International development law and Preferential Trade Agreements involving developing countries
User’s Guide to Poverty and Social Impact Analysis (PSIA) and toolkits in the assessment of trade agreements.9 Other approaches to evaluating trade agreements include those seeking to establish an analytical framework from the principle of justice.10 Garcia, for example, establishes a justice framework for the analysis of trade agreements in addressing the problems of social and economic inequalities.11 There are significant differences between such benchmark-based approaches and the legal approach taken here. First, the approach of benchmarks as monitoring mechanisms primarily elicits an economic/quantitative analysis; and serves as a political criterion. In this chapter the stand-point being developed is set mainly within legal parameters. Thus, a legal stand-point, if validly sustained, can have more consequences, as opposed to a political criterion. Second, the benchmark approach is aimed at gauging whether trade agreements serve as development tools. As such it functions mainly as a standard. On the other hand, the legal stand-point advanced here is multi-functional. It aims at evaluating compatibility with IDL; and provides a standard for PTAs in terms of development objectives. In essence, it aims at setting the ground work which would enable demonstrating how development can and should drive international trade. Finally, the benchmark approach is set against the criteria of sustainable development and assumes that development objectives are necessarily best served by integrating them in PTAs to the exclusion of all other considerations. There are several reasons that challenge this assumption that both trade and development objectives are best optimised through their integration in one PTA. First, although trade liberalisation in such PTAs is negotiated with some degree of acknowledged asymmetry in so far as reciprocity is concerned, given the development aspects of the agreements, this asymmetry in favour of the developing country may be affected – indeed undermined – by the prospects of ‘development promises’. Second, the conflation of trade with development carries with it the danger of orientating development to international trade – in particular engendering a preoccupation for integrating the developing economy into the ITS, with the domestic development reduced as an appendage. Third, whereas the trade liberalisation aspects of the PTAs may be subject to enforceable multilateral trade disciplines (namely WTO disciplines); generally the international disciplines pertaining to the development aspects of the agreement are relatively less enforceable; and potentially are in danger of being less informed by and coordinated with multilateral development efforts. It is the case that the process of development needs facilitation, but it also needs to be accompanied by some disciplines. Moreover, there is a danger of the development dimension being shaped by the selective preoccupations of the developed state’s value system, rather than being considered in a holistic manner. Furthermore, it is not clear if within the legal parameters of such integrated agreements development is expressly prioritised over trade. That said, this is not necessarily to argue against the conflation of trade and development in PTAs. After all, some ‘development’ is better than no development. Rather, here the point simply
is to challenge some of the assumptions this development in PTAs is set against. Many years ago one commentator referred to IMF conditionality as the ‘sugarcoated bullets’ of the IMF12 – by the same token here, the PTAs laced with development promises are in danger of earning a similar epithet! However, in so far as an analytical framework from a legal stand-point that is particularly focused on the development dimension (including the development dimension of sustainable development) is concerned, there is room for further work that builds on the existing analysis. A legal emphasis on the economic development perspective (or ‘especially for the economic development objective’), a dimension which is not, of course, omni-significant by itself, is for many developing countries of importance in providing resources for development that cannot be ignored.13 Indeed, one of the criticisms of the approach of the UN development institutions in recent decades has been the tendency to focus on human and social development in isolation of other macroeconomic policy issues that are essential to development. This narrow focus affects the ability to achieve a holistic approach to development.14 This chapter is aimed at providing an analytical structure for the examination of PTAs involving developing countries, in particular those from Africa, from the perspective of IDL. This analytical structure is provided through the establishment of development criteria for the evaluation of PTAs from a legal standpoint. In this endeavour, the chapter explores different issues in four sections. First, it identifies some of the difficulties in formulating development criteria applicable to PTAs. This is followed in Section 8.2.1 by an outline of the differences in the international trade and development regimes. Section 8.2.2 describes development norms within the framework of the world trading system. Section 8.2.3 comprises of an articulation of a development criteria. This is followed by Section 8.3, which involves an evaluation of some aspects of PTAs against the background of the criteria developed. The evaluation in this section, however, is not intended to be exhaustive or judgemental, but rather suggestive of potential analysis that might be developed further. Section 8.4 concludes.