Showing papers in "Berkeley Journal of International Law in 2016"

Between the Kingdom and the Desert Sun: Human Rights,Immigration, and Border Walls

Abstract: A peculiar construction boom is in progress worldwide: border walls are being installed by wealthy countries at an unprecedented rate in order to control unwanted immigration by poor people. This Article asks why, almost a quarter of a century after the Iron Curtain came down, the walls are now going up again. It suggests a provocative answer: these separation barriers are a logical response by States to the way in which human rights law has been enforced in cases bearing on immigration. In other words, and counter-intuitively, the recent boom in border wall construction signals the success of the human rights tradition, rather than its failure to establish an alternative to territorial sovereignty. At the same time, this Article also uses the case study of walls to make a larger point on the intractability of the human rights regime that bears on immigration. Building on a systematic analysis of jurisprudence, I argue that human rights courts and quasi-judicial bodies utilize an arbitrary category— territory—to balance the policy interests of the individual non-national and the State. The result is essentially random from the perspective of both of these stakeholders. Walls make concrete a perverse side effect of this compromise: because the regime conflates access with territory, it disproportionately rewards strong young men who already have sufficient capacity (in age, gender, or resources) to scale the barrier, even if their predicament may not actually call for protection. But it privileges them only after they have risked themselves, and if they survive that risk at all. And so, at least when it comes to immigration, the DOI: http://dx.doi.org/10.15779/Z380P11 * Moria Paz is a fellow at Stanford Law School. She is thankful to Gabriella Blum, William Forbath, Martti Koskenniemi, David Luban, Itamar Mann, Samuel Moyn, Jaya Ramji-Nogales, Daria Roithmayr, Paul K. Saint-Amour, Hila Shamir, Nomi Stolzenberg, Markus Wagner and Ralph Wilde for reading earlier drafts. In particular, she is grateful to Barbara Fried, Mark Kelman, Amalia Kessler, and Peter Kozodoy for conversation as she developed the Article. She also wants to thank Rich Porter and Sergio Stone from SLS library for invaluable help with the research. Published by Berkeley Law Scholarship Repository, 2016 2 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 34:1 human rights regime operates in effect as a natural selection mechanism. This is fundamentally unstable and unjust. There is no larger eternity than a door marked: closed today. Closed forever; no one’s opening it, no one’s coming. There are no clouds in the sky. Accept the verdict; sign. No one’s opening. Go home, dream on.

Cooperating Alone: The Global Reach of U.S. Regulations on Conflict Minerals

Abstract: In 2010, the United States Congress adopted the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act includes an unprecedented provision to curb the mining in the Democratic Republic of the Congo (DRC) of so-called conflict minerals: components found in many consumer electronics that are sometimes the source of human rights abuses in the mines and regions from which they originate. Companies traded on the U.S. Stock Exchange are now required to conduct due diligence assessments of their supply chains and disclose the presence of such conflict minerals. The mining of conflict minerals is a global problem for which international cooperation among States and companies seems the necessary solution. However, the United States acted alone; it unilaterally adopted regulations that focused on only one country—the DRC—and one set of targets—companies publicly traded in the United States. These regulations likely required less time to adopt and implement than traditional State-to-State cooperation. Critics might argue that conflict minerals originate not just from the DRC but also from other politically unstable nations, and companies publicly traded in the United States are not the only ones to integrate these minerals into their products. Yet, this Article argues that Dodd-Frank’s influence likely extends far beyond its stated geographical scope. This Article is the first to ground the U.S. rules on conflict minerals in the literature on unilateral regulatory globalization. That literature posits that, under the right conditions, a country’s unilateral regulations can unleash a “California Effect” that causes companies outside its jurisdiction and other States to voluntarily align with those regulations. By analyzing the conflict minerals regulations through the lens of unilateral regulatory globalization, this Article reveals the Dodd-Frank Act’s potential to reach beyond its stated goals and DOI: http://dx.doi.org/10.15779/Z388565 * J.D., 2015, U.C. Berkeley, School of Law. The author acknowledges with great appreciation Jamie O’Connell and Jerome Hsiang for their comments on earlier drafts, Katerina Linos for introducing me to concepts critical to this piece, and the editors of the Berkeley Journal of International Law for their diligent reviews and edits. Any remaining errors are mine. Published by Berkeley Law Scholarship Repository, 2016 2016] COOPERATING ALONE 217 enriches the existing literature by examining when regulations focused on business and human rights might trigger a California Effect. Abstract 216 Introduction 217 I. Conflict Minerals: Overview of the Problem 220 A. Human Rights Violations 220 B. The Electronics Industry and the Market for Conflict Minerals ...222 II. A Singular U.S. Policy Response: The Dodd-Frank Conflict Minerals Provisions 224 A. Overview of Dodd-Frank Conflict Minerals Regulations 224 B. Range of Possible U.S. Policy Responses 226 C. Implementation of Dodd-Frank 228 III. The Global Pull of an Enticing Market and Powerful Regulator 231 A. The Theory of Unilateral Regulatory Globalization 231 B. Can Dodd-Frank’s Conflict Minerals Provisions Unleash a “California Effect”? 235 1. Market Power 236 2. Regulatory Capacity 238 3. Preference for Strict Rules 238 4. Target Elasticity 239 5. Nondivisibility of Standards 240 6. Remaining Uncertainties 241 Conclusions 243 216 Introduction 217 I. Conflict Minerals: Overview of the Problem 220 A. Human Rights Violations 220 B. The Electronics Industry and the Market for Conflict Minerals ...222 II. A Singular U.S. Policy Response: The Dodd-Frank Conflict Minerals Provisions 224 A. Overview of Dodd-Frank Conflict Minerals Regulations 224 B. Range of Possible U.S. Policy Responses 226 C. Implementation of Dodd-Frank 228 III. The Global Pull of an Enticing Market and Powerful Regulator 231 A. The Theory of Unilateral Regulatory Globalization 231 B. Can Dodd-Frank’s Conflict Minerals Provisions Unleash a “California Effect”? 235 1. Market Power 236 2. Regulatory Capacity 238 3. Preference for Strict Rules 238 4. Target Elasticity 239 5. Nondivisibility of Standards 240 6. Remaining Uncertainties 241 Conclusions 243

Cross-Border Commercial Contracts and Consideration

Abstract: Private contracts for the exchange of goods and services are increasingly made across national borders. Firms continue to look for the best suppliers for their inputs or the best markets for their outputs, and as the costs of transport come down, global market access goes up. Yet the most fundamental tool of international business—the contract—may be much less “global” than the business itself. The understanding that a firm has of how a contract is formed and enforced in their home jurisdiction may conflict with that of their partners or customers in foreign jurisdictions, leading to unnecessary litigation. This Article will examine the common law contract requirement of consideration, an element that can make or break a contract. It will compare the requirements for forming a contract in civil and common law jurisdictions and explain how consideration can be overlooked or underemphasized, and what effect this has on the enforcement of commercial contracts. Finally, it will offer practical suggestions for parties to avoid a consideration challenge following execution of their agreement.

South Africa and the Human Right to Water: Equity, Ecology and the Public Trust Doctrine

Abstract: After liberation from apartheid in 1996, South Africa’s new, progressive Constitution proclaimed: “Everyone has the right to have access to sufficient food and water.” In this paper, I analyze South Africa’s revolutionary legal vision for marrying social equity to ecology in fulfilling the right to water. South Africa’s successes and obstacles as a developing nation with few natural water sources and great water needs demonstrates the translation of aspirational ideas into functional law. This is significant not just to South Africa’s own citizens, but extends to the entire world. South Africa’s approach contains essential lessons for how to use the law to support the billion plus people around the world whose right to water remains unfulfilled, and to the million plus people who die each year from dehydration or diseases related to unclean or inadequate water supplies. South Africa’s past and future approaches to implementing the right to water will continue to shape the legal meanings of “progressive realization” within “available resources” for all economic, social and cultural human rights worldwide.I first examine South Africa’s initial, visionary laws and policies which sought to implement the human right to water. South Africa’s legal blueprint resurrected its Public Trust Doctrine, requiring the government to protect the ecological “Reserve” that nourishes the right to water. After promising beginnings, South Africa applied legally questionable policies vis-a-vis the right to water. For example, it considered the equivalent of two toilet flushes per person per day as an adequate supply of water. Furthermore, it allowed government water service providers to install prepaid water meters for the poorest of the poor, which shut off water supply without notice when water use exceeded the predetermined “adequate” supply.These policies were upheld by the globally influential South African Constitutional Court in Mazibuko v. City of Johannesburg, which this Paper argues undermined the human right to water. The Court failed to respect constitutional prescriptions to advance equity. It also failed to consider public trust responsibilities to steward the legally mandated ecological Reserve, the ultimate source of water. The Court also misconstrued the Constitution’s command to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of” the right to water. Judges and bureaucrats alike — in South Africa and in too many other locales — fail to see that “available resources” must include ecological resources. Failure to root the human right to water in its ecological milieu is a failure to make progress in fulfilling the human right to water.After leading the world in getting the right to water right and then wrong, South Africa has again formulated groundbreaking legal plans to realize the right to water. The nation seeks to reallocate water towards those in greatest need, and has established ambitious plans to steward the ecological Reserve that underlies the human right to water. If South Africa succeeds in implementing its new legal strategies based on the “indivisibility of water,” it will offer a blueprint for how to make the human right to water more than an empty promise through a reconfigured, visionary understanding of the Public Trust Doctrine that marries equity to ecology.

Trade Law’s Responses to the Rise of China

Abstract: This Article offers a systematic examination of trade law’s responses to the emergence of China as a major player in world trade. As an intricate set of rules written largely prior to the advent of the China era, trade law had to readjust to the powerful newcomer in ways that eventually changed trade law itself. This Article investigates these changes in four major areas of trade law: antidumping, countervailing duties, safeguards, and managed trade. In almost all of those areas, trade law witnessed a protectionist shift against Chinese products at the expense of sound, consistent principles. But, at the same time, trade law has corrected some of the most egregious protectionist policies on China. These adaptations on the part of trade law tell a story of how an organic legal system evolves in response to changing external circumstances. This Article concludes that at least as an initial assessment, trade law has been rather successful in accommodating China in the new world trade order and has preserved the structural stability of the world trade system without deviating too far from its core principles.

Chinese Reception and Transplantation of Western Contract Law

Abstract: The transformation of the People's Republic of China (China) into a market economy and its ascendancy into a global economic power increases the importance of studying its private laws (contract, torts, property, and unjust enrichment). The twin pillars of a market economy are private property and contract law. This Article will focus on the latter of the two pillars. The evolution of Chinese contract law provides an opportunity to study the influences of foreign laws and the formal transplantation of foreign and international law into a different cultural and legal tradition. China's formation of private contract law, beginning in the mid-1980s, is particularly interesting because of the breadth of foreign law influences involved in its development. However, the use and partial transplantation of a variety of sources can have unintended consequences. In the case of the Chinese Contract Law (CCL), it has led to a number of gaps and inconsistencies.

Recovering Lost Tax Revenue Through Taxation of Transnational Households

Abstract: This Article addresses the difficult problem of raising revenue in developing countries with significant outmigration. Migrant-source country governments face a unique policy dilemma because emigration reduces domestic human capital and tax revenue, but simultaneously improves outcomes for migrant workers and their families. Thus, governments must balance contrasting needs to maximize government revenue while protecting the welfare of migrant worker households. I argue that migrant-source countries may find a solution to this dilemma by taxing income remitted by migrant workers to family members remaining in their home countries. If constructed properly, a tax on remittance payments could raise revenue without burdening migrant workers or restricting their freedom to migrate. In this Article, I push back against common anti-remittance-taxation arguments based on both normative and practical considerations, with a focus on improving and updating the taxation of families separated by national borders. After surveying the tax policy instruments available in remittance-receiving developing countries, I offer a menu of policy designs through which policymakers can leverage these important inflows. Proposed policies range from an ideal case of bilateral cooperation between host and home countries to a third-best regime that seeks to harness remittance gains indirectly via consumption and property taxation. Abstract ..............................................................................................................100.............................................................................................................100 Introduction .......................................................................................................101 I. Background on Migration and Remittances ...................................................103 A. Emigration and Taxation in Source Countries ..............................103 1. Emigration and Welfare ..........................................................103 2. Migration Policy Proposals and the Bhagwati Tax .................105 B. Remittances and Welfare in Source Countries ..............................109 1. Background on Remittance Flows ..........................................109 DOI: http://dx.doi.org/10.15779/Z384G3Z * Acting Assistant Professor of Tax Law, New York University School of Law. I am grateful to Michael Graetz and Anne Alstott for their thoughtful insights and support on this piece, and to my clients in the Bet Tzedek Legal Services Tax Clinic, for allowing me to help them with their tax problems. Thank you also to the editors of the Berkeley Journal of International Law, especially Nathan Berry and Christopher Yandel. 2016] RECOVERING LOST TAX REVENUE 101 2. Remittances and Welfare ........................................................111 3. The Argument Against Remittance Taxation .........................115 C. Migration Taxation in Practice ......................................................116 II. Normative and Practical Justifications for Remittance Taxation .................119 A. Taxation of Intra-Family Transfers ...............................................120 B. Inter-Nation Equity ........................................................................123 C. Government Tax Goals Principles .................................................126 1. Increasing Revenue Mobilization ...........................................126 2. Progressivity ............................................................................128 III. Tax Realities in Developing Countries ........................................................130 A. Tax Policy Building Blocks ...........................................................130 1. The Personal Income Tax (PIT) ..............................................130 2. Consumption Taxation—The VAT .........................................131 3. The Property Tax ....................................................................132 B. Tax Capacity of Remittance-Receiving Countries ........................133 1. Survey of Tax Policies in Selected Migrant-Source Countries .................................................................................133 2. Why the VAT is Not Enough ..................................................137 IV. Proposed Policy Structures ..........................................................................140 A. Policy 1: Deduction in the Host Country via Bilateral Tax Treaties ..........................................................................................140 1. Aggregate Transfer of Tax Revenue .......................................142 2. Individual Deductions and Subsequent Taxation in Home Countries .................................................................................143 B. Policy 2: Tax Inflows to Recipients, Offsetting for Double Taxation .........................................................................................145 C. Policy 3: Indirect Remittance Taxation .........................................148 1. Property Taxation ....................................................................149 2. Consumption Taxation ............................................................150 V. Administrative Considerations .....................................................................151 A. Distorting Remittance Behavior ....................................................152 B. Political Will ..................................................................................153 C. Evasion ..........................................................................................153 D. Corruption ......................................................................................154 Conclusion .........................................................................................................155