A Dual Track Approach to Challenging Chinese Censorship in the WTO: The (Future) Case of Google and Facebook

As economic and trade policies continue to affect more facets of society, the World Trade Organization’s (WTO) impact on government policy and citizens’ lives has grown. Since its creation on January 1, 1995, the WTO has fostered trade liberalization negotiations and served as a forum where member countries can discuss economic concerns with one another. The WTO is perhaps best known for its dispute settlement mechanism. When countries cannot reach a mutual resolution to a conflict governed by a trade agreement, they can initiate formal legal proceedings against one another by asking for a panel to be appointed. The panel then hears the complaint and issues a ruling, which may be appealed by either of the parties on legal grounds. The ruling simply identifies which, if any, WTO obligations are being breached, but does not impose punishment. If the losing country does not move to conform to its WTO obligations, the other member country may request permission from the Dispute Settlement Body to impose trade sanctions, which must be granted within thirty days unless a consensus of member countries disagrees. The People’s Republic of China (PRC) acceded to the WTO in 2001, following its successful trade negotiations with WTO members, principally the United States. As part of its accession, the PRC government was also required to adopt the WTO’s multilateral trade agreements, including the General Agreement on Tariffs and Trade (GATT), General Agreement on Trade in Services (GATS), and Trade-related Aspects of Intellectual Property Rights (TRIPS). All three agreements require the PRC to implement domestic laws and regulations in conformity with the agreements. To the ire of many U.S. corporations and under criticism from Western media, however, the PRC has continued a policy of Internet censorship. The PRC’s censorship regime is estimated to cost U.S. businesses billions of dollars in lost revenue a year. The most high profile situations involve Google and Facebook, each of which receives varying degrees of censorship by the PRC government. As the growing “information age” capital of the world, the United States will likely seek to best chance at doing so is through the WTO. This Article details the dual-track approach that the United States could adopt in a WTO case against the PRC’s censorship regime on behalf of Google and Facebook.