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CORPORATE COMPLICITY IN INTERNET CENSORSHIP IN CHINA: WHO CARES FOR THE GLOBAL COMPACT OR THE GLOBAL ONLINE FREEDOM ACT?
George Washington International Law Review, The, 2007 by Deva, Surya
(iii) More Harm than Good
A related justification that MNCs like Yahoo!, Microsoft, Google, and Cisco put forward is that, by withdrawing from a state with poor human rights record, the companies lose the chance to improve the human rights situation by actively engaging the local community and government.196 Microsoft's case against withdrawal is, in fact, rooted in human rights protection: "[B]ased on grounds of human rights and freedom of expression alone, Microsoft believes that we should continue to provide our Internetenabled services in China."197 This is an attractive as well as workable proposition.198 Stakeholders like Amnesty International "would like [corporations] to act as a 'force for the good' in becoming part of the solution towards improving the human rights situation in China."199 But it is not known how many MNCs which decide to stay actually engage and force a change for the positive.200 Also, once profit has taken precedence over ethical or human rights principles, reversing that order will not be easy.
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(iv) Requirement to Follow Local Standards
Another very common plea taken by MNCs is that in order to do business in different parts of the world, they have no option but to follow local laws and standards.201 This argument has echoed in the explanations issued by Yahoo!, Microsoft, and Google.202 Google, for example, now concedes that it is not its policy "to censor search results. However, in response to local laws, regulations, or policies, we may do so."203 Google's mission "to facilitate access to information for the entire world"204 required it to compromise its "Don't be evil" policy in China.205 Implicit in this argument is the moral assertion that by importing non-local laws and standards MNCs will deny local people the right to judge what is best for themselves.206
No doubt, MNCs should keep in mind "morally relevant" differences207 while operating under diverse social, cultural, economic, and political environments.208 But the argument overstates, as well as understates, its case for what laws MNCs need to follow while operating in different markets. The case is overstated in its assumption that compliance with local laws ousts the possibility of complying with international or national law of the home state at the same time.209 The argument should not be stretched to apply to those situations where simultaneous compliance with both global and local laws is by and large possible. Additionally, MNCs should at least resist complying with those local laws which are likely to contravene the constitution of the country210 or international human rights law.211 Moreover, if the local laws are vague, unclear or leave room for discretion,212 the leeway should be judiciously used to promote human rights.
The corporate justification of being bound by local laws understates its case by suggesting that MNCs need to take into account only local laws. MNCs, however, are required to observe a catena of non-local laws,213 some of which could be part of even international customary law. Senator Christopher H. Smith while speaking to the U.S. House of Representatives observed:
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