Professor Stuart Malawer and JEAIL Interview (2018)

International Lawyer —
A Dialogue with Dr. Stuart S. Malawer

Professor Stuart S. Malawer, JD, Ph.D.

INTRODUCTION

Dr. Stuart S. Malawer is Distinguished Service Professor of Law and International Trade at George Mason University. Dr. Malawer graduated from the University of Buffalo in New York majoring in American history and Soviet studies and went to Cornell Law School for his Juris Doctor. Then, he entered the graduate program in International Relations at the University of Pennsylvania (Wharton School). He was awarded both a master’s degree and a doctorate from Penn combining law, business, and foreign policy. Dr. Malawer also earned a Diploma from the research center at the Hague Academy of International Law in The Netherlands and then studied at the Harvard Law School (where he taught in the International Tax Program) and at St. Peter’s College, Oxford.

At the height of the Vietnam War, Dr. Malawer began his teaching career at the University of Pennsylvania (Wharton School). He eventually moved to George Mason University School of Law in Virginia and then to the new Schar School of Policy and Government there. He is now serving for George Mason University as Distinguished Service Professor of Law and International Trade. Professor Malawer was the founder and director of its graduate program in international transactions and commerce and was subsequently named Distinguished Professor of the Year. For more than ten years as director, he organized and led graduate programs in global trade to Oxford (St. Peter’s College) and Geneva.

Dr. Malawer is a member of the state bars of New York and Virginia. He is a former chairman of the International Practice Section of the Virginia State Bar and the author of more than 100 articles and numerous books on international law, international trade, the WTO, and national security. He was a gubernatorial appointee in Virginia to various state boards and committees focused on economic development and international trade. He is particularly interested in the growing relationship of sub-national political units (states and cities) to the global economy. He was a delegate on various gubernatorial trade missions from Virginia to China, India, and Japan. He has travelled widely throughout Asia, including visiting Vietnam, Cambodia, Singapore, Malaysia, Indonesia, and Thailand.

Dr. Malawer met Sandy Kazin on a blind date during her high school days and they have been married for over 50 years now. His wife is in private practice and has consulted extensively with critical federal agencies. Dr. Malawer has two brothers (an orthopedic surgeon and a lawyer), a son and a daughter who are both lawyers with the federal government (US Dept. of Justice and the US Dept. of Education). His son-in-law is a naval officer and lawyer. A spirit of public service has been cultivated in his family. 

QUESTIONS & ANSWERS

1. Dear viewers and readers! Today, we have invited Dr. Stuart Malawer, Distinguished Service Professor of Law & International Trade at George Mason University for the interview. He is a truly inspirational international lawyer in the US and rest of the world. A very warm welcome to the Dr. Malawer, sir! We usually begin our interview with a few personal questions. Would you please tell us about your family, your experiences in the early years and as a teenager?

I was born and grew up in New York. My parents were separated, so I lived in Queens just a few miles from President Trump’s home. But I also spent a lot of time in Manhattan, where my father lived. This was near the United Nations. I went to a public high school in Queens. While in high school, I studied Russian and took numerous courses in government and history. As most New Yorkers did, I thrived in the global mix of peoples and businesses.

I graduated from high school at a young age and then went to the largest state university in New York. I graduated from university in three years and then went to law school. Then, I was 19. I should also mention that my father was a professional boxer and track star in the 1930s. He qualified in track for the Olympics in Munich. He also founded a manufacturing company with his brother during the depression and became very successful.

2. You began studying law at Cornell Law School. How about your days in Ithaca? What was the most impressive subject in your law school? Could you also tell us about your college (undergraduate) life?

As an undergraduate at the University of Buffalo, I was a history major and my focus was American history and Soviet studies. I was just sixteen years when I started in the undergraduate program. I found the university to be quite outstanding and took a broad range of classes related to international subjects. One of the best professors I had was an émigré from Czechoslovakia who escaped after the communist takeover. Instead of the normal four years, I graduated after three.

I went to Cornell Law School and was the youngest student in my class. Cornell Law School was truly outstanding, and at that time, Cornell was only one of two law schools in the country that had received a huge grant from the Ford Foundation to support international legal studies. That was a principal reason I chose to study there. What made Cornell so special was that the school paid 100% of its attention to teaching. This devotion to teaching remains with me today and inspires me in my teaching practices. I view teaching to be the primary importance in university life, although it is not easy. The students enrich my life and bring the world to me.

3. After graduating from Cornell Law School, you were awarded a doctorate in international relations and a diploma of international law from the University of Pennsylvania and The Hague Academy of International Law, respectively. It is an exceptional course to be a top academic in public international law and diplomacy, but not very general track for American lawyers, most of whom seem to prefer practicing law over research. What brought you to the scholastic world? How about your vision at that time?

I’m not sure it is accurate to say that most American international lawyers prefer to practice. I know a lot of public international lawyers who are in various universities and government positions. Nevertheless, my reason for not joining a law firm was simple. I was always interested in public policy and foreign policy. After considering a Wall Street firm, as most of my Cornell classmates did, I decided that was not how I wanted to spend my life. The choice was either to practice transactional law on Wall Street in New York City or focus on policy and international affairs in Washington, D.C. I had to make that choice several times during my career, and each time, I chose Washington and international affairs. That’s why I went to Penn immediately after Cornell. Cornell did a great job in international law, but I wanted more in the way of looking at a broad array of related issues, such as foreign policy, international business, and international relations, among others.

4. Public international law is not so popular among the US legal scholars and practitioners. What do you suppose is the main reason for American lawyers not to be interested in public international law? How about the current and future trend?

Again, I’m not so sure it is correct to say that public international law is not popular among legal scholars. Nevertheless, it seems to me that a number of legal scholars look at other areas of the law or sub-areas of public international law (such as international trade law or related Constitutional law questions) because many have grown in complexity and other areas have become critically important and interconnected today. The whole range of business and finance areas have become important not only to increasingly global activities of law firms but for governments. Many of these areas include issues of public international law, as well as newer issues, such as cybersecurity, transfer of technology, and data privacy.

5. As an American lawyer, you have a wide range of interests in Asia. In particular, you were a member of the Virginia Governors’ trade missions (Governors Warner and Kaine) to China, India, and Japan and have been working with many other Asian partners. What did you do for these missions?

Most people inside and outside the United States do not realize how important of a role individual states or other sub-national (cities and counties) units play in local economic development and in engaging in the global economy. Virginia is one of the leading states that has been very active in promoting international trade as a means of fostering economic development within the state itself. However, many people within Virginia, including government officials, still don’t fully support trade. My role was to assist the various governors of Virginia in arguing for public support and, in particular, in helping engage the public universities in this effort. To that end, I participated in the trade delegations and have served on various state boards promoting international trade and economic development and formulating a public diplomacy strategy. I am particularly interested in the role of states and cities in connecting with the global economy, despite the fact the US Constitution gives exclusive authority to the federal government to regulate international commerce.

6. Increasing tensions in international trade were amplified recently with President Trump declaring a trade war against China. How do you evaluate his China trade policy? Could you also tell us about the origin of this current standoff between the US and China from a historical and political perspective? How do you predict the course for US-China relations in the next decade?

President Trump’s trade policy is belligerent and totally counter-productive to US national interests and those of the international system. That’s not good! It rejects the post-war system, and is not sustainable. My sense is that the origins in current US-China trade tensions is in the failure of the United States to develop domestic economic programs to address the harshness of globalization and the last ten years of the Great Recession. I’m optimistic, nonetheless. There is nothing inherent in US-China relations that makes those relations belligerent. Once President Trump leaves the scene, we will return to economic competition that can be managed by international institutions, such as the WTO’s dispute resolution system. We all have an interest in observing the rules of the game and in jointly developing newer ones to address newer economic and technological developments. We all want to provide our citizens a better living.

7. The US-Korea FTA is under negotiations for amendment. Do you think now is a high time for its revision? What is the main stance of the Trump administration for the US-Korea FTA? 

I don’t think revision of the bilateral trade agreement between Korea and the US is really the big issue that the Trump administration makes it out to be. Focus on bilateral trade agreements and bilateral trade deficits is an unfortunate part of President Trump’s nihilistic trade narrative. His demand for voluntary export restraints is clearly illegal under the GATT and the Safeguards agreement. His policies are driven by his mistaken views concerning the US electorate and the nature of the inter-connectedness of the global economy. The real focus of the US trade policy should be on promoting a multilateral trading system that is governed by mutually agreed upon rules and where disputes are settled peacefully. In the long run, the viability of global trade and international relations is based upon the consent of states. Consent brought about by the threat or use of force in treaty relations is prohibited. Such threats are in violation of Article 52 of the Vienna Convention on the Law of Treaties. This is a key aspect of the post-1945 international system.

8. President Trump has drastically changed his position towards North Korea and decided to meet Kim Jong Un on June 12 in Singapore, to discuss a complete denuclearization of North Korea. What do you suppose is the core reason for President Trump’s acceptance to the summit quite suddenly? Do you think he has real intentions to barter with Kim Jong Un to dismantle the current nuclear program?  

I believe President Trump’s core reason in announcing a meeting with Kim Jong Un probably has very little to do with North Korea. President has no real understanding of international affairs nor anything about North Korea. I believe everything he says or does concerning events outside of the United States has everything to do with his distorted perception of events inside of the United States. By that I mean his focus on domestic politics and his own standing with declining numbers of political supporters. He lacks a geostrategic vision and has no coherence or consistency of views. In short, I do not think dismantling North Korea’s nuclear program is his real goal.

9. Early twenty-first century is so turbulent with a fast-changing Asia. Many dramatic and historical events have been and will occur in this region such as the rapid rise of China as a hegemonic power, peace and reunification of the two Koreas, economic welfare of ASEAN, etc. What should be the long-term strategy of the US in light of changing regional politics? How do you envision the two sides – US and Asia – progress toward a peaceful relationship in the twenty-first century?  

Again, I’m optimistic. I believe this may be more up to the United States than the Asian countries. I believe mature political leaders in the United States will successfully accommodate the changing landscape throughout Asia. This includes the countries from India to Indonesia and beyond. There is really no reason peaceful relations cannot be promoted and sustained. This is in the national interests of the United States. Terminating treaties and withdrawing from international institutions is not the way to go. The challenge is to manage resurgence in populism and nationalism. Building walls is not the answer, but paving pathways to the global system is critical. Thoughtful leadership, better diplomacy, utilization of multilateral institutions will ultimately allow for managing political differences among countries that will benefit people everywhere.

10. Can you give a piece of advice for young lawyers and students interested specifically in public international law, who are beginning their career? What, in your opinion, is the most important value for them to keep in mind?

Viewing public international law as a means of addressing an ever-changing and more complex global landscape will promote the effective management of public and private activities. Most importantly, the scope and complexity of public international law is ever-expanding to newer areas such as global technology, and international lawyers need to keep abreast of these changes and focus on the areas that drive their passion.

11. Would you say if you have had serious hardships or difficulties, despite your successful course of life? If so, what were they and how did you overcome those difficulties? What was the significance of those challenges in your life?

I don’t want to end this interview on a down note. But since you asked, I will tell you. There is a good ending. I’m a horseback rider and have had my own horse for years. In 1990, I was in a barn tacking up Victoria when the barn’s hayloft collapsed on me. Initially, I was left for dead by the emergency responders. It took me another two years before I could walk without significant pain, of which I still have some. I was told then never to ride again. Well, I didn’t listen, and I’ve been ridding ever since. The moral of the story? Just persevere, and never give up!

                        Interview by Eric Yong Joong Lee

          A SELECTED LIST OF RECENT PUBLICATIONS

Books

Cyber Security Export Markets (U.S. Dept. of Defense & Virginia, 2014).

Global Trade And International Law (Hein & Co., 2012).

U.S. National Security Law (Hein & Co., 2009).

WTO Law, Litigation & Policy (Hein & Co., 2007).

Articles

Trump, Trade and National Security, 259:57 New York Law J. 4 (Mar. 26, 2018).

Trump’s Year-One Trade Policies: Belligerent Rhetoric – But Still Unsettled, 4:1 China & WTO Rev. 133 (Mar. 2018).

Trump’s China Trade Policies: Threats and Constraints, 3:1 China & WTO Rev. 109 (Mar. 2017).

Trump’s Foreign Policy & New Federalism, Richmond Times- Dispatch (June 17, 2017).

On the Importance of International Trade in the Era of Trump, Richmond Times-Dispatch (Nov. 27, 2017).

Obama, WTO Trade Enforcement, and China, 2:2 China & WTO Rev. 361 (Sept. 2016).

When U.S. Politics & Global Taxation Collide, Richmond Times-Dispatch (Apr. 17, 2016).

Is the Iranian Hostage Agreement Good Diplomacy and Law, Richmond Times-Dispatch (Jan. 31, 2016).

Looking at Dispute Resolution in the Trans-Pacific Partnership, 254:109 New York Law J. 4 (Dec. 8, 2015).

Chinese Economic Cyber Espionage – U.S. Litigation in the WTO and Other Diplomatic Remedies, Georgetown J. of International Affairs 158 (Fall 2015).

Confronting Chinese Economic Espionage with WTO Litigation, 252:120 New York Law J. 4 (Dec. 2014).

The President Needs Fast Track Authority, Richmond Times-Dispatch (Feb. 16, 2014).

U.S. – China Trade Relations and WTO Litigation Since 2001, 26:2 International Law Practicum 122 (Autumn 2013).

U.S.-China Litigation in the World Trade Organization, 250:31 New York Law J. 5 (Aug. 8, 2013).

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Stuart S. Malawer, TRUMP AND TRADE — POLICY AND LAW (HeinOnline 2021).

PREFACE AND INTRODUCTION TO

STUART MALAWER, TRUMP AND TRADE — POLICY AND LAW (2021)

PREFACE

The Honorable Peter S. Watson, LL.B., DCL

It is good news that Professor Stuart Malawer has selected and compiled the numerous articles that he has authored over the last four years on global trade and, in particular, on the Trump administration’s attack on the global trading system and his ferocious, unending attacks on the U.S. legal system and the rules-based international system and its institutions.

Professor Malawer and I share the experience of having earned both a law degree and a doctorate focusing on international law and trade. My professional experience includes serving on the National Security Council, as Chairman of the U.S. International Trade Commission, and as President of the Overseas Private Investment Corporation. Our professional and educational interests in global trade, international law, foreign policy, international investments, economic development, and national security overlap significantly.

Since the 1990s, I have collaborated with Dr. Malawer on a range of global activities. Most notably we have been colleagues at the Oxford Trade Program, a partnership between St. Peter’s College, Oxford, and George Mason University. As part of that program, we developed a week-long Geneva program: held at the World Trade Organization in Geneva, Switzerland. This was one of the first global trade programs for graduate, business, law, and trade students emphasizing the WTO, its dispute resolution system, and other international institutions.

I agree fully with Dr. Malawer’s conclusion: “Trump’s attacks on the existing international system have significantly diminished the standing of the United States in diplomatic relations with our friends and allies and has only emboldened others to take unilateral actions. Consequently, over the last four years, the United States has failed to formulate viable foreign policies and strategies to tackle the multitude of global problems confronting its national interests and security.”

If I were to summarize Professor Malawer’s contribution, it would be the following: he clearly understands inter-connected trade, law and public policy problems within an interdisciplinary construct. His rigorous assessment, reflects an interest  analysis approach to assessing very complex issues. We all owe a debt of appreciation to Professor Malawer for his early and persistent examination of trade policies under the Trump administration. He was an early mover in this space and has proven prescient. His discussion of challenges confronting the Biden administration is reasonable and pragmatic.

INTRODUCTION

Professor Stuart S. Malawer. J.D., Ph.D.

Donald Trump and I are both from Queens, New York. In fact, we are about the same age and were almost neighbors, living less than two miles apart. I have followed his family and his business career since the 1960s. I watched the U.S. Department of Justice charge him in the 1970s for racial profiling in his family’s real estate rentals and observed his opposition in the 1980s to Japanese investment because it competed with his activities in the New York City real estate market. From the earliest days, Donald Trump abused the domestic legal system and lambasted international trade and foreign investment.

On his first day in office, Trump withdrew from the Trans-Pacific Partnership. He has continued to oppose global trade and cooperation with a growing intensity throughout his four years in office. Simply put, he has shown nothing but contempt and blame for trade and multilateral cooperation.

Trump’s continuous attacks on the World Trade Organization (WTO) and his recent withdrawal from the World Health Organization in the midst of the global pandemic are among his most egregious actions. From the outset of his administration, he imposed unilateral tariffs and trade sanctions that are legally questionable under U.S. and international law. He resorted to tariff wars and a broad range of other trade and investment threats against a large number of countries.

His default policy actions are to complain, reject and withdraw. He has complained about NAFTA, NATO, the European Union, the United Nations, the International Criminal Court, the International Court of Justice, and the WTO, among others. He has withdrawn from the Iranian nuclear deal, a bilateral agreement with Iran, UNESCO, the UN Human Rights Council, and the Open Skies Treaty. The Trump administration’s aggressive use and weaponization of treaty termination has never previously occurred. His foreign policy doctrine can very well be labelled “Rejection and Withdrawal.”

These actions or threatened actions concerning trade and treaty relations are consistent with Trump’s “America First” world view, which championed American isolationism in the 1930s. This policy from the ashes of an unfortunate era has only made the United States less safe today. It has placed the United States in opposition to other nations trying to confront global issues collectively.

Trump’s foreign policy and trade actions have not led to anything good. They have only hurt the U.S. economy, farmers, and workers. For example, his agricultural tax subsidies to offset export loses to farmers have proven gravely ineffective and his tariffs have not increased manufacturing jobs in the United States. Exports have been dramatically reduced. His use of export and investment controls have significantly hurt technology and telecommunication firms.  Global supply chains remain global and reshoring is not happening. His unending and ever-growing animosity toward China, supercharged by his claims relating to the origins of the global pandemic, has now become his principal 2020 reelection strategy. This continues in light of the racial unrest within the United States, which the president further heightened by his astounding militarized response.

This book is a compilation of my writings as an observer of Trump’s trade policies over the last four years (and a few earlier ones). These have appeared in various academic journals and on my blog “Global Trade Relations.” In particular, I focus on the legal aspects of Trump’s protectionist policies, which hearken back to the 1930s but in many ways are much worse than those policies. Donald Trump clings to the delusion that bilateral pressure will rebalance trade in favor of American industry. Trump’s trade actions raise the issues of constitutional law and the interrelationship of public international law and U.S. constitutional law as matters of paramount concern today. The Trump administration’s actions have also given rise to a new aggressive and proactive federalism to counteract erratic, incoherent, and failed policies (e.g., trade, immigration, climate control, and the COVID-19 pandemic).

If you think about it, the world of the 1930s was much less economically or politically interconnected. If the earlier protectionist, mercantilist and unilateral policies led to global economic chaos and then war, what can today’s actions lead to in a time of nuclear weapons and billions more people involved in global commerce?

Trump’s policies represent an aggressive attack on the post-World War II international order. Most notably, Trump’s attack on the judicial system of the WTO, as a derogation of U.S. sovereignty, is hugely baffling. The WTO’s dispute resolution system was an American initiative that reflected the core American belief in a rules-based global system and the American value of relying upon litigation to provide fair judicial determination of conflicts. Trump’s policies reflect his reliance on unilateral actions, raw power politics, the law of the jungle, bluster, and threats. This has only led to needless stress on the U.S. and global economies.

Trump’s attacks on the existing international system have significantly diminished the standing of the United States in diplomatic relations with our friends and allies and has only emboldened others to take unilateral actions. Consequently, over the last four years, the United States has failed to formulate viable foreign policies and strategies to tackle the multitude of global problems confronting its national interests and security.

In the run up to the fall 2020 presidential election, I offer this book as a primer on Trump’s trade policies and his ferocious and unending attacks on both the U.S. legal system and the rules-based international system and its institutions.

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Can Ukranians Seek Justice in U.S. Courts? …. Yes.

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War Crimes —   Any remedies for Ukrainians in U.S. courts? Can they sue in federal courts for compensation? Really interesting questions. Not discussed very much if at all. Such litigation raises a host of complex issues of sovereign immunity, human rights, federal jurisdiction, foreign affairs, national security, sanctions, frozen assets, presidential authority, among others. But the answer may very well be ‘yes.’ The foreign Sovereign Immunity Act, the Alien Tort Statute and other federal legislation come into play. These statutes may well provide standing by aggrieved individuals and relatives against both Russia and individual Russians for acts of torture, terrorism and violation of international human rights. Yes, a lot of work for litigators and international lawyers. This highlights the often overlooked role of domestic courts as an instrument of enforcement of customary international law, especially war crimes and violation of human rights. This is all for the good. I’m sure this will be explored many times over for years to come.

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The U.S. Should Finally Accept the International Criminal Court — Long Overdue, Especially Now After Ukraine.

 

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Really good piece in the Washington Post arguing for the U.S. to finally accept the International Criminal. Here are some highlights.  

  • The United States in general, not just the Republican Party, has long had a fraught relationship with the ICC. Indeed, some elements of the Biden administration, notably the Pentagon, remain wary of engaging with it.
  • Congress not long after passed the American Service-Members’ Protection Act — a law known to some of its critics as the “Hague Invasion Act,”
  • Is it hypocritical, under these circumstances, for the United States to embrace a court it has so aggressively rejected in the past? Perhaps so. But that doesn’t change the fact that the United States is surely right to support accountability for the horrific crimes being committed in Ukraine.
  • There is no getting around the charge of hypocrisy. To repair its image, the United States should, in future conflicts, be more transparent and aggressive about its own investigations into alleged crimes by its military personnel, making clear that it respects the ICC’s values if not its jurisdictional authority.

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Ukrainian Sanctions — Is Global Commerce Changed Forever?

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The question of the day is — Do the historical use of trade sanctions by the U.S. portend a new world for global commerce? The answer is not clear. A new article in the New York Times today discusses whether or not the use of sanctions is a transformational event for global commerce. It makes a large number of good points but does not come to firm conclusions. I think the answer is still unclear. Here are the major points made by the authors.

  • When the Cold War ended, governments and companies believed that stronger global economic ties would lead to greater stability. But the Ukraine war and the pandemic are pushing the world in the opposite direction and upending those ideas.
  • Important parts of the integrated economy are unwinding. American and European officials are now using sanctions to sever major parts of the Russian economy.
  • The moves reverse core tenets of post-Cold War economic and foreign policies forged by the United States and its allies that were even adopted by rivals like Russia and China.
  • “What we’re headed toward is a more divided world economically that will mirror what is clearly a more divided world politically
  • Opposition to globalization gained momentum with the Trump administration’s trade policies and “America First” drive. Putin’s invasion of Ukraine has brought into sharp relief the uncertainty of the existing economic order.
  • The result of all the disruptions may well be a fracturing of the world into economic blocs, as countries and companies gravitate to ideological corners with distinct markets and pools of labor, as they did in much of the 20th century.
  • The economic impact of such a change is highly uncertain. The emergence of new economic blocs could accelerate a massive reorganization in financial flows and supply chains.
  • The war has set in motion “deglobalization forces that could have profound and unpredictable effects.”
  • “Your interdependence can be weaponized against you,” said Dani Rodrik, a professor of international political economy at Harvard Kennedy School. “That’s a lesson that I imagine many countries are beginning to internalize.”
  • The Ukraine war has “probably put a nail in the coffin of hyperglobalization.”
  • China and, increasingly, Russia have taken steps to wall off their societies, including erecting strict censorship mechanisms on their internet networks, which have cut off their citizens from foreign perspectives and some commerce. China is on a drive to make critical industries self-sufficient, including for technologies like semiconductors.
  • For decades, prominent U.S. officials and strategists asserted that a globalized economy was a pillar of what they call the rules-based international order, and that trade and financial ties would prevent major powers from going to war.
  •  Mr. Biden has continued many Trump administration policies aimed at delinking parts of the American economy from that of China and punishing Beijing for its commercial practices.

   “Sanctions and Impact on the Future of Global Commerce. New York Times (March 23, 2022). 

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International Law and Russia’s Invasion of Ukraine — Legal Action (ICJ and ICC) and Economic Sanctions — Complementary and Historical.

 

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Russia’s invasion of Ukraine has been met with historical challenges to it in the International Court of Justice and the International Criminal Court (and in the General Assembly).

Ukraine filed and action in the International Court of Justice and it is currently deciding Ukraine’s request for provisional measures. Of course, Russia did not appear. Thirty-nine referrals have been made to the International Criminal Court.  The ICC prosecutor has indicated that he is moving forward on the issue of war crimes against individuals. Indeed, special tribunals may also be established against Russia. 

The Genral Assembly (after Russia’s veto in the Security Council) acting under the ‘Uniting for Peace Resolution’ referred the matter to the General Assembly.  It promptly and almost unanimously condemned Russian actions and called for unconditional withdrawal of Russian forces.

To me, this legal offensive is complementing the economic sanctions imposed on the Russian Federation by the United States and many others — very broad and very prompt. 

The international legal system is working and is an historical first — in confronting so promptly such grievous and gross violations of international law.

….. “International Law Goes to War in Ukraine.” Foreign Affairs (March 15th, 2022).

 

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Biden’s Trade Policies — More Aggressive than Trump’s?

cwr_v8n1_07.pdf (yiil.org)

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Biden’s Trade Policies — One Year In — Same as Trump’s? More Aggressive?

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[Excerpts from a forthcoming article, now on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3991157  Also available as draft at Click Here. ……………

The big question is the following: Is the Biden trade policy different from the Trump chaos? 

My answer is “no.” I consider Biden’s trade policy to be Trump’s without the tweets. They both rely on unilateral measures and broaden protectionist ones.  In fact, Biden not only relies upon Trump’s actions but also has broadened them.[1] 

Trade issues have reemerged during the past few months as high-priority domestic and foreign policy issues for the Biden administration. This is especially true for the situation regarding trade with China and how this relates to U.S. domestic economic and national security issues. Let’s look at what Trump did, what Biden has done so far, and the challenges ahead. 

Not much change has been made in trade policies between President Trump and President Biden. In fact, Biden, relying on Trump’s actions, has broadened them. A slight change in tune has occurred: a little more reconciliation with Europe and international organizations. However, it is extremely difficult to identify any significant difference concerning China, Russia, or Iran. Has Trump’s America First policy morphed into Biden’s America First or Workers trade policy? 

The Biden administration is confronting various trade challenges: removing Trump’s tariffs that are still in place; joining the revised TPP, especially now that China and South Korea have indicated their interest in joining; reengaging with the WTO, especially over the dispute resolution system; enforcing the Phase One Agreement with China, particularly the purchase requirements; and more forcefully confronting China’s policies concerning state-owned enterprises and government subsidies. Other issues relating to trade are pending and growing in importance—for example, climate change, a carbon tax, environmental issues, and pandemics. 

What specifically must be done by the Biden administration? A great deal. That’s another story. 

 ………………………………………………….

[1] I have written several journal articles recently on Trump’s trade policies and early trade actions by President Biden. Malawer, Trump, Litigation and Threats: From Queens to the World Stage. China and WTO Review 209 (No. 1) (2021). Available at http://cwr.yiil.org/home/pdf/archives/2020v6n1/cwr_v6n1_08.pdf; Malawer, Biden’s Trade Policies — Recalibrated, More Focused, and a Bit Concerning.7 China and WTO Review 391 (No. 2) (2021) Available at http://cwr.yiil.org/home/pdf/archives/2021v7n2/cwr_v7n2_07.pdf; Malawer. Biden –National Security, Law and Global Trade: Less Subterfuge and More Strategy in the New Era of Crisis. China and WTO Review 185 (No. 1) (2021). Available at http://cwr.yiil.org/home/pdf/archives/2021v7n1/cwr_v7n1_09.pdf 

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Josh Hawley, Harding and Hoover — Trade & Back to the Future — Not a Good Idea.

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Recent opinion piece by Josh Hawley. My take. He’s one of the most protectionist and trade xenophobic today. He make former U.S. presidents Harding and Hoover look mighty good. Here are some of his views as contained in today’s New York Times piece:

….We liberalized and expanded trade relations with China under the delusion that it could be influenced into becoming a peace-loving democracy. We ceded more and more of our national sovereignty to multinational organizations like the World Trade Organization, and supported China’s membership to that body.

…. We need to fundamentally restructure our country’s trade policy and decouple our security and safety from the profit-seeking of multinational corporations. 

… Under this plan, officials at the Department of Commerce and the Department of Defense will identify goods and inputs they determine to be critical for our national security and essential for the protection of our industrial base. These goods would then become subject to a new local content requirement: If companies want access to the American market for these critical and essential goods, then over 50 percent of the value of those goods they sell in America must be made in America. Companies will have three years to comply, and can receive targeted, temporary waivers if they need more time to reshore production. In effect, the legislation applies the domestic sourcing principles of the Buy American Act — a law that governs federal government procurement — to the entire commercial market.

… When it comes to our most critical goods, this “majority-made” standard is just common sense and harder to game than more complicated rules. And the requirements of this standard will be enforced with a compliance mechanism that closely mirrors one of the nation’s oldest trade remedy regimes: anti-dumping. Under my proposal, domestic producers can petition the U.S. International Trade Commission if they suspect that corporations or importers have violated the local content requirement, and the secretary of commerce can take enforcement actions such as civil penalties following an investigation to ensure the new standards are met.

….I’ve previously called for the abolishment of the World Trade Organization to ensure that the United States can safeguard its economic sovereignty. Regardless of how this proposal affects existing trade agreements. 

….Local content requirements can help reverse our dependence on foreign nations both by discouraging multinational corporations from relying on fragile global supply chains, and also encouraging them instead to build productive capacity in the United States. 

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The U.S. Strategy as to U.S. – China Trade Relations — Is Biden Same as Trump But without the Tweets? We’ll See.

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The United States Trade Representative Katherine Tai recently delivered remarks at the Center for Strategic and International Studies (CSIS) outlining the Biden-Harris Administration’s new approach to the U.S.-China bilateral trade relationship. Not clear how different Biden’s trade policy is from Trump’s concerning China. We’ll see, hopefully it will be. Here’s my summary of those remarks.

  • I have said this before and I will continue to say it: the U.S.-China trade and economic relationship is one of profound consequence.  As the two largest economies in the world, how we relate to each other does not just affect our two countries. It impacts the entire world and billions of workers.
  • This bilateral relationship is complex and competitive.  President Biden welcomes that competition to support American workers, grow our economy, and create jobs at home.  
  • He believes we need to manage the competition responsibly – and ensure that it is fair.  
  • We will start a targeted tariff exclusion process.  We will ensure that the existing enforcement structure optimally serves our economic interests.  We will keep open the potential for additional exclusion processes, as warranted. 
  • We continue to have serious concerns with China’s state-centered and non-market trade practices that were not addressed in the Phase One deal.  As we work to enforce the terms of Phase One, we will raise these broader policy concerns with Beijing.  
  • And we will use the full range of tools we have and develop new tools as needed to defend American economic interests from harmful policies and practices.
  • Finally and critically, we will continue to work with allies to shape the rules for fair trade in the 21st century, and facilitate a race to the top for market economies and democracies.
  • We focused on dispute settlement cases at the WTO.  We brought 27 cases against China, including some I litigated myself, and through collaboration with our allies.  We secured victories in every case that was decided.  Still, even when China changed the specific practices we challenged, it did not change the underlying policies, and meaningful reforms by China remained elusive.  
  • It launched an investigation focused on China’s forced IP and technology transfer policies – longstanding and serious problems.  This led to substantial U.S. tariffs on imports from China – and retaliation by China.  Against this backdrop of rising tensions, in January 2020, the previous administration and China agreed to what is commonly referred to as the “Phase One Agreement.”  
  • Every steel plant that shuttered left hundreds of workers without livelihoods.  It also left communities reeling, as small businesses dependent on plants also closed their doors and blighted buildings brought down real estate values. 
  • We see the impact of China’s unfair policies in the production of photovoltaic solar cells.  The United States was once a global leader in what was then an emerging industry.  But as China built out its own industry, our companies were forced to close their doors.  
  • U.S. agriculture has not been spared either.  While we have seen more exports to China in recent years, market share is shrinking and agriculture remains an unpredictable sector for U.S. farmers and ranchers who have come to rely heavily on this market.  China’s regulatory authorities continue to deploy measures that limit or threaten the market access for our producers – and their bottom line.  
  • We also see troubling dynamics playing out today with the semiconductor industry.  In 2014, China issued an industrial plan to announce, “the goal of establishing a world-leading semiconductor industry…by 2030.”  Reportedly, China has already spent at least $150 billion on this effort, with more on the way.  Its intentions are clear, just as they were with steel and solar.  
  • And we will also directly engage with China on its industrial policies. Our objective is not to inflame trade tensions with China.
  • But above all else, we must defend – to the hilt – our economic interests.  
  • I have been working to strengthen our alliances through bilateral, regional, and multilateral engagement.  And I will continue to do so.

Tai’s Comments at CSIS on US-Chia Trade Strategy (October 4, 2021).

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