It’s fitting that the Sixth WTO Ministerial should arrive in Hong Kong
only a couple of months after the opening of Disneyland. In both cases
reality is abandoned at the door, while fiction and fantasy take over.
The magical Doha ’Development’ Round promises an end to global poverty
and a new prosperity for all — based on an agenda that boosts
transnational corporate power and demolishes the remnants of political
and social barriers to corporate profit. Like a rollercoaster ride
through a fictional world, we set off to alleviate global poverty and
arrive at greater impoverishment as the destination. There’s a lot of
smoke and mirrors and dazzling special effects, but we end up where we
began. We end up with US$545 billion in global agricultural exports
co-existing with eight 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
themselves living in hunger. In the fantasy world of the Doha Round
’market access’ is the magical solution: small farmers and workers must
compete harder, producing more for less, while pinning their hopes on
access to overseas markets so they can sell more of the stuff that’s
impoverishing them. This will aggravate what a UN agency recently
described as ’immiserizing trade’ (trade that creates more misery), as
agricultural commodity prices continue their free market freefall,
driving down small farmers’ incomes and workers’ wages.[1] As the
poverty gap widens, so too do the profit margins of the agri-food
corporations and mega-supermarkets that control everything from the
’farm gate to the dinner plate.’[2]
Upon entering the fantasy world of the WTO and its magical Doha Round
we’re expected to embrace the irrational and absurd, accepting
miraculous transformations that would otherwise violate our sense of
what is real and rational. 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.[3] Water markets? In the real world
we’d wonder, ’What the hell is a water market?’ But here 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.’ So let’s be fair to corporations, they tell us. This absurd
logic is supposed to generate acceptance of the absurd, no questions
asked. So when the transnational ’services’ conglomerate, Suez, proudly
declares its motif ’Delivering the Essentials of Life’ (including access
to water: human right turned profitable commodity) we’re left to wonder
how the company took control of the essentials of life in the first
place....
Added to the absurdity of this spectacle is a sense of fear — fear that
the Doha Round will fail and the WTO talks will collapse, heralding the
demise of multilateralism and the emergence of a global economy ’without
rules.’ Fear and absurdity — two essential ingredients in the last
quarter of a century of neo-liberalism — play a crucial ideological
role in justifying injustice and obscuring the harsh inequalities and
social violence of global capitalism. So it’s not surprising that the
fear-absurdity matrix is deployed in the run-up to the WTO Ministerial
in Hong Kong. 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 the fact that the WTO consolidated (and
never challenged) the unilateral power of the US state; facilitated
unilateral coercion in bilateral trade deals; justified the coercive
power of unilateral trade sanctions; and 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 — all of which form part of the abused and manipulated
multilateralism of the UN system.
It’s here that we arrive at a new level of fear and absurdity. On 25
October 2005, US-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."[4] Smoke and mirrors, special effects please. Stepping off
that fantasy ride we can read more sober statements from ABCDoha’s
members which describe the benefits of a successful Doha Round to
US-based corporations. No mention of poverty alleviation or the
empowered poor.
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 Corporation; the pharmaceutical giants Procter & Gamble, Johnson &
Johnson and 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 US government
that his corporation has a "vital interest in the expansion of the
international flow of goods, agricultural products, retail services and
financial capital."[5] And that’s essentially the unilateral corporate
agenda the US government is deputized to pursue.
Similar statements in defense of multilateralism and the need for a
unilateral US corporate offensive were made by the member-organizations
of ABCDoha’s steering committee, which includes the National Foreign
Trade Council, the US Chamber of Commerce, the US 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,"[6] 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 US business interests. That
gives us a fairly good insight into the kind of multilateralism at stake
in the Doha Round.
What is even more revealing about the Doha Round’s multilateralism is
the outright opposition to any binding rules that might infringe on
corporate rights — including the right to violate international human
rights. For decades US-based corporations, backed by the National
Foreign Trade Council, the US Chamber of Commerce, the US Council for
International Business and NAM, have consistently and 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. So 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 US law passed
in 1789 that has recently been used by victims of international human
rights abuses to sue US-based corporations in US 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 labour in Burma in
the construction of an oil pipeline used by Unocal, and the torture and
toxic pollution by Freeport mining company in Indonesia.[7]
Among these cases was a class action lawsuit filed by the Vietnam
Association for Agent Orange Victims against a dozen US chemical
manufacturers, including Dow Chemical and Monsanto, which was thrown out
by a federal court in New York on 10 March 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.[8] Yet 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 US courts to make their claims. There
was rarely any attempt to deny that the atrocities occurred. Instead,
money, lawyers and lobbyists were mobilized to prevent these cases from
going to trial. In other words, corporations were not able to claim that
these things didn’t happen or that they didn’t profit from what
happened. They simply 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 and use of the ATS,
so that it could no longer be used to victimize US 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 US-based
corporations accountable for violations of international laws, rights
and principles that the US government hasn’t consented to, the use of
the ATS constitutes nothing less than “judicial imperialism.”[9]
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 US Chamber of
Commerce, the International Chamber of Commerce, the US Council for
International Business, the Organization for International Investment,
the American Petroleum Institute, and the US-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."[10]
So here we see members of ABCDoha, defenders of the WTO’s
multilateralism and a rules-based global economy, essentially arguing
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. In a separate
brief submitted to the Supreme Court by NAM (another member of the
newly-founded ABCDoha), the problem lies in the threat posed by the very
notion of universalism. NAM argues that a norm cannot be universal
“unless the United States has assented to it,” and therefore any
international treaty, law or convention not ratified by the US
government simply can’t be considered universal. In a footnote to the
brief a specific danger in this creeping universalism is recognized —
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."[11]
This fear of internationally recognized worker and trade union rights
being applied to the US, after decades of effectively resisting
ratification of ILO conventions, gives us a glimpse of the promising
world of the Doha Development Round. While the ABCDoha website assures
us that the poor of the world will be empowered, the very same corporate
interests are doing everything in their power to deny workers their
collective rights. Added to that is the precondition that all universal
values be based on US government consent, which in turn casts doubt on
the very meaning of universalism in a globalized world.
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 rollercoaster ride through the house of horrors we
see 100,000 class action lawsuits filed by plaintiffs in China against
major US-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 it. That’s not the point. The point is that if
these cases were to succeed, they could amount to damage claims of up to
US$20 billion. Added to this horrific corporate nightmare is the risk
that the Alien Tort Statue 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, D.C."[12] And Hong Kong?
Anti-globalization activists may be tempted to make this corporate
nightmare a reality. But the point of course is not to defend the Alien
Tort Statute as a means to hold US-based corporations accountable. It’s
to realize that victims of corporate crimes are compelled to use this
ineffective, biased US 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 farmers,
workers, fisher-folk and local communities have no internationally
binding legal instruments to hold transnational corporations accountable
for rights violations, atrocities, complicity in torture and war crimes,
or 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 the very 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, 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 it’s
voluntary and selective (corporations are free to choose which rights to
recognize) and is used benevolently to declare: "We’ve decided recognize
human rights." This is tantamount to recognizing people as human.
So where does that leave us? Twenty years after the nightmare of the
Bhopal tragedy and 40 years after the tragedy of Agent Orange in
Vietnam, we’re witnessing new tragedies in the making, each and every
day. Meanwhile, farmers, workers, fisher-folk and their 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 the rights — individual and
collective — that we’ve struggled together for generations to establish
as fundamental and universal human rights. Yet in the fantasy world of
the WTO and the magical Doha Round all of that is swept away. At least
in Disneyland the fiction and fantasy ends when you leave.
Notes
1. On ’immiserizing trade’ see, United Nations Conference on Trade and
Development (UNCTAD), The Least Developed Countries Report 2004: Linking
International Trade with Poverty Reduction, New York and Geneva, United
Nations, 2004, p.152.
2. See Gerard Greenfield, "Free Market Freefall: Declining Agricultural
Commodity Prices and the ’Market Access’ Myth," Focus on Trade, No 100,
June 2004, pp.20-28.
3. In legal-institutional terms, the UN Committee on Economic, Cultural
and Social Rights recognized in November 2002 that Articles 11 and 12 of
the Covenant on Economic, Social and Cultural Rights include the right
to water.
4. See the ABCDoha website.
5. ADCDoha Press Release, 25 October 2005.
6. “NAM helps form ABCDoha Coalition,” NAM Press Release, 25 October 2005.
7. See a list of recent ATS cases against US corporations.
8. The lawsuit is online. Also see the online petition, Justice for
Victims of Agent Orange.
9. Robert H. Bork, “Judicial Imperialism,” Wall Street Journal, 17 June
2003; Daphne Eviatar, "Judgment day: Will an obscure law bring down the
global economy?" The Boston Globe, 28 December 2003.
10. Brief for the National Foreign Trade Council, et al. as Amici Curiae
in Support of Petitioner, 23 January 2004, p.12.
11. Brief for National Association of Manufacturers as Amicus Curiae in
Support of Reversal, 23 Janauary 2004, p.8, footnote 11.
12. Gary Clyde Hufbauer and Nicholas K. Mitrokostas, Awakening Monster:
The Alien Tort Statute of 1789 (Policy Analyses in International
Economics 70), Institute for International Economics (IIE), July 2003,
p.1-2.