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COERCION IN CROSS-BORDER PROPERTY RIGHTS

  • Leif Wenar (a1)
Abstract:

A global market exists only because all states have chosen to converge on rules that coordinate property rights. For property rights over natural resources and products made from them, states converge on the rule of effectiveness, or might makes right. Because of effectiveness, consumers making everyday purchases like electronics, cosmetics and gasoline cannot help but support foreign authoritarians and militias. Effectiveness in the international system puts consumers into business with highly coercive actors abroad. States’ choice of effectiveness also leads to their enforcing the injustices of foreign actors within their own borders, with their own justice systems.

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1 This article draws on Wenar, Leif, Blood Oil: Tyrants, Violence, and the Rules that Run the World (Oxford: Oxford University Press, 2016), which explores its themes more fully.

2 Coltan is the ore from which tantalum is extracted; tantalum is used to make the capacitors in many kinds of electronics including smart phones.

3 Within American law, the processing of the coltan along the supply chain would, for example, be sufficient to block the owner’s suit against the girl. For specialists it may be noted that the “Conflict Minerals” Section 1502 of the U.S. Dodd-Frank Act does not change the conclusions reached here. Greater transparency in supply chains does not affect the law’s underlying structure of effectiveness.

4 David Smith, “Congo Rape Numbers Rise Dramatically,” The Guardian 19, October 2012; Jeffrey Gettleman, “The World’s Worst War,” New York Times, December 15, 2012. See Stearns, Jason K., Dancing in the Glory of Monsters (New York: Public Affairs, 2011).

5 U.S. Department of Commerce, “Compilation of Foreign Motor Vehicle Import Requirements,” (December 2011), 20; New Zealand, “Dog Control Amendment Act 2003,” 4.17; World Trade Organization, “Trade Policy Review 2005–06: Egypt, (2006), 16–17.

6 G8, “G8 Experience in the Implementation of Extraterritorial Jurisdiction for Sex Crimes against Children,” (Article prepared for the G8 Justice and Home Affairs Ministerial 2007), April 18, 2007.

7 USC. Title 18, Part I, Chapter 115, §238.

8 U.S Patriot Improvement and Reauthorization Act, 21 USC. 960A(b) (2006).

9 U.S. Executive Order 13412 (2006), preamble and sec. 2 (the minor exceptions to the prohibition stated have been omitted).

10 If High Island becomes a member of the UN, and if the UN Security Council imposes mandatory sanctions on some country (as it did on, for example, apartheid South Africa) then our national authority will not have discretion over sanctioning that country. If High Island becomes a member of the World Trade Organization (WTO), then it may or may not (depending on how Article XX of the GATT is interpreted) remain the choice of its authorities to impose a restriction such as the one on the products of child labor described. On WTO law see also note 43 below.

11 Property law is subnational; for example the several U.S. states have their own systems, which sometimes differ substantially. Also, European efforts to harmonize the private international laws of member states sometimes make it convenient to think of Europe as a single legal entity. We set these details aside. International law does constrain domestic property law in such areas as intellectual property, foreign investment, deep-sea minerals, cultural objects and satellite orbits. Globalization is adding to these constraints: in John G. Sprankling’s metaphor, international property law is like a coral reef gradually emerging from the ocean to create a new legal category; see his International Property Law (Oxford: Oxford University Press, 2014), vii.

12 Lacey Act, 16 USC 3371–3378; EU Regulation No 995/2010.

13 It may be that American property law has a structure that would also wash domestic armed robbery out of entirely domestic sale chains, yet this does not reduce the concern about international trade adding substantially to domestic injustice. Few minerals in the United States, for example, pass into production from the hands of coercively exploitative militiamen.

14 See Cooper, Helene, “On Day of Reckoning, Recalling Horror that Swallowed Liberia,” New York Times, April 26, 2012 .

15 BBC, “Liberia Ex-Leader Charles Taylor Gets 50 Years in Jail,” May 30, 2012, http://www.bbc.co.uk/news/world-africa-18259596; BBC, “The Charges Against Charles Taylor,” February 9, 2011, http://www.bbc.co.uk/news/world-africa-12391507.

16 Farah, Douglas, Blood From Stones: The Secret Financial Network of Terror (New York: Broadway, 2004).

17 The Act defined “Strategic Commodities” as “Natural Resources, Minerals, Cultural and Historical items which are of vital importance to the Nation’s Economic, Social, Political and Cultural values and the well-being of Liberia.” Global Witness, The Role of Liberia’s Logging Industry (London: Global Witness, 2001), 7. On Liberia’s parliament: “This policy illustrated the weakness and lack of autonomy of Liberian state institutions. No viable option existed for parliamentary members but to pass Taylor’s initiative, or else fear for their personal safety. It was well-known that even small-scale political opposition to Taylor would be met with harsh measure. [Footnote: Several members of the government] all disappeared or were found dead shortly after criticising Taylor.” Johnston, Patrick, “Timber Booms, State Busts: The Political Economy of Liberian Timber,” in Conflict and Security in Africa, ed. Abrahamsen, Rita (Rochester, NY: Boydell and Brewer, 2013), 31.

18 Ellen Johnson Sirleaf, quoted in Doreen Carvajal, “Hunting for Liberia’s Missing Millions,” New York Times, May 30, 2010, http://www.nytimes.com/2010/05/31/world/africa/31taylor.html.

19 World Rainforest Movement, Liberia: Unique Forests Threatened by Logging, 2002, http://wrm.org.uy/oldsite/bulletin/64/Liberia.html; Global Witness, The Usual Suspects: Liberia’s Weapons and Mercenaries in Cote d’Ivoire and Sierra Leone (London: Global Witness, 2003), 2023 . The United Nations banned Liberian diamond exports in 2001 and timber exports in 2003.

20 States sometimes announce that they recognize only states, not governments. Even when this distinction is legally meaningful it does not affect the argument here, as the argument works for both sides. See Grant, Thomas, The Recognition of States (Westport, CT: Praeger, 1999).

21 There are qualifications that do not affect the argument: for example, when country A nationalizes a foreign investment from country B, international law requires country B to accept that taking of property provided just compensation is paid. See Schrijver, Nico, Sovereignty over Natural Resources (Cambridge: Cambridge University Press, 2008), 285–97.

22 U.S. Treasury, “Executive Order 13067” (1997); P.L. 106–476 [H.R. 4868], 114 Stat. 2101, sec. 1464 (2000).

23 The United States suspended its embassy operations from 1996–2002 because of the country’s links with international terrorist organizations. U.S. State Department, “US Relations with Sudan,” May 30, 2014, http://www.state.gov/r/pa/ei/bgn/5424.htm.

24 Oppenheimer v. Cattermole, 1976 AC 249 at 278.

25 Kuwait Airways Corporation (KAC) v. Iraqi Airways Company (IAC) and Others, 2002 UKHL 19 at 317, citing the analysis of Judge Brook from the Court of Appeal.

26 Erskine McCullough, “Rubies are Swelling the War Coffers of Cambodia’s Feared Khmer Rouge Rebels,” Los Angeles Times, November 18, 1990. For the history of the Thai–Khmer Rouge resource trade see Puangthong Rungswasdisab, “Thailand’s Response to the Cambodian Genocide,” Yale University (2010), http: www.yale.edu/cgp/thailand_response.html#kralliance.

27 See Harding, Henry, A Fragile Relationship: The United States and China Since 1972 (Washington, DC: Brookings Institution, 1992), 180–lpage>83.

28 As Crawford puts it, during the classic Westphalian period “The law of nations was, in a sense, the codified law of the jungle.” Crawford, James, “The Right to Self-Determination in International Law: Its Development and Future” in Alston, Philip ed., Peoples’ Rights (Oxford: Oxford University Press, 2001), 12.

29 Pogge, Thomas, World Poverty and Human Rights, 2nd ed. (Cambridge: Polity, 2008), 56.

30 Waltz, Kenneth, Man, The State and War (New York: Columbia University Press, 1959), 182.

31 Gilbert, Margaret, A Theory of Political Obligation (Oxford: Oxford University Press, 2006), 134–45.

32 The domestic property laws of weak states, like the Democratic Republic of Congo, do not form part of this consensus — as above, rebels in the eastern Democratic Republic of Congo are violating Congolese law when they seize minerals by force. Yet officials of these weak states are quite unlikely to attempt to break the international consensus on effectiveness by launching international legal actions. This is not only because these states are weak but because officials in these states often benefit directly or indirectly from the illegal resource trade in their jurisdiction.

33 Ross, Michael, The Oil Curse (Princeton, NJ: Princeton University Press, 2012), 1–2, 145–88. Effectiveness also drives civil conflict by rewarding militias that can seize resource-rich regions with large revenues. Gemstones increase the length and severity of civil conflict, and secessionist conflicts in oil-producing regions are the most severe. See the literature review of the relation between natural resources and the onset, duration, and intensity of civil war in Philippe Le Billon, Wars of Plunder (Oxford: Oxford University Press, 2013), 15ff.

34 Maas, Peter, Crude World (New York: Penguin, 2009), 30.

35 For more on Obiang and his son Teodorín see Silverstein, Ken, The Secret World of Oil (New York: Verso, 2014), chap. 2.

36 A study in The Lancet found that neonatal, post-neonatal and childhood death rates all increased between 1990 and 2010 — that is, since the oil revenues began to accrue. Julie Knoll Rajaratnam et al., “Neonatal, Postneonatal, Childhood, and Under-5 Mortality for 187 Countries, 1970–2010,” The Lancet 375.9730 (2010): 1988–2008, Table 2. Manfred Nowak, “Report of the Special Rapporteur on Torture, Addendum: Mission to the Republic of Equatorial Guinea,” UN Human Rights Council A/HRC/13/39/Add.4 (2010), p. 2.

37 Adam Nossiter, “U.S. Engages with an Iron Leader in Equatorial Guinea,” New York Times, May 30, 2011.

38 “The land of every country,” as John Stuart Mill said, “belongs to the people of that country.” (Principles of Political Economy II.10.4) This aspect of popular sovereignty has been codified in the two main international human rights treaties; 98 percent of humanity is living in a state that is already party to at least one of those treaties. Indeed popular resource sovereignty is declared in the first and the last substantive article of each of the human rights treaties — it is the only human right that each treaty asserts twice. International Convention on Civil and Political Rights, Arts. 1, 47; International Convention on Economic, Social and Cultural Rights, Arts. 1, 25. See Wenar, , “Property Rights and the Resource Curse,” Philosophy and Public Affairs 36 (2008): 232 .

39 Jerome Taylor, “Iran Executes Three Men for Sodomy,” The Independent, September 7, 2011.

40 The U.S. federal death row is at the prison in Terre Haute.

41 Bok, Francis, Escape from Slavery (New York: St. Martin’s, 2003).

42 For ambitious proposals to improve labor standards see Barry, Christian and Reddy, Sanjay G., International Trade and Labor Standards: A Proposal For Linkage (New York: Columbia University Press, 2010).

43 See the Clean Trade policy framework in Wenar, Blood Oil, Part IV. For arguments that WTO member states can discriminate against authoritarian oil and conflict minerals see Lorand Bartels, “WTO Law Aspects of Clean Trade,” (2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2634567.

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