In Burma ruling, top court put trade before rights

By Mark Weisbrot, 6/22/2000

source : The Bostonglobe


The Supreme Court's unanimous decision to strike down the Massachusetts Burma law says more about the probusiness bias of the court than it does about the legal principles involved in the case.

The Massachusetts 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 refuse to buy anything from any company we dislike.

Shouldn't the Commonwealth of Massachusetts have the same right? Justice David Souter, writing for the court, said no. For him, the Massachusetts law would ''compromise the very capacity of the president to speak for the nation with one voice in dealing with other governments.''

Well, 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. Would the states therefore be forced to rescind such resolutions?

The 1996 law was intended to support 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 percent of the contested seats in parliament.

The newly elected representatives were arrested. The military government is condemned for political murders and imprisonment, burning of villages, forced labor, and forced relocation of hundreds of thousands of people.

A few months after Massachusetts passed its law, Congress authorized federal sanctions against Burma. Although Congress expressed no intent to pre-empt the Massachusetts law, the Supreme Court somehow found that it did.

The argument that states are excluded from participation in foreign affairs is weak. As Justice Antonin 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.''

Souter's 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 voice.'' That ''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.

One of those institutions is the World Trade Organization. The court's opinion cites the complaint that the European Union and Japan brought against the Massachusetts law at the WTO as part of the law's foreign policy problem. The multinational corporations that challenged this law also stressed the conflict with WTO rules.

The court's decision 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.

That is why attorneys general from 22 states as well as 78 members of Congress, local governments, and dozens of nonprofit organizations joined briefs in defense of the Massachusetts law.

It's getting to be a formula: on the one side, everyone who has a stake in democracy, human rights, or moral values; on the other, the pursuit of that ''single, unconscionable freedom - free trade.''

So 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 antiapartheid laws, on which the Massachusetts Burma law was modeled, would also have been overturned.

Of course, those sanctions were adopted before accords like NAFTA and the WTO established the supremacy of trade over all other concerns.

Welcome to the New World Order.

Mark Weisbrot is codirector of the Center for Economic and Policy Research.