[PEN-L:30620] Re: Re: Re: Moussolini's Corporation

["Ian Murray" <seamus2001@xxxxxxxxx>]

----- Original Message -----
From: "Lisa Stolarski" <lisa.stolarski@xxxxxxxxxxx>



> Yikes, Ian.  I am not familiar with tort law or any of the other laws
James
> mentions here.  Could you break this down a little bit for me?  What I
> thinkI understand is that for the fascists public law is really the will
of
> private property owners because the fascists blurred the legislative and
the
> judicial realms.  So in enforcing the laws the powerful could change the
> laws. I can't be sure since you are mentioning laws that I only have a
vague
> understanding of what them mean.

=======================

Sorry. The JB piece grabbed me because he pointed to the delegative theory
of property and contract. See the post I just sent for some of the
historical background. It seems to me that the fascists had a much different
take on the public/private distinction and the individualism that it's
rooted in than US style liberalism. What would be interesting to find out
more information is just how Pareto's ideas made their way across the
Atlantic to the US and how that played out in influencing the development of
the US' economics and legal professions.


> Hummmmm.  If this is what the fascists were saying then I have this to say
> in response.  The WTO has ruled that every labor law they have
encountered,
> every environmental law, etc. to be a "barrier to fair trade and therefore
> "illegal under international law."
>
> Lisa
>
====================

It's a bit more complex than that, but to a very real extent some Nafta and
WTO rules do attempt to breakdown the distinction between regulations and
takings in order to intimidate national and sunational governments by trying
to go back to a fork in the history of law before the legal realists mounted
their attacks on the older theories of property rights.

Speaking of labor law and the WTO:

 Date: Thu, 26 Sep 2002 11:45:29 -0400
   From: Robert Howse <rhowse@xxxxxxxxx>
Subject: Re: potential WTO challenge to GSP conditionality with important
implications for human rights

In case you are not yet following it, I wanted to alert members of these
lists to a possible WTO dispute settlement claim that may threaten the
ability of WTO Members to use GSP preferences as a means of encouraging
human rights performance in developing countries.  India and several other
WTO Members are in the consultations phase with the EC in a challenge to
aspects of the EC's preference scheme, including incentives for inter alia
labor rights compliance.   The argument appears to be that such incentives
are discriminatory in a manner that is contrary to the Enabling Clause
which provides the ARt. I exemption that makes these preferences
GATT-legal, and that they frustrate development, whereas the Enabling
Clause suggests that preferences must further development.

Legally I do not believe that this is a strong claim.   It involves
bootstrapping aspirational language about the nature of the system of
preferences that is borrowed from UNCTAD into legal conditions.  But the
language  in question never appears in the Enabling Clause as legal
conditions of the MFN exception. And even if such bootstrapping were
accepted, there are strong arguments that such conditionality is not
discriminatory and that it serves not to undermine development properly
understood but to further it. Nevertheless, given the refusal to even
discuss labor and human rights issues at the WTO, preferences remain an
important element of leverage, for both the EC and the US, and panels have
sometimes bought weak legal arguments in the past, so this is a high stakes
case if it goes to litigation.  Moreover, if a panel were to find for
India, and determine that the EC was not meeting the requirements in the
Enabling Clause for the MFN exception needed to operate the preferences,
then Art. XX would be in play, for the first time in a labor-rights-related
claim.  Doubtless the EC would argue XX(a) public morals, as well as
perhaps XX (b) as well inasmuch as labor rights conditionality is
concerned.  One cannot underestimate the importance of judicial
consideration of Art. XX in this context to the entire trade-human rights
issue.

List members should therefore follow the development of this dispute very
closely.   I would like to try and establish an informal brains trust of
WTO legal minds that would delve into every aspect and argument implied in
this claim with a view to writing op-eds, amicus briefs, and other public
interventions in support of labor rights conditionality.  In the US
congressional staff should also be sensitized the to the potential
significance of the dispute.  Anyone interested?  Also, some of you
probably have more up to date information than I do on the state of
play--obviously, if the dispute is on the verge of out of court settlement
for instance I would want to hear about it!




best,


rob