THE NATIONAL PULSE
Breaking China
WTO complaint could end the ‘Great Firewall’ Internet ban
THE INTERNET, ITS CELEBRANTS SAY, SHOULD be unrestricted. China appears to think otherwise; it has successfully censored online communications. What many call the “Great Firewall of China” prevents
the vast majority of Chinese from freely accessing
websites outside of the country and from obtaining
information on politically sensitive topics, such as the
Dalai Lama or the Tiananmen Square Massacre.
ers. Thus, if the Great Firewall discriminates against
foreign companies, it violates GATS.
However, if China’s online censorship clamps down
equally on everyone, GATS is satisfied. And that’s the
situation, some say.
“All competitors in the Chinese market are living
under the same constraints,” says Doug Guthrie, dean
of the George Washington University School of Business.
“China’s firewalls are the same for everyone.”
Other experts disagree, asserting that China’s
online censorship is not applied equally to foreign
and domestic providers. “On paper, the censorship
looks the same, but it is far more intense for foreign
entities,” Burke says.
Even if the Chinese government’s online censorship
unfairly burdens foreign companies, that would violate
GATS only if China agreed to give equal treatment to
online services.
“GATS is a different kind of international agreement,”
says Matthew R. Nicely, a partner at Thompson Hine
in D.C. and co-chair of the International Trade Com-
mittee of the ABA Section of International Law. “Each
country has made commitments that are different from
other countries. So you must look not just at the lan-
guage of the GATS agreement but at what specifically
each country agreed to. Did it make commitments to
a particular service? If so, what type of commitments
did it make?”
He adds, “Lots of countries have limited commit-
ments. Services are an imperfect area of protection
under the WTO.”
EQUAL TREATMENT
CHINA, LIKE THE 139 OTHER
countries that are WTO members,
is a party to the General Agreement on Trade
in Services. The treaty, which went into effect in
1995, basically requires member states to treat foreign
service providers the same as domestic service provid-
The trade
organization has
already held that
also indicated that China’s GATS commitment on
“audiovisual products” covers the electronic distribu-
China’s commit-
ments on audio-
visual services
prevent it from
discriminating
against foreign
suppliers of some
Internet services.
In December
2009, a WTO ap-
pellate body ruled that China’s
GATS commitment on “sound
recording distribution services”
covers the electronic distribution
of sound recordings. The panel
