The World Trade Organization: Do we or don’t we; The Legal Issues!?

February 6, 2018

On January 18 2018 an historical admission was made and reliably reported upon in a leading Bahamian daily. It was an historic admission with legal implications with little equal. Neil Hartnell, Tribune Business Editor, quoted the Lead negotiator for the Bahamas’ WTO (World Trade organization) negotiating team as asserting that the Government’s ability to protect Bahamian companies from foreign competition was “long gone.’ It was a stark admission having regard for and its source and its constitutional, legal, social and political implications. The Lead negotiator, by way of a detailed interview, further admonished businesses to think bigger for survival. Businesses were put on notice to take a more” global look at how you do business”. Look beyond this nations borders they were told and “sell to the world “. The ever increasing online spending habits of the Bahamian people were proffered as the reason for this new thinking, a trend the lead negotiator saw as irreversible. Thus local businesses could no longer be protected with high tariffs, laws, regulations and other trade barriers. Ominously he further opined that this highlighted why the Bahamas’ age old reliance on protectionist measures to safeguard local companies and jobs will no longer work in an increasingly integrated and globalised world, regardless of whether the Bahamas joins the WTO or not. It is clear that these confidently expressed opinions of Mr. Winder reverberate and coincide with the views of his clients…the Government of the Commonwealth of the Bahamas. We believe that as we now consider the width and breadth of his views as expressed. Clearly this far reaching Policy statement is worthy of closer analysis.

The role of the “Bahamian State” in a globalised world is a complex one due largely to the infancy of the Bahamas of some 51 years, its protected economy, its racial heritage and the constitutional constraints attendant upon ceding the decision making of certain important economic sectors to an unelected international body. The Bahamian State exists because a group of people known as Bahamians operate with international recognition as an independent country with a population, common languages and a defined and distinct territory. By Article 1 of the Bahamian Constitution the Bahamas is declared as a sovereign democratic State. By Article 2 of that Constitution the Supreme Law of the Bahamas is, in addition, stated to be the Constitution of the Bahamas. Most importantly the Parliament of the Bahamas is solely charged with the”peace order and good government” of the Bahamas. It is otherwise known as the P.O.G.G clause of the Constitution in that it reposes upon legislators Parliament sole authority to pass laws and/ or impose policies for the peace order and good governance of the Bahamas. The Privy Council ruled in Ibrelebbe v. The Queen (1964) that the words “peace order and good government” “connote…the widest law making powers appropriate to a sovereign.” Those powers are not limited to the extent that a third party purports, without the approval of Parliament, to delimit or limit the policy space within which the sovereign.” nation can operate. Neither is that sovereign space limited, prospectively, by the activities or stunning pronouncements of unelected technocrats (our WTO negotiators) or an earlier Parliament. It follows that any embrace of the WTO must, by constitutional definition’ be sanctioned by Parliamentary enactment, that is to say, the people of the Commonwealth of the Bahamas, an enactment which may be revisited later by another sovereign Parliament.. How then do we draw the conclusion that the statements by our WTO lead negotiator were informative but unfortunate?

THE GREAT ISSUES: The WTO is the only International organization which recommends and addresses the rules and procedures which police International Trade between nation states. It is located in Geneva Switzerland. Practically speaking it is a forum for governments worldwide to negotiate trade Agreements. It is a place for them to settle trade disputes. Ideally it operates as the “court” of last resort where member governments tries to sort out the trade problems they have with each other. Two Areas are of concern A) The Model B) Dispute resolution.

A. The Model

Dr Ha Joon Chang of Cambridge University by his book “Kicking away the Ladder” is very instructive here. He offers the argument that there is tremendous pressure on small and developing states to adopt the set of policies and institutions that the WTO would have small developing countries adopt to foster economic development. He proffers that vto achieve that required uniformity in that new born and not so developed states are constrained to fall in line. Chang identifies in his book the view that the WTO advances “the one size fits all” mode of development and overlooks the differences in economic strength, size, industry, history and population of the myriad of different countries who trade daily in international markets. In short Chang suggests that the WTO does not simply regulate international trade, it also actively promotes global trade, a form of trade which favors developed over developing countries. He directly contends that WTO rules and dispute resolution techniques are contorted to advance global commerce at the expense of genuine efforts to promote local economic development and policies that powers countries in the direction of self reliance for developing countries. This then begs the question as to the preparedness of the Bahamas to join such trading regime.

B) The Supremacy of Parliament and Dispute Resolution.

The question is important as there is a view that the WTO undermines Parliament and our Judiciary. WTO rules undermine democracy, it is argued, and shrink the policy space within which Governments must operate, with violations being disciplined with harsh penalties. Closed tribunals meet to determine the disputes between member states and the decisions of these non state “Tribunals” are final in their effect thereby precluding the resolutions of Civil /Trade disputes in the courts of member states. Once a commitment is made to join the WTO it is difficult to reverse or appeal these decisions. In these circumstances how can it be said that the POGG clause of the Constitution offers the protections it is mandated to protect..? “The reality is,” Mr. Winder is quoted as saying,” We can no longer survive just selling to Bahamians. We have to sell to the world if we are to survive and move forward.” Our final thought is, can the Government afford itself the luxury of joining an International body which denies Parliament’s right to provide for the” peace order and good governance “of the Bahamas?

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