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Can this happen here around the Darfur genocide?

5. April 2005 • MarkDilley
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“While Harvard University is taking the laudable step of divesting from PetroChina, a company with ties to the genocide in Darfur, I can’t help but wonder if my university is invested in the Sudanese oil industry—and it’s unfortunate that I’ll probably never find out.”

> via Third Wave Agenda

  1. Mark –

    Even if you knew, its a moot point. As a state institution, the University is preempted from engaging in its own foreign policy. (Cosby v. NFTC). Any attempts by the Univeristy to conduct what could even remotely be percieved as its own foreign policy would likely be met with a law suit, and a quick defeat in the courts.

    Harvard is a private institution, and therefore can make whatever investment decisions it wants, as can you as a private person. However, the Univeristy is state instituion and its attempt to leverge its economic strength to change the behavior of a foriegn governmen, no matter HOW illegitimate the government, would be percieved as tempering in the federal foreign affairs power.
       —David LIvshiz    Apr. 5 '05 - 09:07PM    #
  2. Mark,

    I think it’s time for a campus-wide referendum on divestment.

    Let the students debate it, and use the First Amendment for all it’s worth.

    I think it would be an excellent idea to follow Harvard’s lead:

    * quickly divest all University funds, if any, that are contributing to state-sponsored ethnic cleansing in Darfur, and (though Harvard forgot about this part)—

    * just as quickly divest all University funds that are contributing to Israel’s state-sponsored ethnic cleansing of Palestine.
    If the university takes David’s advice and says “no” to divestment——then I expect the student government here to do exactly as Harvard’s did in 1986:

    Hold a campus-wide referendum on whether to divest.

    (In 1986, the issue was divestment from Apartheid South Africa. Today, the issue is divestment from Apartheid Israel.

    (Yes, Apartheid. Ask anyone in Gaza if they are allowed to vote away the Israeli tanks that keep blowing their heads off):


    February 08, 1986

    “Students Say Yes to Divestment,
    “Support Council Action on Issue.


    “Two out of three students think the University should sell its stock in companies with ties to South Africa according to the results of an Undergraduate Council referendum…”

    Millions of Palestinians are being crushed by a pretty bloody, ethnic-based Israeli military dictatorship.

    No one in Gaza or the West Bank can deny that it is truly an Israeli military dictatorship.

    Today, no one, and nothing, can stop student governments from treating Israel like they treated South Africa, and Burma, and tobacco, and Coke.

    So yeah, divest from Sudan and from Israel too.

    Why not?
       —Blaine (Divest from Israel too.)    Apr. 5 '05 - 09:59PM    #
  3. well, livshiz, perhaps then that precident needs to be changed huh?? just because some old white guys in robes said you can’t do that does mean we should all stand idle while people get slaughtered…

    ari p.
       —Ari P.    Apr. 5 '05 - 10:04PM    #
  4. Ari –

    its a question of drawing lines. the question is who gets to do foreign policy? We once had a situation where the states held the dominant role in making foreign policy. it was called the confederate period. It cause so much trouble, in fact almost landed us in a war with Great Britain, that we held a constitutional convention and CONCIOUSLY decided that the foreign policy should be controled by a single government on a federal level.

    What happens if we allow divestment? well, in the first place it devalues the power of the president to exercise foreign policy, becuase he can then be undermined by the individual member states. We may not like the Executive policy on Israel (i don’t really mind, frnakly), but if you don’t like it – go lobby him. Teh president is the comander-in-chief, and needs to be able to negotiate effectivley with foreign countries, allowing the states to say – “your economic agreement doens’t work in state X” hurts our ability to do that.

    Moreover, at what point do you draw a line. tomorrow – you will have alabma divesting from German/France – b/c its onpopular there. Foreign policy is an issue that has NATIONAL implications, and alloiwng individual states a say – can pose externalities to others.

    Look – read the Federalist papers, there is a reason everyone still quotes them. If you read Federalist 10 and Federalist 75 – you see why we should have one body in chareg of Foeign policy.

    Baline – its not a policy. its the LAW. and it has been the law in this country now for 225 years. South Africa was a unique example – where Congress and the Executive (starting with Carter) indicated their aquiesence to such action, meanwhile – the same is not the case in either Sudan or Israel (thoguth, I think it probably will be in Sudan by the end of the year).
       —David LIvshiz    Apr. 6 '05 - 12:40AM    #
  5. What? Ronald Reggae was the executive, he didn’t agree at all with South Africa divestment. He had his a** overruled by the Democratic Congress, thank goodness. Otherwise Nelson Mandela might still be in prison.

    So you think activists shouldn’t have asked Michigan to stop Ford Motors, etc., investments in Nazi Germany? (Actually, I can’t recall the extent to which they did ask the state of Michigan, if at all; but they should have asked, since it would have hurt the Nazis, which is a good goal.)
       —David Boyle    Apr. 6 '05 - 03:21AM    #
  6. Boyle – to ansewr your question. No i don’t think they should have asked the state of michigan to create its own foreign policy. They should have asked FDR to declare war, and once war was declared – Ford working for the Nazi’s is equivlent to lending aid and comfort to the enemy. But, as it is – I think there is a reason we had a constitutioanl convention, a reason why the foreign policy power is left to the federal governmetn, not the several states.

    I acknowledge there are costs, which is that sometimes individuals are not able to influence foreign policy as effectivley as they may be able to do otherwise. But, I weigh against it the ability of the US to have a single foreign policy – well articulated, and well implimented. I might disagree with the foreign policy – but thats part of waht it means to live in a democracy. don’t like it – go vote it out of office.
       —David LIvshiz    Apr. 6 '05 - 03:30AM    #
  7. Livshiz- That’s pretty well bullshit, though. Divestment is a commercial policy as well as a political one, and that’s the easiest way to get around the prohibition. You can’t force a public institution to keep holdings in any investment any more than you can force a private institution: it’s left to the discretion of their governing bodies. That’s why U-M can negotiate with Nike on sweatshop abuses, which is another area that can be understood to be foriegn policy.
       —js    Apr. 6 '05 - 03:58AM    #
  8. Sure you can. Crosby v. NFTC – the court was quite explicit that any attempt to use economic muscle with the intent of changing a policy of a foreing government was foreign policy and therefore within the exclusive federal domain.

    You’re right that it creates a messy picture, but in the US, laregly because of our past, ambiguity is looked at in favor of the federal governmetn when the issue is foreign policy, adn the states if its anything else (more or less).

    Pulling out of nike was trying to chagne Nike’s policies, not those of indonesia – therefore not foriegn policy.
       —David LIvshiz    Apr. 6 '05 - 04:12AM    #
  9. David- Then the easiest thing to do is to claim that divestment in Israeli businesses is in order to get those businesses to change their policies re: any lobbying cash they throw into the Israeli government. (In fact, if the divestment was more targetted at businesses that supported the occupation instead of ones that just happen to be run by Israelis, I think it’d get more support. But then Blaine would have to tone down his rhetoric.)
       —js    Apr. 7 '05 - 05:13PM    #
  10. JS –

    Maybe i am not explaining myslf. What the court prohibited in Crosby – was any attempt to influence the behavior of a foreing country. So…the story in Crosby was that a massachusets city passed a law that prohibited doing business with any business doing work with Burma (Mayamar). The court struck it down….saying that any attempt to directly or indireclty influence a behavior of a foreign country is not allowed.

    Now – you can make the personal choice to invest where ever you want. and so can Harvard. but UofM as a state agency has to accept the foreign policy of the executive. They coudl argubly make a fairly strong case not to invest in compnaeis doing business with Sudan in the first place, but it coudl not divest based on the policy of a foreign govenrment.

    its not very democratic, but its an aspect of our governmetn. shrug
       —David LIvshiz    Apr. 7 '05 - 08:30PM    #
  11. problem is, as i just read in this new book i wrote a review of (university inc.), the concept of the state school is changing from one that is a state institution on the whole and into one that happens to be state subsidized…which could alter the parameters of the case in question…

    ari p.
       —Ari P.    Apr. 7 '05 - 09:55PM    #
  12. Re Crosby, see at :
    – - – ...2. State and Municipal Measures
    Last June, in Crosby v. NFTC, the Supreme Court struck down the Massachusetts Burma law, a selective purchasing measure based on similar measures fromn the anti-apartheid movement. The unanimous decision was a blow to the selective purchasing movement, but perhaps not as harsh a blow as some believe. The basis for the decision was the belief that federal sanctions on Burma preempted the Massachusetts law. However, the Court did not decide that states may not use their purchasing power in a way that affects foreign policy in general. Although the Supreme Court decision narrowed the options, there is still room for state and local governments to pass selective purchasing laws regarding companies doing business in Burma.

    Primary Boycotts
    Any new law must be a “primary” procurement boycott, because it was the “secondary” boycott that was held to be preempted by federal law. In other words, there needs to be a direct connection between the companies targeted and the human rights violations, not merely financial support for the Burmese regime.

    In addition, state and local governments can require companies to disclose the nature of their business if they operate in a sector prone to human rights violations, as a condition for contracts with the governments.

    Local governments can divest holdings in companies that do business in Burma, or that benefit from the violation of human rights. This is a relatively easy option, though the impact is generally limited, unless the local government is a major shareholder in the company in question. – - -
       —David Boyle    Apr. 8 '05 - 03:28AM    #
  13. Boyle – read the 1st Circuit opinion, which was neither critisized, nor overturend by the Supremes.

    The first cirucit had three indipendent baasis for judgement: preemption, DCC, and the foreign affairs power.

    In light of Garimandi last term, it is HARD for me to see how the courts woudl allow any interference on executive ground. I am actually not the biggest fan of the current balance, but it is what it is.

       —David LIvshiz    Apr. 8 '05 - 02:17PM    #
  14. Also – Dave – the divestment part is bad reasoning. Read the decision yourelsef, and then tell me you buy the argument that you can divest and not run into a serious problem. I don’t know how I would even begin to make that argument.
       —David LIvshiz    Apr. 8 '05 - 02:25PM    #