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

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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.

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Americas

What is the pocket pinch to stay at the White House?

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If you’re thinking about running to be leader, get ready to pony up more than half a billion dollars, judging from the last two campaign cycles and current fundraising trends.

Presidential elections are an expensive venture. At first glance, it may not appear that standing on a stage telling people why they should vote for you would be costly. However, the costs associated with getting a candidate’s name out there nationwide for all to become familiar with can be quite expensive.

It’s very difficult to track campaign expenditures across time. Changes in the numbers might be due to different campaign finance disclosure requirements. For example, thanks to the Citizens United decision in 2010, politicians can rely on outside groups called Super PACs to run advertisements, even if they technically aren’t supposed to “coordinate” with each other. Campaign operations have also changed significantly over the last few decades, evolving from a focus exclusively on TV and radio to robust online advertisements. Even when adjusted for inflation the amount of money it takes to become President has increased more than 250-fold from Abraham Lincoln to Donald Trump. Super PACs have no limit on contributions. Corporations, labour unions, and other organizations may contribute as much as they want.

The catch is that a Super PAC must be independent and cannot contribute directly to a candidate and must disclose their donors (although by funnelling through a non-profit organization, disclosure rules can often be avoided or obfuscated). Super PACs can run ads supporting preferred candidates or bashing their opponents — they are just not able to coordinate with the candidate’s campaign or have a direct connection.

The amount of funds raised from corporations and other groups outside traditional campaign committees increased with the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission which, along with other legal developments, loosened laws around election fundraising and spending. In addition, it seems campaigns are feeling more pressure, with each subsequent funding cycle, to raise more and outside groups are getting better at raising money.

These loopholes allow candidates to raise money through Super PACs they support and remain separate enough to stay within the law. Jeb Bush delayed his campaign specifically to raise as much money as possible directly through Super PACs. You are not violating any laws if you have not declared as a Presidential candidate yet.

To win the 2004 election, George W. Bush spent $345 million, which was the most expensive campaign in history at the time. The record didn’t last long: In 2008, according to the Centre for Responsive Politics, the total amount of money spent by and for Barack Obama came in at $730 million, far surpassing Republican nominee John McCain, who spent a mere $333 million—and more than double Bush’s outlay.

Usually, the candidate who spends the most money wins. However, that did not prove true during the 2016 elections, when the runner-up, Democratic candidate Hilary Clinton, spent $768 million, nearly twice as much as the eventual winner, Republican candidate Donald Trump, who spent $450 million. Many also noted that the figure could have been even higher had Trump not used free media coverage.

But fundraising in the 2020 presidential race is outpacing that of the last two campaigns. Bernie Sanders with about $74 million, Massachusetts Sen. Elizabeth Warren with about $60 million and Pete Buttigieg, the mayor of South Bend, Indiana, with $51 million, based on Federal Election Commission data posted on Oct. 16. Despite polls showing former Vice President Joe Biden as the front-runner, his fundraising lagged at about $37 million.

Since Trump is planning to run for re-election in 2020, he chose not to terminate his campaign committee. He has targeted $1 billion as the total he would like to raise for his campaign.  The Trump campaign said it raised $30 million in the first quarter of 2019, bringing the campaign’s cash on hand to $40.8 million.

It’s worth wondering if these numbers are anything to worry about. Is a billion dollars that much money when it comes to deciding who should be President? To keep things in perspective, Americans spent over $1.8B on peanut butter in 2017 alone. Picking a President seems much more serious and rather inexpensive by comparison, even if Trump decides to advertise during the Super bowl.

To address the original question: you can spend as much as you want in running for President, but if you want to win, the ante is somewhere around $500 million, and it may actually top $1 billion per major party candidate this year. Yes, it seems outrageous, but keep things in economic perspective. We spent almost $600 million on snacks during the last Super Bowl. Surely, a Presidential election is more important than halftime guacamole.

So, if you’re planning to make a run for the White House, you’ll want to start saving your money now!

Note: All information collected from the data in Investopedia website

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Presidential Evil And American Good: Can They Coexist?

Prof. Louis René Beres

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Niccolò Machiavelli

If men or nations do evil in a good cause; if they cover themselves with guilt in order to fulfill some high responsibility; or if they sacrifice some high value for the sake of a higher or equal one they make a tragic choice.-Reinhold Niebuhr, The Irony of American History

When Protestant theologian Reinhold Niebuhr posited the tragic choice of evil for the sake of good – a choice inherent in both the “human condition” and the anarchic state of nations – he was not focused on differences within a specific national government. Today, however, in the dissembling United States, a similarly tragic choice confronts America’s citizens in particular. Here the apparent choice is bold and straightforward:

               Shall Americans support an evil president in the greater interest of some wider political good?

               Though plausible in principle, no such dilemma actually exists. In  current US political circumstances, there is no supportable argument that Donald Trump’s disjointed and seat-of-the-pants policies, either foreign or domestic, can bestow any verifiable net benefits. To the main point, by allowing a willfully corrosive president to act in its name, the United States has defiled American national interests and  global human interests simultaneously.

               Apropos of proper logic, one presumptive conclusion is unambiguous: There is notragic” choice involved here (the choice identified above by Realpolitiker[1] Reinhold Niebuhr),  just an obvious and overriding imperative to rid both nation and planet of Trump-era toxicity. Prima facie, in this case at least, presidential evil and American good are mutually exclusive.

               There is more. With each passing day, weary Americans must face several stark and ironic contradictions. At an historical  moment when uplifting numbers of good people are making great personal sacrifices to help others (e.g., medical communities working against Covid19;  firefighters in the west; hurricane search-and-rescue personnel in the south, etc.), a US president acts wittingly to undermine his own country’s safety and security. This behavior includes a continuously incomprehensible stance of support for Vladimir Putin, the Russian president who it would appear can wish no harms upon the United States.[2]

               While according to any reasonable criteria of intellectual assessment these cumulative Trump behaviors are injurious and inexcusable,[3] millions of US citizens still maintain that his plainly deranged presidency represents a calculable “net positive.”

               What does this really mean? By definition, even now, these Trump-supporting Americans believe that manifest presidential evil can be compatible with national welfare and national progress. Somehow, in this case, they believe that such once-unimaginable evil can also be good. Credo quia absurdum, said the ancient philosophers, “I believe because it is absurd.”

               How can all this be helpfullyexplained? Conceptually, it would be best to begin at the beginning. The contradiction we are so painfully witnessing with this stumbling White House administration is not uniquely American. Already, back in the sixteenth-century, philosopher Niccolo Machiavelli observed famously,  “A man who wishes to  make a profession of goodness in everything must necessarily come to grief among so many who are not good.”

               Machiavelli need not always be clarifying or relevant. There is nothing here to suggest that this classic argument from The Prince would in any way support Donald J. Trump’s foreign and/or domestic policies. This president’s particular descents into wrongdoing and dereliction are not an expression of any gainful policy “realism.” Rather, they are singularly lamentable expressions of wantonly gratuitous harms.

               In an unsteady age when the risks of a nuclear war[4] could coincide with expanding biological destructions – that is, with the devastating microbial assaults of a Corona-Virus “plague”[5] – such harms can have no conceivable justifications.

               None at all.

               There is more. Context is important. All humans, wherever they may live, must bear persistent witness to the distressingly thin veneers of  “civilization.” Recalling William Golding’s marooned boys in Lord of the Flies, we must repeatedly discover, beneath any delicate varnish of supposed coexistence, a lascivious human inclination to brutalize  certain “others.”

               However informally it may be calculated, this primal inclination is “normally” judged agreeable and cost-effective.

                Science and technology notwithstanding, empathy and compassion remain in calculably short supply on planet earth. Accordingly, substantial fractions of humankind remain slouched in a perpetually bruising darkness, hoping not to create promising new forms of human civilization, but to “better” inflict myriad varieties of unspeakable slaughter. During the debilitating “Trump Years,” years of steadily-expanding presidential evil, the United States has made an egregious choice.

               Knowingly, it has placed itself directly within such nefariously cascading “darkness.”

               As “analysts,” Americans should now be more policy-specific. In Donald Trump’s United States, there is always some blatantly self-serving presidential explanation for human rights abuse. To wit, we are instructed, the latest victims are despicable, “illegal” or, in some ways at least, not fully human. Always, they are “others,”  mere others. And as we are repeatedly informed by the president’s reliably obsequious minions, this particular victim population is not at all like us. It is deserving of necessary “punishment.”

               Credo quia absurdum.  “I believe because it is absurd.” It is a very old story. The struggle between “Us and Them” is very plainly generic, not US-specific. If we are “good,” they are not. Period. Such grimly bifurcated reasoning is especially perverse and ironic today, during a pandemic crisis when the common biological “oneness” of the human species couldn’t possibly be more obvious

               In high tragedy, as originally performed back in fifth-century BC Athens, humans were routinely presented as inherently flawed guests in a divinely-created universe. This ancient presentation, though presently “modified” with assorted  regional and religious nuances, remains difficult to dispute. After all, following even a “small” nuclear war –  a plausible event, at least in the currently downward trajectory of world affairs – cemeteries the size of whole cities could be needed to bury the uncountable dead.

               Then, recalling the pre-nuclear imagery of poet T S Eliot, there could be no “lilacs breeding out of the dead land.” Then, there would be no discernible “good,” only variously decaying bearers of “evil.”

               Promptly, in far-flung parts of the world, both within and between individual nation-states, a “waste land” could become the new normal. Such “normalcy,” one substantially worse than even the new-normal of Covid19 life on earth, ought never become an intentionally sought-after expectation. For rational thinkers, this point hardly requires any present-moment clarifications.

               No sane person can be in favor of necropolis.

               “Art is a lie,” noted Pablo Picasso, “that lets us see the truth.” In this paradoxical description, theatrical tragedy can remind us that earthly spheres of order, justice and good remain severely compromised  by evil, and that  no amount of technology or science can ever compensate for our species’ multiple leadership transgressions. If, as in high tragedy, we humans should sometimes be punished in apparent excess of our specifically personal wrongdoings –  “Whom God wishes to destroy,”  warned the Greek tragedian, Euripides, “He first makes mad.” –  even this “unfair” fate could not declare us to be “innocent.”

               Not reasonably.

               There is more. Always, it is the gripping silence and self-inflicted fears of ordinary people that sustain the human world’s abundant madness. Often, these primal fears center on certain irrepressible expectations of personal death. But sometimes they can also rest on various corollary anxieties about personal exclusion. More than anything else, and for several markedly different yet intersecting reasons, we humans continue to seek the comfortingly calming warmth of  “mass.”

               It is the “mass man.” an elucidating and derivative construct of Spanish existentialist philosopher Jose Ortega y’Gasset (The Revolt of the Masses,1930) who created US President Donald J. Trump. Stated differently, this American president, who promises to “Make America Great Again” is the openly evil product of American “mass.”[6] By itself, this collective does not intend to create evil, but intent is not at all determinative.

               It is quite enough that the mass prefers baseless opinion to documented fact and a willful anti-Reason to proper learning or tangible science.

               There is more. As a species, not just as Americans, there exists no compelling or defensible reason for us to fawn upon myriad past mistakes. Now, instead, with a view to achieving some still-plausible and verifiable progress, Americans must look back courageously. “How much treasure,” they must finally inquire, “how much science, how much labor and planning, how many vast oceans of sacred poetry, have we already ransacked, just to render our disparate human civilizations even more miserable and more imperiled?”

               I don’t know each pertinent answer. I do know, however, that our shallow and corrupted civilizational institutions, including America’s humiliating presidential elections, can never save us. This nation’s most revered universities,  perched deliberately above the distressingly mundane clamor of work, politics and family, remain unmindful of the world’s most urgently important intellectual questions.

               Thoroughly unmindful.

               Unassailably, though painfully indelicate to acknowledge, higher education in the  expansively deranged Trump-Era proceeds hand in hand with a ubiquitously crude and predatory commerce. In partial consequence, our colleges and universities shamelessly crush most residual reflexes of lingering student intellect or individuality. This crushing is not undertaken with any insidious intent – and the challenges to academic success during a pandemic are anything but minor –  but the US posture of anti-Reason is nonetheless destructive. Sorely destructive.

               In today’s Trump-defiled United States, American Transcendentalist philosopher Ralph Waldo Emerson’s once venerable goal of a people that is “plain living and high thinking” is more than just forgotten. This once-lofty objective presently now lies very far beyond any identifiable popular interest or hint of public imagination. Why not? Living together with unhidden presidential evil, what else should we expect?

                The American university, a dutifully obliging adjunct of the wider corporate/political universe, now lies distant not only from human learning, but also from human survival. French philosophers of the eighteenth-century Age of  Reason had preferred to speak optimistically of a siècle des lumieres, a “century of light,” but today, the ivy-covered walls are inestimably fouled by a congealing darkness, by a suffocating pall of excruciating conformance, vulgar self-interest and even a peculiarly-fashionable loathing of anything detached from money.

               There is a professionally favored euphemism here. It’s called “wealth maximization.” The language provides cover for a nation’s abject indifference to serious learning.

               None of this devaluation was initially created by the Trump “ascendancy,”[7] but it has been strongly reaffirmed in absolutely every respect by a starkly unworthy American president.[8]

               As an easily verifiable matter of human history, resisting evil has had little to do with human intelligence. More often than we may care to admit, such intelligence is conveniently manipulated to justify or enlarge certain “others'” most excruciating forms of  human suffering. Indeed, looking over the still-mounting wreckage of Donald Trump’s presidency in the United States, we see the palpably grim results of such manipulation,  both domestically and in various other countries harmed by the dissembling American foreign policies.

               In some cases, these are harms of US omission or inaction, rather than of commission. A specific case in point would by Syria, where Trump’s immutable unwillingness to get on the wrong side of Vladimir Putin has already created societal disintegration and unspeakable torment.[9]

               The main theme or question before us allows only a single coherent response. There is no way that a “good” American society can be created or sustained by an “evil” American president. Period. Before the United States allows itself to become even more thoroughly lost to any still credible hopes for human improvement  and national survival, American citizens will have to build more purposefully upon this rudimentary wisdom. To be sure, we remain disturbingly far from understanding (let alone electing) Plato’s “Philosopher King,”[10] but now we are at least better advised to reject American presidential evil at absolutely all costs.

               Donald J. Trump does no evil for the sake of good. There is nothing “tragic” about his persistent across-the-board choice of evil              postures and policies. In essence, he makes these barbarous choices because he is authentically committed to evil for evil’s own sake.

               Left uncorrected, Trump will continue to bring to these deeply unhappy United States a self-inflicted future of national humiliation and determined anti-reason.

               No such future could ever “make America great again.”


[1] On Realpolitik or power politics, see, by this author, Louis René Beres, Reason and Realpoliitk: US Foreign Policy and World Order (Lexington Books, 1984). See also his later book: Louis René Beres, America Outside the World: The Collapse of US Foreign Policy (Lexington Books, 1987).

[2] Incontestably, of course, Russia remains a significant nuclear threat to the United States. See, for example, by this author, Louis René Beres, at The War Room (US Department of Defense: Pentagon): https://warroom.armywarcollege.edu/articles/nuclear-decision-making/

[3] Journalist Bob Woodward called Trump’s efforts to conceal his knowledge of the virus from the public “one of the most tragic, outrageous acts by a sitting president in, maybe in history.”

[4] For early and informed assessments of nuclear war risks and consequences by this author, see: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd. ed., 2018);   Louis René Beres,  Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington MA:  Lexington Books, 1983);  Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (Lexington MA;  Lexington Books, 1984); and Louis René Beres, ed.,  Security or Armageddon: Israel’s Nuclear Strategy (Lexington MA:  Lexington Books, 1986). See also, by Professor Beres, at The Bulletin of the Atomic Scientists: https://thebulletin.org/2016/08/what-if-you-dont-trust-the-judgment-of-the-president-whose-finger-is-over-the-nuclear-button/

[5] Such biological assaults have thus far been considered only as natural occurrences. Going forward, however, it is possible that pertinent pathogens could be weaponized, and that future instances of “plague” could emerge as a deliberate form of warfare and/or terrorism.

[6]Like Jose Ortega y’Gasset, the Swiss psychologist Carl G. Jung spoke usefully of  “mass.” Earlier, Friedrich Nietzsche, had referenced this demeaning phenomenon as the “herd;” Sigmund Freud, as the “horde;” and Soren Kierkegaard, as the “crowd.”

[7] See,  by this author, at The Daily Princetonian, Louis René Beres: https://www.dailyprincetonian.com/article/2018/06/a-core-challenge-of-higher-education

[8] See, by this author, at Yale Global Online, Louis René Beres: https://yaleglobal.yale.edu/content/trump-and-destruction-american-mind

[9] These are not just matters of moral responsibility. The United States is obligated by the international law of human rights to intervene on behalf of such cruelly victimized populations. These international legal obligations are also incorporated in the national law of the United States, per Article 6 of the US Constitution (the “Supremacy Clause”) and several major US Supreme Court decisions. In the precise words of Mr. Justice Gray, delivering judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).

[10] See, by this author, at Oxford University Press, Louis René Beres: https://blog.oup.com/2011/08/philosopher-king/

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In Praise of the Lioness of Law: Ruth Bader Ginsburg and her Jurisprudence

Punsara Amarasinghe

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image credit: Wikipedia

The death of the US Supreme Court Judge Ruth Bader Ginsburg has created an abyss in the court for the liberal voice where justice Ginsburg was seen as the linchpin of the liberal block of the Supreme Court at a time when that block was shrinking. Especially late judge had vociferously advocated for women ‘rights, environmental issues and often came up with unique dissents in delivering her judgements which were propelled by her jurisprudence which embodied the solemn ideal in American legal system “Equal Protection under the Law “. She was on a quest to defend the delicate balance between honoring the timelessness of American Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances.

She grew up in an era where men held the helm in every aspect of social life and especially the legal profession was utterly dominated by men. Recalling her legal studies at Harvard law school in the 50’s judge Ginsburg had stated later how she was once asked by the Dean of Harvard law school to justify her position as a law student that otherwise would have gone to a man. Yet she had the spunk to overcome all the obstacles stood on her way and excelled as a scholar becoming the first female member of the Harvard Law Review.

In tracing her legal career that it becomes a salient fact, Judge Ginsburg marked her name in American legal history even decades before she joined the bench. While at the American Civil Liberties Union in the early seventies she made an upheaval in American in legal system in famous Supreme Court Case Reed Vs Reed. In Reed Vs Reed the brief drafted by Ginsburg provided an astute analysis on the 14th Amendment to the US Constitution, the Equal Protection Clause. Ginsburg’s brief changed the aged long practice existed in the State of Idaho on favoring men over women in estate battles by paving the path for a discourse on gender equality rights in the USA.

Judge Ginsburg’s appointment to the Supreme Court in 1994 during Clinton administration marked the dawn of new jurisprudential chapter in the US Supreme Court. Two terms later, in the United States v. Virginia (VMI), Justice Ginsburg applied her lucid perspective to a sharply disputed constitutional claim. The United States challenged Virginia’s practice of admitting only men to its prestigious military college, the Virginia Military Institute. Writing for six Justices, Ginsburg held this policy unconstitutional under the Equal Protection Clause. In reaching this result, Ginsburg adroitly cut away potentially confounding issues about women’s participation in the military or the advantages of single-sex education.

Her robust activism in securing gender equality often attracted the admirations of the feminist scholars and activists, but it should be noted that her contribution was not only confined to the protection of gender equality. She was a robust critique of racial dissemination which still pervades in American society and she frequently pointed out how racial discrimination has marred the constitutional protections guaranteed to every citizen. Especially in the case of Gratz Vs Bollitnger, she stressed on the commitment that the state ought to fulfil by eliminating the racial biases existing employment and education. Moreover, disabled citizens. In Olmstead v. Zimring, she held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” violating the Americans with Disabilities Act.45 She elaborated a two-fold concept of discrimination, noting that unneeded institutionalization both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”.

In remembering the mortal departure of this prudent judge that one cannot forget her keenness in incorporating international law into her judgements regardless of the disinclination shown by conservative judges like Antony Scalia. Going beyond the mere textualism approach to the law, Ginsburg’s jurisprudence was much more akin to using international law to make substantive decisions. For instance, in her concurring verdict in Grutter Vs Bollinger, Justice Ginsburg relied upon international human rights law, and in particular upon two United Nations conventions, to support her conclusions.

Indeed, the demise of Ruth Ginsburg is a major blow for the liberalists in the USA, especially in an era where liberalist values are at stake under the fervent rise of populist waves propounded by Donald Trump. Especially late judge had been one of the harsh critics of Trump even before ascendency to the Oval office. The void created by the demise of judge Ginsburg might change the role the US Supreme Court if the successor to her position would take a more conservative approach and it will fortify the conservative bloc in the US Supreme Court. Trump has already placed Justices Neil Gorsuch and Brett Kavanaugh and the third pick would more deeply entrench the conservative views in the US Supreme Court, which would inevitably undermine the progressive policies taken during Obama’s administration towards issues such as the environment. The political storm appeared after the death of the late judge has already created a tense situation in US politics as president Trump is determined to appoint a judge to fill before the presidential election in November.

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Afghanistan is staring at a massive political uncertainty with the United States preparing to exit the war-torn nation by 2021....

Terrorism5 hours ago

Why FATF treats India as a protégé and Pakistan as a bête noire?

Indian media is never tired of describing Pakistan as hub of money laundering and terror financing in the world.  Indian...

New Social Compact7 hours ago

Women During Covid Era

Authors: Priyanka Singh and Sujeet Singh* No Country is cent percent successful in providing safe haven to its Women, her...

Energy News10 hours ago

Renewable Energy Jobs Continue Growth to 11.5 Million Worldwide

Renewable energy continues to bring socio-economic benefits by creating numerous jobs worldwide, according to the latest figures released by the...

Europe11 hours ago

From Prince to Duce: An in depth study about Machiavellianism in the Fascist Doctrine

Although both philosophies of Machiavellianism and Fascism are almost 400 years apart, there is no doubt that the theories of...

Energy News13 hours ago

Pakistan Making Shift to Clean Power Production and Lower Energy Costs

Today, the World Bank’s Board of Executive Directors approved $450 million in financing to support Pakistan’s transition to renewable energy...

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