Protecting OFW's

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

While this administration and its civil society henchmen (which includes those unbelievably fanatical ladies who lunch) are still trying to get their stories straight as to who takes the blame for the Quirino hostage blunder (obviously it can never be Noynoy or Robredo but merely those people under their control and supervision), our thoughts turn to those Filipinos working abroad and for whom this fiasco could potentially work against their welfare.

"Services" is obviously a bid deal for the Philippines. Some commentators even go to the extent of saying that if it weren’t for the remittances given by the OFWs this country would have tanked a long time ago. According to the Trade Policy Review conducted by the WTO on the Philippines in 2005:

"The services sector accounted for 60.7% of GDP and well over half of total employment in 2004 (Table I.2). The main sectors are trade (14.1% of GDP in 2004, helped, according to authorities, by entry of foreign retailers), private services (12.5%), government services (8.1%), transport and communications (7.6%), ownership of dwellings and real estate (6.1%), construction (4.5%), finance (4.4%) and electricity, gas, and water (3.2%).

"The Philippines’ commitments under the General Agreement on Trade in Services (GATS) included financial services, communications, transport, and tourism and travel-related services. The Philippines significantly expanded commitments on financial services under the WTO financial services negotiations and on basic telecommunications under the WTO negotiations on basic telecommunication services. However, it has not accepted the Fourth (basic telecommunications) or Fifth (financial services) Protocols of the GATS. The Philippines’ GATS commitments have not changed since its previous Review as services negotiations are on-going."

The GATS would be the one international instrument that could most likely be considered crucial for purposes of determining the rights of WTO members with regard to the exchange of services between them. Like other WTO agreements, the GATS is governed by the MFN principle and, under specific conditions, that of national treatment. Thus, Article XVII.1 of the GATS provides: "In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers."

The focus, however, that we have considering recent incidents would be the OFWs -- essentially not the services we import but rather the services we export. The "export" of services that we make are generally characterized under WTO practice as the "mode 4" type of services or the "presence of natural persons." For obvious reasons, considering the nature of the export being made, not only are we concerned with regard to the effect of any foreign country measure on the income being remitted by the OFWs but also on the actual effect that any foreign country measure or practice may have on the person or welfare of the OFW themselves.

It had been reported that the Department of Labor and Employment recently issued the implementing rules and regulations for Republic Act 10022. The said law and rules seek to provide protection to OFWs by giving clearer definition of recruitment agencies’ obligations to the same. These include the repatriation, at agencies’ cost, of OFWs for reason of the latter’s safety. However, most of these rules deal with the enforcement should the wrongdoer be the recruitment agencies. These would normally not cover instances where it is the foreign country or citizens who are actually harming the OFWs. Accordingly, it was also reported that plans are being set up to prohibit the recruitment of Filipinos for work to be done in countries which has no bilateral agreement with the Philippines regarding the treatment of OFWs. This, obviously, is a step in the right direction for two reasons: first, because there are apparently 197 countries where OFWs are currently in; and, finally, because the GATS doesn’t seem very helpful for OFWs at present.

Tomer Broude, law lecturer at the Hebrew University of Jerusalem, in his 2007 paper "The WTO/GATS Mode 4: International Labor Migration Regimes and Global Justice," found that: "However, the GATS Mode 4 spectacularly fails to meet any of these criteria. It is as ineffective in the promotion of global distributive justice as it is in the strengthening of migration policy enforcement, and as inadequate in the protection of human rights as it is in the prevention of seriously detrimental effects of labour migration. The establishment of a global labour migration regime that is morally permissible, politically possible and likely to be effective (Rawls: 1999, 89) will no doubt require careful consideration, negotiation and time; but the GATS Mode 4 does not appear to be the appropriate model, in too many senses."

Just another reason to work harder on getting a good Doha conclusion. And why we desperately need truly informed, experienced, intelligent leadership.