DATE=8/7/98
TYPE=BACKGROUND REPORT
NUMBER=5-41107
TITLE=SANCTIONS V. U-S CONSTITUTION
BYLINE=ELAINE JOHANSON
DATELINE=NEW YORK
CONTENT=
VOICED AT:
INTRO: SOMETIME IN THE NEXT TWO OR THREE MONTHS, A U-S FEDERAL
COURT IN MASSACHUSETTS (IN THE NORTHEASTERN UNITED STATES) IS
EXPECTED TO RULE ON WHETHER A STATE LAW PENALIZING LOCAL
COMPANIES THAT DO BUSINESS WITH BURMA VIOLATES THE U-S
CONSTITUTION. V-O-A CORRESPONDENT ELAINE JOHANSON HAS A SPECIAL
REPORT FROM NEW YORK ON THE ISSUE OF SANCTIONS:
TEXT: SEVERAL LOCAL GOVERNMENTS IN THE UNITED STATES --
INCLUDING NEW YORK CITY AND SAN FRANCISCO -- HAVE BANNED BUSINESS
DEALINGS WITH BURMA TO PROTEST ITS SUPPRESSION OF DEMOCRACY.
RECENTLY -- BOTH NEW YORK CITY AND NEW YORK STATE -- ANNOUNCED
SANCTIONS ON BANKS IN SWITZERLAND TO FORCE THE SWISS TO NEGOTIATE
WHAT HOLOCAUST SURVIVORS WOULD CONSIDER A FAIR SETTLEMENT FOR
PROPERTY CONFISCATED BY THE NAZIS AND HELD IN SWITZERLAND.
AND, NEW YORK'S SANCTIONS AGAINST WHITE-RULED SOUTH AFRICA IN THE
1980'S ARE ALMOST LEGENDARY.
BUT ARE THESE MEASURES LEGAL? OPPONENTS OF LOCAL ACTION SAY THE
U-S CONSTITUTION GIVES THE FEDERAL, OR NATIONAL GOVERNMENT,
VIRTUALLY EXCLUSIVE RIGHTS TO CONDUCT FOREIGN POLICY AND FOREIGN
COMMERCE.
ERIC WOLLMAN, A NEW YORK OFFICIAL WHO HELPED CRAFT THE CITY'S
SANCTIONS POLICY TOWARD SWITZERLAND, SAYS NEW YORK IS NOT
ENTERING INTO TREATIES OR ALLIANCES OR IMPOSING IMPORT DUTIES,
SIMPLY DECIDING WHERE IT WILL OR WILL NOT TAKE ITS BUSINESS:
//WOLLMAN ACT//
WE ACT AS A PURCHASER OF GOODS AND SERVICES -- OR WHAT
THEY CALL MARKET PARTICIPANT. I THINK IT WILL BE VERY
DIFFICULT TO SHOW THAT CITIES AND STATES CAN'T SPEND
THEIR MONEY AS THEY WISH. AND THAT'S BASICALLY WHAT THE
CITY OF NEW YORK WOULD BE DOING BY WITHHOLDING BUSINESS
FROM SWISS BANKS AND OTHER SWISS BUSINESSES.
//END ACT//
THE STATE DEPARTMENT HAS PROTESTED THE SANCTIONS AS AN OBSTACLE
TO U-S / SWISS RELATIONS. MR. WOLLMAN SAYS NEW YORK IS MORE
CONCERNED WITH GOOD CONDUCT THAN GOOD RELATIONS.
AMONG THOSE ON THE OTHER SIDE OF THE ISSUE IS DAVID SCHMAHMANN
(SHMAH-MAHN), AN INTERNATIONAL LAWYER FROM BOSTON -- WHERE THE
CASE ON BURMA SANCTIONS WILL BE HEARD. MASSACHUSETTS ALSO HAS A
LAW PROHIBITING STATE BUSINESSES FROM DEALING WITH THE BRITISH
ARMY BECAUSE OF NORTHERN IRELAND. MR. SCHMAHMANN SAYS HE
SYMPATHIZES WITH CAUSES. BUT, HE ADDS, THERE IS A RIGHT WAY AND
A WRONG WAY TO PRESS FOR ACTION:
//SCHMAHMANN ACT//
THESE ARE ALL LEGITIMATE VIEWS WITHIN THE COUNTRY AND
THEY ALL NEED TO BE EXPRESSED. BUT THE PROBLEM IS THEY
HAVE TO BE EXPRESSED BY PETITIONING CONGRESS AND THE
FEDERAL GOVERNMENT TO TAKE A CERTAIN STAND. YOU CAN'T
HAVE 50 STATES AND THOUSANDS OF CITIES WITH INCONSISTENT
APPROACHES, BRINGING INCONSISTENT PRESSURES TO BEAR ON
FOREIGN ENTITIES NO MATTER HOW THEY DO IT.
//END ACT//
THE SUIT AGAINST MASSACHUSETTS HAS BEEN BROUGHT BY A NATIONAL
TRADE GROUP. BUT THERE HAS BEEN NO LEGAL CHALLENGE TO LOCAL
SANCTIONS BY THE FEDERAL GOVERNMENT -- WHETHER AGAINST BURMA OR
SWITZERLAND. AND THERE WAS NO CORPORATE CHALLENGE TO SANCTIONS
AGAINST APARTHEID SOUTH AFRICA.
THE BOSTON ATTORNEY SAYS THESE ARE MOSTLY POLITICAL QUESTIONS.
HOWEVER, IN THE CASE OF SOUTH AFRICA, MR. SCHMAHMANN NOTES MAJOR
CORPORATIONS MADE A TACTICAL DECISION TO HONOR THE SANCTIONS
BECAUSE THERE WAS A FAIRLY BROAD CONSENSUS IN THE UNITED STATES
AGAINST APARTHEID:
//SCHMAHMANN ACT//
IT WOULD HAVE BEEN A VERY BRAVE CORPORATE ENTITY THAT
WOULD HAVE TAKEN A GOVERNMENTAL UNIT TO COURT IN AN
ATTEMPT TO STRIKE DOWN SANCTIONS AGAINST SOUTH AFRICA.
I THINK THAT IT WOULD HAVE BEEN A PUBLIC RELATIONS
DISASTER. AND WHETHER OR NOT THE SOUTH AFRICAN
SANCTIONS WERE CHALLENGED IS REALLY A SEPARATE ISSUE AS
TO WHETHER AMERICAN FOREIGN POLICY AND AMERICAN FOREIGN
COMMERCIAL RELATIONS REALLY OUGHT TO BE SUBJECT TO THIS
KIND OF PAROCHIAL INTERFERENCE.
//END ACT//
SUPPORTERS OF LOCAL SANCTIONS POINT TO SOUTH AFRICA AS THE
PRECEDENT THAT WORKED. OPPONENTS SAY THE TROUBLE IS PRECEDENTS
TEND TO ACQUIRE A LIFE OF THEIR OWN. THEY ARGUE THE SOUTH
AFRICAN EXAMPLE APPEARS TO HAVE ENCOURAGED LOCAL GOVERNMENTS IN
THE UNITED STATES TO THINK ABOUT SANCTIONS MORE EASILY FOR
WHATEVER CAUSE IS POPULAR AT THE MOMENT.
THE COURT IN BOSTON COULD SET ANOTHER KIND OF PRECEDENT IF IT
RULES AGAINST THE RIGHT OF MASSACHUSETTS TO IMPOSE SANCTIONS ON
BURMA. CITY AND STATE LEGISLATURES AROUND THE COUNTRY -- AND
LIKELY A FEW FOREIGN GOVERNMENTS -- WILL BE WATCHING CLOSELY.
(SIGNED)
NEB/NY/EJ/LSF/JO
07-Aug-98 2:17 PM EDT (1817 UTC)
NNNN
Source: Voice of America
.
|
NEWSLETTER
|
|
Join the GlobalSecurity.org mailing list
|
|
|
