- INTERNATIONAL PROBLEMS, NO. 4, 2000
- Demetrius Andreas FLOUDAS and Luis Fernando ROJAS
- UDK 339.9 (7/8)
- Biblid 0025-8555,52(2000)
- Vol. LII, br. 4, pp. 371-389
- Izvorni naučni rad
- Decembar 2000.
- SOME THOUGHTS ON NAFTA AND TRADE INTEGRATION IN THE
The North American Free Trade Agreement (NAFTA)
came into effect on 1 January 1994 with a primary function to
create a free trade zone between the United States, Canada and
Mexico, that would capitalise on the North American annual 6
trillion dollar market and its 350 million consumers. NAFTA
already rivals the European Union as the world’s largest trade
area and is set to become the eventual nucleus of a possible
pan-American economic area. This article seeks to examine in brief
a selected number of the basic elements of the NAFTA. It evaluates
some of its key characteristics and provides a short outline of
its historical background and economic nature. The second part of
the article contains a summary outline of the Agreement’s more
important provisions regarding market in order to describe the way
that this specific issue has been tackled in North America.
Finally, further focus is brought on the system of dispute
resolution that the Agreement foresees.
The North American Free Trade Agreement (NAFTA)
came into effect on 1 January 1994 with a primary function to create a
free trade zone between the United States, Canada and Mexico, that
would capitalise on the North American annual 6 trillion dollar market
and its 350 million consumers. NAFTA already rivals the European Union
as the world’s largest trade area and is set to become the eventual
nucleus of a possible pan-American economic area.
This article seeks to examine in brief a selected
number of the basic elements of the North American Free Trade
Agreement. It evaluates some of its key characteristics and provides a
short outline of its historical background and economic nature. It
takes the European Single Market as a point of reference where needed,
since a conceptual comparison between a NAFTA-type free trade area and
an EU-model customs union may demonstrate the relative uniformity of
both types of trading conglomerates but also their taxonomic and
functional differences. The second part of the article contains a
summary outline of the Agreement’s more important provisions regarding
market access (abolition of tariffs and quantitative restrictions,
rules of origin) in order to describe the way that this specific issue
has been tackled in North America. Finally, as an example of NAFTA’s
approach to the problems that all international trade areas are
confronted with, further focus is brought on the system of dispute
resolution that the Agreement foresees.
II. Integration for the Future
1. The Rise of NAFTA
The negotiations for the North American Free Trade
Agreement started in Toronto in June 1992. An integration scheme that
involves the economic might of the United States, along with the vast
resources of Canada is of considerable importance in the first place,
but it was the incorporation of Mexico to this equation that added
another dimension to the issue: it was the first case of a developing
country's accession to this type of agreement with developed states on
a fully reciprocal basis. If successful, the agreement promised to
make the whole North American continent into one economic zone and
perhaps even set a precedent for trade and economic cooperation
between the wealthy North and the less developed South.
NAFTA took effect on 1 January 1994, one year after
the formal completion of the European Single Market. It provided a new
set of regulations to cover investment and more than a six trillion
dollar market. Over the next decade, the free trade agreement will
eliminate all tariffs amongst Canada, Mexico and the US and
consequently reduce the cost of thousands of imported products and
services. The intention of all three countries was to conclude a trade
agreement that would lead to an integrated market for goods as well as
most services and capital, and provide for greater mobility for
professional and business travellers. In order to achieve this, they
decided to expand on their pre-existing GATT obligations, including
the anticipated results of the Uruguay Round. Consistent with the GATT
and the CUSFTA, the new agreement also avoided sensitive issues such
as cultural industries, national security and constitutional
As far as its structure is concerned, NAFTA in some
areas can be seen to be three collated bilateral deals. To a certain
extent, the new agreement was similar to that of the pre-existing
Canada-US Free Trade Agreement (CUSFTA), but it moved beyond it by
eliminating Mexican tariffs and trade control barriers, some
immediately and the rest over the remainder of the transition period.
At the same time, it contained clearer and more advanced rules of
origin, an extension of duty drawback clauses and an improved
mechanism for consultation and dispute settlement. Finally,
environmental issues received expanded coverage in the agreement. All
three countries confirmed their commitment to sustainable development
and incorporated the GATT exemption that allowed governments to
protect the environment even when the measures conflict with other
provisions of the Agreement.
2. NAFTA, FTAA and the future
NAFTA includes provisions to broaden its coverage,
both in terms of issues and in terms of membership. An accession
clause allows countries to negotiate their way in by accepting the
same obligations as the other members. One can foresee, in a not too
distant future, the adhesion of other Latin American countries to this
Agreement. Indeed, this has already been accepted in principle as an
overriding policy statement by all the governments of the American
continent, although the target date set for the creation of such a
pan-American free trade area (2005) may appear rather optimistic to
most pragmatic observers. The ultimate goal of inclusion of all
American states in the Free Trade Area of the Americas would represent
a significant step towards north-south economic harmonisation and one
yielding formidable economic power, at that. Indeed, FTAA would
encompass the whole of the Western hemisphere under a single umbrella
of integrated trade.
It emerges as undoubted that NAFTA will serve as
the central nucleus around which the Latin American countries wishing
to constitute the FTAA will eventually coalesce. The question arises
as to whether this hemispheric integration will take the form of
individual states seeking membership or it will proceed by means of en
bloc incorporation of the pre-existing regional trade areas in Central
and South America. So far, there is a number of such subregional trade
areas in Latin America, exercising varying degrees of influence, and
their divergent features and modus operandi could play a fundamental
role in the formation of a hemispheric trade strategy. These
subregional economic groupings are: i) the Central American Common
Market (CACM) comprised of Costa Rica, Guatemala, El Salvador,
Honduras and Nicaragua, ii) the Andean Group by Bolivia, Colombia,
Ecuador, Peru and Venezuela, iii) the Caribbean Community (CARICOM)
composed of 13 Caribbean states, and iv) the Southern Cone Common
Market (MERCOSUR) with Argentina, Brazil, Uruguay and Paraguay as its
members. In addition to making vital contributions to the area’s
political stability, these regional economic groupings will play a
significant part in the negotiation and implementation of the FTAA.
Thus, the piecemeal accession model may risk damaging the market
development of the regional trade areas and the incentives for
hemispheric trade liberalisation. On the other hand, bloc accession
will be a slower but more sustainable and liberalising path to
integration but it may have adverse economic and political
consequences for the leading member-states within the trading
organisations as they would risk losing appreciable short term
benefits that an accelerated entry into the NAFTA/FTAA capsule would
bear. This may lead US policy makers to favour piecemeal accession for
political reasons, with the ultimate intent of strengthening the
democratic and market-oriented reforms of such ‘leaders’ amongst the
Latin American countries.
III. Evolving Models for Globalisation in America
As business is becoming increasingly global,
domestic enterprises in most countries are increasingly depending on
foreign markets to enhance their growth. In order to capitalise on the
internationalisation of business, many countries have initiated the
formation of trading groups, designed to reduce tariffs and thus
increase the trade amongst the participating members. The implications
of the proliferation of economic integration in the form of free trade
areas is a subject of constant debate amongst those who regard them as
a legitimate tool to promote regional free trade and those who
consider them as damaging to the global trading system and a threat to
the interests of non-participants. In attempting to examine the
general rationale behind such moves, this kind of evolution may be
viewed as a result of heightened social and economic interdependence
brought about by advances in technology that allow persons, goods,
capital, services and ideas to cross artificial national frontiers at
increased rates of speed.
A central structural difference between e.g. the
European Single Market and the ‘single market’ purportedly created by
NAFTA is to be found in the underlying conceptual distinction between
a common market, a customs union and a free trade area. In a free
trade area, customs duties and quantitative restrictions are abolished
between members, but each country retains its own tariffs against
non-members. A customs union involves the equalisation of trade
tariffs with the outside world, i.e. the creation of a common customs
policy. And a common market includes in the integrating process not
only the liberalisation of movement of goods but also of the other
factors of production, namely services, labour and capital. In
principle therefore, a free trade area implies a more limited purpose
than a single market or even a customs union, but this difference in
design may be somewhat misleading. An economic conglomeration along
the american models is likely to be a greater impediment to external
trade than an EC-style single market, because it grants preferences to
goods originating inside its boundaries without providing to imports
the corresponding customs union benefit of free circulation within the
internal borders. NAFTA, although more confined in purpose than the
European Community, is therefore likely to be more prone to erect
barriers to outsiders and generate a 'fortress' mentality. It could
therefore be misguided to suggest that NAFTA is infinitely more
limited than the European Single Market, since "both concepts are
open-ended" essentially. In that respect, NAFTA can even be seen as
antagonistic to the European Single Market, inasmuch as they compete
for the same 'lebensraum' of external trade goods and services and
against each other. At the same time, free trade agreements do not
necessarily need to lead to a ‘fortress’ mentality. They may promote
freer trade by involving countries that share similar objectives and
are willing to enter into such an agreement on a fully reciprocal
basis. Furthermore, free trade agreements send a signal to the rest of
the world that another option exists should multilateral trade
negotiations fail. This relates not only to further liberalisation in
areas already covered by the WTO but also indicates that new areas
should be included (such being the case of CUSFTA and NAFTA which
included services and investment). An additional advantage of regional
integration schemes is that some of them contain dispute resolution
procedures which provide greater legal certainty than the WTO system.
Such is the case of the binding dispute system of CUSFTA and NAFTA in
anti-subsidy and anti-dumping cases. Furthermore, free trade
agreements open to accession by other countries may become a "WTO-plus"
if such agreements supplement WTO and include new areas such as
investment, environment and services. In this case, the obligations
are based on reciprocity and not on the most-favoured-nation
As a free trade area, NAFTA reflects by definition
a less comprehensive integration scheme than the European Union. It
does not place emphasis on eventual political integration but has been
constructed as a mechanism for trade liberalisation. Moreover, the
United States, Canada and Mexico were not compelled to establish a
free trade area by the same reasons that initiated the movement
towards European integration. This may explain in part why NAFTA does
not make reference to significant central regional institutions with
supra-national authority. Thus, NAFTA has been endowed with a very
modest institutional structure. Its paramount organ is the Free Trade
Commission, whose purpose is to oversee the implementation and
functioning of the dispute settlement mechanism. The NAFTA Secretariat
assists the Commission in the performance of its duties but neither
body has the capacity of taking decisions binding to the member
states, nor is there an equivalent of the European Court of Justice.
However, in the European Union, the Council -as the principal
legislative organ- can adopt binding rules for the member states in
the form of regulations directives and decisions; whilst the European
Commission is its executive arm and also occupies the position of
‘guardian of the treaties’. In spite of these fundamental differences,
it is conceivable that eventually NAFTA will be institutionalised,
when the limitations of integration arrangements without central
institutions become apparent, and also through the political and
social fallout that the operation of the free trade will cause. It is
possible therefore that, by the time the creation of the FTAA is
underway and the Latin American states have started to accede, NAFTA
will have evolved towards more integrational structures.
IV. The North American Free Trade Agreement and the
Free Movement of Goods
The key to any free trade is the elimination of
duties and other restrictions on “substantially all trade between the
parties”. These provisions, known generically as market access rules,
regulate trade in goods with respect to customs duties and other
similar charges, quantitative restrictions, such as quotas, licences
and permits, and import and export price requirements.
The North American Free Trade Agreement creates an
improved legal framework for the conduct of trilateral trade and the
liberalisation of movement of goods and services amongst its
signatories. From a legal perspective the main task before the parties
to NAFTA was to create a regulatory framework in order to promote
increased trade between them through immediate elimination or gradual
phase out of tariff and non-tariff trade barriers. While the general
thrust of NAFTA aims at promoting competition, the concrete measures
adopted in this Agreement are not so clear-cut and portray a
combination of relative pro-competitive and protectionist objectives.
At the time of the conclusion of the CUSFTA
negotiations, more than 75% of bilateral trade between the USA and
Canada moved free of duty. But tariffs were a significant barrier to
trade in specific areas, for example, 15% and more of United States
tariffs applied on petrochemicals, metal alloys, clotting and many
other products. Additionally, the existence of Canadian tariffs on
imports from the United States was costly to Canadian consumers and
producers. Although aggregate tariffs between the European Community
and NAFTA no longer constitute a significant barrier, they still
provide protection to important sectors in both economies.
NAFTA provides for the progressive elimination of
all tariffs on goods qualifying as North American under its rules of
origin. For most goods, existing customs duties are either eliminated
immediately or phased out in five or ten equal annual stages. For
certain sensitive items, tariffs will be phased out over a period of
up to 15 years. Tariffs will be phased out from the applied rates on 1
July 1991, including the United States Generalised System of
Preferences (GSP) and the Canadian General Preferential Tariff (GPT)
rates. As between the United States and Canada tariff phase-out will
continue as scheduled by CUSFTA. NAFTA provides that the three
countries may consult and agree a more rapid phase-out of tariffs.
The phased elimination of tariffs between the
United States and Canada will continue on the basis of CUSFTA Article
401. These base rates for calculating the phased elimination on trade
with Mexico are those that were in effect 1 January 1991 for Canada.
For Mexico, the base rate will be its import duties applied in
practice, ranging up to 20%, rather than the much higher of up to 50%
established through its GATT obligations.
Because Mexico benefits from Canada's preferential
tariffs and many products enter Canada under the terms of the Canada-
United States Auto Pact, almost 80% of Mexican goods already enter the
Canadian market duty-free. Canada included most products in either the
immediate or five-year categories and limited 10-year phase-outs to
sensitive products. The ten year category includes, in the case of
Canadian products entering Mexico, furniture, pharmaceuticals and
toys. Canada included in this category such products as clothing,
apparel, footwear and toys.
2. Customs duties and regulations
The United States and Canada refund the customs
duty levied on imported materials and components when they are
incorporated into exported goods. The US, for example, uses foreign
trade zones as means for exporters to avoid having to pay United
States duties on imported components. In this respect NAFTA
establishes rules on the use of 'drawback' or similar programs that
provide for the refund or waiver of customs duties on materials used
in the production of goods subsequently exported to another NAFTA
country. Existing drawback programs will terminate by January 2001,
for Mexico-United States trade and Canada-Mexico trade; the Agreement
will extend for two years the deadline established in CUSFTA for the
elimination of drawback programs. When these programs are eliminated,
each NAFTA country will adopt a procedure for goods still subject to
duties in the free trade area to avoid the 'double taxation' effects
of the payment of duties in two countries. Under these procedures, the
amount of customs duties that a country may waive or refund under such
programs will not exceed the lesser of: a) duties owed or paid on
imported, non-North American materials used in the production of a
goods subsequently exported to another NAFTA country; or b) duties
paid to that NAFTA country on the importation of such goods.
Local customs regulations permit duties paid on
imports to be refunded to specific companies if they meet certain
conditions related to performance such as production, exports, and
employment. CUSFTA provided for the elimination of duty waivers in
cases where such waivers are linked to specific performance
requirements such as production in one country or exports to the other
except for automotive waivers as listed in Chapter Ten. No new customs
duties waivers incorporating performance requirements were permitted
to be introduced after June 1988, and all such customs duty waivers
were eliminated by 1 January 1998. These provisions continue in
operation since NAFTA Annex 304.2(b) provides for the incorporation of
Article 405 of the Canada-US Free Trade Agreement solely with respect
to measures adopted by Canada or the United States prior to the date
of entry into force of NAFTA. Existing programs in Mexico will be
eliminated by 2001.
Equally, customs regulations and practices affect
the flow of trade and have, historically, been from time to time used
by both the European Community and the NAFTA members as a disguised
non-tariff barrier to trade. The goal of the NAFTA negotiations was to
achieve, by the end of the transition period, similar rules on
trilateral trade, each country retaining separate customs and tariff
regimes for trade with third countries. Specifically, they addressed
customs user fees, duty drawbacks and duty remissions.
The United States applies a custom user fee
calculated as a percentage of the value of each transaction. Even if
the tariff is zero, the exporter must pay this amount when goods cross
from Canada into the United States This fee constitutes an additional
tariff and increases the cost of exporting. CUSFTA Article 403
provided for the customs user fee applied by the United States to be
phased out on imports from Canada by 1 January 1994 and prevented
either country from establishing a new customs user fee on imports of
goods which meet the origin rules. The three NAFTA countries also
agreed not to impose new customs user fees similar to the United
States merchandise processing fee or the Mexican customs processing
fee. Mexico eliminated in 1999 its existing customs processing fee on
North American goods.
3. Quantitative restrictions
Existing quantitative restrictions to the free
movement of goods will be eliminated, either immediately or according
to an agreed timetable. With respect to export measures taken for
reasons of short supply or conservation, the Agreement provides for
co-operation on implementing short supply or conservation measures to
prevent diversion to third parties. All three member states of NAFTA
will eliminate prohibitions and quantitative restrictions applied at
the border, such as quotas and import licences. However, they maintain
the right to impose border restrictions in limited circumstances, for
example, to protect human, animal or plant life or health, or the
environment. Special rules apply to trade in agriculture, automobiles,
energy and textiles.
4. The Rules of Origin in NAFTA
Most countries establish standards to determine the
country of origin or legal nationality of imported goods that are not
wholly grown, mined, or produced in a single country. These rules
exemplify the fact that international trade is regulated on a
country-specific as well as a product-specific basis. In agreements
like NAFTA, special rules are entered in order to limit the extent of
the foreign content or value in or of the goods which are to be
accorded its benefits, so that these accrue principally to the
contracting parties. In their larger context, rules of origin and
preference are critical in this type of agreement because they are
closely linked with increased trade, job creation and preservation,
and added investment. Accordingly, the business communities of the
member countries receive the benefits of duty reduction or elimination
along with other negotiated advantages. Therefore, the 'origin rule'
defines the criteria for establishing the country of origin of a
product. This is of primary importance in order to establish, for
example, duty liability, anti-dumping and countervailing duties. Not
surprisingly, rules of origin have been referred to as "tools of
discrimination" because they are used to determine which goods qualify
for preferential treatment. As such they are an integral part of all
the existing free trade agreements.
Because of their importance, the rules of origin
and preference are some of the most complex and potentially the most
politically controversial part in NAFTA. The agreement contains over
two thousand specific rules based on different method for ascertaining
origin. Depending on the specific origin criteria adopted, a product
might be considered as originating in a specific country if, for
example, its domestically produced content or domestically added value
in that country equal or exceeds a specified proportion, or if it has
undergone substantial transformation in the course of processing or
manufacturing in the country.
By establishing a legal standard for which imports
qualify for preferential treatment, reduced or no tariffs, rules of
origin constitute a two-edged sword. On the one hand, when properly
crafted they may well serve the stated purposes of NAFTA by
restricting preferential entrance into the market only to those goods
that fall within the established legal definitions. On the other hand,
it must be borne in mind that the application of those rules is
technically taxing and is a decision which ultimately rests on the
hands of customs authorities in the importing country. The unilateral
character of this determination is underscored by the fact that the
NAFTA rules are applied according to detailed customs regulations
developed in each country. As a result it is likely that, even
unintentionally, they may be construed in a manner that effectively
becomes a non-tariff barrier to trade. The potential impact of this is
that, if goods originating in the free trade area are denied
preferential treatment not only the gains of such agreements are
forgone but also that it creates irritation in the affected country
and domestic pressure to retaliate in kind.
NAFTA's rules of customs administration have
undergone noticeable improvement since the days of CUSFTA. In addition
to its predecessor free trade agreement, they now contain: first,
uniform regulations to ensure consistent interpretation, application
and administration of the rules of origin. Secondly, a uniform
Certificate of Origin a well as certification requirements and
procedures for importers and exporters that claim preferential tariff
treatment. Common record-keeping requirements in the three countries.
Rules for both traders and customs authorities with respect to
verifying the origin of such goods. Provisions that will allow
importers, exporters and producers to obtain advance rulings on the
origin of goods from the customs authority of the country into which
the goods are to be imported. Requirements that the importing
countries give exporters and producers substantially the same rights
of review and appeal of its origin determinations and advance rulings
as it provide to importers in its territory. A trilateral working
group to address future modifications of the rules of origin and the
uniform regulations. Finally, specific time period is laid down to
ensure the expeditious resolution of disputes regarding the rules of
Despite these improvements NAFTA's rules of origin
are extremely selective. Because of them, it has been considered that
NAFTA has left itself open to criticism. Their restrictive character
could pose dangers to the trade liberalising objectives of the
agreement. They seem to penalise regional producers by forcing them to
source from less efficient regional suppliers undermining their global
competitiveness. Furthermore, the NAFTA rules could be copied by other
preferential trade schemes in an effort of keeping competitors out of
V. The NAFTA Dispute Resolution Procedures
Trade disputes are a fairly common occurrence and
tend to increase as the volume of trade and the sheer number of
transactions get larger. One country's measures taken in its own
interests are sometimes viewed as protectionist by its trading
partner. If specific systems resolving such disputes are not included
in a trade agreement, trade of a product or service between the two
countries can be endangered.
The North American Free Trade Agreement includes
measures to reduce the likelihood of trade disputes between the three
participating countries. It sets a course for settlement by
strengthening the system of dispute review panels established by the
CUSFTA and has also clarified such issues as customs administration
1. General Trade Disputes
The NAFTA's dispute settlement provisions are
designed to provide for a reasonably rapid settlement including, if
necessary, the use of impartial panels to study issues in dispute and
render findings. There are three basic steps to the process:
(a) Consultations between the three countries with
the goal of a satisfactory settlement.
(b) If the first round of consultations fails to
solve the dispute, the NAFTA Trade Commission will examine the case.
Comprising cabinet-level representatives from each country, the Trade
Commission' s role is to settle arguments over the interpretation or
application of the trade rules established by the NAFTA.
(c) If the Trade Commission cannot resolve the
issue, a specially selected panel will objectively review the dispute.
The panel, composed of five members, is chosen from a trilaterally
agreed roster in such a way as to promote an impartial decision. Two
panellists from the complaining party are selected by the defending
party, and two from the defending party are nominated by the
complainant. The panel’s chair may be a representative from the third
NAFTA country or from another neutral country. The chair is chosen by
mutual agreement or drawn by lot.
2. Countervail and Anti-Dumping Duty Disputes
A member state maintains its right to have special
duties levied against imports from the other two, if these are proven
to be competing unfairly in that state' s home market. Countervailing
duties may be applied when the foreign product is subsidised.
Antidumping duties may be applied when the import is priced unfairly
("dumped" on the market).
Under the Canada-U.S. Free Trade Agreement, a
system of binational panels was established to review countervailing
and anti-dumping decisions and to make binding determinations on their
conformity with domestic legislation. The NAFTA enhanced these rules
and extended them to Mexico. The binational dispute settlement system
was strengthened and procedural safeguards ensuring the implementation
of panel decisions were introduced.
The binational panel system is based on the
(a) Every government will select two panellists and
jointly choose a fifth member. Each government can challenge the
other's choice of panellists.
(b) Strict time limits will ensure against delays
in the process. Both parties are expected to develop arguments and
debate the other party's statements.
(c) To ensure the integrity of the panel process, a
party can invoke an extraordinary challenge procedure. An
extraordinary challenge committee may affirm the panel's decision or,
if it finds that there are grounds for the challenge, either refer the
matter back to the original panel for action or call for a new panel
to review the issue.
The North American Free Trade Agreement, was signed
by Canada, Mexico and the United States and entered into force in
January 1994. Its adoption followed an intense debate about its likely
effects and its overall rationale. NAFTA removed the majority of
former tariffs, quantitative restrictions and import licences on all
manufactured goods, provides greater market access for service
industries, permits more mobility for professional and business
travellers, and allows freer entry to a united North American market
of 350 million people. With the inclusion of Mexico, NAFTA set an
important precedent for north-south trade, but, most importantly, it
looks set to assume a pivotal role towards an integrated pan-American
commercial zone. With negotiations to enlarge it so as to include the
growing Latin-American market, a possible Free Trade Area of the
Americas would represent the world’s largest trading bloc and the
first hemispheric trading area. Thus, NAFTA has set the pattern for
the future of economic integration in the Western hemisphere.
(Original in English)
Demetrius Andreas FLOUDAS i dr Luis Fernando ROJAS
NEKA RAZMIŠLJANJA O NAFTA I TRGOVINSKOJ INTEGRACIJI
NA AMERIČKOM KONTINENTU
Pregovori između Sjedinjenih Američkih Država,
Kanade i Meksika oko zaključenja Severnoameričkog sporazuma o
slobodnoj trgovini (NAFTA) započeli su u Torontu juna 1992, a završeni
decembra iste godine. Sporazum je stupio na snagu 1. januara 1994. U
ovom radu se nastoji da se predstave i analiziraju neki ključni
elementi Severnoameričkog sporazuma o slobodnoj trgovini. U njemu se
najpre daje kratak istorijat nastojanja da se ostvare integracioni
procesi na ovom prostoru, predstavljaju se i analiziraju ključne
karakteristike i najvažnije odredbe Sporazuma, vrše se poređenja
između NAFTA i Evropske unije, i daju predviđanja o perspektivama
razvoja integracionih procesa na američkom kontinentu.
Autori ukazuju da je primarna funkcija Sporazuma
bila da se uspostavi zona slobodne trgovine između SAD, Kanade i
Meksika, ukidanjem svih carina, tokom sledeće decenije, između ove tri
zemlje, i pretvaranjem celog severnoameričkog kontinenta u jednu
ekonomsku zonu, čime bi se iskoristili ogromni potencijali ovog
tržišta sa godišnjim prihodom od 6 triliona dolara i njegovih 350
Autori navode da se NAFTA u nekim oblastima može
posmatrati kao tri naporedna bilateralna sporazuma. U izvesnoj meri
novi sporazum je sličan prethodnom Sporazumu između Kanade i SAD o
slobodnoj trgovini (CUSFTA). Uključivanjem Meksika, odnosno postupnim
ukidanjem meksičkih carina i barijera za kontrolu trgovine i na ovu
zemlju, proširuje se, naravno, zona slobodne trgovine. Novim
Sporazumom se, takođe, jasnije regulišu neka pitanja i utvrđuju i neke
nove odredbe - pravila o poreklu, odredbe o povratku carina, o
mehanizmu konsultacija i rešavanju sporova. Sporazumom su ukidaju
između tri zemlje ranije carine, kvantitativne restrikcije i uvozne
licence na svu proizvodnu robu, omogućuje veći pristup tržištu za
uslužne delatnosti, dozvoljava veća mobilnost profesionalnim i
poslovnim putnicima, i slobodniji pristup na severnoameričko tržište.
Konačno, pitanjima vezanim za zaštitu životne sredine je u Sporazumu
posvećena veća pažnja.
Sporazumom je predviđena i mogućnost proširenja
pitanja koja bi se zajednički regulisala. Predviđena je, takođe, i
mogućnost pristupanja Sporazumu i drugih zemalja s celog američkog
kontinenta. Može se predvideti da će u ne tako dalekoj budućnosti
druge latinoameričke zemlje pristupiti ovom Sporazumu. Sve vlade ovog
kontinenta su načelno prihvatile kao svoju politiku da pristupe
Sporazumu, a ciljni datum za uključenje svih zemalja severnog i južnog
dela kontinenta u jednu pan-američku zonu slobodne trgovine (2005)
može izgledati suviše optimističan. Konačni cilj uključivanja svih
ovih država u sveameričku zonu slobodne trgovine bi predstavljao važan
korak ka uspostavljanju ekonomske harmonizacije između Severa i Juga i
stvaranju jedne plodne i ogromne ekonomske sile.
Deo rada autori su posvetili analizi razlika između
NAFTA i EU. Centralna strukturna razlika između Evropskog jedinstvenog
tržišta i "jedinstvenog tržišta" koje sa određenim ciljem stvara
NAFTA, može se naći, kažu autori, u naglašenoj konceptualnoj razlici
između zajedničkog tržišta, carinske unije i zone slobodne trgovine. U
zoni slobodne trgovine carine i kvantitativne restrikcije se ukidaju
između članica, dok svaka zemlja zadržava svoje carine prema
nečlanicama. Kod carinske unije se vrši ujednačavanje trgovinskih
carina sa spoljnim svetom, to jest kreira se zajednička politika
carina. Kod zajedničkog tržišta se u integracioni proces uključuje ne
samo liberalizacija kretanja robe, već takođe i drugih faktora
proizvodnje, naime, usluga, radne snage i kapitala. U načelu, zbog
toga je kod zone slobodne trgovine cilj ograničeniji nego što je to
slučaj sa jedinstvenim tržištem ili čak carinskom unijom, ali ova
razlika u zamisli može unekoliko da prevari. Ekonomska konglomeracija
američkih modela će verovatno biti veća smetnja spoljnoj trgovini nego
što je to slučaj sa jedinstvenim tržištem EZ tipa, jer odobrava
preferencijale za robu porekla unutar svojih granica ne omogućavajući
da se za uvoz koristi odgovarajuća dobit nastala u okviru carinske
unije od slobodnog kretanja robe i usluga unutar unutrašnjih granica.
Kako je po svom cilju ograničenija nego Evropska zajednica, NAFTA će
verovatno više biti sklona da podigne barijere prema zemljama koje
nisu njeni članovi i da stvori mentalitet "tvrđave". Stoga to može
navesti na pogrešan zaključak, kažu autori, da je NAFTA trajno
ograničenija nego Evropsko jedinstveno tržište, iako su u osnovi "oba
koncepta otvorena". U tom smislu NAFTA se čak može posmatrati kao
suparnik Evropskog jedinstvenog tržišta zbog toga što se one bore za
isti "lebensraum" (životni prostor) robe i usluga u spoljnoj trgovini.
Istovremeno, sporazumi o spoljnoj trgovini ne moraju nužno da vode ka
stvaranju mentaliteta "tvrđave". Oni mogu učiniti trgovinu slobodnijom
tako što će uključiti zemlje koje imaju slične ciljeve i voljne su da
pristupe takvom sporazumu na potpuno recipročnoj osnovi. Štaviše,
pristupanjem sporazumima o slobodnoj trgovini šalje se signal ostalom
svetu da postoji i druga opcija ukoliko propadnu pregovori o
multilateralnoj trgovini. Ovo se odnosi ne samo na dalju
liberalizaciju na prostorima koji se već nalaze u sastavu WTO (Svetska
trgovinska organizacija) već to takođe pokazuje da bi trebalo
uključiti i nove prostore (što je to slučaj sa CUSFTA i NAFTA koje su
obuhvatile usluge i investicije). Dodatna prednost regionalnih
integracionih sistema leži u tome da neki od njih sadrže postupke za
rešavanje sporova čime se pruža veća zakonska sigurnost nego što to
pruža sistem WTO. To je slučaj sa obavezujućim sistemom vezanim za
sporove predviđenih odredbama CUSFTA i NAFTA kada se radi o
slučajevima anti-subvencionisanja i anti-dampinga. Štaviše, sporazumi
o slobodnoj trgovini kojima mogu pristupiti druge zemlje mogu postati
"WTO-plus" ukoliko takvi sporazumi dopunjuju WTO i obuhvataju nove
oblasti kao što su investicije, zaštita životne sredine i usluge. U
ovom slučaju obaveze su zasnovane na reciprocitetu a ne na principu
Ključ za uspostavljanje bilo kakve slobodne
trgovine je uklanjanje carina i drugih restrikcija na "suštinski svu
trgovinu između strana koje u njoj učestvuju". Ovim odredbama,
generički poznatim kao pravila izlaska na tržište, reguliše se
trgovina robom u pogledu carina i drugih sličnih dažbina,
kvantitativnih restrikcija, kao što su kvote, licence, dozvole, a
takođe i uslova vezanih za cene kod uvoza i izvoza.
Autori navode da su trgovinski sporovi prilično
uobičajena pojava i povećavaju se sa povećanjem obima trgovine i pukog
broja transakcija. Mere koje jedna zemlja preduzme u svom interesu
njen trgovinski partner ponekad vidi kao protekcionističke. Ukoliko
određeni sistemi kojima se rešavaju takvi sporovi nisu obuhvaćeni
trgovinskim sporazumom, trgovina nekim proizvodom ili uslugom između
dve zemlje može biti dovedena u pitanje. Severnoamerički sporazum o
slobodnoj trgovini obuhvata mere čiji je cilj da se smanji verovatnoća
izbijanja trgovinskih sporova između tri zemlje koje učestvuju u ovom
Sporazumu. Njime se postavlja pravac za rešavanje sporova jačanjem
sistema panela za razmatranje sporova koje je uspostavila još CUSFTA i
kojim je pojašnjeno da su takva pitanja vezana za carinsku
administraciju i postupke.
Autori zaključuju da je uključivanjem Meksika u
Sporazum učinjen jedan važan presedan u trgovini i ekonomskoj saradnji
između bogatog Severa i manje razvijenog Juga, i što je, možda, još
važnije NAFTA time može da postane stožer za stvaranje integralne pan-američke
slobodne trgovinske zone. NAFTA već sada predstavlja ozbiljnog
suparnika Evropskoj uniji na svetskom tržištu. Sa pregovorima za
proširenjem NAFTA na sva latinoamerička tržišta i mogućim
uspostavljanjem slobodne trgovinske zone za obe Amerike stvorio bi se
svetski najveći trgovinski blok. Time NAFTA utire put za buduće
ekonomske integracije u zapadnoj hemisferi.
- 1. Demetrius Andreas Floudas, Senior
Associate, Hughes Hall College, University of Cambridge, Associate
Fellow of the Hellenic Institute of International and Foreign Law,
Member of the British Academy of Experts, and Dr. Luis Fernando
Rojas, Attorney-at-Law Costa Rica, Vice-President, Interstice
Consulting Corporation, formerly of the Mexican Section of the NAFTA
- 2. This is a modified version of a
position paper presented at the BDICFA symposium in Richmond,
Virginia in January 2000, with updated bibliographical information.
The authors would like to thank P. Prabhu for his undeviating
dedication to the common cause, G. Brucker-Kennedy and P.Y. Tiah for
their lucid comments, S. A. Brown for her good-spirited support all
along and H. Wong for providing the impetus for enduring fruitful
reflections. The article is published in: International Problems,
No. 4, 2000.
- 3. Already in 1994, the leaders of 34
American countries made a public commitment to create by the year
2005 a Free Trade Area of the Americas FTAA, which would encompass
the entire western hemisphere. The creation of such an entity would
unite 850 million people and create the most extensive trading bloc
on the planet.
- 4. North American Free Trade Agreement
between the Government of the United States of America, the
Government of Canada and the Government of the United Mexican
States, 17. XII. 92, 32 I.L.M. 605 1993.
- 5. On aspects of the negotiations
preceding the signing of NAFTA, Cameron & Tomlin, ‘Negotiating North
American free trade’, International Negotiation, 2000, p. 43.
- 6. For an overview, see: Baker & Battram,
The Canada-United States Free Trade Agreement, International Lawyer,
1989, p. 37.
- 7. Lazega, ‘NAFTA Accession and
Environmental Protection: The Prospects for an Earth friendly
Integration of Latin American Nations into the North American
Trading Bloc’, Journal of Transnational Law and Policy, 5, 1996, p.
315; Mall, ‘The Effect of NAFTA's Environmental Provisions on
Mexican and Chilean Policy’, International Lawyer, 32, 1998, p. 153.
- 8. Porras, ‘The Puzzling Relationship
between Trade and Environment in NAFTA: Competitiveness and the
Pursuit of Environmental Welfare Objectives’, Indiana Journal of
Global Legal Studies, 3, 1995, p. 65.
- 9. The NAFTA also exempts measures
necessary to meet obligations arising under certain international
environmental agreements from most of its disciplines, while
recognising that governments should not establish ‘pollution havens’
by lowering standards to attract investment. Any conflicts that
raise environmental issues will be adjudicated by panels with access
to scientific expertise in environmental matters. In addition, the
environmental lobbyists have seen the economic growth promoted by
NAFTA as likely to improve environmental quality in itself. The
income generated in Mexico by freer trade should assist the Mexican
government with the enforcement of its standards, which may be good
on paper but have been rather difficult to police. Atik,
‘Environmental Standards within NAFTA: Difference by design and the
Retreat from Harmonisation’, Indiana Journal of Global Legal
Studies, 3, 1995, p. 81.
- 10. Barry, ‘Pursuing free trade: Canada,
the Western Hemisphere, and the European Union’, International
journal, 55, 2000, p. 292; Stephenson, ‘Standards, the Environment
and Trade Facilitation in the Western Hemisphere: Negotiating in the
FTAA’, Journal of World Trade, 31, 1997, p. 137.
- 11. See further: Bayer, Expansion of
NAFTA: Issues and Obstacles Regarding Accession by Latin American
States and Associations’, Geojournal, 26, 1997, p. 615; Rutherford &
Martinez, ‘Welfare effects of regional trade integration of Central
American and Caribbean nations with NAFTA and MERCOSUR’, World
Economy, 23, 2000, p. 799.
- 12. Gutierez, ‘Is Small Beautiful for
Economic Integration? The Americas’, Journal of World Trade, 30,
1996, p. 173.
- 13. Burguete, ‘Repensando teóricamente la
integración en las Américas: la integración desde el norte y la
integración desde el sur’, Relaciones Internacionales, 79, 1999, p.
- 14. For further details on the regional
and subregional groupings, see: O’Hop, ‘Hemispheric integration and
the Elimination of Legal Obstacles under a NAFTA-based System‘,
Harvard International Law Journal, 36, 1995, p. 127.
- 15. Da Cruz Vilaca & Sobrino Heredia, ‘The
European Union and the Transformation of the Andean Pact into the
Andean Community: From the Trujillo Protocol to the Sucre Act’,
European Foreign Affairs Review, 3, 1998, p. 13.
- 16. Cason, ‘On the road to Southern Cone
economic integration’, Journal of Interamerican Studies and World
Affairs, 42, 2000, p. 23.
- 17. Casella, ‘Legal Features and
Institutional Perspectives for the MERCOSUR: The Common Market of
the South after the End of the Transition Period’, VRÜ, 31, 1998, p.
523; Grandi, ‘Bilan de sept années de Mercosur’, Problemes
d'Amérique Latine, 32, 1999, p. 73.
- 18. deGoyos, ‘Prospects for integration in
the Americas: MERCOSUL, NAFTA and the FTAA’, Comparative and
International Law Journal of Southern Africa, 31, 1998, p. 307.
- 19. Garcia, ‘NAFTA and the Creation of the
FTAA: A Critique of piecemeal Accession‘,Virginia Journal of
International Law, 35, 1995, p. 539; Wise, ‘Latin American Trade
Strategy at Century’s End’, Business & Politics, 1999, p. 117.
- 20. E.g. Gilmore, ‘Expanding NAFTA to
handle all of the Western Hemisphere: Making Chile the Next Member’,
Journal of International Law and Practice, 3, 1994, p. 413;
Müller-Brandeck-Bocquet, ‘Schatten über dem Mercosur - Die "Brasilienkrise"
und die Zukunft des gemeinsamen Marktes’ BdIP, 1999, p. 205.
- 21. Lazega, op. cit.
- 22. Cf. Deblock & Brunelle, ‘De l'ALE a la
ZLEA: régionalisme et sécurité économiques dans les Amériques’,
Études Internationales, 28, 1997, p. 313.
- 23. Abbott, ‘Integration Without
Institutions: The NAFTA Mutation of the EC Model and the Future of
the GATT Regime’, American Journal of Comparative Law, 1992, p. 917.
- 24. Krueger, ‘Free trade agreements versus
customs unions’, Journal of Development Economics, 54, 1997, p. 169.
- 25. So Balassa, The Theory of Economic
Integration, London, 1961.
- 26. For an assessment of competition
impediments in some of the other american regional groupings see
Mancero-Bucheli, ‘Anti-Competitive Practices by Private Undertakings
in Ancom and Mercosur: An Analysis from the Perspective of EC Law’,
International and Comparative Law Quarterly, 47, 1998, p. 149.
- 27. Abbott, Integration without
Institutions, at p. 919.
- 28. Cf. Rojas, ‘We are not alone…’: The
impact of the North American Free Trade Agreement in: Caiger &
Floudas eds., 1996 Onwards: Lowering the Barriers Further,
Chichester, 1996, p. 255.
- 29. Beyer, ‘Die USA, die NAFTA und der "Neue
Regionalismus”, Welt Trends, 24, 1999, p. 131.
- 30. For expansive coverage of both
theoretical underpinnings of the issues related here, as well as
comparative analysis between the European Union and the NAFTA
regimes, see Weiler ed., The EU, the WTO and the NAFTA: Towards a
Common Law of International Trade, Oxford, 2000.
- 31. Paelinck & Polese, ‘Modelling the
regional impact of continental economic integration: lessons from
the European Union for NAFTA’, Regional Studies, 33, 1999, p. 727.
- 32. Abbott, Integration without
Institutions at p. 918.
- 33. See in depth d’Appendini & Bislev,
eds., Economic integration in NAFTA and the EU: deficient
institutionality, Basingstoke, 1999.
- 34. As appears to be the trend in some of
the other subregional free trade areas in America, e.g. Costa & Zivy,
‘Un tribunal supranational dans le Mercosul’, Revue Internationale
de Droit Comparé, 50, 1998, p. 923.
- 35. Abbott, ‘The North American Free Trade
Agreement and its implications for the European Union’,
Transnational Law and Contemporary Problems, 4, 1994, p. 119.
- 36. Possibly evolving its own law in the
paradigm of the acquis communautaire within the European Union legal
structure, see Ventury, ‘First Arbitration Award in Mercosur - A
Community Law in Evolution ?’, Leiden Journal of International Law,
13, 2000, p. 447; Samtleben, Erster Schiedsspruch im Mercosur -
wirtschaftliche Krise als rechtliche Herausforderung?’, Europäische
Zeitschrift für Wirtschaftspolitik, 2000, p. 77.
- 37. Estevadeordal, ‘Negotiating
Preferential Market Access: The Case of the North American Free
Trade Agreement’, Journal of World Trade, 34, 2000, p. 141.
- 38. Shoyer, ‘Market Access and the North
American Free Trade Agreement’, Transnational Law and Contemporary
Problems, 4, 1994, p. 133; for non-tariff barriers see Kerr,
‘Removing Health, Sanitary and Technical Non-Tariff Barriers in the
NAFTA - A New Institutional Economics Paradigm’, Journal of World
Trade, 31, 1997, p. 57.
- 39. Glossop, ‘NAFTA and Competition
Policy’, European Company Law Review, 1994, p. 191.
- 40. Art 302 NAFTA " 1. Except as otherwise
provided in this Agreement, no Party may increase any existing
customs duty, or adopt any customs duty, on an originating good. 2.
Except as otherwise provided in this Agreement, each Party shall
progressively eliminate its customs duties on originating goods in
accordance with its Schedule to Annex 302.2."
- 41. Clark, Sawyer & Sprinkle, ‘Tariff
elimination staging categories and the North American Free Trade
Agreement’, Economia internazionale, 2000, p. 141.
- 42. CUSFTA Art. 405: Waiver of Customs
- 43. CUSFTA Article 403: Customs Fees. 1
Neither Party shall introduce customs user fees with respect to
goods originating in the territory of the other Party. 3. The United
States of America shall eliminate existing customs user fees on
goods originating in the territory of Canada.
- 44. Examples of domestic services and
industries that either remain protected or are not affected by the
NAFTA: i cultural industries, including publishing, film and video,
music and sound recording, broadcasting and cable, ii federal and
provincial government health care and social service programs,
including public law enforcement and correctional services, income
security or insurance, social security or insurance, social welfare,
public education, public training, health and child care, iii water
in its natural state, including any inter-basin diversion, iv
domestic investment screening systems, v environmental, health,
safety and labour standards, vi basic telecommunications services.
- 45. Pethke, ‘Die präferentiellen
Ursprungsregeln in der Nordamerikanischen Freihandelszone NAFTA’,
Recht der Internationalen Wirtschaft, 1998, p. 128.
- 46. Cf . Rojas, op.cit., at p. 275.
- 47. Cranker & Gudofsky, ‘NAFTA Origin
Verifications - A Canadian Perspective’, International Lawyer, 31,
1997, p. 1007.
- 48. Hufbauer & Schott, NAFTA: An
Assessment, Institute For International Economics, Washington D. C.,
1993, pp. 5-6.
- 49. See Marceau, ‘NAFTA and WTO dispute
settlement rules - a thematic comparison’, Journal of World Trade,
31, 1997, p. 25.
- 50. Thomas & Ayllon, ‘NAFTA Dispute
Settlement and Mexico: Interpreting Treaties and Reconciling Common
and Civil Law Systems in a Free Trade Area’, Canadian Yearbook of
International Law, 1995, p. 75; see also: Baranes, ‘Following Suit:
A Comparison of Dispute Resolution Mechanisms under NAFTA Chapter 20
and the Canada-Israel Free Trade Agreement’, Canadian Yearbook of
International Law, 35, 1997, p. 291.
- 51. Lopez, ‘Dispute Resolution Under
NAFTA: Lessons from the Early Experience’, TILJ, 32, 1997, p. 163.
- 52. Loungnarath & Stehly, ‘The General
Dispute Settlement Mechanism in the North American Free Trade
Agreement and the World Trade Organisation System: Is North American
regionalism Really Preferable to Multilateralism?’, Journal of World
Trade, 34, 2000, p. 1.
- 53. Garcia, ‘Decisionmaking and Dispute
Resolution in the Free Trade Area of the Americans: An Essay in
Trade Governance’, Michigan Journal of International Law, 18, 1997,
- 54. Winham, ‘NAFTA Chapter 19 and the
Development of International Administrative Law - Applications in
Antidumping and Competition Law’, Journal of World Trade, 32, 1998,
- 55. Preusse, ‘Sechs Jahre
Nordamerikanisches Freihandelsabkommen NAFTA: Eine Bestandesaufnahme’,
Aussenwirtschaft, 2000, p. 333; Castro, ‘Una evaluación del TLCAN a
quatro ańos de entrar en vigor’, Relaciones Internacionales, 79,
1999, p. 49.