TCS Daily

The Monster Awakens

By James Pinkerton - September 18, 2003 12:00 AM

CANCUN, Mexico -- If international lawyers can't turn human rights law into the next launching pad for billion-dollar lawsuits, it won't be for lack of trying. Even now, human rights activists are sloughing off their old preoccupation with protesting and legislating; they're moving, instead, toward the vastly redistributionist -- and perhaps vastly profitable -- field of lawyering and litigating.


This shift, from activism in the streets to activism before the bar, came clear to me as I sat through a panel discussion, hosted by the Canadian government, on human rights and international trade. Two big players in the human rights and development biz, Mary Robinson and Susan Whelan, made their pitches to the audience, but their message fell flat; they spoke the language of limits and practicality -- and what activist came all the way to Cancún to hear that?


Instead, what stood out was a passionate presentation by an international lawyer, one Paul Hunt. Hunt isn't well known, but that could change as he pursues his argument, which is that health care is a judicable human right; that is, with enough lawyering, the rich nations of the "North" could be made to finance the health needs of the poor "South." Ridiculous? Well, maybe such grandiose legal theorizing was easier to dismiss before zillion-dollar settlements rocked, even bankrupted, the tobacco and asbestos industries. And maybe those who pooh-pooh Hunt & Co. might also wish to brush up on a 214-year-old legal time bomb planted by our own beloved US government.


The biggest name on the panel was Mary Robinson. She's the former president of Ireland, who became famous during her five years as United Nations High Commissioner for Human Rights. From that perch, she presided over the notorious World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance at Durban, South Africa, in August-September 2001. It was a festival of anti-American, anti-Zionist yakking, and its memory would have lived in demagogic infamy, were it not suddenly eclipsed just a few days later by 9-11.


Yet here, barely two years later, Robinson's presentation was curiously conservative, at least in comparison to the greeny-lefty views of her audience. Indeed, Robinson seemed almost right-wing as she sat next to the panel's moderator, Jean-Louis Roy, President of the Montreal-based group, Droits et Démocratie (Rights and Democracy).


Roy, whose first language is clearly French, began by asking all of us in the audience to stand for a moment; the reason for standing, he said, was to take "a moment of brief pause and reflection, for Lee Kyung-Hae, who immolated himself, for all those on the other side of the world." It took me a moment to figure out who Roy was talking about; then I realized he was referring to the South Korean farmer/lobbyist/activist/hara-kari-ist who stabbed himself, fatally, at the protestor-blocking barricades here on September 10.


Then Roy warmed to his mission. The purpose of this panel, he said, is "to look at what possible contribution international law can make to the building of a fair and equitable system." Because, he added, "for hundreds of millions around the world, the trade system causes great harm, both material and psychological." Then, a sentence or two later, he upped the ante: "the victims can be counted in the billions."


As the Quebecker talked, I flipped through a copy of his group's new report, entitled Challenges for the World Trade Organization: Protecting Human Rights in a Global Economy. In it, authors Robert Howse and Makau Mutua assert that human rights, as they define them, trump world trade. In their words, the "hierarchy of norms in international law" puts human rights above "conflicting provisions of any treaties including trade agreements."


That was Roy's message, too -- that human rights is the new battering ram to use against trade. And just as the devil can quote scripture, so those who wish to bedevil international economics have plenty of legal verbiage to sling around. Roy cited, for example, the United Nation's 1948 Universal Declaration of Human Rights as his key text, especially Article 25. I looked it up later:


Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.


If that's binding international law -- never mind the fact that many UN-member countries don't have such a good track record on this or any other article -- then maybe Roy has a strong case. Of course, the trick is getting someone to pay for all that cradle-to-graving.


And it was on this subject that Robinson had a surprise for Roy and also for the audience, which was heavy on sunburns, clogs, and hippy-chick peasant dresses -- state-of-the-art NGO wear in Georgetown or Geneva.


Introduced by Roy as someone who "adds light to light," Robinson nonetheless managed to darken the room for her listeners. How? By talking about the practical realities of paying for things.


To be sure, the Irishwoman started out strong, citing, as expected, "the growing disparities between rich and poor, between the powerful and the powerless." But then, after clearing her throat of neo-Marxist cant, she declared that the best way to facilitate human rights is "through the practice of free trade, generating economic growth." Such trade is needed, she said, to pay for "essential social programs."


I looked around the room to make sure I heard correctly. The frowns on faces told me I had heard exactly right. Robinson was saying that free trade generated wealth, and that only such wealth generation could pay for social-welfare spending. This is an argument, to be sure, that American middle-of-the-roaders--from, say, Jack Kemp on the moderate right to Bill Clinton on the moderate left -- could agree to.


But as far as this crowd was concerned, Robinson had violated two taboos. First, she acknowledged that free trade had economic benefits; second, she ignored the standard Left/Green consensus, which holds that the proper approach is to demand the division of the pie more "equally," as opposed to growing more pie. Indeed, she sounded distinctly corporate; she mentioned that she was working with firms such as MTV, Novartis, and Body Shop. The whiff of "sell-out" was in the room.

Of course, Robinson might have learned something in her time as leader of Ireland. For most of its history as an independent country, her Old Sod was poor and isolated; its chief export was its own young people, who generally flourished when they got somewhere else. But in the last two decades, Ireland has changed its ways, opening up its economy, becoming the so-called "Celtic Tiger." Yet Robinson is such an admired figure in Lefty circles that the audience reacted mostly with confusion, as opposed to anger.


Things got hotter when the next panelist spoke. That was Susan Whelan, who heads the Canadian International Development Agency. She, too, sounded Robinson-esque; almost the first words out of her mouth were, "Canada believes that trade promotes human rights."


Et tu, Susan?


All this was too much for Whelan's listeners, including Roy, her fellow Canadian. At one point he jumped in to say, "Trade is not sufficient; social action is needed." That's what the audience wanted to hear -- up with politics; up yours, economics.

During the Q-and-A session that followed, a man who identified himself as a member of Médecins Sans Frontières stood up to denounce the agreement between the WTO and the major pharmaceutical companies to supply free life-saving drugs to poor people in the Third World. This deal, which will cost the Big Pharma billions, is "nothing to celebrate," the man said. He wanted, of course, more, more, and still more.


The audience burst into spontaneous applause. This was the good stuff. This is what they came all the way from London and Stockholm to hear.


But Canada's Whelan stood her ground. "I totally disagree with you," she said, defending the deal: "there is reason to be optimistic" The man left the room; a few minutes later, I followed him out into the hallway. Sure enough, he was being interviewed by a TV reporter. Funny how some journalists decide what's news.


In responding to a question about the role of trans-national corporations, Whelan put her foot in it once again, correctness-wise. "I come from an area of heavy industry," the Ontario-born politician observed. And when Canadian companies leave for other countries, "they take with them good labor practices; we have to acknowledge that fact." Once again, Roy, the moderator, couldn't contain himself: "I think we should have a colloquium on that question," he snapped. After all, one of the pleasures of ideological activism is that one doesn't have to acknowledge any facts -- at least not inconvenient facts.


Happily for the attendees, the ideological needle pushed toward the red zone when it was time for Paul Hunt, an international law professor at the University of Essex in Great Britain, to speak his piece.


He gave the audience what it wanted. "Human rights have come of age," he announced. By that he meant something more than the idea that everyone ought to enjoy free speech.


Instead, he was talking the language of entitlements: "It's no longer enough to say that health care is important; it must be constitutionally protected." But under whose constitution? Hunt never answered that question, but he didn't have to, because he was in full blow-mode. "This right is supported by an extensive and nuanced body of law; it goes on beyond health, to the workplace, public health, access to information" -- and here he really wowed the audience -- "including sexually related information." Happy days were here again.


Some might ask, what's Hunt smoking? But speaking of smoking, one might also ask: how realistic was it to think, 20 years ago, that attorneys general and trial lawyers would take Big Tobacco for hundreds of billions?


I'm not a lawyer, but plenty of people who are lawyers seem to think they're on the edge of an international litigation explosion. The Business and Human Rights Resource Centre, based in London, offers a whole website on this topic, including a helpful section called "Laws and Lawsuits."


And the helluvit is that much of litigation can be traced back to the Alien Tort Claims Act (ATCA), an American statute, originally aimed at foreign pirates, enacted by the First Congress, in 1789. ATCA grants jurisdiction to US courts for any civil action "committed in violation of the law of nations or a treaty of the United States." And the definition of "violation" has expanded considerably since the days of Captain Kidd.


The law was dusted off in 1980, when a Paraguayan man successfully used ATCA to sue the policeman who had tortured his son to death in Paraguay. Many more such suits have been filed since against individuals, including Zimbabwe's Robert Mugabe, all seeking compensation for damages resulting from breaches of international law. But of course, it's generally difficult to seize tangible assets from Paraguayans and Zimbabweans.


Which might explain why many recent cases have been filed against deep-pocketed corporations. Unocal, for example, is currently being sued over alleged human-rights violations in Burma. A visitor to the Global Policy Forum finds a whole lotta litigation goin' on.


Meanwhile, a warning siren about the world-girdling potential of ATCA -- so far, mostly ignored -- has been sounded by the Institute for International Economics (IIE), a centrist think tank in Washington. An 86-page document, entitled, bluntly, "Awakening Monster," reports that as of 2003, plaintiffs using ATCA have sued more than 50 multinational corporations doing business in developing countries, alleging more than 200 billion dollars in actual and punitive damages. Most ATCA claims have been thrown out, but more are coming. Indeed, authors Gary Hufbauer and Nicholas Mitrokostas paint some bleak scenarios of the future:


Within the next decade, 100,000 class action Chinese plaintiffs, organized by New York trial lawyers, could sue General Motors, Toyota, General Electric, Mitsubishi, and a host of other blue-chip corporations in a US federal court for abetting China's denial of political rights, for observing China's restrictions on trade unions, and for impairing the Chinese environment. These plaintiffs might claim actual damages of $6 billion and punitive damages of $20 billion. Similar blockbuster cases are already working their way through federal and state court systems.


Yup, that's right. Imagine every big corporation being sued in American courts for some wrong they allegedly contributed to, in some other country -- where the acts in question might well be perfectly legal. The litigation explosion is bad enough in the US as it is; one hates to see it become a bomb landing upon our relations with foreign companies and countries.


Maybe common sense will rear its seldom-seen head, and all these dystopic scenarios will yet be forestalled. But maybe not. Maybe the cool reception accorded Robinson and Whelan, contrasted to the warm reception accorded to Hunt, tells us something about the future direction of international activism. In a nutshell, it can be described as, "Think globally, act legalistically." World traders, call your lawyers -- because you're going to fight fire with fire.


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