Sovereignty by Subtraction: The Multilateral Agreement on Investment

The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of sovereignty, which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of multilateral sovereignty to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise. Its critics call the MAl a slow motion coup d\u27etat, a bill of rights for investors, a threat to sovereignty, and a corporate rule treaty, because it (1) empowers foreign investors to challenge the law-making authority of nation states and subnational governments, (2) is composed of a fifty-page text of fourteen investor-protection standards that exceed the scope of any existing agreement/ (3) and acts through an international forum with the power to award monetary damages against the offending government. U.S. negotiators counter that the MAl protects foreign investors from discrimination by giving them rights analogous to those they already enjoy under the U.S. Constitution. In addition, U.S. negotiators maintain that an agreement that poses significant limits on U.S. sovereignty is unacceptable. This article suggests a more modest analogy than a virtual coup d\u27etat. It simply seeks to explain that the MAl would have a greater impact on U.S. law making power than acknowledged by MAl supporters, who claim that it merely repeats domestic principles of non-discrimination. For example, the MAl aims to limit U.S. States\u27 traditional powers to discriminate. The first objective of this article is truth in advertising: the MAl would disrupt state and local lawmaking capacity. The capacity of cities, counties, and states to serve as our laboratories of democracy hangs in the balance. States act as successful laboratories for testing future national policy in virtually every sector of governance, including banking regulation, economic development, government purchasing, consumer protection, working conditions, health and medical insurance, and environmental law. The second objective is to bring some order to the MAl sovereignty debate. Previous writers have brought conceptual order to the comparison of state sovereignty and international law under NAFTA and the WTO agreements. This article extends the analysis to the MAl to (1) inform the bottom-up view of the MAl from the perspective of those who would lose power if it is implemented, and (2) shape positive policy options to maintain the constitutional balance between federalism and private investor protection

Preemption & Human Rights: Local Options After \u3ci\u3eCrosby v. NFTC\u3c/i\u3e

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its Burma Law, Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts\u27 Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition. In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on Burma. While the state law applied to purchasing by state agencies, the federal law imposed a limited range of sanctions, including a ban on future private investment, and gave the President discretion regarding the imposition of some of these sanctions. However, the Court declined to rule that the Massachusetts Burma law was unconstitutional under the federal foreign affairs power or the dormant Commerce Clause, as the First Circuit Court of Appeals had in National Foreign Trade Council v. Natsios. The Crosby decision provides no fuel for a constitutional claim, but neither does it blunt the impact of the First Circuit\u27s holding that the state law is unconstitutional. As the First Circuit acknowledged, there are volumes of analysis, pro and con, regarding the constitutional theories that the First Circuit used to invalidate Massachusetts\u27 Burma law in NFTC v. Natsios. Much of this scholarship argues that absent a clear conflict or statement of congressional intent to preempt state or local law, the federal foreign affairs power alone does not render a state or local law unconstitutional. With the extensive published work on each side of the anti-Apartheid boycotts as well as the Burma laws, there is little need to revisit such well-plowed fields. This article seeks to derive some guidance from the Crosby decision for state and local legislatures, as many of these bodies want to play more than the very limited role that the Court, during oral argument, suggested was appropriate

Preparing for Climate Impacts: Lessons from the Front Lines

In a synthesis report to The Kresge Foundation, the Georgetown Climate Center shares lessons learned from its adaptation work in recent years. The report includes short case studies highlighting successful efforts as well as barriers to change

Animal Protection in a World Dominated by the World Trade Organization

Animal issues are playing a crucial role in making the World Trade Organization (WTO), the international body responsible for initiating and enforcing global trade rules, publicly visible. Current WTO rules prohibit the types of enforcement mechanisms relied upon by sovereign nations to make animal protection initiatives effective; as a result, many animal protection measures in this country and abroad have been reversed or stymied in the face of WTO challenges or threatened challenges. The WTO’s adverse impact on animal protection is one of the reasons why the WTO’s new-found public image is increasingly a negative one

The future of North American trade policy: lessons from NAFTA

This repository item contains a single issue of the Pardee Center Task Force Reports, a publication series that began publishing in 2009 by the Boston University Frederick S. Pardee Center for the Study of the Longer-Range Future.This Task Force Report written by an international group of trade policy experts calls for significant reforms to address adverse economic, environmental, labor and societal impacts created by the 1994 North American Free Trade Agreement (NAFTA). The report is intended to contribute to the discussion and decisions stemming from ongoing reviews of proposed reforms to NAFTA as well as to help shape future trade agreements. It offers detailed proposals on topics including services, manufacturing, agriculture, investment, intellectual property, labor, environment, and migration. Fifteen years after NAFTA was enacted, there is widespread agreement that the trade treaty among the United States, Canada and Mexico has fallen short of its stated goals. While proponents credit the agreement with stimulating the flow of goods, services, and investment among the North American countries, critics in all three countries argue that this has not brought improvements in the standards of living of most people. Rather than triggering a convergence across the three nations, NAFTA has accentuated the economic and regulatory asymmetries that had existed among the three countries. [TRUNCATED

From Bait to Plate—How Forced Labor in China Taints America’s Seafood Supply Chain: Hearing Before the Cong.-Exec. Comm’n on China, 118th Cong., Oct. 24, 2023 (Statement of Robert K. Stumberg)

Two-hundred and forty—that’s the number of name-brand stores and institutional suppliers that we all depend on. Through them, we all buy seafood from importers who sell what forced laborers process in Chinese factories and vessels. We do it as families, as schools, as businesses. What is not in that number are the ways we buy forced-labor seafood as governments, mostly through five federal agencies and local school food authorities. The Outlaw Ocean team, led by Ian Urbina, made transparency happen. They aren’t the first to reveal Xinjiang supply chains. But what distinguishes their seafood reporting is that they literally chased outlaw vessels across the seas, surveilled trucks at the port, and monitored internet traffic in multiple languages. James Bond would be impressed. And they didn’t stop with the report. They created power tools for tracing supply chains, purchasing seafood, and fixing policies that unwittingly enable an empire of exploitation. Now we can trace our own families’ supply chains for products we buy every week. The international Coalition to End Forced Labour in the Uyghur Region has added the Outlaw Ocean reporting to its online library to show the complex puzzle of affected industries—aluminum, apparel, automotive, cotton, food, vinyl, polysilicon, solar, and more. I appreciate your invitation to address one piece of this puzzle—the role of governments as wholesale buyers of seafood. I will briefly respond to several procurement questions: Which U.S. government agencies purchase seafood? Is the Buy American Act an antidote to forced-labor goods? Does the prohibition on purchasing forced-labor goods work? What is on the to-do list for fixing related gaps in policy

Preemption \u26 Human Rights: Local Options After \u3ci\u3eCrosby v. NFTC\u3c/i\u3e

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its Burma Law, Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts\u27 Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition. In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on Burma. While the state law applied to purchasing by state agencies, the federal law imposed a limited range of sanctions, including a ban on future private investment, and gave the President discretion regarding the imposition of some of these sanctions. However, the Court declined to rule that the Massachusetts Burma law was unconstitutional under the federal foreign affairs power or the dormant Commerce Clause, as the First Circuit Court of Appeals had in National Foreign Trade Council v. Natsios. The Crosby decision provides no fuel for a constitutional claim, but neither does it blunt the impact of the First Circuit\u27s holding that the state law is unconstitutional. As the First Circuit acknowledged, there are volumes of analysis, pro and con, regarding the constitutional theories that the First Circuit used to invalidate Massachusetts\u27 Burma law in NFTC v. Natsios. Much of this scholarship argues that absent a clear conflict or statement of congressional intent to preempt state or local law, the federal foreign affairs power alone does not render a state or local law unconstitutional. With the extensive published work on each side of the anti-Apartheid boycotts as well as the Burma laws, there is little need to revisit such well-plowed fields. This article seeks to derive some guidance from the Crosby decision for state and local legislatures, as many of these bodies want to play more than the very limited role that the Court, during oral argument, suggested was appropriate