‘Trade, Technology, Telecommunications & Transaction’ (T4) — Trump’s New Foreign Policy.

To me, TikTox and WeChat highlight the growing ‘national securitization’ of trade and business transactions in U.S. foreign policy. ‘Trade, Technology, Telecommunications and Transaction’ (T4) has become the newest foreign policy focus of the Trump administration.

This focus on business and government intervention is in the context of a rapidly changing global and digital environment with increasingly unilateral and mercantilistic state actions, often challenging the international legal and multilateral institutional systems, as well as the notion of free markets. Foreign policy is not what it used to be; it is not your father’s foreign policy.

This has been a growing development and now includes reregulating the Internet. This reverses decades of US policy toward an open and unregulated Internet. 

To some degree, we are now emulating the Chinese control of the web. Of course, the European Union, Russia, India and other countries are also regulating Internet access, localization of data storage, user information, encryption and cybersecurity by private and state actors. There has been an incremental and growing Balkanization of the global web. We really need to look at this carefully. Better national, international and diplomatic actions are clearly needed.

The battle over the use of national security as a rationale or as a cover for global trade actions by the U.S. administration is under increasing federal court scrutiny. Who would have thought that user data, source codes, algorithms and technology transfers of all sorts would become matters of national security and judicial review?

For example, a federal district court in California recently reviewed (Sept. 19, 2020) WeChat’s claim for a temporary nationwide injunction (which it granted) because the Trump administration’s actions violated the president’s delegated authority under the International Economic Emergency Powers Act (IEEPA).

While the court concluded that the plaintiff would probably not be successful on its IEEPA claim, it did grant WeChat’s request for an injunction on other constitutional grounds (First Amendment). Nevertheless, the court caustically stated, “Certainly the government’s overarching national security interest is significant. But on this record … it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.” Of course, the court can review this question at trial.

TikTok has also sued the Trump administration, raising issues of national security over proceedings of the Committee on Foreign Investment in the United States (CFIUS) concerning restriction of its transactions. TikTok’s subsequent deal involving Oracle and Walmart has caused TikTok to file even a more recent legal action. This is a highly unusual attempt by the Trump administration to force transfer of business ownership. This case just resulted in the issuance of a temporary injunction against the Trump administration’s download ban. The federal district court in Washington, D.C., concluded that the “Plaintiffs have demonstrated that they are likely to succeed on their IEEPA (national security) claims.” 

Recently, 3,400 companies asked the U.S. Court of International Trade to declare $300 billion of Trump’s tariffs on imports from China illegal. The Trump administration has asked this case to be delayed. The Commerce Department has continued to restrict exports and reexports to Chinese firms by including them on the “Entity List” that prohibits sales to foreign firms for reasons of national security. 

The Trump administration has continued now to impose even newer restrictions on Chinese firms. For example, it has recently imposed export restrictions on China’s largest semiconductor manufacturer, SMIC, relying upon national security as its rationale.  The Trump administration has also recently declared reliance on imports of critical minerals is a national security issue. Chinese firms continue to react against the growing intrusiveness of the Trump administration into its global business and trade transactions. For example, Chinese firms are listing more today in Hong Kong and Shanghai and moving away from New York. Chinese direct investment in the United States has plunged dramatically.

In conclusion, data transfer, privacy, data storage, telecommunications and national security are complex and intertwined legal issues that involve technology, public policy, business, trade and legal issues. Moreover, these critical issues are growing internationally. The expanding use of the national security rationale to address these issues by the United States is a critical newer development becoming ever more ominous every day.

 

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TikTox and WeChat — Growing National Security Focus Over Trade, Technology and Transactions (T3).

TikTox and WeChat highlight to me the growing ‘national securitization’ of trade and business transaction in U.S. foreign policy. ‘Trade, Technology and Transactions’ (T3) and even better ‘Trade, Technology, Telecommunications and Transaction’ (T4) have become the new foreign policy focus of the Trump administration.

This focus on business and government intervention is in the context of a rapidly changing global environment with increasingly unilateral state actions. Often challenging the international legal and multilateral institutional systems as well as the notion of free markets. Foreign policy isn’t what it use to be. It’s not your father’s American foreign policy.

This has been a growing development, now including reregulating the Internet. This reverses decades of US policy towards an open and unregulated Internet. 

To some degree we are now emulating the Chinese national control of the web. Of course, the EU, Russia, India and other countries are also concerned about Internet access, localization of data storage, user information, encryption and cybersecurity by private and state actors. There has been an incremental and growing Balkanization of the global web. Really need to look at this  carefully. Better national, international and diplomatic actions are clearly needed.

One additional point. The battle over the use of national security as a rationale or as a cover for global trade actions by the U.S. administration is under constant federal court scrutiny. Who would have thought that user data, source codes and algorithms  and technology transfers of all sorts would become matters of national security?

For example, a federal district court in California recently reviewed (Sept. 19, 2020) WeChat’s claim for a  temporary nationwide injunction (which it granted) that the Trumps administration’s actions violated its delegated authority under the International Economic Emergency Powers Act (IEEPA).

While the court concluded that the plaintiff would probably not be successful on its IEEPA claim, it did grant its request for an injunction on other constitutional grounds (First Amendment). But it interestingly stated, “”Certainly the government’s overarching national security interest is significant. But on this record … it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.” Of course, the court can review this question at trial.

It should also be noted that TikTok also sued the administration previously raising issues of national security in light of CFIUS proceedings concerning restricting its transactions. However, the deal reached subsequently involving Oracle and Walmart has at least temporally stayed this action and might very well cause TikTok to file newer actions.

In conclusion, data transfer, privacy, data storage, telecommunications, and national security are complex technological, policy and legal issues. And they are growing internationally. The growing use of the national security rationale to address these issues by the United States and other countries is a critical development becoming ever more ominous this decade. 

 

 

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Restricting Foreign Governments Standing to Sue in US Courts & Trump’s Foreign Policy — Two Annoying WSJ Op-Ed’s.

Two really annoying op-ed pieces in the Wall Street Journal discussing separately the Foreign Sovereign Immunities Act (restricting the right of foreign states access to U.S. Courts). And why President Trump’s foreign policy should be a basis for reelecting him. Don’t agree with either.

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This Stanford law professor gets it entirely wrong. The Foreign Sovereign Immunities Act allows broad litigation against foreign governments. Any abusive litigation can be dismissed by federal courts. He addresses a problem that doesn’t exist.

“Stopping Foreign Governments from Using US Courts.” Wall Street Journal (Sept. 2, 2020).

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Sorry to ready this by former colleague at George Mason law. Trump’s foreign policy has been a chaotic failure. Krauss is grasping for very, very short straws. Trump is wrecking the int’l rules-based system. As well as our legal & court system.

“Why I’m Now Voting for Trump.” Wall Street Journal (Sept. 2, 2020).

 

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Courts are Looking (Finally) at the President’s Use of National Security as Cover for Trade Actions (Tariffs) and Sanctions.

New article ………………… National security is used by the Trump administration as legal cover for trade actions and sanctions. But the courts are beginning to look at this closely. Indeed, a recent decision by the US Court of International Trade rejected the administration’s tariff action and discussed this entire issue in some detail.

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Global Trade and Law by Stuart Malawer.

Some books and publications by Dr. Stuart S. Malawer, JD, Ph.D. on international law and global trade:

 

          Federal Regulation of International Business (Georgetown and US Chamber of Commerce)

 

     

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Setback for Trump on Trade — US Court of Int’l Trade & Turkish Steel Imports.

The US Court of International Trade today declared that the Trump administration’s additional tariffs on import of Turkish steel under Section 232 (National Security) were invalid. They failed to fall within the statutory period of action.

The larger story is this is the first time for such a determination that there was a procedural violation under Section 232.

This amounts to a small but significant advance of the growing attack on the President’s use of national security as a basis for tariffs and as a possible violation of separation of powers.

The court stated forcefully that a tariff cannot be irrational with no bearing on national security. And this is judicially reviewable. The court cited the earlier 2019 Circuit Court case concerning the steel importer’s association (AIIS).

This current case comes along within the larger context of a movement in Congress to scale back the president’s authority to use national security and other trade actions unilaterally. Focusing on a return of such trade powers to the Congress.

Click to access 20-98.pdf

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World History & Today’s Disorder.


Richard Hass’ new book THE WORLD – A BRIEF INTRODUCTION (2020) is aimed at reviewing world history and presenting it to those that do not know much about it. He contends that’s mostly everybody. The book briefly starts with the Thirty Year War and goes through the Post-Cold War era. He then discusses global regions, globalization and concludes with a discussion of international relations.

What’s my take?

This book is something like global history for dummies. But that’s fine. It’s well done and an easy read. What I find most interesting are various remarks the author makes throughout this book. Here’s some of them:

• Some of the consequences of globalization are simultaneously good and bad.

• History can be understood as an ongoing narrative of world orders materializing, breaking down, and reemerging in another form.

• The bedrock of world order has been respect for sovereignty.

• Order cannot be based on sovereignty alone, must also be grounded on balance of power.

• The liberal order is now fraying. The result is a decline of America’s relative power and a growing unwillingness to play its traditional role in the world.

• Resurrecting the old order is impossible. Countries will need to work together.

• The United States must be more prudent in using military force or weaponizing its economic policy.

It’s hard to disagree with the above observations. The next stage for the reader is to figure out how to move forward in light of the world history outlined by the author. History is essential to understand. We need to critically assess it in formulating responses to newer global challenges we all face. 

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WHO and Trump’s Treaty Termination — Lawful, Yes. But Bad Policy.


Good editorial in the New York Times today — “Don’t Leave the WHO, Strengthen it.”  Here’s some statements concerning the president’s right to withdraw from a treaty:

    • The world is fighting the most serious pandemic in a century, and the United States is in the process of withdrawing from the only international organization equipped to lead that effort.
    • It remains to be seen whether Mr. Trump can withdraw from the organization without congressional approval.
    • Some global policy experts say that because the United States joined the W.H.O. by treaty, the president will need congressional approval to leave it. But previous presidents have withdrawn from treaties without lawmakers’ approval.
    • But just because Mr. Trump may have legal standing to take the country out of the W.H.O. doesn’t mean he should.
    • But withdrawing from the W.H.O. in the middle of a global pandemic is a terrible solution to those problems.

The New York Times isn’t quite right as to the law. Presidents do have the right to terminate and withdraw from a treaty without congressional approval. It’s part of his foreign affairs powers. Courts have upheld this unilateral termination. In fact, I would argue even if the implementing legislation for a treaty precludes this, as a matter of international law that termination would still stand.

A lot more can be said about treaty termination. Unfortunately, the Constitution and the courts don’t say much about it. Neither does public international law or the law of treaties, specifically. The inter-play between constitutional law, international law, self-executing and non-self-executing treaties and foreign policy is certainly an area that could benefit from renewed attention by American courts and scholars.

But the decision to withdraw from the WHO, whether or not it conforms to U.S. law or the treaty itself, is a real bad idea.

 

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TRUMP’S FOREIGN POLICY DOCTRINE — “REJECTION & WITHDRAWAL.”

    

 

Trump’s withdrawal from a range of international agreements and institutions (Trans-Pacific Partnership, Paris Climate Accord, Iran nuclear deal, UNESCO, UN Human Rights Council, Open Skies Treaty) from the very outset of his term can now be loosely labeled a foreign policy doctrine. I would call this Trump doctrine “Rejection and Withdrawal.”

Trump has established a pattern of rejection and withdrawal from a broad range of international agreements and institutions—from trade agreements to nuclear arrangements and now the World Health Organization. His actions constitute rejection and withdrawal from the rules-based international legal and political order that evolved in the post-1945 world.

These actions or threatened actions (especially against the Word Trade Organization and from NAFTA) are consistent with his “America First” slogan, which signaled American isolationism in the 1930’s has, in fact, made the United States less safe in this decade. It has placed the United States behind other nations trying to confront global issues collectively.


An absence of international cooperation leads only to counter-productive unilateral actions such as tariffs, boycotts, export controls, trade sanctions, foreign investment controls). This has been made abundantly clear most recently. Note Trump’s glaring failure to cooperate during this global pandemic where he has fallen back on blame and name calling to an extreme, especially in regard to China.

Needless to say, this is now part of Trump’s reelection strategy. We need global cooperation to meet global problems. There is no way around this.

Clearly, many world leaders learned this lesson from the 1930’s, when the world was far less interconnected. But I guess Trump missed that lesson in school as well as in life.

 

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TRUMP’S TRADE DELUSIONS & THE WTO.

From “The WTO is Needed Today as Much as Ever.” Lead Editorial from the Financial Times (May 19, 2020).

 

The World Trade Organization is under attack, above all by the US, the country most responsible for its creation.

Donald Trump  clings to the delusion that bilateral pressure will rebalance trade in favor of American exporters. Yet, as Jeffrey Schott of the Peterson Institute for International Economics notes, the president’s deals “have barely done anything to improve US access to foreign markets”. Worse, his bullying has caused costly retaliation.

The US cannot abolish the WTO. But it can wound it. Indeed, it has already done so by rendering the WTO’s appellate body inquorate. Others are trying to create a temporary substitute. Yet this can only be a makeshift solution.

Worse, the collapse of the judicial function is far from the only peril confronting the WTO. The legislative function, which requires fresh agreements among members.

Again, the delusion has surfaced that the WTO undermines sovereignty. But trade relations always involve at least two governments. If all insist on absolute sovereignty, the security needed by enterprises located in all others disappears. That is why wise leaders understand that binding mutual commitments increase effective sovereignty. Again, the more global the agreements the greater is the security.

If we did not have the WTO, we would have to invent it. Today, that would be impossible. Happily, we only need to make sure it survives, in order to underpin the open global economy we will all need on the other side of the pandemic. 

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