Foreign Trade Agreement, An Easy Sell On Bay Street, Undermines Justice In China

For when it comes to victims of abuse in China, the list does not start and end with multinational corporations, much less ones listed on the Toronto Stock Exchange. Whether it's summary execution, forced labour camps, curtailing of religious freedom or expropriation of property, ordinary Chinese suffer greatly from government caprice and judicial indifference. Seen in this light, Canada's pursuit of a treaty to protect the rights of Canadian businesses and businessmen looks like a tacit abandonment of broader efforts to ensure respect for all human rights. Investment protection treaties, like the one being negotiated between Canada and China, introduce a two-tier justice system, whereby foreign businesses can catapult over local courts and have their grievances heard before international tribunals. Meanwhile, victims of all other forms of abuse are relegated to the uneven justice of local courts. It's not simply that our push for a bill of corporate rights for Canadian companies, short-changes other human rights interests -- they may strike a fatal blow to efforts to improve those local conditions. A 2005 study by University of Illinois Law Professor Tom Ginsburg suggests that multinational investors may be disinclined to push for improved local courts and administrative systems in developing countries, if those foreign investors are permitted to leapfrog over those local justice systems entirely. When Team Canada heavyweights like Bombardier or Encana no longer suffer the shoddy justice dispensed by Chinese courts, they have little incentive to bring to bear the commercial muscle which might lead to diplomatic and political pressure for wider reform. Canada's push to negotiate special legal escape-routes for Canadian corporations operating in China is all the more discouraging given that it is possible to pursue a more coherent strategy -- one which combines protection for human rights with protection for business actors. After all, it's not unknown for businesspeople to enjoy some protection under the same international treaties that protect all other fundamental rights, like freedom of speech, freedom from torture and the right to a fair trial. Take the example of the Inter-American convention on Human Rights, a treaty to which most countries in the Americas have signed on. That convention provides an additional layer of international protection -- in case domestic courts fail to protect basic rights and freedoms. The Convention also protects property-holders too -- foreigners and locals alike -- from seizure or destruction of their property. How then to explain the fact that Canada stands aloof from most of the hemisphere for never having endorsed this important convention? To be sure, there has been no shortage of sentiment about human rights. As far back as a 1997 speech to the Couchiching Institute on Public Affairs, Paul Martin has spoken of the need for international agreements that devote attention to human rights as well as the interests of international business. Perhaps the prime minister is simply unaware that the Inter-American Convention on Human Rights fits the bill: providing protection not just for the Fortune 500, but for the less fortunate as well. Meanwhile, Mr. Martin's Latin America strategy -- like his China strategy -- has focused myopically on the pursuit of investment protection treaties, which cater only to those wealthy enough to take their funds across borders in search of profit. Such agreements may provide important protection for Canadian businesses operating abroad, but at the risk of undercutting the broader push for improvements in human rights and the rule of law across the board. As a business proposition, these investment protection treaties may be an easy sell on Bay Street, but as a central element of our nation's foreign policy they attest to a dispiriting deficit of vision and principle. Ottawa-based writer and analyst Luke Eric Peterson writes a bi-weekly column for Embassy. He has advised several Canadian non-governmental organizations on the potential implications of a Canada-China investment protection agreement. http://www.embassymag.ca/html/index.php?display=story&full_path=/2005/september/7/trade/ [Proofreader's note: this article was edited for spelling and typos on September 11, 2005]

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