The first condition of progress? Freedom of speech and the limits of international trade law

When economic operators trade internationally, not only goods and services cross national boundaries, but also the culture, opinions, information, and ideas that they carry.2 This creates complex links between the regulation of international trade and international human rights law. Measures that restrict the freedom of speech may concurrently interfere with international trade, while barriers to trade may encroach upon the freedom of expression,3 which under international law applies “regardless of frontiers.” The link between these two regimes is more than theoretical. A WTO complaint brought by the European Union against China in 2008 challenged regulations that required all foreign financial information service providers to act, in essence, through China’s central news agency, Xinhua. While these regulations quite clearly violated international trade agreements, they simultaneously restricted the freedom of expression and access to information. In 2009, a complaint by the USA showed that China had reserved the distribution of films, audiovisual entertainment products, sound recordings and certain publications to state-designated and -owned enterprises - again posing not only a trade problem but also a restriction on the freedom of expression (the Audiovisual Products case). In the same year, a WTO panel ruled partly against China despite its invocation of public order exceptions (the IPR Enforcement case), because its copyright legislation denied protection from works that had not been authorized for public circulation by government censors, suggesting yet another interaction between trade and the freedom of expression. What is striking in these cases is that international trade law and human rights seem to be mutually reinforcing, in contrast to the more familiar narrative in which trade liberalization somehow negates or overrides human rights. The fragmentation of international law is often considered a source of normative and institutional conflict.