by Dr. Peter D. Maynard[1]
Fundamentally, free trade alone never has been a panacea. There is no panacea. Instead, economic self-interest and quid pro quo are still the modus operandi of international negotiations, and the free trade panacea idea is a costly abstraction from the failure of the national, regional and hemispheric and world communities to address the real needs of our societies.
Hence, although more than half of the 35 countries in the hemisphere are in the Caribbean region, few of them appear to see the FTAA exercise as being of any net benefit to them. For example, of the 17 English-speaking bar associations represented in the Organization of Commonwealth Caribbean Bar Associations (OCCBA), I have found possibly only one of them is considered to be in a position to benefit from the FTAA. Curiously, the FTAA negotiations attempt to make the exception the rule.
Isn’t the reality that most of the countries in the Caribbean region are being shepherded along in the FTAA process without obtaining their desired outcomes or any quid pro quo? This article deals with the CARICOM countries, but refers to the Bahamas as a case study.
In the aftermath of the World Trade Centre and Pentagon attacks, there are two major threats to world security: firstly, volatile, never ending, internecine conflicts around the world, such as in the Middle East; and secondly, islands of great wealth and opulence in an ocean of poverty. World poverty is just as much a threat to mankind as terrorism. That kind of terrorism is visited upon the majority of the world’s population every moment of every day. Both of these threats have now produced generations nourished by “the cup of bitterness and hatred.”[2]
As the Biblical quotation states, “Where there is no vision, the people perish.” Would free trade bloc negotiations meet the development objectives of small island developing countries? Would the Free Trade Area of the Americas (FTAA) accomplish a bold, new vision of a world of security and sustainable development for all in the new millennium, or is it bankrupt of such a vision?
1. Development
Let us go back to basics. It is useful to start with the questions. What is development? What does it mean to be poor?
Development or ending poverty is not just economic growth. That excessively narrow definition is unfortunately reemerging under the FTAA.
Development is much more than that. It has other dimensions including empowerment of people, ending vulnerability and exposure to arbitrary shocks to their welfare and income, access to meaningful technical education permitting them to control their destinies and to vastly improved health facilities, and eliminating voicelessness, powerlessness and hopelessness.
It is noteworthy that the vulnerability of small island states has been traditionally recognised in the context of ACP-European Union (EU) co-operation. Small states must make that recognition a part of the FTAA. Failure to do so will have serious consequences for their future viability. Forty-two (42) of the Africa Caribbean Pacific (ACP) states have a population of less than 5 million. About a third of them are in the Caribbean. But, the problems of small states are not confined to the Caribbean. Half of them are in Africa.
It is now widely recognized that many disadvantages result from diseconomies of scale in administration, infra-structural development, transportation, marketing, keeping and attracting high level skills and accessing global capital markets. In addition, the geographical vulnerability of many small states including proneness to natural and ecological disasters (arising from hurricanes, volcanic activity, fragile coastal zones, high population density and forest depletion) complements economic vulnerability; and their impact is made worse by its pervasiveness. Small states are not simply small versions of large states. For them, a “level playing field” is a mirage.
No similar flexibility obtains in the FTAA draft nor for that matter in the World Trade Organisation (WTO) rules. A significant issue for future ACP-EU relations is forging an alliance for change in WTO rules to recognise the vulnerabilities of some small economies that will not survive on the basis of reciprocity and non-discrimination.[3] That impetus must also be given to the FTAA negotiations.
Competition based on low pricing is likely to place the Caribbean at a disadvantage due to the high production costs and small production capacity, particularly regarding agricultural products. Accumulation of wealth through exports to global markets will always be challenging to small island economies, which will not fare well in head to head confrontation with high volume, low cost producers. Their strategy must therefore be to position their products at the high end of the market for most goods and services, through product differentiation and niche marketing. There is no provision for that kind of support in the hemispheric negotiations, nor support to assist companies to stay one stop ahead of the competition. Niche markets are encroached upon and product differentiation erodes.
For example, the Caribbean Poultry Association has 18 members in 9 CARICOM countries. From a cost perspective, they are uncompetitive with the lowest cost producers of the world. The poultry labour cost ranges from $0.71 per hour in Guyana to $4.50 in Barbados.[4] Those figures are higher than some other countries in the hemisphere and on the Pacific Rim.
CARICOM has not had sufficient time to develop combined production efforts within and across countries to achieve economies of scale and to meet standards demanded by export markets. Mobility of labour still has to be addressed fully, so that foreign expertise can be utilized while enhancing the skills of the national work force.
In the region, agriculture and light manufacturing suffer more than service-based business. However, financial services have been adversely affected by the protectionism of the countries of the Organization for Economic Cooperation and Development (OECD). Therefore, businesses would be damned if they do, and damned if they don’t, adopt free trade. The end result is that many CARICOM countries face marginalization because they are ill prepared and ill equipped for the environment to be created by the FTAA. That environment is the exception and not the rule, does not take account of their needs, and there is no quid pro quo for the political concessions they are asked to make.
2. Global Village or Global Pillage?
In the mid-1970’s, I worked as an economist at the United Nations, New York, dealing with foreign investment and economic development. The division was called the Financial Resources Development Branch (FRDB) of the Department of Economic and Social Affairs (ECOSOC). Subsequently, that branch became the Center on the Transnational Corporations, which was the focal point for work on foreign investment and also the secretariat for the Commission on Transnational Corporations. In the early 1980s, as counselor to the Bahamas Mission to the United Nations, I served as a vice president of the Legal Committee of the U.N. General Assembly, and as a member and rapporteur of the Commission on Transnational Corporations. During that era, the multinational corporation was the villain and a source of greed. Now, ironically, it is a hero and a source of international prosperity.
It has been said that five percent of the world’s population own or control 95% of the world’s resources. The rich are getting richer, and the poor are getting poorer. That vicious cycle, which is becoming worse not better, must be broken. This should be a moral imperative going forward into the new millennium,
Globalization is a catchall term for many processes in the global economy such as instant global communications, the liberalization and rapid growth of international trade, global capital markets and foreign investment, and the influence of the transnational or multinational corporation.
Globalization also means world integration, involving, as the next step, the creation of large markets and trade blocs through economic integration of nations states. Europe is embarked on this course in a big way. FTAA is America’s answer to the market of 300 million people of the united states of Europe. The great retreats of 1945 to the mid 1970s from political empires have been replaced by the expanding economic empires of the new millennium.
3. Aid and Investment, not just Trade
The needs of developing countries, including The Bahamas, are far greater than the effects of trade liberalization. The pure free trade approach has been tried before and been found wanting. It is no accident that every major economic development initiative since World War II has combined trade with economic aid. Free trade was our colonial and slave past. Have we already gone full circle, and returned to a future of neo-colonialism and dependency?
Thus, FTAA pales in comparison with the Alliance for Progress initiated by President Kennedy in the 1960’s. In spite of their shortcomings, even the more recent Caribbean Basin Initiative, the Lome Convention and Caribcan provide aid and trade, and are broader in impact than the FTAA, which is devoid of any plan to come to grips with the intractable development problems that many hemispheric countries face. Free trade is not a panacea.
4. Small is beautiful?
Globalization holds more hazards for the weak than for the strong. The following concepts, vital to the FTAA, may on balance work against small island developing countries:
“comparative advantage” principle – if each country produces those goods and services in which it is relatively more efficient, and trades for goods and services it is relatively less efficient at producing, all countries gain. The irony is that developing countries have been precluded from exercising their comparative advantage in financial services, while they suffer declining terms of trade in traditional agricultural and raw material exports.
“economies of scale” – with a larger market, firms can lengthen production runs and lower costs.
“structural adjustment” – usually involves transformation of the economy and high unemployment in adversely affected sectors. This term originally described a bankers’ program devised by the World Bank (WB) and International Monetary Fund (IMF) to be imposed on any third world or socialist government that needed to reschedule their loan payments. This program included: (a) liberalization of trade, (b) the end of capital controls and promotion of “free enterprise zones” or “export processing zones,” (c) the free convertibility of national currency, (d) an anti-inflationary monetary policy, (e) the reduction of government budgets, (f) the cutting of governmental employment, (g) the end of subsidies for education, health, and subsistence goods, (h) the privatization of government parastatals, (i) the individuation and free exchange of land titles. Almost every government in the Americas, Africa, Eastern Europe and Asia has agreed to impose a structural adjustment program (with more or less rapidity and rigor) in the wake of the Debt Crisis. The WB and IMF claimed that structural adjustment programs would reduce inflation, lead to a favorable balance of payments, reduce government internal and external debt, make national industries more efficient, and force workers to become more productive. All these changes would inevitably, the world bankers claimed, lead to a reduction of a nation’s international debt, and so they were justified in requiring these programs as conditions for any future loans or payment rescheduling.
“infant industry” – a newly established industry usually set up behind the protection of a tariff barrier as part of a policy of import substitution. Once the industry is no longer an “infant,” the protective tariffs are supposed to disappear. This development approach, which has long been a fundamental policy of many developing countries to allow their economies to catch up, is rejected under the FTAA.
“national treatment” – investors and others who are non-nationals, receive treatment no less favorable than that given to nationals. This is more invasive than “most favoured nation (MFN) treatment,” where non-nationals of one party receive treatment at least as favorable as other non-nationals. “Non discrimination” and “reciprocity” are applied. Non discrimination and reciprocity apply in a relationship among equals. They have no place in the relationship between large countries, such as the United States, Canada or Brazil, on the one hand and small island developing countries on the other hand.
5. Derestricted Draft FTAA Agreement, July 3, 2001
A draft FTAA Agreement was derestricted on July 3, 2001 and made available on the Internet. Its chapters consist of the topics covered by the 9 main negotiating groups: namely agriculture; government procurement; investment; market access; subsidies, anti dumping and countervailing duties; dispute settlement; services; intellectual property rights; and competition policy. I shall touch upon cases which illustrate issues which have been encountered in each of these areas.
(1) AGRICULTURE
Each FTAA member country is required to accord national treatment to the agricultural products of other member countries pursuant to Article III of the 1994 General Agreement on Tariffs and Trade (GATT 1994).
Except as otherwise provided in the FTAA Agreement, each party is to progressively eliminate the tariffs and any other duties or charges (to be defined) in connection with importation or exportation applicable to agricultural products in accordance with the agreement. Products that create non-seasonal structural distortions to the pattern of consumption of the parties do not benefit from the tariff reduction programme.
No party is to maintain or introduce “export subsidies” on agricultural products, such as measures and practices contingent on export performance, as such subsidies prejudice trade in the Hemisphere. The parties recognize that domestic support measures can be of crucial importance to their agricultural sectors but may also at the same time have distorting effects on the production and trade of agricultural products. Consequently, the Parties agree that their domestic support measures shall comply with the provisions of this Article
The parties also agree to ensure the consistency of the application of sanitary and phytosanitary measures for trade between the parties, in accordance with the Parties’ rights and obligations and principles under the World Trade Organisation (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures.
Banana Cases, WTO, 1997 and 1999
The Banana Cases illustrate some of the problems faced by developing countries in the Caribbean, Pacific and Africa. Banana export earnings were badly affected by the fall in banana prices from 1995, following the increase in the tariff quota to 2.2 million tonnes (EU). This caused major financial difficulties for the Banana Growers Association, which converted substantial accumulated reserves into an overdraft in an attempt to sustain prices to growers. The United States since 1995 sought the abolition of the EU regime, which assured access for the Caribbean. At the instigation of Chiquita, the dominant US banana trader, it challenged the regime in the WTO together with four Central American states, Ecuador, Guatemala, Honduras, and Mexico. As a result of their action, the WTO ruled in September 1997 that certain aspects of the EU regime were inconsistent with WTO rules.
The EU adopted an amended regime on 1 January 1999, which continued to provide assured access and a viable return to ACP suppliers through a tariff quota system, which had not been criticised by the WTO, and duty-free entry for a limited volume of bananas from traditional ACP supplying countries.
But, the USA and Ecuador claimed that the amended regime still failed to conform with the WTO ruling of September 1997. A further WTO Panel was set up, at the request of Ecuador, to investigate this matter and the WTO Panel published a report on 12th April 1999 which concluded that the revised regime was still inconsistent with WTO rules in a number of respects. But, it acknowledged the EU’s commitment to the Caribbean under Lomé and listed some possible ways forward to enable that commitment to be met. Any of these would, however, further reduce the benefits achieved by the Caribbean under the regime. Moreover, each of these appears to assume the willingness of WTO members to grant a waiver providing a limited exemption from WTO rules, even though this would require the support of at least 75% of WTO members.
The Prime Minister of St. Lucia commented as follows: “The WTO ruling [of September 1997] is a capitulation to the machinations of those who are blinkered by free trade and sheer greed. We had looked to the WTO to respect the special social and economic circumstances of small, vulnerable economies and have been cruelly disappointed.
We now look to the European Union to find a formula which will allow us continuing access to the European banana market in a manner which will allow our farmers to continue earning a decent and dignified living. We urge the EU to be steadfast in protecting the spirit and substance of the Lome Convention, to remain committed to ensuring equity in International economic relations and to remain faithful to its ACP friends.”[5]
(2) GOVERNMENT PROCUREMENT
The purpose of this Chapter is to create and maintain and expand a single, broad government procurement market among the Parties in order to maximize and optimize business market access opportunities in government procurement for participating suppliers of originating goods and services of the Parties and to reduce the business transactions costs of the public and private sectors in the Parties and as well as ensuring the greatest simplicity in the application of government procurement measures.
In order to attain this goal, each Party shall recognize that it is desirable to establish:
(a) the principles of non-discrimination and transparency, legality, impersonality, morality, [equality] [due process], publicity, [and] [competitiveness] [free competition], [[a link to the individual instrument of a procurement requirement, objective judgment and other principles consistent with the basic principles herein above] in government procurement,] [pursuant to the provisions of this Chapter, [and]]
[b) the development of cooperation and technical assistance mechanisms.]
(3) INVESTMENT
The objectives under this head, according to the San José Ministerial Declaration, are: To establish a fair and transparent legal framework to promote investment through the creation of a stable and predictable environment that protects the investor, his investment and related flows, without creating obstacles to investments from outside the hemisphere.
However, a Bahamian or Guatemalan government policy of extending credit at favorable rates to its economically marginalised indigenous people, in much the same way the US does to stimulate the growth of minority- and women-owned businesses, would violate a foreign corporation’s ‘right’ to equal treatment under proposed FTAA rules. The irony is that the proposed FTAA rules would not prevent a foreign investor from receiving better treatment than a national investor, as in the case of exemption from taxes – a privilege frequently granted to foreign investors, but not to domestic investors.
Cross-Border Trucking Services Case, Nafta Arbitral Panel, February 6, 2001
Mexico contended that the United States had violated NAFTA by failing to phase out U.S. restrictions on cross-border trucking services and on Mexican investment in the U.S. trucking industry, as is required by the U.S. commitments in Annex I, despite affording Canada national treatment. Mexico believes such failure is a violation of the national treatment and most-favored-nation provisions 295. On the basis of the analysis set out above, the Panel unanimously determined that the U.S. blanket refusal to review and consider for approval any Mexican-owned carrier applications for authority to provide cross-border trucking services was and remains a breach of the U.S. obligations under Annex I (reservations for existing measures and liberalization commitments), Article 1202 (national treatment for cross-border services), and Article 1203 (most-favored-nation treatment for cross-border services) of NAFTA.
The Panel further unanimously determined that the United States was and remains in breach of its obligations under Annex I (reservations for existing measures and liberalisation commitments), Article 1102 (national treatment), and Article 1103 (most-favored-nation treatment) to permit Mexican nationals to invest in enterprises in the United States that provide transportation of international cargo within the United States.
http://www.worldtradelaw.net/nafta20/index.htm
(4) MARKET ACCESS
The Annex under this heading includes the following texts: Tariffs and Non-Tariff Measures; Safeguards; Origin Regime; Customs Procedures; [Customs] Procedures Related to Rules of Origin; and Standards and Technical Barriers to Trade.
However, [Applicable] Safeguard measures shall [only] consist of tariff measures [or of quantitative restrictions]. [Neither tariff rate quotas nor quantitative restrictions shall be a permissible form of safeguard measure.]
Tuna-Dolphin Cases, 1992 and 1994
Apathy towards the high rate of dolphin kills in the Eastern Tropical Pacific fishing zone changed in the early ‘70s when the issue gained enough public attention in 1972 to lead to the passage of the Marine Mammal Protection Act (MMPA) in Congress. The act aimed to reduce the number of dolphins killed to levels approaching zero, by changing fishing techniques, setting quotas for the number of dolphins that could be killed and requiring fishing vessels to carry federal observers. While the number of dolphins killed was initially greatly reduced, a recomposition of fishing fleets resulted in high foreign kill rates due to the increasing number of vessels registered to Latin and South American countries which mostly continued to use pure seine methods. To combat this Congress added a Direct Embargo Provision in 1984 to the MMPA which prohibited the importation of tuna from nations that did not have regulatory programs and mortality rates comparable to those of the US. This resulted in the US imposing embargos on Mexico, Venezuela, Ecuador, Panama and Vanuatu in 1991. However, Mexico resisted the dolphin-safe measures and requested that a General Agreement on Tariffs and Trade (GATT) resolution panel determine the legality of the US embargo.
Mexico took the position that the embargo violated Article XI of the GATT, prohibiting quantitative restrictions on imports, and Article III:1 and 4, preventing discrimination against foreign goods. The US argued that the restrictions were internal regulations as allowed under Article II:1.
Although the GATT panel ruled that the tuna embargo represented a non-tariff trade barrier in the form of a production and process standard, almost all animal protection laws affecting other countries can be interpreted in this manner. This could potentially be expanded and thus invalidate many international wildlife protection measures.
Broom Corn Brooms Case, NAFTA
Since 1965, the USA had maintained tariff-rate quotas on imports of broom corn brooms. The safeguard measures currently in force pursuant to Proclamation 6961, 68 having been based on an ITC determination that fails to provide “reasoned conclusions on all pertinent issues of law and fact,” constitutes a continuing violation of United States obligations under NAFTA. This measure has already been in force for two years. The Panel therefore recommended that the United States bring its conduct into compliance with NAFTA at the earliest possible time.
(5)SUBSIDIES, ANTIDUMPING AND COUNTERVAILING DUTIES
Parties to the FTAA may only initiate investigation procedures and [examinations] and apply anti-dumping [and, where applicable, countervailing duties], on goods from another Party when the investigating authority of the importing country has acted entirely in accordance with the provisions of this Chapter.]
However, [each Party’s domestic law shall allow for the imposition of an antidumping or countervailing duty that is less than the full margin of dumping or full amount of subsidy but sufficient to eliminate injury to the domestic industry.]
(6) DISPUTE SETTLEMENT
34. [Subject to the provisions of the FTAA Agreement, disputes shall be settled only by recourse to any one of the following modes for the settlement of disputes, namely, good offices, mediation, consultations, conciliation, arbitration and the First Instance and Appellate Structures.]
35. [Where a dispute has not been settled following the adoption of one of the modes referred to in the previous paragraph other than arbitration or recourse to the DSS Bodies, either party may have recourse to another mode.] It is important for this section to be strong. Small countries have the courts. Big countries have facilities and politicians. Strong prohibitions against political influence, grafts corporation should also be included.
(7) SERVICES
Article 3: MOST FAVORED NATION TREATMENT
Under this article [3.1. Each party shall [immediately and unconditionally] accord to [services and] service providers/suppliers of another party treatment no less favorable than that it accords, [in like circumstances], to [like] [services] [and] [like] service providers/suppliers of any other party or of a non-party.]
Article 6: NATIONAL TREATMENT
[6.1. [In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein][Subject to the exceptions listed in the Annexes], each Party shall accord to services and service suppliers of any other party, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers.]
[6.1. Each Party shall accord to the [services and] service providers/suppliers of another Party treatment no less favorable than that it accords, in like circumstances, to its [services and] service providers/suppliers.]
(a) WTO FSC RULING, February 24, 2000
This was a noteworthy financial services case. The Appellate Body decision arose out of an EU complaint against the foreign sales corporation FSC provisions, which allow a portion of a U.S. taxpaying firm’s foreign-source income to be exempt from U.S. income tax. Congress enacted the FSC specifically to conform to principles adopted by the GATT in 1981 and those principles were incorporated into the WTO agreements. In 1997, the EU alleged that the FSC provisions violate U.S. obligations under the WTO Subsidies and Agriculture agreements. A WTO dispute settlement panel sided with the EU last fall, and the Appellate Body has upheld the dispute settlement panel’s findings.
The FSC was introduced in the early 1980s after its predecessor provisions, the Domestic International Sales Corporation (DISC) rules, were found to be a prohibited export subsidy under General Agreement on Tariffs and Trade (GATT) subsidy rules. Therefore, financial products which give nationals a preference or advantage will run into difficulty under the FTAA.
(B) Professional associations and indigenization must be defended. It is important to require membership and the require nationality and residency requirements. In some cases, state institutions may recruit foreign professionals if there are no nationals willing to provide the service under the stipulated conditions. Restrictions on National Treatment – None.
(8) INTELLECTUAL PROPERTY RIGHTS
Under this head [Each Party shall provide in its territory to the nationals of the other Parties adequate and effective protection and enforcement of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.] and shall join the international agreements in this field before 2005.
(9) COMPETITION POLICY
Members are required to proscribe anti competitive business conduct [,both private and public,] [among and within the countries of the hemisphere], [especially hard-core cartels, abuse of dominant position, and anti-competitive mergers, acquisitions and concentrations,]
6. The Bahamas
How would the Bahamas cope? FTAA means an end or drastic reduction of customs duties or 70% of government revenue. Will income tax or an ad valorem tax be adopted by the Bahamas? Income tax is another nail in the coffin for the financial sector.
The high cost of labour also militates against the development of new industries, light manufacturing and other businesses. Indeed, high labour costs suggest that it may be necessary to import lower cost labour from other islands, such as Haiti or Cuba, to carry out projects here. Although the FTAA does not explicitly approve the free movement of labour, the impact on the labour market will be extraordinary, through structural adjustment, downward pressure on wages, and even the need to bring in more labour from other countries. In other words, free movement of labour through the back door may be inevitable. In many cases, labour is coming through the front door right now. We have the strange situation of unemployment or underemployed nationals and at the same time, the massive importation of foreign workers.
The FTAA also spells the end of diversification and the continued extreme openness and vulnerability of the Bahamian economy. Indeed, the logic of the free trade scheme leads to tourism monoculture. The Caribbean islands would specialize in sun, sand and sea. There would be an overdependence on that single sector. National suppliers, as we have seen to the present, would not even exploit the linkages in food and manufacturing. It would be a free for all regardless of national boundaries. Yet, another ineptly applied policy of driving the development of the rest of the economy through the main dynamic sector, tourism, would end up on the garbage heap.
It is also noteworthy that the Bahamas did not join CARIFTA; CARICOM yes, but not the Caribbean free trade area. The reason was that the Bahamas was not a producing country, and would find itself only as an importer of goods from the rest of the region. That problem is multiplied under the FTAA. If we had a problem with the 15 other Caribbean countries, imagine how much worse the balance of payments position will be in relation to 33 other countries in the FTAA.
7. Freeport
Freeport is better equipped than any other part of The Bahamas to benefit from this new world order. Having through the Hawksbill Creek Agreement set out specifically to address the establishment of a light manufacturing and industrial base, Freeport is the obvious cutting edge of a viable contribution of the Bahamas on this subject. Yet, Freeport is almost completely unequipped. Freeport now more than ever needs an action plan.
The tourism sector felt the shocks following the World Trade Center and the Pentagon attacks. The financial sector suffered shocks even before that, because of the OECD, FATF, and has not recovered. Freeport does not provide a buffer for the rest of The Bahamas. Oil transshipment, the container port, and even a new natural gas pipeline may have bright prospects with increased hemispheric trade. However, the chances of bringing back oil refining, pharmaceuticals, cement, agriculture, and even chicken farms in Grand Bahama are even more remote. The government has already made major concessions to attract investment. There will be less such business and less government revenues. What after all has been the major government concession to attract foreign investment? Government offers a waiver of customs duties, in order to encourage the construction and renovation of hotels and the establishment of new industries. That tool to bring in new investment will no longer be available, when customs duties are removed under the FTAA. That is yet another dilemma facing the government.
8. CARICOM in the negotiation process
CARICOM’s proposals aimed at preserving special and differential treatment for smaller countries have been rejected. CARICOM cautioned the FTAA Trade Negotiations Committee (TNC) not to sacrifice pragmatism for short term political ends, and to focus more on fundamental objectives than on meeting deadlines. While lip service is given to taking into account the levels of development and size of economies, a clear reluctance exists on the part of the more developed FTAA countries to take concrete measures to implement that special treatment.
In the TNC discussions, a major sticking point is the definition of the base tariff for market access negotiations in agricultural and non-agricultural goods, and the timeframe for its notification by member states. As a result, CARICOM tabled a non-paper reminding the TNC of its position. While it could agree on the start date of August 15, 2002, as a start date for notification of the base tariff, it proposed December 31, 2002, not October 15, 2002 as the end date.
Indeed, the point has been reached where the TNC accommodates the peculiarities of other regional sub-groupings, except CARICOM. For example, the TNC had agreed to give the Andean Community until April 2003 to notify its base tariff. In the end, the original time frame was retained for all delegations. In addition, it was suggested that CARICOM’s proposals be noted in a side letter or footnote to the main text.
In March 2002, the US raised tariffs up to 30% on steel imports. On May 13, 2002, the US government signed into law a Farm Bill which authorizes US$173.5 billion in subsidies over 10 years. The Farm Bill goes to the heart of the CARICOM proposal for a base tariff for agriculture, namely the WTO bound tariff as at 15 January 2003. This rate is appropriate because of the highly distorted pattern of agricultural trade in the hemisphere. The continued high use of domestic and export subsidies by the developed countries make it imperative that small economies with fragile agricultural sectors retain a high degree of defensive flexibility. In the absence of a CARICOM generalized safeguard mechanism, the bound tariff is the only mechanism available to these countries.
Therefore, one cannot lose sight of the fact that agriculture is and will continue for the indefinite future to be the main source of export earnings for the countries of the eastern Caribbean. Also, rural development and food security depend on the continued survival of agriculture in all CARICOM countries.
9. Conclusion
Free trade is not so free. The islands will be colonies again by 2005. That is a strong statement because the vision of a world in which small island developing countries flourish or at least survive, needs to be articulated. Further, an action plan has to be adopted to make the world we want a reality.
The private sector must redouble its efforts to understand and contribute a Bahamian position on the nine negotiating issues. You can play a role. Politicians have been led by a nose ring through the international obstacles. They have been overwhelmed by international developments. Instead of taking the bull by the horns, they find themselves swept aside by a raging stampede of developments they perceive as beyond their control.
National interest, not global altruism or philanthropy, is the basis of the negotiation. The national interest of small developing countries has to be clearly articulated and incorporated in the Agreement. As a group, pick and choose your friends on individual issues. You are not going to be friendly with everybody on everything. Therefore, Not signing the FTAA must still be an option. Also, 2005 is too soon. The groundwork must be laid now of diversification of the economy.
The “infant industry” approach and yes the necessary protectionism continue to apply. The FTAA now would be premature.
This is not a call for inactivity on your part. On the contrary, it is vital to put your proposals in the draft at this stage, before it is too late.
The negotiators must take some hard choices rather than stick their heads in the sand. The futures of their countries are at stake. Politicians need to prepare the people not just for the discussion with civil society, but for a dynamic plan to make export production more accessible to Bahamian entrepreneurs and a more proactive approach to the negotiations involving local entrepreneurs, lawyers and other professionals. Of the more than 600 lawyers at Bahamas Bar, many have focused on international trade, international law and the law of international organisations. Among the government consultants, I know of foreign input. I should like to see more local private, consultants. Heretofore, I have seen none. Where there is no vision, the people perish.
I should like to announce a Bar-Private Sector FTAA Task Force. It is hoped that lawyers and the chambers of commerce will come together to put forward the policies that governments should adopt. It is hoped that more proposals and a new direction will come from all interested parties which take significantly greater account of the needs of small island developing countries.
* * * * * * *
[1]This article is based on the statement by the author to the Grand Bahama Chamber of Commerce at their seminar on FTAA at Our Lucaya Resort, Lucaya, Grand Bahama, Bahamas, on Wednesday, September 26, 2001, and submitted in the FTAA discussion with civil society. Counsel and Attorney at Law, specializing in commercial law, company law, trusts, banking, and civil and criminal litigation. President of the Bahamas Bar Association and President of the Organization of Commonwealth Caribbean Bar Associations. Admitted to practice law in 1979 in England, Wales and The Bahamas; and in 1986 in St. Lucia, St. Vincent and the Grenadines, Antigua and Barbuda and Trinidad and Tobago, and in 1996, pro hac vice in the Turks and Caicos Islands. Education: McGill University (B.A., Hons.); Johns Hopkins University (M.A., Ph.D.); Cambridge University (LL.M.); Sorbonne (1966); Cornell University (1968). Member of the Hon. Society of Gray’s Inn. Former posts: Legal Adviser, Bahamas Ministry of Foreign Affairs; Economics Affairs Officer, United Nations; and Acting Stipendiary and Circuit Magistrate. Contributing Editor, Journal of Financial Crime, Journal of Money Laundering Control, Amicus Curiae, International Journal of Banking Regulation, Company Lawyer and Caribbean Law and Business. PETER D. MAYNARD & CO., Chambers, Jehovah Jireh House, Bay & Deveaux Streets, P. O. Box N-1000, Nassau, Bahamas, telephone: (242) 325-5335 , fax: (242) 325-5411, email: peter.maynard@maynardlaw.com, web site: http://www.maynardlaw.com
[2] Martin Luther King’s “I Have a Dream” speech.
[3] “Negotiating Survival: Caribbean Challenges in the Lome, FTAA and WTO Processes”, Sir Shridath Ramphal, Chief Negotiator, Regional Negotiating Machinery, Society of Economists in Suriname, Paramaribo, Suriname, 3 March 1999. Also see “Small Economies, Trade Negotiations and Poverty Reduction”, Gerry Helleiner, www.twinside.org.sg/title/gerry2.htm, and “‘Back Pay’ for Africans”, Selwyn Ryan, Sunday Express, Trinidad and Tobago, 9 September, 2001, page 12.
[4] The Tribune, Bahamas, 24 June, 2002, page B1.
[5] Dr. the Hon. Kenny Anthony, Prime Minister, St. Lucia, Caribbean Banana Exporters Association, http://www.cbea.org/cbea2/carib/stlucia.htm
