Trade Trumps Human Rights in Supreme Court Decision

Mark Weisbrot


Supreme Court’s unanimous decision yesterday to strike down the Massachusetts

Burma law says more about the pro- business bias of the present Court than it

does about the legal principles involved in the case.


Massachusetts selective purchasing law made it hard for companies that do

business in Burma to win contracts from the state. It is difficult to see what

is wrong with that. After all, our law respects the concept of consumer

sovereignty: as individuals, we are free to vote with our dollars and refuse to

buy anything from any company that we dislike.


the State of Massachusetts have the same right?


David Souter, writing for the Court, said no. For him, the Massachusetts Burma

law would "compromise the very capacity of the President to speak for the

Nation with one voice in dealing with other governments."


maybe so. But then, so does the First Amendment to the Constitution. What would

the Court have done if Massachusetts had passed a resolution condemning Burma’s

military government for gross human rights violations? If all 50 states were to

pass such resolutions, they might "undermine the President’s capacity. . .

for effective diplomacy," as Souter said about the Massachusetts law. Would

the states therefore be forced to rescind such resolutions?


1996 Massachusetts law was intended to support the movement for democracy in

Burma, also known as Myanmar. The country is ruled by a military government that

seized power in 1990, after opposition party candidates won more than 80% of the

contested seats in parliament. The newly elected representatives were arrested.

The military government is internationally condemned for political murders and

imprisonment, burning of villages, forced labor, and forced relocation of

hundreds of thousands of people.


few months after Massachusetts passed its law, Congress authorized federal

sanctions against Burma. Although Congress expressed no intent to preempt the

Massachusetts law, the Supreme Court somehow found that it did.


argument that states are constitutionally excluded from participation in foreign

affairs is weak. As Justice Scalia noted during oral arguments, the

Constitution’s specific prohibitions against state involvement in wars and

treaties "would all be unnecessary if there was some overriding,

unexpressed principle in the Constitution that states can’t get involved in

foreign policy."


concern about the President speaking "for the Nation with one voice"

echoes arguments made by the lawyer for the National Foreign Trade Council, the

consortium of more than 600 companies that won this case. "As trade becomes

more important, it becomes more important for Congress to speak with one



"one voice" is the voice of big business, with the federal government

increasingly acting as a mere echo chamber. Even worse, our government is

working overtime to stifle dissent by transferring power from elected officials

to unaccountable, supra-national institutions.


of those institutions is the World Trade Organization. The Court’s opinion

specifically cites the complaint that the European Union and Japan have brought

against the Massachusetts law at the WTO, as part of the foreign policy problem

that the law had created. The multi-national corporations that challenged this

law also stressed the conflict with WTO rules, and the WTO case was clearly a

factor in the Court’s decision.


Court’s decision therefore has implications for state and local laws throughout

the country that deal with public purchasing. These include preferences based on

human rights, labor standards, or even environmental standards such as recycled

material in government-purchased goods. Many of these laws are incompatible with

WTO rules, and could lead to similar challenges in federal court.


is why Attorneys General from 22 states, as well as 78 members of Congress,

local governments, and dozens of non-profit organizations joined briefs in

defense of the Massachusetts law.


getting to be a formulaic plot: on the one side, everyone who has a stake in

democracy, human rights, or moral values. On the other, the relentless pursuit

of that "single, unconscionable freedom– free trade."


it’s sad to see the whole Supreme Court line up unanimously on the side of big

business. The Court was never called upon to rule on the legality of the

sanctions adopted in the 1980s, by 25 states and 164 local governments, against

the apartheid regime of South Africa. But the implication of this decision is

that the anti-apartheid laws, on which the Massachusetts Burma law was modeled,

would also have been overturned.


course the anti-apartheid sanctions were adopted before agreements like NAFTA

and the WTO had established the supremacy of trade over all other human



to the New World Order.


Weisbrot is co-director of the Center for Economic and Policy Research in

Washington, DC.


Leave a comment