Yahoo! Free speech in China

Corporations also contend that withdrawal from markets makes no positive impact, as other companies would replace them in any case. Also, that by withdrawing they lose the chance of improving the human rights situation by active engagement with the local community and government. This is an attractive as well as workable, but historically weak, argument. Moreover, once profit takes precedence over principles, it is not easy to reverse the order.

Corporate complicity with states which are involved in suppressing human rights presents another difficulty. For example, Cisco may claim that it “does not in any way participate in the censorship of information by governments”. But it may be argued that complicity need not always be direct; indirect or silent complicity could also attract liability. The several actions against corporations under the US Alien Tort Claims Statute are quite revealing on this issue. The analogy may not be quite appropriate but, as Edwin Black shows in his book IBM and the Holocaust, it was IBM’s punch card machines that allowed the Nazis to identify and eventually eliminate Jews with ease and efficiency.

In fact, Cisco may find itself in the hot seat if it is proved that Cisco knew or had reason to believe that the supplied technology will be used by China or other countries for political persecutions. Principle 2 of the Global Compact, to which it is a signatory, is clear on this: businesses should “make sure that they are not complicit in human rights abuses”.

Global versus local standards

Another very common plea made by corporations is that in order to do business in different parts of the world, they have no option but to follow both global and local standards. This argument - which in effect mostly means adopting the inferior local standards - is echoed in the explanations issued by Yahoo, Microsoft and Google. For example, Google observes that although it is not its policy “to censor search results. In response to local laws, regulations, or policies, we may do so.” Perhaps Google may also contend specifically that its mission to “facilitate access to information for the entire world” required it to make some compromise with its “no evil” policy in China.

This global v local argument arguably has a limited application. Leaving aside certain peremptory human rights norms, it should have relevance to give effect to a given international human rights obligation. For example, what constitutes “freedom of speech” in the US is different from what it means in Australia or India and therefore, local standards of what amounts to free speech may be relevant. Similarly, an obligation to pay reasonable wages should not mean the payment of same wages to the workers, say, in the US and China. Also, this argument should not be stretched to apply to those situations where compliance with both global and local standards is by and large possible.

Yahoo, Microsoft and Google could have either continued to operate from servers located outside the mainland, or should have agreed to minimal case-by-case censorship rather than going for the overkill. This is more so because China has also signed, though not still ratified, the International Covenant on Civil and Political Rights, and is making some progress towards human rights realisation. Instead of putting more pressure on the Chinese government, Yahoo, Microsoft and Google opted for an easier and more profitable but less ethical option.

Unfortunately, at this stage, there is no concrete, legally-binding basis to blame any of  them for their stand. Had the UN Human Rights Norms for Corporations become binding, the relevance of paragraph 12 would have been tested in this case: “Transnational corporations and other business enterprises shall respect economic, social and cultural rights as well as civil and political rights and contribute to their realisation, in particular … freedom of opinion and expression, and shall refrain from actions which obstruct or impede the realisation of those rights.”