THE BLOG

The War of Law

A number of events, apparently unrelated, remind us today that, behind the war of weapons and that of economy, another war is played out, maybe more serious, the war of law. A deadly war, that could affect us all first and foremost.

First of all, in Europe, it has become quite clear that the national law is increasingly swept aside by globalization, allowing to do elsewhere what would be denied at home. This is especially clear in taxation, which it is very difficult to keep to an adequate level, at least for nomadic bodies of our societies (with capital and people), who are constantly moving to places with the lowest taxation; to the detriment of sedentary populations, who, themselves, cannot escape taxation.

This is even more so in the case of France: This week, in three cases (of euthanasia, of MAP -- Medically Assisted Procreation -- and of the Islamic headscarf), the European Court of Human Rights (a European court whose very existence has flown from our minds, because it was adopted within the context of the Council of Europe and not of the European Union), took power over French law.

This Court, which ensures the observance of the engagement undertaken by the contracting states in relation to the Convention for the Protection of Human Rights and Fundamental Freedoms entered into force in 1953, has received recently several cases concerning France.

In the cases of Mennesson v. France and Labassee v. France, the Court found that there had been a violation of the right of children to respect for their private life because French law totally prohibited the establishment of a legal parent-child relationship between fathers and their biological children born as a result of surrogacy arrangements. In other words, the Court requires France to recognize all the rights of children born after MAP and born of GS (Gestational surrogacy) abroad, even if the parents are homosexuals.

In Vincent Lambert Case, the Court imposed upon the French government to suspend the execution of the judgment of the State Council for the duration of the proceedings before the Court and not to cut off intravenous food and water supplies from this man in an irreversible coma, pending its decision as to the admissibility and merits of the case, without prejudice to the eventual outcome of the procedure.

Finally, in the Baby Loup daycare center case the magistrates of the Court of Appeal (France's second-highest jurisdiction) and the Court of Cassation (the highest level of appeal in France, sometimes called the Supreme Court of France) have ruled that the dismissal of an employee for wearing an Islamic veil is legal basing themselves on the case law of the European Court of Human Rights where the judgment was returned once again.

France will not escape, increasingly, from this case law much more liberal, far more protective of individual rights, than French law, whose entire sections may turn upside down, particularly in the areas of family law and individual freedoms.

This war of law is not confined within Europe alone. A substantial fine imposed on BNP shows that, when it is about the economy, the battle turns increasingly in favor of American law. Under the rubric of the struggle, necessary, against the murky nature of the banks' practices, known as "shadow banking," Washington seeks to reduce the power of non-US banks over the dollar outside the United States. This is accomplished by providing a division of the UST (US Department of the Treasury) with the power, rather than a Court as in Europe, OFAC (Office of Foreign Assets Control), a name that must be remembered, is in the process of governing over the global economic law. OFAC of the US Department of the Treasury

"administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under US jurisdiction."

To put it another way, OFAC defends around the world using sanctions that hurt, fatal economically, the United States' interests against foreign governments, even the democratic and allied governments, relegated here in the same category as terrorist and criminals of all varieties.

There is no instrument like this one in Europe. If it does not react, Europe will have to submit increasingly to this kind of diktat. Moreover, the victory of American law, will be total and complete if the Transatlantic Partnership Agreement being negotiated at the moment, leaves, as it is feared, the final say to arbitration in any economic conflict between Europe and the USA; as already intended within the proposed Multilateral Agreement on Investment (MAI) when secret negotiations on behalf of the OECD members took place from 1995 until 1997, and fortunately abandoned. And arbitration, that increasingly replaces the courts as last appeal, generally follows, at the request of the parties, the principles of Anglo-Saxon "common law," whose liberalism is unlimited, and which never trusts the law to provide conciliation and mediation between parties.

And even more so, if are emerging, they are already under way, arbitrations without arbitrator, where disputes are settled through simple negotiation between the parties, posing increasingly difficult questions of law, where the rule of force will trump the rule of law and the rule of reason.

And even worse when lawlessness, with its illegal economy and the reign of fait accompli will impose themselves, even to statisticians, newly integrated into the illegal and criminal economy with respect to the measure of wealth produced by a nation.

There is no benefit for Europe in all that, and still less so in France. Unless it leads the fight to make it possible for its own law to shine throughout the world. It is not an easy task.

j@attali.com

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