Free trade and fair treatment in the Pacific

The Jakarta Post ,  Jakarta   |  Fri, 05/26/2006 1:19 PM  |  Opinion

Budiono Kusumohamidjojo, Jakarta

The Inter-Pacific Bar Association (IPBA) held its 16th Annual Conference in Sydney in early May 2006. It drew speakers and keenly interested lawyers from 43 countries not only from the Pacific rim, but also from as far as northern and western Europe, the Middle East and the Indian subcontinent. The IPBA Board selected the critical issue of Free Trade Agreements as the focus of the conference.

The lively exchange of observations and experiences has highlighted the tremendous problems and challenges met along the course toward establishing the various Free Trade Areas. Indeed, soon we will see that ""FTA"" stands also for more problematic acronyms like ""Free Trade Agreements"" and ""Fair Trade Arrangements"".

Nevertheless, even countries like Chile, a nation with a population of 20 million (Jakarta has 14 million) and situated far from the big markets of the world, vowed to join the rather competitive game involving powerful countries like the U.S., China, Japan and India, and it is not thinking of backtracking.

The Pacific rim lawyers generally admit the liberal substance of the FTA, and they acknowledge the enormous problems that lie ahead that have to be tackled.

The problems stem from a wide range of differences among the countries of the Pacific rim, let alone at an international level. Economic disparities are not the only obstacle. Different languages and mind-sets, cultural heterogeneity, paradoxical political systems and different stages of regional governance have contributed to a progress that has the potential to be drawn out.

It is pretty obvious that generally the most developed economies and the powerful countries are also the most keen to pursue intensive FTA. The other countries just seem to follow suit if they can afford to. It is against this backdrop that the involvement of international lawyers is not simply a natural necessity.

The problem is that international agreements are about power transactions. Undoubtedly, FTAs are supposed to serve the process of liberalization of international relations, particularly in the economic dimensions. Francis Fukuyama would argue that the process is a kind of historical necessity.

While we may have our reservations: Is that true? Regardless of whether or not it is true, the majority of the lawyers present at the conference seemed to be aware of the danger of merely pushing for liberalization that would end in the loss of a win/win paradigm in a constellation that keeps losers out of the world trade picture.

A ""catch as catch can"" process of liberalization in world trade would inevitably lead to global injustices that we cannot afford. In other words, expressly said or tacitly admitted, the mechanism of the FTA should guarantee a new global Fair Treatment Atmosphere, another sort of ""FTA"".

The involvement of most lawyers though, is still not far from their traditional professional stand of being always ready with can-do recipes as demanded by powerful politicians or mighty conglomerates. To make sure that it is implemented in a way that produces a win/win situation, international lawyers must contribute toward the development of a new global Fair Treatment Atmosphere that would lead to improved global justice.

It is within this framework that the can-do tradition of international lawyers should belong to the past. The international lawyers of the future have the obligation to shed light on the aspirations for justice developing in international relations. The law should indeed serve not only the freedom of the contracting parties but also promote global justice.

International lawyers must bear in mind that at the end of the day, free trade is useful for mankind only if it also connotes fair treatment of those who are not so lucky, which hopefully would lead to improved justice.

Justice as dictated in the name of the law that merely reflects the naked freedom of the mightiest is an idea that does not belong to our era. Mankind is endowed with the capacity to limit his own freedom where it starts to harm justice, moreover if it concerns global justice.

The writer is a senior partner Soebagjo, Jatim and Djarot law firm in Jakarta and is a senior lecturer in philosophy of law.

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