China is the obvious target of the Act. Populist politicians in the U.S. in recent years have relied on criticizing China in the hopes of appealing to citizens who believe that the primary cause of high unemployment rates in the U.S. is the migration of manufacturing jobs overseas.² The problem with the Act, however, is that it fails to comply with the U.S.’s WTO obligations, and will most likely be successfully challenged by China if it ever becomes law. The Act attempts to classify an undervalued currency as a “subsidy” to exporters. The Agreement on Subsidies and Countervailing Measures (“SCM Agreement”), agreed to at the Uruguay Round of WTO negotiations provides the framework for the permissible imposition of CVDs.³ Section 1.1 of the SCM Agreement outlines four scenarios which are classified as subsidies: 1) the direct government transfer of funds or liability guarantees (i.e. loan guarantees); 2) tax credits; 3) a government supplying or purchasing certain goods or services; and 4) a government acting through an intermediary to accomplish one of 1 to 3. However, a government subsidy alone is not enough to merit the imposition of CVD; the subsidy must be shown to be specific to a particular firm or industry. Simply put, currency manipulation does not fall into any of the categories which would qualify it as a subsidy, nor is it specific enough to warrant CVDs.

The approach adopted by the U.S. Senate is unfortunate. CVDs are designed as a way for governments to protect their domestic industries, particularly on an interim basis, when other WTO Member States are providing local firms with illegal subsidies. Currency manipulation is not a prohibited form of subsidy because while an undervalued currency will help exporters, it will generally be detrimental to companies which rely on imports. Moreover, most countries (including the U.S.) engage in currency manipulation from time to time through the adjustment of interest rates or quantitative easing measures. If CVDs were permissible simply because a currency was undervalued, the result would be an increase of unnecessary trade wars which are contrary to the spirit and purposes of the WTO. The WTO provides the framework for countries to engage in trade based on the mutual respect of its laws; the WTO also provides a mechanism whereby its members can peacefully resolve their disputes through adjudication, without the need to resort to the retaliatory imposition of tariffs. The Currency Exchange Rate Oversight Reform Act of 2011 undermines these purposes by flagrantly violating the rules. The U.S. has legitimate trade grievances against China, such as the systematic non-respect of intellectual property rights and certain prohibitions on U.S. firms operating in China outside the context of a joint venture. The method for remedying these grievances is not through unilateral hostile action but through direct negotiations with the Chinese government and within the framework of the WTO’s dispute resolution body.

Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole.  On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.

The terms of the plea agreement are severe.  Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit.  In addition, while in U.S. custody, he has agreed to submit to interviews “whenever and wherever requested” by U.S. law enforcement officials and to answer truthfully during these interviews, to be conducted in the absence of legal counsel, on pain of prosecution for perjury.  Mr. Khadr also agreed to call only approved witnesses to his sentencing hearing, and confirmed his understanding that the U.S. Government may dispose of the physical evidence adduced at trial.[3]  He has also pledged to give all proceeds in connection with any publication or dissemination of information relating to the conduct alleged on his charge sheet to the Government of Canada.

In his last statement before the Commission, Mr. Khadr said he hoped that his jurors would consider the fact that a U.S. interrogator threatened to have him gang-raped to death.[4]  Meanwhile, his lawyers tried but failed to persuade the Military Commission’s jury panel that certain concessions should be made to the fact that Mr. Khadr was 15 at the time of ‘perpetration.’[5]

Notwithstanding its revocable offer to give Mr. Khadr’s prospective application for repatriation favourable consideration, the Government of Canada has done nothing to protect him from the injustices he continues to suffer, while in U.S. custody.  To the contrary, according to the Supreme Court of Canada (SCC),[6] the Canadian Government, by interrogating him while he was being improperly treated by U.S. officials, has breached its human rights obligations and Mr. Khadr’s rights under the Canadian Charter. This breach of Mr. Khadr’s rights will continue until the Government provides a remedy.  Lamentably, more than 9 months after the SCC’s decision, the Government has yet to provide what it is required to provide.[7]  The Government’s current position amounts to an endorsement of the highly flawed ‘justice’ system to which Mr. Khadr has been subjected and casts significant doubt on the Government’s respect for its human rights obligations and the rule of law.   

[2]http://beta.images.theglobeandmail.com/archive/00978/Read_diplomatic_mem_978462a.pdf

[3] On the quality of the evidence adduced at Mr. Khadr’s trial, see: http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/03/25/lt-cmdr-william-c-kuebler-and-rebecca-s-snyder-the-truth-about-child-soldier-omar-khadr.aspx

[4] http://www.theglobeandmail.com/news/politics/verdicts-in-khadr-is-ottawas-problem-now/article1779878/page2/  See also: http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/5/0/0/0&contentId=2018

[5] Though the United States and Somalia are the only two states not to have ratified or acceded to the UN Convention on the Rights of the Child. The U.S. has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts.

[6] Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44

[7] http://www.theglobeandmail.com/news/opinions/a-chance-to-do-the-right-thing/article1452503/

However, when an apology comes from the government for a wrong committed to individuals, the reaction tends to be much less gracious and questions of legality quickly arise. U.S. Secretary of State Hillary Clinton recently apologized to the government of Guatemala for the intentional infection of Guatemalan prisoners and handicapped residents with syphilis and gonorrhea as part of a medical research program conducted from 1946 – 1948, where at least hundreds of people were directly infected. According to the New York Times, the researcher who discovered the report claims that the Guatemalan project was co-sponsored by the U.S. Public Health Service, the NIH, the Pan-American Health Sanitary Bureau (now the Pan American Health Organization) and the Guatemalan government. Questions of state legality includes a new twist under international law: how should the U.S apology be handled and is there an obligation for further reparations?

While a trend has developed for an international legal system which imposes positive obligations on states, the first draft articles on Responsibility of States for Internationally Wrongful Acts were only recently passed by the UN General Assembly in 2001. Still, the General Assembly had recommended that the International Law Commission review State Accountability since 1949. Thus, there is 50 years of experience and dozens of documents commenting on many areas that touch on State Responsibility. That State Responsibility is more complex in international law than municipal (and this is not to say that it is a cut and dry matter at the municipal level) is at least partially due to the sui generis classification of its character and to the complexities of the relationships of those involved.

Article 3 of the Draft Articles points to the sui generis nature of State Responsibility. It reads that the “[c]haracterization of an act of a State that is internationally wrongful is not affected by […] the characterization of the same act as lawful by internal law”. Instead of relying on traditional notions of tort or delictual claims, or fault and risk, the act of a State must instead contravene an international norm. Here, the U.S.’s actions clearly breached Article 7 of the International Covenant on Civil and Political Rights, one of the Helsinki declarations, which declares that no-one shall be subjected without his free consent to medical or scientific experiments. Although not technically a legal instrument, the Helsinki Declarations are often evidenced as customary international law. Thus, despite the sui generis character of State Responsibility the act in question could still be considered a breach of an international obligation.

However, the complexities arising from the relationships between those involved could still be determinative in whether an international obligation to provide reparation would be imposed. While the President of Guatemala, Alvaro Colom, has reportedly declared it to be a “Crime Against Humanity”, newspapers have reported that the American mission had full consent from the Guatemalan government to conduct its research. Article 20 of the Responsibility of States for Internationally Wrongful Acts precludes wrongfulness of an act towards a State where the State claiming the injury consented to the act. It would be essential to know the details of the permission granted – did Guatemalan officials give permission for the unlawful syphilis infections or did they give permission for U.S officials to conduct a medical study that they believed would cure those already infected? These questions will be crucial in determining the breach and reparations.

In any case, individuals have rights under human rights law. Article 33.2 of the Responsibility of States for Internationally Wrongful Acts explicitly states that individuals are within the scope of international obligations even if the obligation to the state has not been breached.

Finally, back to the original question posed – is an apology sufficient or should there be monetary compensation for the victims? Article 31 of the Act prioritizes admissible reparations. Restitution is ideal, compensation comes second and satisfaction is the least ‘satisfactory’ reparation available.

The U.S government has apparently mandated an investigation into current medical research in order to ensure that it conforms with ethical standards. This move would fit with the general preference by the International Court of Justice (ICJ) of cessation to compensation (LaGrand (Germany v. United States of America, Merits, [2001] I.C.J ).

Furthermore, the New York Times reported that there could be “more than 40 other studies where intentional infection was carried out with what we would now consider completely inadequate consent, in the United States.” This might be the most insightful factor when trying to determine what further action will be taken by the US government. With so many potential future claims, the United States will likely choose to fulfill its other obligations of reparation before monetary compensation.

The victims of Tuskegee, a related situation that took place in Alabama, in which the lead American doctor in the Guatemalan scandal also participated, demonstrates the degree of resistance the government has in paying compensation for such claims. However, the Star claims that victims of Tuskegee have quietly been given medical treatment. Similarly, in international law a State in breach of its international obligations may be required to offer reparation in kind as opposed to monetary compensation (Chorzow Factory (Indemnity) Case (1928) P.C.I.J (Ser.A.).

Once the victims have been properly identified, it is conceivable that they, and not the Guatemalan government, could demand similar reparations in kind for their health needs. While the U.S. is complying with its international obligations by investigating further breaches of ethical standards, a form of reparation that deals with the direct needs of the victims would not only be justifiable under international law, but also preferable.

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts an old fashioned “slicking”. But as any eighth-grader who gets caught TP-ing someone’s house because my friend Alan can’t keep his mouth shut knows, there must be a time for cleaning up as well. Unfortunately, international law provides few answers about who is responsible for cleaning up international spills.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter explicitly excludes any “wastes derived from the exploration and exploitation of sea-bed mineral resources”. As a result, it will likely not apply to oil spills. The UN Convention on the Law of the Sea is more promising. It specifies at article 194 that “states shall take […] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source”, and specifically, “pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil”. However, for the U.S. oil spill UNCLOS is of limited value because America has not ratified the treaty. Instead President Reagan in 1983 directed government agencies to treat most parts of the treaty as customary law.

Beyond the realm of international treaties, much of the regulation of the offshore oil industry is carried out by special national regulators. These include the U.S.’s Minerals Management Service (MMS), the Norwegian Petroleum Directorate, Britain’s Health and Safety Executive, and Australia’s Department of Minerals and Petroleum Resources. In Canada the Canada-Newfoundland Labrador Offshore Petroleum Board (CNLOPB) regulates the industry, since Newfoundland-Labrador is the only province where offshore drilling currently occurs.

National offshore oil regulators do little to coordinate standards with one another. They lack even uniform sex and drugs corruption standards. A prominent example is the absence of coordinated regulations requiring the presence of an “acoustic switch” on offshore rigs. This is a failsafe device which can be remotely (and reliably) used to close off a gushing well on the sea floor in the event of an accident – such as that on the Deepwater Horizon rig. Acoustic switches are required on rigs in Norway, Brazil, and Canada, and they are present in British operations in the North Sea. Yet in a 2003 report to the MMS, requiring acoustic switches was not recommended because “they tend to be very costly”. As a result, acoustic systems are not present on American rigs.

The lack of coordination between oil regulators stands in stark contrast to the kind of international cooperation seen in other industries. IOSCO, the International Organization of Securities Committees, allows national (and provincial) securities regulators to unify policy approaches, while central banks are currently negotiating their third set of global banking standards through the Switzerland-based Basel Committee.

With the ever-increasing global demand for oil, offshore spills affecting multiple countries will likely be inevitable. Some day China will catch up with the pros in this respect, leaving behind their current small-town spills. But if oil-producing countries and their national regulators don’t do more to agree on standards for preventing and cleaning up international spills, then the international dimension of spills will remain one-sided. In that respect, perhaps all of the offshore oil producers will remain amateurs.

BUSH LEAGUE

Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan.[2] “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.”[3] Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.

“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.”[4] A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies[5] to performing “enhanced interrogations” – a.k.a. torture[6] – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.[7]

This growing involvement in core military operations has sparked debate over the role, status and accountability of private contractors under international humanitarian law (IHL). In her contribution to the International Review of the Red Cross, Lindsey Cameron suggests that two incidents – to which I shall add a third – have driven the discourse.[8] First, the death of four employees from Blackwater Worldwide, a private security company now known as Xe Services, and the ensuing attack on Fallujah in 2004. The use of “overwhelming force”[9] suggests the contractors were carrying out an undeniably military function, and should be treated as combatants under IHL. The second and third incidents involved allegations of torture by CACI International of Abu Ghraib detainees and the 2007 shooting of 17 Iraqi civilians by Blackwater employees.

In effect, PMSCs are able to act outside of the law. Contractors performing military functions in armed conflicts are inter alia vulnerable to being captured and denied protection, just as they are capable of committing de facto war crimes. It is unacceptable that crimes could be committed under international law and neither an individual nor a government could be held accountable.

In dealing with PMSCs, international humanitarian law’s binary categories and status determinations (“civilian” or “combatant”) are problematic; every individual must be either a civilian or a combatant. Though clear-cut rules and mutually exclusive categories facilitate effective and coherent implementation of IHL, they also create gaps that leave the law paralyzed when it is confronted with anomalous entities that do not fit cleanly into one of the categories.

The question remains: are PMSCs combatants? Their status determination is critical because it affects whether or not an individual can (a) be targeted, (b) participate in hostilities, and (c) be prosecuted for breaches of the laws of war (as they are enshrined in the Geneva Conventions and their Additional Protocols).

Cameron argues that the status of PMSC employees hinges on either their integration into a state’s armed forces under Art. 4A(1) of the Third Geneva Convention (GCIII) or Art. 43 of Protocol I, or their qualification as “militia” under Art. 4A(2) GCIII. Meeting the first requirement depends on the internal laws of the state, while the second requires that conditions (a)-(d) of Art. 4A(2) GCIII be meet by “the group as a whole.”[10] It is challenging however, to determine the status of private contracting firms in which some members perform peaceful functions (such as feeding, housing and clothing the troops) while other members take direct part in hostilities.

The outsourcing of military functions is a modern day reality. “It is a fact that currently private contractors are the equivalent of an American Express card … the U.S. military literally can’t go to war without them,”[11] notes David Isenberg, an adjunct scholar at the Cato Institute.

“The problem is less one of the fact that outsourcing is occurring … but the issue is how it is managed,”[12] suggests Stanger. Private contractors when performing combatant functions should be held to the same humanitarian law standards as parties to the conflict. Responsibility should furthermore fall on the contracting government to manage the dissemination of IHL to ensure that any individual likely to be engaged in combat is aware of the existing legal framework that should guide his actions. We cannot continue to let private military and security contractors fall through the cracks in IHL.

[2] Based on data from the U.S. Congressional Research Service. Thomas Friedman, “The Best Allies Money Can Buy” The New York Times (3 November 2009), online: < http://www.nytimes.com/2009/11/04/opinion/04friedman.html>.

[3] Friedman, supra note 2 at 1.

[4] James Glanz, “Contractors Outnumber U.S. Troops in Afghanistan” The New York Times (1 September 2009), online: < http://www.nytimes.com/2009/09/02/world/asia/02contractors.html?_r=3&scp=1&sq=Contractors%20Outnumber%20U.S.%20Troops%20in%20Afghanistan&st=cse >

[5] Friedman, supra note 2 at 1.

[6] Ibid.

[7] James Risen and Mark Mazzetti, “C.I.A. Said to Use Outsiders to Put Bombs on Drones” The New York Times (20 August 2009), online: < http://www.nytimes.com/2009/08/21/us/21intel.html >.

[8] Cameron, supra note 1 at 574.

[9] Ibid.

[10] Cameron, supra note 1 at 583.

[11] David Isenberg, “Contractors and Cost Effectiveness” The Huffington Post (23 December 2009), online: < http://www.cato.org/pub_display.php?pub_id=11083 >.

[12] Mickey Edwards, “So who’s in charge?” The Boston Globe (25 October 2009), online: < http://www.boston.com/ae/books/articles/2009/10/25/so_whos_in_charge/ >.