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NUMBER 5   JANUARY - JUNE 2006

    THE NEGOTIATIONS OF THE FTAA IN PUEBLA, MEXICO. SOME LEGAL CONSIDERATIONS*
    Jorge WITKER**

    Original Text (Spanish) PDF

    SUMMARY
    I. Introduction. II. Socio-legal variables of the FTAA. III. Institutional legal framework. IV. Dynamics of the negotiation topics. V. FTAA and a development agenda.


    I. INTRODUCTION

    The Free Trade Area of the Americas has entered its final phase of negotiations without the regional society assuming properly the seriousness of the compromise such project entails, that develops within an historical context of paralysis of the globalizing neoliberal tendency. The last failure of the World Trade Organization in Cancún, Mexico is a referent that will strongly influence the FTAA negotiations.1

    The FTAA shall be approached analytically in a triple spatial scenario. That is, its disciplines shall operate at local, national, and regional-international levels.

    The stagnation of the American economy, as a dynamic core of the world globalization, is a sign that may impact the FTAA negotiation in two ways. As a menace to the protectionist sectors of the Congress of the United States, and as a legitimate excuse of countries such as Argentina, Brazil, Ecuador and Venezuela not to open their markets, especially agricultural, to the regional competency, which by the way, were already materialized in the failed Ministerial Meeting of the WTO the last September.

    The present article intends to frame the negotiation context of the FTAA in socio-legal regional variables; establish legal aspects in force in the multiple members of the Latin American countries; briefly analyze the topics of negotiation, and then underline some undesirable effects regarding economic and social rights, that have been tangible in the Mexican experience ten years after the North America Free Trade Agreement (NAFTA) came into force.2

    II. SOCIO-LEGAL VARIABLES OF THE FTAA

    The American continent of the twenty first century is characterized by a demanding public opinion, that is active and participative. The participation of the social actors and the awareness of the economic actors is a strategic factor that, directly or indirectly, will impact the final negotiations of the FTAA. Therefore, we see more often the growing presence and participation, through multiple interests of non-state actors, in the formulation of policies towards the region: farmers and fabricants, commercial firms, workers, consumers, ecologist groups, human rights and civil rights defenders, as well as institutions, foundations, mass media, among others, which contend to affect the policies in a pragmatic context that is easily molded.3

    Another aspect to take into account is the need of taking a close look at the contents of the nine themes that build the negotiation agenda of the FTAA. In fact, topics like access to markets, agriculture, services, investment, government procurement, intellectual property, dispute settlements, dumping, subsidies, competency policy, go through a deep questioning in that they comprise the policies of development of the thirty and so Latin American countries.

    Such decodification of this contents raise certain questions in the civil society questions such as: What do they negotiate? With which authority do they negotiate? Who do they represent? Which rules of origin ere evaluated per sector? Where do they render accounts? What kind of firms were consulted? Which regional reserves are negotiated regarding patents for drugs and medications of public health? Are there any limits to speculative investment and promotion to productive investment that generates employment and new technologies? Which issues could have plurilateral character and which multilateral profile?4

    The answers to these and other questions is what we call decodification of the content of the negotiations taking place during these months in the negotiations in Puebla, Mexico.

    The latter is a relevant task, since the official discourse intends to clarify doubts and reluctances through a dualistic and ambiguous speech. On the one hand, it states that the FTAA is just a free trade agreement, to which nothing can be demanded but making easier the free exchange of goods and services. This way, issues like poverty, education and employment do not represent a big deal to international corporations, and education and health, only matter if they are objects of investments to services and governmental purchases.

    In the other hand, such issues shall be of the competence of the governments that are being deprived —though reductions in customs duties— of the resources to attack marginalization and unemployment. With this respect, it is interesting to point out the decision of the government of Chile, of compensating the minor customs revenues, which might cost it the bilateral free trade agreement with the United States with a raise of about 18 to 19 of the value added tax applied to all the consumers of such country. This is a good example of financial populism to support the businessmen of Chile.

    A third element that complements the others is what some negotiators view like "preparing the negotiation for the hemispheric free trade". In fact, to some officers and analysts, the subscription of free trade agreements is an exercise that is self legitimate per se, since the free trade has as consequences the economic growth and the progress in the level of life. Therefore, others ask themselves whether there is an historical time to wait for the benefits of the free trade and we shall leave our societies on the hands of the market forces.

    Do not the more developed countries have the duty or obligation of establishing within the FTAA a minimum social agenda with compensation funds of aid to, precisely, prepare the region to exercise and practice free trade under more symmetric and equal terms? Would not the latter be a locally feasible strategy to match the game field with the local economic agents?5

    III. INSTITUTIONAL LEGAL FRAMEWORK

    The mosaic of legal standards of the components of the future FTAA launches some hypotheses. For example, shall Central America negotiate as States Members or as States Parties of the Central American Common Market? The Common market of the South, composed by four countries: Argentina, Brazil, Paraguay and Uruguay shall negotiate as a block or as States parties? Regarding the countries of NAFTA, although they can do it as independent countries, since there is no supranational authority that represents them, they shall care the functionality of the most favored nation clause, in order to make the compromises of the FTAA compatible with NAFTA’s. This entails defining a parameter on the political identity of the components of the future FTAA, in the sense of accepting which existent groups or blocks at the sub-regional level, are found more within intergovernmental associations or groups without supranational or supra-state organs like the European Union’s.

    Another variable to consider is each country’s membership to the World Trade Organization, where there still remain discriminatory elements favorable to developing countries, included in the Charter of the GATT 44 and 94. Here it shall be evaluated the incorporation of the FTAA within the dispositions of article XXIV of the GATT as well as typifying the legal character of the FTAA, regarding the four phases: free trade zone, customs unions, common market, economic union included there.6

    This way, the multiple memberships that uphold the Latin American countries set complex legal questions. In fact, all the regional blocks in force (NAFTA-Mercosur-CAN, ALADI, Caricom, etc.) act under article XXIV of the General Agreement on Taxes and Tariffs, which allows a variety of hypotheses: a) free trade zone or customs union conformed according to article XXIV GATT; b) interim agreement towards the formation of a customs union or free trade zone according to article XXIV GATT, and c) a preferential zone between developing countries based on "authorization clause", included in the same article XXIV (South-South trade).

    These three hypotheses, that are present in the region, shall agree with the principle of the most favored nation clause; the substantial or essential of the reciprocal regional trade and complementarily with the extended or limited extension of the customs duties liberations. That is, applying the most favored nation clause "within or outside the blocks of the FTAA".

    With respect to the northern partners, the questions are not less. For example, will the United States continue with the position that the free trade has nothing to do with the labor relationship and with the environmental protection? Will the FTAA continue to be considered in American Law as a congressional agreement in which the implementation law, leaves to the American Congress the last word regarding specific obligations about the 33 other countries in the region? On the other hand, as the Trade Promotion Authorization of the Congress establishes to the Executive: will there be also another ten or more million dollar fund for the eventual loss of employment that will suffer the countries of the region as a consequence of the customs duties reduction and eventual closing of firms that an asymmetric and excluding FTAA may cause?

    Finally and as legal institutional corollary and given the structural difference between the Latin American rights of romantic root and monist profile in the International Law in force, and the Anglo Saxon rights with judicial background and self executing (Implementation ACT), the FTAA should typify its nature and identity with respect to the orientation of its disciplines or the eventual decisions it directly takes. This way, the FTAA being a form of cooperation and integration might take different connotation a: a) Framework Agreement that designs parameters and principles; b) programmatic clauses that define midterm and long term objectives; c) programmatic clauses that define immediate contents like customs duties’ reductions established in function of specific financial funds (Agriculture, small and middle firms, etc.), consultation procedures to settle and arbitrate disputes, etc.7

    Finally, with the precedent elements we shall define the type of institution or organism the FTAA will be ¿a supranational organism or an intergovernmental one? In fact, should FTAA become a supranational organization —possibility that may be tangible only at a Latin American level— the States members can deposit in the organization created by the preferences agreement, the attribution of preserving preferential agreements or granting benefits unilaterally to third States.

    On the other hand, if the FTAA is created as a new intergovernmental organization —possible option because the US, by principle and legal tradition rejects any sign of supranationality— the countries members of the Agreement keep their sovereign powers with respect to third States, with the possibility of granting advantages or preferences to third parties, logically respecting the place each country has in the context of the World Trade Organization.8

    Given the unipolar experience practiced by the US, both in the UN Security Council (Iraq) as in the Fifth Ministerial Meeting of the WTO (Mexico), the legal fate of the FTAA is viewed as basically cooperative and intergovernmental.

    In fact, the institutional framework designed in chapter XXI of the FTAA Project, establishes an institutional framework of an intergovernmental profile when creating the Council, conformed by the trade ministers of each party, an Executive Committee composed by the deputy ministers or secretaries of trade, the Committees and finally, the Secretary of the FTAA.

    The Council shall have the following functions:

    1. Evaluate periodically the execution and results of the agreement;

    2. Cognizance of any other issue that may affect the fulfillment of the Agreement.

    3. Modify the fulfillment of the Agreement’s objectives: the plans of tariff elimination, the rules of origin of Chapter XX of specific nature, the appendix on investment, service and governmental procurement.

    On the other hand, the Executive Committee replaces the Council’s functions during the intervals and watches over the fulfillment and execution of the dispositions of the Agreement, supervising the operation of the Secretary and providing administrative, countable and financial information to the Council.

    The Committees are organs related to the chapters and they shall work to clarify enquiries regarding the specific objectives of its competency and are subordinated to procedural norms to the Executive Committee.

    A Consultant Committee of the Civil Society is a novelty unexpected to many, but that as it became part of the institutional framework, it opens perspectives to the participation of businessmen, unions, NGOs and social organizations, and/or academic institutions.9

    Likewise, the organ of Dispute Settlement, composed by all the parties of the Executive Committee, and of permanent character are in charge of managing two entities created for this purpose. Neutral Group or Panel (first entity) and Organ of Appeal (second entity).

    IV. DYNAMICS OF THE NEGOTIATION TOPICS

    The negotiation topics are included in a context of North-South negotiations, that, as we shall see, do not only cover the so-called "border topics" —access to markets and free flux of merchandise— but those that have impact the domestic economic organization of the countries, and in general, in the way of making business (investment, services, intellectual property, government procurement).

    Before describing in general the FTAA Agenda, it is necessary to examine the genuine principles and conditions that orient the negotiations and that before the Ministerial Meeting of Miami (November 2003) they seemed irremovable. In fact, we shall point out the following:

    a) The decisions shall be made by consensus, not by majority; b) agreements shall be made only once all the issues in the agenda are assented; c) the product coverage shall be the 85% of the products traded today between the participant countries; d) the FTAA shall coexist with sub-regional agreements of the same generation; e) the agreements shall converge with the regulations of the World Trade Organization, and f) every right and obligation shall be fulfilled by all the participant countries.

    These conditionals prove that each country is sovereign to decide to adhere to the FTAA and that every acceptation shall be total and not partial or biased. Nonetheless, the Meeting of Miami, gathered these principles and thanks to Brazil’s position, gradualness and partiality profiles were incorporated, accepting that in order to the sensitive topics regarding public policies, plurilateral agreements were accepted, in coexistence with the multilateral ones ruled by the single undertaking principle.

    The complex character of these negotiations derives of the asymmetries between the thirty four participants — example to these respect are: 1. Amount of the countries’ PIB to year 2000: NAFTA 11 trillion dollars; Caricom 28 billions; Central American Common Market: 56 billons; Andean Community 277 billons; Mercosur, 842 billons.10

    Another difference to point out, is the availability of customs duties burden in the total income of the member countries. In Mercosur the percentage is 6, in the Andean Community, 9; in the Central American Common Market, it reaches 19, and in the Caricom nearly 44%.11

    The topics of the agenda begin with the access of the goods that are negotiated with an 85% within the American region. Here, it is intended to agree tax relief to tariffs in pre-established deadlines, which shall begin in the current tariff levels where the new account of disparities emerge. This way, the average tariffs of the USA, Canada and Mexico do not exceed the 4%, although there are important "tariff peaks" that in some products reach the 300%. In the opposite, Latin America with the exception of Chile and Mexico, the average tariff rate is superior to 18%.12

    But in this access to the market, the non tariff barriers (norms, restrictions, rules of origin, antidumping, market rules, subsides, etc.) constitute frequent protectionist practices non eradicated by the multilateral disciplines. To this respect, Mexico’s experience in products such as tuna, sugar, avocado, cement and others, reveals that the free trade agreements work only partially, according to the interests in the game.

    Regarding agriculture products, the presence of numerous subsidies makes a competitive business practice impossible for the regional producers, which above all have to bear the absence of technologic support, innovation of seeds and fertilizers, and an inefficient expensive commercialization. This is a crucial topic to countries like Argentina, Brazil, Colombia and Mexico itself, which has gone through a dualistic effect of moderate consequences regarding production of grains, marginalization, and unemployment. Here, it is indispensable to take into consideration compensation funds, integrated programs of agriculture extension, characterized by a minimum food self-sufficiency, centered in the national markets and autochthonous consumptions.13

    Another sensitive aspect in the access of merchandise to markets is that which refers to rules of origin in which the regional producers shall claim to establish compromises of added value and regional content in order to qualify the source of the merchandise. The generalized method of tariff leap, so defended by the corporative assemblers and maquilas, is not a factor that leads to the industrial regional development, for it privileges labor as the only input to use, without affecting the rest of the national or regional productive chains. This factor, nowadays, with the powerful presence of China, do not facilitate exportations exclusively based on cheap labor.14

    In this same dimension of exchange of merchandise, the imposing practices of antidumping measures have not deserved special attention from the major partners. It would be recommended to set more objective criteria to overcome arbitrariness with which the developed countries project their domestic markets, disencouraging the efficient productions, as it has been demonstrated in products such as steel, textiles and others, affecting countries like Mexico and Brazil. With this respect in the FTAA negotiations, this sensitive issue is turning towards the established mechanisms in the World Trade Organization.15

    Regarding the sensitive topics that go further than the access of merchandise to markets, the negotiations are dealing with what some authors call "the hard core" of the negotiations.16

    This hard core is composed by investment, services, the right of intellectual property, mechanisms of dispute settlement, trade rules (antidumping, safeguards, compensatory measures), e-commerce, competition and government procurement, work clause, and environment.17

    The following thoughts are oriented to offer a general view of these topics and their relationship with the so-called Latin American development agenda.18

    We shall point out that regarding these strategic issues, there are two perceptions within the region; of those who seek an WTO-like negotiation, and those who prefer a NAFTA-like agenda, depending on the depth of the compromises to acquire.19

    1. Investment

    As it is known, contemporary international trade is based on merchandise, services and investment, of which derives that the border topics (taxes, non tariff barriers, health regulations and phytosanitary, etc.) lack efficiency, if they are not related to investment, rules of origin, intellectual property, financial services and others.

    Therefore, investment and investors are strategic factors that claim in the FTAA a "full protection and security" treatment as well as maximum freedom to their activities. On the other hand, the development agenda although it shares the presence of the investments as leading to regional economic growth, it does not perceive so favorably this freedom claimed in the various world forum, such as those of WTO and OCDE, including the failed Investment Multilateral Agreement (IMA).20

    In the FTAA the topic has not accomplished consensus at all. This way, the USA and Canada state that the investment rules shall contain not only direct investment but also indirect ones, or portfolio investments. Several countries oppose this petition (Brazil, Argentina) that sustain that such rules shall limit to Direct Foreign Investment (DFI).

    Additionally, what everyone agrees about is that the FTAA shall warrantee the legal certainty to direct investments, which shall be treated with transparency and legality with respect to expropriations, repatriations, performance requirements, national treatment and most favorable nation treatment, dispute settlement mechanisms, which are issues included both in NAFTA as in the FTA-USA-Chile recently approved.21

    2. Services

    The chapter related to services represents another tension between the "development agenda" and the interest of the countries that export services (United States and Canada). We shall point out that the percentage of services in the GDP within the region surpasses the 60%, which shows the great importance of such sector in the region’s economy.22

    There have been two basic topics discussed in the negotiations referring to services: a) The inclusion or exclusion of these services in positive and negative lists. The Latin American countries in general rather negotiate in positive lists of services, while Canada and the US propose negative lists. b) With respect to the fulfillment of the GATS Agreement (Agreement on Services regarding the WTO) in the FTAA, a group of countries accepts the methodology of the four modules of rendering of services: across the borders; rendering of services outside the country; commercial presence, and temporary movements, is incorporated to the respective chapter.23

    On the other hand, the US, Mexico and Chile and the Caribbean countries, defend the idea that the commercial presence in services is treated in the investment chapter, subject to the norms of total protection and capital freedom.24

    The chapter is complemented with regulations regarding telecommunications and financial services, surpassing the disciplines agreed in NAFTA.25

    3. Intellectual Property Law

    Intellectual property that includes industrial property and author’s rights, acquires in the time of knowledge, the character of strategic input to the region’s economies.

    The FTAA in this chapter relates to the Paris-Berne, the ADPIC of the WTO and chapter XVII of NAFTA. Under these disciplines three fundamental principles are reiterated: National Treatment, Most Favorable Nation Treatment and Transparency.

    Logically, along with the protection of intellectual property, there are two perceptions that derive of precedents of the WTO itself. To the developed countries, this protection intends to protect economic investment of the firms, without taking in consideration the public or social order.26

    Luckily, the draft of this chapter of the FTAA harmonizes and diminishes such pragmatic statement and regarding this, article 2.1 points out:

      The protection and fulfillment of the intellectual property rights that this chapter includes, shall contribute to the promotion of technologic innovation and to the transfer and diffusion of technology in the Americas, in reciprocal profit of the producers and the users of technologic knowledge in order to contribute to the social and economic well-being as well as the balance of rights and duties.

    This project, together with the transfer of technology in favor of developing countries show a slight progress, regarding NAFTA’s Chapter XVII. Moreover, the dominion names, the appellations controllées, the connected rights, the moral clause in the patents, the traditional knowledge and access to genetic resources, models of profit, regulation of plant variety, warn regardless of the "parentheses" of the third draft, that the negotiations are flowing the right way, at least at a formal text level of the project of the FTAA treaty.27

    4. Dispute settlement mechanisms

    This chapter refers to he possible conflicts and disputes that may come up when interpreting or fulfilling the treaty’s dispositions, within the territory of each of the thirty four countries parties of the FTAA. This way, when a Party considers that a measure in force, or proposed by the other Party, is or could be incompatible with the FTAA’s obligations and may cause nullification or undermining of the benefits that might have been expected to receive in its application, it has the right to activate the mechanisms of the chapter.

    Under the principle of cooperation, it is unacceptable to take measures or retaliations without any consultation, unless the measures appointed in the chapter had been exhausted.

    The consultations, the urgency cases and the creation of neutral groups, the lists of arbitrators, the acceptance of the Code of Conduct and procedural rules, are aspects developed in the chapter.

    The institutional framework under the supervision of the FTAA’s Secretary, is composed by an executive organ of dispute settlement and an organ of appeal.

    Finally, in subjects where the contending parties judge the organs of the WTO are competent, once the forum is chosen, there shall not be possible to activate these mechanisms included in Chapter XXIII of the FTAA that we have summarized above.28

    5. Competency politics

    The draft of chapter XIX of the FTAA refers to those disciplines that avoid or sanction the uncompetitive practices, both to State firms as private agents.

    The competition and concurrence are two factors that influence and are connected with other chapters such as investment and government procurement, so that without avoiding and preventing unfair competition practices, the deregulations and openings shall have a negative impact in the markets.

    In fact, the uncompetitive behavior covered here are —besides the state monopolies legally designed that shall operate with economic private rationality criteria— agreements between competitors with effects on prices; the abuses of firms or groups of firms with ownership function in a relevant market, and the concentrations, fusions or purchases with uncompetitive effects that affect the economic efficiency and the consumer’s well-being.

    The basic principles that cover this chapter draft are: transparency, right to a trial, protection to confidentiality, cooperation between governments, conform the consents of the future members of the FTAA, which shall update and issue national laws of competency that operate with these principles agreed in the FTAA.29

    Finally, we shall point out that the Canada’s and Chile’s thesis to regulate the unfair practices together with the restrictive practices, at the level of domestic legislation of each country, have not prospered within the FTAA, which has followed the biased scheme of separating them in different chapters, although they both fit into the generic concept of uncompetitive practices with extraterritorial effects.30

    6. Rules of commerce (antidumping, safeguards and compensatory measures)

    One of the most frequent non tariff barriers in the contemporary international trade are the unfair practices such as dumping, subsidies, and the use and abuse of safeguard measures.31

    Regarding the dumping practice, the chapter does not offer new elements about the WTO Antidumping Agreement. On the other hand, the US has reiterated that in such regulation, the FTAA cannot modify its present legislation, that as we know, derives from Section 731 of the 1930 Trade Law.32

    The compensatory measures refer to tariff surtaxes that levy importations that have received subsidies or subventions in their home countries. Here, the chapter refers to the WTO Agreement on Subventions and Compensatory Rights without promoting significant innovations at a regional level.

    The safeguard measures are covered by a special chapter (XIV) and represent also tariff surtaxes and/or quantitative restrictions, that apply to sudden and unexpected importations that, given their volume or quantity, provoke serious damage or menace of serious damage to a branch of the production of the country of destination. Provisional safeguards are considered, by specific sectors, and global ones that may be regulated by the WTO Safeguards Agreement.33

    7. Governmental procurement

    The governmental procurement has been conceived as an instrument used by various countries as a stimulus to national producers in priority sectors. Since the creation of the WTO, industrialized countries have claimed for the promotion of this restriction and open such market to the international competency.

    In the FTAA, once again, this claim is issued, although the major partners keep various restrictions in their own markets. Brazil has a Federal Law that establishes basic reserves to the Brazilian products, and the US regulates such sector with three laws in force, despite Chapter X of the NAFTA: Buy American, Balance of Payment Program and Small Business Act. These laws privilege small and middle firms, granting the bidding organs of autonomy, with which they nullify the prescriptions covered in the international agreements.34

    Here we can see all kinds of reserves, and the consensus is far due to the contradiction of interests and the social impact of a sudden openness not gradual. As part of the hard core problems of the FTAA, the most feasible thing is for this chapter to be qualified as a plurilateral agreement whose content is not subscribed by everyone.

    8. E-commerce

    The use and development of the technologies of information and communications have lead to an important change in the commercial field by redefining the traditional dichotomy of the national and international commerce. Today we talk about an electronic commerce, digital or virtual. This way, the reduction of time and of distance have dynamized the markets and changed the entrepreneurial culture in every way.35

    The FTAA is not strange to these processes since the chapters of Cross-border Commerce of Services and the area of Financial Services, demand that the region establishes minimum legal criteria about this.

    The objective is to facilitate the e-commerce, without bureaucratic regulations, to the electronic supply of services, nor customs duties, under the principles of non-discrimination for the digital products.

    The cooperation in sharing information and experience on laws, regulations and programs in e-commerce, is an established intention in the FTAA, providing that the FTA-USA-Chile already include this issue in chapter XV, which is strategic to the globalizing commerce at present.36

    V. FTAA AND A DEVELOPMENT AGENDA

    The sense and complexity of the topics briefly described, push us to evaluate this project of hemispheric integration in a context that overcomes the simple flux of commerce and investment. Based on NAFTA’s experience, it is necessary to set a broad perspective without prejudices in order to foresee the intro and extra hemispheric possible events.37

    There is consensus that the predominant standard in Latin America is framed within an open regionalism, expressed in different commercial sub-regional agreements and blocks.38

    The constant variable in all of them, except the NAFTA, is that they emphasize the disciplines in the border topics, fluctuating between unfulfilled free trade zones and imperfect customs unions.39

    NAFTA is the first market trilateral instrument that by integrating North-South negotiations, establishes disciplines that are hardly discussed in the WTO. That is the so-called hard core, that, as we saw above, articulates and strengthens compromises difficult to fulfill, especially in Latin American countries, in which the State continues to play a strategic role in the regional development.40

    In fact, the FTAA is a challenge, further than the geo-economic and geo-politic impacts, to the regional development. In other words, the FTAA, as a risk and a possibility, compels, within the open regionalism context, to the definition or redefinition of the Latin American models of development, import substitution and national development, that were present until the eighties. This way, the role of the State as inductor of development, the margins of industrial policies partly based on the governmental procurement and the governmental protections to the small and middle firms, are issues on which the FTAA shall have a significant impact.41

    For this reason, it is essential that in the context of open regionalism in force in the continent, the countries elaborate a minimum development agenda, that, without exacerbated protectionisms, balances the costs-benefits of a FTAA that, harmonizing the asymmetric socio-economic indicators of its members, copes to create the employment and firms that our societies vehemently claimed.

    An agenda of minimum socio-economic development shall contain some of the points mentioned as follows:

    1. Fluid and stable access to regional products to the largest market of the planet.

    2. Legal encouragement and certainty to the productive foreign investments.

    3. Reserve of public policies to encourage education, science and technology to the region.

    4. Establish exclusive lists of deregulation and liberation of services, avoiding technological asymmetries to increase unemployment in the region.

    5. Save the agricultural sectors to the national producers, as long as the countries from the North do not eliminate the subsidies to their agricultural productions.

    6. Defend the natural resources from irrational exploitations that affect the environment.

    7. Creation of a specific space of negotiations about labor and social topics, specially the fulfillment of all the international human rights instruments, including the economic and social rights.

    8. Adoption of a social clause that compels the States parties to respect and fulfill the fundamental regulations of the International Labor Organization (ILO).

    9. Adoption of measures to warrantee countries to have the autonomies and the right to regulate the speculative capital flux in order to protect their economies against financial instability.

    10. Accomplishment of gradual and flexible negotiations about commercial liberalization with longer deadlines for the developing and poorest economies.

    11. Eradication in the agreements of any limitation and/or conditioning to the implantation of policies of national development and the adoption of legislations that allow the countries to protect (temporally or definitely) their most sensitive areas (mainly in chapters regarding investment, services liberation, intellectual property); access to patents and intellectual property in basic areas to the implantation of essential services to the population (health, energy, agriculture, etc.) and longer deadlines in the limitation of patents for the less developed countries.

    12. Garantizar a los Estados nacionales la adopción de mecanismos y normas que regulen la conducta empresarial para proteger los intereses económicos y sociales.

    13. Creation of legal mechanisms of environmental protection, that impede the destructive action of the large economic groups in detriment of the environment.

    As a consequence, the FTAA shall reestablish the schemes centered exclusively in the free trade and propose broader focuses without ignoring the accomplishments of the productive and technologic interdependence are included in national projects that encourage the economic development with employment that place the respect and relevance of the economic and social rights, in contexts subject to globalization and not of mere objects, as a reflection of a strange globality imposed by the cores of the world power.42

    Notes
    * Translated by Ingrid Berlanga Vasile.
    **Researcher at the Legal Research Institute and professor of Economic Law at the National Autonomous University of Mexico.
    1 As a positive balance, however, we shall mention the creation of the Group of the 21 that, since 1976 it was not evidenced at a three-continent level, with Brazil, India, China and others.
    2 Evaluation made by the Senate of Mexico pictured in two volumes, Mexico, 2000.
    3 Otro mundo es posible, Santiago de Chile, Le Monde Diplomatique-Editorial Aún creemos en los sueños, 2001.
    4 Ortega Riquelme, Eugenio, La globalización en la encrucijada, Santiago de Chile, LOM, 2002.
    5 The World Bank starts to acknowledge the excesses of the Washington Consensus and already sets into question the dogmatic privatization for the developing countries.
    6 Himmer Waldemar and Prager Dietmar, GATT, ALADI Y NAFTA, Buenos Aires, Ciudad Argentina, 1998, p. 92.
    7 Ibidem, pp. 102 and 107.
    8 Cretella Neto, José, Direito Processual Na Organização Mundial do Comercio, Río de Janeiro, Forense, 2003, p. 53.
    9 Part of the pressure of the NGOs’ protests and those of the "Globalifobics" resulted in the creation of the Consultant Committee of Society in the FTAA.
    10 Bauman, Renato "ALCA-comercio interlatinoamericano", in ALCA. Un debate sobre integración, México, UNAM, 2004, p. 262.
    11 Ibidem, p. 262.
    12 T. Cohen, Global Political Economy. Theory and Practice, New York, Longman, 2000, p. 276.
    13 Calva, José Luis, México más allá del neoliberalismo, Mexico, Plaza & Janes, 2000.
    14 Witker, Jorge, Las reglas de origen en los tratados de libre comercio, Chile, Lexi-Nexis, 2002.
    15 Smith, Cintia Pussetto, "La política comercial de Estados Unidos. Una contradicción entre comercio libre y comercio justo", Comercio Exterior, Mexico, vol. 53, no. 3, 2003, p. 271.
    16 Isaacs, A., "Trade Promotion Authority: A Fast Track to Further Harm?", 2002, http://www.adaction.org./
    17 Idem.
    18 Witker, Jorge, "La agenda social del ALCA", Hacia un nuevo derecho del trabajo, Mexico, UNAM, 2003, p. 57.
    19 Gruben, W., "Was NAFTA behind Mexico’s high maquila growth?", Economic and Financial Review, 3rd trimester 2001, Federal Reserve Bank of Dallas, Texas, 2001.
    20 Helleiner, Eric, "From Bretton Wood to Global Finance: A World Turns upside down", in Stubbs, Richard Yunderhill and Geoffrey R. D. (eds.), Political Economy and the Changing Global Order, London, Mac Millan, 1994.
    21 See Chapter XI of NAFTA and Chapter X of the Bilateral Agreement Chile-USA.
    22 Sennes, Ricardo et al., "El ALCA en el marco de la nueva economía", in ALCA. Un debate sobre la integración, Mexico, UNAM, 2003, p. 322.
    23 Ibidem, p. 324.
    24 Services and investments are aspects that shall be ruled jointly, since in NAFTA the services of international cargo conveyance by road are not allowed to Mexico by the US, and on the other hand, the latter demands free investment to create firms of totally American transportation in order to cover Mexican internal freight.
    25 The FTAA represents a broader openness in telecommunications that what NAFTA stipulates.
    26 Orozco Contreras, Marcela, "Propiedad intelectual", Resultados del Tratado de Libre Comercio de América del Norte en México, Mexico, Red Mexicana de Acción frente al Libre Comercio, 2001, p. 123.
    27 Becerra Ramírez, Manuel, "Las nuevas normas sobre PI en el continente americano. Comentarios al proyecto sobe Propiedad Intelectual del ALCA", in ALCA. Un debate sobre la integración, México, UNAM, 2003, p. 175.
    28 Cruz Miramontes, Rodolfo, El TLC: controversias, soluciones y otros temas conexos, México, McGraw-Hill, 1997.
    29 Witker, Jorge, El derecho de la competencia económica en el TLCAN, Mexico, Porrúa, UNAM, 2003.
    30 Idem.
    31 Barbosa, Antonio, Barreiras aos produtos, serviços e investimentos do Brasil nos Estados Unidos, São Paulo, Edições Aduaneiras LTDA, 2002, p. 76.
    32 Idem.
    33 Idem.
    34 Baumann, Renato, "ALCA-Comercio interlatinoamericano: oposición o complementariedad", cit., p. 269.
    35 Rico Carrillo, Mariliana, Comercio electrónico, Internet y derecho, Venezuela, Legis, 2003, pp. 43 and subsequents.
    36 Idem.
    37 In the intro we shall evaluate the real impact of access to the US market, and in the extra, the region’s compromises (Chile, Mexico, Mercosur, etc.) with the European Union.
    38 Oropeza, Arturo, México-Mercosur: Un nuevo diálogo para la integración, Mexico, UNAM, 2002.
    39 Idem.
    40 These topics and the lack of fulfillment of the developed countries of what they agreed in Doha, about eradicating the agricultures subsidies, were the causes of the failure of the Multilateral Round of Negotiations in Cancún, Mexico, 2003.
    41 See Kaplan, Marcos, "El ALCA en la globalización", in ALCA. Un debate sobre la integración, México, UNAM, 2003.
    42 See ECLAC, "La inversión extranjera en América Latina y el Caribe (LC/G2123-P), Santiago de Chile, January 2001.

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