Disneyland, Doha, and the WTO in Hong Kong




I

t’s fitting that the Sixth WTO Ministerial
arrived in Hong Kong December 13-18 only a couple of months after
the September 2005 opening of Hong Kong Disneyland. In both cases
reality is abandoned at the door while fiction and fantasy take
over. The magical Doha “Development” Round of the World
Trade Organization (WTO) promises an end to global poverty and prosperity
for all—based on an agenda that boosts transnational corporate
power and demolishes the remnants of political and social barriers
to corporate profit. There’s a lot of smoke and mirrors and
dazzling special effects, but we end up where we began—with
$545 billion in global agricultural exports co-existing with 8 million
people dying of hunger and hunger-related diseases every year while
tens of millions of small farmers and agricultural workers who produce
the food that feeds the world are living in hunger. 


Access to water—universally recognized as a human right, yet
denied to hundreds of millions of people throughout the world—is
transformed into a logical need to commercialize water supplies
and open up “water markets.” Water markets? In the real
world we’d wonder, “What the hell is a water market?”
But in the world of the WTO we’re assured that everything is
or should be a market in which private corporations are free to
invest, buy, sell, and profit. Anything preventing corporations
from doing so is a barrier, an “unfair trade practice.”
Let’s be fair to corporations, they tell us. So when the transnational
“services” conglomerate Suez proudly declares its motif
of “Delivering the Essentials of Life” (including access
to water, a human right turned profitable commodity), we wonder
how the company took control of the essentials of life in the first
place. 


Added to the absurdity of this is a sense of fear that the Doha
Round (named for the Qatari capital where the current round of WTO
trade talks began in 2001) will “fail” and the WTO talks
will collapse, heralding the demise of multilateralism and the emergence
of a global economy “without rules.” Fear of failure in
Hong Kong is used not only to secure concessions from developing
country negotiators forced or enticed into bilateral trade-offs
and backroom deals, but also those “civil society” organizations
who believe that a reformed WTO is essential to the future of multilateralism.
To preserve this fiction of “multilateralism at risk,”
we’re expected to: 


  • ignore that the WTO consolidated (and never challenged) the unilateral
    power of the U.S. 

  • facilitated unilateral coercion in bilateral trade deals 

  • justified the coercive power of unilateral trade

    sanctions 


  • further entrenched global inequality between and within nations 


Also ignored is the conflict between the new rules imposed under
the WTO regime and an array of international instruments on human
rights, cultural, social and economic rights, the environment, and
conventions on worker and trade union rights. 


On October 25, 2005 U.S.-based corporations and business associations
formed the American Business Coalition for Doha (ABCDoha) with the
aim of saving the Doha Development Round from failure in Hong Kong.
Its website “fact of the week,” entitled “The Promise
of the Doha Round,” declares that the elimination of global
trade barriers will “lift more than 300 million people out
of poverty over 15 years” and “empower the world’s
poorest citizens.” Stepping off that fantasy ride we can read
statements from ABCDoha’s members that describe the benefits
of a successful Doha Round to U.S.-based corporations. No mention
of poverty alleviation or the empowered poor there.







The corporate co-chairs of ABCDoha include Cargill (the agribusiness
conglomerate that dominates the global trade in grains and agricultural
commodities such as cocoa), Caterpillar, Eastman Kodak, Goldman
& Sachs, Intel, Procter & Gamble, Johnson & Johnson,
Pfizer, Time-Warner, and Wal-Mart. At the press conference launch
of ABCDoha, the CEO of Cargill called for “tough decisions
on market access,” while the CEO of Wal-Mart reminded the U.S.
government that his corporation has a “vital interest in the
expansion of the international flow of goods, agricultural products,
retail services and financial capital.” 


Similar statements in defense of multilateralism and the need for
a unilateral U.S. corporate offensive were made by the member-organizations
of ABCDoha’s steering committee, which includes the National
Foreign Trade Council, the U.S. Chamber of Commerce, the U.S. Council
for International Business, and the National Association of Manufacturers
(NAM). Described by the president of NAM as “a powerful new
force in support of a successful Doha Round for agricultural, manufacturing
and services interests,” ABCDoha will apparently act as a powerful
force in saving the global economy’s fragile multilateralism,
while channeling the benefits of expanded global trade to U.S. business
interests. 



F

or
decades U.S.-based corporations, backed by the National Foreign
Trade Council, the U.S. Chamber of Commerce, the U.S. Council for
International Business, and NAM, have aggressively opposed the application
of any multilateral or national instruments that could hold them
accountable for violations of international law, particularly with
regard to human rights violations. While the corporate interests
driving ABCDoha actively promote new universal values and norms
for a globalized economy, they vigorously oppose the universal application
of long-standing international human rights conventions. 


This is epitomized by the corporate offensive against the Alien
Tort Claims Act (ATCA) or Alien Tort Statute (ATS), an obscure U.S.
law passed in 1789 that has recently been used by victims of international
human rights abuses to sue U.S.-based corporations in U.S. courts.
Farmers, workers, fisher-folk, and local communities in more than
a dozen countries have filed cases against corporations such as
Texaco, Chevron, ExxonMobil, Gap Inc., Unocal, Royal Dutch/Shell,
Rio Tinto, Coca-Cola, Del Monte, Union Carbide, and Freeport McMoran.
The cases range from the Union Carbide tragedy in Bhopal, India
in 1984, in which 20,000 people died and 140,000 were injured, to
the use of forced labor in Burma in the construction of an oil pipeline
used by Unocal and the torture and toxic pollution by Freeport mining
company in Indonesia. 


Among these cases was a class action lawsuit filed by the Vietnam
Association for Agent Orange Victims against a dozen U.S. chemical
manufacturers, including Dow Chemical and Monsanto, which was thrown
out by a U.S. federal court on March 10, 2005. Like many other cases
filed under the ATS involving atrocities against humanity, war crimes,
torture, slavery, and genocide, the Victims of Agent Orange sought—
more than anything—to expose the truth about the involvement
of these corporations in perpetrating these crimes. What is remarkable
about the corporate response is the attempt to prevent these cases
going to trial, challenging not the claims made by victims of these
atrocities, but their right to use U.S. courts to make their claims.
There was rarely any attempt to deny that the atrocities occurred.
Corporations have declared that they shouldn’t be held accountable
and that any laws—international or national—that may be
used to enforce accountability for these crimes should be ignored,
amended, or revoked. It was for this reason that energy was concentrated
in securing a Supreme Court ruling limiting the interpretation of
the ATS so that it could no longer be used to “victimize”
U.S. corporations. Indeed, “support groups” were soon
created to help corporate “victims,” such as Unocal and
Dow Chemical, apparently “traumatized” by the reminder
of their crimes. Fear and absurdity returns with a vengeance. 








The
fear-absurdity matrix then produced a new claim: by holding U.S.-based
corporations accountable for violations of international laws, rights,
and principles that the U.S. government hasn’t consented to,
the use of the ATS constitutes “judicial imperialism.”
Desperate to save the corporate victims of judicial imperialism,
the Bush regime challenged the interpretation of the ATS in the
Supreme Court and sought its repeal or reinterpretation. The case
of the corporate victims was also made directly to the Supreme Court
in a brief submitted by the National Foreign Trade Council, the
U.S. Chamber of Commerce, the International Chamber of Commerce,
the U.S. Council for International Business, the Organization for
International Investment, the American Petroleum Institute, and
the U.S.-ASEAN Business Council on January 23, 2004. The text of
the brief includes a remarkable sub-heading that perfectly illustrates
their key argument: “ATS Lawsuits Harm The Economy By Putting
Companies With A US Presence At A Unique And Unfair Competitive
Disadvantage.” This is explained as follows: “This means
that US companies (or companies with a US presence) are at a significant
competitive disadvantage against their foreign competitors—facing
unique risks and uncertainty in the planning, financing, and insuring
of activities abroad. They either have to absorb these added costs,
or cede profitable ventures to other nations’ companies.” 


So members of ABCDoha essentially argued that legal liability for
violations of international human rights is a competitive disadvantage
in the global economy. But the fear of judicial imperialism doesn’t
stop there. A separate brief, submitted to the Supreme Court by
NAM, argues that the problem lies in the threat posed by the dangerous
application of universally recognized worker and trade union rights:
“The dangers that lurk if courts do not focus on assent by
the United States are especially dramatic in the area of labor standards,
where the International Labour Organization has adopted 185 conventions
over the years, many of which could be invoked by plaintiffs as
norms of customary international law against corporate defendants.
Yet the United States has ratified only 14 of those conventions.” 


Finally, corporate fears of victimization reach even greater heights
in the “nightmare scenario” depicted in “Awakening
Monster,” a policy paper on the Alien Tort Statute published
by the Institute for International Economics. In this roller coaster
ride through their corporate house of horrors, we see 100,000 class
action lawsuits filed by plaintiffs in China against major U.S.-based
corporations for “abetting China’s denial of political
rights, for observing China’s restrictions on trade unions,
and for impairing the Chinese environment.” There’s no
question about the complicity of these corporations in committing
such violations or how much they profited from them. That’s
not the point. The point is that if these cases were to succeed,
they could amount to damage claims of up to $20 billion. Added to
this is the risk that the Alien Tort Statute could fall into the
hands of “antiglobalization forces,” which would ultimately
be “more destructive to the liberalization agenda than protests
mounted in Seattle, Prague or Washington, DC.” 








Anti-globalization
activists may be tempted to make this corporate nightmare a reality.
But the point is not to defend the Alien Tort Statute as a means
to hold U.S.-based corporations accountable. It’s to realize
that victims of corporate crimes are compelled to use this ineffective,
biased U.S. law because nothing else exists. With all the talk of
multilateralism at risk and fears of a global economy without rules,
the fact is no such rules exist. In the real world communities have
no internationally binding legal instruments to hold transnational
corporations accountable for rights violations, atrocities, complicity
in torture, war crimes, and genocide. 


There are, of course, International Criminal Courts and guidelines
on transnational corporations like the OECD Guidelines on Multinational
Enterprises. But none of these have the enforceability—based
on a genuinely democratic mode of social and political power—needed
to effectively regulate transnational capital. This kind of social
regulation would run counter to the logic of the WTO regime. That’s
precisely why it’s absurd to attempt to add social clauses
to WTO rules, attaching international human rights as a footnote
to the corporate agenda. Proposals like the social clause are premised
on the assumption that rights have been inadvertently neglected
or somehow left off the agenda. Yet in the real world we see an
orchestrated effort by transnational corporations to prevent the
imposition of any kind of mandatory, enforceable, and effective
multilateral instrument on human rights. That’s one reason
why voluntary instruments like the UN Global Compact are welcomed
by business interests—they allow corporations to receive public
approval for voluntarily acknowledging human rights already enshrined
in UN conventions and treaties. Gone is the obligation to recognize
human rights as fundamental and universal. Instead, human rights
are voluntary and selective (corporations are free to choose which
rights to recognize). This is used benevolently to declare: “We’ve
decided to recognize human rights,” tantamount to recognizing
people as human. 


So where does that leave us? Twenty years after the nightmare of
the Bhopal tragedy and forty years after the tragedy of Agent Orange
in Vietnam, we’re witnessing new tragedies in the making. Meanwhile,
communities are compelled to live under the shadow of fear and absurdity,
constantly promised that they’ll be lifted out of poverty through
more global trade while systematically denied their rights. In the
fantasy world of the WTO and the magical Doha Round all of that
is swept away. 


At least in Disneyland fiction and fantasy end when you leave.


 





Hidayat
Greenfield is a labor research activist and union organizer working
in East and Southeast Asia.