free trade, unilateral and economic trade sanctions

References

  1. Massachusetts. See Act of June 25, 1996, ch. 130, § l, 1996 Mass. Acts 210

  2. Berkeley, Santa Monica, San Francisco, and Oakland, CA; Takoma Park, MD; Ann Arbor, MI; Carborro, NC; and Madison, Wl. In addition, the cities of Seattle, WA, Chicago, IL, and Santa Cruz, CA have adopted measures expressing their disapproval of the Burmese regime. As of December, 1996, several other cities, including New York City, were reportedly considering similar measures. See, e.g., Paul Reines, Takoma Park Takes Global View with Burma- Related Ban. WASH. TIMES, Nov. 3, 1996, at A 11; Farhan Haq, Burma: Students Begin Three Days of Fasts for Burma, Inter Press Service, Oct.8, 1996.

  3. In June, 1989, the government of Burma changed the country's name to the Union of Myanmar and renamed the capital, formerly Rangoon, Yangon. The change was made, according to officials to "better reflect Burma's ethnic diversity. The term Burma connotes Burman, the nation's dominant ethnic group, to the exclusion of other ethnic minorities." Burma Takes Another Name: Now, the Union of Myanmar, N.Y. TIMES, June 20, 1989, at A5. Rangoon was changed to Yangon supposedly to reflect more faithfully contemporary usage. 2,000 Burmese Protest Attack on Opposition Chief. N.Y. TIMES, June 24. 1989, § 1, at 5.

  4. See infra notes 12-24 and accompanying text.

  5. Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104- 208, 110 Stat. 3009. Conditional sanctions on Burma were imposed as part of the Act making appropriations for foreign operations, export financing, and related programs for the year ending September 30, 1997. With regard to Burma, the Act provides that until the President certifies to Congress "that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government," certain sanctions were to be imposed, most notably an end to most bilateral assistance and obstruction by the United States of most multilateral assistance. Id. In addition, certain "conditional sanctions" were imposed. New investment in Burma was to be prohibited "if the President determines and certifies to Congress that, after the date of enactment of this Act, the Government of Burma has physically harmed, rearrested for political acts, or exiled Daw Aung San Suu Kyi or has committed large-scale repression of or violence against the Democratic opposition." Id. The Act further contemplated that the President would "seek to develop . . . a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma, including the development of a dialogue between the State Law and Order Restoration Council (SLORC) and democratic opposition groups within Burma." Id.

    "New investment" is defined in the Act to mean activity undertaken "on or after the date of certification" by the President as contemplated by the Act, and is limited to investment in developing resources located in Burma. Id. "New Investment" specifically does not include "the entry into, performance of, or financing of a contract to sell or purchase goods, services, or technology." Id.

    Finally, the Act required the President to submit periodic reports to certain Confessional committees on:

    Id.

  6. As of 1991, more than 900 localities passed resolutions supporting a "freeze" in the arms race; 197 demanded a halt to nuclear testing; 120 refused to cooperate with the Federal Emergency Management Agency's nuclear-war exercises; 126, plus 27 states, divested more than $20 billion from firms doing business in South Africa; 86 formed linkages with Nicaragua and, along with grassroots activists, provided more humanitarian assistance to the Nicaraguan people than all the military aid Congress voted for the contras; 80, along with the U.S. Conference of Mayors, demanded cuts in the Pentagon's budget; 73 formed sister-city relationships with Soviet cities (roughly 50 more are pending); 29 provided sanctuary for Guatemalan and Salvadoran refugees; 20 passed stratospheric protection ordinances phasing out ozone-depleting chemicals; and at least 10 established funded offices of international affairs -- in essence municipal state departments. Howard N. Fenton, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 Nw. J. Int¹l L. & Bus. 563, 564 n.1 (1993); see also Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 Va. L. Rev. 813, 815 n.l4 (1986) (listing measures taken in several states penalizing or proposing to penalize certain kinds of commerce in Iran, Northern Ireland, Poland, Sri Lanka and Libya).

  7. See generally Fenton, supra note 6; Garrett M. Smith, Board of Trustees v. City of Baltimore: Public Pension Fund Divestment of South African Securities Upheld, 49 Md. L. Rev. 1030 (1990); Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. Int¹l L. 821 (1989); Anne R. Bowden, Note, North Carolina's South African Divestment Statute, 67 N.C. L. Rev. 949 (1989); Patrick J. Borchers & Paul F. Dauer, Taming the New Breed of Nuclear Free Zone Ordinances: Statutory and Constitutional infirmities in Local Procurement Ordinances Blacklisting the Producers of Nuclear Weapons Components, 40 HASTINGS L.J. 87 (1988); Cinthia R. Fischer, Federal Preemption and the South African Sanctions: A Survival Guide for States and Cities. 10 Loy. L.A. Int¹l & Comp. L.J. 693 (1988); Barry E. Carter, International Economic sanctions: Improving the Haphazard U.S. Legal Regime. 75 Cal. L. Rev. 1162 (1987); Kevin P. Lewis, Dealing with South Africa. The Constitutionality of State and Local Divestment Legislation, 61 Tul. L. Rev. 469 (1987); Peter J. Spiro, Note. State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs. 72 VA. L. Rev. 813 (1986); Grace A. Jubinsky, Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, 54 U. Cin. L. Rev. 543 (1985); Christina Walsh, Note, The Constitutionality of State and Local Governments' Response to Apartheid: Divestment Legislation, 13 Fordham Urb. L.J. 763 (1985).

  8. The jurisprudence on the specific issue of the constitutionality of local requirements for divestment and debarment is almost non-existent. In Board of Trustees v. Mayor of Baltimore, 562 A.2d 720 (Md. 1989), cert. denied sub nom. Lubman v. Mayor of Baltimore, 493 U.S. 1093 (19901. a Maryland court upheld the constitutionality under the U.S. Constitution of a Baltimore law requiring divestment of a retirement fund from stocks in corporations doing business in South Africa. In United States v. City of Oakland, D.C. No. CV-89-03305-JPV (N.D. Cal. 1990), aff'd. 958 F.2d 300 (1992), the court granted the government summary Judgment against Oakland's nuclear free zone ordinance, which Included a contract debarment provision. In Regents of the Univ. of Michigan v. State. 419 N.W.2d 773 (Mich. App. 1988) and Springfield Rare Coin Galleries, Inc. v. Johnson, 503 N.E.2d 300 (Ill. 1986), state laws requiring divestment or denying tax exemption on the basis of a South African nexus were struck down, but on state constitutional grounds.

  9. And the process by which foreign policy is thus made. As reported in The Washington Times, for instance, Takoma Park's debarment ordinance "began in the spring, when supporters and Burmese students primarily from Montgomery College's Takoma Park campus began discussing the issue with residents and city officials.... At a September 9 City Council hearing, about 100 people stressed charges of drug trafficking, human rights and other abuses." Reiners. supra note 2. The outcome of that process, such as it was, has become a component of U.S. foreign trade policy.

  10. "In 1988, the SLORC-SLORC-that stands for the State Law and Order Restoration Council. What a name; what a name. Talk about a fascist name." 142 Cong. Rec. S8795 (daliy ed. July 25, 1996) (statement of Sen. D'Amato); see also id. at S8756 ("A military regime whose initials form the unenviable acronym SLORC, as if SLORCing out of the black lagoon.") (remarks of Sen. Moynihan).

  11. It is unclear, in the absence of such a luminous contrast, why Burma would stand so starkly apart from other regimes in Asia whose human rights records are arguably as poor. China, in its well documented dealings with Tibet and with its own citizens in Tienanmen Square, comes to mind as does Indonesia in its handling of East Timor. Likewise, the Vietnamese political system is not notable for its concern with individual liberties.

  12. Fenton, supra note 6, at 590.

  13. Berkeley, Cal., Resolutlon No. 57,881-N.S., IIIB and IVB (Feb. 28, 1995). Berkeley was also the first U.S. city to pass such a bill In the anti- apartheid campaign against South Africa. Tiffany Danitz, Senate May Follow State, City Actions to Punish Burma, WASH. Times, May 4, 1995. at A20.

  14. Act of June 25, 1996, ch. 130 § 22J(a), 1996 Mass. Acts 210, 212.

  15. Madison, Wis., Resolution No. 52,471, I.D. No. 17607 (Aug. 15, 1995); Santa Monica, Cal., Selective Purchasing Ordinance, Resolution No. 8966 (Nov. 28, 1995): Oakland, Cal., Selective Purchasing Law; Ann Arbor, Mich., Resolution Barring Purchases from Businesses in Burma and from Those Doing Business with Burma (Myanmar) (Apr. 15, 1996); San Francisco, Cal., Admin. Code § 12J.1 (1996); Carborro, N.C., Resolution Barring Purchases from Businesses in Burma and from Those Doing Business with Burma, Resolution No. 18/96-97 (Oct. 8, 1996); Takoma Park, Md., Ordinance 1966-33 (Oct. 28. 1996).

  16. Berkeley; Madison; Oakland; San Francisco; and Takoma Park.

  17. Berkeley, Cal., Resolution No. 57,881-N.S. (Feb. 28, 1995).

  18. Madison, Wis., Resolution No. 52,471, I.D. No. 17607 (Aug. 15. 1995).

  19. Santa Monica. Cal., Selective Purchasing Ordinance, Resolution No. 8966 (Nov. 28, 1995).

  20. Oakland, Cal., Selective Purchasing Law.

  21. The Massachusetts statute provides that a "restricted purchase list" will be compiled after consultation with "United Nations reports, resources of the Investor Responsibility Research Center and the Associates to Develop Democratic Burma, and other reliable sources." Act of June 25. 1996. ch. 130. 22J(b). 1996 Mass. Acts 210. 212.

    Oakland "shall make use of information provided by the Investor Responsibility Research Center and other reliable sources." Oakland. Cal., Selective Purchasing Law.

    San Francisco provides that "prohibited person or entity shall mean any person or entity designated by the Investor Responsibility Research Center" but provides that the city "shall have authority to delete from such list any person or entity designated by the IRRC as having investments or employees in Burma if any such entity demonstrates to the [city¹s] satisfaction that such designation is erroneous. San Francisco. Cal.. Admin. Code § 12J.1 (1996).

    Takoma Park's Free Burma list "shall be the most current list of all companies with direct investment or employees in Burma as listed by the Investor Responsibility Research Center." Takoma Park, Md., Ordinance 1966-33 (Oct. 28, 1996).

    Madison declares that it will use the "Council on Economic Priorities listing of companies with economic interest in Burma" in determining debarment. Madison. Wis., Resolution No. 52,471, I.D. No. 17607 (Aug. 15. 1995).

  22. The Massachusetts statute, for instance, is not clear as to whether a company needs majority ownership of the entity doing business in Burma to be debarred, or whether the determinant is either a majority stake or "operations, distribution agreements, or any other similar agreements in Burma." Act of June 25, 1996, ch. 130, § 22J(b),1996 Mass. Acts. 210, 212. The statute may also mean that "operations" is that level of activity which places a company on the "Restricted Purchase list," which is itself derived from third parties using their own formulae for such inclusion.

    San Francisco's "Prohibited Person or Entity" list is compiled by reference to the IRRC list, which is characterized as including "any person or entity . . . having investments or employees in Burma, or any person or entity that licenses any person or entity organized under the laws of Burma (Myanmar) to produce and market its products." San Francisco, Cal., Admin. Code § 12J.1 (1996). The ordinance is silent as to the implications of activity in Burma by a parent corporation, a partly owned subsidiary, or an affiliate, relying presumably on the discretion to be exercised by the lRRC in compiling its list.

    Takoma Park similarly contemplates compilation of a "Takoma Park Free Burma list" adopted from the IRRC list, with modifications to ensure debarment of "any person or corporation which has equity ties with any public or private entity located in Burma." Takoma Park, Md., Ordinance 1966-33 (Oct. 28, 1996). "Equity ties" is left undefined, and the measure itself lapses into opacity in debarring the purchase of any commodity from "any person for the express purpose of investing in business operations or trading with any public or private entity that is located in Burma or has direct investment or employees in Burma." Id.

    Takoma Park's ordinance also has the unique distinction of disqualifying any lawyer and law firm from performing legal services for the city if it represents "any person or corporation which has equity ties with any public or private entity located in Burma," or would even be "willing" to provide legal services to the SLORC regime. Id. (emphasis added).

    Berkeley's ordinance prohibits the city from entering into contracts with any person who "buys, sells, leases or distributes commodities in the conduct of business with, or who provides or is willing to provide personal services to . . . any person for the express purpose of assisting in business operations or trading with any public or private entity located in Burma." Berkeley, Cal., Resolution No. 57. 881-N.S., IIIB & IVB (Feb. 28, 1995) (emphasis added). While the measure provides that the City Manager may promulgate rules and regulations "necessary or appropriate to carry out the purpose and requirements" of the Resolution, as of yet none have been. Id.

    Oakland debars entities on a "List" compiled from the IRRC and "other reliable sources." Oakland, Cal., Selective Purchasing Law.

    Madison provides that it will use the list compiled by the Council on Economic Priorities to determine which entities have an "economic interest" in Burma, and then defines economic interest to include "(a) direct investment, (b) licensing and leasing agreements, and (c) the operation of sales outlets in Burma (Myanmar)." Madison, Wis., Resolution No. 52,471, I.D. No. 17607 (Aug. 15, 1995).

    Santa Monica's Ordinance, while resolving to debar contracts with entities doing business in Burma or purchasers of goods produced in Burma, in its text seems to prohibit only the purchase of goods actually made in Burma and to debar only entities actually doing business with SLORC or SLORC owned entities.

    Ann Arbor and Carborro simply prohibit contracts with entities "who do business" in Burma. Both measures are silent as to what level of activity is required to trigger the debarment provisions.

  23. See infra Part IIIB.

  24. Berkeley, Cal., Resolution No. 57, 881-N.S., IIIB & IVB (Feb. 28, 1995); Madison, Wis., Resolution No. 52,471, 1.D. No. 17607 (Aug. 15, 1995); Oakland, Cal., Selective Purchasing Law; San Francisco, Cal., Admin. Code § 12J.1 (1996); Takoma Park, Md., Ordinance 1966-33 (Oct. 28, 1996).

  25. U.S. Const. art. VI, cl.2.

  26. Id. art.1, §8, cl.3.

  27. Id. art. Vl, c1.2.

  28. "Although the two doctrines are closely related, they have evolved on distinct precedential foundations and, at the margins, may denote different thresholds of constitutionality." Spiro, supra note 6, at 834, 841. A Commerce Clause analysis may be "overshadowed" by the fact that local initiatives impinge on foreign relations. See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), discussed infra at Part II(b), in which the Supreme Court, in deciding a case on foreign Commerce Clause grounds, invokes language and reasoning from non-commercial cases, specifically the concept that the nation must "speak with one voice" in foreign affairs. Id. at 449 (quoting Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976)).

  29. See Infra notes 122-33 and accompanying text.

  30. See, e.g., Export Administration Act of 1977. 50 U.S.C.A. app. § 2407(c) (West 1991). The law specifically states that its provisions "shall preempt any law, rule, or regulation of any of the several States" or governmental subdivision thereof. Id.

  31. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

  32. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

  33. Omnibus Consolidated Appropriations Act of 1977, Pub. L. No. 104- 208, 110 Stat. 3009.

  34. Id. at 72.

  35. Id. at 61.

  36. Id. at 64.

  37. Id. at 62 (citations omitted); see also discussion infra Part II(c) regarding the Federal Supremacy issue.

  38. Hines. 312 U.S. at 67.

  39. Id. at 70.

  40. Id. at 68.

  41. Rice v. Santa Fe Elevator corp. 331 U.S. 218, 230 (1947).

  42. South-Central Timber Dev. v. Wunnicke. 467 U.S. 82 (1984).

  43. Id. at 92 n.7.

  44. Wisconsin Dept. of Indus. v. Gould, 475 U.S. 282 (1986).

  45. 29 U.S.C. 151 (1935).

  46. Gould. 475 U.S. at 288-89.

  47. Id. at 288.

  48. Id. at 291.

  49. His bill to impose sanctions against Burma, first introduced on July 28, providing that "[n]o United States National may make any investment in Burma," would have required the Secretary of State to prohibit the use of United States passports for travel to Burma," and would have required the President to "initiate negotiations with all foreign countries with which the United States trades for the purpose of entering Into agreements with the countries . . . to support United States sanctions against Burma," and provided steps the President would take to punish those countries if they did not go along with American demands that Burma be economically isolated. See S. 1092, 104th Cong. (1995).

  50. The [Cohen amendment calling for conditional sanctions rather than mandatory sanctions] actually makes the situation worse. In my opinion. It will allow aid to . . . increase. In other words . . . It is worse than current law because last year we voted to cut off a narcotics program in that country because we did not have any confidence in dealing with [SLORC). This would make those dealings possible again should the administration decide to engage in it.

    The second condition in the Cohen amendment which seems to me to be troublesome is it makes Aung San Suu Kui¹s personal security the Issue rather than the restoration of democracy. In other words, if you see that Aung San Suu Kui is in trouble or there is large-scale trouble or violence then you can take certain actions if you want to, but you do not have to because all of it can be waived.

    In short, with all due respect to my good friend from Maine (Senator Cohen), It seems to me that this amendment basically gives the administration total flexibility to do whatever they want to do, which every administration would love to have. I can understand why they support this amendment. But looking at the track record of this administration and the previous one, given the discretion to do nothing. nothing is what you get. Nothing is what we can anticipate from this administration, and that Is what we got from the last one.

    142 CONC. REC. S8811 (daily ed. July 25,1996) (statement of Sen. McConnell).

    Senator D'Amato, supporting Senator McConnell¹s bill, agreed:

    Business is important. Providing economic growth and opportunity is important. But freedom and liberty is more important. The human dignity of each and every individual and their right to live without being terrorized, both in this country and abroad, are more important.

    We should not be providing succor and comfort to those who deprive millions and millions of people an opportunity to live free an opportunity to be able to have their vote count ....

    Id. at S8795 96 (statement of Sen. D'Amato).

    With respect to the argument that sanctions would hurt American companies and not inflict much damage on companies of other countries. Senator Moynihan argued in support of the McConnell Bill that the principle was worth the price:

    The world is watching. We are going to hear today‹and we will not hear wrong‹that if we impose these sanctions. American firms will lose opportunities, and European firms or Asian firms will take advantage of them. And that may be true. But I wonder for how long, and I wonder In the end at what profit. If our firms are strong and competitive and international. it Is because of the principles the United States has stood for in this century, and should continue to stand for.

    Id. at S8756 (statement of Sen. Moynihan in support of the McConnell Bill).

    His position was not accepted by the Senate.

  51. 142 CONG. REC. S8809 (daily ed. July 25, 1996) (statement of Sen. Craig).

  52. [T]he question is, does the [mandatory sanctions] approach... increase America's ability to foster change in Burma and strengthen our hand and allow the United States to engage in the type of delicate diplomacy needed to help a poor and oppressed people obtain better living standards, political and civic freedoms, and a brighter future as a dynamic Asian economy....

    I think, Mr. President, with ail due respect, the answer is no. By adopting the [McConnell] language the Senate will be sending the following message:

    That the United States is ready to relinquish ail of its remaining leverage In Burma;

    That America is shutting every door and cutting off all of its already- depleted stake in Burma's future;

    That the Congress is ready to further bind the hands of this and any future administrations, taking away those tools of diplomacy‹incentives, both in a positive and negative sense‹which are crucial if we are ever going to hope to effect change in a nation where our words and actions already carry diminished clout.

    . . . We all sense the plight of the Burmese people. We know the United States must support the forces of democratic change in Burma....

    I think we have to recognize the reality of the situation in Burma and our influence over there.

    142 CONG. REC. S8746 (daily ed. July 25. 1996) (statement of Sen. Cohen).

    Burma is located in one of the most dynamic regions of the world.... I suggest. Mr. President, that we have seen the flowering of democracy and freedom in parts of the world where values were quite alien to those that we support.... The same thing can happen in Burma. The best way to do that is to adopt a policy which gives the President some tools to influence the situation. The subcommittee's proposal is all sticks, no carrots. What we seek to do is give the President some limited flexibility to improve the situation on behalf of the Burmese people.

    Id. at S58747; see also 142 CONG. REC. S8749 (daily ed. July 25. 1996) (statement of Sen. Johnston):

    [T]his is a difficult question. No one defends the SLORC, the group that is running Myanmar, or Burma .... The question is: Would it be effective to do what Senator McConnell has proposed?. . . Would it help achieve the end? Mr. President, I think it would do precisely and exactly the opposite.

    Mr. President, to cut off American participation in Burma‹not foreign participation but American participation‹would be exactly the wrong thing. First of all, it is no sanction because Americans are less than 10 percent of foreign investment In Burma today....

    And the question is: is it good to have an American company, or would it be better to have Total, the French company, have the contract? Really that is the question proposed by the McConnell approach. I submit it is better to have an American company there.

    See also 142 CONG. REC. S8750-51 (daily ed. July 25. 1996) (statement of Sen. Bond):

    How can we influence anything if we are the only ones outside the room while the rest of the world is carrying on without us, probably happy to see us play the self-righteous outsider and get out? I cannot see how punishing United States firms by threatening to keep them out of Burma is an effective way to bring about change. United States presence, U.S. firms are the ones on the ground who can help spread American values.

  53. The Congressional Record contains a letter addressed to Senator Cohen from the U.S. Department of State:

    [W]elcom[ing] and support[ing] the amendment which you and others have offered to Section 569 (limitation on Funds for Burma) of H.R. 3540.... We believe the current and conditional sanctions which your language proposes are consistent with Administration policy. As we have stated on several occasions in the past, we need to maintain our flexibility to respond to events in Burma and to consult with Congress on appropriate responses to ongoing and future development there.

    142 CONG. REC. S8752-53 (daily ed. July 25. 1996).

  54. Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104- 208, SS 569(fJ (c), 110 Stat. 3009.

  55. Id.

  56. One of the major defects of the Articles of Confederation, and a compelling reason for the cailing of the Constitutionai Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased. Michelin Tire Corp. v. Wages. 423 U.S. 276, 283 (1976).

  57. Id. at 286.

  58. Id. at 285.

  59. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 317 (1851).

  60. Japan Line v. County of Los Angeles. 441 U.S. 434 (1979).

  61. Id.

  62. Id. at 448 (quoting Board of Trustees v. United States, 289 U.S. 48, 59 (1933)).

  63. Id. at 454-55 (citations omitted).

  64. Id. at 446; see also Bilder, supra note 7. at n.l8. and cases cited therein.

  65. South-Central Timber Dev. v. Wunnicke. 467 U.S. 82, 100 (1984): see also Reeves, Inc. v. Stake, 447 U.S. 429. 437-38 n.9. (1980).

  66. Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976).

  67. Japan Llne. 441 U.S. at 449.

  68. Id. at 448 (citations omitted).

  69. Fenton, supra note 6, at 567.

  70. Id. at 571 (citation omitted)

  71. See supra note 24 and accompanying text, Oakland and Berkeley also alluded to this doctrine in their South Africa resolutions. See Oakland, Cal., Ordinance 10, 611 C.M.S. (July 23, 1985); Berkeley, Cal., Res. 52, 858-N.S. (July 30, 1985).

  72. "What the Commerce Clause would permit States to do in the absence of the NLRA is thus an entirely different question from what States may do with the Act in place. Congressional purpose is of course 'the ultimate touchstone.¹" Wisconsin Dept of indus. v. Gould. 475 U.S. 2B2. 290 1986) (citations omitted).

  73. South-Centrai Tlmber Dev. v. Wunnicke. 467 U.S. 82. 102 (1984).

  74. Reeves. Inc. v. Stake. 447 U.S. 429. 437-38 n.9 (1980) see also Zschernig v. MiUer, 389 U.S. 429 (1968); Springfield Rare Coin GaUeries, Inc. v Johnson, 503 N.E.2d 300 (IU. 1986).

  75. There are also good practical reasons why this should be so:

    Inasmuch as trade relations are now an inseparable part of U.S. foreign relations, the proliferating state and local views expressed and promoted through even the indirect trade restrictions have the potential to seriously disrupt U.S. foreign policy. They may also interfere with the ability of U.S. firms to pursue trade opportunities around the globe. Working through the maze of federal trade controls is difficult enough without having to consider the foreign policy goals of 50 states and hundreds of local Jurisdictions. Fenton, supra note 6, at 566.

  76. Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976).

  77. Id. at 810.

  78. Stake. 447 U.S. at 429 (1980).

  79. . Id. at 430.

  80. Id. at 438.

  81. White v. Massachusetts Council of Constr. Employers, inc., 460 U.S. 204 (1983).

  82. Id. at 211.

  83. Id.

  84. Id.

  85. South-Central Timber Dev. v. Wunnicke, 467 U.S. 82 (1984).

  86. Id. at 96 (quoting Respondents Brief at 28).

  87. Id.

  88. Id.

  89. Id. at 98-99 (emphasis added).

  90. Id. at 97-98 (emphasis added) (citations omitted).

  91. See sources cited supra note 7.

  92. Wisconsin Dept. of Indus. v. Gould. 475 U.S. 282. 288-89 (1986): see also supra nctes 38-42 and accompanying text. Professor Tribe agrees, noting that a focus on a state's right to decide with whom it will conduct business by virtue of its criteria is vastly different from a focus on the state as dictating to business how it can become a candidate for a state's business. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW SS 6-22, at 375 (1978).

  93. Gould. 475 U.S. at 289 (citations omitted).

  94. Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371 (1976) (quoting Freeman v. Hewit, 329 U.S. 249, 253 (1946)).

  95. Pike v. Bruce Church, Inc., 397 U.S 137 (1970).

  96. Id. at 142 (emphasis added).

  97. Id. at 143. 146.

  98. Container Corp. of America v. Franchise Tax Bd.. 463 U.S. 159 (1983).

  99. Id. at 194; see also Southern Pac. Co. v. Arizona. 325 U.S. 761. 768-69 (1945), which talks of the "regulation of local matters (that) may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved."

  100. Local officials have made no secret of the fact that their objectives are to get as many business entities as possible to sever all ties with Burma. For instance, on hearing that Motorola had closed its operations in Burma so as to compete successfully for a San Francisco contract. Supervisor Tom Ammiano. who proposed the legislation in San Francisco, was reported to be delighted with the news and said "This shows that the Burma boycott is working.... It shows that business people are heeding the prohibition." Leslie Goldberg , Motorola Gets Out of Burma. Into City: Firm¹s Closing of Office Likely to Net It $40 Million S.F. Radio Contract, S.F. EXAMINER, Dec. 6, 1996, at A1.

    Similarly, Jane Jerome of the Bay Area Burma Roundtable, one of the several groups that lobbied for the ordinance, is reported to have said of it: "We found that sanctions against South Africa were very effective in bringing substantial change in that country. It seemed logical to use the same tactics on Burma." Leslie Goldberg, 911 Radio Bidders Run Afoul of Policy: S.F. Averse to Hiring Firms That Do Business in Burma, S.F. EXAMINER, Sept. 24, 1996, at A1 [hereinafter Goldberg, 911 Radio Bidders).

    Indeed, the specific and only aim of the debarment ordinances is to make an impact in and on Burma. On hearing that Apple Computers was withdrawing from Burma so as to retain its Massachusetts contracts, "Rep. Byron Rushing . . . who marshalled the [debarment] bill through the [Massachusetts] Legislature' is reported to have reacted: "This is exactly what we want this law to do .... We hope the rest of the companies will also get out." Frank Phillips, Apple Cites Mass. Law in Burma Decision. BOSTON GLOBE, Oct. 4, 1996, at B6,

    The Takoma ordinance actually requires copies of it to be sent to, among others. the Burmese Ambassador. the Secretary General of the United Nations and Aung San Suu Kyi.

  101. See supra notes 17-20 and accompanying text.

  102. Berkeley, Cal., Resolution No. 57,881-N.S. (Feb. 28, 1995).

  103. SAN FRANCISCO, CAL., ADMIN. CODE §12J. l(a) (1996).

  104. Takoma Park, Md Ordinance 1966-33 (Oct. 28, 1996).

  105. Id.

  106. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

  107. Id. at 566.

  108. Id.

  109. Id. at 566-67 (citation omitted). "No traditionally local concerns, such as maintaining the integrity of health, safety. and other welfare-related standards. are implicated. Recognition of a state's 'moral' interest in severing economic ties with South Africa-related concerns as a 'legitimate' justification for impeding interstate commerce would be unprecedented." Spiro. supra note 6. at 834.

  110. Hines v. Davidowitz. 312 U.S. 52 (1941).

  111. Id. at 63 (citations omitted).

  112. Zschernig v. Miller. 389 U.S. 429 (1968).

  113. Id. at 432.

  114. Id. at 433-34.

  115. Id. at 434 (citation omitted).

  116. Id. at 437.

  117. Id. at 440.

  118. Id. at 443 (Stewart, J., concurring).

  119. Id.

  120. Rice v. Santa Fe Elevator Corp., 331 U.S. 218. 230 (1947) (citing Hines v. Davidowitz. 312 U.S. 52. 70 n.287 (1941)).

  121. United States v. Pink, 315 U.S. 203, 232 (1942). Consider also a parallel scenario involving an economically powerful state like California and a relatively influential trading partner like Mexico. A California initiative, in response to a purely local grievance to ban all contracts with companies doing business in Mexico could provoke retribution felt well beyond California¹s borders. In the case of Burma, retribution is unavailable, but in concept it is clear that a single state could take a provocative foreign act unapproved by Washington and for which the whole country would pay dearly.

  122. Fuentes v. Shevin. 407 U.S. 67 (1972).

  123. Id. at 80 (citations omitted).

  124. Id. at 80-81.

  125. See supra note 22,

  126. Eubank v. Richmond. 226 U.S. 137 (1912).

  127. Id. at 143-44.

  128. Washington v. Roberge ex ref. Seattle Trust Co., 278 U.S. 116, 122 (1928); see also Browning v. Hooper, 269 U.S. 396 (1926).

  129. Schulz v. Milne 849 F. Supp. 708, 713 (N.D. Cal. 1994): see also Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th Cir. 1983). This is true too, for instance, in Massachusetts. which delegates the decision as to who is doing business in Burma to the IRRC. "It is well established in this commonwealth and elsewhere that the Legislature cannot delegate the general power to make laws, conferred upon it by a constitution like that of Massachusetts.'" Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 361-62 (Mass. 1973) (citations omitted). One of the exceptions to or qualifications of the nondelegation doctrine is that 'the Legislature may delegate to a board or an individual officer the working out of the details of a policy adopted by the Legislature.'" Id. (citations omitted). The court found, indeed, that the delegation under scrutiny failed to incorporate the essential safeguards. The delegation contained "no provision for participation by any public board or officer in the process . . . nor for any policy or standard to govern fits decision making!, nor for notice. hearing or judicial review of [the decision made]. Id. at 362; see also DiLoreto v. Fireman's Fund Ins. Co.. 418 N.E.2d 612. 614-15 (Mass. 1981) ( The Legislature may . . . delegate authority to a private person in order that he may fulfill duties which are public in nature . . . so long as proper safeguards are provided."). Where a delegation is to an entity that is impartial and has no personal or private interest in the dispute . . . [which] must follow detailed procedures and is bound to apply the statutory standards. the delegation is not improper, Town of Arlington v. Board of Conciliation & Arbitration. 352 N.E.2d 914. 920 (Mass. 1976).

  130. See. e.g.. Assiniboine & Sioux Tribes v. Board of Oil & Gas, 792 F.2d 782 (9th Cir. 1986).

  131. Board of Trustees v. Mayor of Baltimore, 317 Md. 72 (1989), cert. denied. 493 U.S. 1093 (1990).

  132. Id. at 97-98.

  133. Smith, supra note 7, at 1041-42.

  134. INVESTOR RESPONSIBILITY RESEARCH CENTER, MULTINATIONAL BUSINESS IN BURMA(MYANMAR) iii (1996).

  135. The definition of "new investment in the Omnibus Consolidated Appropriation Act specifically would not preclude U.S. companies from selling their products in Burma, or buying from Burmese sources. Omnibus Consolidated Appropriations Act of 1977, Pub. L. No. 104-208, 110 Stat. 3009. The importance of product and name recognition, market share and penetration. and the acquisition of contacts, infrastructure and experience in what may be in the future a significant market are acknowledged in the federal legislation and sacrificed to ideology in the local enactments. See id.

  136. As the Deputy Secretary of State said in response to a question about divestment during a similar debate on South Africa:

    Disinvestment would signal a U.S. unwillingness to pursue the only logical course of action open to us. which is attempting to promote peaceful change in South Africa. Withdrawal of U.S. business interests would remove one of the few tools of influence available to us in helping to promote change and would leave a moral void that would result in a lessening of both regional U.S. influence and our ability to influence movement away from apartheid.

    Spiro, supra note 6, at 828 n.96 (response of Dep. Sec. of State Kenneth Dam to question of Sen. Heinz.).

  137. "The Clinton administration has so far resisted [debarment]. saying that it wouldn't be effective and that Asian-led products would replace American investment." Matt Miller. Pipeline of Controversy: Unocal Called to Court by Opponents of Burma Regime. SAN DlEGO UNION-TRIBUNE, Nov. 10, 1996, at II.

    Japanese businesses that are aggressively entering Burma include Nissan Motor Company, Mitsubishi Motors, Mitsui Engineering and Ship Building, Marubeni (which is involved in a variety of other prodects such as building an airport to developing the teak trade), Sumitomo, Itochu Corp, Daiwan Research Institute. an affiliate of Daiwan Bank which is helping to set up Burma's stock exchange). Tokyo Mitsubishi Bank, Mitsubishi Heavy Industries, Nippon Steel Corp, Komatsu. and others. Burma. Japan Sees Rich Pickings In Burma. BUSINESS VIETNAM, Aug. 1, 1996.

    Whether the federal policy is right or wrong, it is clear from the Congressional debate that federal lawmakers were concerned that withdrawal of the few U.S. companies present in Burma would do little to change SLORC's politics and would simply leave a void which other countries' businesses would fill. An example of this would be the aftermath of Dutch pressure on Amsterdam-based Heineken to leave Burma. Acceding to the pressure, Heinicken sold its stake in a half completed brewery in Burma to Fraser and Neave of Singapore. "The Singaporean group buying out the Dutch will simply market beer under its Tiger brand instead." Ted Bardacke, Western Companies Encounter Protesters on Road to Burma, FINANCIAL TIMES, July 12, 1996, at 3.

  138. There is already federal legislation pertaining to Burma which the local enactments neither acknowledge nor purport to work in tandem. See H.R. Con. Res. 188. 104th Gong., 2d Sess. (1996) (describing such legislation and its effects).

  139. Dean Fenton points to a federal anti-apartheid law passed in 1986 (the Comprehensive Anti-Apartheid Act, 22 U.S.C.A. § 5001-17 (West Supp. 1991)). which came into existence at a time when over 100 local Jurisdictions had adopted some form of divestment or contract debarment laws. Many of these laws were aimed at forcing companies to completely disengage, while the federal law sought to use the presence of U.S. firms as leverage for change. When President Bush exercised his option under the Act and ended most sanctions. Only one state repealed its divestment law and the situation was one in which there were then minimal federal restrictions with extensive state and local restrictions, with significant cumulative effect. Fenton, supra note 6, at 577-78.

  140. Id. at 564.

  141. MASS. GEN. L. ch. 7, 22C (a) (West Supp. 1996) in effect prohibits state agencies from procuring goods or services from businesses that supply any equipment used for military purposes by the British army. and MASS. GEN. L. ch. 32. 23(1)(d)(iii) (West. Supp. 1986) bans pension funds from investing in financial institutions which have loans outstanding to businesses selling military equipment for use by the British army. The British government's reaction. predictably, has been to express considerable irritation. See. e.g.. BOSTON GLOBE. Apr. 5, 1983, at 68.

  142. Tom Ammiano. the San Francisco Supervisor who was a leading figure in getting that city to adopt its boycott. is quoted as having argued in its support. "They put people under house arrest .... If you're HlV-positive, they shoot you on the spot. Goldberg, 911 Radio Bidders, supra note 99. Since Burma has approximately between 150,000 and 450,000 reported cases of HIV infection, the proposition is unlikely to be true. See, e.g. Philip Shenon. AIDS Cuts Wide Swath in Vulnerable Burma. CHI. TRIB., Mar. 20. 1994. at 19.

  143. Tayyari v. New Mexico State Univ., 495 F. Supp. 1365, 1379 (1980).

  144. First, let me say Burma is not South Africa. Back in the 1970's and 1980's, the oppressive nature of the apartheid regime . . . led the Senate to impose heavy sanctions and isolation to end the regime. In order to do that, we had the support of not only our Western European allies but of the front-line nations, those surrounding South Africa, who also lent their support and joined in the effort to bring down apartheid.

    Unlike South Africa in the 1970's and 1980's, Burma is not surrounded by nations ready to shun it. As a matter of fact, Burma's neighbors and other states in the region relect the view that isolating Burma is the best means to encourage change. They are pursuing trade and engagement and will do so regardless of what we do or say. Those nations over there who are closest and in closest proximity are maintaining their relations with Burma, seeking to bring about change over a period of time. Isolating Burma is simply not going to work, and we will not have the support of our allies. We will not have the support of our Asian friends.

    142 CONG. REC. S8746 (daily ed. July 25. 1996) (statement of Sen. Cohen).

  145. Anise C. Wallace, Wall St. Feels the Heat from Apartheid, N.Y. TIMES. Apr. 21, 1985. at F10.

  146. First, United States policy toward South Africa was coordinated with our allies and that nation's most important trading partners. It was multilateral. There was no serious prospect that when our companies pulled out of the South African economy others would readily take their place. thereby undermining the effect of sanctions and making their chief victim American companies. Second, South Africa was much richer than Burma is today. Per capita income in South Africa was $2.000 when we imposed sanctions. In Burma today it is 8200. one of the lowest rates in the world. South Africa had a stake in the world economy. Burma has lust begun to develop an interest in attracting foreign trade and investment. Third. Burma Is an overwhelmingly rural economy, with manufacturing accounting for 9.4 percent of GDP and 8.2 percent of employment. Fourth. the South African regime and the elite that supported it had historical connections to the nations censuring i.. It was not only affected materially by the sanctions imposed on it. but many in South Africa who treasured their ties to the West were dismayed by their international isolation.

    Burma has a long history of self-imposed isolation.

    142 CONG. REC. S8754 (daily ed. July 25, 1996) (statement of Sen. McCain).

  147. Id.; see also supra note 137.

  148. See, e.g.. Spiro. supra note 6. at 815 n.l6.

  149. See supra note 22 and accompanying text.

  150. Goldberg, 911 Radio Bidders. supra note 100.

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