It's just sex

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Last June, the Department of Health issued Administrative Order (AO) No. 2012-0009. The declared goal of the AO was to reduce the “unmet need for modern family planning,” specifically the minimization of “maternal mortality.” But the same raises more questions than the answers it attempted to provide. Where is the need to control our population when it’s already unquestioned that it’s precisely that which gives the Philippines superior competitive advantage? Reduce maternal deaths? Then why not provide better medical facilities and services rather than contraception?

The entire thing smacks of mere ideological bias. I don’t think anybody reasonably believes anymore today that the push for contraception is due to economics or female health. Unfortunately, such bias runs on several deeply flawed assumptions. The first is that religious objections find no basis in reason. The second is that institutions are male-imposed creations. The third is that the empowerment of women requires detaching responsibility from sex. The first two are nonsense. It’s the third we shall focus on, not because it has any merit but rather due to the peculiar emotional attraction that underlies it. I would even go so far to say that the only reason this contraception issue has the support it allegedly has is simply because of this myth.

Because in the end, it’s just a myth. Its overall idea seems to be is that if only women can be allowed, through contraception, unencumbered, no-fear, responsibility-free sex, then their economic, political, and social rights consequently will achieve absolute fulfillment. The sense that is conveyed is that family and children (never mind the husbands) are shackles or burdens that weigh women down. Take away the problem of babies and the need for marriage, and women will be happier and more accomplished.

The argument, at least in its most intelligent form, was expressed by author Hanna Rosin (in an article for the Wall Street Journal): “the sexual revolution has deepened into a more permanent kind of power for women. Young women in their sexual prime -- that is, their 20s and early 30s -- are generally better off than young men. They are better educated and earn more money on average. What made this possible is the sexual revolution -- the ability to have temporary, intimate relationships that don’t derail a career. Or to put it more simply, to have sex without getting married.”

However, the popularity of wedding planners has never been adequately explained. Furthermore, as Mary Eberstadt (also for the WSJ) wrote, the sexual revolution wasn’t actually good for women: “What of the fact, widely reported earlier this week, that 26% of American women are on some kind of mental-health medication for anxiety and depression and related problems? Or how about what is known in sociology as ‘the paradox of declining female happiness’? Using 35 years of data from the General Social Survey, two Wharton School economists, Betsey Stevenson and Justin Wolfers, made the case in 2009 that women’s happiness appeared to be declining over time despite their advances in the work force and education.”

Thus Helen Alvaré, associate professor at George Mason University School of Law, points out: the US sexual revolution has had “four to five decades to prove itself. There has been a massive expansion of ‘sexual liberty’ on a nationwide scale. Consequently, by this time, observers (and policy makers) with an objective bone in their bodies who believe in the scientific method, would now be searching for a net improvement in the reported happiness and freedom of women.” And yet, “women are less happy than they were 50 years ago, but less happy relative to men, as well over the same time period. Were increases in sexual liberty for women a key determinant of happiness (sufficiently key to raise birth control above even life-saving medicines for federal favor), a simple time-series graph correlating the percentage of women using contraception in the United States with the percentage of women reporting themselves as ‘happy’ would show a direct relationship. Instead, we have more women accessing birth control but less female happiness as described above.”

This was corroborated by Arthur Brooks of the New York Times: “Marriage and happiness go together. If two people are demographically the same but one is married and the other is not, the married person will be 18 percentage points more likely to say he or she is very happy than the unmarried person.” Incidentally, Brooks also mentions that the “story on religion is much the same. According to the Social Capital Community Benchmark Survey, conservatives who practice a faith outnumber religious liberals in America nearly four to one. And the link to happiness? You guessed it. Religious participants are nearly twice as likely to say they are very happy about their lives as are secularists (43% to 23%).”

So can we just please stop it already with this juvenile contraception thing? Common sense, reason, and sanity already demand that we do.


Suing foreign governments

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Actually, it’s not really that difficult. Relatively speaking. Developments in international law have been such that a determined individual can sue any government that has done him wrong, whether it be in the realm of criminal or civil matters, on investments, or trade discrimination (and -- to a certain extent -- on human rights). Of course, a helpful government from the country of which one is a citizen of would also go a long way indeed. But even then, such is not a necessity.

These thoughts came up recently, what with pronouncements by World Trade Organization Director-General Pascal Lamy decrying that “there has been no slowdown in the imposition of new trade restrictions over the past seven months” and noted that “the more recent wave of trade restrictions seems no longer to be aimed at combatting the temporary effects of the global crisis, but rather at trying to stimulate recovery through national industrial planning, which is a an altogether longer-term affair.”

This has led to quite ridiculous statements by some leading Philippine businessmen condemning developed economies’ support for their local markets. Ridiculous because it’s what Philippine industries have long been demanding. One can’t exactly condemn another for doing what one has also been wanting to do. These businessmen then clangingly clamored we forge ahead with bilateral deals. Which again betrays fuzzy thinking. If the Philippines -- rightly -- decided to approach the Scarborough Shoal issue through a pacific multilateral track, what makes people think that trade matters would not benefit from a similar policy and avoid similar pitfalls.

Thus the importance of dispute settlement mechanisms, for which the WTO version is really a cut above the rest. As reported by the WTO Web site: “There is very broad confidence in the WTO dispute settlement mechanism. Ninety-eight members have participated in one capacity or another, which is 63% of the membership. Importantly, developing members are just as active as developed ones.” The Philippines was party recently to two big WTO cases, winning one (against Thailand, on cigarettes) and losing the other (against the European Union and the United States, on distilled spirits).

The WTO dispute procedure has been discussed in this column in past articles. But any local industry that feels it is being discriminated against by a foreign market need only approach the Department of Trade and Industry (for non-agricultural, i.e., industrial, goods) or the Department of Agriculture (for agricultural products) for assistance. For Association of Southeast Asian Nations (ASEAN) member-countries, there is also the ASEAN dispute settlement mechanism, which is patterned closely after the WTO dispute system.

Then there is the International Centre for the Settlement of Investment Disputes (ICSID). The ICSID short-circuits State immunity from suit obstacles by allowing private entities to protect the investments they made in a foreign country. Complaints covered could include improper expropriation of the investment or unfair treatment, either through violation of most-favored-nation or national treatment principles. Thus: “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.”

It is also possible to sue, if such be in existence, under a bilateral investment treaty (BIT). The rules would normally fall under that of the United Nations Commission on International Trade Law. It must be noted that what qualifies as an “investment” for ICSID (thus allowing one to sue) may not qualify as such under a BIT (and vice-versa). There are, however, a couple of advantages to an ICSID suit. First is that ICSID members are duty-bound to respect ICSID awards as if they were judgments by their own national courts. Furthermore, ICSID has developed a considerable body of “case law” (relatively speaking, as there is essentially no stare decisis in international law) and this has lent a certain amount of predictability and credibility to ICSID proceedings.

One can also sue governments without resort to international tribunals. While clearly there are sovereign immunity issues that need to be resolved, this is not as impossible as one might think. In the Philippines, there are certain laws that allow individuals to sue its government, particularly if the government act questioned fall under that which is classified as jure gestionis (or commercial acts).

The US has a developed set of legislations enabling individuals to sue foreign states or governmental agencies. The Foreign Sovereign Immunities Act provides such a framework that US citizens can take advantage of. Like Philippine law, the primary basis for allowing the suit is if the act complained of against the foreign government is considered a “commercial activity.”

Suing a foreign government, one finds quite quickly, isn’t as glamorous as it sounds. Like domestic litigations, one would most likely be frustrated by the mind-numbing paperwork involved more than anything else.


Business, trade, and foie gras

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

One misconception people have is that the rules of international trade and public international law only have effects at the state-to-state level. While this may be true to a certain extent, considering that state actors are primarily the subjects of international law, nevertheless, what goes on, for example, in other countries or at the World Trade Organization will have repercussions not only for the large multinational but even for small businesses as well.

And this should ram home a particular reality about today’s law and business: that there are multiple norms layered or intertwining at the multilateral, regional, bilateral, and even at the domestic foreign jurisdiction level that all potentially affect Philippine companies or citizens. And this is true whether we acknowledge that fact or not.

Several notable cases illustrate this point. The first is that reported by DevelopTradeLaw.Net: “Small businesses doing business internationally need to understand their legal obligations so that they don’t become another ING, the bank recently levied with $619 million in fines. The fines penalize ING for its failure to abide by US trade laws. [ING, it was alleged] knowingly or unknowingly repeatedly violated US trade sanctions. US trade sanctions prohibit or place restrictions on individuals and companies operating under US law from doing business with embargoed countries. The countries may be embargoed because of US concerns about human rights violations, terrorist or nuclear proliferation activities, or US Government dislike of the government’s policies.”

However, it must be stated that this matter of foreign laws having effect on acts committed outside the territory of a state is not even a new development. This is actually a decades-old thing, the most significant one being that of the Helms-Burton Law that was applied for purposes of sanctioning Fidel Castro’s Cuba. The law has been revised through time but as present regulations stand, “all US citizens and permanent residents wherever they are located, all people and organizations physically in the United states, and all branches and subsidiaries of US organizations throughout the world” are prohibited from bringing in “goods of Cuban origin, other than information or informational materials”.

Then there is the US Foreign Corrupt Practices Act. This law prohibits “issuers, domestic concerns, and any person from making use of interstate commerce corruptly, in furtherance of an offer or payment of anything of value to a foreign official, foreign political party, or candidate for political office, for the purpose of influencing any act of that foreign official in violation of the duty of that official, or to secure any improper advantage in order to obtain or retain business.”

The US, however, is not alone in exercising jurisdiction over acts that occur outside its borders. On corruption, the United Kingdom has its own version of the Foreign Corrupt Practices Act, which has been described as a more muscular version of the FCPA. China, for its part, has also released its own legislation on foreign corruption. A report by the law firm White & Case pointed out two instances illustrative of the reach of the new legislations: Avon Products, Inc.’s troubles last year over allegations of bribery of Chinese officials, which later led to findings of discrepancies in India, Japan, Argentina, Brazil, and Mexico. There was also Citigroup’s problem regarding alleged embezzlements in Indonesia.

The above rules are likely defended under the “effects” doctrine of criminal jurisdiction. The doctrine is to be distinguished from the “protective” doctrine, which the Philippine’s itself has had occasion to employ (the Philippines primarily relies on “territoriality” as the basis for its criminal jurisdiction). However, as can be gleaned from the foregoing, the effects doctrine is particularly distasteful for a number of states, considering its extraterritorial reach and -- most disconcertingly -- the acquisition of jurisdiction over non-nationals.

Having said that, the Philippines may want to explore the use of the “effects” doctrine for purposes of punishing foreigners, either through imprisonment if they travel to the Philippines or confiscation of their local Philippine assets, who have harmed or abused our workers abroad.

A further problem for small businesses is when the export market suddenly decides to ban their product, as California (and before it, Chicago) did in the case of foie gras. The ban was justified with the allegation that the production of foie gras is a cruel practice, what with the enlarging of duck’s livers through force feeding.

One may laugh at this sort of moralizing by the Californians but their logic could very well lead to “balut” or “bagoong” being banned for very arbitrary reasons. So we should welcome any action on the foie gras ban that may be taken by the French, Bulgarian, and Hungarian governments at the WTO for possible violation of trade law.

So the lesson is: while Philippine politics seem to have depreciated to a system of irrationality and the mere sucking up to the powers that be, international law is standing fast with that time-tested dictum -- knowledge is power.


Obama's health care

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

To the dismay of many, the US Supreme Court (well, actually Supreme Court Chief Justice John Roberts) dealt an apparently huge blow to the conservative movement by upholding the constitutionality of the Affordable Care Act (ACA). The ACA was a flagship program of US President Barack Obama’s administration (pretty much like the impeachment case engineered by Noynoy Aquino’s administration). The implications of that complex ruling (particularly as to how it will affect this November’s US presidential elections) will keep people perplexed and analyzing for months and years on end.

The impact of the ruling on the personal economies of ordinary US citizens (not to mention health care providers) is substantial enough. As reported by the Wall Street Journal (Court Backs Obama on Health Law, 29 June 2012): “The court’s decision leaves intact hundreds of provisions in the sweeping overhaul, with major changes to the US health system set to take effect by 2014. That is the year when individuals and employers will face their coverage mandates. Insurance companies will have to accept all customers regardless of medical history and won’t be able to charge more to those who are sick.”

The issue, however, goes far deeper than that, essentially dealing with a citizen’s right to choose. People who don’t want health care or need a different type of health care will now be forced to pay for other people’s health care. Bottom line is: people’s medical costs will go up regardless if they’re going to be using them or not. Even health care providers are up in arms because their capacity to be reimbursed under the ACA is dependent not necessarily on the needs of any particular patient but rather as what will be dictated by Washington. Noticeably, the effectivity of all this is 2014, which is past the presidential elections. The Obama camp hopes that any political fallout won’t have any effect on his (possible) re-election.

Disappointment was most expressed against Chief Justice John Roberts, who at one time was called by the New Yorker as the “Supreme Court’s stealth hard-liner.” It was he who was expected to ram down the nail on the ACA’s coffin. Instead, he ruled in its favor by bafflingly declaring in his ponente that the ACA was constitutional, not on the perspective of it violating the “commerce clause” of the US constitution but on the fact that it properly fell within Congress’s taxation powers. Baffling because the Obama administration had always denied the ACA to be a tax measure (which it promised it wouldn’t do). It now leaves the Democrats with the dilemma of how to support and explain the ruling without making them look confused or lying.

One thing is certain though: the suits filed by Catholic and faith-based institutions on the health care laws’ health and human services (HHS) contraception mandate will continue, if not invigorated. It has to be clarified that the ACA case heard and eventually ruled by the Supreme Court is separate from that of the HHS case (although had the Supreme Court ruled that the ACA was unconstitutional, then the HHS mandate case would be rendered technically “moot”). The EWTN Global Catholic Network, which filed suit last February to stop the implementation of the HHS mandate, immediately issued this statement upon release of the Supreme Court’s decision: “the US Supreme Court’s decision to uphold the Affordable Care Act in its entirety ensures that the Network and many other entities must continue the battle for religious liberty in this country.”

[For purposes of full disclosure, I am the legal counsel for the EWTN Foundation, Philippines.] The rationale for EWTN’s suit, filed not at the US Supreme Court but at the US District Court in Birmingham, Alabama, is that the HHS mandate “requires employee health plans to provide coverage for morally objectionable services like contraception, sterilization and abortion-inducing drugs.” Accordingly, the same violates religious and conscience rights of affected institutions and individuals (regardless of whether they are Catholic or not).

For their part, the Becket Fund also came out with a statement declaring that their own suit against the HHS mandate will be vigorously pursued: “The court’s opinion today did not decide the issues in our cases. We are challenging the Health and Human Services mandate on religious liberty grounds which are not part of today’s decision. We will move forward seeking vindication of our client’s First Amendment rights. The Becket Fund’s religious liberty lawsuits against the unconstitutional HHS mandate will continue. Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs.”

The parallels between the suits against the HHS mandate and the current debate happening in the Philippines in relation to the RH Bill is interesting, to say the least. At the heart of the issue is the matter of religious rights, with the US in a huge struggle to recover religious convictions in its public life and the Philippines in the fight of its life to retain it.