Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Trade and Internet Freedom

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Trade and Internet Freedom

Article excerpt

This panel, co-sponsored by the Intellectual Property Interest Group, was convened at 9:00 a.m., Thursday, April 10, by its moderator, Declan McCullagh of Wired Magazine, who introduced the panelists: Anupam Chander of UC Davis School of Law; Jacqueline Lipton of Case Western Reserve University School of Law; Miriam Sapiro of Summit Strategies International; Wendy Seltzer of Northeastern School of Law; and Michael Traynor of Cooley Godward. * ([dagger])


By Anupam Chande ([double dagger])

Proponents of human rights have often found themselves at odds with free traders. The desire to liberalize the flow of goods across borders in service of efficient production has at times been insufficiently attentive to the rights of workers and the health of the environment. Cyberspace, however, may offer a context in which the desire for free trade and the wish to promote political freedom go hand-in-hand. By liberalizing trade in cyberspace, international trade law can bolster the circulation of information that authoritarian regimes would repress. In this essay, I want to sketch a hopeful possibility: how the Internet under the governance of international trade law might bolster political freedom around the world. Unexpectedly, the General Agreement on Trade in Services (1) might emerge as a human rights document.

The new bugaboos of repressive governments are search engines, electronic bulletin boards, blogs and YouTube. These are technologies that allow ordinary individuals to communicate outside the mainstream media channels that often prove subservient to governments. (2) This feature, of course, also represents the original nature of the World Wide Web itself, as it eschewed any central intermediating authority in information circulation. If international trade law can help protect the free circulation of information in cyberspace, it can serve the cause of political freedom around the world.


Human rights law has typically sought to regulate the production of goods in order to avoid the exploitation of labor (or relatedly, the environment). But with respect to trade in services delivered over the Internet, the nature of the work and the presence of an often highly-educated workforce significantly reduce fears of worker exploitation. This does not mean that labor rights are no longer of concern with respect to trade in services, (3) but those concerns are less with sweatshops, below living wage, child labor or perilous working conditions than with the right to organize and the right to privacy. In trade mediated via cyberspace, human rights law comes to bear in a largely novel fashion: to help further the right of individuals to share and receive information. Trade in services shifts the locus of human rights attention from the production process to its delivery and consumption. Thus, cyberspace offers new and fertile opportunity for human rights law.

Human rights law requires that nations not only provide their citizens with free speech rights within their nation, but also the right to impart information "regardless of frontiers." This formulation is repeated in both the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights as well. (4) The Declaration describes the right to "impart information and ideas through any media regardless of frontiers," and the Covenant subsequently reiterated the "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers." While the legal status of the Universal Declaration is open to question, it nonetheless offers "the primary source of global human rights standards." (5) Because of its nature as an international treaty, the Covenant carries more binding force than the Declaration. (6)

The Covenant makes clear that one country's inhabitants have the right both to send and to receive information from another country, and thus imposes obligations on both countries to allow the information exchange. …

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