Friday, April 21, 2006

moon waist, wind fists, stars wrists

Oddly enough, at my former site, I hardly ever refer to my experience at school. Here, it's practically all I do. Of course, the situation is helped by the fact that I don't have any time to write. And, I have small writing assignments (too small for my taste) in one of my classes. It's not hard to figure out what's coming next, is it? Here we go!


Kenneth Anderson(*1) writes in The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations With International Nongovernmental Organizations,(*2) well, he writes a lot of things, not the least of which is a long, long title and the gist of which is that international NGOs, and the international organizations they commingle with, blow.

Opinion is fine, but Mr. Anderson oversteps in his "unsolicited advice." Even if this is obvious enough, I think it bears noticing: discussing international NGOs and lumping them together reeks of dishonest. He deviates once from "international NGOs" with a solitary mentioning of Human Rights Watch and Amnesty International (and derisively, Greenpeace) as examples of international NGOs. At the same time, international NGOs, he asserts, are the great fomenters of riots, fire, and tossed rocks in Seattle during the WTO/IMF/World Bank meetings, and better yet, later on, international NGOs "despise" US politics and its democratic process. We are talking about HRW and Amnesty International, right?

Seems like a minor point, but Mr. Anderson stating that international NGOs do not operate with democratic legitimacy or they are "strange and remote elite[s]" while also connecting them with the protesters in Seattle is suspicious. I do not know who specifically rioted in Seattle in 1999.(*3) A partial list of NGOs who protested (as oppose to rioted) were: Citizens' Trade Campaign (CTC)--a broad-based national coalition including Public Citizen; labor groups like the United Auto Workers, AFL-CIO; environmental groups like Friends of the Earth and Clean Water Action; farm groups like National Farmers Union, National Family and Farm Coalition, Northern Plains Resource Council, Western Sustainable Agriculture, the Institute for Agricultural and Trade Policy, and the Campaign to Reclaim Rural America, Zapatista-originated Peoples' Global Action.(*4)

Other NGOs present (who I cannot verify as protested or rioted) were: Chicken Farmers of Canada, Church of Sweden Aid, Committee on Pipe and Tube Imports, German Bar Association, Idaho Barley Commission, Learning and Development Kenya, Mark Twain Institute, Motion Picture Association, and Transparency International Canada.(*5)

Back to my point, which certainly was not to draw attention to my Google prowess. Mr. Anderson use of "international NGOs" as a blanket term or identifying HRW and Amnesty International as prototypical international NGOs is classic bait and switch. My casual survey of the NGOs there that fateful week in Seattle give some support that many NGOs are not of the "strange and remote elite" variety, but unmistakable stakeholders in the matters of WTO/IMF/World Bank discussions.(*6) While not negating his arguments, Mr. Anderson does not identify United Auto Workers, Transparency International Canada, or Chicken Farmers of Canada -explicitly farmers and union workers- as NGOs he criticizes is because to do so weakens his claims of a nefarious elite international NGO conspiracy. Muddling the specific international NGOs, their membership, and who and what they represent as only blank "international NGOs" serves Mr. Anderson's claim that these organizations operate without a colorable claim of representative-ness or democratic legitimacy. This is intentional dishonesty.(*7) Instead of international NGOs and international organizations locked in a powerful romantic embrace, it is boogey man "international NGOs" and the conservative agenda that have found the near perfect match.

Another thing I found funny about Mr. Anderson's article was:

"Yet, I imagine ... I believe firmly that the United States ought to give up its deployment of anti-personnel landmines because they are an indiscriminate weapon. It should do so without special regard for the fact that it has also been the subject of an intensive international campaign and treaty, but it should do so."(*8)

Funny firstly because Mr. Anderson's former employer HRW(*9) with Physicians for Human Rights were the international NGOs kicking off the call for the landmine ban way back in 1991.(*10) But even funnier is the assertion that the US should sign the mine ban treaty,(*11) without regards to the international campaign. Without the exhaustive work and pressure of international NGOs, and Mr. Anderson should know better than most, no one and no nation would care or be aware enough to ban this deadly and indiscriminate plunderer of life, youth, sight, and limbs. International NGOs put the issue out there and made it an issue. To suggest it may be feasible to give up deploying land mines without special regard to international campaign (and international NGOs) is sort of like ratifying the US Constitution without special regards to the Philadelphia Convention and the Federalist Papers. It does not make sense!

I also intended to write a little bit specifically about Samantha Power. In her book, "A Problem From Hell" America in the Age of Genocide, she included HRW, Oxfam, and Red Cross as the major media, along with New York Times and Washington Post, which warned of the terrible genocide in Rwanda.(*12) My purpose was to highlight the belief that many international NGOs would more likely claim a watchdog role/function rather than the representative-ness that Mr. Anderson too cleverly attempts to impose on them. But that would tax the page limit much more than I already have.


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1: Mr. Anderson also keeps a blog: http://kennethandersonlawofwar.blogspot.com/, who doesn't these days?
2: 2 Chicago Journal of International Law 371 (2001).
3: I might go out on the limb and say some were "anarchists" or "black bloc", whatever those terms mean.
4: http://www.globalpolicy.org/socecon/bwi-wto/wto99/protst99.htm.
5: http://www.wto.org/English/forums_e/ngo_e/ngoinseattle_e.htm.
6: I have to wonder what degree of representative-ness is required to dealing with organizations like the WTO or UN which operates and was formed with slim, if any, democratic pedigree.
7: To Mr. Anderson's credit, he does describe WTO as "not truly square with the principle of democratic accountability." However, by seeking to engage the world community through WTO or the United Nations, I believe the US can no longer claim refuge against other world organizations. If US action/policy/decisions (and to a certain extent, once it engages the world community, inaction and indecision) affect individuals in another nation, it cannot deny actors from outside of the United States from responding.
8: 2 Chicago Journal of International Law at 381.
9: As mentioned in class, Mr. Anderson, I suppose, famously turned to the dark side of the force.
10: http://www.icbl.org/campaign/history/chronology. Google again. Though I have to admit Google failed me when I was seeking two poems by John Wheelwright, Slow Curtain and Quick Curtain. Ultimately, I had to resort to my school's undergraduate library.
11: My understanding is that President Bush had squashed United States signing on to the landmine ban on February 27, 2004. http://www.banminesusa.org/. In all fairness, President Clinton did jack shit as well, as the treaty was presented to the US during his terms in office.
12: Harper Perennial, 2003 Paperback, page 356. And thankfully I am almost done with the book.

Monday, April 10, 2006

One Love, Two Hearts

The outcome of HKSAR vs. Ng Kung Siu ("HKSAR")(*1) is hardly surprising. Who would figure that the "one country, two system" Hong Kong ("HK") highest court, the Court of Final Appeal ("COFA"), would come out any differently in a case where freedom of expression is pitted against restriction on flag desecration? If you ask me, HKSAR is just another example of judges' cherry picking case law. And even worse, cherry picking some cases(*2) despite them "coming out the other way."(*3) Crazy.

Equally crazy is trying to understand the case in the context of HK. As was noted, "the Court cited no English precedents from HK's colonial past and still less any Chinese principles from its uncertain present."(*4) On the other hand, the cites of the COFA majority and concurring opinions globetrotted and raided not just the Supreme Court of the United States ("SCOTUS"), but also the Inter-American Court of Human Rights, Italy's Supreme Court, and Germany's Federal Constitutional Court to aid in interpreting People's Republic of China law, HK's Basic Law, International Covenant of Civil and Political Rights, public order (ordre public), and more. The thing that boggles my mind is, yeah, that is fine for maybe the highest court, even the intermediate appellate court too, but how the heck would a trial level court incorporate such broadness in its adjudication? I do not think the HK Court of First Instance would ever be expected to do that type of analysis. And wow. I am imagining including a section titled "Other overseas nations" that cites Mexican and Egyptian cases in the brief I am currently working on for the Federal Litigation Clinic. Or more precisely, I am trying not to imagine the inclusion because it would certainly involve bedlam and my expulsion from law school.

I do not mean to be tongue in cheek about the briefing, rather I meant to be mindful of the practical application for the courts. The docket is full enough as is, and the judges take long enough as is in their deliberation. Increasing the complexity of cases present real and daunting issues. In one case I have,(*5) the federal district judge took a better part of a year to decide on a motion, and that's just from briefs citing chiefly 2nd Circuit decisions. Not to knock the intelligence or sophistication of our judges, it is not merely the number of cases but probably also the intricacy of the issues that slows our court system.

Returning to HKSAR, and with a little help from Google, the sitting justices were:

1. Chief Justice Andrew Li Kwok-nang born in HK of Chinese descent born in 1948;
2. Justice Syed Kemal Shah Bokhary born in HK of Pakistani descent in 1947;
3. Justice Henry Litton born in HK of mixed descent(*7) in 1934;
4. Justice Charles Ching born in HK of Chinese descent in 1935; and
5. Justice Anthony Mason born in Australia of presumably Aussie descent in 1925.

That was the first thing I checked after finish the HKSAR decision: who was on it. Firstly, to see the diversity: seems like a nice mix of Chinese, White, and Pakistani. I wonder how long it will be before a Hispanic or Asian gets appointed to the SCOTUS. Nice mix for the COFA until I double-checked for women justices, zero.(*7) A partial point for the SCOTUS then.(*8)

Secondly, about the resistance to including international and comparative law as authority(*9) in the USA judiciary: why stop at questioning the national origin of the text? Why not call into question the national origin of the author too? If German case law is no good, a circuit court case decided by a judge, naturalized but of German birth, should be equally suspect. I know Americans love their parochialism, but foreign-ness does not equal faulty analysis. Judicial decision-making is serious business; everything that might help should help.(*10)



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*1 - 2 HKC 10 (1999) (where local ordinance criminalizing flag burning was upheld as constitutional).
*2 - Texas v. Johnson, 491 US 397 (1988), and United States v. Eichman, 496 US 310 (1989) (SCOTUS striking down state and federal statutes, respectively, that criminalized flag burning as unconstitutional restriction on freedom of expression).
*3 - Martin S. Flaherty, Aim Globally, 17 Constitutional Commentary 205 (2000).
*4 - Id. (referring to the lower court's decision that local ordinance was unconstitutional).
*5 - Again, for the Federal Litigation Clinic.
*6 - From pictures, certainly part White (Google failed me in providing more information).
*7 - Out of 21 Justices!
*8 - Currently one women, New Yorker Justice Ruth B. Ginsburg, but until recently with a high watermark of two (Texan Justice Sandra D. O'Connor retired and was succeeded by Italian and Jersey boy Judge Samuel Alito).
*9 - No matter the degree of authority: binding, persuasive, or even informal and private assessment authority.
*10 - Which reveals a Jekyll and Hyde stance on judicial globalization. I'll be kind to myself and say: not sure for now.