'Nuff said

(Taking context-optional note of thought-provoking quotes)

So when can a claim of tariff-based discrimination prevail? In a social climate in which anyone can wear anything, apparel may not be the best target for a tariff discrimination case -- but one could envision hypotheticals involving gender-linked medicines or medical devices, or discrimination between products on the basis of links to religion.

-- Claire Kelly (right), Professor of Law and Associate Director, Dennis J. Bock Center for the Study of International Business Law, Brooklyn Law School, New York, in an ASIL Insight analyzing the rejection by the U.S. Court of Appeals for the Federal Circuit of a claim that the placement by the U.S. government of a 14% tax on the importation of men's gloves, compared with only 12.6% for women's, violates the equal protection guarantees of the U.S. Constitution. A petition for review of the decision, Totes-Isotoner Corp. v. United States, is pending before the U.S. Supreme Court.

The Story of Rum

(Part 3 of a series; here's Part 1 and Part 2)

Rum has long been associated with the sword-wielding, one-eyed pirate of days past. No one has done more to transform that image than Don Facundo Bacardi Massó. But the story of Rum is about more than just one man. It is the story of a man, a company, and a country. The story of Rum is the story of the Caribbean.
The patriarch of the Bacardi clan, Don Facundo Bacardi Massó, was only sixteen when he migrated from Spain to work in the family's hardware store in Cuba. The streets of Santiago de Cuba in the 1800s was an intriguing place, and it wasn't long before young Facundo found himself traveling the narrow cobblestone alleys and long, winding roads in search of the heart of Cuban culture.
Rum, of course, was at the very center of that enterprise. But it was a harsh, dark brew with "an unpleasantly musty taste and smell." Aguardiente, as the Cuban Rum of the era was called (literally "burning water"), was shunned by polite society.
Bacardi dreamed of refining Rum and opening up vast new markets for its consumption. He experimented with various distillation methods and began aging the Rum in oak barrels. Soon, he and his wife Amalia purchased a distillery on the outskirts of Santiago to expand production. The story goes that when Amalia first walked into the distillery, she was greeted by a colony of fruit bats intent on making their presence known. Bacardi immediately realized he had found a logo for his new company. Bats were the symbol of good health, fortune, and family unity. It wasn't long before Bacardi Rum found its way into the most exclusive Gentlemen's Clubs and drawing rooms in both the Old and New World. But just as Facundo Bacardi ushered in a revolutionary new era in Rum production, Cuban freedom fighters were brewing their own rebellion.
By 1895, the grumbling discontent Cubans felt for the repressive Spanish colonial regime had developed into all out rebellion. Revolutionaries like Antonio Maceo, Maximo Gomez and Jose Marti fought for independence on the battle front. The Bacardis fought their own clandestine war. Emilio Bacardi, who would take over the company from his father, provided funds to the freedom fighters. Equally as perilous, he would often refuse to pay the taxes levied by representatives of the Spanish Crown.
It was in the Cuban struggle for independence against Spain (1895-1898) that the Bacardi family's revolutionary spirit was born. That spirit lived on long after the Spanish were gone. The Bacardis were again active participants in the seminal battle for the future of Cuba: The Cuban Revolution of 1959. Initially, the family supported Fidel Castro in his efforts to overthrow the despotic rule of U.S.-backed dictator Fulgencio Batista. But it soon became apparent the two sides had deeply divergent interests.
The Bacardi family fled Cuba and dispersed to The Bahamas, Puerto Rico and elsewhere in the Caribbean and the United States. It is said that on the day they left Cuba, the fertile coconut palm tree that graced the entrance of their Cuban distillery withered and died. “As long as the palm tree grows, Bacardi will live on in Cuba,” had been the family's mantra. The death of the palm tree was to have marked the end of Bacardi's ties to Cuba.
Those of us who study international trade recognize the battle between Cuba and Bacardi has never truly ended. The warring parties have simply moved the battlefield into the courtroom and the political arena. For years, Bacardi and the Cuban government have been locked in conflict over who legally has the right to market the name "Havana Club." The original trademark was owned by a Cuban family who sold the rights to Bacardi in 1997. Alas, "Havana Club" is also produced in Cuba by a company that benefited when Fidel Castro nationalized private Cuban businesses back in 1960.
The question of who owns the rights to Havana Club has become an international sensation embroiling Cuba, the United States, Spain, France, Japan, Nicaragua and the European Union. It is a question that has winded its way through the Spanish courts, as well the U.S. federal court system. (For a taste of the U.S. dispute, see Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116 (2d Cir. 2000)). The issue has been subject to much political posturing and late night machinations leading to the adoption of The Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999. The Bacardi-Cuba battle is one without end. Rum serves merely as a proxy in the love/hate relationship of a family, a company, and a country forever intertwined.
My visit to Bacardi's Puerto Rican distillery was the last in a whirlwind seven-day tour of the Caribbean. As I stood in the company's famed courtyard, reminiscent of a Spanish colonial grand home, I could not help but reflect on how much of the Caribbean experience was represented in those walls. Bacardi is firmly planted in Puerto Rico, but like immigrants the world over, it longs to go home. It's Puerto Rican distillery holds many relics from the Old Country -- down to a plastic replica of the famed palm tree.
The story of the Caribbean is one of forced migration and of loss, but it is also a story of love. No matter where you come from, or how you find your way to the Caribbean, you cannot help but fall in love with the region and her people. And when you leave, you long to go home again . . . if only for the occasional visit.
Luckily, a good bottle of Rum preserves the memories until the next Caribbean interlude!


*pic of my sister and I at a point in which the Atlantic Ocean meets the Caribbean Sea

The Story of Rum

(Part 2 of a series; here's Part 1 and Part 3)

Fifteen men on a dead man's chest
Yo ho ho and a bottle of rum
Drink and the devil had done for the rest
Yo ho ho and a bottle of rum.
The mate was fixed by the bosun's pike
The bosun brained with a marlinspike . . .
And there they lay, all good dead men
Like break o'day in a boozing ken.
Yo ho ho and a bottle of rum!

Rum and pirates. The image of the two is indelibly linked in our minds, and with good reason. Rum — or Kill Devil, as some not-so-fondly called it — was the drink of choice for pirates, sailors, and other “vagabonds” of the New World. It had the good fortune of being plentiful, cheap, and highly intoxicating. Indeed, the British Navy kept their sailors just this side of blindingly drunk by providing each man with a daily ration of “grog,” which consisted of a quart of water mixed with half a pint of rum, sugar and lime.
Life was difficult in the New World. Rum was a necessary ingredient for making the unpalatable more sweet. For the pirates, sailors and others who scoured the New World, Rum was even sweeter than money. Why take money when you could down a pint of Rum for your trouble? Thus, it was only a matter of time before the spirit became a medium of exchange.
But when Rum became a commodity capable of producing great wealth, bad things soon followed: Wars were fought over Rum; families were ripped apart because of Rum; and centuries of slavery and bondage in the Caribbean occurred because of Rum.
It is surprising how effectively the dark history of Rum has been covered over. Say the name, and the images conjured up are of lazy, sun-filled days in the Caribbean and of tourists lying under umbrellas sipping mojitos. Yet this intoxicating brew was at least partially responsible for the American Revolution. No less an eminent figure than John Adams admitted as much: "I know not why we should blush to confess that molasses [the precursor to Rum] was an essential ingredient in American independence."
The colonists raged against the vestiges of the British mercantile system that forced them to import molasses exclusively from the British West Indies. The only problem was that Jamaica, Barbados, and the other Caribbean islands of the British Empire, could not produce enough molasses to satisfy the American thirst for Rum. That thirst was nearly insatiable. For example, in just one year, 1770, the white male population of the American colonies (less than 1.7 million) drank 7,517,000 gallons of Rum! The colonists simply ignored British law and sourced their molasses and Rum from islands throughout the Caribbean. Customs and trade officials were bribed to turn the other away while monumental amounts of Rum traversed The Americas. But when the British decided to enforce the law in order to increase their revenues to fight the Spanish, all hell broke loose. Americans loved their Rum, and they were willing to go to war over it!
Perhaps it is easy for Americans to forget their Rum history because we have no permanent markers to commemorate it. Not so in the Caribbean. While driving around in the numerous over-priced Rum tours organized by the cruise ship, I couldn't help but notice these beautiful brick buildings dotting the Caribbean landscape. The stood out against the gaily-painted cement and wooden structures typical of Caribbean architecture. I soon discovered the brick buildings had a special story to tell, one that is intimately connected with Rum. It turns out that en route to the Caribbean, the British used the bricks as ballast in order to balance out their ships weighted down with slaves and other necessities. But once the ships arrived in the Caribbean, the bricks were no longer needed. They were discarded in favor of Rum.
Ever resourceful, Caribbean men and women used the bricks to create structures of great beauty.

*pic is of a fort in Antigua

The Story of Rum

(Part 1 of a series; here's Part 2 and Part 3)

The idea seemed ludicrous on its face: Go on a 7 day Caribbean cruise? With my family?
With due apology to cruise aficionados, I am decidedly in the "anti-cruises" camp. They have always seemed rather . . . tame. My travels have been along the lines of the "exotic"--Senegal, Algeria, Côte d'Ivoire (during a coup no less!) I guess I like the adrenalin to flow when I'm traveling. But this was an opportunity to spend time with my family, all of whom live on the East Coast. So, I agreed to go. It turned out to be not nearly as bad as I had contemplated. In fact, I had fun -- most of the time anyway (Ok, so I skipped Disco Night in the ship's lounge. Sue me!)

One thing immediately struck me on the many land excursions: Rum is at the epicenter of Caribbean culture and the economy. Practically every island organized a tour of their Rum distillery, and each proclaimed itself producer of the "best Rum in the world." Rum was everywhere: Rum cake, Rum punch, Rum shots, and the ever popular Cuba Libre! or Rum and Coke (Bacardi and Coke, insists our tour guide at the Bacardi distillery in Puerto Rico). Our Bajan guide put it bluntly: In the Caribbean, for every church built, a rum shop crops up right next to it!

The diversity of Caribbean Rum can be dizzying. Each Island produces a brew with its own distinctive flavor. Here's a snapshot for the next time you order up a bottle: Barbados, reputedly the oldest operating Rum producer in the world (since 1663), is famous for light, sweet Rums. Cuba produces light-bodied, crisp, clean Rums -- although it is illegal for Americans to import it. Puerto Rico is known for light, very dry Rums. And Haiti produces heavier Rums that are aged to a full-bodied, smooth vintage. But in truth, my memories of Haitian Rum are different. Every year, my parents returned to New York from their Haitian vacation with bags full of an innocuous-looking clear liquid. It was Clairin, an unrefined Haitian Rum some called "moonshine." It stunk! I can remember my father and his friends sitting in our living room drinking Clairin, laughing, and exchanging news on Island politics. Although we lived in New York, Rum was a rich part of our social life (well, not mine . . . I was a kid!)

How did Rum become "a global spirit with its beating heart in the Caribbean"? That story is a fascinating one.

While its origins are shrouded in mystery, Rum is truly a global phenomenon. Of course, it could not exist without sugar cane, a tall, thick grass originally from Indonesia. The Chinese are said to have spread its cultivation to Asia and on to India. The Arabs then took up the charge, bringing sugar cane to the Middle East and North Africa. The crusading Europeans of the 11th century came upon sugar cane, and the Spanish and Portuguese carried it with them to the Canary and Azore Islands. And then came Christopher Columbus. En route to his second voyage to the New World in 1493, Columbus picked up cane cuttings from the Canaries and transplanted them to Hispaniola--the island now shared by Haiti and the Dominican Republic.

The Caribbean proved an ideal climate for the cultivation of sugar cane, and Europeans had a nearly insatiable appetite for sugar. To satisfy that craving, the huge sugar cane plantations were born. Sugar cane was planted, harvested and transformed into sugar, which was then exported to various European capitals.

The sugar plantations in turn needed lots of labor -- from slaves and indentured servants, to minor European nobility seeking their fortunes. With this cast of characters, and the harshness of Caribbean life in that period, it was only a matter of time before Rum became the brew of choice for the enslaved, the disaffected, and the lonely. French historian Alain Hertz de Lemp disparagingly called Rum "the drink of the Blacks, the buccaneers and all the vagabounds who scoured the new world."

How did Rum change its image? More on that later . . .
And if I've managed to whet your appetite for some Rum, here's a recipe for the Cuba Libre! as told to me by a bartender at the Bacardi distillery in Puerto Rico:

Fill a glass with ice. Add:

• 1-1/2 oz. dark Bacardi Rum
• Juice of half a lime
• 1 cup Coca-Cola
• Stir and garnish with lime twist

Enjoy!

Can Free Trade End War?

(Part 2 of a 3-part series)

Probably since the first cavemen crawled out of their burrows to exchange firewood for leopard skins, trading relationships have led to strife and war (credit). Prof. Antony Anghie’s work traces the birth of international law—at least in part—to the need to regulate these relationships. And my own recent scholarship focuses on the Berlin Conference of 1884, an attempt by European powers to avert a trade-related war by “peaceably” carving up the African continent into trade zones. Thus, war and trade have always been linked, but the civilizing influence of time was said to have moved us away from the raw grab for power and riches so prevalent in earlier centuries. Trade would now be a source of peace rather than strife (so claims Thomas Friedman in his Golden Arches Theory of Conflict Prevention— “No two countries that both have a McDonald’s have ever fought a war against each other”). In my last post, I asked whether that was possible: Can free trade end war? Prof. Colin Picker’s article, Trade and Security: Empiricism, Change, Emotion & Relevancy suggests not. Picker maintains the “new flavors” of armed conflict are such that trade policy will have little influence on them. In post-Cold War conflicts, he argues, economic factors are not the source of the conflict so much as ethnic or religious tensions. Given that reality, trade policy is a poor substitute for a more robust peace policy, and trade officials are poorly equipped to handle the problem in any case.
While I would agree that in many (if not most) conflicts, trade policy standing alone is not enough to achieve a lasting peace, I also suggest that it is often the first step. Whether internally or externally generated, war is a failure of diplomacy that necessarily leads to a breakdown in linkages between the warring parties. Trade is a way of re-establishing some ties, which hopefully prove too lucrative to dissolve permanently. Friedman claims, for example, that while the war in Kosovo was a refutation of his Golden Arches theory, it was the exception that proved the rule:

Belgrade is a modern city integrated with Western Europe, with a population that wants to be part of today's main global trends . . . Once NATO turned out the lights in Belgrade, and shut down the power grids and the economy, Belgrade's citizens demanded an end to the war. It's that simple. Not only did NATO soldiers not want to die for Kosovo -- neither did the Serbs of Belgrade.
They wanted to be part of the world, more than they wanted Kosovo to be part of them. They wanted McDonald's re-opened, much more than they wanted Kosovo re-occupied.

A few years ago, I read Thomas Barnett’s, The Pentagon’s New Map: War and Peace in the Twenty-first Century and was struck by his charge that modern instabilities in the world order stem almost exclusively from those countries left out of the “functioning core” of globalization. Rather than de-linking trade policy from modern wars, trade policy should be more conscious of the nexus between trade and peace. If we fail to bring the prosperity trade engenders to every corner of the globe, then we risk having those neglected and long-forgotten castaways visit us in our own backyards. In my next post, I want to explore the question of how might we organize trade policy to address some modern conflicts.

Can Free Trade End War?

(Part 1 of a 3-part series)

I confess: Sometimes, I look at my career as an international trade lawyer and scholar and wonder if it has gone awry. Family legend has it that at nine years old I told my dad I wanted to be “the international Thurgood Marshall.” It is a testament to my dad that his only response was “great!” As an immigrant from Haiti who still spoke “Papa Doc” Duvalier’s name in a whisper in our New York city apartment, my father’s experience of law, lawyers and the legal system was vastly different from my own. But he gave me his blessing. In college and law school, I was something of an “agitator”: I protested the last vestiges of U.S involvement with apartheid South Africa, I worked with Haitians seeking political asylum in Miami, and I joined protest movements of various stripes (I was even a vegetarian for seven long years). At NYU, I crammed in as many international law courses as I could fit alongside a heavy litigation schedule in the immigration rights clinic. I felt I was on the path to doing for international law what Thurgood Marshall had done for American justice (oh the arrogance of youth!)
And then someone sent in the decoy—that traitor of a horse the cowboys deploy to roundup the Wild Ones. Suddenly, everyone around me was talking about getting a job at a major law firm. “Stamping your ticket” was now de rigueur if one hoped to become a successful lawyer. Soon enough, I found myself trudging to my cog-in-the-wheel job at a major law firm where I met my first love: International Trade law. I don’t mean to suggest I actually enjoyed sifting through boxes of receipts to validate dumping margins, but the Big Ideas of international trade I found very appealing indeed. Free trade brought prosperity, abundance, peace and security to all nations—at least in principle.
The more I learned, the more I became convinced I had discovered the Theory of Everything: Free Trade = Peace + Prosperity – (Ignorance + Zenophobia). Or even more succinctly: Free Trade = Peace.
Yes, I really was that idealistic. I probably still am to some extent (although I would now add that free trade must be fair). But this idealism is put to the test when I consider the way war can unravel in a heartbeat the prosperity that trade takes generations to produce. When I reflect on the recent fiascos in Iraq and Afghanistan, not to mention the slow-burn in the Congo and the Ivory Coast, and the continuing instability in Haiti, I wonder if I have gotten it all wrong. Perhaps the path I forged in college and law school—that of direct representation and a focus on individual rights—is the surest path to a more just world order?
I came across an interesting article the other day, which forced me to consider the question. In Trade and Security: Empiricism, Change, Emotion & Relevancy, law prof Colin Picker makes the point that “after generations of study and the employment of sophisticated economic, statistical and scientific techniques, we are unable to say whether the optimistic liberal trade views [that free trade leads to peace] are supported by the evidence.” Picker argues the nature of modern conflicts—the fact that they are primarily internal ethnic/tribal disputes that call up a complex mélange of emotions and passions—suggests that “it is best if international trade is not explicitly harnessed to the goal of armed conflict reduction.”
The premise contradicts basic free trade dogma. Perhaps Thomas Friedman put it best when he said “No two countries that both have a McDonald’s have ever fought a war against each other” (sadly, that is no longer true). Trade is meant to be a pacifying force just as much as it is meant to create prosperity. Suggesting otherwise, to my mind, calls into question the very relevance of trade policy in handling twenty-first century problems.
The question I am left to ponder is this: Can free trade end war? I want to delve more deeply into that question in my next post.