is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Early this week the man who taught me Constitutional Law, Supreme Court Justice Antonio Eduardo Nachura, retired. He was, is, someone I literally owe (along with Dean Mariano Magsalin, Jr.) my legal career -- encouraging me to continue my law studies after a series of disappointments almost made me want to stop, had supported my going to Cambridge, and with incredible generosity gave me, a then mere 39-year-old, the opportunity to become Bar Examiner for Political Law and Public International Law in 2009.
The newspaper accounts of his retirement ceremonies made much of the fact that he was given tokens that were symbolic or representative of his career: "a brass shingle, a photo album, a Philippine flag, a judicial robe, a book of court decisions, and a medallion, as well as a Supreme Court pen, flag, and seal." Mention was also made of the fact that Justice Nachura had the rare honor of serving in all three branches of government.
But even then, that doesn’t remotely capture what really makes him special. He will forever be for his students (and we will always just be his students) the personification of the lawyer we all want to be: pragmatic but scholarly, intellectual but easygoing, a serious man but of constant good humor, of high position but of down-to-earth humility. We would imitate him in class, trying to perfectly capture his distinct way of speaking, the ever present exhortation of "na-master niyo na iyan, kayang kaya niyo iyan!" This would be then followed by a shake of the head, a rueful smile, and a soft "ay naku ..." Any lawyer could say that he had the honor of learning constitutional law from so and so expert. But I think we, Nachura’s students, could claim the distinction that we actually had fun and looked forward, loved even, learning law from him.
This makes me truly doubt the wisdom of having a compulsory retirement age for Supreme Court justices. Why make it mandatory to retire somebody who is mentally alert, healthy, and with energy just because he or she reached a certain number? And I remember the other justices whose "early" retirement caused the Philippine judiciary to be deprived of their wisdom, experience, and intellect: Cesar Bengzon, who would go on to serve for years at the International Court of Justice, Florentino Feliciano, who would go on almost single-handedly to shape the judicial process of the World Trade Organization’s Appellate Body, Romeo Callejo (another professor of mine and who now teaches at Ateneo). The list goes on and on.
It just simply doesn’t make sense. Considering that the average life expectancy for Filipinos have steadily risen through the years (better nutrition, health care, lack of wars, etc.), why impose retirement at what is effectively quite young ages? This is all the more significant when one considers that global fertility rates are mostly declining (including that of the Philippines). The private sector has a general retirement age of 65. The military has an even more ridiculous retirement age: 56. Just when an officer (or even Chief of Staff) is reaching quite admirable levels of maturity, he is then told to go.
The Economist, commenting on the matter (Pensions, April 7, 2011), declared: "many governments have started to deal with the ageing problem. They have announced increases in the official retirement age that attempt to hold down the costs of state pensions while encouraging workers to stay in their jobs or get on their bikes and look for new ones. [Accordingly], working longer has three great advantages. The employee gets more years of wages; the government receives more in taxes and pays out less in benefits; and the economy grows faster as more people work for longer. Older workers are a neglected consumer market, as our briefing on the media’s ageing audiences explains."
Other countries have certainly heeded the times. The US Army, for one, changed the mandatory retirement age from 55 to 62. The US Supreme Court currently has 4 (out of the 9) justices past 70: Scalia (74), Kennedy (73), Ginsburg (77), and Breyer (71). In the private sector, the UK is reportedly upping the retirement age to 68, the US to 67.
The Economist actually presented (Schumpeter, April 7, 2011) three ways to get more efficient productivity out of senior folks: "The first is to treat them as mentors. Westpac, an Australian bank, has dubbed some older staff ‘sages’and asked them to codify the company’s informal knowledge. The second is to recognise that they respond to different incentives: they may be less interested in money and promotion and more concerned with flexibility. The third is to treat retirement as a process rather than a sudden event. Some employers offer older workers ‘bridge jobs’ between full-time work and retirement."
Indeed, considering the present dearth of talent in this country’s public service, we need all the Nachuras that we can get.
16.6.11
14.6.11
Of trade disputes
(published in the June 2011 issue of Billionaire Magazine)
Anatomy of a conflict
There are two ways to look at trade disputes: one is to view it as an unfortunate state of affairs, by which each country treats the other country as engaging in inconvenient behavior. The other is to consider it positively and look at it as an opportunity to manage better the relationships among States and determine a more efficient way of allocating scarce resources.
Trade disputes are better seen from the latter view, chosen from a list of voluntary options that, because of their legal nature and circumstances, could offer benefits that easily address the short-term needs of States. The term "conflicts" is a general term, indicating a "general state of hostility between the parties." "Disputes", on the other hand, refers to an actual specific disagreement, by which rights or interests of a party has been violated and which entitles parties to proceed against each other by a series of inter-locking claims, counter-claims, and so on.
Trade disputes are normally initiated at the WTO level if a member considers that any benefit accruing to it directly or indirectly under the WTO agreements are being “nullified or impaired or that the attainment of any objective [thereof] is being impeded as the result of (a) the failure of another contracting party to carry out its obligations under th[e WTO agreements], or (b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of th[e WTO agreements], or (c) the existence of any other situation.” Which is a long, convoluted way of saying that WTO members can file cases anytime they feel like it.
The Philippines, for example, is currently locked in several trade disputes at the WTO. There is DS371, formally designated as Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines. There’s also Philippines – Taxes on Distilled Spirits (docketed as DS396). Then there are the two complaints filed in 2002 against Australia (DS270 and DS271), and our third-party complaints in DS375/376/377- EC Measures on certain ITA Products, that were concluded last year.
The stakes for these cases are unimaginably high. Despite the innocuous or dry sounding titles of the cases, EC’s (later joined by the US) whiskey complaint against the Philippines, for example, involves trade valued in the hundreds of millions of dollars. The complaint in this case centers on whether Philippine excise taxes on distilled liquor (as imposed by RA 9334) discriminate against imports and in favor of domestic products. The Thai cigarettes complaint, involving allegations of Thai discrimination against cigarettes imported from the Philippines, would have an effect on 95% of Philippine cigarette exports. An incredibly historic WTO case that had a huge effect on the Philippine coconut industry went by the harmless sounding title ”Desiccated Coconut”.
Anatomy of a complaint
The first significant stage of a WTO dispute would be the “consultations stage”. By provisions of Article 4 of the WTO Dispute Settlement Understanding, if a request for consultations is made, a reply to such request must be made by the requested country within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the consultations fail to settle the dispute within 60 days after the date of receipt of the request for consultations, the complaining country may request the establishment of a panel. The complaining country may also request for a panel during the 60-day period if both countries jointly consider that consultations have failed.
However, it may be almost axiomatic to say, in a manner that would make Clausewitz proud, that the outcome of the dispute is settled even before the first documents or pleadings had been filed in the case. International law experts George Norman and Joel Trachtman: “Measuring the Shadow of the Future: An Introduction to the Game Theory of Customary International Law” presented “a game theoretic model to identify the circumstances under which States have a rational incentive to comply with customary international law”. The reason as to why States do follow international law is a topic deeply discussed even in law school’s early days. For Norman and Trachtman, State compliance depends on the magnitude of the “shadow of the future” and how such could be employed to increase chances of compliance. According to their theory, a State complies with customary international law out of fear that if it doesn’t it will result in it being unable to realistically invoke international law at a future date when it needs to.
The point here is that it would be interesting to see what inputs game theory could provide on the probable outcome of trade cases. This is because, while normally one would think that the moment a dispute comes before a panel then chances are 50-50 for either party. However, this apparently is not so according to the 2002 findings of Andrew Guzman of the University of California, Berkeley, in his paper The Political Economy of Litigation and Settlement at the WTO. He found that complainant countries (or countries that complain against other countries’ trade barriers) in WTO disputes have almost a 90% chance of winning. These findings were corroborated in A Theory of WTO Adjudication by Juscelino Colares of Syracuse University, which made use of empirical analysis of WTO adjudication from 1995 through 2007, revealing again a high disparity between complainant and respondent countries’ success rates: Complainants do win 90% of the time. This rather unfortunate statistic is obviously well above the “win rate” of any domestic legal system (or any other international dispute system for that matter).
Anatomy of a dispute
As stated above, the proceedings begin with a “consultation”. Think of the consultations stage as the domestic litigation equivalent of pre-trial proceedings. If consultations fail to settle a dispute, the complaining party can now request for the establishment of a panel.
Panels are usually made up of three members (sometimes, in quite rare instances, five). Panel members are selected with a view to ensuring the independence of the members, a sufficiently diverse background and a wide spectrum of experience. When a dispute is between a developing country Member and a developed country Member (as in the case of DS396), the panel shall, if the Philippines so insist, for example, include at least one panelist from a developing country Member. The panel’s powers are usually laid down in what is called the terms of reference. Normally, the terms would read something like: "To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)." Parties, of course, are free to add any other term they can agree upon and the panels are to address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.
Where more than one WTO Member requests the establishment of a panel related to the same matter (again, as in the case of DS396, where, apart from the EU, the US has already indicated filing a complaint against the Philippines) a single panel may be established to examine these complaints taking into account the rights of all Members concerned. Single panels are encouraged to be established to examine such complaints whenever feasible.
Also, as in the case of DS396, several countries (including China and Thailand), have indicated interest in the case as “third parties”. A third party is any WTO member having a substantial interest in a dispute. It shall have an opportunity to be heard by the panel and to make written submissions. A third party could eventually morph into a complainant in its own right and in such a case, the dispute shall be referred to the original panel wherever possible.
After the panel process, a party may appeal to the Appellate Body, which works as some sort of “supreme court” of the WTO. Unlike our Supreme Court, however, the AB may only uphold, modify or reverse the legal findings and conclusions of the panel but not remand.
The interesting thing about it is that, after all is said and done, where a panel or the AB concludes that a law or measure is inconsistent with a WTO agreement, it merely recommends “that the Member concerned bring the measure into conformity with that agreement”. A finding of damages, unlike in domestic litigation, is rarely given in a WTO proceeding. Furthermore, it’s not, technically, the panel or the AB that “decides” a case. That power is with the Dispute Settlement Body, which is composed of the 154 members of the WTO, voting by way of a bizarre, quite futile, procedure called the “reverse consensus”.
The beauty (and the power) of the WTO dispute system has to do with its speed and efficiency. It is, simply put, the most effective international dispute settlement system around today. Victors, of course, could crow back to their home constituencies and continue to laud the benefits of the global trading system. Losing governments, on the other hand, are not necessarily left completely beaten. They could also go home happy. For any policy measure that they have longed to implement but were afraid to due to political consequences, the losing government could finally implement their desired policies and shift the blame on the WTO for "forcing" them by way of the adverse ruling. In the meantime, business must go on for both the companies of the winning and losing companies.
All of the above also underlines one important thing: international trade disputes are really no places for domestic industries involved to engage in flaky thinking or grandstanding. Particularly as international trade dispute litigation is a hugely expensive (not to mention research intensive) affair, for which domestic industries have a (general) tendency to be suddenly work shy despite their heated patriotic rhetoric.
Anatomy of a conflict
There are two ways to look at trade disputes: one is to view it as an unfortunate state of affairs, by which each country treats the other country as engaging in inconvenient behavior. The other is to consider it positively and look at it as an opportunity to manage better the relationships among States and determine a more efficient way of allocating scarce resources.
Trade disputes are better seen from the latter view, chosen from a list of voluntary options that, because of their legal nature and circumstances, could offer benefits that easily address the short-term needs of States. The term "conflicts" is a general term, indicating a "general state of hostility between the parties." "Disputes", on the other hand, refers to an actual specific disagreement, by which rights or interests of a party has been violated and which entitles parties to proceed against each other by a series of inter-locking claims, counter-claims, and so on.
Trade disputes are normally initiated at the WTO level if a member considers that any benefit accruing to it directly or indirectly under the WTO agreements are being “nullified or impaired or that the attainment of any objective [thereof] is being impeded as the result of (a) the failure of another contracting party to carry out its obligations under th[e WTO agreements], or (b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of th[e WTO agreements], or (c) the existence of any other situation.” Which is a long, convoluted way of saying that WTO members can file cases anytime they feel like it.
The Philippines, for example, is currently locked in several trade disputes at the WTO. There is DS371, formally designated as Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines. There’s also Philippines – Taxes on Distilled Spirits (docketed as DS396). Then there are the two complaints filed in 2002 against Australia (DS270 and DS271), and our third-party complaints in DS375/376/377- EC Measures on certain ITA Products, that were concluded last year.
The stakes for these cases are unimaginably high. Despite the innocuous or dry sounding titles of the cases, EC’s (later joined by the US) whiskey complaint against the Philippines, for example, involves trade valued in the hundreds of millions of dollars. The complaint in this case centers on whether Philippine excise taxes on distilled liquor (as imposed by RA 9334) discriminate against imports and in favor of domestic products. The Thai cigarettes complaint, involving allegations of Thai discrimination against cigarettes imported from the Philippines, would have an effect on 95% of Philippine cigarette exports. An incredibly historic WTO case that had a huge effect on the Philippine coconut industry went by the harmless sounding title ”Desiccated Coconut”.
Anatomy of a complaint
The first significant stage of a WTO dispute would be the “consultations stage”. By provisions of Article 4 of the WTO Dispute Settlement Understanding, if a request for consultations is made, a reply to such request must be made by the requested country within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the consultations fail to settle the dispute within 60 days after the date of receipt of the request for consultations, the complaining country may request the establishment of a panel. The complaining country may also request for a panel during the 60-day period if both countries jointly consider that consultations have failed.
However, it may be almost axiomatic to say, in a manner that would make Clausewitz proud, that the outcome of the dispute is settled even before the first documents or pleadings had been filed in the case. International law experts George Norman and Joel Trachtman: “Measuring the Shadow of the Future: An Introduction to the Game Theory of Customary International Law” presented “a game theoretic model to identify the circumstances under which States have a rational incentive to comply with customary international law”. The reason as to why States do follow international law is a topic deeply discussed even in law school’s early days. For Norman and Trachtman, State compliance depends on the magnitude of the “shadow of the future” and how such could be employed to increase chances of compliance. According to their theory, a State complies with customary international law out of fear that if it doesn’t it will result in it being unable to realistically invoke international law at a future date when it needs to.
The point here is that it would be interesting to see what inputs game theory could provide on the probable outcome of trade cases. This is because, while normally one would think that the moment a dispute comes before a panel then chances are 50-50 for either party. However, this apparently is not so according to the 2002 findings of Andrew Guzman of the University of California, Berkeley, in his paper The Political Economy of Litigation and Settlement at the WTO. He found that complainant countries (or countries that complain against other countries’ trade barriers) in WTO disputes have almost a 90% chance of winning. These findings were corroborated in A Theory of WTO Adjudication by Juscelino Colares of Syracuse University, which made use of empirical analysis of WTO adjudication from 1995 through 2007, revealing again a high disparity between complainant and respondent countries’ success rates: Complainants do win 90% of the time. This rather unfortunate statistic is obviously well above the “win rate” of any domestic legal system (or any other international dispute system for that matter).
Anatomy of a dispute
As stated above, the proceedings begin with a “consultation”. Think of the consultations stage as the domestic litigation equivalent of pre-trial proceedings. If consultations fail to settle a dispute, the complaining party can now request for the establishment of a panel.
Panels are usually made up of three members (sometimes, in quite rare instances, five). Panel members are selected with a view to ensuring the independence of the members, a sufficiently diverse background and a wide spectrum of experience. When a dispute is between a developing country Member and a developed country Member (as in the case of DS396), the panel shall, if the Philippines so insist, for example, include at least one panelist from a developing country Member. The panel’s powers are usually laid down in what is called the terms of reference. Normally, the terms would read something like: "To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)." Parties, of course, are free to add any other term they can agree upon and the panels are to address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.
Where more than one WTO Member requests the establishment of a panel related to the same matter (again, as in the case of DS396, where, apart from the EU, the US has already indicated filing a complaint against the Philippines) a single panel may be established to examine these complaints taking into account the rights of all Members concerned. Single panels are encouraged to be established to examine such complaints whenever feasible.
Also, as in the case of DS396, several countries (including China and Thailand), have indicated interest in the case as “third parties”. A third party is any WTO member having a substantial interest in a dispute. It shall have an opportunity to be heard by the panel and to make written submissions. A third party could eventually morph into a complainant in its own right and in such a case, the dispute shall be referred to the original panel wherever possible.
After the panel process, a party may appeal to the Appellate Body, which works as some sort of “supreme court” of the WTO. Unlike our Supreme Court, however, the AB may only uphold, modify or reverse the legal findings and conclusions of the panel but not remand.
The interesting thing about it is that, after all is said and done, where a panel or the AB concludes that a law or measure is inconsistent with a WTO agreement, it merely recommends “that the Member concerned bring the measure into conformity with that agreement”. A finding of damages, unlike in domestic litigation, is rarely given in a WTO proceeding. Furthermore, it’s not, technically, the panel or the AB that “decides” a case. That power is with the Dispute Settlement Body, which is composed of the 154 members of the WTO, voting by way of a bizarre, quite futile, procedure called the “reverse consensus”.
The beauty (and the power) of the WTO dispute system has to do with its speed and efficiency. It is, simply put, the most effective international dispute settlement system around today. Victors, of course, could crow back to their home constituencies and continue to laud the benefits of the global trading system. Losing governments, on the other hand, are not necessarily left completely beaten. They could also go home happy. For any policy measure that they have longed to implement but were afraid to due to political consequences, the losing government could finally implement their desired policies and shift the blame on the WTO for "forcing" them by way of the adverse ruling. In the meantime, business must go on for both the companies of the winning and losing companies.
All of the above also underlines one important thing: international trade disputes are really no places for domestic industries involved to engage in flaky thinking or grandstanding. Particularly as international trade dispute litigation is a hugely expensive (not to mention research intensive) affair, for which domestic industries have a (general) tendency to be suddenly work shy despite their heated patriotic rhetoric.
9.6.11
Doha: dead or a lite
is the subject of my Trade Tripper column this Friday-Saturday issue of BusinessWorld:
The focus of the trade world now is Doha. And just to show how freakishly convoluted trade talks are, the arguments currently revolve around whether Doha is "dead" or not, or whether one should go for "full" Doha or Doha "lite." If the general public nowadays doesn’t give a damn about it, I sometimes imagine because it was planned to be that way by trade experts, what with their endlessly monotonous declarations that could make an insomniac owl go to sleep.
Doha can’t be dead. As Jagdish Bhagwati pointed out: "if Doha was dead, one had to ask why the negotiators were still negotiating, and why nearly all G-20 leaders were still issuing endorsements of the talks each time they met." Indeed, the issue is not the death of Doha but rather how to end it. One way or another, Doha will be closed and it’s the manner of its conclusion that will (don’t ask me why) determine the future of the World Trade Organization.
Indeed, what is ominous is the fact that people from the developed countries are beginning to voice out something they were quiet about before. It’s something I’ve long suspected that they don’t like about the Doha Round: its "developmental" aspect. As reported in Reuters, one commentator, speaking under anonymity, said: "A development agenda should never have been introduced into the WTO in 2001. The WTO is about mercantilist interest, and there is no space for philanthropy. It’s dog-eat-dog according to a set of rules. You’re either a player or you’re not a player, and if you are not a player, you should get out of the way."
While definitely betraying a wrong appreciation of what the WTO stands for (a mere reading of the preambular provisions of the WTO Agreements would point this out), nevertheless, the comment does reveal the thinking behind some of the developed country calculations: launch a round with some nice motherhood statements, let the developing countries flounder in their under-resourced and unorganized way through the talks, conclude like Uruguay, and developed rich countries happy again. Unfortunately, the developing countries were apparently not given copies of the script. Learning from the Uruguay Round and gaining further experiences from Cancun and Hong Kong, the poorer countries learned to stand their ground and maintained focus.
The fact is, the poorer countries got so good at playing the WTO game that now commentators from the richer countries are floating ideas about letting the WTO "die." For instance, Daniel Altman of Newsweek gleefully calls for "good riddance" to the WTO, saying that "trade negotiations would actually go much further if the WTO simply closed down its talks altogether." His argument essentially is that "this is where the future of free trade lies: in pragmatic regional deals, not utopian global ones ... The majority of nations can simply leave the obstructionists behind and move forward with regional trading partners. Eventually, most of the world’s trading nations will arrange themselves into just a few big blocs."
All this sounds good, rational even. But for a developing country like the Philippines, it should be disconcerting. The argument above is designed to benefit developed countries. For developing countries, with its limited resources, the reverse is true. For the simple reason that free trade agreements are not free. Their very nature and number provides for an increasingly complex international trading system. Considering the concerns raised regarding the Philippines’ capacity to keep up with its multilateral trading commitments, this obviously would be multiplied in view of the inevitable proliferation of FTAs should the WTO indeed be waylaid. Among areas of concern would be the varied ROOs, dispute settlement jurisdictions, customs procedures, SPS and TBT measures, and -- perhaps -- smuggling.
Even the jewel of the WTO, its dispute settlement system, Professor Bhagwati insightfully maintains, would be rendered null: "the willingness of WTO members to invoke the Dispute Settlement Mechanism, the pride of the WTO -- and, indeed, of international governance -- would also be sapped. Tribunals established within PTAs ["Preferential Trade Agreements"] would take over the business, leading to the atrophy, and eventual irrelevance, of the DSM."
The foregoing are also the reasons why Doha should not be allowed to fail. Indirectly, they’re also the reasons why we can’t allow Doha "lite." The reasoning behind the latter seems to be that "something is better than nothing." And the answer to that is: "a something that does nothing is still nothing." Doha lite focuses on less-developed countries, with minimal mention of the concessions for developing countries (which include the Philippines). As Professor Bhagwati pointed out: "in multi-faceted talks that straddle several different sectors (for example, agriculture, manufactures, and services) and diverse rules (such as anti-dumping and subsidies), countries have negotiated concessions with one another in various areas. Whatever balance of concessions has been achieved would unravel if we were to try to keep one set and let go of another."
The focus of the trade world now is Doha. And just to show how freakishly convoluted trade talks are, the arguments currently revolve around whether Doha is "dead" or not, or whether one should go for "full" Doha or Doha "lite." If the general public nowadays doesn’t give a damn about it, I sometimes imagine because it was planned to be that way by trade experts, what with their endlessly monotonous declarations that could make an insomniac owl go to sleep.
Doha can’t be dead. As Jagdish Bhagwati pointed out: "if Doha was dead, one had to ask why the negotiators were still negotiating, and why nearly all G-20 leaders were still issuing endorsements of the talks each time they met." Indeed, the issue is not the death of Doha but rather how to end it. One way or another, Doha will be closed and it’s the manner of its conclusion that will (don’t ask me why) determine the future of the World Trade Organization.
Indeed, what is ominous is the fact that people from the developed countries are beginning to voice out something they were quiet about before. It’s something I’ve long suspected that they don’t like about the Doha Round: its "developmental" aspect. As reported in Reuters, one commentator, speaking under anonymity, said: "A development agenda should never have been introduced into the WTO in 2001. The WTO is about mercantilist interest, and there is no space for philanthropy. It’s dog-eat-dog according to a set of rules. You’re either a player or you’re not a player, and if you are not a player, you should get out of the way."
While definitely betraying a wrong appreciation of what the WTO stands for (a mere reading of the preambular provisions of the WTO Agreements would point this out), nevertheless, the comment does reveal the thinking behind some of the developed country calculations: launch a round with some nice motherhood statements, let the developing countries flounder in their under-resourced and unorganized way through the talks, conclude like Uruguay, and developed rich countries happy again. Unfortunately, the developing countries were apparently not given copies of the script. Learning from the Uruguay Round and gaining further experiences from Cancun and Hong Kong, the poorer countries learned to stand their ground and maintained focus.
The fact is, the poorer countries got so good at playing the WTO game that now commentators from the richer countries are floating ideas about letting the WTO "die." For instance, Daniel Altman of Newsweek gleefully calls for "good riddance" to the WTO, saying that "trade negotiations would actually go much further if the WTO simply closed down its talks altogether." His argument essentially is that "this is where the future of free trade lies: in pragmatic regional deals, not utopian global ones ... The majority of nations can simply leave the obstructionists behind and move forward with regional trading partners. Eventually, most of the world’s trading nations will arrange themselves into just a few big blocs."
All this sounds good, rational even. But for a developing country like the Philippines, it should be disconcerting. The argument above is designed to benefit developed countries. For developing countries, with its limited resources, the reverse is true. For the simple reason that free trade agreements are not free. Their very nature and number provides for an increasingly complex international trading system. Considering the concerns raised regarding the Philippines’ capacity to keep up with its multilateral trading commitments, this obviously would be multiplied in view of the inevitable proliferation of FTAs should the WTO indeed be waylaid. Among areas of concern would be the varied ROOs, dispute settlement jurisdictions, customs procedures, SPS and TBT measures, and -- perhaps -- smuggling.
Even the jewel of the WTO, its dispute settlement system, Professor Bhagwati insightfully maintains, would be rendered null: "the willingness of WTO members to invoke the Dispute Settlement Mechanism, the pride of the WTO -- and, indeed, of international governance -- would also be sapped. Tribunals established within PTAs ["Preferential Trade Agreements"] would take over the business, leading to the atrophy, and eventual irrelevance, of the DSM."
The foregoing are also the reasons why Doha should not be allowed to fail. Indirectly, they’re also the reasons why we can’t allow Doha "lite." The reasoning behind the latter seems to be that "something is better than nothing." And the answer to that is: "a something that does nothing is still nothing." Doha lite focuses on less-developed countries, with minimal mention of the concessions for developing countries (which include the Philippines). As Professor Bhagwati pointed out: "in multi-faceted talks that straddle several different sectors (for example, agriculture, manufactures, and services) and diverse rules (such as anti-dumping and subsidies), countries have negotiated concessions with one another in various areas. Whatever balance of concessions has been achieved would unravel if we were to try to keep one set and let go of another."
8.6.11
Connecting past and future
is the article I wrote as part of Ateneo Law School’s 75th anniversary:
“What’s past is prologue.” So wrote William Shakespeare in – which is most appropriate for this piece – his play The Tempest. For the Philippines is certainly, whether its people realize it or not, in the middle of a tempest. Socially, culturally, politically, economically, the country is caught in an intense debate about itself and its future. But as nothing exists in a vacuum, then our choices moving forward would always be bound within the context of our history. Again, whether or not our people realizes that. Or accepts it.
Ateneo, of course, is very much intertwined with our history and Ateneo Law’s contribution to it could very much be the subject of its own, quite lengthy, article. However, I would like to focus on one individual in particular: Fr. Horacio De La Costa, the Jesuit priest-scholar, the first Filipino Provincial of the Philippines, and special counselor in Rome to Fr. General Pedro Arrupe.
In my particular field of international trade law and policy there are certainly lot’s of people to look up to: John Jackson, Robert Hudec, Jagdish Bhagwati, Amartya Sen. There is, sadly, a dearth of Filipinos among that list. Clearly there is Florentino Feliciano and Lilia Bautista. But among them all, Fr. Dela Costa for me stands out for his clear eyed and Christian vision of what a proper trade and developmental policy should be for a developing country. As such, he is for me a sort of mentor despite him not actually being a lawyer or economist, despite the fact that he has not even heard of the World Trade Organization, and despite him having died more than thirty years ago.
For somebody like me who has long been advocating for caution of Philippine entry into free trade agreements, Fr. Dela Costa had this to say: “Free trade between an industrial country and an agricultural country is to the detriment of the agricultural country … Our negotiating position … cannot be other than based on our national interest … and at the same time, on social justice.” (Trade between the unequal, lecture 30 August 1968). It must be emphasized that recent studies from international organizations would recently confirm the correctness of his assertions.
In the current discussions regarding poverty and inequality in the Philippines, Fr. Dela Costa’s words (from his paper Philippine economic development, 27 January 1966) ring fresh and relevant:
“We must now make our own decisions and must take the full consequences of the decisions we wrongly make, or weakly make, or cravenly fail to make. We no longer have a mother country or a colonial master to blame for our shortcomings; we only have ourselves.”
“But this is not all. We must also find some workable integration of the twin objectives of productivity and equity. Simple justice demands that labor, agricultural as well as industrial, receive as much of a share of what it helps to produce as will bring it at least within hailing distance of a human level of living. While doing this, we must bend every effort to produce more, for unless we do, unless we produce a great deal more, a redistribution of the product, no matter how equitable, cannot substantially raise levels of living across the board.”
“The people, then, all the people, must contribute to development … If we want economic development, this is the price that we must pay. And so, one question remains. Do we want it?”
Fr. Dela Costa had also hit on something forty years ago that I am only now am pitifully discovering on my own: that most of the country’s problems are self-inflicted, stemming from a lack of confidence in ourselves and each other. This was a theme he tackled in March of 1971, in his lecture The Filipino national tradition: “Would it be thought discourteous on our part if we were to recall that it was once said of England that patriotism was the religion of the English? And that it was not so long ago that American school texts prescribed formuse in the Philippines quoted with reverence the dictum of an American naval officer, ‘My country, may she always be right, but right or wrong, my country’?”
Furthermore, with words that are highly applicable to our political leaders today, Fr. Dela Costa wrote: “the quality of a society depends, in large measure, on the quality of its leaders. A democratic society, to be viable, needs a special kind of leaders – leaders who look on leadership not as dominance but as service.” (Philipine problems in historical perspective, paper, 20 March 1970)
Fr. Horacio Dela Costa, who once wrote that “those who know their history are encouraged to surpass it” and advises those undergoing tribulations that Jesus Christ on the cross is him “showing us how to take it like a man”, is therefore both an inspiration and a hurdle. For our problems and solutions cannot be same thing decades in and out. By now we should have taken his counsel and rendered him irrelevant. The fact that we haven’t displays the tragedy of his genius and of our ignorance.
Teaching has always been an act of faith and optimism, that our words would find resonance with our students, not really for the legal knowledge imparted to them but more for the responsibilities we hope they respect and carry forward to make a better country for us all. Fr. Dela Costa was definitely a teacher: “Permit me to propose the following, purely as a speculation: that the Filipino, given half a chance, given a situation even slightly competitive, has quite consistently been willing, ready and able to compete; and that if he has so seldom actually done so, this may only be because the conditions have so seldom been verified.” His optimism is well placed, our inability to learn is our irresponsibility that we need to correct.
To be with Ateneo Law School for me is therefore also to continually be in touch with Fr. Dela Costa: both mentoring about our past while leading towards our future. To teach in Ateneo enables me to learn from our failures, to live on our promises, and to look towards hope.
“What’s past is prologue.” So wrote William Shakespeare in – which is most appropriate for this piece – his play The Tempest. For the Philippines is certainly, whether its people realize it or not, in the middle of a tempest. Socially, culturally, politically, economically, the country is caught in an intense debate about itself and its future. But as nothing exists in a vacuum, then our choices moving forward would always be bound within the context of our history. Again, whether or not our people realizes that. Or accepts it.
Ateneo, of course, is very much intertwined with our history and Ateneo Law’s contribution to it could very much be the subject of its own, quite lengthy, article. However, I would like to focus on one individual in particular: Fr. Horacio De La Costa, the Jesuit priest-scholar, the first Filipino Provincial of the Philippines, and special counselor in Rome to Fr. General Pedro Arrupe.
In my particular field of international trade law and policy there are certainly lot’s of people to look up to: John Jackson, Robert Hudec, Jagdish Bhagwati, Amartya Sen. There is, sadly, a dearth of Filipinos among that list. Clearly there is Florentino Feliciano and Lilia Bautista. But among them all, Fr. Dela Costa for me stands out for his clear eyed and Christian vision of what a proper trade and developmental policy should be for a developing country. As such, he is for me a sort of mentor despite him not actually being a lawyer or economist, despite the fact that he has not even heard of the World Trade Organization, and despite him having died more than thirty years ago.
For somebody like me who has long been advocating for caution of Philippine entry into free trade agreements, Fr. Dela Costa had this to say: “Free trade between an industrial country and an agricultural country is to the detriment of the agricultural country … Our negotiating position … cannot be other than based on our national interest … and at the same time, on social justice.” (Trade between the unequal, lecture 30 August 1968). It must be emphasized that recent studies from international organizations would recently confirm the correctness of his assertions.
In the current discussions regarding poverty and inequality in the Philippines, Fr. Dela Costa’s words (from his paper Philippine economic development, 27 January 1966) ring fresh and relevant:
“We must now make our own decisions and must take the full consequences of the decisions we wrongly make, or weakly make, or cravenly fail to make. We no longer have a mother country or a colonial master to blame for our shortcomings; we only have ourselves.”
“But this is not all. We must also find some workable integration of the twin objectives of productivity and equity. Simple justice demands that labor, agricultural as well as industrial, receive as much of a share of what it helps to produce as will bring it at least within hailing distance of a human level of living. While doing this, we must bend every effort to produce more, for unless we do, unless we produce a great deal more, a redistribution of the product, no matter how equitable, cannot substantially raise levels of living across the board.”
“The people, then, all the people, must contribute to development … If we want economic development, this is the price that we must pay. And so, one question remains. Do we want it?”
Fr. Dela Costa had also hit on something forty years ago that I am only now am pitifully discovering on my own: that most of the country’s problems are self-inflicted, stemming from a lack of confidence in ourselves and each other. This was a theme he tackled in March of 1971, in his lecture The Filipino national tradition: “Would it be thought discourteous on our part if we were to recall that it was once said of England that patriotism was the religion of the English? And that it was not so long ago that American school texts prescribed formuse in the Philippines quoted with reverence the dictum of an American naval officer, ‘My country, may she always be right, but right or wrong, my country’?”
Furthermore, with words that are highly applicable to our political leaders today, Fr. Dela Costa wrote: “the quality of a society depends, in large measure, on the quality of its leaders. A democratic society, to be viable, needs a special kind of leaders – leaders who look on leadership not as dominance but as service.” (Philipine problems in historical perspective, paper, 20 March 1970)
Fr. Horacio Dela Costa, who once wrote that “those who know their history are encouraged to surpass it” and advises those undergoing tribulations that Jesus Christ on the cross is him “showing us how to take it like a man”, is therefore both an inspiration and a hurdle. For our problems and solutions cannot be same thing decades in and out. By now we should have taken his counsel and rendered him irrelevant. The fact that we haven’t displays the tragedy of his genius and of our ignorance.
Teaching has always been an act of faith and optimism, that our words would find resonance with our students, not really for the legal knowledge imparted to them but more for the responsibilities we hope they respect and carry forward to make a better country for us all. Fr. Dela Costa was definitely a teacher: “Permit me to propose the following, purely as a speculation: that the Filipino, given half a chance, given a situation even slightly competitive, has quite consistently been willing, ready and able to compete; and that if he has so seldom actually done so, this may only be because the conditions have so seldom been verified.” His optimism is well placed, our inability to learn is our irresponsibility that we need to correct.
To be with Ateneo Law School for me is therefore also to continually be in touch with Fr. Dela Costa: both mentoring about our past while leading towards our future. To teach in Ateneo enables me to learn from our failures, to live on our promises, and to look towards hope.
2.6.11
Reaction by Senator Saguisag
With permission, here is an e-mail sent to me by Rene Saguisag, a former Senator and Cabinet official, in reaction to my article A Legal Disobedience, which appeared in the 27 May 2011 issue of BusinessWorld. Note that it contains - to my utter frustration - the one line (that uttered by St. Thomas More) I should have logically put in the article but bizarrely forgot to do so. That alone shows why Senator Saguisag is the far better writer than I am:
Dear Jemy:
Edifying, what you wrote today on disobedience.
I applaud Manny Pacquiao for supporting our Church on RH. But, is he just being sandbagged as a polite guest? And he is unlike Muhammad Ali, who put himself where his mouth is, in conscientious objection and refused to serve in the military. Does Manny have the time and inclination to study when his handlers say to ready for the next match in the Manly Art of Modified Murder? Or concert? Study takes time - to avoid being told in effect na huwag daw pong makialam sa usapan ng mga matatanda.
We may risk prison terms to raise a moral issue. In that sense, disobedience is not in accord with a law perceived as unjust. On June 26, 2005, after Garci, the Inquirer headlined my tax revolt call. I started making amends only after PNoy was sworn in. Antigone, in ancient times, said never surrender one's conscience to the State; in burying her brother, she defied Creon's law but not the superior unwritten law.
In the early 80's, we boycotted elections. Anding Roces, who just passed away, was prosecuted. MABINI defended him. Makati municipal Judge Elo Ynares- Santiago acquitted him, at a time when the Supreme Court (SC) was so accepting. (Elo is a retired SC Justice, and could replace Mercy Gutierrez but the Consti is wise in saying at 70, no more long-term jobs, ad hoc tasks maybe.) Anding's defense: "The right to vote comes from the State. The right not to vote comes from God. Render unto Ceasar what is Ceasar's and to God what is God's."
The Comelec, scratching its head, charged him. Elo mooted the cry of Boadbil's mother on seeing her son weep when sent to exile, last turning to look at the beloved Granada he had lost, in 1492, on the spot now known as El Ultimo Suspiro del Moro - The Last Sigh of the Moor. "Weep not like a woman," she reproved, "for the loss of a kingdom you could not defend as a man." The late Chit Estella was said to write "like a man." In my case, I say, no Rene, sans a gutsy principled Dulce, believing that life, liberty, family, security, work and comfort did matter, but there were things that mattered more, which we greatly wanted.
At a time of great want, Manny Pacquiao spends ostentatiously in his seemingly never-ending parties. It is the time he spends on lawmaking that matters, not the millions spent ostentatiously, on nation-wide TV at that. He was even honored by the House he disrespects (or at least, he does not take seriously). But is he really our anti-RH poster boy?
Peshawataro was a young Indian brave who decided that kidnapping a neighboring tribe maiden for sacrifice must end; he freed an abducted girl and returned her to her people. He rode back, submitting himself to his fellows, who did nothing. It was time to stop the folly. They had only needed an act of such courage to make that clear. Girouard v. U.S. involved an alien seeking naturalization but who had made it clear that as a pacifist, he would assume no military combat role. The U.S. SC said in 1946 that "the Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State." Nixon's first pardon was to commute a prison term of a New York neurosurgeon who, heeding his conscience, had refused to pay taxes and gave the money to blacks.
If my Church goes for Civil Disobedience, amen. The King's good servant, but God's first. Let's protect babies who cannot lobby or vote. Poverty requires RH? What might I have become as a rich kid? We seven siblings had the advantage of poverty, driving us to get a good education and develop street smarts, to help give our people a better life. The Good Lord takes care of the lilies of the field like me, even if it took the 2007 passage of my Dulce for me, as co-heir, and star boarder, to be able to sleep under the roof of a house I can call my own, for the first time in my life, ever. I live in Palanan, Makati, where there could be five simultaneous wakes, on the streets, telling the short and simple annals of the poor. They are lilies.
Have a good weekend.
Rene Saguisag UIOGD
Dear Jemy:
Edifying, what you wrote today on disobedience.
I applaud Manny Pacquiao for supporting our Church on RH. But, is he just being sandbagged as a polite guest? And he is unlike Muhammad Ali, who put himself where his mouth is, in conscientious objection and refused to serve in the military. Does Manny have the time and inclination to study when his handlers say to ready for the next match in the Manly Art of Modified Murder? Or concert? Study takes time - to avoid being told in effect na huwag daw pong makialam sa usapan ng mga matatanda.
We may risk prison terms to raise a moral issue. In that sense, disobedience is not in accord with a law perceived as unjust. On June 26, 2005, after Garci, the Inquirer headlined my tax revolt call. I started making amends only after PNoy was sworn in. Antigone, in ancient times, said never surrender one's conscience to the State; in burying her brother, she defied Creon's law but not the superior unwritten law.
In the early 80's, we boycotted elections. Anding Roces, who just passed away, was prosecuted. MABINI defended him. Makati municipal Judge Elo Ynares- Santiago acquitted him, at a time when the Supreme Court (SC) was so accepting. (Elo is a retired SC Justice, and could replace Mercy Gutierrez but the Consti is wise in saying at 70, no more long-term jobs, ad hoc tasks maybe.) Anding's defense: "The right to vote comes from the State. The right not to vote comes from God. Render unto Ceasar what is Ceasar's and to God what is God's."
The Comelec, scratching its head, charged him. Elo mooted the cry of Boadbil's mother on seeing her son weep when sent to exile, last turning to look at the beloved Granada he had lost, in 1492, on the spot now known as El Ultimo Suspiro del Moro - The Last Sigh of the Moor. "Weep not like a woman," she reproved, "for the loss of a kingdom you could not defend as a man." The late Chit Estella was said to write "like a man." In my case, I say, no Rene, sans a gutsy principled Dulce, believing that life, liberty, family, security, work and comfort did matter, but there were things that mattered more, which we greatly wanted.
At a time of great want, Manny Pacquiao spends ostentatiously in his seemingly never-ending parties. It is the time he spends on lawmaking that matters, not the millions spent ostentatiously, on nation-wide TV at that. He was even honored by the House he disrespects (or at least, he does not take seriously). But is he really our anti-RH poster boy?
Peshawataro was a young Indian brave who decided that kidnapping a neighboring tribe maiden for sacrifice must end; he freed an abducted girl and returned her to her people. He rode back, submitting himself to his fellows, who did nothing. It was time to stop the folly. They had only needed an act of such courage to make that clear. Girouard v. U.S. involved an alien seeking naturalization but who had made it clear that as a pacifist, he would assume no military combat role. The U.S. SC said in 1946 that "the Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State." Nixon's first pardon was to commute a prison term of a New York neurosurgeon who, heeding his conscience, had refused to pay taxes and gave the money to blacks.
If my Church goes for Civil Disobedience, amen. The King's good servant, but God's first. Let's protect babies who cannot lobby or vote. Poverty requires RH? What might I have become as a rich kid? We seven siblings had the advantage of poverty, driving us to get a good education and develop street smarts, to help give our people a better life. The Good Lord takes care of the lilies of the field like me, even if it took the 2007 passage of my Dulce for me, as co-heir, and star boarder, to be able to sleep under the roof of a house I can call my own, for the first time in my life, ever. I live in Palanan, Makati, where there could be five simultaneous wakes, on the streets, telling the short and simple annals of the poor. They are lilies.
Have a good weekend.
Rene Saguisag UIOGD
Trade and human rights
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Kent Brockman of KBBL-TV News once famously declared: "Democracy simply doesn’t work." But then his comment should be taken with a grain of salt. Firstly, because Brockman was saying that under duress as the Earth was about to be hit by Bart’s comet. Another more obvious reason is that Kent Brockman is a character from the Simpson’s.
I got reminded of that immortal quote quite inadvertently by a seminar recently conducted at Ateneo in Rockwell. It had something to do with human rights being sacrificed at the "altar" of "free trade." Considering its venue, the seminar was somewhat quirky because Ateneo Law School has in its faculty two international trade lawyers who were both previously Bar examiners for political and international law. Neither of which were asked to speak at the seminar. But I digress. The real point is that Kent Brockman’s (as well as Homer Simpson’s) logic seems to be very much in play here. And equally as wrong.
As we all know life has its inevitable ups and downs. Unfortunately for trade these days every day is a Monday. To the glee particularly of those who’ve never been fans of trade anyway. But as with democracy, while trade is obviously not perfect, nevertheless, no rational, sane alternative to it exists. And as if on cue, reports come out that the Philippine economy slowed in the first quarter. One reason? The slowdown in international trade. And why the slowdown in world trade? Most likely because, as the WTO, OECD, and UNCTAD report suggests, the: "G20 governments have introduced more trade barriers, including export restrictions, in the past six months than in previous periods since the financial crisis began xxx Although measures to lower trade barriers are also accelerating, new import restrictive measures taken by G20 economies over the period October 2010 to April 2011 cover around 0.6% of total G20 imports which is also an increase over the previous six months (0.3%). Export restrictions are also on the rise. This adds to the cumulative total of world trade affected by new restrictions since the crisis began. Despite the positive forecasts for 2011, the outlook for world trade remains clouded by a number of significant risk factors in addition to the recent natural disasters in Japan. Sovereign debt problems, rising prices for food and other primary commodities, and unrest in major oil exporting countries generate uncertainties for the near future."
How does the foregoing relate to human rights? Human rights deal with individual dignity, reasonable standards of living, employment and proper work conditions, education, the right to information and access to media, protection of the environment, healthcare, maternity rights and benefits, security of life and property, and so on. All that requires money. And international trade, despite the occasional hiccups, has proven very adept at boosting the economies of countries in the world. Not to mention the transparency that the multilateral trading system brings. No protectionist rhetoric will ever be able to deny that fact. As WTO Director-General Pascal Lamy more elegantly puts it: "The opening of markets creates efficiency, stimulates growth and helps spur development, thereby contributing to the implementation of the fundamental human rights that are social and economic rights. One could almost claim that trade is human rights in practice!"
The OECD posits that a "10% increase in trade is associated with a 4% rise in per capita income; an ‘open’ foreign direct investment climate could be expected to yield a 3/4% increase in OECD area GDP per capita; lower regulatory barriers to competition could result in a 2-3% increase in OECD area GDP per capita; full tariff liberalization in agriculture and industrial goods could increase global welfare a further 100 billion USD."
The problem with the Philippines is not that we trade, it’s that we don’t trade enough to be able to override our problem of profound inequality. Because whatever benefits the Philippines may have had from trade were prevented from reaching our poor and instead were selfishly gobbled up by our oligarchic elite. US Secretary of State Hillary Clinton was spot-on when she declared that the Philippine problem lies in the fact that "the elite in business and politics basically call the shots, and there’s not much room for someone who’s hardworking, but not connected."
Hence, one sees 40% of Filipino kids below 5 years old being severely undernourished, with an estimated 8.1 million families (around 43% of the population) self-rating themselves as "poor." More objective numbers aren’t better. An ADB study ("Poverty in the Philippines") reported that the number of poor Filipinos increased to 27.6 million. The World Bank found "the overall incidence of poverty" upped to 32.9%.
If we want to uphold human rights, we should encourage greater trade coupled with "solid social policies to redistribute wealth" (to borrow Lamy’s words). As Jagdish Bhagwati, with marvelous common sense, pointed out: "slowly growing or stagnant economies cannot rescue the poor from their poverty."
Kent Brockman of KBBL-TV News once famously declared: "Democracy simply doesn’t work." But then his comment should be taken with a grain of salt. Firstly, because Brockman was saying that under duress as the Earth was about to be hit by Bart’s comet. Another more obvious reason is that Kent Brockman is a character from the Simpson’s.
I got reminded of that immortal quote quite inadvertently by a seminar recently conducted at Ateneo in Rockwell. It had something to do with human rights being sacrificed at the "altar" of "free trade." Considering its venue, the seminar was somewhat quirky because Ateneo Law School has in its faculty two international trade lawyers who were both previously Bar examiners for political and international law. Neither of which were asked to speak at the seminar. But I digress. The real point is that Kent Brockman’s (as well as Homer Simpson’s) logic seems to be very much in play here. And equally as wrong.
As we all know life has its inevitable ups and downs. Unfortunately for trade these days every day is a Monday. To the glee particularly of those who’ve never been fans of trade anyway. But as with democracy, while trade is obviously not perfect, nevertheless, no rational, sane alternative to it exists. And as if on cue, reports come out that the Philippine economy slowed in the first quarter. One reason? The slowdown in international trade. And why the slowdown in world trade? Most likely because, as the WTO, OECD, and UNCTAD report suggests, the: "G20 governments have introduced more trade barriers, including export restrictions, in the past six months than in previous periods since the financial crisis began xxx Although measures to lower trade barriers are also accelerating, new import restrictive measures taken by G20 economies over the period October 2010 to April 2011 cover around 0.6% of total G20 imports which is also an increase over the previous six months (0.3%). Export restrictions are also on the rise. This adds to the cumulative total of world trade affected by new restrictions since the crisis began. Despite the positive forecasts for 2011, the outlook for world trade remains clouded by a number of significant risk factors in addition to the recent natural disasters in Japan. Sovereign debt problems, rising prices for food and other primary commodities, and unrest in major oil exporting countries generate uncertainties for the near future."
How does the foregoing relate to human rights? Human rights deal with individual dignity, reasonable standards of living, employment and proper work conditions, education, the right to information and access to media, protection of the environment, healthcare, maternity rights and benefits, security of life and property, and so on. All that requires money. And international trade, despite the occasional hiccups, has proven very adept at boosting the economies of countries in the world. Not to mention the transparency that the multilateral trading system brings. No protectionist rhetoric will ever be able to deny that fact. As WTO Director-General Pascal Lamy more elegantly puts it: "The opening of markets creates efficiency, stimulates growth and helps spur development, thereby contributing to the implementation of the fundamental human rights that are social and economic rights. One could almost claim that trade is human rights in practice!"
The OECD posits that a "10% increase in trade is associated with a 4% rise in per capita income; an ‘open’ foreign direct investment climate could be expected to yield a 3/4% increase in OECD area GDP per capita; lower regulatory barriers to competition could result in a 2-3% increase in OECD area GDP per capita; full tariff liberalization in agriculture and industrial goods could increase global welfare a further 100 billion USD."
The problem with the Philippines is not that we trade, it’s that we don’t trade enough to be able to override our problem of profound inequality. Because whatever benefits the Philippines may have had from trade were prevented from reaching our poor and instead were selfishly gobbled up by our oligarchic elite. US Secretary of State Hillary Clinton was spot-on when she declared that the Philippine problem lies in the fact that "the elite in business and politics basically call the shots, and there’s not much room for someone who’s hardworking, but not connected."
Hence, one sees 40% of Filipino kids below 5 years old being severely undernourished, with an estimated 8.1 million families (around 43% of the population) self-rating themselves as "poor." More objective numbers aren’t better. An ADB study ("Poverty in the Philippines") reported that the number of poor Filipinos increased to 27.6 million. The World Bank found "the overall incidence of poverty" upped to 32.9%.
If we want to uphold human rights, we should encourage greater trade coupled with "solid social policies to redistribute wealth" (to borrow Lamy’s words). As Jagdish Bhagwati, with marvelous common sense, pointed out: "slowly growing or stagnant economies cannot rescue the poor from their poverty."
Reaction from EU Ambassador
Here’s the reaction by Ambassador Guy Ledoux, Head of Delegation of the European Union to an article of mine in BusinessWorld:
Mr. Gatdula argues that ratifying the Rome Statue would not serve the national interest, as the chances of the Philippines making use of the ICC to protect its citizens is minimal, in particular as many host states of Filipino Overseas Workers are not (yet) party to the Rome Statute. This argument misses the wider implications of supporting the only permanent international criminal court. In order to truly reach our common goal of ensuring that perpetrators of heinous crimes are always, without exception, brought to justice, it is crucial to continue working for universal acceptance of the Statute and the Court. On our way, the distribution of justice might at times seem to be uneven, maybe even unfair, but our response to this challenge cannot be less justice, backing away from the great achievements already made. Instead, we must continue down the path we have chosen and intensify our efforts for more justice.
Mr. Gatdula equally argues that while human rights should be "aggressively protected," also the national interests of the Philippines should be upheld. In reality, however, there is no such thing as a trade-off between peace and justice. Peace and stability are bound to fall apart sooner rather than later if the wounds of the past are left to fester.
Debates on whether issues of war and peace take precedence over questions of crime and punishment are not confined to the Philippines. Nor is the ICC, as is often alleged, a place where the West judges the rest. We in Europe know from first hand what is at stake. The story of the International Criminal Tribunal for the former Yugoslavia (ICTY) holds many parallels with the debate which surrounds these days the potential ratification of the Rome Statue by the Philippines. There too, the chief prosecutor was always seen as an agent of foreign powers meddling in the internal affairs of a sovereign nation.
But the lessons to be drawn from the ICTY’s history are, in the end, very clear: it has impressed on national courts and leaders the need for serious legal proceedings. As the ICC acts only as a court of last resort, the primary responsibility for bringing offenders to justice lies with states themselves -- and this is where it should lie. In that respect, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, is a clear sign that the Philippines is committed to justice and moving in the right direction. Since what happens in court is not just about whether or not some individuals end up behind bars, it is about changing a culture of impunity, but beyond that it is about the victims, the ones who bear the scars of the crimes and had suffered the brutality of the criminals.
Jemy Gatdula (in his article "No to the ICC," April 2) admits himself that the ICC is "a good idea," yet claims that it should not be "something the Philippines should be concerning itself with right now." This conclusion is not only unfortunate, but fails to convince.
Mr. Gatdula argues that ratifying the Rome Statue would not serve the national interest, as the chances of the Philippines making use of the ICC to protect its citizens is minimal, in particular as many host states of Filipino Overseas Workers are not (yet) party to the Rome Statute. This argument misses the wider implications of supporting the only permanent international criminal court. In order to truly reach our common goal of ensuring that perpetrators of heinous crimes are always, without exception, brought to justice, it is crucial to continue working for universal acceptance of the Statute and the Court. On our way, the distribution of justice might at times seem to be uneven, maybe even unfair, but our response to this challenge cannot be less justice, backing away from the great achievements already made. Instead, we must continue down the path we have chosen and intensify our efforts for more justice.
Mr. Gatdula equally argues that while human rights should be "aggressively protected," also the national interests of the Philippines should be upheld. In reality, however, there is no such thing as a trade-off between peace and justice. Peace and stability are bound to fall apart sooner rather than later if the wounds of the past are left to fester.
Debates on whether issues of war and peace take precedence over questions of crime and punishment are not confined to the Philippines. Nor is the ICC, as is often alleged, a place where the West judges the rest. We in Europe know from first hand what is at stake. The story of the International Criminal Tribunal for the former Yugoslavia (ICTY) holds many parallels with the debate which surrounds these days the potential ratification of the Rome Statue by the Philippines. There too, the chief prosecutor was always seen as an agent of foreign powers meddling in the internal affairs of a sovereign nation.
But the lessons to be drawn from the ICTY’s history are, in the end, very clear: it has impressed on national courts and leaders the need for serious legal proceedings. As the ICC acts only as a court of last resort, the primary responsibility for bringing offenders to justice lies with states themselves -- and this is where it should lie. In that respect, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, is a clear sign that the Philippines is committed to justice and moving in the right direction. Since what happens in court is not just about whether or not some individuals end up behind bars, it is about changing a culture of impunity, but beyond that it is about the victims, the ones who bear the scars of the crimes and had suffered the brutality of the criminals.
Subscribe to:
Posts (Atom)