Wednesday, August 27, 2008

Trade Agreements As a Tool to Further Human Rights

By Luke Eric Peterson

Embassy: As the curtain fell on the Beijing Olympic Games, a U.S.-based coalition is striving to keep the spotlight squarely focused on China.

The California First Amendment Coalition (CFAC) is urging the U.S. government to launch a formal complaint against China at the Geneva-based World Trade Organization, alleging that the country's heavy-handed Internet censorship violates world trading rules.

The CFAC points to blocks placed on popular foreign websites—including Youtube and BBC news—that "are either deemed offensive by Chinese government censors, or are feared by the government as potential platforms for self-expression by Chinese citizens."

The group adds that screening by Chinese authorities means that the performance of foreign websites is degraded relative to Chinese websites—meaning that foreigners are effectively subjected to discrimination, contrary to world trade laws.

The Financial Times reports that major Internet players like Yahoo and Google are somewhat ambivalent about a full-frontal legal assault on China. To be sure, Google has pushed for the United States to put the topic of Internet censorship on the agenda of future trade negotiations, in an effort to coax the Chinese government into more liberal treatment of news and Internet organizations. But the Financial Times reports that Google and Yahoo are a bit more guarded when it comes to the CFAC's desire to drag China before a panel of trade arbitrators.

However, the CFAC insists that China's existing obligations as a WTO member-state provide sufficient legal foothold for the U.S. to mount a challenge to current Chinese practices.

There is a definite novelty to the use of trade and economic agreements to further human rights objectives, such as freedom of expression. When you live in a global village where most of the binding and enforceable international rules are economic ones, it can be tempting for human rights advocates to pick up such tools and see if they can be appropriated for a different purpose.

On rare occasions, they can.

For example, there are scant international protections afforded to charities or development agencies operating in overseas territories. For the most part, such groups find themselves at the mercies of authoritarian governments, or warring factions, with little except moral suasion and the diplomatic support of home-governments to guarantee the safe passage of staff members and the unimpeded operation of relief, development or other charitable activities.

During Zimbabwe's recent contested election process, all private voluntary organizations and non-governmental organizations were ordered to suspend their field operations after the ruling Zanu-PF party accused them of political meddling. Groups like Oxfam and Care International were forced to idle their relief activities, thus exacerbating the humanitarian crisis in that country.

In countless other contexts, repressive governments have cracked down on foreign NGOs, withdrawing their work authorizations, seizing their offices and equipment, and even terminating the legal status of organizations.

Many governments, particularly in the former Soviet Union, have grown especially suspicious of foreign funding of not-for-profit organizations, fearing that Western governments may be funneling funds through NGOs in order to support political or human rights reforms.

Perhaps most notoriously, the Open Society Institute, a major donor organization created by the financier George Soros, saw its operations in Uzbekistan shut down in 2004. Before its summary exit, the organization had complained that government officials were taking a fine-tooth comb to its operations, thus grinding to a halt many of the institute's health, education, and legal reform projects.

The recipients of such unwelcome advances can appeal to the local courts, but this can be a perilous exercise, particularly in countries where the judiciary owe their appointments and livelihoods to political masters. Another less-discussed alternative is for victims to turn to international trade and economic agreements—in much the same fashion as the U.S.-based CFAC is seeking to use global trade rules to target Internet censorship.

At least some international treaties that protect trade and economic activities on the global stage may be malleable enough that they protect certain not-for-profit activities as well.

In a research paper prepared with a colleague for the Washington-based International Center for Not-for-Profit Law (ICNL), we found that groups like Oxfam, Care International and the Open Society Institute may be able to challenge at least some forms of repressive treatment by invoking the terms of economic treaties concluded by their host-countries. Many of these treaties are couched in broad terms and may protect certain economic-development activities undertaken by not-for-profit organizations.

Of course, it would be ironic if trade and economic treaties—which come in for routine (and sometimes justified) criticism from many non-governmental organizations—harboured some benefits for those same NGOs.

Without wishing to overstate such benefits, at least some NGOs committed to the cause of freedom of expression or to ministering to the basic needs of others could be pleasantly surprised to discover that the legal ground-rules of economic globalization are not as one-dimensional as sometimes thought.

Luke Eric Peterson is an Embassy columnist and the editor of Investment Arbitration Reporter ( an electronic news service tracking international lawsuits between multinationals and sovereign governments. OLYMPIC WATCH: Human Rights in China and Beijing 2008

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