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SANCTIONS v. U.S. CONSTITUTION

Background Report
By Elaine Johanson
New York, NY, USA
August 7, 1998

Introduction

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 1980s 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:

Eric Wollman:

"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."

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:

David Schmahmann:

"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."

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:

David Schmahmann:

"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."

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) feb/by/e/lsf/jo


August 7, 1998 2:17 p.m. EDT (1817 UTC) Report 5-41107
Source - Voice of America

Jai Maharaj
Jyotishi, Vedic Astrologer
jai@mantra.com
http://www.flex.com/~jai
Om Shanti

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