USA: Supreme Court Decision Hurts Democracy Movement in Burma

On June 19th, the U.S. Supreme Court announced a decision that amounts to a slap in the face of the democracy movement in Burma and its supporters in the U.S. The decision stings for a moment, but it does not gravely injure the movement, nor will it stop its progress. The unanimous decision struck down the Massachusetts Burma law, which effectively prohibited Massachusetts from purchasing goods or services from corporations with investments in Burma. This selective purchasing law was modeled after similar measures to discourage companies from doing business in South Africa, measures widely credited with helping to end apartheid.

The Massachusetts law had an impressive array of supporters. Among them were religious leaders, socially conscious investors, the student-led Free Burma Coalition, 78 Members of Congress, and Aung San Suu Kyi, leader of the party that won democratic elections in Burma ten years ago.(Ironically, the Supreme Court decision was announced on her birthday.) These groups are now preparing a campaign for local legislation that would not be affected by the ruling.

Meanwhile, big business is celebrating the decision. The National Foreign Trade Council (NFTC), a business group which filed the challenge to Massachusetts Burma law, called it a "victory for the U.S. Constitution." Their celebrations should be muted, however. The Supreme Court did not rule on the most significant constitutional issues, but rather issued a narrow decision that does not affect most other selective purchasing laws.

To a large extent, the decision comes about as a result of the special history and circumstances of the Massachusetts Burma law. The landmark legislation was passed in 1996, and about two dozen municipalities and counties around the U.S. followed suit with selective purchasing laws of their own. Soon after the law was enacted, Congress passed its own sanctions law against Burma, allowing the President to prohibit U.S. corporations from new investments in Burma. (Already existing investments, including Unocal's Yadana gas pipeline project were "grandfathered" in under that law.)

In 1998, the NFTC challenged the law on a number of grounds, and after the lower courts struck down the law, the case went to the Supreme Court. The Supreme Court's ruling is based on their finding that Congress had intended federal sanctions to be the sole means by which the U.S. exerted economic pressure on the Burmese military regime.

This interpretation is dubious, for two reasons. First, the federal sanctions law of 1996 does not mention the Massachusetts law, even though it was enacted three months before the federal law. Second, 78 Members of Congress signed an amicus brief stating they understood the federal law was designed to complement, rather than supplant, state and local laws. However, the Massachusetts law did have a few differences from the federal law: it affected all corporations, not just U.S. companies, it did not give the President authority to revoke it at any time, and did not grandfather in current investors. These differences were enough for the Court to find that the Massachusetts law conflicted with federal sanctions.(For a thorough legal analysis of the decision, visit the Earth Rights International website.)

The NFTC and the corporations it represents claim the decision represents a move toward a single, coherent foreign policy. But even a cursory look at the webpage of the NFTC's lobbying arm, USA*ENGAGE, reveals their true agenda. These corporations want no sanctions, no selective purchasing laws, no interference whatsoever with their business plans in any part of the world at any time. Give them credit for consistency: they oppose sanctions on Cuba, Burma, Iraq, China, Indonesia. They even oppose the federal sanctions policy they were "protecting" from interference by the Massachusetts law! For U.S. big business, the issue of foreign policy coherence is not a cherished principle but a pretext for challenging a law they just don't like.

The NFTC and its member corporations claim there has never been a regime so heinous as to make sanctions appropriate. According to these companies, "constructive engagement" is always the best way to deal with repressive regimes, environmental destruction, and violations of human rights. The mere presence of American business, they seem to suggest, promotes freedom and democracy and improves lives.

The Burmese people, like the South Africans, know better. They know that Unocal's investment in the Yadana gas pipeline, for example, benefits the generals, while harming local villagers. Aung San Suu Kyi says that "the real benefits of investment now go the military regime and their connections." Even some U.S. companies have recognized that you can't do business in Burma without violating human rights, and have pulled out. But Unocal has stayed in, and not coincidentally, is one of the main forces behind the USA*ENGAGE and NFTC offensive against the Massachusetts Burma law.

The real question behind the debate over the Massachusetts law is what will be the role of U.S. citizens and local governments in the age of corporate globalization. If the NFTC has its way, business will trade and invest around the world with no impediment, irrespective of the consequences for human rights. If citizen movements have their way, local efforts to restrain corporate activities abroad as well as at home will gain momentum. These movements are asking a simple question: If we can choose to shop with a conscience when spending our money at the mall, why not when our city, county or state is spending our money?

Fortunately, the Supreme Court decision does not interfere with the principle of citizen power behind selective purchasing laws. Byron Rushing, the Massachusetts legislator who sponsored by Burma law, says "It is a shame we no longer have available one of the strategies that helped end Apartheid." But, says Rushing, "the Court's decision does leave room for state and local governments to heed moral concerns in the way they do business in the global economy. I want all advocates for human rights and democracy, especially in Burma, to be assured that the campaign for human rights and democracy is redirected, not blocked."

• 116 Human Rights