Can Yahoo Be Indicted At the Hague?

The heart of international law is a concept known as “legal personality.” Malcom Shaw, an esteemed legal scholar wrote in 1986 that,

“In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable by law. Thus an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They are able to do this because the law recognizes them as ‘legal persons’ possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties. Just which persons will be entitled to what rights in what circumstances will depend upon the scope and character of the law.”

Hence, there can be no doubt that under international law, Yahoo has a legal personality. Typically, any company’s engagement with international law pertains to either contractual obligations or following the municipal legal codes of United Nations member states in which they’re conducting business. However, the information age and globalization forces us to consider whether a company may be held legally accountable for violating human rights under international law. Morally, it is easy to agree with what Amnesty International wrote in 1998:

“Multinational companies have a responsibility to contribute to the promotion and protection of human rights. In an increasingly globalized world economy, their decisions and actions impact directly on governmental policies and on the enjoyment of human rights. The Universal Declaration of Human Rights calls on 'every individual and every organ of society' to play its part in securing universal observance of human rights. Companies and financial institutions are organs of society, and as their operations come under scrutiny around the world, this is increasingly demanded by consumers, shareholders and the communities with whom they interact.”

Amnesty International was specifically referring to how multinational corporations treat their employees as well as unions. What legal recourse however exists when a corporation utilizes their products to assist a member state in the violation of an individual’s human rights? Shi Tao, a Chinese journalist, is serving a ten-year prison sentence in China for sending an email to the Unites States. Mr. Tao was accused of “illegally providing state secrets to foreign entities” by using his Yahoo email account. Court transcripts indicate that Yahoo provided account-holder information on him.

China’s government accused Mr. Tao of sending an email summarizing an internal Communist Party directive to a foreign source. The Communist Party directive had warned Chinese journalists of possible social unrest during the anniversary of the Tiananmen Square crackdown in June, and directed them not to facilitate protests through the media. By the standards of international conventions and customs, Tao was imprisoned for peacefully exercising his right to freedom of expression. This is a right long established in international law as well as the Chinese Constitution.

Clearly, as a legal personality Mr. Tao is entitled to the right of free expression. Furthermore, as a legal personality the Chinese government is obligated to follow it’s own laws as well as international convention regarding individual rights. Finally, as an accomplice in the violation of international law and a legal personality in their own right, legal doctrine would seem to indicate that Yahoo can be held accountable. Unfortunately, only member states can submit cases to the International Court of Justice. The court receives its mandate from Article 92 of the United Nations Charter. Consequently, member states have to concede to any proceedings pertaining to entities under their legal jurisdiction for any prosecution to take place. It is unlikely in the extreme that the United States would concede to the prosecution of Yahoo at the Hague.

It therefore seems reasonable to consider amending the U.N. Charter to allow the prosecution of corporations such as Yahoo. As most member states will be opposed, this will require a grassroots international mobilization of citizens across the globe. We live in a world where corporations hold as much power over our lives as governments if not more. The power and influence of a company such as Yahoo transcends national boundaries. While the worldwide boycotting of Yahoo’s services is certainly powerful, it is insufficient by itself. The world we now live in demands an institutionalized enforcement of standards for corporations when it comes to human rights. Mr. Tao is currently serving time behind bars and denying Yahoo's executives profits through the boycotting of their service is not a punishment fitting the crime. Yahoo’s entire management team, including CEO Terry Semel as well as co-founders Jerry Yang and David Filo deserve to sit in the docks at the Hague alongside Slobodan Milosevic. That’s the sort of message that needs to be delivered to the international community of corporations.