Old Treaty Games Face New, Global Technologies

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison – The Federalist Papers, 1788

International legal scholars are now debating Russia’s compliance with previous international agreements, including the UN Charter, and the Budapest Memorandum whereby Ukraine (probably regrettably) gave up many of its nuclear weapons.  At the same time, there is Syria’s reported refusal to abide by UN Security Council resolutions, and its reported failure to tender most of its chemical weapons to the Organization for the Prohibition of Chemical Weapons (OPCW) as required by the (1997) U.N. Chemical Weapons Convention.  There is, of course, much more that lurks beneath the surface.

Old legal regimes must constantly evolve and adapt, but in my view, there are too many essentially unenforceable agreements, and too many enforcement actions that are actually compromised in secret.  Certainly, deliberations and negotiations require a reasonable period of non-public investigation and confidentiality.   Political accountability, however, requires that everyone expect that those activities will eventually come to light– in time for some public accountability.

The Political Exploitation of Vietnam

A few notorious examples from past American history are, perhaps, instructive.  For example, we now know that millions died in Vietnam and Cambodia for mostly political reasons.   As explained by Wikipedia:

…In 1961, the U.S. had 50,000 troops based in Korea, and [President] Kennedy faced a three-part crisis – the failure of the Bay of Pigs Invasion, the construction of the Berlin Wall, and a negotiated settlement between the pro-Western government of Laos and the Pathet Lao communist movement.[142] These crises made Kennedy believe that another failure on the part of the United States to gain control and stop communist expansion would fatally damage U.S. credibility with its allies and his own reputation. Kennedy was thus determined to “draw a line in the sand” and prevent a communist victory in Vietnam. He told James Reston of The New York Times immediately after his Vienna meeting with Khrushchev, “Now we have a problem making our power credible and Vietnam looks like the place.”[143][144]

In May 1961, U.S. Vice President Lyndon B. Johnson visited Saigon and enthusiastically declared [Vietnamese President] Diệm the “Winston Churchill of Asia.”[145] Asked why he had made the comment, Johnson replied, “Diệm’s the only boy we got out there.”[129] Johnson assured Diệm of more aid in molding a fighting force that could resist the communists….

[Only two years later] …U.S. officials began discussing the possibility of a regime change during the middle of 1963. The United States Department of State was generally in favor of encouraging a coup, while the Defense Department favored Diệm. … This proposal was conveyed to the U.S. embassy in Saigon in Cable 243...The Central Intelligence Agency (CIA) was in contact with generals planning to remove Diệm. They were told that the United States would not oppose such a move nor punish the generals by cutting off aid. President Diệm was overthrown and executed, along with his brother, on 2 November 1963. When he was informed, Maxwell Taylor remembered that Kennedy “rushed from the room with a look of shock and dismay on his face.”[153] 

The Cuban[/Turkish] Missile Crisis

Astoundingly, even Americans only recently learned that, in the interveening 1962 Cuban (and Turkey) missile crisis, Attorney General Robert Kennedy ultimately notified Soviet Ambassador Dobrynin that U.S. missiles in Turkey would be withdrawn within months of withdrawal of Soviet missiles from Cuba, but it was imperative, for domestic American political reasons that the linkage of the withdrawals not be announced.

File:President Kennedy signs Cuba quarantine proclamation, 23 October 1962.jpg

Upper: President John Kennedy signs the Proclamation for Interdiction of the Delivery of Offensive Weapons to Cuba. White House, Oval Office,  23 October 1962, and lower: Robert Kennedy speaking to a civil rights crowd in front of the Justice Department on June 14, 1963. Source: Wikipedia Commons.

Curiously, there is still incomplete knowledge about even the Cuban Missile Crisis, because many of Robert Kennedy’s files still have not been released over 52 years later!   [Also remarkable is that some that lauded President Kennedy’s extension of the so-called, “Monroe Doctrine”, apparently (hypocritically) criticize Russia now for essentially exercising the same policy.]  Both Kennedys were later assassinated under mysterious circumstances.

The Gulf of Tonkin Ruse

Shortly thereafter, many now contend that the American government secretly withheld evidence that the Vietnam conflict was later escalated by President Johnson under false pretenses:

…On 2 August 1964, the USS Maddox, on an intelligence mission along North Vietnam’s coast, allegedly fired upon and damaged several torpedo boats that had been stalking it in the Gulf of Tonkin.[171] A second attack was reported two days later on the USS Turner Joy and Maddox in the same area. The circumstances of the attack were murky. Lyndon Johnson commented to Undersecretary of State George Ball that “those sailors out there may have been shooting at flying fish.”[172]  The second attack led to retaliatory air strikes, prompted Congress to approve the Gulf of Tonkin Resolution on 7 August 1964,[173] signed by Johnson, and gave the president power to conduct military operations in Southeast Asia without declaring war.[174]

White house tapes released in 2003, and later admissions by those involved, suggest that the attacks were also staged for political reasons, to influence the upcoming presidential election in November, 1964.    This same tactic was purportedly implemented in 1968 by President Nixon via the secret sabotage of the Vietnam peace talks, but many contemporaneous records are still unavailable.

Today’s Transparency and Accountability Issues

On the fundamental conflicts between transparency and confidentiality, as discussed in this blog before, the development of balanced and verifiable international standards is needed.  The recent cell-phone conversation and other revelations by Victoria Nuland, for example, exemplify how difficult it is to timely inform the taxpayers’ domestic representatives without also potentially informing the world.  Because of this, bureaucrats and autocrats the world over hide too much.  Just as Kennedy’s staff and family withheld, and are still withholding, information from the American electorate, we are unlikely to learn the full interplay and “horse-trading” that is constantly transpiring behind the Government scenes today– especially in those many Governments around the world that remain essentially opaque.   While some confidentiality is necessary to protect strategies, deliberations and negotiations, confidentiality is also often exploited to hide corruption and suppress political opposition; particularly where there is no reliable whistleblower protections, nor peer review, and no third-party auditing or verification system yet in place.  Where public accountability is absent for as much as 50 years, after most of the actors have died, a government cannot effectively control itself.

In fact, there are also (at least) 4, contentious, international transparency negotiations between the larger, space, nuclear, chemical and biological powers that merit particular note and attention, but aren’t being covered in most journals or the press.  Each of these efforts essentially concern consensus standards and rapidly evolving technologies that could be also be detrimental to international and regional security and stability. Is it possible that they have been retarded because they also threaten very powerful, opposing vested interests?

First, one must always ‘follow the money.’  The recent G8 Open Data Charter, if actually implemented by the Russian Federation and other powers, would be a decent step forward in more direct transparency to the electorate.  However, there are also long awaited taxpayer information exchange proposals via OECD, the G20, and cooperating financial regulators proposed for this year.  Has Russia really committed to the last G8 proposal to seek tax transparency on tax havens?   The WTO and WCO have also just proposed to increase customs data exchanges and rules on government procurements.   Will the sources of billionaire oligarchs’ money now be effectively followed by foreign authorities?   Could hidden autocrat and crony money, stashed in still opaque tax havens away from the prying eyes of political opponents, potentially be the real problem?

Internet freedom is also fundamental to this new, proposed transparency, and the luminaries from the World Economic Forum (WEF) in Davos are reportedly trying to avoid a possible “balkanization” of a number of pesky, Internet-related topics, including big data, privacy, consent, the right to anonymity, and trans-border access and storage of data.

The (colorful and still evolving) history of ‘Balkanization’ from 1800-2008 from Wikipedia Commons

In January, the WEF announced an ”independent” new Commission named the Global Commission on Internet Governance, chaired by Mr. Carl Bildt, Sweden’s Minister of Foreign Affairs, which seeks to resolve the many issues raised in the “Dubai 2012” World Conference on International Telecommunications (WCIT) round.  Why isn’t the world press covering that work?

Concurrently, many countries’ government authorities are negotiating agreements that could also impact their exchanges of regulatory data via the internet.  In fact, the EU and many other countries are negotiating a complex array of bilateral and plurilateral trade agreements that could directly affect the exchange of all kinds of regulatory data, including financial and procurement transactions, insider trading and tax compliance.  Conversely, the EU Parliament has just voted to greatly restrict the data that can be obtained and used, especially by foreign governments.

Last, but certainly not least, there are the attempts to control hard and soft weapons, and many old defense treaties (such as the Chemical and Biological Weapons Conventions [mysteriously originated by President Nixon in 1969])  with old inspection regimes that have become essentially unenforceable in most of the world.   The Wassenaar Arrangement, for example, is a group of only 41 countries focused on export controls for conventional arms and dual-use goods and technology.  Those countries reportedly agreed at its Dec. 3-4 annual plenary meeting in Austria on new export controls on cybersecurity technologies that “…under certain conditions may be detrimental to international and regional security and stability.  One area subject to the controls (which must be implemented by each WA member country, including the U.S.) is surveillance and law enforcement/intelligence gathering tools, which Privacy International states includes malware and rootkits that governments can use to avoid security features on electronic devices and extract data from and take control of them.”

Without more transparency, all a voter has now is questions: Why didn’t the press report on all the nonfunctioning treaties?  Why hasn’t the White House or Congress been discussing foreign transparencies?   When must these negotiations and enforcement deficits be ultimately disclosed?  Will nonmembers be inclined to join, or will secret gaming continue to imperil the lives of innocent bystanders to hidden economic and political agendas?  The threats of dysfunctional global governance are still very real.

 

 

The Need For Evidence-Based International Laws and Enforcement

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

 “…I will…first, do no harm…”

Part of the Hippocratic Oath

A dirty little secret hidden by the medical profession up until the 1970s was that medical practice was mostly based on “anecdotal” evidence of efficacy, and that many common medical practices were actually ineffectual,  or even counter productive and dangerous.

 File:Snake-oil.png

[A label from Stanley’s Snake Oil Liniment—produced by Clark Stanley, the “Rattlesnake King,” tested by the U.S. government in 1917. Source: Wikipedia Commons]

This is why the primary ethical rule was primum non nocere: “…first, do no harm…”

In many countries, some of this misconduct continues.  A recent study in India, for example, found that unnecessary or harmful treatment was prescribed or dispensed 42% of the time. Only one-third of providers articulated a diagnosis, correct or incorrect. When a diagnosis was issued, close to half were wrong, and only 12% were fully correct.

In 1967, however, the American physician and mathematician Alvan R. Feinstein published his groundbreaking work Clinical Judgment, which together with Archie Cochrane’s famous book Effectiveness and Efficiency (1972) led to an increasing acceptance of clinical epidemiology and controlled studies during the 1970s and 1980s.   Their work, and technological developments paved the way for the revolutionary institutional development of “Evidence Based Medicine.”  Today, with the benefit of the internet and new databases, modern medical procedures can be supported by evidence that is non-biased, representative, and peer reviewed, via scientific methods, including recording and published clinical data for external review and replication.  In order to protect patients and taxpayers, these requirements have now become a new ethical medical precept of their own.

In the U.S., these evidentiary techniques are now also being applied to law.  Although evidentiary rules have always been applied in U.S. Courts, they are now also being applied to the development and refinement of laws themselves.  New data capabilities, for example, have enabled more scientific, ‘evidence-based’ approaches to sexual offender legislation.  New “smart statistics“  and data mining techniques are now fighting crimes, are catching unregistered lobbyists, and monitoring conflicts of interest.  Advancements in estimating the anticipated benefits and costs of regulatory initiatives and reforms are now being required at the federal level, and new efforts to perform retrospective analyses of laws and regulations are (finally) being undertaken.    Shouldn’t scientific evidence of efficacy actually inform the development of international law too?

Unfortunately, in addition to being highly fragmented, international law is now in a period that some have characterized as “Experimentalist Governance.”  Like medicine in the last Century, it is only loosely governed by a still ill-defined, “Global Administrative Law,”  without any legally defined evidentiary codes.  Moreover, evidence quality and sufficiency is typically judged by International Organizations via a bewildering variety of incoherent voting rules—with different thresholds, weighting systems, veto points, and other rules that seek to distribute influence– not value objectivity.   As a result, despite the introduction of some modern statistical analyses, most international law decision-making is still based on mostly anecdotal or inconclusive evidence.

For example, even though many lives hang in the balance, many United Nations (UN) aid agencies have been criticized (regularly) for ineffectiveness, but still are reportedly unable to assemble and regularly produce employment numbers, budgetary data, and overhead costs.  Despite decades of reform attempts, a recent UN inspection report noted, for example, that “…monitoring, evaluation and reporting of the financing instruments present a mixed picture of accountability among the agencies; reporting is often done piece-meal..[and] key recommendations from previous audits and evaluations…have yet to be implemented.”    Similarly, essential UN internal complaint systems still reportedly lack necessary procedures to adequately protect whistleblowing. Without enforced data transparency, independent auditors and peer reviewers cannot monitor effectiveness, and scientific, retrospective analysis is nearly impossible.

UN Millennium Goal Indicators are another example.  Survey data is notoriously biased and incomplete, and national surveys are rarely scientifically validated.   [ Although 77 organizations have recently asked the UN to make access to information central to the post-2015 Development Agenda.]  Other UN data, such as in the trade of narcotic drugs, or the enforcement of economic and other sanctions, has been criticized as either incomplete, problematic, or self-serving, because of reliance on non-transparent national data sources.

The World Bank also collects survey evidence on corruption covering 73,108 companies across 123 countries. (Many survey respondents report paying bribes for government services or in order to get contracts, and in 22 countries, the average respondent suggests the size of such bribes is more than 5 percent of the value of the contract.)  While interesting, such surveys are unable to accurately measure the effectiveness of various (expensive) initiatives intended to counter corruption.

The World Bank Group’s (“Bank”) Integrity Vice Presidency (“INT”) is the unit within the Bank actually charged with investigating corruption against the bank itself.  According to a recent report:

In FY2013 (ending June 30), INT evaluated 449 complaints from 90 countries and opened 89 as new cases, some of which are ongoing. The top three regions with the highest number of new cases were Africa, South Asia, and East Asia Pacific, respectively. Agriculture, healthcare, transport, and water were the most commonly targeted sectors.

INT has five administrative sanctions at its disposal: public letter of reprimand; debarment; conditional non-debarment; debarment with conditional release; and, restitution. In FY2013, however, INT imposed only debarments and conditional nondebarments on sanctioned entities. In total, INT debarred 44 entities in FY2013, with all of the matters involving fraudulent or collusive practices…

In other words, the World Bank only investigates and prosecutes a small fraction of reported crimes against it, and does not even seek restitution from those companies that defraud it!

Similar complaints have been leveled at the work of the World Trade Organization (WTO).    While the WTO produces long and detailed reports and decisions (that sometime take decades to resolve), experienced practitioners, like Clyde Prestowitz, still note that a lack of investigatory powers, and the many ambiguities in the underlying agreements have not yet prevented rampant gaming and evasion in the critical trade realm.

In sum, much of the well-intentioned work of thousands of international NGOs and expert committees has been handicapped, in part, because there are no standardized rules of evidence, and little scientifically derived data to present for rigorous re-examination.  There is also a dearth of local enforcement resources.  In my view, it is time for the development and adoption of mandatory international evidentiary standards and rules to solve these problems.  With improved coordination and standardized rules, new automatic monitoring and reporting capabilities, mined via quantum computing, computerized data analysis and machine learning, will soon enable more effective and accountable governance, particularly at the fragmented, international levels.   Will more standardized transparency and evidentiary science be quickly embraced by the IOs and Member States, or will the problems of the world continue to be treated with more spin and snake oil?

 

Big Data and the International Privacy and Transparency Law Chaos

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.”

Martin Luther King, Jr.

Beneath the seemingly continuous risks of armed conflict and government dysfunction, probably the greatest challenge to global business today stems from the enormous hidden costs of international law “fragmentation,”  and particularly the many disparate legal requirements that impede business and aid in various different countries. While this chaos is good for some law and accounting firms, this incoherence clearly retards essential economic growth and development, particularly in (so-called) “developing countries.”

Although no governments keep accurate track of confusing cross-border legal variations and their impacts,  defective business regulations are estimated by the IFC/World Bank to cost businesses across the world many $Trillions in lost productivity each year.  The cost of unaddressed corruption, alone, reportedly equals more than 5% of global GDP ($2.6 trillion), and corruption increases the cost of doing business up to 10% globally.   It also fosters inequality and injustice, and undermines confidence in the rule of law.  Previous posts have addressed transparency, legal incoherence and differential and selective enforcement more generally, but the most topical example of this waste in the darkness continues to be the growing chasm between the many promises of light from ”big data,” and the fears of the loss of individual privacy.

The press is reporting only part of this story.  It has been well reported, following the recent disclosures of US National Security Agency and other surveillance developed to correct the many US intelligence mistakes before 9/11/2001, a fiery debate about personal privacy has recently erupted around the world.  Even though the 9-11 attacks were reportedly planned in Hamburg, both Germany and Brazil sought a UN General Assembly resolution that establishes “[t]he right to privacy in the digital age” as an international human right under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Characteristically, this was buried on pp. 139-40 of a massive, convoluted, ’Christmas Tree’ Committee referral report that also contained all sorts of “approaches for improving the effective enjoyment” of other [new and unenforceable] international human rights that few understand.

Achieving global consensus on a coherent balance between transparency and confidentiality, for different types of data, and for different types of users, will be neither simple, nor quick. US Constitutional scholarship lacks the requisite precision to provide easy answers, and current laws are outdated and vague.   Moreover, a recent survey of 13 developed countries concluded that “..[i]n many countries, the published law appears to say something different from what governments are reportedly doing…”  See Rubinstein, Nojeim and Lee.

In response to the UN and others, President Obama has just issued a new Policy Directive establishing principals, limitations and new processes for intelligence data collection, and assigning a coordinator for international diplomacy to address foreign government concerns.  That new effort follows several other US directives and orders regarding other government data transparency, and many private international initiatives to increase government data transparency in general.  No clear path, however, yet exists.

 

International Government Transparency Initiatives

Efforts toward access to other important government data, such as safety data, medical data for research, or budgetary and enforcement databases continues (arguably also incoherently) in parallel.  International NGOs like Transparency International have been courageously trying for years to force more Government information in the open, with only limited success.  In 2011, due, in part, to a lack of concrete UN action, 8 founding governments (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the United States) endorsed the Open Government Partnership (OGP), and announced their country action plans. In total, OGP participating countries have reportedly made nearly 1,000 (entirely voluntary) “commitments” to make their governments more open and accountable.

A recent independent report on US progress, however, while noting progress on 13 out of 26 “commitments,” curiously states that the White House lacks control over several US Agencies.  The posting of US government data sets, such as at data.gov, is clearly still in its nascent stages.  As previously mentioned, the US Department of Justice is now talking to its international counterparts, but is just now planning future restricted data access to qualified researchers.

While Brazil, for its part, reports some progress on its OGP commitments, it’s work appears also largely to be in the planning stages.  Many other countries, including Germany, have yet to submit to independent OGP review, but there have also been parallel efforts by APEC in 2002, and via the G8 Open Data Charter last year.  The track record on those plurilateral efforts has clearly been mixed.

For international trade, customs data, and enforcement transparency and accountability, are particularly important. Adding to the fragmentation and chaos, the members of the World Trade Organization (WTO) and World Customs Organization (WCO) recently agreed in Bali to open up some customs data, for the first time, for some public scrutiny, but the future enforcement of those commitments was left unaddressed .   (What does “best endeavors” on p. 17 of http://www.intracen.org/WTO-Trade-Facilitation-Agreement-for-web/ actually mean without enforcement mechanisms? )  The UN and the WCO have purportedly sought to open customs data to the light for decades, so it will be interesting to see what concrete measures actually result from new “monitoring” by the WTO.

Individual Privacy Concerns

Personal data is another matter entirely, as technological advancements have far outpaced old legal regimes, particularly in the realm of individual privacy.  14 years after the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, many countries are still struggling to strike an appropriate legal balance between transparency and confidentiality. A recent survey by the lawfirm of BakerHostetler found hundreds of conflicting domestic laws at the local, State, and National levels. According to some knowledgeable commentators, in light of the now global, digital revolution, “…[p]rivacy governance is at a crossroads.” [and] “Finding the right balance between privacy risks and big data rewards may very well be the biggest public policy challenge of our time…“  See Polonetsky and Tene.

This week, one can watch carefully selected “thought leaders” discussing the implications of this uncertainly on business in some open meetings held in Davos online.  (Of course the real debates will occur in dark evening dinner meetings in chalets or on the ski slopes.  Could the rich and connected ever talk openly from Switzerland about, say… tax data transparency???? )  According to a recent World Economic Forum report:

“… a declining sense of trust throughout the personal data ecosystem is jeopardizing the long-term potential to deliver socioeconomic value. High-profile data security breaches, rampant identity theft, a general lack of transparency in how personal data is monetized, and an absence of globally harmonized policies for privacy and the use of data all compound to create an unstable ecosystem. Companies are unclear about what they can and cannot do with personal data and are either standing on the sidelines or forging ahead with an unclear understanding of liabilities and the potential for negative impact on their reputations and brands. Governments are proposing various laws and regulations to protect privacy while also aiming to encourage innovation and growth…”

In my view, WEF is sugarcoating the magnitude of this international legal problem.

 

The Case For Medical Data

Also this week, in the dark, former swamps of Washington, DC, well intentioned medical researchers will, once again, be discussing the enormous potential of aggregated personal medical data to reduce medical errors, reduce costs, improve treatments and save lives.

 

A nurse shreds medical records (allegedly) in order to be in compliance with the US Health Insurance Portability and Accountability Act (HIPAA).  Source Compliance and Safety

Analysis of anonymized (and legally protected) health data could be a very valuable asset critical for advancing quality improvements, comparative effectiveness research, market analytics, efficiency gains, and (quite imprecise) clinical research.  For the last 10 years, despite the tremendous current and potential value of “anonymized” health data, nagging privacy concerns have impeded its use, in part, because improper anonymization could create the risk of data breaches.  Unfortunately, many lawyers and regulators are still unaware that there are now sophisticated, defensible techniques and processes for “de-identifying” health data in compliance with US law and the standards that do exist.

Through enormous investments in Electronic Health Records in many countries, valuable medical data is no longer being shredded, and new medical reporting systems are being started for research and budgetary accountability  (see, e.g., the recent successes of Minnesota hospitals).  A new drug prescription database in New York has cut ‘doctor shopping’ by 75%.  The medical systems in the UK, Sweden and Israel are also reportedly leading a new, medical system transparency movement, and UK data will soon be mined to fight cancers.  Imagine the potential benefits of such research on a global scale.  This is only one example of the enormous potential of big data.

While no one’s data may ever be totally secure on the internet, Chancellor Merkel may actually benefit from that when her hip needs replacing!  It is that kind of benefit/cost evaluation, in the light, that needs to be made.  Are you reading this in Germany, you hard working analysts in the Bundesnachrichtendienst?

 

Statehood, Threats and Enforcement Priorities

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

There are long overdue questions being raised about the rights and obligations of U.S. ‘States’ under the estimated 1,100 international treaties and 17,300 “Executive Agreements” concluded by U.S. Presidents since WWII.  Has Congress been appropriately involved (see, e.g., Moore)?   Are each of these international agreements being properly enforced, both here and abroad (see, e.g., Koplow)?  Who in U.S. State and local governments actually even know what all of these international agreements require (especially before they are signed)?   Do all States and localities have the sustainable resources to enforce them, if necessary?  In my view, if this chaotic situation is left unresolved, the ambiguous legal duties of Statehood, created in the U.S. in our basic Constitutional (federation agreement) from 1791, could now potentially harm the environment, international stability and commerce.

As in many countries, the majority of enforcement powers in the U.S. have traditionally rested at the State and local levels. Moreover, as in other large nations, the average sized American “State,” like Massachusetts, has a population of about 7 million people, and is thus, more populous than most countries (also confusingly called ‘States‘). By comparison, 7 million is slightly less than the countries of Sweden, Hungary or Israel, but more than Norway, Jordan, or Laos.  In fact, there are actually 139 so-called sovereign ‘States’ that have less than 7 million people, but are legally permitted to ‘punch above their weight’, for example, in the UN General Assembly, and in coordinated negotiations in many other IOs.

Even more concerning is that fact that several of these smaller countries claim complete sovereignty under international law, including, according to Transparency International, the right to remain opaque, de-facto kleptocracies.   Even worse, many chronically “developing” countries have their own Billionaires, but pay little or no taxes or contributions to the UN.  Their enforcement of many treaties is also unfunded or sporatic, and they can withdraw from, or ignore any of these treaties and agreements more or less at will.  Given the perceived lack of uniform enforcement in the U.S., and the political sensitivities in critical negotiations, this apparently increasingly recalcitrant behavior is very difficult to control.

And what about consistent enforcement at sub-national levels in larger countries? Shouldn’t the details of environmental and other agreements legally or practically matter to other, larger nations’ sub-national, non-sovereign entities, like the police in Rio de janeiro (population about 7 million), or other authorities in larger states in UN Security Council member, Brazil?  Most U.S. States are actually far smaller than the populations of each of 28 Chinese provinces and 19 Indian states, which have reportedly had chronic enforcement issues of their own.

And what about sustainable political will and resources?  Are all of these 18,000 agreements essential priorities?  What may sell at an international conference of experts and plutocrats may not work in the real world on the ground.   In the ideal, representative democracy (originally from ancient Greece, estimated population less than 1 million), each citizen/resident is supposed to have one, equal vote, but also pay taxes to adequately support sustainable government functions.  The real world is far different today, and how votes, customs duties and taxes now translate into real political will for enforcement resources, indicia of economic “development,” or even improved, individual “well-being” has become difficult to discern on the ground level.

Those that have worked on different continents, in several legal jurisdictions, and with many local, county, provincial, federal, and national government bodies and IOs know the mind-numbing complexity and incoherence of the still evolving legal and political structures of the many, different political entities.  When I was a young lawyer, I worked with early European Community (EC) law. Since that time, the early EC agreements following the aftermath of bloody WWI and WWII have evolved into a complex web of treaties and agreements partially depicted in this handy diagram from Wikipedia:

[This diagram is also indirectly illustrative of the current, mind-numbing complexity of international copyright law (the Wikipedia licensing instructions for it is an example).]

Those complex European agreements have important consequences.  Travel and other restrictions have reportedly led to the current political and social unrest in the Ukraine, whose poorer residents wish to travel (or illegally emigrate) to more affluent EU countries. (Yes, the attraction of lucrative work has created a significant immigration problem in Europe too.)   Economic instability (one of the causes of both WWI and WWII) and tax disputes are again creating strains on this obtuse web of alliances.   Residents of “P-5″ memberUnited Kingdom (combined population 63 million) are seriously considering withdrawal from other agreements. Given fiscal constraints, political will for compromise and prioritization is now at risk.   This is a true threat to the entire world.

Conflicts and disasters should become the urgent priority. A reported 13 million people have been affected by the recent typhoon in Asia, and the Philippine government alone says 9.8 million have been affected in 44 provinces, 539 municipalities and 56 cities, but they have no money.  There are also now 7 million displaced people in Syria alone, and many more millions that are hungry and unemployed in Egypt and other Israeli neighbors.  In reality, their emergency ‘right to food’ (compare the International Covenant on Economic, Social and Cultural Rights) is more related to the risk that future Americans, Chinese, and Brazilians may be indirectly drawn into their future strife, either militarily or economically. The efficacy, structure and capacities of critical SURGE resources for emergencies (such as police to maintain order, food, clean water, medical care and heat), supported by sustainable duties and taxes, is most important.  Overly ambitious agreements that would be “nice to have,” should be eliminated or postponed. Structural reform, and prioritization, are critically necessary. 

One soldier from Massachusetts recently died in Libya.  His family, and those remaining veterans from Massachusetts that fought for European and Asian peace, all know how important functioning international agreements and resources can be.  Isolationism and strong domestic militaries cannot solve these problems forever. Our mutual well-being depend on greater legal clarity and buy-in at all levels– before it is too late…again.

 

International Organizations Potentially In Your Business

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

Unlike most academic websites and journals reporting on developments and theory in international law (which have recently been focused on drone killings, human rights litigation, and international trials of rich, African dictators), this monthly blog tries to succinctly address practical topics of potential interest to normal folk trying to make a living. After all, it is growth in international business and trade that must actually pay the billions in taxes, tariffs and tuitions that go to fund the millions of salaries, articles and exotic conferences that all those professors, judges and government officials involved in messy, but sexy, ‘foreign relations‘ enjoy.

A basic appreciation for the many hundreds of thousands now well-employed in so-called “International Organizations” (IOs) are becoming particularly important, if for no other reason than to understand where all that tax money is going.   After all, all enterprises must assess which organizational components are indeed critical, and how to distinguish them from those which are perhaps becoming a burden to sustainable, economic growth. A survey of a few, recent IO reports are instructive.

Most press reported, for example, that the Norwegian Nobel Committee recently selected the Organization for the Prohibition of Chemical Weapons (OPCW) for its 2013 Nobel Peace Prize. But what is the OPCW, and how much does it cost?  The OPCW is technically an “intergovernmental organization,” located in The HagueNetherlands, set up by an important, but controversial treaty, the (1997) U.N. Chemical Weapons Convention, which purportedly prohibits all use of chemical weapons and requires their destruction. Unfortunately, the treaty is so broad, it includes so-called “dual use” chemicals used by many businesses.  OPCW has a Staff of 500, who are supposed to verify voluntary declarations by member states and conduct on-site inspections all over the world, such as recently demanded by the UN Security Council in Syria.  The last reported (2012) OPCW budget totalled $95.4 million, of which $45 million was for verification costs and $50.2 million for administrative and other costs. Like many other IOs, the Staff have been handicapped for years by budgetary limitations, obstruction, obfuscation and outright refusals (six UN states, Angola, Burma, Egypt, Israel, North Korea and South Sudan, are still not parties to the treaty).  In fact, the OPCW reportedly only has funding to operate till the end of this month.  As you might imagine, strong OPCW supporters, (like the nervous neighbors of Russia, the Norwegian Nobel Committee and the Dutch), seek more sustainable funding for the OPCW from other members so that it can achieve its intended goal of global chemical disarmament.   Skeptics and so-called “realists,”  however, doubt that universal chemical disarmament, like nuclear disarmament, is actually, remotely achievable.   Entirely separate IOs in Geneva, Switzerland have been attempting to conduct meaningful inspections of nuclear and biological weapons for years with even less success.

Other IOs are increasingly concerned with “dual use” by industry.  For example, the U.S. and several other countries just ratified (curiously bypassing the U.S. Senate) the Minamata Convention on Mercury, which seeks to ban many (but not all)  industrial uses or production of that element.  That regulation will be spearheaded by the United Nations Environmental Programme (UNEP) staff, who are also seeking to regulate lead, cadmium, the climate, and many other substances currently used by businesses. UNEP’s proposed budget for 2014-15 will be $ 631 million, employing some 854 full time staff.

Another well known IO whose sustained funding is of broad concern is the UN Office For Coordination of Humanitarian Affairs (OCHA).  OCHA has over 30 offices around the world, and some 1,900 specialized and dedicated Staff to perform humanitarian aid missions, alongside many private groups, such as the International Committee of the Red Cross (ICRC).  As the recent ‘super-storm’ recovery efforts in the U.S. (Hurricane Sandy) the Philippines (typhoon Haiyan (Yolanda)) contrastingly demonstrate, however, many countries in the world lack preparative capacity to handle disasters on their own, and their burgeoning populations now chronically need outside aid.  To their additional credit, the UN and ICRC have also attempted to facilitate their operations with legal rules of “customary international humanitarian law,”  that can assist with civil war operations, and help to reduce the spread of armed conflict.  But a recent UN report reflects a need for significant improvements to improve coordination and accounting between multifarious humanitarian aid IOs.

Far less reported are the activities of a particularly controversial IO, the UN Educational, Scientific and Cultural Organization (UNESCO), whose laudable, intended purpose is to promote international collaboration through education, science, and culture in order to further universal respect for justice, the rule of law, and human rights along with fundamental freedom proclaimed in the UN Charter. UNESCO, headquartered in Paris, France, has been the subject of dueling political commentary (here) in the US recently, after UNESCO suspended the voting rights of the US and Israel, two years after both countries stopped paying dues to this so-called, “U.N. cultural arm” to protest its granting full membership to the Palestinians.  The US had previously withdrawn from UNESCO, due to disagreements with its many activities, and their recent initiatives with certain US city Mayors have also been controversial.  UNESCO’s 2012–2013 budget reportedly devotes over 82 percent of all resources to overall staff costs (including temporary assistance and contracted services), travel, and general operating expenses.  More than 2,000 personnel from 170 countries work for UNESCO; approximately 870 staff work in the organization’s 65 field offices and institutes worldwide.

Also far less reported is that UN staff have also been seeking to directly influence business management through the UN Global Compact Initiative and the UN Guiding Principles on Business and Human Rights.     A “Leaders Summit” was just held in New York, where some Government and Business leaders debated obligations that all international business should undertake.  In fact, while the new, Post-2015 Business Engagement Architecture seeks only to persuade global businesses to advance environmental policies and support human rights in their operations, NGO activists are now seeking to make UN Global Compact and Principles compliance, especially for certain “core” human rights, mandatory for large businesses in several countries after 2015. Recent legislative Corporate Social Responsibility mandates have already been passed in California and India, so compulsory compliance responsibilities, particularly for large enterprises, are already beginning.  These business mandates are supported by full and part time Staff and consultants in six separate UN agencies: UNEP; the United Nations Human Rights Council; the United Nations High Commissioner for Human Rights; the International Labor Organization; the United Nations Development Programme; the United Nations Industrial Development Organization; and the United Nations Office on Drugs and Crime.  Total staff and budgets are difficult to accurately ascertain.

Given this, often contentious history with some IOs, there are also future concerns about various other UN Staffs and Committees set up to monitor compliance with several other controversial treaties that could also impact businesses, such as the UN Convention on the Rights of Persons with Disabilities, and the UN Convention on the Law of the Sea.  An entire “watch” website is devoted to following the activities of the UN Development Program, and recent proposals to fund very ambitious Millennium Development Goals to end poverty in developing nations.  There are many more IOs I could mention, but you get the idea.

In an ideal world, there would be limitless contributions for more, well-intention-ed initiatives from helpful IO staff. Recent comparative studies, such as by Easterly and Williamson, and the UK Government, however, indicate that some changes to increase transparency, and reduce waste are needed.  Competing aid and budgetary priorities must always be considered.   In a real world, difficult choices must eventually be made.

Global NGO Overreach Inhibits Reforms

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

As the leaders of the world assemble in New York for the United Nations (UN) General Assembly, it is perhaps appropriate to highlight how the UN is now proposing to address global legal challenges beyond the well publicized civil war in Syria, the Israeli/Palestine conflicts, and the proliferation of weapons.  As noted here last year, the UN Assembly adopted another (arguably vague and largely unenforced) Declaration on the Rule of Law.  What was the practical result?   Only time will tell, but this year, many UN Staffers, Heads of State and their many rich and famous guests, are shaming their US hosts for drone strikes, NSA spying, and being one of the few Member States that has not ratified the Convention on the Rights of Child (among many other things), while at the same time pressing for US and other key donors‘ taxpayers to hand over even more tax contributions to expand the Millennium Development Goals, provide for “Universal Healthcare,” and “end poverty.”  While many of the UN’s goals this year are clearly laudable, its fragmented methods are not without criticism, and the means proposed are again vague, expedient, legally dubious, and could actually be counterproductive.

Again this year, many of those that constantly hound the UN and its stakeholders to solve the world’s many problems are unhappy with the pace of progress, and particularly in protecting international human rights.”  But what are those rights exactly, and how are they to be enforced? These critical legal questions have been debated by Committees and academics for decades.  Those debates have recently intensified and divided much of Europe, India, and other regions, and should be addressed in a more coherent manner.

First some background on “human rights.”  The 1683, English Bill of Rights and the Scottish Claim of Right, led to the American “Bill of Rights, ” in 1789, when the “Law of Nations” comprised only pages of a few treatises.  Then, like the UN itself, the Universal Declaration of Human Rights came into existence shortly after the Second World War. Since then, the UN has issued more than 50 human rights instruments which together provide a complex ‘spaghetti bowl’ of  international human rights standards. Unfortunately, those instruments are so vague and numerous that only self-professed “human rights experts” appear to know most of what that they contain.

Moreover, in recent years, the UN’s human rights agenda has been rapidly expanding.  For example, the vague concept of “human security” has been expanded to encompass the essentially unenforceable, (and very controversial,) “freedom from fear” and “freedom from want.”  As a result, many of these “instruments” have been signed or ratified by many countries with broad reservations or conditions, or are not really enforced.

So how are these “human rights” to be enforced?  Right now,  influential private groups, called Non-Governmental Organizations, (NGOs), such as Human Rights Watch, and the American Civil Liberties Union (ACLU), do critical reports that are sent to UN Staff.   For example, in response to recent NGO criticisms of the US,  the UN Human Rights Committee met in Geneva in March 2013 and released a official “List of Issues.”   Among those, for example, was NSA spying as a violation of the “right to privacy” (at 22, although there is no known controlling international legal authority anywhere on that topic).   This type of hounding has engendered hostility in many responsible political capitals around the world, impeding international cooperation and structural UN reform.

Unfortunately, it would appear that UN dynamics are now largely dominated by NGOs and their zealous pursuance of “international human rights law.”   In fact, there are thousands of liberal NGO’s continuously lobbying to expand rights, and the UN is constantly monitoring and reporting on U.S. and other nations’ domestic laws, and consulting with the many NGOs seeking to alter many policies.  It has gotten so bad that several nations complained about a lack of transparency in treaty body working methods, specifically regarding the influence of the UN human rights bureaucracy and NGOs.

This phenomenon is not only affecting the UN.  According to one study:

Nearly 3,000 NGOs have accredited consultative status with the United Nations Economic and Social Council, compared to some 700 in 1992, and 40 in 1948.
The direct involvement of civil society organizations in World Bank projects has risen steadily over the past decade from 21 percent of the total number of projects in fiscal year 1990, to some 72 percent in fiscal year 2003.
The Organisation for Economic Cooperation and Development (OECD) estimates that by the late 1990s, some US$11-12 billion in contributions were being made annually by civil society organizations from their own resources to support international development projects…Over 40% of funds from the United States Agency for International Development (USAID) is now channeled through NGOs rather than going directly to governments. One private foundation, the Bill & Melinda Gates Foundation, is spending over $1 billion a year on global health, much the same as the World Health Organization’s entire annual budget….

 

Many of these thousands of NGOs simultaneously lobby the U.N. and domestic Government agencies for expansions of, and enforcement of international rights laws, creating asymmetric (and arguably undemocratic) political tensions that hamper UN progress in other, more concrete areas.  For example, Russia has openly challenged human rights NGOs, but recently supported international UN treaty law.   Will Russia now support specific UN Security Council actions to enforce UN Chemical Weapons Convention(s) and protect innocents in Syria?  Again, only time will tell, but a more structured control over NGO transparency and lobbying, and a more coherent approach to needed international human rights standards and enforcement are both needed.

 

 

 

International Transparency Standards and Processes Need Convergence

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

Given the many difficulties described earlier in this blog, I thought I should mention a current discussion among international law professors revolving around what could be called the “shame theory.”  That is, in the absence of a utopianist, benevolent, “global government” (which, given recent events at the UN, appears to be very far off), it is sometimes possible to nonetheless slowly coax gradual compliance and convergence by leaders of sovereign countries to international laws and/or ‘international legal norms.’  While such norms are not always clear (especially if they are vague, legally unenforceable and in Latin),  the “Law of Nations” is still referred to explicitly in the U.S. Constitution, so it must exist somewhere.  (Interestingly, according to Wikipedia, President George Washington had a number of overdue library books dating back over 221 years. One of them was The Law of Nations.)

Might indirect persuasion work?  Some international treaties and other agreements, over time, while lacking legal enforcement mechanisms, do indirectly act to ultimately “shame” non-complicit country leaders into complying and converging with some needed treaties and standards. Of course to know what should be shamed, one needs to both: 1) Establish a viable international standard; and then, 2) Obtain credible evidence about the actual conduct of the infringing party.  Since officials naturally loathe to divulge embarrassing or compromising information of any kind (as it makes their bosses very unhappy), some systematic public transparency for protection is essential  The problem is, too much transparency and risk will drive illicit activities underground, and become counterproductive.   A careful balance is thus essential.

As to the norms themselves, the sheer rapid proliferation of international laws can itself be a problem.  A recent report from US Government auditors politely suggests that many American government agencies are struggling to keep up with international laws and standards. Although many Government officials have now seen the efficiency of work-sharing with their international counterparts with equivalent missions, they often face resistance to such efforts.  Some help from, and accountability to, “stakeholders” is critical.  Those helpers should include engaged citizens (such as consumer groups), regulated businesses, concerned professional groups, and other domestic and ‘peer’ -foreign government agencies.

One particularly potent supporting group is the Non-Governmental Organization (NGO). There are now thousands of active NGOs purporting to represent a “civil society.”   These groups are now continuously pressing many Governments, and multinational corporations, to recognize, and adopt, international treaties and “norms,” even if they have not been legally ratified according to domestic laws.  See, e.g., Transparency International, and the Open Society Institute.  While their work has been enormously helpful, it sometimes appears that some NGOs are both, advocating for imprecise standards, and disproportionately criticizing those governments and companies that are already, albeit imperfectly, the most open.

Multinational businesses (and their investors and employees), can also help drive convergence in international transparency standards.  In fact, business support is crucial. Although they, too, wish to avoid negative press from NGOs, transnational business enterprises are keen to seek international convergence–particularly in the area of technical standards, because it reduces their costs of business, and makes them more globally competitive.

So what global transparency standards are most essential?   First, one must have some, enforceable, legal mechanism for NGOs, businesses, citizens and the press to viably demand information, commonly referred to as Freedom of Information Laws (FOI). Although the US has openly struggled with vagaries in its FOI Act, there is bi-partisan support for reform, and according to several recent comparative studies (see also here and here), the US is actually one of the model global citizens.   Astoundingly, those comparative studies reveal that most countries still have no functioning FOI Act, or still do not have judicial mechanisms to reliably enforce it.

What else is needed?  A means of revealing when government officials evade their legal duties under FOI and other transparency mandates, such as mandatory, Administrative Procedures, and open meeting laws.   There also must be incentives and resources for independent, and sometimes confidential, judicial review.   Stakeholders can help here too, but only so far.

For consistent enforcement, however, internal ‘whisleblowers’ are most essential.  Several new laws in the US and UK have greatly increased the number and influence of whistleblowers.  Financial incentives are provided by the Federal False Claims Act, which was originally signed by President Abraham Lincoln in 1863, and includes an ancient legal device called a “qui tam” provision (from a Latin phrase meaning “he who brings a case on behalf of the King, as well as for himself”). International enforcement has been expanded by the Foreign Corrupt Practices Act, and new American securities reporting laws.  Some new, lesser known legislative and regulatory proposals and enactments are expanding the whistleblower as a critical transparency tool.

In this global age, whistleblower laws must be clarified and expanded internationally.  Even in the U.S., effective whistleblower incentives and protections are scattered, relatively new, and not universally understood or appreciated. (Even President Barack Obama was not certain if they would have applied to Mr. Snowden.)  Given the enormous risks, all whistleblowers must be adequately incentivized, and protected by clearly established investigatory processes. Adequate financial incentives are critical, or, alternatively, complete anonymity must be respected.   Particularly in areas of high unemployment, the risk of whistleblowing can usually mean a permanent end to a lucrative career (if not worse).  Only complete anonymity, or significant monetary incentives, can adequately counterbalance such threats.  Most US departments now have whistleblower protection policies, but insufficiently established mechanisms and resources to actually counteract the common risk of often hidden, or disguised retaliation.

On the other hand, inducements for internal discovery and correction must also exist, or the enterprise will have little or no incentive to change.  The process must thus protect the target as well. Far too often, the absence of due process for both, the whistleblower and the accused, can result in years of delay, disruption and wasted resources, and fail to achieve the real purpose of change and correction society needs. Uncontrolled transparency and false whistleblowing can be extremely disruptive and damaging to innocent Stakeholders (like unrelated employees and investors), and thus counterproductive.  Disclosures of proprietary, trade secret, private or confidential information can be catastrophic to business interests.  False reports from competitors need some filter as well.    It is thus necessary to also ensure that whistleblowers fulfill prerequisite processes to allow Management and legal systems to work, verify the complaints, and give the enterprise the opportunity (and thus the corollary incentive) to come clean, improve and self-correct.  A mandatory, confidential internal review can help, but then a swift, external appeals process ensuring timely independent review is also necessary. 

In this era of globalization, errant behavior from Governments can actually become quite embarrassing. A recent example of this can be found in the Snowden affair.   As seen recently, his “whistleblowing,” while highly controversial and risky, may actually shame the US into greater transparency.  This is a positive step.  So lets give mandatory internal processes a chance, but also authorize rapid, judicial review to make sure that they work.

International Privacy, Confidentiality and Transparency Laws Need Fixing

By Thomas W. Welch, J.D., American International Regulatory Coherence Institute

Recent public revelations of “eavesdropping” by the U.S. national security agencies by Wikileaks and Edward Snowden, and the subsequent extradition fiascoes, have hopefully exposed some longstanding, critical flaws in current international law. The globalization of commerce now requires coordination among many government agencies to combat significant transnational threats, such as terrorism, but also many other, more mundane problems, such as organized and internet crime, illicit drug controlpandemic disease control, and tax avoidance and evasion. This important work requires both, sharing ‘sensitive’ information, and tendering criminal fugitives for trials.  Domestic and international laws, however, have not kept pace.  Because balancing confidentiality and transparency concerns is difficult, many government officials have been operating in the dark.  Some countries refuse to actively or fully participate.  New, global rules are desperately needed.

In fact, some of the greatest enforcement issues challenging governments today involve maintaining effective and sustainable coordination with foreign counterparts and international agencies. Legitimate public concerns about individual privacy and government transparency do not often consider these critical international enforcement needs.  Many critics don’t know or acknowledge that international work often REQUIRES exchanges of ‘sensitive,’ ‘investigative,’ or other ‘non-public’ information.   Because even most domestic laws have been inadequate, much of investigatory work has been performed out of view, with little public accountability.

For examples, every nations’ police and other law enforcement agencies must increasingly work together now, either bi-laterally, pluri-laterally, or through international bodies such as INTERPOL, NATO, or WHO.  Joint work-sharing by several government agencies, particularly in smaller countries with more limited resources, is also far more efficient.  Unfortunately, in part, because of the fragmentation of the U.N. (previously mentioned on this blog), there are no clear rules for that road.  Public disclosures of regulatory investigations, whether founded or not, can destroy companies’ stock values in mere hours. Moreover, participation is essentially voluntary, and there are no effective means of monitoring either compliance or candor from other,’sovereign’ governments.  Economic conflicts of interest are sometimes hidden.  In some cases, fugitives from justice have political/economic connections that provide protection, undermining credibility and compliance.  Moreover, diplomatic immunities and sensitivities, ambiguous or non-existent national freedom of information laws, cyber- and other economic espionage, and opportunistic leaks to the media have often had a significant chilling effect on many types of international information sharing.   This has, in turn, impeded badly needed cross-border coordination and enforcement.

Antiquated, ambiguous and conflicting (i.e., ”incoherent”) domestic and international laws protecting certain ‘sensitive’ information, such as ‘national security’ information, pre-decisional (also known as ‘deliberative’) information, and private financial, medical and/or confidential commercial (‘trade secret’) data, have also made it very difficult for well intention-ed government officials to reliably and consistently work together.  In short, they are legitimately afraid to share sensitive information about their citizens and companies, particularly when their domestic laws about sharing such information abroad are unclear.  Even when they have clear domestic legal authority to do so, they have no enforceable, legal assurance that their international counterparts will be able to keep the shared information confidential, or for how long.  Moreover, in many cases, they may also find that they receive little or no helpful reciprocity in return.

What is to be done?  First, one must publicly recognize that the problem exists, in order to garner necessary political and other support needed to affect change.  An initial, key step towards furthering that goal would be identifying and resolving gaps and inconsistencies in domestic laws, so that officials have clear ‘rules of the road’ to cooperate and share sensitive information with their counterparts, without unnecessary fears of retaliation or reprisal from regulated interests. New mechanisms for assessment, classification and independent review, with some public accountability, must be created. Like in so many areas of law today, an enforceable treaty with multilateral, ‘peer’ monitoring and enforcement (together with judicial review), is the only final legal solution.   Once the duties are clearer, incidences of evasion, obstruction, obfuscation or outright hypocrisy may become more transparent to concerned stakeholders, and reveal the need for fairer due process, and international assistance and supervision to ensure uniform and efficient enforcement.

More Consistent Enforcement and Greater Resources Are Needed

By Thomas W. Welch, J.D., Admitted in New York, D.C., and Texas

Despite decades and many billions of dollars spent on many U.N. and other Agencies, chronic poverty, disease, political violence and corruption persists in many countries around the world.  While another World War has possibly been averted due, in part, to greater global economic integration and trade,  many countries are now also struggling to adapt to the rapid pace of globalization.  In many cases, outdated and confused legal structures at the Local, State, National and International levels have not yet kept pace.

Many opportunists are now exploiting regulatory vacuums that currently exist in international trade.   Dangerously substandard and counterfeit products are appearing in many poorer countries, particularly in Africa and Asia.   Some Governments are exploiting loopholes in trade agreements for competitive advantage. Some experts argue that wealthy business people are evading taxation, constraining many governmental budgets for consistent legal enforcement.  The control of many diseases, such as finally eradicating the tragic global scourge of polio, or controlling deadly Tuberculosis, require global enforcement resources that do not yet exist.

Obviously, it is necessary to hire and train adequately compensated officials to do this work.  Moreover, as raised previously here,  a fundamental precept of ‘good governance’ is that legal norms are clearly defined, so that they can be transparent, easily followed and consistently enforced.  Maximum legal clarity also incentivizes broad compliance and minimizes abusive, selective, opportunistic prosecution and corruption, which also undermines human rights.

Near-universal enforcement is particularly key, but vesting exclusive authority in government officials is sometimes counterproductive.  Too much authority and discretion in any one sector, particularly if they are under-resourced, breeds secrecy, suspicion, invites evasion, and increases incentives for corruption.  The private sectors must be also be engaged and informed to achieve broader compliance.

Although some domestic regulators and UN Agencies have begun to address some international business corruption, they also have been hampered by inadequate resources, accused of selective prioritization, and inconsistent prosecution.  Just last year, for example, Smith & Nephew, Inc. reached large settlements with the U.S. Securities and Exchange Commission (SEC) and U.S. Department of Justice (DOJ) in connection with a U.S., Foreign Corrupt Practices Act (FCPA) investigation of improper payments to government-employed doctors.  At the same time, however,  U.S. domestic corruption is the medical sector is still overwhelming available enforcement resources.

Selective enforcement also sometimes occurs for diplomatic convenience. More recently, the Southern District of New York also imposed the second highest penalty ever under the FCPA, after the U.S. Securities and Exchange Commission (SEC) alleged that several high-end Siemens company executives paid 100 million dollars to several Argentine officials from 1996 until 2007 in order to secure a 1 billion dollar government contract.   Moreover, Ralph Lauren Corp., the internationally renowned clothing retailer, became the first company to enter a FCPA non-prosecution agreement with the SEC on April 22, 2013, after the SEC alleged that an executive RLC’s subsidiary located in Argentina paid customs officials over $500,000 to prevent inspection of goods.

Some international and national regulators have also sought to stem an international tide of potentially dangerous, substandard counterfeit medical products across borders,  but enforcement efforts have been resisted by an odd coalition of vested economic interests (some in organized crime) and international patient advocacy groups.   In the aggregate, however, coordinated extraterritorial regulatory enforcement efforts have actually been relatively rare, primarily because many governments lack the necessary legal and other resources.

Turf battles between competing states and vested interests are partially to blame, but legal confusion from ambiguous and outdated laws and systems tools are also at fault.   Even in the U.S., for example, which may have one of the most expensive legal systems in the world, there are still inadequate resources and lingering confusion about the domestic enforcement of international treaties.   See, e.g., the curious case of Carol Anne Bond.   Perhaps it is time to eliminate jurisdictional confusion,  and enable more effective private enforcement remedies?

UN-accountable?

By Thomas W. Welch, J.D., Admitted in New York, D.C., and Texas

Those many experts who have worked on United Nations (UN) led humanitarian relief efforts know how incredibly important UN disaster relief and peacekeeping are to help alleviate the suffering of innocents, develop sustainable health systems, and also advance the rule of law.  See, e.g., C.R. Kumar, (2012).  Many thousands of volunteers from United Nations (U.N.) member states, and many dedicated, full-time U.N. Staff led by the UN’s Office For the Coordination of Humanitarian Affairs (OCHA), have saved or helped desperate millions in literally hundreds of catastrophic events.  For the most part, their efforts have been truly valuable and outstanding, and deserve continued support.

Of course, no human endeavor is ever perfect.  Many have been greatly disappointed when some U.N. efforts have fallen far short of the U.N.’s ideals, such as in Rwanda, or Serbia, where the UN has thereafter promised reforms.  That is what is most disturbing about recent reports about relief efforts in Haiti, where it is highly probable (but yet unproven) that U.N. peacekeepers from Nepal or Africa inadvertently introduced cholera to the island, and thereby killed as many as 5,000 innocents. (See e.g.,the Atlantic, the Economist, and the Guardian.)

While the “behind-the-scenes” legal machinations are always somewhat more complicated than reported (see ), it appears that the UN, quite hypocritically, may actually compound its errors by trying to deny judicial ‘due process’ for legal claims for compensation from the victims of the Haiti cholera epidemic on the (arguably legal) basis that the claims are “non-receivable” under the 1946 Convention on the Privileges and Immunities of the United Nations.    This is while the UN, itself, is trying to promote ‘judicial mechanisms’ all over the world to protect human rights!

Legal scholars worldwide know that a fundamental prerequisite of good governance and the Rule of Law are basic judicial mechanisms that provide some ‘due process’ for government accountability to the governed.  While not the worst of the U.S. failures of the era (see, e.g. Mr. Cohen), permitting the UN to assert the doctrine of ‘sovereign immunity‘ was truly a horrible idea in the first place.  The UN doesn’t even have a ‘sovereign,’ and needs as much legal accountability as everyone else!

The UN lawyers advising the Secretary General should know full well that their outdated doctrine has been properly “qualified” to allow claims for compensation (and help incentivize bureaucratic competency)  in most developed countries of the world long ago. It is high time that something be done to correct THIS DISASTER, and reform the UN to provide more transparency and accountability, so that it can fulfill its core functions more effectively.   Can someone in OCHA please helicopter in some aid to the Secretary General’s office?