His full post:
Well, there certainly are a surfeit of Sino-American tiffs going on at the moment.
Over at Reason, Ron Bailey offers an intriguing solution to one of these problems -- use the WTO as a crowbar to bring down the Great Firewall of China:
When China joined the World Trade Organization (WTO) in 2001 it agreed that foreign service companies would have the same access to markets in China as domestic companies do. Now the European Union and the U.S. Trade Representative office are considering an argument that the Great Firewall violates China’s obligations to permit free trade in services under its agreements with the WTO. Last year, in a working paper titled Protectionism Online: Internet Censorship and International Trade Law, the European Centre for International Political Economy (ECIPE) think tank argued that “WTO member states are legally obliged to permit an unrestricted supply of crossborder Internet services.”
Since 2007, the California First Amendment Coalition (CFAC) has been pushing the U.S. Trade Representative to file a case against China on the grounds that it has been violating its WTO obligations. CFAC argues that, among other violations, China discriminates against foreign suppliers of Internet services by blocking them at the border while allowing domestic suppliers to offer like services. In addition, China has violated its commitments not to introduce or apply non-tariff measures when it joined the WTO by blocking a number of imported products without explanation or justification. China has also not set up any administrative procedures through which foreign suppliers of online services could appeal the blocking of imported publications and content.
I'll defer to smarter law blogs for correction, but I really don't think this is going to work. First, I'm not sure the differences in national treatment are great enough to constitute a WTO violation (remember, the Chinese position on the Google controversy is that Google has to obey Chinese laws, which appply to both domestic and foreign search engines). Second, China can respond not by lifting the Great Firewall, but by setting up administrative procedures to handle complaints. Third, as Bailey acknowledges, if China were to lose such a case, one option would be to simply refuse to comply. The U.S. would be allowed to respond with trade sanctions, but I suspect China's government will take that bargain every day of the week and twice on Sundays.
Simon Lester suggests that a bilateral investment treaty (BIT) would be a more useful crowbar -- which is great, except the U.S. and China don't have one. A BIT is being negotiated, and some experts are optimistic that it will be completed by this summer. Call me crazy, but I can't see the Chinese government negotiating anything that would affect their ability to censor.
Am I missing something?
I don't think he's missing anything. I think he's got it pretty much right. I, too, am skeptical of the NT differences, although there may be new evidence that pops up (and a "market access" claim might work). Also, if we are talking about the GATS, there's a question of whether any relevant commitments have been made, and even if they have been, there is the option to withdraw them. So, it would be a tough road to get real relief for this at the WTO.
On the BIT issues, I think the substantive obligations would be broader, and thus more useful, but like Dan, I have doubts that China (or the U.S.) would sign onto something like this. Could either side really tolerate the foreign investor complaints that might result? Of course, as I've said many times, I don't know much about what goes on behind the scenes in these kinds of negotiations, so I could be completely wrong.
