Using boycotts to punish nations

Massachusetts law barring trade with Burma struck down, casting doubt on similar laws.

A boycott aimed at ousting a repressive foreign government is at the center of a legal dispute over the proper role of American cities and states in world affairs. It is a dispute that boycott supporters say has legal and historical roots in the Boston Tea Party.

At issue is a 1996 Massachusetts law that bars the state government from purchasing anything from corporations doing business in Burma.

The law forces corporations and their subsidiaries to choose between their business links with the Southeast Asian nation governed by a military junta or sales to the state of Massachusetts.

It was adopted to try to force the ruling generals in Burma, also known as Myanmar, to turn over power to democratically elected officials and embrace basic standards of human rights.

A pro-business trade group challenged the boycott law, claiming it violates the US Constitution. The National Foreign Trade Council in Washington argues the law infringes on a constitutional mandate that the federal government has exclusive control over the conduct of US foreign policy.

Last month, a federal judge in Boston agreed and struck it down. "The Massachusetts Burma law was designed with the purpose of changing Burma's domestic policy," wrote Chief US District Court Judge Joseph Tauro. "This is an unconstitutional infringement on the foreign affairs powers of the federal government."

He added, "State interests, no matter how noble, do not trump the federal government's exclusive foreign affairs power."

The decision places a question mark above similar Burma boycott laws passed nationwide in 22 cities and one county. It also raises a broader question about whether states and cities have a right to pursue foreign-policy initiatives independent of the US State Department or Congress.

Supporters of the boycott laws are appealing the Boston decision, and say they will take the case all the way to the US Supreme Court if necessary. They say the laws are no different from the national grass-roots boycotts launched in the 1980s that helped end apartheid in South Africa. Some believe if courts then had adopted similar reasoning as the Boston judge's, Nelson Mandela would still be in prison.

"Selective purchasing laws are not foreign policy, they are purchasing policy," says Simon Billenness, a Boston leader in the boycott campaign. "In a free society, people should have the freedom to spend their money as they see fit, even if that has an impact indirectly on foreign policy."

Robert Stumberg, a law professor at Georgetown University in Washington, sees the case as an issue of state sovereignty. He disagrees with the ruling that states are precluded from waging international boycotts. "It is a healthy thing that states have the authority to use moral standards or to use human-rights values for purposes of participating in the global economy," he says.

BUSINESS and trade groups don't see it that way. "We certainly agree that the government in Burma is an extremely reprehensible government," says Frank Kittredge, president of the National Foreign Trade Council. "Our main argument is how one goes about trying to bring change. We maintain that unconstitutional state and local sanctions are not the way to do it."

Mr. Kittredge says if the US is to play an effective role on the world stage, it must speak with a single voice in matters of international relations and trade. "To imagine a world in which every small municipality around the world can undertake its own foreign policy is to invite utter chaos," he says.

Current US policy on Burma is not inconsistent with the boycott laws. An executive order signed by President Clinton bans US firms from undertaking any new investment in Burma, but it does not go as far as to impose a complete ban on the sale of all US products.

Kittredge's foreign trade council and several US businesses with interests in Burma argue that the US should adopt a policy of constructive engagement in which increased economic cooperation between the two nations would boost US influence in Burma and work toward more effective and lasting change.

The core issue in the court case is the extent to which individual states and cities have the power to carry out international boycotts. Legal scholars are divided on that issue and the US Supreme Court has never directly confronted it.

But many boycott supporters say history is on their side. "Cities and states for 200 years have been out there helping shape foreign policy. It is part of our federalist system," says Robert Benson, a law professor at Loyola University in Los Angeles. In 1798, for instance, the city of Boston raised $125,000 to build two battleships in anticipation of war with France, he says.

And then there was that little matter of a shipment of British tea getting tossed into Boston Harbor, boycott supporters say.

"The whole revolution over taxation without representation started with a boycott of British goods. And it was Boston that started the boycott," says Professor Stumberg. "That is what the Tea Party was all about."

SIMILAR BURMA BOYCOTT LAWS

Aside from Massachusetts, Burma boycott laws have passed in:

Alameda County, Calif.

Ann Arbor, Mich.

Berkeley, Calif.

Boulder, Colo.

Brookline, Mass.

Cambridge, Mass.

Carrboro, N.C.

Chapel Hill, N.C.

Los Angeles

Madison, Wis.

Newark, N.J.

Newton, Mass.

New York

Oakland, Calif.

Palo Alto, Calif.

Portland, Ore.

Quincy, Mass.

San Francisco

Santa Cruz, Calif.

Santa Monica, Calif.

Somerville, Mass.

Takoma Park, Md.

West Hollywood, Calif.

Burma boycott laws are pending in:

Minneapolis, Minn., New York, and Vermont