Connect with us

Americas

Trump’s Proclamation on Suspension of Visas: It’s validity under the WTO Agreement

Published

on

The US has recently passed a Proclamation on 22nd June 2020, temporarily suspending till the end of the current year, several popular non-immigrant visas including the H-1B, H-2B, J and L visas. The Proclamation aims at protecting local workers who are facing unemployment due to spread of coronavirus. Apart from J visas which include certain categories of non-experienced people, all the visa requires certain expertise and higher education degree.

The present article seeks to analyze the legal validity of US’s Proclamation under the WTO Agreements, particularly General Agreement on Trade in Services (GATS) by exploring the consistency of the Proclamation with the specific commitments undertaken by the US under GATS and if the Proclamation violates such commitments, then the possible defence for this discriminatory measure under the exception clauses of GATS.

Compliance of the US with its commitments under its Schedule of Commitments

GATS contain two types of obligation– one is general obligations that apply to all members and services sectors for example- Most Favored Nation treatment, and another is specific obligations that apply only to the sectors inscribed in a member’s schedule of commitments (SoC). Commitments are undertaken in SoC concerning four different modes of service supply. Most schedules consist of both sectoral and horizontal sections. The Horizontal Commitments contains commitments/conditions that apply across all sectors subsequently listed in the schedule. Sector Specific Commitments identifies the services for which the member guarantees market access and national treatment and any attached limitations. SoC allows member to deviate from general obligation of providing non-discriminatory treatment by listing the discriminatory measures in its SoC. The Proclamation, to stand the test of non-discrimination, needs to either be covered under the US’s GATS commitment in its SoC or it must fulfill the requirements of exception clauses under GATS which provides grounds where parties can deviate from its obligations under this Agreement.

Mode 4 i.e. presence of natural persons is the relevant mode here as this mode regulates the entry of one member into the territory of another member to supply a service. In the sector-specific commitments under the SoC of the US, it has in almost all services sectors, not made any commitments except in cases where the foreign service suppliers fulfil the conditions mentioned in the horizontal section. In its horizontal commitments, the US has only laid down requirements regarding the eligibility of the foreign service suppliers for respective categories and the duration of their stay. For instance- Intra-corporate Transferees which includes managers, executives and specialists, as defined in the section, can only stay in the US for a three-year period that may be extended for up to two additional years for a total term not to exceed five years. Even in the horizontal section, no such domestic laws/regulation has been referred to which allows the US to suspend the visas temporarily.

The Schedule, nowhere, imposes any conditions where despite fulfilling the requirements mentioned in the horizontal section, the US can suspend such visas.

Compliance with the requirements of General Exception

Since there is no legal validity found in US’s commitments under its SoC, US may claim that the alleged measure, i.e. the Proclamation falls under one of the Exception clauses of GATS.

GATS provides two types of exception where the Members can deviate from its obligation undertaken in this Agreement and take such measures which violate its commitments, i.e.- General and Security Exceptions. The Security exception is only invoked when there is a risk to the national security of the nation, and it is necessary to protect its essential security interest. This exception can’t be invoked in the present case by the US as foreign service suppliers working in IT sectors or fashion designing company doesn’t pose any security risks to the US.

However, the general exception lists down 6 circumstances which includes various cases from protecting human health to preventing fraudulent practices. The Proclamation has only used the phrase “in the interest of US” and “high unemployment” as the justification for issuing such Proclamation. The relevant part of the Proclamation states- ‘I determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labour supply outpaces labour demand……..I have determined that the entry, through December 31, 2020, of certain aliens as immigrants and nonimmigrants would be detrimental to the interests of the United States.’ The only clause that might be invoked by the US as a ground for its GATS inconsistent measure will be – (a) necessary to protect public morals or to maintain public order or (b) protection of human, animal plant life or health.

WTO GATS jurisprudence shows that Article XIV provides for analysis in step-test i.e.- (i) first, the WTO Dispute Settlement Body (DSB) must determine whether the measure falls within the scope of one of the subparagraphs of Article XIV of the GATS; and (ii) after having found that the measure at issue is justified under one of the subparagraphs of Article XIV of the GATS, the DSB must examine whether this measure satisfies the requirements laid down in the introductory clause or chapeau of Article XIV of the GATS (Argentina – Financial Services).

To judge US measure’s compatibility with the requirements of Article XIV, we need to follow the two-tier analysis which involves first looking at the measure itself under the sub-paragraphs and then at how the exception is applied under the chapeau (US-Gambling).

US may invoke Article XIV (a) or (b) as a ground for protecting public order or human lives from the impact of COVID-19. However, the nature of measures falling under public order or human lives has never included anything relating to visa issues but owing to the widespread harm caused by COVID-19, it might be possible that WTO DSB finds the invocation of such clauses as valid.

To comply with the requirement of clauses of Article XIV, the US must establish the necessity of the measure in pursuing the objective that falls within the sub-clauses. The necessity test involves weighing and balancing process where three important factors are “weighed and balanced” to determine necessity, although not exhaustive factors (Korea-Various Measures on Beef, US-Gambling):

  1. the relative importance of the interests of values furthered by the impugned measure;
  2. the contribution of the measure to the realization of the ends pursued by it; and
  3. the restrictive impact of the measure on international commerce

Firstly, the Proclamation needs to be protecting the interests which are of relative importance. In Korea- Various Measures on Beef, the Appellate Body emphasized that the necessity requirement can be more easily satisfied when the common interests or values advanced by the challenged measure are of vital importance. Applying the same rationale in the present case, US may argue that protecting its vulnerable or disadvantageous citizen from unemployment is of vital importance, especially in the times of a pandemic and the WTO DSB may agree with this line of argument.

Secondly, the Proclamation must fulfil the means-ends test where the suitability or aptitude of a measure to achieve the ends pursued is examined. The more the challenged measure contributes to the achievement of the legitimate policy objectives, the more likely it is that the measure will be deemed necessary (Korea- Various Measures on Beef). The Proclamation seeks to address the issue of high unemployment which is adversely affecting the unemployed Americans from the threat of competition for scarce jobs. It also lists down the workers against whom the immigration is particularly harmful i.e. workers who have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and Americans with disabilities. The objective stated in the Proclamation and the means of achieving such objective appears to be conflicting in the present situation as the Proclamation suspends entry of such professionals who have higher education college degrees and sufficient expertise in their respective field who are not in competition with the American workers that don’t possess a college degree at the moment. Also, it has been claimed by representatives of various technology related business stakeholders in the US such as- Google, Amazon, Tesla etc. that the prohibiting immigration of the professionals are more likely to affect the economic recovery of US instead of improving it.

The objective of Proclamation to protect the unemployed American workers doesn’t get fulfilled by suspending the visas of professionals who are on the contrary, helping the country in its economic recovery. As the Proclamation fails to fulfil all the elements of necessity test, it is not relevant to analyse its compliance with the chapeau.

Conclusion:

The US has not mentioned anywhere in its SoC regarding abruptly suspending the visas through domestic laws/regulations. Nor the Proclamation fulfils the conditions of Article XIV to take recourse of general exception clause for such discriminatory measure. The impact of coronavirus on the economy is felt by every nation and citing pandemic as a reason for introducing such GATS-inconsistent Proclamation to protect the interest of its unemployed workers is not justified.

Views are personal

Continue Reading
Comments

Americas

Roads and Rails for the U.S.

Published

on

For those who expect the newly announced $2 trillion Biden infrastructure program to be a goodbye to potholes and hello to smooth-as-glass expressways, a disappointment is in store.  The largest expenditure by far ($400 billion) is on home/community care, impacting the elderly or disabled.  The $115 billion apportioned to roads and bridges is #4 on the list. 

The American Society of Civil Engineers (ASCE) keeps tabs on our infrastructure and their latest report (2020) gave it an overall grade of C-.  Although bridges worsened, this is a modest improvement on the previous report (2017) when the overall grade was D+.  If $115 billion in spending sounds adequate, one has to remember it costs $27 billion annually for upkeep.

Astounding it might be the backlog in spending for roads and bridges runs at $12 billion annually.  Go back 20 years and we have a quarter trillion shortfall.  Add all the other areas of infrastructure and the ASCE comes up with a $5 trillion total.  It is the gap between what we have been spending and what we need to.  Also one has to bear in mind that neglect worsens condition and increases repair costs. 

One notable example of maintenance is the Forth rail bridge in Scotland.  A crisscross of beams forming three superstructures linked together, it was a sensation when opened in 1890 and now is a UN World Heritage Site.  Spanning 1.5 miles, its upkeep requires a regular coat of paint.  And that it gets.  Rumor has it that when the unobtrusive painters reach the end of their task, it is time to start painting again the end where they began — a permanent job to be sure though new paints might have diminished such prospects.

Biden also proposes $80 billion for railways.  Anyone who has travelled or lived in Europe knows the stark contrast between railroads there and in the U.S.  European high-speed rail networks are growing from the established TGV in France to the new Spanish trains.  Run by RENFE, the national railway, Alta Velocidad Española (AVE) trains run at speeds up to 310 km/h (193 mph)  — a speed that amounts to a convenient overnight trip between Los Angeles and Chicago.

The hugely expensive new tracks needed can be considered a long-term investment in our children’s future.  But it will take courage to contest the well-heeled lobbies of the airplane manufacturers, the airlines and big oil.

If Spain can have high-speed rail and if China already has some 24,000 miles of such track, surely the US too can opt for a system that is convenient for its lack of airport hassle and the hour wasted each way in the journey to or from the city center.  Rail travel not only avoids both but is significantly less polluting.  

Particularly bad, airplane pollution high above (26 to 43 thousand feet) results in greater ozone formation in the troposphere.  In fact airplanes are the principal human cause of ozone formation.

Imagine a comfortable train with space to walk around, a dining car serving freshly cooked food, a lounge car and other conveniences, including a bed for overnight travel; all for a significantly less environmental cost.  When we begin to ask why we in the US do not have the public services taken for granted in other developed countries, perhaps then the politicians might take note.

Continue Reading

Americas

Congress and the Biden administration should end FBI immunity overseas

Published

on

Image source: U.S. Embassy in Uzbekistan

The FBI notably has an extended international presence running 63 offices in select countries overseas. The offices are called “legats” and are situated at the US Embassy in the host country. One of the major reasons for FBI’s international presence is fighting international terrorism.

The FBI legat personnel at the US embassies are fully accredited diplomats enjoying full diplomatic immunity but that poses several questions that are worth asking, such as: how is it possible for law enforcement to be diplomats and is that a good idea, legally speaking?

Police work should not enjoy diplomatic immunity because that opens the door to abuse. Does the FBI’s immunity overseas mean that the FBI attaches can do no wrong in the host country? How do we tackle potential rights infringements and instances of abuse of power by the FBI towards locals in the host country? The DOJ Inspector General and the State Department Inspector General would not accept complaints by foreigners directed at the FBI, so what recourse then could a local citizen have vis-a-vis the FBI legat if local courts are not an option and the Inspector Generals would not look into those cases?

This presents a real legal lacuna and a glitch in US diplomatic immunity that should not exist and should be addressed by Congress and the new Biden administration.

While FBI offices overseas conduct some far from controversial activities, such as training and educational exchanges with local law enforcement, which generally no one would object to, the real question as usual is about surveillance: who calls the shots and who assumes responsibility for potentially abusive surveillance of locals that may infringe upon their rights. It’s an issue that most people in countries with FBI presence around the world are not aware of. The FBI could be running “counter-terrorism” surveillance on you in your own country instead of the local police. And that’s not nothing.

When we hear “cooperation in the area of counter-terrorism”, as recent decades show, there is a great likelihood that the US government is abusing powers and rights, without batting an eyelash. That exposes local citizens around the world to unlawful surveillance without legal recourse. Most people are not even aware that the FBI holds local offices. Why would the FBI be operating instead of the local law enforcement on another country’s territory? That’s not a good look on the whole for the US government.

The legal lacuna is by design. This brings us to the nuts and bolts of the FBI legats’ diplomatic immunity.

Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations of 1961, under Chapter III on privileges and immunities. The US is also a state party to the Convention, along with most states around the world. While there could be some variations and disagreements on bilateral basis (including on weather for example one state could be hosted and represented through the embassy of another state in a third state), on the whole there is a universal consensus that the Vienna Convention sets the rules establishing diplomatic immunities and privileges.

Under the Vienna Convention, only top diplomats are given the highest degree of immunity from the law. This means they cannot be handcuffed, arrested, detained, or prosecuted by law enforcement officials of the country in which they’re stationed. Diplomatic immunities and privileges also include things like diplomatic “bags” (with very peculiar cases of what that could entail) and notably, protection and diplomatic immunity for the family of diplomats.

It is a universal consensus that not everyone who works at an Embassy has or should have diplomatic immunity.  Immunity is saved for diplomats whose role has to be protected from the local jurisdiction of the country for a reason. Not all embassy staff should enjoy diplomatic immunity. Granting law enforcement such as the FBI full legal immunity for their actions is bad news.

Only the top officials at an embassy are diplomats with an actual full immunity — and that’s for a reason.

It makes sense why a diplomat negotiating an agreement should not be subjected to local courts’ jurisdiction. But the same doesn’t go for a law enforcement official who acts as a law enforcement official by, for example, requesting unlawful surveillance on a local citizen, in his law enforcement capacity, while thinking of himself as a diplomat and being recognized as such by the law.

Law enforcement personnel are not diplomats. Dealing with extraterritorial jurisdiction cases or international cases is not the same thing as the need for diplomatic immunity. If that was the case, everyone at the export division at the Department if Commerce would have diplomatic immunity for protection from foreign courts, just in case. Some inherent risk in dealing with international cases does not merit diplomatic immunity – otherwise, this would lead to absurdities such as any government official of any country being granted diplomatic immunity for anything internationally related.

The bar for diplomatic immunity is very high and that’s by design based on an international consensus resting upon international law. Simply dealing with international cases does not make a policeman at a foreign embassy a diplomat. If that was the case every policeman investigating an international case would have to become a diplomat, just in case, for protection from the jurisdiction of the involved country in order to avoid legal push-back. That’s clearly unnecessary and legally illogical. Being a staff member at an embassy in a foreign country does not in and of itself necessitate diplomatic immunity, as many embassy staff do not enjoy diplomatic protection. It is neither legally justified nor necessary for the FBI abroad to enjoy diplomatic immunity; this could only open up the function to potential abuse. The FBI’s arbitrary surveillance on locals can have a very real potential for violating the rights of local people.  This is a difference in comparison to actual diplomats. Diplomats do not investigate or run surveillance on locals; they can’t threaten or abuse the rights of local citizens directly, the way that law enforcement can. Lack of legal recourse is a really bad look for the Biden administration and for the US government.

The rationale for diplomatic immunity is that it should not be permitted to arrest top diplomats, who by definition have to be good at representing their own country’s interests in relation to the host state, for being too good at their job once the host state is unhappy with a push back, for example. The Ambassador should not be exposed to or threatened by the risk of an arrest and trial for being in contradiction with the interests of the host state under some local law on treason, for example, because Ambassadors could be running against the interests of the host state, by definition. And that’s contained within the rules of diplomatic relations. It’s contained in the nature of diplomatic work that such contradictions may arise, as each side represents their own country’s interests. Diplomats should not be punished for doing their job. The same doesn’t apply to the FBI legats. Issuing surveillance on local citizens is not the same as representing the US in negotiations. The FBI legats’ functions don’t merit diplomatic immunity and their actions have to be open to challenge in the host country’s jurisdiction.

The FBI immunity legal lacunae is in some ways reminiscent of similar historic parallels, such as the George W. Bush executive order  that US military contractors in Iraq would enjoy full legal immunity from Iraqi courts’ jurisdiction, when they shouldn’t have. At the time, Iraq was a war-torn country without a functioning government, legal system or police forces. But the same principle of unreasonable legal immunity that runs counter international laws is seen even today, across European Union countries hosting legally immune FBI attaches.

Congress and the Biden administration should end FBI immunity overseas. It can be argued that for any local rights infringements, it is the local law enforcement cooperating with the US Embassy that should be held accountable – but that would ignore that the actual request for unlawful surveillance on locals could be coming from the FBI at the Embassy. The crime has to be tackled at the source of request. 

When I reached out to the US Embassy in Bulgaria they did not respond to a request to clarify the justification for the FBI diplomatic immunity in EU countries.

To prevent abuse, Congress and the Biden Administration should remove the diplomatic immunity of the FBI serving overseas.

Continue Reading

Americas

Competition and cooperation between China and the United States and the eighth priority

Published

on

In mid-March U.S. President Biden held his first press conference since taking office. Speaking about Sino-U.S. relations, Biden said: “I will prevent China from surpassing the United States of America during my term of office”. At the same time, he also stressed that he would not seek to confront China, but to keep up fierce competition between the two countries.

Focusing on competition between major powers is one of the important changes in U.S. foreign policy in recent years. As the strengths of China and the United States draw closer together, the United States increasingly feels that its own ‘hegemony’ is threatened. During Trump’s tenure, the United States has caused a trade war, a technology war, and even a complete disagreement with China in an attempt to curb China’s development momentum and erode Chinese positions.

The expansion of the competitive field and the escalation of the competitive situation have become the hallmarks of Sino-U.S. relations during this period. Although Biden’s policy line has made substantial changes to ‘Trumpism’, it still has much of its predecessor’s legacy with regard to its policy towards China.

The first foreign policy speech made by U.S. Secretary of State Tony Blinken listed China Challenge as the eighth priority, preceded by:

1) ending the COVID-19 pandemic;

2) overcoming the economic crisis, reviving the economy at home and abroad, as well as and building a more stable and inclusive global economy;

3) renewing democracy;

4) reforming immigration and creating a humane and effective immigration system;

5) rebuilding alliances, revitalising U.S. ties with allies and partners with the system that the military calls force multiplier;

6) tackling climate change and leading a green energy revolution;

7) securing U.S. leadership in technology; and

8) confronting China and managing the greatest geopolitical test of the 21st century, i.e. relations with China, which is the only country with economic, diplomatic, military and technological power to seriously challenge the international system and equilibria.

The eighth medium-term guideline for the national security strategy sees China as an important competitor. These guidelines clearly show that competition still sets the tone in the way President Biden’s Administration’s manages relations with China, as was the case in the previous four-year period.

At a press conference on March 26, 2021, Chinese Foreign Ministry spokesperson Hua Chunying said the above statements were not surprising. It is clear that China and the United States are competing on different interest levels.

The key factor, however, is to compete fairly and justly and to improve oneself. The appeal to the other side is moderation and restraint, not life or death, or a zero-sum game. These words are along the same lines as Foreign Minister Wang Yi’s statement when he spoke about Sino-U.S. relations at a session of the National Congress of People’s Representatives of the People’s Republic of China (the Chinese Parliament). It is not only a response to the U.S. strategy of competition with China, but it also provides a model for the future way in which superpowers should proceed together.

The reality of Sino-U.S. competition is unavoidable, but competition can be divided into benign and vicious. The former is a winning model for “improving oneself and understanding the needs of the other side”.

Since Deng Xiaping’s reforms and opening up to international trade, China has begun its own reconstruction. It has continuously widened the scope for benign competition and has changed its mindset by actively embracing the world’s different political parties and participating in international competition. It has also inspired enthusiasm for innovation and creativity and made progress in various fields.

At the same time, development has also provided ample opportunities for countries around the world and injected growth momentum into the global economy: this is a typical example of China’s good interaction and common development with all countries around the globe.

Conversely, fierce competition means breaking rules and systems and even breaking the demarcation line to prevent or contain the opponent, and this is usually followed by fierce conflicts.

The two World Wars of the last century were extreme examples of violent competition between great powers: the first as a clash between capitalist imperialisms in search of new markets; the second as a result of mistakes made in the peace treaties that ended the Great War, plundering the losers and causing misery, resentment and chauvinistic desires.

In today’s world, competition without respect for the other side has not disappeared from the scene of history. Trump Administration’s frantic anti-China activity over the last four years has not only failed to make the United States ‘great again’, but has caused a linear decline in its national competitiveness, at least according to the World Competitiveness Yearbook 2020 published by the Lausanne-based International Institute for Management Development, which sees the United States dropping from third to tenth place. Besides the fact that its international image has seriously plummeted and Sino-U.S. relations have hit the lowest ebb since the establishment of diplomatic relations. It can clearly be seen that fierce competition will only restrain its promoters and ultimately harm the others, themselves and the international community.

In December 2020 General Mark Alexander Milley, Chairman of the Joint Chiefs of Staff (a body that brings together the Chiefs of Staff of each branch of the U.S. military and the Head of the National Guard Bureau), said in an interview that ‘great powers must compete. This is the essence of the world’.

There is no problem with this statement: it is not wrong, but it is important to maintain a state of competition and contact between major powers, precisely to ensure that it does not turn into conflicts or wars that are fatal to mankind and the planet as a whole.

The gist of the speech shows that some U.S. elites also believe that China and the United States should adhere to the principle of ‘fighting without breaking each other’. The importance and the overall and strategic nature of Sino-U.S. relations determine that no one can afford the zero-sum game, which is a lose-lose as opposed to a win-win game – hence we need to ensure that competition between the two countries stays on the right track.

Competition between China and the United States can only be fair and based on rules and laws. This is the basic rule of international relations, in accordance with the Charter of the United Nations as its point of reference.

Regardless of the common interests of China, the United States or peoples in the world, both countries should make this system promote healthy and fair competition, thus turning it into the greatest value of sharing and cooperation.

China’s goal has never been to surpass the United States, but to advance steadily and become better and no longer a prey to imperialism and colonialism as it has been the case since the 19th century, when Great Britain waged the two Opium Wars (1839-1842 – 1856-1860) to have not only the opportunity, but also the right to export drugs to the Middle Empire – hence Great Britain was the first pusher empowered and authorized by the force of its weapons.

Although – by its own good fortune -the United States has never been England, it should not always be thinking of surpassing the others or fearing being overtaken by the others, but should particularly focus on Secretary of State Blinken’s first seven priorities and raise its expectations.

China should show its traditional political wisdom and manage Sino-U.S. relations in accordance with the principles of non-conflict, non-confrontation, mutual respect and win-win cooperation, so that Sino-U.S. relations can develop in a healthy and stable way for the good of the whole planet.

Continue Reading

Publications

Latest

South Asia12 hours ago

Pakistan and Germany are keen to Sustain Multifaceted and Mutually beneficial Cooperation

Pakistan has varied history of relationship and cooperation with other countries in international arena. Despite of proactive foreign policy Pakistan...

New Social Compact14 hours ago

Disability policies must be based on what the disabled need

Diversity policies, especially when it comes to disabled people, are often created and implemented by decision makers with very different...

WAN WAN
Urban Development16 hours ago

Preparing (Mega)Cities for the 2020s: An Inmovative Image and Investment Diplomacy

Globalized megacities will definitely dominate the future, in the same way as colonial empires dominated the 19th century and nation-states...

modi xi jinping modi xi jinping
East Asia18 hours ago

The Galwan Conflict: Beginning of a new Relationship Dynamics

The 15th June, 2020 may very well mark a new chapter in the Indo-Chinese relationship and pave the way for...

airplane travel airplane travel
Reports20 hours ago

Aviation Sector Calls for Unified Cybersecurity Practices to Mitigate Growing Risks

The aviation industry needs to unify its approach to prevent cybersecurity shocks, according to a new study released today by...

diesel engine diesel engine
Tech News20 hours ago

7 Driving Habits That Are Secretly Damaging Your Diesel Engine

When it comes to driving, no one is perfect, and everyone makes mistakes. But could these habits be costing you...

sofa gate erdogan sofa gate erdogan
Europe22 hours ago

Ммm is a new trend in the interaction between the EU and Turkey:”Silence is golden” or Musical chair?

On April 6, a protocol collapse occurred during a meeting between President of Turkey R. Erdogan, President of the European...

Trending