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  In many cases, outdated and confused legal structures at the Local, State, National and International levels have not yet kept pace.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?

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 Kate Cronin-Furman), 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?

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

A brewing international business dispute between the United States and the (relatively tiny) Island nation of Antigua typifies the morass that international business law (still based largely on medieval concepts of sovereignty established by the Peace of Westphalia in 1648) now finds itself.  In light of how important trade is to development and global economic and cultural integration, and the many other international problems trade tensions can foment, the persistence of these rising trade conflicts should give everyone pause.

First, a little historical background on the important area of international trade.  After essentially creating the U.N. in 1945, the victorious U.S. and its ‘allies’ became unhappy with it, and split key, international economic powers into various separate, specialized international bodies.   First, the General Agreement on Tariffs and Trade (GATT) was established with other new multilateral institutions dedicated to international economic cooperation — notably the Bretton Woods institutions known as the World Bank and the International Monetary Fund. A comparable international institution for trade, named the International Trade Organization (ITO) was originally to be a United Nations specialized agency and would address not only trade barriers but other issues indirectly related to trade, including employment, investment, restrictive business practices, and commodity agreements, but the ITO treaty was not approved by the U.S., and never went into effect.   Instead, the GATT spawned several other separate multilateral organizations, including the World Trade Organization (WTO), the World Customs Organization (WCO),  and the Organization For Economic Cooperation and Development.   Meanwhile and separately, the U.N. developed parallel regulatory bodies like the World Intellectual Property Organization (WIPO), the International Labor Organization (ILO), the U.N. Environment Program (UNEP), and many other U.N. bodies regulating international trade in specific products, such as food standards at the Food and Agriculture Organization, medical services and products regulated by the U.N. World Health Organization (WHO), and trade in telecommunications by the U.N. International Telecommunication Union (mentioned in my December post, below).  Each of these many institutions set up their own separate headquarters, Staffs and spheres of stakeholder influence, leading to fragmentation and incoherence at the international level in the trade realm.

In essence, instead of reforming and empowering the U.N. agencies, the U.S. sought to indirectly coerce the rest of the world to adopt general trade rules by allocating enforcement to WTO’s 158 sovereign country governments, no matter their size or capabilities.  After a few, basic agreements, this strategy had only achieved such limited success that many member-countries also entered into countless, parallel bi-lateral and plurilateral side agreements as well.  For the last 10 years, many millions of dollars have been spent by connected politicals (a.k.a. “Ambassadors”), and their supporting technical staffs and business lobbyists, flying to hundreds of meetings at taxpayer expense to posh hotels all over the world trying to resolve loopholes in the WTO agreements, reach new agreements (such as the Trans-Pacific Partnership (TPP) and the Anti-Counterfeiting Trade Agreement (ACTA)), and smooth over lingering trade disputes (a.k.a. “the WTO ‘Doha Round’ Negotiations“).  Regrettably, more advanced negotiations collapsed, in part, because there is no procedural mechanism for overcoming wealthy, vested interests in any single WTO member government (whose family or leadership business profits from the status quo).

Two years ago, after acknowledging that American jobs were being outsourced by the millions to foreign competitors, in part, because many WTO members were either outright ignoring, or exploiting loopholes and ambiguities in the WTO agreements ( and “…many [American] companies find themselves at a considerable disadvantage when competing with foreign companies who benefit unfairly from government subsidies and other questionable trade practices…” (see 2011 Annual Report at p. ii)), the Obama Administration changed course, and began to take more concrete legal action.   In February of last year, President Obama created the Interagency Trade Enforcement Center (ITEC) to actually monitor whether current trade agreements were being enforced  (see, e.g., Subsidies Enforcement, 2012 Annual Report).   This has led to several more specific complaints, even though many companies attempting to operate abroad are justifiably fearful of whistle-blowing on their competition (many of whom are partially State owned enterprises) and inciting further disguised retaliation by foreign governments via other, more discrete channels.

This breakdown has not only led to myriad disputes flying at the WTO, but also opened a pandora’s box of heated disagreements on ‘non-tariff barriers’ in other realms, such as the lesser known disputes at the WIPO, ILO and many other U.N. bodies regulating international trade in specific products, such as medical products regulated by the WHO, and the internet by the U.N. International Telecommunication Union.  (Those tangentially related disputes are too numerous and complex to address here.)  As a result, many governments have initiated literally thousands of specific trade complaints against the U.S., and more subtle, indirect counter-strikes on behalf of their industries (and workers) in the last two years. (See, e.g., “WTO Sees More Trade Disputes,” and Scott Lincicome’s Blog.)   Unfortunately, because of their number and complexity, these growing trade tensions have received little broader media attention.

Which brings me again to the (80,000+) people of little Antigua, who won a WTO dispute in 2005 against the (315,000,000+) people of the U.S. on internet gambling, and have been authorized by the WTO to ‘cross-retaliate’ against the U.S. and violate WIPO treaties by (arguably legally) copying unrelated U.S. music, movies and software for its failure to comply with that decision.  See, e.g., Scott’s Recent Post.   As others have noted, the U.S. actually demanded this indirect retaliatory right, and is reportedly the worst offender of all.  Indeed, as Dan Ikenson notes, the United States quite frequently ignores adverse WTO rulings, especially when sacred American cows like trade remedies are involved.   It has also sought a transparent, free and open internet that now exposes its once hidden, hypocrisies.

Antigua’s decision to pick on intellectual property (IP) is an especially low blow, as a large portion of the U.S. economy depends on innovation and private investment, and many countries are resisting expending scarce resources enforcing U.S. business interests.   If their tactic is sustained, many other smaller countries will undoubtedly follow Antigua’s lead, potentially creating legal chaos for many would-be American exporter/employers.  Perhaps it is time to end the politics of medieval sovereignty, global division and trade gaming?  Only a dispute system with real teeth (against everyone) will gain global respect and compliance.

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

The horrific, Dunblane -like tragedy that recently occurred in a U.S. elementary school called Sandy Hook could actually end up helping the battle against regulatory incoherence.  A longstanding debate here about gun control regulations and U.S. Constitutional protections, originally intended to ensure a “well regulated Militia,” has re-opened a public debate about the incoherent Maze of Gun Laws that impede effective regulation of that particularly dangerous product.  As is typical, recent media and other reports here have failed to mention foreign regulations and enforcement deficits.  While a rationalization of U.S. domestic laws is sorely needed, the 516 page, recent annual analysis by the U.S. Government, available at 31st A.T.F. Report, actually fails to fulfill the intent of the President’s recent Executive Order requiring that U.S. Agencies also survey and begin to address differences in foreign laws. This error is particularly glaring, given other A.T.F. reports documenting the number of imported guns to the U.S. each year. (See Exhibit 3. Firearms Imports (1986 – 2011)) .  Given the massive illegal trafficking of guns into the U.S. each year (see, e.g., the 2010 Mayor’s Report)  in my view, the A.T.F. could, and should, expand its domestic survey to include major importing countries, as well as the neighboring regulatory regimes in Canada and Mexico.    Like in so many other product areas, only a comprehensive approach to regulation, at the Local, State, National and International levels, can ensure transparency, efficiency and consistent enforcement.  Importantly, in our globalized economy, reform must also enlist the real support of all key economic stakeholders (both foreign and domestic) to sustainably ensure enforcement, and control corruption and abuse.

Let’s hope that the U.S. Regulatory Working Group follows the President’s 2012 Executive Order and also takes on the international divergences in gun regulations.  When they also assess the international maze, they will realize that reform and regulation at the U.N. level are also required.  Perhaps the parents of so many children lost to gun violence, like those in Dunblane and Sandy Hook, will finally make sure that they do.

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

Two more recent American developments reflect both, the movement and challenges in modern international law.  Two weeks ago, another broadly adopted treaty submitted to the U.S. Senate for ratification went down in flames, and no pundits here appeared to really want to explain why.   Even experts like John Bellinger (see his op-ed in New York Times, “Obama’s Weakness on Treaties” ) are blaming the recent rejection of the United Nations Convention on the Rights of Persons with Disabilities  on mere process, instead of substance.  Yet, if he had actually watched the Senate debates (available on CSPAN) , he would have seen reliance on well-established (and legitimate), unresolved questions of parental rights, subsidiarity and the recurrent lack of objectivity and equal protection in current U.N. governance.  Bizarrely, once again, proponents like Senator Kerry (who may be our next Secretary of State) were reduced to arguing that adoption only concerned “a seat at the table,” and that defects in the treaty should be ignored because it would actually be unenforceable!

In direct contrast to these recent political debates here, are the more substantive and encouraging debates about the failed talks at the World Conference on International Telecommunications in Dubai last week (see “UN Internet treaty approved against U.S. opposition”).  For the first time, many in the American media actually understood the (very real) concerns, and covered the debates about potential future U.N. control over internet governance (see e.g.,” U.N. summit’s meltdown ignites new Internet Cold War”).   Some in the Administration actually appeared on television here to express their concerns about the objectivity of U.N. control.   This is amazing, commendable progress!  

A great deal of the legitimate skepticism of international law (and its international institutions) stems from the well documented history of corruption at some U.N. agencies (and the World Bank), and the recent resistance of many to undergo fundamental transparency reforms to help curb it.  See, e.g., John O’Sullivan Forward to Fonte, John, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? (Kindle Location 227).   Although conservative opposition has sometimes been somewhat overstated (and thus largely fallen on deaf ears) (see, e.g., Part 7 of Morris, Dick; McGann, Eileen (2012-05-08), “Screwed!: How Foreign Countries Are Ripping America Off and Plundering Our Economy-and How Our Leaders Help Them Do It” (Kindle Locations 4941-4944)), it should not be totally dismissed or ignored.

It is high time that America wakes up to what the international bodies created by the 1500 treaties it has ratified are actually doing.  We need international governance today, but not at any cost, and not with our heads in the sand.  Our military and businesses already know that the world needs fairer, global rules that can work for everyone’s benefit.  Everyone’s health, security and international economic opportunities are at stake.  We must create a more modern, effective, and just U.N., and we must tackle the thorny, difficult issue of U.N. reform to move forward.  The debate about the internet is a great first step.

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

In addition to promoting economic growth, more efficient cross-border exchanges of data via the internet (i.e., the ‘cloud’) could vastly improve efficiency and public health for everyone.   For example, according to a study by the U.S. Institute of Medicine, medical mistakes in the U.S., alone,  kill an estimated 98,000 patients per year.  See http://www.iom.edu/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf     Additionally, fake tuberculosis and malaria drugs, alone, are estimated to kill another 700,000 people a year.  See, e.g., http://www.policynetwork.net/health/media/fake-drugs-kill-over-700000-people-every-year-new-report  There are no accurate estimates of the number of patients who die from delayed, undeveloped improvements to current medicines, or from wasted medicine supplies, but they also must number in the millions.

All combined, these avoidable losses are like the crash of 6 full jumbo jets every single day.  Yet, unlike the vast safety improvements that resulted from international cooperation in the field of aviation (see http://www.iata.org/about/pages/history_2.aspx),  public urgency has largely been absent from the medical data field.

In a recent example, the Wall Street Journal (10/9, D2, Wang) just reported that scientists at the University of Virginia and at West Virginia University have designed a mathematical computation for computers that crawls through billions of data bytes and pegs incidences of serious adverse drug reactions. The model then organizes the complaints by their level of seriousness, which is based on whether they warrant regulatory action. The data is generated from websites and online news articles to patient communication in online chat rooms and other social media sources.

To its credit, the White House has recently sought the analysis of ‘Big Data’ to better identify best hospital practices, identify dangerous drugs and interactions, enhance the detection of pandemic disease and bioterrorist threats, and enable epidemiological research that would lead to better techniques and therapies (See http://www.whitehouse.gov/sites/default/files/microsites/ostp/pcast-health-it-report.pdf ).  However, conflicting and antiquated State and National laws from the last Century, and stakeholder resistance to change have impeded these efforts. See, e.g.,  http://www.stanfordlawreview.org/online/privacy-paradox/big-data

For some reason, myopic domestic agencies are contributing to the delays.  For example, the U.S. Government Accountability Office (GAO) has (again) recently stated the obvious:  ”Technological developments since the Privacy Act became law in 1974 have changed the way information is organized and shared among organizations and individuals. Such advances have rendered some of the provisions of the Privacy Act and the E-Government Act of 2002 inadequate to fully protect all personally identifiable information collected, used, and maintained by the federal government….”  See http://www.gao.gov/assets/600/593146.pdf .  The privacy protections incorporated in the U.S. Privacy Act are based primarily on the Organization For Economic Cooperation and Development (OECD) Fair Information Practices, and underlie some of the major provisions of the privacy laws and related policies in many other countries, including Germany, Sweden, Australia, and New Zealand, as well as the European Union.  Unfortunately, the GAO’s report  left needed international harmonization of standards’ improvement unaddressed.

More recently in Europe, although it has also previously impeded data exchanges in the interests of individual privacy, even the European Commission now acknowledges that “…in the absence of common [cross-border] standards and clear contracts, many potential users are deterred from adopting cloud solutions. They are not sure what standards and certificates they should look for to meet their requirements and legal obligations, for example to ensure that their own or their customers’ data is safe or that applications are interoperable. Cloud providers and users are also looking for clearer rules when it comes to the delivery of cloud services, for example regarding the question where legal disputes will be resolved or how to make sure that it will be easy to move data and software between different cloud providers.”  See http://www.ehealthnews.eu/development/3228-new-strategy-to-drive-european-business-and-government-productivity-via-cloud-computing

Given the vast improvements in aviation safety achieved through convergence in international standards via treaties, and convergence on information sharing via international standards and laws, a similar approach on convergence on the sharing of foreign medical product data would be the obvious solution.  Will our representatives and Agencies be able to wake up and solve these legal issues quickly, or must thousands of others needlessly die?

By Thomas W. Welch, J.D., Admitted in the District of Columbia, New York and Texas

Recent violent events in the Middle East again raise a critical deficiency that has often held back the sustainable development of both responsible government regulation and international law and human rights– the consideration of correlative costs.  The many proponents of the relatively new, “Responsibility To Protect”  (“R2P”) (see, e.g., http://www.asil.org/insights100310.cfm ) have not yet been able to sustainability assemble the resources (medical, military or political) necessary to fully effectuate those new mandates.   In fact, the U.N. is facing serious deficits in most of its programs, undermining its enforcement capabilities, credibility, and ultimately undermining the force and recognition of the international rule of law.   Like those who would seek to protect the many underprivileged and disenfranchised in the Middle East, those seeking to build prerequisite health systems and the legal structures necessary to treat the many infected with HIV/AIDS have not yet assembled the resources necessary to fulfill many of the legal duties asserted at the international level.  See, e.g., http://www.un.org/News/Press/docs/2012/ga11254.doc.htm

Sustainable legal rights and initiatives require more than mere consensus.  They require implicit, correlative obligations to provide adequate resources for both, implementation and enforcement.  Without resources, legal obligations  become ‘merely aspirational,’ and undermine the rule of law more generally.  The lack of consistent enforcement, in particular, has also often eroded support for badly needed international regulation.  See, e.g., http://econpapers.repec.org/paper/erpeuirsc/p0293.htm

Perhaps new modeling capabilities could help address this fundamental problem?   Recent computational advances could provide advance, and continuous, real-time re-estimations of budgetary capabilities for implementation and enforcement, and help prioritize necessary resources.  They could also help ensure that sustainability is built into global legal systems, in advance, and concurrently provide the transparency necessary to garner political will and support for such duties.

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

Once a dirty little secret around Foggy Bottom, the extensive lack of cooperation by U.S. allies with U.N. economic sanctions enforcement has now been laid bare by the internet.  The latest example appears to be the refusal by a Singaporean court to extradite two alleged violators to the U.S. for trial.  See http://www.todayonline.com/Singapore/EDC120808-0000058/Two-win-appeal-against-extradition-to-the-US

Diplomatic dissension by another ally is undoubtedly behind the recent furor over New York’s attempted enforcement actions against a London bank.  See http://www.dfs.ny.gov/banking/ea120806.pdf   In the past, the hapless U.N. has been both, unwilling and unable to resolve the problems. Most recently, a U.N. panel of experts that monitors compliance with the sanctions against Tehran recently submitted a report to the U.N. Security Council’s Iran sanctions committee that concluded Iran was constantly searching for ways to skirt restrictions on its banking sector.  http://www.reuters.com/article/2012/08/21/us-iran-sanctions-armenia-idUSBRE87K05420120821  Numerous European banks and companies have been accused of violating various U.S. and U.N. sanctions regimes for years, with few, if any, sustained instances of enough enforcement to actually correct the behavior.

Most importantly, selective and inconsistent prosecution by local authorities of any regulation invites corruption and abuse.  Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates the Rule of Law, allowing those in authority to apply justice only when they choose. Aside from this being inherently unjust, this almost inevitably leads to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from whom they desire personal or political favors.  Let’s hope that the upcoming U.N. Conference on the Rule of Law next month tries to address this unfortunate situation, before Israel resorts again to war.

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

Scott Lincicome (whose excellent personal blog is at lincicome.blogspot.com/ ) has properly raised his frustration with the current lack of meaningful debate in the U.S. Presidential race on important international trade law issues.  See http://lincicome.blogspot.com/2012/08/why-free-traders-and-policy-fans-of-all.html  Too many U.S. politicians have been two-faced about international law before their terms, because very few have been able to articulate the importance of international law development to the American voter, and they must protect themselves from frequent, exploitative criticism from the other side.  After their terms, the complexities of their international law policies have also been unfairly exploited for political gain.  See, e.g., Curtis A. Bradley, The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy, 4 Duke Journal of Constitutional Law & Public Policy 57-75 (2009).  Available at: http://scholarship.law.duke.edu/faculty_scholarship/2163/  As a result, U.S. elections have been nearly totally preoccupied by domestic issues of primary concern to “one issue voters,”  NOT international law.

Is there some hope for change?  Globalization and information technologies are forcing law and policy ever higher in the legal hierarchy.  Even American labor groups are realizing that all politics is no longer local, but is increasingly shared with the State, National and International levels.  Will other American voters, like their representatives, come to recognize the international inter-dependencies and the exploitation from legal fragmentation that now exist?

By Thomas W. Welch, J.D., Admitted in N.Y., D.C., and Texas

The London Olympics are a reminder of several important benefits of, and challenges to, international law.  The most obvious lesson is how well planned, coordinated competitions between peoples of sovereign governments can overcome cultural and other differences and inspire everyone collectively to convergence, harmony, and ever higher levels of efficiency and achievement.   Perhaps less obvious is how the Olympics, like many U.N. entities, has been overshadowed by other, competing global organizations in many important sports, like basketball, tennis and  football (soccer).   Who is the best tennis player in the world now?  Who is the best female soccer player?  Aren’t global competitions organized to resolve those questions?

This competition to the Olympic movement is not unlike the confusion that has been created by several standards organizations competing with U.N. entities in the field of international law, such as the World Customs Organization or World Trade Organization.  Boycotts and political terrorism have exposed weaknesses in both systems as well.  The fractionalization of any endeavor, whether it be sport or law, detracts from coherence and global order.   In the age of the internet and global coverage, this disorder is more apparent.

Perhaps most fundamentally, however, the domination of Olympic medals by populous nation states, such as China and the U.S., may continue to undermine the movement more broadly.    It is absurd for tiny nations to compete with immense reservoirs of people of larger nations.    It is also unfair that many of the best athletes in the world cannot compete at all, because of limitations on their respective countries’ team size.   These types of inequities have plagued international law development in the U.N. as well.  Until international political representation approaches “one person, one vote,” international bodies and legal systems will always be exploited by suspicion, opposition and indifference.  New U.N. political structures are badly needed to advance the international law movement towards broader acceptance, coherence, and credibility.