democracy, and the Trafficking in Persons report. We push for human rights in formal diplomatic venues such as the UN Human Rights Commission, and our formal Human Rights Dialogues with China and Vietnam. In 2003, the United States will spend well over $700 million to advance the cause of human rights and democracy worldwide, including funds spent through USAID and DOJ as well as through the targeted Human Rights and Democracy fund.

The ATS debate is not about the commitment of the United States to promote and defend human rights. Rather, the ATS debate is about the means to do so. The ATS as it is presently construed and applied by the courts raises a number of serious concerns, which I have referred to just now.

Of course, there remains the possibility that the Congress might be able to construct a statute that would be carefully tailored to permit at least some of these claims to be heard – as it has already done with the Torture Victims Protection Act. If Congress were to do so, then we would be in quite a different situation. The fact remains, however, that Congress did not do this in 1789, when it enacted the Alien Tort Statute. More than any of the concerns I have mentioned, that is the reason the government filed its brief in Unocal.

1. Doe v. Unocal (9th Circuit) [Burma]; Sarei v. Rio Tinto Zinc (9th Circuit) [Papua, New Guinea]; Doe v. ExxonMobil (D.D.C.) [Aceh Province, Indonesia]; Ntzebesa v. Citigroup (S.D.N.Y.) [South Africa]

2. Japan (Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003)), the People’s Republic of China (Plaintiff A, et al. v. Jiang Zemin (N.D. Ill.); Doe v. Liu (N.D. Ca.); Jin v. Ministry of State Security (D.D.C.).

3. May 8, 2003 amicus curiae brief of the United States in Doe v. Unocal, Nos. 00-56603, 00-56628 (9th Cir.).

4. 369 U.S. 186, 217 (1962).

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Edwin Williamson
Executive Committee, U.S. Council for International Business & Partner, Sullivan & Cromwell

New York, September 9, 2003

Introduction

Subbing for Tom Niles, Pres of USCIB

Presenting the business, not legal, perspective, which runs a little against my grain, because I constantly preach that lawyers should express legal views and policy-makers/business types, policy/business views and not vice versa.

So as I stand here before you to express the policy views of the business community, I guess I should turn around the standard disclaimer and say that the views that I am expressing are those of the USCIB and not necessarily mine.

No, seriously, I agree with the positions of the USCIB that I will express this evening and I will add some thoughts of my own at the end of my comments that are mine and not necessarily those of the USCIB.

A little disclosure – my firm is involved in some of the litigation that we will discuss.

• Although I am consulted from time to time, I am not active on the matters, and my comments should not be viewed in the context of my firm’s role in that litigation.
• In other words, I would express the same views even if the firm were not involved.

Finally, a definitional matter – those of us who do not believe that the current version of Section 9 of the Federal Judiciary Act of 1789 creates any causes of action – we call it the Alien Tort Statute or ATS and not the Alien Tort Claims Act or ATCA.

I am going to try to make three points in the brief time allotted to me:

• First, I would like to tell you what the business community in general, and the USCIB in particular, has done about the spate of litigation being brought under the ATS.
• Second, I will tell you why we object to the interpretation of the ATS, particularly by the Ninth Circuit Federal Court of Appeals.
• Finally, I will offer some thoughts on the basic issue underlying our discussion, which is: how best to advance human rights – economic development or sanctions?

What the USCIB Has Done

For the last several years, the USCIB has sought to stop the misuse of the ATS as the basis for non-US plaintiffs bringing suits in US courts against US and foreign corporations for acts done outside the US by foreign governments.

Our efforts have focused on –

• policy makers, both in Washington and – through our international business affiliates – in other capitals and
• the US courts.

On the political front in Washington –

• We have met with the obvious officials
• Will Taft’s Office and the appropriate Regional Bureaus at State – but also, with Justice officials, including the Associate Attorney General.
• Initially, we felt pretty frustrated –
  • When we talked to the policy folks, they threw up their hands and said this was a complicated legal issue – go talk to the lawyers.
  • So, we talked to the lawyers, and they threw up their hands and said that they could not do anything, because none of their clients had asked them for advice as to how the ATS should be interpreted.
• We finally decided that the way to characterize the issue was as a legal policy issue, not a human rights policy issue or a technical legal issue.
• That made Justice, not State, the proper focal point.

On the international front –

• With our international affiliates – the ICC (the International Chamber of Commerce) and BIAC (the Business and Industry Advisory Committee to the OECD) – and through the International Organization of Employers at the ILO, we called attention to the fact that foreign companies were increasingly being caught up in the tentacles of the ATS and urged our foreign counterparts to inform their governments of this unacceptable state of affairs.
• As a result of our efforts – not alone of course, but we like to think they helped – , several of those foreign governments – most notably the United Kingdom and South Africa so far – have in fact intervened with the State Department to make clear that this extraterritorial extension of US law is unacceptable.

In the courts

• In January 2001, the USCIB filed on behalf of its members an amicus brief with the US Supreme Court supporting Royal Dutch/Shell’s cert petition arising out of the Second Circuit’s decision in the Wiwa case.
  • The Wiwa case involved, among other things, particularly outrageous interpretations of the forum non conveniens principle and the minimum contacts needed to establish in personam jurisdiction over a foreign corporation.
  • · With these two positions, the Second Circuit essentially established itself and its district courts as global human rights courts with universal jurisdiction.
• The USCIB has also been working with other business organizations in the USA Engage coalition to build support for curbing the abuse of the ATS and protecting corporations investing in foreign countries from spurious suits under the ATS. This has included the filing of an amicus brief in the Unocal case.

Why Is USCIB Doing This?

The USCIB fully concurs with the Justice Department’s position, expressed in its amicus brief filed in Unocal and its statement of interest filed in ExxonMobil, that the ATS established the jurisdiction of the district courts in cases involving aliens and international torts and did not create any independent cause of action.

The USCIB believes that the extra-territorial application of the ATS is fundamentally destructive of the sort of international system the United States should be trying to build – one based on the principle of comity and respect for national sovereignty.

• As a practical matter, extra-territorial applications of US law have in the past resulted in serious disputes with other countries – e.g., the 1982 Siberian Pipeline case and the 1984 Laker Antitrust case – and damaged the interests of the United States.
• This can happen again if the current flood of ATS cases is allowed to proceed.

Attempts to apply the ATS extra-territorially have already had a negative impact elsewhere, encouraging other countries to follow our bad example and potentially creating a very dangerous environment for US citizens and corporations outside the US.

• For instance, the Belgian parliamentarians who pushed through their own version of a global human rights court with universal jurisdiction cited the ATS as a model for their proposal.
• Fortunately, in the face of immense US pressure, the Belgians have reined in their court.

The USCIB believes it is fundamentally wrong to hold companies responsible for the acts of governments. The companies are simply being used as surrogates for governments whose actions may involve violations of human rights.

This is unfair and unwarranted. There is no evidence that the companies instigated the alleged governmental actions or could have prevented them.

• E.g., the charges against ExxonMobil involving actions by the Indonesian government to suppress the insurgency in Aceh reflects a problem that goes back to the time of Sukarno and reflects the determination of the Government of Indonesia to preserve its territorial integrity. It had nothing to do with the fact that the Arun gas field and an LNG plant happen to be located in the Aceh province.

The USCIB also objects to the fact that the application of the ATS, particularly by the Ninth Circuit and to a lesser extent by the Second Circuit, amounts to no more than judge-made foreign policy and economic sanctions. This, we submit, is the prerogative of the Legislative and the Executive branches of our government.

The Essential Question Underlying this Debate

This brings me to the basic question underlying this debate – what is the best way to advance human rights: economic development or sanctions?

We see countless examples of the spread of democracy, the rule of law, the creation of liberal institutions, the protection of the environment and the advancement of human rights that were brought about by economic development or the desire for economic development: the collapse of the Soviet Union, the advance of democracy in Singapore, South Korea and Mexico, and the improvement of environmental protection enforcement in Brazil, just to cite a few examples.

Removing the barriers to trade and investment leads to economic prosperity and this in turn creates the wealth that permits countries to address their environmental issues, to educate their citizens, to provide them with adequate services – in short, to expand the pie so that all can have a meaningful piece of it, rather than fighting over shares of an inadequate pie.

On the other hand, we look at the sad record of economic sanctions, particularly in Cuba, Iran and Iraq.

• I do not believe that all economic sanctions are bad, but I believe that there is a pretty clear matrix that determines the likely success or failure of economic sanctions –
  • The more unilateral the imposition of the sanctions, the broader the goal and the more authoritarian the target government, the more likely the sanctions regime will fail.
  • The more multilateral the imposition of the sanctions, the narrower the goal, and the more responsive the target government to democratic pressures, the more likely the sanctions regime will accomplish its goal.
  • Thus, a finely tailored, multilaterally imposed sanctions regime designed to prevent the proliferation of specific items is more likely to succeed than a unilaterally-imposed ban on all trade and investment that seeks to change the general behavior of an authoritarian regime that can shield its leadership from the impact of sanctions and push the ensuing pain down on to its powerless citizens.
• Finally, it seems to me that there is something wrong – quite offensive – about resorting to sanctions because one lacks the will to take the harder course needed to remedy the situation.
• The point is that these are complex questions. The answers should be provided by our elected Legislative and Executive branches, in the light of overall economic, national security and foreign policy considerations, and not by life-tenured individuals or committees thereof who never have to face the consequences of their actions.

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