THE WORLD BANK AND ITS DECISIONS—UNDER QUESTION

In general, the World Bank (”WB”) provides different types of funding for selected projects, aiming to push extreme poverty to no more than three percent by 2030, and to promote shared prosperity and greater equity in the developing world. The WB has five organizations, one of which is the International Finance Corporation (”IFC”). The IFC has the task and commitment to end extreme poverty by 2030 and boost shared prosperity—in every developing country. Yet recently, the IFC has been considering a potential finance investment in the twenty-two billion dollar company Rio Tinto’s project of gold mining in Mongolia. Is there not a conflict of commitments here?

http://www.worldbank.org/

INTERNATIONAL CHAMBER OF COMMERCE SURVEY DISCLOSES OBSTACLES IN PRACTICE FOR BUSINESSES TRADING ACROSS BORDERS

An International Chamber of Commerce (“ICC”) survey highlighted common impediments to cross border trade for governments and policymakers around the world to take into consideration. This will assist decisions related to enabling the flow of goods across borders, thereby contributing to global economic growth. Other instruments used in the survey include the ICC Customs Guidelines and the ICC Guidelines for Traders, launched in 2013.

http://www.iccwbo.org/

THE WORLD TRADE ORGANIZATION’S AGENDA SCHEDULED FOR FEBRUARY 7, 2014 IN RELATION TO ITS DISPUTE SETTLEMENT BODY

In few days, the World Trade Organization (“WTO”) will discuss its dispute settlement body (“DSB”) and the WTO’s surveillance of implementation of recommendations the DSB adopts. As a second priority, the WTO will also consider the U.S. Dumping and Subsidy Offset Act of 2000. After addressing production and security concerns in the E.U. and Ukraine, the meeting should conclude with China and its countervailing and anti-dumping duties on grain-oriented flat-rolled electrical steel from the U.S.

http://www.wto.org/

UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT HAILS INTERNATIONAL YEAR OF SMALL ISLAND DEVELOPING STATES, URGES MORE EFFECTIVE STEPS IN THEIR FAVOR

On the 21^st of February, the United Nations Conference on Trade and Development (“UNCTD”) discussed issues related to the Small Island Developing States (“SIDS”) and their need of international support toward building resilient economies. Such countries face difficulties with economic development due to their limited size, remoteness from large markets, and vulnerability to economic and natural shocks. In the last resolutions for SIDS, adopted in September 2010 and December 2011 respectively, the General Assembly and the Economic and Social Council called for an unprecedented effort to consider needed improvements and additional measures more effectively to address the particular vulnerabilities and development needs of SIDS.

http://unctad.org/en/pages/home.aspx

SIGNIFICANT PENSION REFORMS IS CRITICAL IN EMERGING EUROPE AND CENTRAL ASIA

The International Development Association (“IDA”) discussed implications of an increasing elderly population emerging Europe and Central Asia, at the same time as the working population is decreasing. A solution within a long-term perspective may include a reset of the pension system, an increase of the retirement age, and support for a longer period of working. Moreover, proposals such as automatic enrollment in savings schemes could lead to a possible solution with regard to workers supplementing their retirement income with their own savings.

http://www.worldbank.org/ida/

By Myriam Denis

Great turnout for our event at the Bancroft hotel tonight!

7:26-Symposium editors outline to the audience various key points of the history of Berkeley Journal of International Law.

7:31-A Berkeley graduate of political science and philosophy presents highlights from Steven Smith’s career in international law.

7:34-Words of wisdom: “When you work on hard cases with someone, you learn a lot about that person”

7:39-”Steve has a very creative playful mind”

7:45-Steven Smith takes the stage.

7:48-Steven Smith, recipient of the Award for Outstanding Contributions to International Law, thanks his friends and family.

7:53-Steven Smith explains how he got to create Berkeley Journal of International Law’s predecessor.

7:59-Interesting fact… when Steven Smith was at Boalt Hall, tuition was… wait, try to guess… 500$/semester!

8:02-”Berkeley Journal of International Law” is one of the top10 journals of international law in the world.

8:10-Steven Smith describes his career in international arbitration.

8:14-Steven Smith mentions international arbitration opportunities in Dubai, Amsterdam, Singapore, Perth, and other international cities.

8:19-On May 9th, the Miller Institute will honor other recipients of prestigious awards of the field of international law at Berkeley.

8:20-Steven Smith goes back on stage to receive his award. Congratulations!

By Jessica Caplin and Myriam Denis

In honor of Prof. Stefan A. Riesenfeld, BJIL is presenting an exciting panel discussion today on global developments in privacy law. Panelists will consider topics including privacy law in Brazil, China, and other emerging markets; the sources and norms of comparative privacy law; and the relationship of privacy to security and free expres­sion in the global context.

Our distinguished speakers are:

•  Colin Bennett, Professor of Political Science, University of Victoria
•  James DeGraw, Partner, Ropes & Gray LLP, San Francisco and Hong Kong
•  Michelle Dennedy, Vice President and Chief Privacy Officer, McAfee Inc.

•  Danilo Doneda,  Professor, Fundação Getúlio Vargas-Rio de Janeiro, and Member, Brazil Ministry of Jus­tice Committee on Electronic Commerce

Moderated by Chris Hoofnagle, Lecturer-in-Residence, Berkeley Law School

12:45–The room is filling up quickly with people wolfing down one of three delicious sandwich options from Gregiore.  Everyone is waiting anxiously for the panelists to arrive and the fun to begin.  The room still smells vaguely of the property class that came just before this.

12:50–The panel is about to start!  A hush falls over the crowd as the panelists try to locate their seats.  Lacking: some intro-music, along the lines of Eye of the Tiger.

12:52–Huge thank yous from the BJIL EiCs to the Miller Center at Berkeley Law.  Also a reminder that there is a reception at 6:30pm.  A huge thank you to the BJIL Symposium team for putting on an incredible event. [Applause].

12:53–Berkeley Law has one of the best privacy faculties in the nation, chief among them our moderator today, who has just taken the podium.

12:57–Moderator Hoofnagle is introducing our panelists, who range from academics, to practitioners, to government employees.  They may not necessarily be speaking on behalf of their government or company.

1:00–Hoofnagle-please discuss privacy in Canada (Colin Bennett) and Brazil (Danilo Doneda).  Bennett: international organizations currently involved in the privacy regulation were established before the internet was invented.  It’s not as though new institutions arose to respond to the global internet.  Re: Canada–In the late 90s, Canada passed a general data protection law at the federal level as a result of pressure from the EU.  US approach has been more pragmatic.  Each Canadian privacy law is regulated by a privacy commissioner, which is typically an outside agency.  These institutions do not have clear equivalents in the United States, but they like to consider themselves ombudsmen.  In this way, people know where to go when they have a privacy complaint.

1:03–Hoofnagle: what specific rights could a Canadian citizen invoke?  Bennett: there’s been a convergence and harmonization of basic principles–right to legal process, obligations of organizations to keep information secure.  But, there are differences in terms of enforcement and appointment of a “supervisory authority” whose role is solely privacy protection.  In the United States, the regulation of privacy protection is shared among several agencies.  The Canadian system gives an identity to privacy regulation, which is an advantage.

1:05–Hoofnagle: Doneda, can you address privacy in Brazil?  Doneda: Brazil has not enacted a general privacy protection law, though 103 countries had done so as of last May.  Freedom of Brazilian privacy system is developed based in part on US consumer protection laws.  Brazil’s current system is not enough to protect citizens and enterprise.  Brazilian government is working on a data protection bill that has been in the works for at least three years., but it is difficult to predict what will happen to this bill in Parliament.  Brazilian law is aligned with a European continental law system, so it cannot deviate far from European data protection law frameworks.  Thus, the US model is not applicable to Brazil.

1:11–Hoofnagle: Lets talk to our domestic guests and talk about what the Snowden leaks mean.  In some sense, the leaks were great for the privacy community, because there has been more attention and interest.  Dennedy: McAfee and Intel are in a very interesting position as it comes to “Crazy Eddy,” as I like to call him.  My personal opinion is “Enjoy your borscht, sir.”

But in all seriousness, McAfee is a wholly owned subsidiary of Intel with a very tight relationship with our parent company.  Security involves “not big data, but ginormous data,” and you end up getting closer and closer to monitoring and surveillance.  Snowden broke many, many laws and many, many honor codes.  It is not fully clear how much metadata he actually saw.  As a Chief Privacy Officer and legal counsel, I have to make sure how ethical principles are built into the services McAfee offers.  When you realize the amount of data being shared among international agencies, you have to go back to the US Patriot Act.  Whenever there’s a law that only has two people dissenting, you can assume that it’s a terrible law enacted out of panic.  Information targeting human beings can be incredibly helpful and lifesaving, but, the underbelly of that is squashing our rights of free speech and making journalists afraid to out men like Snowden.

1:19–DeGraw: Snowden’s revelations have had a fairly significant impact.  I represent companies in China, and it has changed the conversation a fair amount.  When you’re trying to have a Chinese company and a US company share data, you have to consider whether a government for either country will have a backdoor into the system.  This includes hardware and software.  In the last few years, it has become really easy to do deals with China, because post-Snowden, the attitude is, “well, your government is just as bad as my government.”  The flip side is, here in the United States, there are companies that want to cooperate with law enforcement, and those companies are having great difficulty working with tech companies who view them as essentially state actors.

1:22–How are you handling objections from international partners who don’t want the data in the US or who don’t trust a US AV company.
Dennedy: I wrote a book! [She wrote it with her dad, which is awesome].  We all knew that a Snowden-like revelation was coming.  There’s an idea of privacy-by-design–you can’t disclaim away bad practices.  DeGraw: We have to be cognizant of all the same issues.  You need to prep a client beforehand and tell them what the issues are.  There must be a deep conversation between the engineers on both sides and discuss the government’s model for each nation.  How do you handle the legal and PR issues?

1:30–Hoofnagle: I’m hearing words like “blowback” and scrimmage.   What does this mean for Canada and Brazil?   Bennett:  Regarding Snowden, for as long as I can remember, people have been saying that what this movement needs is a Chernobyl.  Whatever you think about Snowden’s decisions, and we’ll be debating them for a very long time, the revelations he has presented have been the msot important development in privacy in a very long time.  He has exposed some activities that are staggering.  And I cannot remember a time when there has been such sustained focus on privacy and the right of citizens.  We have Snowden to thank for that.  in terms of implications for Canada, because we are implicated for that as part of the FVEYs, there has been much debate about government accountability and whether or not the adequacy regime Canada now enjoys can be sustained.  Perhaps we’ll have to change some of our laws.  There has also been debate and a string of bills about data retention.  Things are definitely happening, and they wouldn’t have happened but for “Crazy Eddy.”

1:34–Hoofnagle: everyone is pointing fingers at NSA, but NSA can turn around and say, “look at GCHQ, CSIS, the Dutch…”  Bennett: Under Canadian law, there is no question that metadata is personal data, so there will be reform.  The question is how radical that reform will be.

1:36–Hoofnagle: Doneda, can you reflect on the Brazilian reaction to the Snowden leaks?  Doneda: the revelations have had both a good and bad impact.  Brazil’s reactions were among the strongest in the world.  Privacy protection became an issue with preeminence in the public agenda.  But, the discussion has been on protection and privacy of the state, not the citizens.  Among the Brazilian reactions, there is a bill being discussed in Brazilian Congress–the “Internet Civil Rights Framework.”  The idea is to make permanent such principles as internet neutrality and mandatory data protection.

1:40: Hoofnagle: lets talk about localization.  Should data have to stay within a nations walls (i.e., should Google France keep its data in France?)  Ten years ago people wanted to put their data in a “data haven” to protect is from law enforcement.

Doneda: In my opinion, internet traffic travels all over the world, regardless of where the centers are.

DeGraw:Localization is a blunt instrument that will lead to incredibly increased cost to big and small companies and will tamp down growth of internet companies.  On a political stance, think of how easy it was for Egypt to turn off the internet during times of unrest.

Dennedy: All these comments today are “Dennedy” not McAfee! The cost issue is really interesting in cloud computing.  Amazon still loses money.  Google wouldn’t be able to sustain the cloud without ads.  It would be great to be in a world where privacy trumps tax, cost, employment concerns.  But, engineering talent is rare and precious and you get it where you can.  We also need to be thinking more about satellites and technology, because it’s as important for growth as the Silk Road was.

Bennett: two crucial models:  1) Data Export Control Model–jurisdiction-to-jurisdiction approach.  Europeans are not the only ones who’ve included these provisions. 2) Canadian Model: An organization that outsources data processing to wherever is responsible for ensuring the organization processing that data abides by provisions of Canadian law.  This approach is very messy and complicated.

1:55–Someone makes a joke about Berkeley and rainbows

1:56–Question from the audience!  What is the current state of affairs in terms of UN involvement in privacy?

Doneda: UN in these arena mostly cares about jurisdiction about human rights.  Most discussions are dubious about localization and there is a doubt about instruments to make human rights apply all over the world.

2:00–End scene.

Posted by Sylvia DeTar

Please click here to join us at this year’s Riesenfeld Symposium.

We are excited to announce the full program for the 2014 Riesenfeld Symposium on Thursday, February 27, 2014.

Please join us for an outstanding lunch discussion, Who’s Watching? Global Perspectives on Privacy, and an evening reception presenting the 2014 Riesenfeld Award for outstanding contributions in international law to Steve Smith, the founder of BJIL and Co-Chair of the ABA International Arbitration Committee. Please put February 27, 2014 on your calendars and RSVP here for the evening reception.

2014 Riesenfeld Symposium

Thursday, February 27, 2014

Presented by the Berkeley Journal of International Law and The Miller Institute for Global Challenges and the Law

Join us for a reception of heavy appetizers, dessert, beer, and wine as we present the 2014 Riesenfeld Award for outstanding contributions to the field of international law to Steven Smith. Mr. Smith is one of the world’s leading international arbitration attorneys and a 1983 graduate of Berkeley Law School and the founder of the Berkeley Journal of International Law.

Over his thirty-year career in international law, Mr. Smith has served as co-chair of the American Bar Association’s International Arbitration Committee, a member of the ICC Commission on Arbitration in Paris, France, and chairs the ICC’s Arbitration Committee for the Northwest U.S. He is also an honorary member of the Commercial Bar Association of London and a former chair of the International Law Section of the State Bar of California. A partner at the law firm Jones Day in San Francisco, Mr. Smith teaches and publishes extensively on international commercial arbitration and litigation.

The International Court of Arbitration of the International Chamber of Commerce (“ICC”) has just registered its 20,000th case. Simultaneously, the International Court of Arbitration of the ICC is set to administer inaugural ICC arbitrations in New York City. Case number 20,000 was a transport-sector dispute initiated by a U.S. claimant against a Canadian respondent. The arbitration is seated in Chicago, Illinois and applies the laws of the State of New York.

http://www.iccwbo.org/

After more than nine years of negotiations, WTO members finally reached consensus on a Trade Facilitation Agreement at the Bali Ministerial Conference in December 2013, as part of a wider “Bali Package.” The final agreement contains provisions for faster and more efficient customs procedures through effective cooperation between customs and other appropriate authorities on trade facilitation and customs compliance issues. It also contains provisions for technical assistance and capacity building in this area. The agreement mandated a newly established Preparatory Committee to ensure the expeditious entry into force of the agreement and to prepare for its efficient operation.

http://www.wto.org/

The Energy Charter Treaty (“ECT”) was signed in Lisbon in 1994. As of 2014, fifty-two states have signed or acceded to the ECT. To mark the twenty-year anniversary of the signing of the ECT, the International Centre for Settlement of Investment Disputes (“ICSID”), the Stockholm Chamber of Commerce (“SCC”), and the Energy Charter Secretariat (“ECS”) are organizing a conference of experts to discuss and reflect on the implementation of the ECT and to contemplate future developments under this instrument. The conference will be held in Paris on March 7, 2014.

https://icsid.worldbank.org/ICSID/Index.jsp

The evolving information, communication, and technology (“ICT”) landscape is offering women entrepreneurs new opportunities to strengthen their businesses. Through mobile phones, electronic platforms and networks, radio, television, blogs, and the Internet, women entrepreneurs are reaching out to customers and building their businesses in ways they previously could not. Effective use of ICTs is now helping to overcome several challenges that women entrepreneurs face. At the same time, there is evidence of a “gender digital divide” wherein women entrepreneurs—due to lack of literacy, skills, access, resources and other factors—are excluded from the opportunities and benefits ICTs offer.

http://unctad.org/en/Pages/Home.aspx

President Obama welcomed the Dalai Lama to the White House on Friday morning, provoking a sharp rebuke from the Chinese government, which warned that the meeting would severely damage relations between Washington and Beijing. But this time, in contrast to previous meetings, the White House seemed unruffled by the diplomatic repercussions of the Tibetan spiritual leader’s visit, which comes as the United States is taking a firmer line with China on a range of territorial disputes with its neighbors.

http://www.nytimes.com/2014/02/22/world

ICC Prosecutors Request Indefinite Delay for Kenyan President

On February 5, International Criminal Court prosecutors requested the court indefinitely delay proceedings in the trial of Kenyan President Uhuru Kenyatta. Prosecutors stated the Kenyan government had repeatedly threatened witnesses and restricted access to information pertinent to the case. Kenyatta faces charges related to the 2007 deadly election violence.

http://jurist.org/paperchase/2014/02/icc-prosecutors-request-indefinite-delay-in-trial-of-kenya-president.php

UN Condemns Torture, Sexual Abuse of Children in Syria

UN Secretary General Ban Ki-moon called on the Syrian government and opposition forces to stop the brutal treatment of children made victims of the ongoing conflict. On February 3, the UN released a report chronicling abuse of children in Syria. Ban said the parties are responsible for the arrest and torture of children as well as for their recruitment in combat roles.

http://america.aljazeera.com/articles/2014/2/5/un-report-condemnsunspeakableatrocitiesagainstsyrianchildren.html

Qatari Court Denies U.S. Couple Petition to Return Home

U.S. couple Mathew and Grace Huang face charges they starved their adopted eight-year-old daughter to death. The court has ordered the couple to remain in Qatar, pending the resolution of their trial, expected March 27.

http://www.nytimes.com/2014/02/06/world/middleeast/qatar-court-rejects-us-couples-petition-to-return-home.html?ref=world

Turkish Parliament Tightens Internet Law

The new legislation allows the telecommunications authority to block users’ access to websites without a court order for violations of privacy. The move follows a recent spate of recordings on video sharing sites showing ministers and their business allies. Critics have alleged the new law, if approved by President Gul, will undermine freedom of speech.

http://www.reuters.com/article/2014/02/06/us-turkey-internet-idUSBREA1509J20140206

Chief Crown Prosecutor of England and Wales Visits ICTR

Elizabeth Howe, who also serves as the general counsel to the International Association of Prosecutors, visited the International Criminal Tribunal for Rwanda on February 3. Howe’s visit was part of an effort to enhance cooperation among prosecutors internationally to better combat transnational crime.

http://www.unictr.org/tabid/155/Default.aspx?id=1376

By Phil Djambazoff

Introduction

The political system of a country is an important but not exclusive element of our existence as citizens. Arguably, in the ideal world all countries govern themselves and recognize one another similarly, all people would have equal standards of living, and so on. However, for the last century many countries have changed their political systems, highlighting economic, social, and legal disparities. Currently, a common method of bringing the legal system in a developing country up to speed with these changes is to “copy/paste” a law from another country or international treaty. However, so far, the efficiency of intellectual property protection integration within developing countries has not met the forecasted outcomes.

Therefore, rather than the copy/paste method, changes in law should cohere with prerequisite factors, such as the former and current political system, social atmosphere, moral values, economic standards, and levels of corruption and subsistence. The premise of evaluating the advantages and disadvantages of intellectual property law is to create а favorable background for efficient integration of intellectual property protection, such as copyright law. A post in Berkeley Technology Law Journal’s The Bolt, titled “Online Copyright Infringement: Search for Solutions,” is a typical example of how a variety of copyright protection tools have different impacts in countries such as the U.S., the U.K., Norway, and France. Keeping in mind that even economically well-developed countries willing to reach certain copyright protection levels should select the most appropriate instruments for themselves, the act of careful and nation-specific intellectual property legislation based on the prerequisite factors above is a must.

Since copyright legislation varies by country, the advantages and disadvantages derived from its protection also have diverse implications. I include the most common privileges and drawbacks of copyright protection in the following table, and then elaborate upon a few in the context of former communist countries.

Evaluation of the Advantages and Disadvantages of Copyright Law in Diverse Environments

a) Impacts of a Corrupt Atmosphere

Corrupt atmospheres literally and functionally destroy most of their environment, diminishing stimulation or motivation for authors to create new work as well as undermining the effectiveness of copyright protection. While motivation is key to progress, some argue protection with an established copyright system is most important. Both typically require a governed territory with minimal corruption especially in the middle and lower social strata. However, factors such as language barriers, transaction costs, market needs, and so on still mire such places in a sea of bribery. International copyright protection might favor the author, but they will not prove effective without first establishing a legal path. For example, for former communist countries such as Romania and Bulgaria, affiliation with the European Union makes available realistic options for copyright protection. However, contexts of high bribery would not recognize the advantages of copyright law protection as beneficial. Such an environment excludes recognition of distinctly expressed ideas, as well as diminishing proof of infringement and enforcement of copyright protection. In other words, it is likely the corrupt atmosphere would not predispose different evaluations of the advantages and disadvantages of copyright law protection, because bribery would overwhelm any protection.

b) Effect of Lack of Culture of Appreciation

During the era of socialism, copyright protection rested in the hands of the government. Sometimes the government showed appreciation for authors and their creative efforts by allowing artists to live unencumbered and spread their work throughout the country. However, after government approval, many authors found little space for appreciation of their creative works other than exploitation, severely diminishing stimulation. In such an environment, the advantages of copyright protection appear largely unrealistic. Moreover, it was difficult, if not impossible, for artists under a communist regime to buy into a need for progress beyond the government’s cryptic dictation. The government and society often misinterpreted the definition of progress. Creativity and originality at that time would have risked identification as something politically critical, anti-governmental, or even rebellious. Furthermore, any kind of international copyright protection would be absurd since the country accepted the creative work as a democratic initiative within a communist regime. In summary, this example shows that an evaluation of the advantages of copyright protection without a thorough understanding of prerequisite factors would be incomplete. It took over two decades to inculcate the Socialistic political model, and it likely will take two more for the democratic political system to shift citizens’ perceptions and approaches toward both protection and appreciation of protected works.

c) Sharing as Honor

In a socialist environment, the meaning of honor deviates from the general definition. Given the communist government’s approach to artists, authors felt particularly appreciated when their work reached a wider audience. Under the influence of a more robust moral system, moral sustenance rather than financial means was the most common way to satisfy the desire for honor, achieved at the moment of sharing. For authors, then, the “moment of sharing” had the same weight as stimulation. Therefore, they would consider copyright protection as a disadvantage if it created a barrier to sharing. The necessity of progress would survive through the satisfaction of the desire for honor and through government recommendations. As such, it is challenging to implement copyright law protection within a population conditioned to pay so much attention to national values such as the act of sharing.

Twenty-five years after the collapse of communism, one chance for survival among less popular artists is sharing through a social network,  garnering millions of “likes,” and catching the attention of the record industry. Many authors still appreciate when others accept, follow, and imitate the author’s expression of an idea. New technology magnifies incalculably the chance for an unknown artist to take advantage of the fruits of sharing.

Conclusion

Post-communist and sharing-friendly nations take diverse approaches to the advantages and disadvantages of copyright protection. Implementation of intellectual property law must take into account prerequisite factors in an era where efficiency is a major factor in economic development. Since each country differs in terms of institutional structures, moral values, corruption, and economic standards, there is no clear methodology for incorporation. An analysis of the advantages and disadvantages represents one such method of streamlining implementation of intellectual property protection within former communist bloc countries.

By Professor Bob Berring

China’s actions in the world of international law puzzle some commentators. China has signed on to a wide variety of international treaties, appearing at times to view them as aspirational rather than binding. Having never recovered from reading Lakoff and Johnson’s Metaphors We Live By, I turn to that tool of analysis. Perhaps it will help.

Children on a playground are a fine metaphor to employ when considering issues of international law and sovereignty. On this playground no adults are present. The children play amongst themselves. Each child is a separate being, governed by her own free will, possessing her own set of attributes. Some children are large and powerful, some are small and weak. Some are inclined to be cooperative and conciliatory, others are aggressive. Bullies, cowards, saints, and devils make their appearances. The children form alliances, make friends, and try to construct agreements. If one large bully emerges, others may group around her, motivated by fear, admiration, or the need to follow a leader. Weaker, smaller children may try to propitiate the larger ones, or they may band together to protect themselves. Some children may wish to remain apart from the others, to join no group. Some may be wealthy, some may be poor. The very poor children may be preyed upon or simply left alone by the more organized. There is no equity in the distribution along any vector: size, strength, attitude, wealth, and health vary widely. So long as there is no adult enforcement, things play out among the children.

Each child has a history, but the conditions on the playground frequently change. The general climate may be better or worse. One child might possess a new device that gives her a distinct advantage. Each has a memory of what went before and governing emotions may conflict internally but if the child is to project herself as strong enough to maintain her independence, let alone to project her will, then she must show singularity of purpose. Alliances shift, arrangements change but in the end, sans adults, strength and cunning rule the day.

One day, the children sought to create a rule structure to regulate behavior on the playground, because the playground would function much more smoothly if the children agreed to basic rules about day-to-day life. Many of the rules simply made sense, and everyone agreed to them. Some rules were more demanding. While everyone might agree with them in principle, in application they caused difficulty. Some children would join in the promises only with reservations. Some would join with the thought in mind that the promise was a good idea, though not one that should impede self-actualization. One big set of promises were built around a “United Children” group that included each child as an equal. While this made the smaller children feel much better, the strongest children never really had to obey, though they did so long as compliance caused them no harm. Lacking an adult with power, the strongest child could always assert her independence. In such a case, all of the children could join together to compel cooperation, but many had no stomach for a fight, and a truly powerful child, who was rich enough to have the best tools, might prevail anyway. Such children often had friends who would join them for any of an array of motives. History taught that when most of the strongest children chose sides in a bilateral fight, widespread damage affected everyone. Fresh in the children’s consciousness was the memory of two enormous brawls that had ravaged great stretches of the playground, after which many children were never heard from again. All-out conflict made no sense to anyone in this setting, but the threat was ever-present.

My Playground

During my youth, two strong children dominated the playground. The Soviet Union and the United States each were large, powerful, and convinced that they knew how the playground should be run. Others gathered around them as allies, willing or otherwise. Some tried to stay out of the way. Bigger children often ignored or simply observed the smallest and least wealthy children. The Soviet Union’s fall from the top of the monkey bars left the United States as the most powerful child. Some theorists believed that the playground would no longer be the site of major confrontation, since the world had changed. But the United States found that being the sole power was more difficult than most had imagined. Some of the smaller children at the edges of field caused great problems. Keeping them in line took time. They were quick and they had little to lose. Some even threw rocks at the U.S. New groups began to form based on religious beliefs; a development that happened over and over again over time and could bring great grief. Some children thought that the U.S. was too selfish, that it should share some of its wealth. As often happens, the U.S. also came to take its place for granted, as if given to it by a higher power. A growing ego combined with less attention to exercise made the U.S., big and strong as it was, vulnerable.

One of the children, China, had once been strong, but for many years a cavalcade of problems had weakened him. China mostly stayed on his own side of the playground trying to mend. Stronger aggressive children exploited China ruthlessly. They decided that no rules applied to China. For China, so long a powerful, independent child, one proud of his accomplishments, these were terrible days. China wandered, lost and bereft, for so long that everyone forgot about his past glories. Some thought that China might disappear.

But in time, China began to heal. The speed of the rejuvenation was amazing. The U.S. wanted to help this child, to show the way, to teach him about how the playground should work. The way that the playground should work included the continued suzerainty of the U.S. China, waxing more and more powerful, did not see it that way. China knew from harsh personal experience that the promises of other children were worth nothing. Now that he was strong, China wanted more than anything to be viewed as one of the strongest, smartest and richest children. In the period of his sickness China had gained bitter wisdom of the ways of the playground. Rules that protected the U.S. and its friends did not offer surcease to China. The strong children had lied to China, cheated it, stolen from it. One of the reasons that China wished to grow strong was to assert itself. It wished to shed the image of the sickly older child and to evolve into a vibrant strong man. Strong enough to protect himself and his interests and never to be subject to any rules that it did not choose to follow. China discovered that by joining in some of the shared promises, he more easily could gain entry into the world of the big children. But China knew that the strong children broke promises as needed, indeed they had made secret promises that hurt China. China would play the game, but he always remembered that in the end, strength and independence was more important than anything else.

China and International Law

For China, a major element of global acceptance as a modern power translates into joining in international compacts. The Chinese are signatories to a wide array of international treaties. Given continuing criticism of China’s human rights policy by the United States, China’s accession to a wider range of human rights treaties than the United States is puzzling. A welter of reasons explain this phenomenon but the playground metaphor focuses on China’s view of sovereignty. While signing an international treaty may set aspirational principles, China never loses sight of its self-determination. A sovereign nation’s business is just that, its business. What happens within a sovereign nation’s borders is not subject to outside intervention. In the 19^th Century China learned how disastrous external intervention, complete with high-minded talk of modernization, civilization, and even religious enlightenment can be. Ergo China on the one hand is an eager participant in treaty formation, but on the other hand is a reluctant actor when matters of enforcement arise. This tracks China’s actions on the United Nations Security Council. One may disapprove of the Syrian regime, but intervention is a mug’s game. The world taught China a pragmatic lesson in the conduct of international law and the value of paper agreements. China wants a seat at the table, but cannot countenance interference in internal matters. None of the really strong children ever have done so. That’s the rule of the playground.

Note

Two reports, written fifteen years apart in 1998 and 2013, illustrate the aspirational versus the enforceable.

By Ido Kilovaty, Assistant Contributor

Asylum seekers fleeing persecution on the grounds of their sexual orientation and gender identity often seek refuge in the EU. Although the 1951 Convention relating to the Status of Refugees does not explicitly mention ‘sexual orientation’ or ‘gender identity’ as recognized grounds for claiming refugee status, many countries have established that those grounds are part of the ‘membership in a particular social group,’ a general ground recognized by the Convention. These countries include Australia, Canada, France, Germany, UK and the US. The second requirement to acquire refugee status is well founded fear of persecution in the country of origin. There is a general understanding that the severity of persecution has to reach a certain threshold in order to justify refugee status.

In order to clarify the interpretation regarding Lesbian, Gay, Bisexual, Transexual and Intersex (LGBTI) asylum seekers among EU states, the European Court of Justice issued a groundbreaking decision on the issue earlier this month (November). The Court ruled that the EU Qualification Directive (the EU legislation implementing the 1951 Convention) should be interpreted in three different ways in order to assist LGBTI asylum claimants. First, the Court held that laws criminalizing homosexual conduct in the country of origin support the finding that LGBTI are members of particular social groups. Second, in order for those laws to reach the threshold of persecution, they must have discriminatory or disproportionate punishment. Third, the Court took the view that homosexual asylum seekers cannot be required by EU member states to conceal their sexual identity. Applying this standard, the Court ruled that the petitioners are entitled to asylum within the EU.

Although the Court’s decision is encouraging and valuable, it still does not cover LGBTI asylum seekers wholly. Given the practice of several EU member states, there are still some hardships that LGBTI asylum seekers have to overcome in order to be granted asylum.  Some of the weaknesses of the ECJ ruling are listed below.

One of the weaknesses of the ECJ decision is that it does not address the procedure to determine whether an asylum applicant is LGBTI. UNHCR guidelines regarding LGBTI asylum seekers give some framework to determine whether an asylum seeker is LGBTI. The guidelines include the technical part of the procedure (rules of conduct for interviewers, required training) and substantive part, which gives set of issues and backgrounds that asylum seekers are to be asked. The guidelines are not binding upon States, but they may help in cases of uncertainty.

In the United Kingdom, LGBTI asylum seekers are frequently required to ‘prove’ they are gay. Asylum seekers are required to present video or photographic evidence that proves their sexual orientation. More questionable methods include requiring photographs or videos of ‘highly personal sexual activity’ to the asylum seekers, asking the asylum seekers to name Oscar Wilde’s works and show medical evidence of penetrative sexual intercourse. In a recent report of the UK Home Affairs Committee, the Committee found that this area of the British asylum procedure was highly problematic

“[W]e were concerned to hear that the decision making process for LGBTI applicants relies so heavily on anecdotal evidence and ‘proving that they are gay.” As the court determined, the test should be whether people are gay or perceived to be so… it is not appropriate to force people to prove their sexuality if there is a perception that they are gay. The assessment of credibility is an area of weakness within the British asylum system. Furthermore, the act that credibility issues disproportionately affects the most vulnerable applicants—victims of domestic and sexual violence, victims of torture and persecution because of their sexuality—make improvement all the more necessary.”

As of today, there is no change in the policy of the UK on this matter. A highly inappropriate measure has also been recorded in the Czech Republic, where gay asylum seekers were asked to undergo sexual arousal tests. The EU criticized the Czech Republic for employing the test.

Another weakness of the ECJ decision is that it does not address the severity of the well founded fear of persecution as well as its nuances among different States that criminalize homosexuality. The Foreign Minister of the Netherlands, Frans Timmermans, recently said that ‘[G]ays in Russia are not prosecuted and, thus, there are no grounds to grant them asylum in the Netherlands,’ a statement that reflects the unwillingness of some EU member states to comply with their international obligations to LGBTI asylum seekers. Another example is the detention of an Iranian gay asylum seeker in Greece, although, following pressure from the EU and LGBTI organizations, Greece decided not deport him eventually. Finland has deported at least ten asylum seekers on the grounds of sexual orientation between 2008 and 2010, although those asylum seekers showed evidence of well founded fear of persecution by showing that their governments are harshly punishing homosexuals.   As demonstrated above, LGBTI asylum seekers face many challenges that the ECJ ruling did not address.

It appears that the ECJ decision tries to structure a uniform framework for EU member states when assessing LGBTI asylum seekers claims; however, the Court did not address other issues mentioned above, including the severity of the well founded fear of persecution and the disparity in methods of LGBTI status determinations. It appears that the problem may be deeper than any court’s decision may solve. Some states are mistreating LGBTI asylum seekers, in violation of their international obligations and the fundamental human rights that the asylum seekers have. The methods employed by some States are degrading and unnecessary, and may be put to review by national courts and European courts (ECHR and ECJ) in the future.

By Willi Künzli, Assistant Contributor

A group of ten financial institutions agreed in 2003 on a set of principles to guide their lending policies on international project financing. They named this set of rules the Equator Principles (“EPs”) which reached its third version ten years later, in June 2013. Another sixty-eight financial institutions worldwide have joined the Equator Principles since its initial adoption. Even though the number of financial institutions is not high compared to the overall number of lenders in project finance worldwide, financial institutions that adopted the EPs represent a significant portion of financed amounts, among which are Citibank, Credit Suisse and HSBC.

EPs’ overall purpose is to prevent its members (identified as Equator Principles Financial Institutions – “EPFIs”) from financing any project that does not meet the outlined social and environmental standards. EPs are based on the International Finance Corporation’s performance standards on social and environmental sustainability as well as the World Bank’s environmental, health and safety guidelines. EPs became the industry standard to assess social and environmental risk.

EP originated in response to an increasing demand from Non-Governmental Organizations (“NGOs”) for the adoption of specific standards and policies in international project financing with the aim of increasing social and environmental standards primarily because financial Institutions are key players in any project finance structures. They have the power to impose certain standards that other players involved may not have (e.g., local communities, employees, indigenous people affected by the respective project, environment protection NGOs etc.), or even may not be willing to impose for fear of losing investments, such as local governments. Any project that depends upon lenders to obtain the necessary resources for its development has to comply with the EPs if it intends to obtain the funds from any EPFI.

EPs standards and requirements increased during the last decade. As the World Bank and the International Finance Corporation’s standard for assessing social and environmental risks increased, the EPs also developed to achieve this new level of requirements and standards. EPFIs are now going through a transition period from the second version (“EP II”) to the third (“EP III”). EP III is the result of a draft presented in July 2011, which after a consultation process was implemented in June 2013. It will have to be applied to all new products as of January 1^st, 2014. This new version of the EP III addresses major critics from NGOs and incorporates significant changes.

EP III adopted a broader scope of application and higher standards for transparency. Although the minimum amount involved in the project capital cost continues to be US$10 million, in addition to project finance loans and project finance related advisory services included in the EP II scope, EP III is also applicable to Project-Related-Corporate loans (subject to other specific requirements, among which is the total aggregate loan amount that shall be of at least US$100 million) and bridge loans with a loan tenor of at least two years. In respect of transparency, EP III elevated the minimum requirements of information that has to be reported to the public as compared to EP II, where only high level information was publicly disclosed.

EP distinguishes between countries with stringent laws on environmental and social welfare and others with less stringent ones. The countries that fall within the first category are defined as “Designated Countries” in EP III (EP II identified them as “high income OECD”).  Projects’ compliance with laws of Designated Countries automatically fulfill the EPs’ requirements related to environmental and social assessments , environmental and social management systems and plans, stakeholder engagement and grievance mechanisms. However, project developers must still present evidence of meeting other EP principles. In addition, EP III expressly states that the EPs contains minimum requirement that EPFIs need to adopt additional requirements at their sole discretion. This is important to leave space to address certain concerns related to specific industries, where the EPs may not be sufficient.

EPFIs are required to conduct a preliminary assessment of environmental and social risks to categorize the project. After this preliminary risk assessment, the relevant project is classified either under category A (significant risk), category B (limited risk) or category C (minimal risk). The project category of the project will dictate which minimum standards are required and which risk mitigation actions the involved parties have to adopt. EP II required certain covenants for compliance with environmental and social laws, regulations and permits in financing documents for project under category A and B, which are now applicable to all projects. Under EP III, all projects’  financing documents (irrespective of its category) must contain a borrower covenant that  comply with all relevant host country environmental and social laws, regulations and permits in all material respects. This change is in line with the flaws of EP II regarding projects with lower risk choosing to waive these covenants.

Another important facet introduced in EP III is a specific human rights due diligence. In limited high risk circumstances EP III suggest it may be appropriate for a borrower to complement its environmental and social assessment with a specific human rights due diligence. The human rights standards that this due diligence addresses are the UN “Protect, Respect and Remedy Framework for Business and Human Rights” and the associated “Guiding Principles on Business and Human Rights”. Notwithstanding the fact that the EP III does not provide a specific framework for this human rights due diligence (which are left for lenders and borrowers to identify and work on a specific framework based on the project’s specificities), it inarguably represents an advance that must be highlighted. This may be the first step in addressing flaws relating to the EPs’ lack of provisions related to human rights.

It is worth mentioning that criticism continues to be drawn to the EPs. The attacks by critics are mainly based on difficulties that EP imposed on finance of projects in developing countries, where projects are undertook to generate income and employment opportunities. In addition, there is criticism relating to increased transaction costs and EPs’ non-binding nature that makes it difficult to hold an EPFI liable in cases where EPs are not complied with. However, such criticism is highly debatable since economic development cannot override environmental and social concerns and further increased transaction costs is an inherent fact where attention to other factors in addition to the capital must be given; however, the invaluable cost of adverse social and environmental impacts may certainly offset transaction costs. In respect of the non-binding nature of the EP, one must agree that in a world where capital flows almost without boundaries and where governments share distinct visions on how to balance economic development with social and environmental concerns (i.e., how to achieve sustainable development), working on a binding international law over project financing is a hard task, a task for which public international law is not yet ready.

EP is an important tool to promote sustainable development in international project finance.  The increasing number of EPFI (among which are financial institutions from developed as well as developing countries), is evidence of the higher attention that the need of promoting sustainable development in international project finance receives. Moreover, latest developments in EP III demonstrate that standards are being raised to address international concern and that the work is still in progress. The next few months are appropriate/crucial for financial institutions all over the world to review their internal project finance compliance standards and educate themselves about the new standards.