[Congressional Record Volume 150, Number 103 (Thursday, July 22, 2004)]
[House]
[Pages H6615-H6650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNITED STATES-MOROCCO FREE TRADE AGREEMENT IMPLEMENTATION ACT
Mr. THOMAS. Mr. Speaker, pursuant to House Resolution 738, I call up
the bill (H.R. 4842) to implement the United States-Morocco Free Trade
Agreement, and ask for its immediate consideration.
The Clerk read the title of the bill.
The text of H.R. 4842 is as follows:
H.R. 4842
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``United
States-Morocco Free Trade Agreement Implementation Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
TITLE I--APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE AGREEMENT
Sec. 101. Approval and entry into force of the Agreement.
Sec. 102. Relationship of the Agreement to United States and State law.
Sec. 103. Implementing actions in anticipation of entry into force and
initial regulations.
Sec. 104. Consultation and layover provisions for, and effective date
of, proclaimed actions.
Sec. 105. Administration of dispute settlement proceedings.
Sec. 106. Arbitration of claims.
Sec. 107. Effective dates; effect of termination.
TITLE II--CUSTOMS PROVISIONS
Sec. 201. Tariff modifications.
Sec. 202. Additional duties on certain agricultural goods.
Sec. 203. Rules of origin.
Sec. 204. Enforcement relating to trade in textile and apparel goods.
Sec. 205. Regulations.
TITLE III--RELIEF FROM IMPORTS
Sec. 301. Definitions.
Subtitle A--Relief From Imports Benefiting From the Agreement
Sec. 311. Commencing of action for relief.
Sec. 312. Commission action on petition.
Sec. 313. Provision of relief.
Sec. 314. Termination of relief authority.
Sec. 315. Compensation authority.
Sec. 316. Confidential business information.
Subtitle B--Textile and Apparel Safeguard Measures
Sec. 321. Commencement of action for relief.
Sec. 322. Determination and provision of relief.
Sec. 323. Period of relief.
Sec. 324. Articles exempt from relief.
Sec. 325. Rate after termination of import relief.
Sec. 326. Termination of relief authority.
Sec. 327. Compensation authority.
Sec. 328. Business confidential information.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to approve and implement the Free Trade Agreement
between the United States and Morocco entered into under the
authority of section 2103(b) of the Bipartisan Trade
Promotion Authority Act of 2002 (19 U.S.C. 3803(b));
(2) to strengthen and develop economic relations between
the United States and Morocco for their mutual benefit;
(3) to establish free trade between the 2 nations through
the reduction and elimination of barriers to trade in goods
and services and to investment; and
(4) to lay the foundation for further cooperation to expand
and enhance the benefits of such Agreement.
[[Page H6616]]
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the United
States-Morocco Free Trade Agreement approved by Congress
under section 101(a)(1).
(2) HTS.--The term ``HTS'' means the Harmonized Tariff
Schedule of the United States.
(3) Textile or apparel good.--The term ``textile or apparel
good'' means a good listed in the Annex to the Agreement on
Textiles and Clothing referred to in section 101(d)(4) of the
Uruguay Round Agreements Act (19 U.S.C. 3511(d)(4)).
TITLE I--APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE AGREEMENT
SEC. 101. APPROVAL AND ENTRY INTO FORCE OF THE AGREEMENT.
(a) Approval of Agreement and Statement of Administrative
Action.--Pursuant to section 2105 of the Bipartisan Trade
Promotion Authority Act of 2002 (19 U.S.C. 3805) and section
151 of the Trade Act of 1974 (19 U.S.C. 2191), Congress
approves--
(1) the United States-Morocco Free Trade Agreement entered
into on June 15, 2004, with Morocco and submitted to Congress
on July 15, 2004; and
(2) the statement of administrative action proposed to
implement the Agreement that was submitted to Congress on
July 15, 2004.
(b) Conditions for Entry Into Force of the Agreement.--At
such time as the President determines that Morocco has taken
measures necessary to bring it into compliance with those
provisions of the Agreement that are to take effect on the
date on which the Agreement enters into force, the President
is authorized to exchange notes with the Government of
Morocco providing for the entry into force, on or after
January 1, 2005, of the Agreement with respect to the United
States.
SEC. 102. RELATIONSHIP OF THE AGREEMENT TO UNITED STATES AND
STATE LAW.
(a) Relationship of Agreement to United States Law.--
(1) United states law to prevail in conflict.--No provision
of the Agreement, nor the application of any such provision
to any person or circumstance, which is inconsistent with any
law of the United States shall have effect.
(2) Construction.--Nothing in this Act shall be construed--
(A) to amend or modify any law of the United States, or
(B) to limit any authority conferred under any law of the
United States,
unless specifically provided for in this Act.
(b) Relationship of Agreement to State Law.--
(1) Legal challenge.--No State law, or the application
thereof, may be declared invalid as to any person or
circumstance on the ground that the provision or application
is inconsistent with the Agreement, except in an action
brought by the United States for the purpose of declaring
such law or application invalid.
(2) Definition of state law.--For purposes of this
subsection, the term ``State law'' includes--
(A) any law of a political subdivision of a State; and
(B) any State law regulating or taxing the business of
insurance.
(c) Effect of Agreement With Respect to Private Remedies.--
No person other than the United States--
(1) shall have any cause of action or defense under the
Agreement or by virtue of congressional approval thereof; or
(2) may challenge, in any action brought under any
provision of law, any action or inaction by any department,
agency, or other instrumentality of the United States, any
State, or any political subdivision of a State, on the ground
that such action or inaction is inconsistent with the
Agreement.
SEC. 103. IMPLEMENTING ACTIONS IN ANTICIPATION OF ENTRY INTO
FORCE AND INITIAL REGULATIONS.
(a) Implementing Actions.--
(1) Proclamation authority.--After the date of the
enactment of this Act--
(A) the President may proclaim such actions, and
(B) other appropriate officers of the United States
Government may issue such regulations,
as may be necessary to ensure that any provision of this Act,
or amendment made by this Act, that takes effect on the date
the Agreement enters into force is appropriately implemented
on such date, but no such proclamation or regulation may have
an effective date earlier than the date the Agreement enters
into force.
(2) Effective date of certain proclaimed actions.--Any
action proclaimed by the President under the authority of
this Act that is not subject to the consultation and layover
provisions under section 104 may not take effect before the
15th day after the date on which the text of the proclamation
is published in the Federal Register.
(3) Waiver of 15-day restriction.--The 15-day restriction
in paragraph (2) on the taking effect of proclaimed actions
is waived to the extent that the application of such
restriction would prevent the taking effect on the date the
Agreement enters into force of any action proclaimed under
this section.
(b) Initial Regulations.--Initial regulations necessary or
appropriate to carry out the actions required by or
authorized under this Act or proposed in the statement of
administrative action submitted under section 101(a)(2) to
implement the Agreement shall, to the maximum extent
feasible, be issued within 1 year after the date on which the
Agreement enters into force. In the case of any implementing
action that takes effect on a date after the date on which
the Agreement enters into force, initial regulations to carry
out that action shall, to the maximum extent feasible, be
issued within 1 year after such effective date.
SEC. 104. CONSULTATION AND LAYOVER PROVISIONS FOR, AND
EFFECTIVE DATE OF, PROCLAIMED ACTIONS.
If a provision of this Act provides that the implementation
of an action by the President by proclamation is subject to
the consultation and layover requirements of this section,
such action may be proclaimed only if--
(1) the President has obtained advice regarding the
proposed action from--
(A) the appropriate advisory committees established under
section 135 of the Trade Act of 1974 (19 U.S.C. 2155); and
(B) the United States International Trade Commission;
(2) the President has submitted to the Committee on Finance
of the Senate and the Committee on Ways and Means of the
House of Representatives a report that sets forth--
(A) the action proposed to be proclaimed and the reasons
therefor; and
(B) the advice obtained under paragraph (1);
(3) a period of 60 calendar days, beginning on the first
day on which the requirements set forth in paragraphs (1) and
(2) have been met has expired; and
(4) the President has consulted with such Committees
regarding the proposed action during the period referred to
in paragraph (3).
SEC. 105. ADMINISTRATION OF DISPUTE SETTLEMENT PROCEEDINGS.
(a) Establishment or Designation of Office.--The President
is authorized to establish or designate within the Department
of Commerce an office that shall be responsible for providing
administrative assistance to panels established under chapter
20 of the Agreement. The office may not be considered to be
an agency for purposes of section 552 of title 5, United
States Code.
(b) Authorization of Appropriations.--There are authorized
to be appropriated for each fiscal year after fiscal year
2004 to the Department of Commerce such sums as may be
necessary for the establishment and operations of the office
under subsection (a) and for the payment of the United States
share of the expenses of panels established under chapter 20
of the Agreement.
SEC. 106. ARBITRATION OF CLAIMS.
The United States is authorized to resolve any claim
against the United States covered by article 10.15.1(a)(i)(C)
or article 10.15.1(b)(i)(C) of the Agreement, pursuant to the
Investor-State Dispute Settlement procedures set forth in
section B of chapter 10 of the Agreement.
SEC. 107. EFFECTIVE DATES; EFFECT OF TERMINATION.
(a) Effective Dates.--Except as provided in subsection (b),
the provisions of this Act and the amendments made by this
Act take effect on the date the Agreement enters into force.
(b) Exceptions.--Sections 1 through 3 and this title take
effect on the date of the enactment of this Act.
(c) Termination of the Agreement.--On the date on which the
Agreement terminates, the provisions of this Act (other than
this subsection) and the amendments made by this Act shall
cease to be effective.
TITLE II--CUSTOMS PROVISIONS
SEC. 201. TARIFF MODIFICATIONS.
(a) Tariff Modifications Provided for in the Agreement.--
(1) Proclamation authority.--The President may proclaim--
(A) such modifications or continuation of any duty,
(B) such continuation of duty-free or excise treatment, or
(C) such additional duties,
as the President determines to be necessary or appropriate to
carry out or apply articles 2.3, 2.5, 2.6, 4.1, 4.3.9,
4.3.10, 4.3.11, 4.3.13, 4.3.14, and 4.3.15, and Annex IV of
the Agreement.
(2) Effect on moroccan gsp status.--Notwithstanding section
502(a)(1) of the Trade Act of 1974 (19 U.S.C. 2462(a)(1)),
the President shall terminate the designation of Morocco as a
beneficiary developing country for purposes of title V of the
Trade Act of 1974 on the date of entry into force of the
Agreement.
(b) Other Tariff Modifications.--Subject to the
consultation and layover provisions of section 104, the
President may proclaim--
(1) such modifications or continuation of any duty,
(2) such modifications as the United States may agree to
with Morocco regarding the staging of any duty treatment set
forth in Annex IV of the Agreement,
(3) such continuation of duty-free or excise treatment, or
(4) such additional duties,
as the President determines to be necessary or appropriate to
maintain the general level of reciprocal and mutually
advantageous concessions with respect to Morocco provided for
by the Agreement.
(c) Conversion to Ad Valorem Rates.--For purposes of
subsections (a) and (b), with respect to any good for which
the base rate in the Tariff Schedule of the United States
[[Page H6617]]
to Annex IV of the Agreement is a specific or compound rate
of duty, the President may substitute for the base rate an ad
valorem rate that the President determines to be equivalent
to the base rate.
SEC. 202. ADDITIONAL DUTIES ON CERTAIN AGRICULTURAL GOODS.
(a) Definitions.--In this section:
(1) Agricultural safeguard good.--The term ``agricultural
safeguard good'' means a good--
(A) that qualifies as an originating good under section
203;
(B) that is included in the U.S. Agricultural Safeguard
List set forth in Annex 3-A of the Agreement; and
(C) for which a claim for preferential treatment under the
Agreement has been made.
(2) Applicable ntr (mfn) rate of duty.--The term
``applicable NTR (MFN) rate of duty'' means, with respect to
an agricultural safeguard good, a rate of duty that is the
lesser of--
(A) the column 1 general rate of duty that would have been
imposed under the HTS on the same agricultural safeguard good
entered, without a claim for preferential tariff treatment,
on the date on which the additional duty is imposed under
subsection (b); or
(B) the column 1 general rate of duty that would have been
imposed under the HTS on the same agricultural safeguard good
entered, without a claim for preferential tariff treatment,
on December 31, 2004.
(3) F.O.B.--The term ``F.O.B.'' means free on board,
regardless of the mode of transportation, at the point of
direct shipment by the seller to the buyer.
(4) Schedule rate of duty.--The term ``schedule rate of
duty'' means, with respect to an agricultural safeguard good,
the rate of duty for that good set out in the Tariff Schedule
of the United States to Annex IV of the Agreement.
(5) Trigger price.--The ``trigger price'' for a good means
the trigger price indicated for that good in the U.S.
Agricultural Safeguard List set forth in Annex 3-A of the
Agreement or any amendment thereto.
(6) Unit import price.--The ``unit import price'' of a good
means the price of the good determined on the basis of the
F.O.B. import price of the good, expressed in either dollars
per kilogram or dollars per liter, whichever unit of measure
is indicated for the good in the U.S. Agricultural Safeguard
List set forth in Annex 3-A of the Agreement.
(b) Additional Duties on Agricultural Safeguard Goods.--
(1) Additional duties.--In addition to any duty proclaimed
under subsection (a) or (b) of section 201, and subject to
paragraphs (3), (4), (5), and (6) of this subsection, the
Secretary of the Treasury shall assess a duty on an
agricultural safeguard good, in the amount determined under
paragraph (2), if the Secretary determines that the unit
import price of the good when it enters the United States is
less than the trigger price for that good.
(2) Calculation of additional duty.--The additional duty
assessed under this subsection on an agricultural safeguard
good shall be an amount determined in accordance with the
following table:
If the excess of the trigger price over The additional duty is an
the unit import price is:. amount equal to:
Not more than 10 percent of the trigger 0.
price.
More than 10 percent but not more than 40 30 percent of the excess of
percent of the trigger price. the applicable NTR (MFN)
rate of duty over the
schedule rate of duty.
More than 40 percent but not more than 60 50 percent of such excess.
percent of the trigger price.
More than 60 percent but not more than 75 70 percent of such excess.
percent of the trigger price.
More than 75 percent of the trigger price. 100 percent of such excess.
(3) Exceptions.--No additional duty shall be assessed on a
good under this subsection if, at the time of entry, the good
is subject to import relief under--
(A) subtitle A of title III of this Act; or
(B) chapter 1 of title II of the Trade Act of 1974 (19
U.S.C. 2251 et seq.).
(4) Termination.--The assessment of an additional duty on a
good under this subsection shall cease to apply to that good
on the date on which duty-free treatment must be provided to
that good under the Tariff Schedule of the United States to
Annex IV of the Agreement.
(5) Tariff-rate quotas.--If an agricultural safeguard good
is subject to a tariff-rate quota under the Agreement, any
additional duty assessed under this subsection shall be
applied only to over-quota imports of the good.
(6) Notice.--Not later than 60 days after the date on which
the Secretary of the Treasury assesses an additional duty on
a good under this subsection, the Secretary shall notify the
Government of Morocco in writing of such action and shall
provide to the Government of Morocco data supporting the
assessment of additional duties.
SEC. 203. RULES OF ORIGIN.
(a) Application and Interpretation.--In this section:
(1) Tariff classification.--The basis for any tariff
classification is the HTS.
(2) Reference to hts.--Whenever in this section there is a
reference to a heading or sub-heading, such reference shall
be a reference to a heading or subheading of the HTS.
(b) Originating Goods.--
(1) In general.--For purposes of this Act and for purposes
of implementing the preferential tariff treatment provided
for under the Agreement, a good is an originating good if--
(A) the good is imported directly--
(i) from the territory of Morocco into the territory of the
United States; or
(ii) from the territory of the United States into the
territory of Morocco; and
(B)(i) the good is a good wholly the growth, product, or
manufacture of Morocco or the United States, or both;
(ii) the good (other than a good to which clause (iii)
applies) is a new or different article of commerce that has
been grown, produced, or manufactured in Morocco, the United
States, or both, and meets the requirements of paragraph (2);
or
(iii)(I) the good is a good covered by Annex 4-A or 5-A of
the Agreement;
(II)(aa) each of the nonoriginating materials used in the
production of the good undergoes an applicable change in
tariff classification specified in such Annex as a result of
production occurring entirely in the territory of Morocco or
the United States, or both; or
(bb) the good otherwise satisfies the requirements
specified in such Annex; and
(III) the good satisfies all other applicable requirements
of this section.
(2) Requirements.--A good described in paragraph (1)(B)(ii)
is an originating good only if the sum of--
(A) the value of each material produced in the territory of
Morocco or the United States, or both, and
(B) the direct costs of processing operations performed in
the territory of Morocco or the United States, or both,
is not less than 35 percent of the appraised value of the
good at the time the good is entered into the territory of
the United States.
(c) Cumulation.--
(1) Originating good or material incorporated into goods of
other country.--An originating good or a material produced in
the territory of Morocco or the United States, or both, that
is incorporated into a good in the territory of the other
country shall be considered to originate in the territory of
the other country.
(2) Multiple procedures.--A good that is grown, produced,
or manufactured in the territory of Morocco or the United
States, or both, by 1 or more producers, is an originating
good if the good satisfies the requirements of subsection (b)
and all other applicable requirements of this section.
(d) Value of Materials.--
(1) In general.--Except as provided in paragraph (2), the
value of a material produced in the territory of Morocco or
the United States, or both, includes the following:
(A) The price actually paid or payable for the material by
the producer of such good.
(B) The freight, insurance, packing, and all other costs
incurred in transporting the material to the producer's
plant, if such costs are not included in the price referred
to in subparagraph (A).
(C) The cost of waste or spoilage resulting from the use of
the material in the growth, production, or manufacture of the
good, less the value of recoverable scrap.
(D) Taxes or customs duties imposed on the material by
Morocco, the United States, or both, if the taxes or customs
duties are not remitted upon exportation from the territory
of Morocco or the United States, as the case may be.
(2) Exception.--If the relationship between the producer of
a good and the seller of a material influenced the price
actually paid or payable for the material, or if there is no
price actually paid or payable by the producer for the
material, the value of the material produced in the territory
of Morocco or the United States, or both, includes the
following:
(A) All expenses incurred in the growth, production, or
manufacture of the material, including general expenses.
(B) A reasonable amount for profit.
(C) Freight, insurance, packing, and all other costs
incurred in transporting the material to the producer's
plant.
(e) Packaging and Packing Materials and Containers for
Retail Sale and for Shipment.--Packaging and packing
materials and containers for retail sale and shipment shall
be disregarded in determining whether a good qualifies as an
originating good, except to the extent that the value of such
packaging and packing materials and containers have been
included in meeting the requirements set forth in subsection
(b)(2).
(f) Indirect Materials.--Indirect materials shall be
disregarded in determining whether a good qualifies as an
originating good, except that the cost of such indirect
materials may be included in meeting the requirements set
forth in subsection (b)(2).
[[Page H6618]]
(g) Transit and Transshipment.--A good shall not be
considered to meet the requirement of subsection (b)(1)(A)
if, after exportation from the territory of Morocco or the
United States, the good undergoes production, manufacturing,
or any other operation outside the territory of Morocco or
the United States, other than unloading, reloading, or any
other operation necessary to preserve the good in good
condition or to transport the good to the territory of the
United States or Morocco.
(h) Textile and Apparel Goods.--
(1) De minimis amounts of nonoriginating materials.--
(A) In general.--Except as provided in subparagraph (B), a
textile or apparel good that is not an originating good
because certain fibers or yarns used in the production of the
component of the good that determines the tariff
classification of the good do not undergo an applicable
change in tariff classification set out in Annex 4-A of the
Agreement shall be considered to be an originating good if
the total weight of all such fibers or yarns in that
component is not more than 7 percent of the total weight of
that component.
(B) Certain textile or apparel goods.--A textile or apparel
good containing elastomeric yarns in the component of the
good that determines the tariff classification of the good
shall be considered to be an originating good only if such
yarns are wholly formed in the territory of Morocco or the
United States.
(C) Yarn, fabric, or group of fibers.--For purposes of this
paragraph, in the case of a textile or apparel good that is a
yarn, fabric, or group of fibers, the term ``component of the
good that determines the tariff classification of the good''
means all of the fibers in the yarn, fabric, or group of
fibers.
(2) Goods put up in sets for retail sale.--Notwithstanding
the rules set forth in Annex 4-A of the Agreement, textile or
apparel goods classifiable as goods put up in sets for retail
sale as provided for in General Rule of Interpretation 3 of
the HTS shall not be considered to be originating goods
unless each of the goods in the set is an originating good or
the total value of the nonoriginating goods in the set does
not exceed 10 percent of the value of the set determined for
purposes of assessing customs duties.
(i) Definitions.--In this section:
(1) Direct costs of processing operations.--
(A) In general.--The term ``direct costs of processing
operations'', with respect to a good, includes, to the extent
they are includable in the appraised value of the good when
imported into Morocco or the United States, as the case may
be, the following:
(i) All actual labor costs involved in the growth,
production, or manufacture of the good, including fringe
benefits, on-the-job training, and the costs of engineering,
supervisory, quality control, and similar personnel.
(ii) Tools, dies, molds, and other indirect materials, and
depreciation on machinery and equipment that are allocable to
the good.
(iii) Research, development, design, engineering, and
blueprint costs, to the extent that they are allocable to the
good.
(iv) Costs of inspecting and testing the good.
(v) Costs of packaging the good for export to the territory
of the other country.
(B) Exceptions.--The term ``direct costs of processing
operations'' does not include costs that are not directly
attributable to a good or are not costs of growth,
production, or manufacture of the good, such as--
(i) profit; and
(ii) general expenses of doing business that are either not
allocable to the good or are not related to the growth,
production, or manufacture of the good, such as
administrative salaries, casualty and liability insurance,
advertising, and sales staff salaries, commissions, or
expenses.
(2) Good.--The term ``good'' means any merchandise,
product, article, or material.
(3) Good wholly the growth, product, or manufacture of
morocco, the united states, or both.--The term ``good wholly
the growth, product, or manufacture of Morocco, the United
States, or both'' means--
(A) a mineral good extracted in the territory of Morocco or
the United States, or both;
(B) a vegetable good, as such a good is provided for in the
HTS, harvested in the territory of Morocco or the United
States, or both;
(C) a live animal born and raised in the territory of
Morocco or the United States, or both;
(D) a good obtained from live animals raised in the
territory of Morocco or the United States, or both;
(E) a good obtained from hunting, trapping, or fishing in
the territory of Morocco or the United States, or both;
(F) a good (fish, shellfish, and other marine life) taken
from the sea by vessels registered or recorded with Morocco
or the United States and flying the flag of that country;
(G) a good produced from goods referred to in subparagraph
(F) on board factory ships registered or recorded with
Morocco or the United States and flying the flag of that
country;
(H) a good taken by Morocco or the United States or a
person of Morocco or the United States from the seabed or
beneath the seabed outside territorial waters, if Morocco or
the United States has rights to exploit such seabed;
(I) a good taken from outer space, if such good is obtained
by Morocco or the United States or a person of Morocco or the
United States and not processed in the territory of a country
other than Morocco or the United States;
(J) waste and scrap derived from--
(i) production or manufacture in the territory of Morocco
or the United States, or both; or
(ii) used goods collected in the territory of Morocco or
the United States, or both, if such goods are fit only for
the recovery of raw materials;
(K) a recovered good derived in the territory of Morocco or
the United States from used goods and utilized in the
territory of that country in the production of remanufactured
goods; and
(L) a good produced in the territory of Morocco or the
United States, or both, exclusively--
(i) from goods referred to in subparagraphs (A) through
(J), or
(ii) from the derivatives of goods referred to in clause
(i),
at any stage of production.
(4) Indirect material.--The term ``indirect material''
means a good used in the growth, production, manufacture,
testing, or inspection of a good but not physically
incorporated into the good, or a good used in the maintenance
of buildings or the operation of equipment associated with
the growth, production, or manufacture of a good, including--
(A) fuel and energy;
(B) tools, dies, and molds;
(C) spare parts and materials used in the maintenance of
equipment and buildings;
(D) lubricants, greases, compounding materials, and other
materials used in the growth, production, or manufacture of a
good or used to operate equipment and buildings;
(E) gloves, glasses, footwear, clothing, safety equipment,
and supplies;
(F) equipment, devices, and supplies used for testing or
inspecting the good;
(G) catalysts and solvents; and
(H) any other goods that are not incorporated into the good
but the use of which in the growth, production, or
manufacture of the good can reasonably be demonstrated to be
a part of that growth, production, or manufacture.
(5) Material.--The term ``material'' means a good,
including a part or ingredient, that is used in the growth,
production, or manufacture of another good that is a new or
different article of commerce that has been grown, produced,
or manufactured in Morocco, the United States, or both.
(6) Material produced in the territory of morocco or the
united states, or both.--The term ``material produced in the
territory of Morocco or the United States, or both'' means a
good that is either wholly the growth, product, or
manufacture of Morocco, the United States, or both, or a new
or different article of commerce that has been grown,
produced, or manufactured in the territory of Morocco or the
United States, or both.
(7) New or different article of commerce.--
(A) In general.--The term ``new or different article of
commerce'' means, except as provided in subparagraph (B), a
good that--
(i) has been substantially transformed from a good or
material that is not wholly the growth, product, or
manufacture of Morocco, the United States, or both; and
(ii) has a new name, character, or use distinct from the
good or material from which it was transformed.
(B) Exception.--A good shall not be considered a new or
different article of commerce by virtue of having undergone
simple combining or packaging operations, or mere dilution
with water or another substance that does not materially
alter the characteristics of the good.
(8) Recovered goods.--The term ``recovered goods'' means
materials in the form of individual parts that result from--
(A) the complete disassembly of used goods into individual
parts; and
(B) the cleaning, inspecting, testing, or other processing
of those parts that is necessary for improvement to sound
working condition.
(9) Remanufactured good.--The term ``remanufactured good''
means an industrial good that is assembled in the territory
of Morocco or the United States and that--
(A) is entirely or partially comprised of recovered goods;
(B) has a similar life expectancy to, and meets similar
performance standards as, a like good that is new; and
(C) enjoys a factory warranty similar to that of a like
good that is new.
(10) Simple combining or packaging operations.--The term
``simple combining or packaging operations'' means operations
such as adding batteries to electronic devices, fitting
together a small number of components by bolting, gluing, or
soldering, or packing or repacking components together.
(11) Substantially transformed.--The term ``substantially
transformed'' means, with respect to a good or material,
changed as the result of a manufacturing or processing
operation so that--
(A)(i) the good or material is converted from a good that
has multiple uses into a good or material that has limited
uses;
[[Page H6619]]
(ii) the physical properties of the good or material are
changed to a significant extent; or
(iii) the operation undergone by the good or material is
complex by reason of the number of processes and materials
involved and the time and level of skill required to perform
those processes; and
(B) the good or material loses its separate identity in the
manufacturing or processing operation.
(j) Presidential Proclamation Authority.--
(1) In general.--The President is authorized to proclaim,
as part of the HTS--
(A) the provisions set out in Annex 4-A and Annex 5-A of
the Agreement; and
(B) any additional subordinate category necessary to carry
out this title consistent with the Agreement.
(2) Modifications.--
(A) In general.--Subject to the consultation and layover
provisions of section 104, the President may proclaim
modifications to the provisions proclaimed under the
authority of paragraph (1)(A), other than provisions of
chapters 50 through 63 of the HTS, as included in Annex 4-A
of the Agreement.
(B) Additional proclamations.--Notwithstanding subparagraph
(A), and subject to the consultation and layover provisions
of section 104, the President may proclaim--
(i) modifications to the provisions proclaimed under the
authority of paragraph (1)(A) as are necessary to implement
an agreement with Morocco pursuant to article 4.3.6 of the
Agreement; and
(ii) before the end of the 1-year period beginning on the
date of the enactment of this Act, modifications to correct
any typographical, clerical, or other nonsubstantive
technical error regarding the provisions of chapters 50
through 63 of the HTS, as included in Annex 4-A of the
Agreement.
SEC. 204. ENFORCEMENT RELATING TO TRADE IN TEXTILE AND
APPAREL GOODS.
(a) Action During Verification.--
(1) In general.--If the Secretary of the Treasury requests
the Government of Morocco to conduct a verification pursuant
to article 4.4 of the Agreement for purposes of making a
determination under paragraph (2), the President may direct
the Secretary to take appropriate action described in
subsection (b) while the verification is being conducted.
(2) Determination.--A determination under this paragraph is
a determination--
(A) that an exporter or producer in Morocco is complying
with applicable customs laws, regulations, procedures,
requirements, or practices affecting trade in textile or
apparel goods; or
(B) that a claim that a textile or apparel good exported or
produced by such exporter or producer--
(i) qualifies as an originating good under section 203 of
this Act, or
(ii) is a good of Morocco,
is accurate.
(b) Appropriate Action Described.--Appropriate action under
subsection (a)(1) includes--
(1) suspension of liquidation of the entry of any textile
or apparel good exported or produced by the person that is
the subject of a verification referred to in subsection
(a)(1) regarding compliance described in subsection
(a)(2)(A), in a case in which the request for verification
was based on a reasonable suspicion of unlawful activity
related to such goods; and
(2) suspension of liquidation of the entry of a textile or
apparel good for which a claim has been made that is the
subject of a verification referred to in subsection (a)(1)
regarding a claim described in subsection (a)(2)(B).
(c) Action When Information is Insufficient.--If the
Secretary of the Treasury determines that the information
obtained within 12 months after making a request for a
verification under subsection (a)(1) is insufficient to make
a determination under subsection (a)(2), the President may
direct the Secretary to take appropriate action described in
subsection (d) until such time as the Secretary receives
information sufficient to make a determination under
subsection (a)(2) or until such earlier date as the President
may direct.
(d) Appropriate Action Described.--Appropriate action
referred to in subsection (c) includes--
(1) publication of the name and address of the person that
is the subject of the verification;
(2) denial of preferential tariff treatment under the
Agreement to--
(A) any textile or apparel good exported or produced by the
person that is the subject of a verification referred to in
subsection (a)(1) regarding compliance described in
subsection (a)(2)(A); or
(B) a textile or apparel good for which a claim has been
made that is the subject of a verification referred to in
subsection (a)(1) regarding a claim described in subsection
(a)(2)(B); and
(3) denial of entry into the United States of--
(A) any textile or apparel good exported or produced by the
person that is the subject of a verification referred to in
subsection (a)(1) regarding compliance described in
subsection (a)(2)(A); or
(B) a textile or apparel good for which a claim has been
made that is the subject of a verification referred to in
subsection (a)(1) regarding a claim described in subsection
(a)(2)(B).
SEC. 205. REGULATIONS.
The Secretary of the Treasury shall prescribe such
regulations as may be necessary to carry out--
(1) subsections (a) through (i) of section 203;
(2) amendments to existing law made by the subsections
referred to in paragraph (1); and
(3) proclamations issued under section 203(j).
TITLE III--RELIEF FROM IMPORTS
SEC. 301. DEFINITIONS.
In this title:
(1) Moroccan article.--The term ``Moroccan article'' means
an article that qualifies as an originating good under
section 203(b) of this Act or receives preferential tariff
treatment under paragraphs 9 through 15 of article 4.3 of the
Agreement.
(2) Moroccan textile or apparel article.--The term
``Moroccan textile or apparel article'' means an article
that--
(A) is listed in the Annex to the Agreement on Textiles and
Clothing referred to in section 101(d)(4) of the Uruguay
Round Agreements Act (19 U.S.C. 3511(d)(4)); and
(B) is a Moroccan article.
(3) Commission.--The term ``Commission'' means the United
States International Trade Commission.
Subtitle A--Relief From Imports Benefiting From the Agreement
SEC. 311. COMMENCING OF ACTION FOR RELIEF.
(a) Filing of Petition.--
(1) In general.--A petition requesting action under this
subtitle for the purpose of adjusting to the obligations of
the United States under the Agreement may be filed with the
Commission by an entity, including a trade association, firm,
certified or recognized union, or group of workers, that is
representative of an industry. The Commission shall transmit
a copy of any petition filed under this subsection to the
United States Trade Representative.
(2) Provisional relief.--An entity filing a petition under
this subsection may request that provisional relief be
provided as if the petition had been filed under section
202(a) of the Trade Act of 1974 (19 U.S.C. 2252(a)).
(3) Critical circumstances.--Any allegation that critical
circumstances exist shall be included in the petition.
(b) Investigation and Determination.--Upon the filing of a
petition under subsection (a), the Commission, unless
subsection (d) applies, shall promptly initiate an
investigation to determine whether, as a result of the
reduction or elimination of a duty provided for under the
Agreement, a Moroccan article is being imported into the
United States in such increased quantities, in absolute terms
or relative to domestic production, and under such conditions
that imports of the Moroccan article constitute a substantial
cause of serious injury or threat thereof to the domestic
industry producing an article that is like, or directly
competitive with, the imported article.
(c) Applicable Provisions.--The following provisions of
section 202 of the Trade Act of 1974 (19 U.S.C. 2252) apply
with respect to any investigation initiated under subsection
(b):
(1) Paragraphs (1)(B) and (3) of subsection (b).
(2) Subsection (c).
(3) Subsection (d).
(4) Subsection (i).
(d) Articles Exempt From Investigation.--No investigation
may be initiated under this section with respect to any
Moroccan article if, after the date on which the Agreement
enters into force, import relief has been provided with
respect to that Moroccan article under this subtitle.
SEC. 312. COMMISSION ACTION ON PETITION.
(a) Determination.--Not later than 120 days (180 days if
critical circumstances have been alleged) after the date on
which an investigation is initiated under section 311(b) with
respect to a petition, the Commission shall make the
determination required under that section.
(b) Applicable Provisions.--For purposes of this subtitle,
the provisions of paragraphs (1), (2), and (3) of section
330(d) of the Tariff Act of 1930 (19 U.S.C. 1330(d) (1), (2),
and (3)) shall be applied with respect to determinations and
findings made under this section as if such determinations
and findings were made under section 202 of the Trade Act of
1974 (19 U.S.C. 2252).
(c) Additional Finding and Recommendation if Determination
Affirmative.--If the determination made by the Commission
under subsection (a) with respect to imports of an article is
affirmative, or if the President may consider a determination
of the Commission to be an affirmative determination as
provided for under paragraph (1) of section 330(d) of the
Tariff Act of 1930) (19 U.S.C. 1330(d)), the Commission shall
find, and recommend to the President in the report required
under subsection (d), the amount of import relief that is
necessary to remedy or prevent the injury found by the
Commission in the determination and to facilitate the efforts
of the domestic industry to make a positive adjustment to
import competition. The import relief recommended by the
Commission under this subsection shall be limited to that
described in section 313(c). Only those members of the
Commission who voted in the affirmative under subsection (a)
are eligible to vote on the proposed action to remedy or
prevent the injury found by the Commission. Members of the
Commission who did not vote in the affirmative may submit, in
the report required
[[Page H6620]]
under subsection (d), separate views regarding what action,
if any, should be taken to remedy or prevent the injury.
(d) Report to President.--Not later than the date that is
30 days after the date on which a determination is made under
subsection (a) with respect to an investigation, the
Commission shall submit to the President a report that
includes--
(1) the determination made under subsection (a) and an
explanation of the basis for the determination;
(2) if the determination under subsection (a) is
affirmative, any findings and recommendations for import
relief made under subsection (c) and an explanation of the
basis for each recommendation; and
(3) any dissenting or separate views by members of the
Commission regarding the determination and recommendation
referred to in paragraphs (1) and (2).
(e) Public Notice.--Upon submitting a report to the
President under subsection (d), the Commission shall promptly
make public such report (with the exception of information
which the Commission determines to be confidential) and shall
cause a summary thereof to be published in the Federal
Register.
SEC. 313. PROVISION OF RELIEF.
(a) In General.--Not later than the date that is 30 days
after the date on which the President receives the report of
the Commission in which the Commission's determination under
section 312(a) is affirmative, or which contains a
determination under section 312(a) that the President
considers to be affirmative under paragraph (1) of section
330(d) of the Tariff Act of 1930 (19 U.S.C. 1330(d)(1)), the
President, subject to subsection (b), shall provide relief
from imports of the article that is the subject of such
determination to the extent that the President determines
necessary to remedy or prevent the injury found by the
Commission and to facilitate the efforts of the domestic
industry to make a positive adjustment to import competition.
(b) Exception.--The President is not required to provide
import relief under this section if the President determines
that the provision of the import relief will not provide
greater economic and social benefits than costs.
(c) Nature of Relief.--
(1) In general.--The import relief (including provisional
relief) that the President is authorized to provide under
this section with respect to imports of an article is as
follows:
(A) The suspension of any further reduction provided for
under Annex IV of the Agreement in the duty imposed on such
article.
(B) An increase in the rate of duty imposed on such article
to a level that does not exceed the lesser of--
(i) the column 1 general rate of duty imposed under the HTS
on like articles at the time the import relief is provided;
or
(ii) the column 1 general rate of duty imposed under the
HTS on like articles on the day before the date on which the
Agreement enters into force.
(C) In the case of a duty applied on a seasonal basis to
such article, an increase in the rate of duty imposed on the
article to a level that does not exceed the lesser of--
(i) the column 1 general rate of duty imposed under the HTS
on like articles for the immediately preceding corresponding
season; or
(ii) the column 1 general rate of duty imposed under the
HTS on like articles on the day before the date on which the
Agreement enters into force.
(2) Progressive liberalization.--If the period for which
import relief is provided under this section is greater than
1 year, the President shall provide for the progressive
liberalization of such relief at regular intervals during the
period in which the relief is in effect.
(d) Period of Relief.--
(1) In general.--Subject to paragraph (2), any import
relief that the President provides under this section may not
be in effect for more than 3 years.
(2) Extension.--
(A) In general.--Subject to subparagraph (C), the
President, after receiving an affirmative determination from
the Commission under subparagraph (B), may extend the
effective period of any import relief provided under this
section if the President determines that--
(i) the import relief continues to be necessary to remedy
or prevent serious injury and to facilitate adjustment by the
domestic industry to import competition; and
(ii) there is evidence that the industry is making a
positive adjustment to import competition.
(B) Action by commission.--(i) Upon a petition on behalf of
the industry concerned that is filed with the Commission not
earlier than the date which is 9 months, and not later than
the date which is 6 months, before the date any action taken
under subsection (a) is to terminate, the Commission shall
conduct an investigation to determine whether action under
this section continues to be necessary to remedy or prevent
serious injury and to facilitate adjustment by the domestic
industry to import competition and whether there is evidence
that the industry is making a positive adjustment to import
competition.
(ii) The Commission shall publish notice of the
commencement of any proceeding under this subparagraph in the
Federal Register and shall, within a reasonable time
thereafter, hold a public hearing at which the Commission
shall afford interested parties and consumers an opportunity
to be present, to present evidence, and to respond to the
presentations of other parties and consumers, and otherwise
to be heard.
(iii) The Commission shall transmit to the President a
report on its investigation and determination under this
subparagraph not later than 60 days before the action under
subsection (a) is to terminate, unless the President
specifies a different date.
(C) Period of import relief.--Any import relief provided
under this section, including any extensions thereof, may
not, in the aggregate, be in effect for more than 5 years.
(e) Rate After Termination of Import Relief.--When import
relief under this section is terminated with respect to an
article, the rate of duty on that article shall be the rate
that would have been in effect, but for the provision of such
relief, on the date on which the relief terminates.
(f) Articles Exempt From Relief.--No import relief may be
provided under this section on any article that--
(1) is subject to an assessment of additional duty under
section 202(b); or
(2) has been subject to import relief under this subtitle
after the date on which the Agreement enters into force.
SEC. 314. TERMINATION OF RELIEF AUTHORITY.
(a) General Rule.--Subject to subsection (b), no import
relief may be provided under this subtitle with respect to a
good after the date that is 5 years after the date on which
duty-free treatment must be provided by the United States to
that good pursuant to Annex IV of the Agreement.
(b) Presidential Determination.--Import relief may be
provided under this subtitle in the case of a Moroccan
article after the date on which such relief would, but for
this subsection, terminate under subsection (a), if the
President determines that Morocco has consented to such
relief.
SEC. 315. COMPENSATION AUTHORITY.
For purposes of section 123 of the Trade Act of 1974 (19
U.S.C. 2133), any import relief provided by the President
under section 313 shall be treated as action taken under
chapter 1 of title II of such Act.
SEC. 316. CONFIDENTIAL BUSINESS INFORMATION.
Section 202(a)(8) of the Trade Act of 1974 (19 U.S.C.
2252(a)(8)) is amended in the first sentence--
(1) by striking ``and''; and
(2) by inserting before the period at the end ``, and title
III of the United States-Morocco Free Trade Agreement
Implementation Act''.
Subtitle B--Textile and Apparel Safeguard Measures
SEC. 321. COMMENCEMENT OF ACTION FOR RELIEF.
(a) In General.--A request under this subtitle for the
purpose of adjusting to the obligations of the United States
under the Agreement may be filed with the President by an
interested party. Upon the filing of a request, the President
shall review the request to determine, from information
presented in the request, whether to commence consideration
of the request.
(b) Publication of Request.--If the President determines
that the request under subsection (a) provides the
information necessary for the request to be considered, the
President shall cause to be published in the Federal Register
a notice of commencement of consideration of the request, and
notice seeking public comments regarding the request. The
notice shall include a summary of the request and the dates
by which comments and rebuttals must be received.
SEC. 322. DETERMINATION AND PROVISION OF RELIEF.
(a) Determination.--
(1) In general.--If a positive determination is made under
section 321(b), the President shall determine whether, as a
result of the reduction or elimination of a duty under the
Agreement, a Moroccan textile or apparel article is being
imported into the United States in such increased quantities,
in absolute terms or relative to the domestic market for that
article, and under such conditions as to cause serious
damage, or actual threat thereof, to a domestic industry
producing an article that is like, or directly competitive
with, the imported article.
(2) Serious damage.--In making a determination under
paragraph (1), the President--
(A) shall examine the effect of increased imports on the
domestic industry, as reflected in changes in such relevant
economic factors as output, productivity, utilization of
capacity, inventories, market share, exports, wages,
employment, domestic prices, profits, and investment, none of
which is necessarily decisive; and
(B) shall not consider changes in technology or consumer
preference as factors supporting a determination of serious
damage or actual threat thereof.
(b) Provision of Relief.--
(1) In general.--If a determination under subsection (a) is
affirmative, the President may provide relief from imports of
the article that is the subject of such determination, as
described in paragraph (2), to the extent that the President
determines necessary to remedy or prevent the serious damage
and to facilitate adjustment by the domestic industry to
import competition.
(2) Nature of relief.--The relief that the President is
authorized to provide under this
[[Page H6621]]
subsection with respect to imports of an article is an
increase in the rate of duty imposed on the article to a
level that does not exceed the lesser of--
(A) the column 1 general rate of duty imposed under the HTS
on like articles at the time the import relief is provided;
or
(B) the column 1 general rate of duty imposed under the HTS
on like articles on the day before the date on which the
Agreement enters into force.
SEC. 323. PERIOD OF RELIEF.
(a) In General.--Subject to subsection (b), the import
relief that the President provides under subsection (b) of
section 322 may not, in the aggregate, be in effect for more
than 3 years.
(b) Extension.--
(1) In General.--Subject to paragraph (2), the President
may extend the effective period of any import relief provided
under this subtitle for a period of not more than 2 years, if
the President determines that--
(A) the import relief continues to be necessary to remedy
or prevent serious damage and to facilitate adjustment by the
domestic industry to import competition; and
(B) there is evidence that the industry is making a
positive adjustment to import competition.
(2) Limitation.--Any relief provided under this subtitle,
including any extensions thereof, may not, in the aggregate,
be in effect for more than 5 years.
SEC. 324. ARTICLES EXEMPT FROM RELIEF.
The President may not provide import relief under this
subtitle with respect to any article if--
(1) the article has been subject to import relief under
this subtitle after the date on which the Agreement enters
into force; or
(2) the article is subject to import relief under chapter 1
of title II of the Trade Act of 1974.
SEC. 325. RATE AFTER TERMINATION OF IMPORT RELIEF.
When import relief under this subtitle is terminated with
respect to an article, the rate of duty on that article shall
be the rate that would have been in effect, but for the
provision of such relief, on the date on which the relief
terminates.
SEC. 326. TERMINATION OF RELIEF AUTHORITY.
No import relief may be provided under this subtitle with
respect to any article after the date that is 10 years after
the date on which duties on the article are eliminated
pursuant to the Agreement.
SEC. 327. COMPENSATION AUTHORITY.
For purposes of section 123 of the Trade Act of 1974 (19
U.S.C. 2133), any import relief provided by the President
under this subtitle shall be treated as action taken under
chapter 1 of title II of such Act.
SEC. 328. BUSINESS CONFIDENTIAL INFORMATION.
The President may not release information which is
submitted in a proceeding under this subtitle and which the
President considers to be confidential business information
unless the party submitting the confidential business
information had notice, at the time of submission, that such
information would be released, or such party subsequently
consents to the release of the information. To the extent a
party submits confidential business information to the
President in a proceeding under this subtitle, the party also
shall submit a nonconfidential version of the information, in
which the confidential business information is summarized or,
if necessary, deleted.
The SPEAKER pro tempore. Pursuant to House Resolution 738, the
gentleman from California (Mr. Thomas) and the gentleman from New York
(Mr. Rangel) each will control 1 hour.
The Chair recognizes the gentleman from California (Mr. Thomas).
Mr. THOMAS. Mr. Speaker, I yield myself such time as I may consume.
(Mr. THOMAS asked and was given permission to revise and extend his
remarks.)
Mr. THOMAS. Mr. Speaker, it is with great pleasure that I rise today
in strong support of H.R. 4842, which will implement the United States-
Moroccan Free Trade Agreement. This Free Trade Agreement is
comprehensive, it is solid, and it will benefit American workers across
the spectrum, including farmers, consumers, businesses, and therefore
the United States economy.
Morocco has been since the inception of this country and is today an
important strategic partner of the United States. This agreement will
enhance and in fact solidify our economic relationship. Not only will
this agreement advance our relationship with Morocco, but it serves as
a cornerstone to assist the President's broader initiative to create a
Middle East free trade area by the year 2013.
The United States has entered into additional agreements, Morocco,
Bahrain. We have entered into trade and investment framework agreements
with Kuwait, Yemen, Qatar, the United Arab Emirates, Oman, and Saudi
Arabia. Many of these countries have expressed interest in moving
forward and negotiating a free trade agreement similar to the Moroccan
agreement.
Mr. Speaker, this is a long overdue day, but it has arrived, and I am
pleased to say that the Senate has already acted on this legislation,
and when the House concludes its business on this bill it will be sent
to the President for his signature, and this is a marvelous way to end
this portion of the 108th Congress.
Mr. Speaker, I reserve the balance of my time.
Mr. RANGEL. Mr. Speaker, I yield 30 minutes to the gentleman from
Ohio (Mr. Brown) and ask unanimous consent that he be allowed to yield
time as he sees fit.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. RANGEL. Mr. Speaker, I yield myself such time as I may consume.
First, I would like the record to remain clear that in my opinion the
gentleman from California stole the election in Florida, and I just
want to get that out of the way.
But having said that, I think that this agreement that we reach today
gives us an opportunity to see what we could be doing, especially as it
relates to international treaty agreements, if we attempt to work
together.
The government of Morocco has been friendly to the United States for
years, and it is a developing country that has strived to have a
relationship between organized labor and to work to improve the quality
of life for its workers.
{time} 1615
We Democrats truly believe that we should have a bipartisan approach
to these types of issues and that there are certain principles we think
should be in all trade agreements, and that is that you protect
American jobs and that you provide for basic international labor
standards in these agreements, and you do no harm.
There are certain provisions here that deal with intellectual rights
that we really approve of, but we also believe that we should never
allow ourselves to deprive people of medicine that they may need for
their health and, indeed, for their life.
The gentleman from Michigan (Mr. Levin) has worked very, very hard to
make certain that we on the Democratic side do not unilaterally just
say out of hand that if we do not find the language we want that we
will not be supporting the bill. Indeed, we are more concerned with
having language that all civilized and industrialized countries would
want to have as a standard that can be reached with the United States
on international health.
Mr. Speaker, because of that, I ask unanimous consent to yield the
balance of my time to the gentleman from Michigan (Mr. Levin), the
distinguished senior member of the Subcommittee on Trade, and that he
be allowed to yield time as he sees fit.
The SPEAKER pro tempore (Mr. Gilchrest). Is there objection to the
request of the gentleman from New York?
There was no objection.
Mr. THOMAS. Mr. Speaker, it is my pleasure to yield such time as he
may consume to the gentleman from Illinois (Mr. Crane), the chairman of
the Subcommittee on Trade.
Mr. CRANE. Mr. Speaker, I thank the chairman for yielding me time.
Mr. Speaker, I am quite pleased that the United States and the
Kingdom of Morocco have reached agreement on a bilateral free trade
agreement. Morocco has long been a key ally in the Middle East. As many
have noted, Morocco was the first country to recognize our sovereignty;
and in 1786 we signed the U.S.-Morocco treaty of peace and friendship,
which remains the longest unbroken treaty in our Nation's history.
Once implemented, this treaty agreement will be the second of its
kind between the U.S. and a moderate Muslim ally, following our trade
agreement with the Kingdom of Jordan.
This is an important strategic agreement. While we have had a long-
standing diplomatic relationship with Morocco, the U.S.-Morocco FTA
cements the economic relationship between our countries. Two-way trade
between the U.S. and Morocco is significant, at nearly $1 billion per
year. The United States exported over $465 million to Morocco last
year, with a trade surplus of over $79 million.
[[Page H6622]]
This FTA will eliminate trade barriers, lower tariffs, and provide
increased market access for U.S. companies. By knocking down trade
barriers in Morocco and in the rest of the world, we can help support
even more American jobs. In fact, the International Trade Commission
estimates that trade between our countries should double once this
agreement is implemented.
This is a strong agreement for all sectors of the U.S. economy. Under
its terms, over 95 percent of U.S. exports of consumer and industrial
goods to Morocco will become duty free immediately. This follows the
high standards set by recently passed trade agreements with Singapore,
Chile, and Australia. This is important for U.S. manufacturers.
This is also a strong agreement for the services sector of our
economy, whether it be telecommunications, e-commerce for digital
commerce, or new opportunities for U.S. financial institutions. The
agreement also contains state-of-the-art intellectual property
provisions, including commitments in trademarks, copyrights and
patents, as well as tough penalties for piracy and counterfeiting.
Taken together, these provisions continue a trade policy that best
helps U.S. business compete in a global marketplace.
Mr. Speaker, the Farm Bureau strongly supports this agreement, which
covers all agricultural products, because for every $1 in increased
imports from Morocco, U.S. farmers can expect $10 in increased exports
to Morocco. In 2003, the United States had a trade surplus in
agricultural products with Morocco of about $82 million, with exports
of over $152 million. The Farm Bureau estimates that this agreement
could increase U.S. agricultural exports to over $450 million by 2015,
tripling our current exports. Furthermore, because Morocco's agreement
with the European Union does not include agriculture, this FTA should
give American farmers a competitive advantage over our EU counterparts.
Some have questioned whether labor laws in Morocco are adequate. To
that end, I would like to point out that the U.S.-Morocco FTA, like all
of our trade agreements, requires Morocco to enforce domestic labor
laws in accordance with the bipartisan guidance provided by the
Congress in Trade Promotion Authority.
Furthermore, in anticipation of a U.S.-Morocco FTA, the Moroccan
government, business community, and labor force, working together in a
tripartite manner, found consensus in passing a comprehensive new labor
law earlier this year that is consistent with ILO standards.
Accordingly, the agreement language creating an obligation to
effectively enforce one's laws is, in essence, the same as an
enforceable ILO standard in this agreement. I, for one, applaud Morocco
for its efforts in overhauling its labor laws in anticipation of
completing this important trade agreement.
Some on the other side, including the Subcommittee on Trade ranking
member, the gentleman from Michigan (Mr. Levin), and the Committee on
Ways and Means ranking member, the gentleman from New York (Mr.
Rangel), have raised thoughtful questions with regard to various
provisions contained in this agreement. I think we have worked well
together to address these concerns, and I am pleased that we have their
support. While we may continue to disagree on certain issues, there is
a lot of common ground from which to work, and I look forward to
continuing to work with them to pass important trade agreements.
Unfortunately, I am sure that a small group on the other side who do
oppose free trade may come to the House floor today and argue that this
agreement is inadequate in certain respects.
I would ask my colleagues to not be fooled by this rhetoric, which we
hear every time when we contemplate trade agreements. We heard it last
week during debate on our Australian Free Trade Agreement, a country
with which we have a $9 billion trade surplus; we heard it during
debate 1 year ago regarding Chile and Singapore; and I am sure we will
hear it today with regard to Morocco, a country with which we have a
trade surplus.
Please do not be fooled. This discomfort has less to do with the
provisions of this agreement than it does their dislike of free trade
generally.
Mr. Speaker, the vast majority of Members on both sides of the aisle
think differently. The American people know that millions of American
jobs are dependent upon free trade. U.S. products exported to Morocco
currently face an average tariff of more than 20 percent. This FTA will
give American businesses exporting to Morocco a leg up to compete as
they compete with the European Union. That means better, higher-paying
jobs here at home. Perhaps that is why the U.S.-Morocco FTA passed the
Committee on Ways and Means by a 26 to 0 vote on Tuesday and passed the
Senate by an overwhelming vote of 85 to 13 yesterday. I look forward to
another strong, bipartisan vote today.
Mr. Speaker, I would like to emphasize my strong support for this
agreement and my appreciation to the administration and Members on both
sides of the aisle for their efforts in completing it.
Mr. THOMAS. Mr. Speaker, I yield the balance of my time to the
gentleman from Illinois (Mr. Crane) and ask unanimous consent that he
control the time.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. BROWN of Ohio. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, while the Jordan Free Trade Agreement passed in the last
year of the Clinton administration represented a step forward in free
trade policy, recent free trade agreements provide a template to
purposely and purposefully circumvent labor and environmental laws.
To make matters worse, USTR and its pharmaceutical allies are now
including language in each trade agreement in front of this body to ban
reimportation in all agreements they negotiate. The Morocco Free Trade
Agreement is the latest example of this trade, we call it, devolution.
Last week we voted on the U.S.-Australia FTA. While Australian
workers, to be sure, enjoy the benefits of good labor laws and the
enforcement of those laws, the precedent was the same. Labor and
environmental protections were given short shrift in the core text of
the agreement, while USTR focused on ensuring the gold standard for the
pharmaceutical industry.
It is almost as if the U.S. Government dispatched the USTR again to
protect the big drug companies in this country. It is no surprise, with
the rest of the record in this body and in this administration in
protecting the drug companies on every single issue possible.
But Morocco is not Australia, and I have significant concerns about
labor and working conditions there. Like Singapore and Chile, the labor
provisions in the Morocco FTA are intentionally unenforceable.
Violations of core labor standards cannot be taken to dispute
resolution. The commitment to enforce domestic labor laws is subject to
remedies weaker than those available for commercial disputes. Again,
the commercial part of the agreement is always better, if you will,
than the labor part of the agreement, because of this body's and this
administration's low regard for worker rights.
This violates the negotiating objective of Fast Track that equivalent
remedies should exist for all parts of the agreement.
Further, the ``enforce your own laws'' standard allows countries the
opportunity to rewrite and weaken their labor laws to attract
investment and seems to be a magnet for corporate interests all over
the world to lobby those legislatures and those congresses and
parliaments to weaken their own labor law, because they are not
international labor organization standards.
Today we will vote on the U.S.-Morocco Free Trade Agreement
containing the same flawed policies on labor and on the environment and
on reimportation. The same provisions in Morocco are in the Central
America Free Trade Agreement. This agreement does not look much
different from CAFTA. So for those of you, and I think it is pretty
clear a majority of the Bush administration would have brought that
agreement up this summer, those of you voting ``no'' on CAFTA, you are
really voting for a pretty similar agreement on Morocco.
[[Page H6623]]
Every free trade template brought before this House is, as Yogi Berra
used to say, like deja vu all over again.
First, the Medicare bill passed this year specifically prohibited the
U.S. Government from negotiating lower drug prices for America's
seniors and consumers. That was one this Congress and this Bush
administration gave to the drug industry. Then the pharmaceutical
industry punished American consumers by restricting the volume of drug
inventories in Canada to prevent importation to the U.S. Then the U.S.
Trade Representative and the administration included language in the
Australia Free Trade Agreement that enables pharmaceutical companies to
prevent prescription drug reimportation to the detriment of American
consumers. Again, another bouquet from this Congress and the Bush
administration to the drug industry.
I do not think the connection is anything but obvious when you look
at the amount of money the drug industry has given to the Republican
Party, given to Republican leadership, and given to President Bush.
Now similar provisions contained in last year's Singapore FTA and in
the upcoming CAFTA are in the Morocco FTA bill that will be voted on.
Though Morocco is not on the list of countries today covered by pending
drug legislation, the importation provisions in this FTA prove this is
a precedent, it was in Australia, now it is in this, that the USTR
plans to extends this to all future trade agreements.
There is broad support in this House, there is even broader support
among seniors and among consumers, because they are not getting
campaign contributions from the drug industry, for lowering drug prices
and for allowing Americans to purchase safe, affordable drugs from
other developed nations.
I urge my colleagues to oppose the administration's back-door effort
again to close drug reimportation through trade negotiations. It is
important to overcome attempts by free trade proponents to reduce this
debate to a choice between free trade and no trade, and frame the
discussion around priorities affected by irresponsible trade policy,
labor protections, the environment, and affordable pharmaceutical
access for all nations.
This is not a debate on whether one supports trade; this is a debate
on whether one supports responsible trade. I urge my colleagues to
oppose this irresponsible trade agreement.
Mr. Speaker, I reserve the balance of my time.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, concerns about the consistency of any future drug
reimportation provisions with this free trade agreement are
hypothetical. The agreement has no force under U.S. law except to the
extent that Congress passes an implementing bill to change U.S. law.
{time} 1630
Thus, even if Congress changes U.S. law and the new law were somehow
inconsistent with the agreement, that new law would trump the
agreement. The agreement cannot prevent Congress from allowing drug
reimportation.
The drug reimportation debate in Congress has focused on changes to
the Federal Food, Drug and Cosmetic Act that would be necessary to
allow drug reimportation, such as changing its provision that only the
original manufacturer may reimport a drug. There is nothing in the
Morocco FTA or the implementing bill that addresses the Federal Food,
Drug and Cosmetic Act for this requirement.
Mr. Speaker, I yield 2 minutes to our distinguished colleague, the
gentleman from Florida (Mr. Shaw).
Mr. SHAW. Mr. Speaker, I thank the chairman for yielding me this
time, and I rise in strong support of the United States-Morocco Free
Trade Agreement pending before us here in this Chamber today.
This agreement will provide 95 percent of consumer and industrial
products in bilateral trade become duty-free immediately upon entering
into this important, historic agreement.
The chairman has already indicated that the Senate has passed this
bill and it will go right from this Chamber to the President's desk for
signature.
I strongly concur with Ambassador Bob Zoellick when he stated, ``Our
agreement with Morocco is not just a single announcement, but a vital
step in creating a mosaic of United States free trade agreements across
the Middle East and North Africa.''
This agreement sends a strong message to this particular region of
the world. This agreement enables fair and free trade between long-
standing allies. In fact, Morocco and the United States signed a Treaty
of Peace and Friendship in 1786. The Kingdom has continuously provided
military and diplomatic support for United States foreign operations,
and this partnership is solid and it is respected.
I congratulate President Bush and his Majesty, King Mohammed VI, on
this historic Free Trade Agreement.
I would like to point out to the gentleman on the other side of the
aisle that was speaking about prescription drugs and associate myself
with the remarks of the chairman concerning this matter, this House has
passed now on two occasions a bill that said that if the Food and Drug
Administration can certify that drugs from various countries, namely
Canada, are what they are and they are pure and they are not
counterfeit, that they can be imported. Under the Clinton
administration they said they could not certify that. Under the Bush
administration they said they cannot certify that. I think clearly we
are going in that direction, but that has absolutely nothing to do with
the bill that is before us.
Mr. LEVIN. Mr. Speaker, it is my pleasure to yield 2 minutes to the
gentlewoman from California (Ms. Lofgren).
Ms. LOFGREN. Mr. Speaker, this trade agreement that we are
considering today contains provisions that essentially mimic the
Digital Millennium Copyright Act, a law that is currently being
litigated and whose scope is as yet unclear. The DMCA, while intended
to protect the interests of copyright holders, may also endanger the
rights and expectations of consumers.
There is substantial reason to believe that the DMCA is having an
adverse impact on technological innovation. There are a lot of cases on
appeal, and I think ultimately this body is going to have to sort
through the DMCA so that we do not kill and stifle technological
innovation.
The FCC is now based on the DMCA, asserting the right to preapprove
every product that moves data in the United States. It sounds a little
bit like the old Stalinist regime. I think we are going to have to
revisit that, and I am concerned about the provisions in this act.
However, I have been reassured by the Trade Representative as well as
the Secretary of Commerce that the insertion of this provision in these
types of trade agreements will not prevent the Congress from doing what
ultimately we are going to have to do, which is to stop the
technological stranglehold that we have placed on that sector of the
economy, such as TiVo that we read about today, which the FCC is now
asserting that they get to decide what TiVo gets to innovate.
So based on those representations, I am going to certainly vote for
this agreement today. Certainly, my district in the heart of the
Silicon Valley needs to export, especially at a time when 35 percent of
the households say someone in their home has been out of work for more
than 3 months since January of 2001, when Mr. Bush became President.
At the same time, I call on Congress to show some leadership to the
rest of the world by amending the DMCA to make sure that we protect the
rights of copyright holders, but that we also do not stifle innovation.
Mr. Speaker, I will insert into the Record the letters from the Trade
Representative, the Secretary of Commerce, and an article I have
written on this subject.
Executive Office of the President, The United States
Trade Representative,
Washington, DC, June 17, 2003.
Hon. Zoe Lofgren,
House of Representatives,
Washington, DC.
Dear Congresswoman Lofgren: Thank you for your recent
letter regarding the Singapore and Chile Free Trade
Agreements, specifically the provisions that reflect the U.S.
Digital Millennium Copyright Act (DMCA). I am pleased that my
staff had the opportunity to brief you on our FTA
negotiations, including on the provisions that address
copyright protection in the digital age. I would like to
address your remaining concerns.
[[Page H6624]]
In the Trade Act of 2002, Congress mandated that we seek
provisions that reflect a standard of protection similar to
that found in U.S. law and that provide strong protection for
new and emerging technologies and new methods of transmitting
and distributing products embodying intellectual property. To
that end, we have included provisions in our FTAs that
reflect the historic and precedent setting standards for
intellectual property protection set forth in the DMCA. We
firmly believe that this legislation is evidence of
Congressional leadership internationally and should be a
model for how governments strike the correct balance between
copyright holders and the interests of society in the digital
age.
Our FTA provisions that reflect the DMCA were developed in
close consultation with the same major domestic stakeholders
that worked with Congress to forge the balance in the DMCA.
As you may be aware, these groups have recently reiterated
their support for our FTAs to Members of Congress and to me.
While reflecting the balance in the DMCA, our FTA provisions
merely distill the key principles of U.S. legislation; they
do not replicate every detail. This is the approach we take
throughout the text of the Agreement when reflecting U.S.
standards. We take this approach, in part, because we
recognize and support, as with all provisions of U.S. law,
the Congressional prerogative to adopt further amendments as
may be deemed appropriate in the future.
I fully understand that the DMCA has stimulated a vigorous
debate in America as well as in Congress and that there are
legislative proposals to amend the DMCA to address what may
be unintended consequences arising from its implementation.
Although at this time there does not appear to be widespread
support in Congress, or the national community at large, for
substantially revising the existing, fundamental balance
struck by the DMCA, we are quite confident that our FTA
provisions are sufficiently broad to encompass amendments
that Congress may adopt in the future that remain within the
overall balance struck in the DMCA. Moreover, the DMCA
itself provides for a periodic administrative rule-making
procedure to review the effect of the DMCA on users'
ability to make certain non-infringing uses and to create
additional exemptions to allow for such uses--a carve-out
echoed in the FTA provisions.
As I believe my staff clarified during their briefing, we
have not had the opportunity to examine H.R. 1066 and H.R.
107 in detail and have not opined on the extent to which
these proposals are consistent with our FTAs. What my staff
did indicate, which I want to reiterate here, is that the
Administration has sought to reflect faithfully a standard of
protection for intellectual property similar to that
contained in U.S. law as instructed by Congress, but in no
way to require a change in U.S. law. Legislative proposals
that do not fundamentally alter the existing overall balance
struck in U.S. law, and that comply with all existing
international obligations regarding intellectual property,
will also comply with our FTAs.
I hope this information is helpful to you.
Sincerely,
Robert B. Zoellick.
____
The Secretary of Commerce,
Washington, DC, June 5, 2003.
Hon. Zoe Lofgren,
House of Representatives,
Washington, DC.
Dear Representative Lofgren: Thank you for your letter
expressing your concerns regarding the Singapore and Chile
Free Trade Agreements (FTAs). One of the important
negotiating objectives of these agreements was to encourage
our trading partners to provide for strong protection and
enforcement of intellectual property rights, which is
especially important in the modern digital trade environment.
Although many of our trading partners already belong to the
World Trade Organization Agreement on Trade-Related Aspects
of Intellectual Property Rights, the World Intellectual
Property Organization (WIPO) Copyright Treaty, and the WIPO
Performances and Phonograms Treaty, FTAs build on that
foundation. The Singapore and Chile FTAs will ensure that
authors and owners of copyrighted works made available in
digital form receive commensurate protection, thereby
strengthening trade relations with these countries. They also
provide a framework of certainty around which companies can
begin to build legitimate businesses for the enjoyment of
creative works.
I also would like to take the opportunity to respond to
specific issues raised in your letter. You expressed concern
that the incorporation of provisions based on the Digital
Millennium copyright Act (DMCA) in the Singapore and Chile
FTAs may have an adverse impact on technological innovation.
I believe, however, that strong protection and enforcement of
intellectual property rights in FTAs facilitate the expansion
of trade and investment in digital technologies and products,
thereby advancing the interests of all parties to the FTAs.
You also expressed concern about the balance of interests
reflected in both the DMCA and the Singapore and Chile FTAs.
As you are aware, in enacting the DMCA, Congress worked hard
to achieve a balance among the various groups with interests
in the legislation, including copyright owners, users, and
Internet service providers, that also met the international
obligations set forth in the WIPO treaties. That balance is
reflected in the Singapore and Chile FTAs. If the Congress
amends the DMCA in the future, the FTAs should then be
reviewed for consistency with the amended DMCA.
I believe that the U.S. free trade agreements with
Singapore and Chile are milestones in progress toward strong
protection and enforcement of intellectual property rights
protection for the digital age. I hope that my comments have
helped you to decide in favor of supporting the Singapore and
Chile FTAs.
If you have any further questions, please feel free to
contact me or Brenda Becker, Assistant Secretary for
Legislative and Intergovernmental Affairs, at (202) 482-3662.
Sincerely,
Donald L. Evans.
____
[From San Jose Mercury News, Nov. 17, 2003.]
FCC Rule Could Harm Tech Innovation
(By Zoe Lofgren)
The Federal Communications Commission recently gave itself
unprecedented powers to keep new television sets, digital
video recorders, handheld devices, third-generation cell
phones and even computers out of the hands of American
consumers.
How? The FCC issued new rules on the so-called ``broadcast
flag,'' a proposal first put forth by the Motion Picture
Association of America purportedly to encourage broadcasters
to offer more digital programming.
The broadcast flag is a single bit of data added to the
digital television shows beamed out across the country. By
itself, the bit does nothing. Instead, the meat of the new
rule requires every future device capable of playing these
shows to recognize the flag and include built-in technologies
that prevent them from being pirated.
But here's the kicker. Under the new rules, the FCC gets
to decide if a particular technology provides sufficient
protection. If you're not on the FCC's pre-approved list, you
can't sell your product.
So what does this mean to you and me? It could mean that
future consumer electronics and computing products will never
come to market. In our digital world, the FCC is not only
targeting television sets. Computers, DVRs and handheld
devices can handle flagged content. Indeed, any future device
capable of handling digital content could potentially be
covered.
Do we want the FCC wielding veto power over a new Apple
computer, Palm handheld or Motorola cell phone? Of course
not. This country's technological leadership is rooted in
our ability to quickly adapt and innovate, words that are
not often used to describe the federal government.
The FCC's plan sounds a little like the old Soviet Union.
And we know how well centralized state control worked for
them. That's why Congress never gave the FCC the power to
dictate the design of new computers or consumer electronics
devices.
In fact, in the Digital Millennium Copyright Act, Congress
specifically disavowed such mandates. Apparently, the FCC
never got the message. Instead, the FCC believes that its
ancillary authority over broadcasting extends to every
product that brushes up against digital television. To
justify their absurd conclusion, the commissioners even argue
that they have the authority to regulate these industries
because Congress never said they couldn't.
The main problem with this or any other government mandate
is that they are rooted in the present. It is impossible to
predict where American ingenuity will take us. We should do
everything we can to foster this ingenuity, not put up
roadblocks that will only place our inventors at a
competitive disadvantage.
The FCC's attempt to become the self-anointed gatekeeper to
future innovation will undoubtedly benefit the small
consortium of companies with approved technologies. But it
will also diminish the incentive to bring new technologies to
market, hurt consumers who have bought pre-flag devices, and
set a dangerous precedent for government mandates on
technology.
That's not to say that the broadcast flag proposal should
not be discussed. If Congress, not the FCC, decides that the
broadcast flag is necessary, then it should examine ways to
implement the flag without stifling innovation and
competition. For example, voluntary, non-proprietary
standards that preserve interoperability could be set by
international non-governmental bodies.
The real goal should not be to slow down innovation, but to
find ways for broadcasters to get paid when they deserve
payment.
Mr. CRANE. Mr. Speaker, I yield 4 minutes to the gentleman from
Pennsylvania (Mr. English), who is cochair of the Morocco Caucus.
Mr. ENGLISH. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, today we are considering landmark legislation to
implement the U.S.-Morocco Free Trade Agreement, and delve deeper into
the bonds of friendship with the Kingdom of Morocco. Just 4 days ago,
we marked exactly 217 years of official relations with Morocco, the
longest unbroken diplomatic relationship in the existence of the United
States. While the furthering of our positive ties with Morocco is
certainly an important goal, this FTA really stands on its own as a
benefit to our economy.
[[Page H6625]]
The U.S.-Morocco Free Trade Agreement was negotiated over a period of
a year and a half and, once implemented, will be truly a win-win for
both of our countries. This is, in my view, an FTA which contains the
best market access package of any FTA that has been negotiated with a
developing country.
I believe it has the potential to serve as a model for future free
trade agreements with developing countries, particularly because of
tough provisions to enforce intellectual property rights. The Morocco
Free Trade Agreement contains the most advanced intellectual property
chapter in any FTA negotiated thus far. It contains language that not
only commits Morocco to fight piracy, but to fight piracy on products
that are potentially coming through as transshipment.
Morocco is a natural market for many American companies, and a Free
Trade Agreement will bring both countries closer together for mutual
benefit.
The International Trade Commission has also determined that U.S.
exports to Morocco are likely to increase dramatically, by $740
million, while imports from Morocco are likely to increase by nearly
$200 million after full implementation of the Free Trade Agreement.
The major reason for the anticipated increase in U.S. exports is due
to the fact that on day one of this agreement, 95 percent of tariffs on
industrial and consumer goods will be eliminated. Morocco has
demonstrated consistently its commitment to being a fair and
responsible trading partner. They have taken steps to guarantee the
security of foreign investment in Morocco, and have enacted sweeping
labor laws to protect their workers and to improve women's rights.
These negotiations were a catalyst for Morocco moving forward with a
modernizing labor code.
Moreover, workers in Morocco have the right to associate,
collectively bargain, and to strike. The new labor law also improved
worker safety, raised the minimum wage, and created additional
safeguards on child labor, all core obligations of the U.S.-Morocco
Free Trade Agreement, including labor and environmental provisions,
which are subject to the dispute settlement provisions of the
agreement, and the agreement includes strong enforcement mechanisms,
including the ability to suspend trade concessions or establish
monetary assessments.
This agreement deepens America's dialogue with the Middle East and
North Africa, and builds upon the free trade agreements already reached
with Israel and Jordan.
The U.S.-Morocco Free Trade Agreement, in my view, is an essential
part of the puzzle in moving forward to strengthen our trade
relationships with our trading partners, establish stronger, more
enforceable trade agreements, and establish over time a level playing
field in which American companies and American workers can thrive.
Mr. Speaker, I believe the passage of this FTA will be a significant
achievement in moving toward a stronger trade policy for the United
States, and on the strength of that, I urge all of my colleagues to
join me in supporting this FTA.
Mr. BROWN of Ohio. Mr. Speaker, I yield 4 minutes to the gentleman
from Vermont (Mr. Sanders).
Mr. SANDERS. Mr. Speaker, I thank my friend from Ohio for yielding me
this time.
Let me begin by saying I am prepared to yield time to any proponent
of this bill who can tell me what the minimum wage is in Morocco. I
heard that it has gone up. What is it, 20 cents an hour, 30 cents an
hour? What is the minimum wage in Morocco?
I am prepared to yield time if anyone who is supporting this bill
will tell me if Morocco is a democratic society. We heard about
workers' rights. My understanding is that it is an hereditary monarchy
where the legislature there could be abolished at any time by the King.
Does anybody want to respond to that? I am waiting. I hear no response.
A few minutes ago, Mr. Speaker, we were told that gay marriage was
going to destroy the fabric of American society. Well, I will tell my
colleagues what is going to destroy the fabric of American society:
pieces of legislation like this that are wiping out the middle class of
this country, are lowering our standard of living, are making the gap
between the rich and the poor grow wider.
I would yield again to my friends who are pushing this bill if they
will tell me whether they agree with Thomas Donohue, the President of
the U.S. Chamber of Commerce, who several weeks ago urged, urged
American companies to outsource, urged American companies to throw our
workers out on the street and go to China or Morocco.
Will any proponents of this legislation tell me that they disagree
with Mr. Donohue? I yield time to anybody who says they disagree with
Mr. Donohue, the chairman of the Chamber of Commerce. I do not hear it.
In other words, the proponents of this bill are telling us that they
think it is a good idea that Americans workers are thrown out on the
street, lose decent paying jobs, and are forced to compete in a race to
the bottom against desperate people all over the world who are working
for pennies an hour.
Mr. Speaker, what is happening in our society today is that while
productivity increases, while technology expands, the reality is that
the middle class is shrinking and the average American worker is
working longer hours for lower wages. There are a lot of reasons for
that, but certainly one of the reasons is that our working class, our
middle class is being asked to compete against desperate people in
Morocco, in China, all over this world. And American corporations are
saying, why should I pay an American worker $10, $15 an hour, have
unions, protect the environment, when I can go to Morocco, I can go to
China, and big money interests in this country, with the help of the
Republican leadership, is going to make it easier for me to go abroad.
What is happening to this economy is an outrage in terms of the needs
of our kids. The U.S. Department of Labor has projected that 7 out of
the 10 fastest-growing jobs in the next 10 years are going to pay low
wages, require a high school degree, with minimal benefits. We are
losing our manufacturing base. In the last 3 years, 2.7 million good-
paying manufacturing jobs gone. Now they are taking our information
technology jobs to India. Gone. And what is going to be left for our
kids? Well, Wal-Mart is doing very well; Burger King is doing very
well. Is that what we want for our kids? Why are we selling out the
middle class of this country? Why are we allowing corporate America to
go abroad?
Well, I would suggest that we should look at the campaign
contributions that come in to this institution from corporate America.
No, let us have trade that is fair, not this trade agreement.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
The new Morocco labor law is a significant improvement over existing
labor laws and regulations. The law raises the minimum employment age
from 12 to 15 to combat child labor, reduces the work week from 48 to
44 hours with overtime rates payable for additional hours, and calls
for a periodic review of the Moroccan minimum wage.
{time} 1645
Effective July 1, 2004, the minimum wage in Morocco will increase by
10 percent. Morocco did this to make itself a more attractive FTA
partner.
Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr.
Brady).
Mr. BRADY of Texas. Mr. Speaker, I thank the chairman for yielding me
the time and for his leadership on this issue.
I hope the American public was listening carefully to our friend and
colleague from Vermont. What he said was what tears apart the fabric of
America is to allow our farmers to sell more of their corn to Morocco.
He made the point that our farmers who are trying to sell more corn to
Morocco, because they buy a lot of it, our farmers who grow wheat and
sell more of it will sell more of it to Morocco, that that is bad for
America, that companies in Texas, from workers, from petro chemical
plants, our computer manufacturing plants, our chemical plants, hard-
working workers who are trying to build more products to sell overseas
to Morocco, that this will tear apart the fabric of America.
I think it is just the opposite. The problem we have is that there
are too many American-need-not-apply signs around this world. We are
not able to
[[Page H6626]]
sell our products and our goods and our services across the world.
American workers are the most productive. Our products are great. We
need a chance to sell them to customers throughout the world, and what
this agreement does is make sure that we are given a fair chance to
sell the great products that we build.
In Texas we are the fourth largest exporting State to Morocco, $23
million of goods and services: ag products, petroleum products,
chemical products, processed foods, computers and electronics. All made
by Texas workers who want to sell their products overseas, but we are
blocked. This agreement opens those markets for all workers, because
that is their future, to sell more products to whoever can afford to do
that.
And as Americans, we know that unless we open these markets, if we
just agree to sell to ourselves, to allow Europe to sell to these
markets, Asia to sell to these markets, South America to sell to these
markets, our prosperity is in danger. This is a great agreement for
American workers, and I strongly support it.
Mr. LEVIN. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Meeks).
Mr. MEEKS of New York. Mr. Speaker, I thank the gentleman for
yielding me this time.
Passage of this agreement stands to greatly benefit the United States
of America, which enjoys a consistent yearly trade surplus with
Morocco, totaling over $1.5 billion from 1992 to 2003. This agreement
is a high-standard, comprehensive one that will eliminate tariff and
nontariff barriers to trade.
In fact, the agreement represents the best industrial and consumer
goods market access package of any U.S. FTA with a developing nation.
The agreement also levels the playing field for U.S. businesses,
farmers, and workers vis-a-vis European competitors, who have for far
too long enjoyed a competitive advantage over the United States
suppliers of goods, services, and agricultural products. The agreement
will also serve as a key building block toward the establishment of a
broader Middle East free trade area.
Through this FTA, Morocco also sets an important example throughout
the developing world of the benefits of trade liberalization and
strategic importance of high-standard rules that should govern trade.
In this respect, the FTA includes the best of intellectual property
rights protections negotiated to date by the United States.
In addition, the Moroccan government has used the FTA negotiating
process to strengthen its own laws, particularly with respect to the
status of women and labor rights, two measures which distinguish
Morocco from many of its Arab neighbors.
Finally, this FTA is historic. It is a historic milestone in the
United States and Morocco bilateral relationship, which began well over
200 years ago, where Morocco was the first country to recognize the
newly independent United States of America. Morocco today remains one
of the United States' closest political allies in the war against
terror and a steadfast friend in advancing peace in the Middle East.
And it is for these reasons I urge all of my colleagues to support
the U.S.-Morocco Free Trade Agreement. This is a solid agreement that
promotes our commercial interests and contains important provisions on
agriculture, labor, and intellectual property.
Mr. CRANE. Mr. Speaker, let me first congratulate the former speaker
for his presentation and what he had to say.
Mr. Speaker, I yield 3 minutes to the gentleman from Nebraska (Mr.
Bereuter).
(Mr. BEREUTER asked and was given permission to revise and extend his
remarks.)
Mr. BEREUTER. Mr. Speaker, I rise in strong support of this
legislation. I thank the chairman for yielding me time.
There are a number of economic reasons why this FTA is very much in
the national interest of the United States, but I want to focus a few
comments on the diplomatic or foreign policy reasons. The FTA with
Morocco is in our Nation's interest because it will begin to implement
the President's vision for a U.S.-Middle East free trade area. I also
believe it is important to support the economic reform that is going on
in Morocco, a nation where Islam has deep roots and which occupies a
leadership position in the Arab world.
As mentioned frequently here, American friendship in Morocco extends
back to the beginning of our Republic. We have the longest-standing
friendship treaty with that country of any in the world. The enactment
of the FTA legislation with Morocco is a vitally important part of the
process of boosting economic reform inside the Kingdom of Morocco. In
addition, this FTA helps further link the Middle East into the global
economic system and spur economic growth and investment. These closer
commercial links with our key allies such as Morocco are critically
important to the region of the world. And hear this: this legislation
makes it less likely, less likely that jobs and businesses will move to
Morocco, not more likely.
It is also vital to point out that Morocco has recently undertaken a
diplomatic offensive designed to improve its relations with its
neighbors to settle a 3-decade-old Saharan conflict. It is also
stepping up its antiterrorism cooperation with the U.S. and with
Algeria. And recently, it was designated as a major non-NATO ally. That
should enable it to get the requisite assistance and cooperation to
strengthen our regional and bilateral relationship.
Mr. Speaker, for economic or export reasons, there are three primary
reasons why this is a good step for us. This FTA is in the best
agriculture interest of the United States. Number two, the FTA will
give us market access for businesses. And, three, it meets the labor
and environmental standards set out in the Trade Promotion Act.
In the area of agriculture, it means, for example, that we are going
to have an estimated triple increase in our exports to Morocco. In the
area of industrial products, it is suggested that our greater market
access will be very important. More than 95 percent of the bilateral
trade industrial products will become duty-free immediately upon entry
into force of this agreement. And in the third area, as I mentioned, it
does meet the labor and environmental standards.
Moreover, Morocco recently passed a comprehensive new labor law that
meets international labor organizational core labor standards,
including right of workers to strike.
In conclusion, this is a very good step for the United States. It is
very good for our bilateral relations, and I would say finally that the
Mediterranean Group of the NATO Parliamentary Assembly, I happen to be
the president, recently visited Morocco, and as a result of that visit,
by unanimous action in the standing committee, we decided to upgrade
Morocco from observer status to an associate member status because of
the significant progress they are making in democracy in their
parliament.
For all of these reasons, I urge strong support of the legislation.
Mr. BROWN of Ohio. Mr. Speaker, I yield 3\1/2\ minutes to the
gentleman from Ohio (Mr. Strickland).
Mr. STRICKLAND. Mr. Speaker, here we go again contemplating the
passage of another free trade agreement before we have done the basic
reforms that we need to do to protect the American company, the
American workers, the American community.
The truth is we need a moratorium on any further trade agreements
until we reach a political consensus in this country about what those
agreements are going to be like.
For example, there is such inconsistency in the decisions we make in
this body. Are people aware that we cannot go visit Cuba as free
American citizens? And the administration has just recently decided
that those who live in this country with relatives in Cuba can only go
there every 10 years to visit their loved ones. Why? Well, because Cuba
is a communist country. Fidel Castro is an authoritarian dictator. And,
yet, we are encouraging free trade with China. We want our citizens to
travel to China. We want our companies to invest in China.
The last time I knew or heard, China was a communist country, it was
authoritarian, it was a country that routinely violates human rights,
puts those of religious faith in prison. Why the inconsistency? Why the
inconsistency?
[[Page H6627]]
Now, my friends talk about how we are going to sell all of the wheat,
agricultural products to Morocco. Those who like these free trade
agreements enjoy talking about all of the products we are going to
export. They never talk about all the products that are being flooded,
poured into this country. Every day that passes, this country has a
$1.5 billion trade deficit, every day, $1.5 billion.
I have here a copy of the economic report of the President. He
submitted this and transmitted it to Congress in February of this year.
His signature is on this economic report. I think that makes him
responsible for what is inside it.
On page 25 of that report under a section titled ``International
Trade and Finance'' are these words: ``When a good or a service is
produced at lower cost in another country, it makes sense to import it
rather than to produce it domestically.''
I read it again for those who may have thought they were unable to
believe their ears. In the President's economic report to the Nation
are these words: ``When a good or a service is produced at lower cost
in another country, it makes sense to import it rather than to produce
it domestically.''
I ask Mr. Don Evans, Secretary of Commerce, reported to be one of the
President's closest personal friends, if he would give me a list of the
products that cannot be produced at lower cost in another country, a
country like China where they use slave labor, where they violate human
rights. We need to wake up in this country. The American people need to
demand that the President and those of us who serve in this Chamber put
their needs first.
Mr. CRANE. Mr. Speaker, I yield to the gentleman from Pennsylvania
(Mr. Pitts) for the purpose of engaging in a colloquy.
Mr. PITTS. Mr. Speaker, I would like to thank the gentleman from
California (Chairman Thomas) as well for his leadership on the U.S.-
Morocco Free Trade Agreement. I am a free trader and believe that free
trade helps our Nation and the nations of the world. However, I am
deeply concerned about the issue of Western Sahara, and I have had
concerns that the U.S. needed to make clear that this free trade
agreement covers only the internationally- and the U.S.-recognized
borders of Morocco and does not include the disputed territory of
Western Sahara. It is my understanding that the language in the
conference report makes clear that the free trade agreement does not
cover resources, goods, services, or any other entity related to trade
that originates in Western Sahara.
I would ask the gentleman, does the U.S.-Morocco Free Trade Agreement
cover trade with the disputed territory of Western Sahara?
{time} 1700
Mr. CRANE. Mr. Speaker, will the gentleman yield?
Mr. PITTS. I yield to the gentleman from Illinois.
Mr. CRANE. The Committee on Ways and Means' report states the clear
coverage of the free trade agreement. ``The committee notes that the
FTA will cover trade with and investment in the territory of Morocco as
recognized by the United States, which does not include the Western
Sahara.''
Mr. PITTS. I thank the chairman for that clarification.
The following is a letter from USTR making clear that we do not
support Morocco's claim over the Western Sahara and the FTA does not
recognize or include the Western Sahara.
Executive Office of the President, the United States
Trade Representative,
Washington, DC, July 20, 2004.
Hon. Joseph R. Pitts,
House of Representatives,
Washington, DC.
Dear Congressman Pitts: Thank you for your letter of July
19, 2004, concerning our Free Trade Agreement (FTA) with
Morocco and the status of Western Sahara.
The Administration's position on Western Sahara is clear:
sovereignty of Western Sahara is in dispute, and the United
States fully supports the United Nations' effort to resolve
this issue. The United States and many other countries do not
recognize Moroccan sovereignty over Western Sahara and have
consistently urged the parties to work with the United
Nations to resolve the conflict by peaceful means.
The FTA will cover trade and investment in the territory of
Morocco as recognized internationally, and will not include
Western Sahara. As our Harmonized Tariff Schedule makes
clear, for U.S. Customs purposes, the United States treats
imports from Western Sahara and Morocco differently. Nothing
in the FTA will require us to change this practice. The
Administration will draft the proclamation authorized in the
legislation implementing the FTA (H.R. 4842) to provide
preferential tariff treatment for goods from the territory of
Morocco. Preferential tariff treatment will not be provided
to goods from Western Sahara.
I hope this letter addresses your question regarding the
FTA and the status of Western Sahara. I encourage you to
support the FTA. It will create economic opportunities for
U.S. manufacturing and service firms, workers, and farmers,
and will support economic reforms and foreign investment in
Morocco.
Thank you again for your letter. Please feel free to
contact me should you have further questions.
Sincerely,
Robert B. Zoellick.
Mr. CRANE. Mr. Speaker, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Pitts).
Mr. PITTS. Mr. Speaker, thank you for your leadership.
While trade is a vital component to strengthening with the greater
Middle East, promoting the spread of democracy is even more so. The
Sahrawi are a peaceful pro-Western, pro-democracy people. They want the
international community, including the U.N. Security Council and the
United States, to uphold its commitment to a free and transparent
referendum for self-determination, and it is unacceptable that Morocco
has been allowed to prevent that vote from taking place.
During his tenure the former Secretary of State Baker proposed a plan
that both parties accepted at first, and the Moroccans accepted the
plan, but as soon as the people of Western Sahara accepted they
withdrew their support, and I am deeply concerned that the Moroccan
government, as patterned, will use this agreement with help from
friends in France and others to attempt to increase its exploitation of
the resources.
I just want to clarify the statement about the people of Western
Sahara. Earlier today someone said that the Sahrawis are terrorists. I
take exception to this remark, as the people of Western Sahara, and
like many others in North Africa and the Middle East, have actually
tried to peacefully solve the conflict. The State Department does not
consider the people of Western Sahara to be terrorists. It is a
misstatement. It is wrong. It is unproductive in our fight against
terrorism to suggest that they are, and our own State Department does
not believe the people of Western Sahara are terrorists.
Secondly, I visited there. I visited the refugee camps. I know the
people. They are not terrorists. Members of this House should go to the
refugee camps. They should see the terrible malnutrition of the people,
the lack of health care, the refugee camps. If they would visit the
refugee camps they would know that the information fed to them by
supporters is inaccurate.
Mr. Chairman, I am voting for the FTA because there is protection for
the people and resources of Western Sahara and because I believe the
free trade will help the people of Morocco and those of surrounding
countries.
The following is a series of items that would make clear that this
agreement should not be abused by Morocco to profit off of land that it
has no legitimate claim to.
Western Sahara--Advisory Opinion of 16 October 1975
International Court of Justice
In its Advisory Opinion which the General Assembly of the
United Nations had requested on two questions concerning
Western Sahara, the Court,
With regard to Question I, ``Was Western Sahara (Rio de Oro
and Sakiet El Hamra) at the time of colonization by Spain a
territory belonging to no one (terra nullius)?'',
--decided by 13 votes to 3 to comply with the request for
an advisory opinion;
--was unanimously of opinion that Western Sahara (Rio de
Oro and Sakiet El Hamra) at the time of colonization by Spain
was not a territory belonging to no one (terra nullius).
With regard to Question II, ``What were the legal ties
between this territory and the Kingdom of Morocco and the
Mauritanian entity?'', the Court
--decided by 14 votes to 2 to comply with the request for
an advisory opinion;
--was of opinion, by 14 votes to 2, that there were legal
ties between this territory and the Kingdom of Morocco of the
kinds indicated in the penultimate paragraph of the Advisory
Opinion;
--was of opinion, by 15 votes to 1, that there were legal
ties between this territory
[[Page H6628]]
and the Mauritanian entity of the kinds indicated in the
penultimate paragraph of the Advisory Opinion.
The penultimate paragraph of the Advisory Opinion was to
the effect that:
The materials and information presented to the Court show
the existence, at the time of Spanish colonization, of legal
ties of allegiance between the Sultan of Morocco and some of
the tribes living in the territory of Western Sahara. They
equally show the existence of rights, including some rights
relating to the land, which constituted legal ties between
the Mauritanian entity, as understood by the Court, and the
territory of Western Sahara. On the other hand, the Court's
conclusion is that the materials and information presented to
it do not establish any tie of territorial sovereignty
between the territory of Western Sahara and the Kingdom of
Morocco or the Mauritanian entity. Thus the Court has not
found legal ties of such a nature as might affect the
application of General Assembly resolution 1514 (XV) in the
decolonization of Western Sahara and, in particular, of the
principle of self-determination through the free and genuine
expression of the will of the peoples of the Territory.
For these proceedings the Court was composed as follows:
President Lachs; Vice-President Ammoun; Judges Forster, Gros,
Bengzon, Petren, Onyeama, Dillard, Ignacio-Pinto, de Castro,
Morozov, Jimenez de Arechaga, Sir Humphrey Waldock, Nagendra
Singh and Ruda; Judge ad hoc Boni.
Judges Gros, Ignacio-Pinto and Nagendra Singh appended
declarations to the Advisory Opinion; Vice-President Ammoun
and Judges Forster, Petren, Dillard, de Castro and Boni
appended separate opinions, and Judge Ruda a dissenting
opinion.
In these declarations and opinions the judges concerned
make clear and explain their positions.
Course of the Proceedings
(paras. 1-13 of Advisory Opinion)
The Court first recalls that the General Assembly of the
United Nations decided to submit two questions for the
Court's advisory opinion by resolution 3292 (XXIX) adopted on
13 December 1974 and received in the Registry on 21 December.
It retraces the subsequent steps in the proceedings,
including the transmission of a dossier of documents by the
Secretary-General of the United Nations (Statute, Art. 65,
para. 2) and the presentation of written statements or
letters and/or oral statements by 14 States, including
Algeria, Mauritania, Morocco, Spain and Zaire (Statute, Art.
66).
Mauritania and Morocco each asked to be authorized to
choose a judge ad hoc to sit in the proceedings. By an Order
of 22 May 1975 (1.C.J. Reports 1975, p. 6), the Court found
that Morocco was entitled under Articles 31 and 68 of the
Statute and Article 89 of the Rules of Court to choose a
person to sit as judge ad hoc, but that, in the case of
Mauritania, the conditions for the application of those
Articles had not been satisfied. At the same time the Court
stated that those conclusions in no way prejudged its views
with regard to the questions referred to it or any other
question which might fall to be decided, including those of
its competence to give an advisory opinion and the propriety
of exercising that competence.
Competence of the Court
(paras. 14-22 of Advisory Opinion)
Under Article 65, paragraph 1, of the Statute, the Court
may give an advisory opinion on any legal question at the
request of any duly authorized body. The Court notes that the
General Assembly of the United Nations is suitably authorized
by Article 96, paragraph 1, of the Charter and that the two
questions submitted are framed in terms of law and raise
problems of international law. They are in principle
questions of a legal character, even if they also embody
questions of fact, and even if they do not call upon the
Court to pronounce on existing rights and obligations. The
Court is accordingly competent to entertain the request.
Propriety of Giving an Advisory Opinion
(paras. 23-74 of Advisory Opinion)
Spain put forward objections which in its view would render
the giving of an opinion incompatible with the Court's
judicial character. It referred in the first place to the
fact that it had not given its consent to the Court's
adjudicating upon the questions submitted. It maintained (a)
that the subject of the questions was substantially identical
to that of a dispute concerning Western Sahara which Morocco,
in September 1974, had invited it to submit jointly to the
Court, a proposal which it had refused: the advisory
jurisdiction was therefore being used to circumvent the
principle that the Court has no jurisdiction to settle a
dispute without the consent of the parties; (b) that the case
involved a dispute concerning the attribution of territorial
sovereignty over Western Sahara and that the consent of
States was always necessary for the adjudication of such
disputes; (c) that in the circumstances of the case the Court
could not fulfill the requirements of good administration of
justice with regard to the determination of the facts. The
Court considers (a) that the General Assembly, while noting
that a legal controversy over the status of Western Sahara
had arisen during its discussions, did not have the object of
bringing before the Court a dispute or legal controversy with
a view to its subsequent peaceful settlement, but sought an
advisory opinion which would be of assistance in the exercise
of its functions concerning the decolonization of the
territory, hence the legal position of Spain could not be
compromised by the Court's answers to the questions
submitted; (b) that those questions do not call upon the
Court to adjudicate on existing territorial rights; (c) that
it has been placed in possession of sufficient information
and evidence.
Spain suggested in the second place that the questions
submitted to the Court were academic and devoid of purpose or
practical effect, in that the United Nations had already
settled the method to be followed for the decolonization of
Western Sahara, namely a consultation of the indigenous
population by means of a referendum to be conducted by Spain
under United Nations auspices. The Court examines the
resolutions adopted by the General Assembly on the subject,
from resolution 1514 (XV) of 14 December 1960, the
Declaration on the Granting of Independence to Colonial
Countries and Peoples, to resolution 3292 (XXIX) on Western
Sahara, embodying the request for advisory opinion. It
concludes that the decolonization process envisaged by the
General Assembly is one which will respect the right of the
population of Western Sahara to determine their future
political status by their own freely expressed will. This
right to self-determination, which is not affected by the
request for advisory opinion and constitutes a basic
assumption of the questions put to the Court, leaves the
General Assembly a measure of discretion with respect to the
forms and procedures by which it is to be realized. The
Advisory Opinion will thus furnish the Assembly with elements
of a legal character relevant to that further discussion of
the problem to which resolution 3292 (XXIX) alludes.
Consequently the Court finds no compelling reason for
refusing to give a reply to the two questions submitted to it
in the request for advisory opinion.
Question I: ``Was Western Sahara (Rio de Oro and Sakiet El
Hamra) at the Time of Colonization by Spain a Territory
Belonging to No One (terra nullius)?''
(paras. 75-83 of Advisory Opinion)
For the purposes of the Advisory Opinion, the ``time of
colonization by Spain'' may be considered as the period
beginning in 1884, when Spain proclaimed its protectorate
over the Rio de Oro. It is therefore by reference to the law
in force at that period that the legal concept of terra
nullius must be interpreted. In law, ``occupation'' was a
means of peaceably acquiring sovereignty over territory
otherwise than by cession or succession; it was a cardinal
condition of a valid ``occupation'' that the territory should
be terra nullius. According to the State practice of that
period, territories inhabited by tribes or peoples having a
social and political organization were not regarded as terrae
nullius: in their case sovereignty was not generally
considered as effected through occupation, but through
agreements concluded with local rulers. The information
furnished to the Court shows (a) that at the time of
colonization Western Sahara was inhabited by peoples which,
if nomadic, were socially and politically organized in tribes
and under chiefs competent to represent them; (b) that Spain
did not proceed upon the basis that it was establishing its
sovereignty over terrae nullius: thus in his Order of 26
December 1884 the King of Spain proclaimed that he was
taking the Rio de Oro under his protection on the basis of
agreements entered into with the chiefs of local tribes.
The Court therefore gives a negative answer to Question I.
In accordance with the terms of the request for advisory
opinion, ``if the answer to the first question is in the
negative'', the Court is to reply to Question II.
Question II: ``What Were the Legal Ties of This Territory
with the Kingdom of Morocco and the Mauritanian Entity?''
(paras. 84-161 of Advisory Opinion)
The meaning of the words ``legal ties'' has to be sought in
the object and purpose of resolution 3292 (XXIX) of the
United Nations General Assembly. It appears to the Court that
they must be understood as referring to such legal ties as
may affect the policy to be followed in the decolonization of
Western Sahara. The Court cannot accept the view that the
ties in question could be limited to ties established
directly with the territory and without reference to the
people who may be found in it. At the time of its
colonization the territory had a sparse population that for
the most part consisted of nomadic tribes the members of
which traversed the desert on more or less regular routes,
sometimes reaching as far as southern Morocco or regions of
present-day Mauritania Algeria or other States. These tribes
were of the Islamic faith.
Morocco (paragraphs 90-129 of the Advisory Opinion)
presented its claim to legal ties with Western Sahara as a
claim to ties of sovereignty on the ground of an alleged
immemorial possession of the territory and an uninterrupted
exercise of authority. In the view of the Court, however,
what must be of decisive importance in determining its answer
to Question II must be evidence directly relating to
effective display of authority in Western Sahara at the time
of its colonization by Spain and in the period immediately
preceding. Morocco requests that the Court should take
account of the special structure of the Moroccan State. That
State was founded on the common religious bond of Islam and
on the allegiance of various tribes to the Sultan, through
their caids or sheiks, rather than on the notion of
territory. It consisted partly of what was called the Bled
Makhzen, areas actually subject to the Sultan, and partly of
what was called the Bled
[[Page H6629]]
Siba, areas in which the tribes were not submissive to him;
at the relevant period, the areas immediately to the north of
Western Sahara lay within the Bled Siba.
As evidence of its display of sovereignty in Western
Sahara, Morocco invoked alleged acts of internal display of
Moroccan authority, consisting principally of evidence said
to show the allegiance of Saharan caids to the Sultan,
including dahirs and other documents concerning the
appointment of caids, the alleged imposition of Koranic and
other taxes, and acts of military resistance to foreign
penetration of the territory. Morocco also relied on certain
international acts said to constitute recognition by other
States of its sovereignty over the whole or part of Western
Sahara, including (a) certain treaties concluded with Spain,
the United States and Great Britain and Spain between 1767
and 1861, provisions of which dealt inter alia with the
safety of persons shipwrecked on the coast of Wad Noun or its
vicinity, (b) certain bilateral treaties of the late
nineteenth and early twentieth centuries whereby Great
Britain, Spain, France and Germany were said to have
recognized that Moroccan sovereignty extended as far south as
Cape Bojador or the boundary of the Rio de Oro.
Having considered this evidence and the observations of the
other States which took part in the proceedings, the Court
finds that neither the internal nor the international acts
relied upon by Morocco indicate the existence at the relevant
period of either the existence or the international
recognition of legal ties of territorial sovereignty between
Western Sahara and the Moroccan State. Even taking account of
the specific structure of that State, they do not show that
Morocco displayed any effective and exclusive State activity
in Western Sahara. They do, however, provide indications that
a legal tie of allegiance existed at the relevant period
between the Sultan and some, but only some, of the nomadic
peoples of the territory, through Tekna caids of the Noun
region, and they show that the Sultan displayed, and was
recognized by other States to possess, some authority or
influence with respect to those tribes.
The term ``Mauritanian entity'' (paragraphs 139-152 of the
Advisory Opinion) was first employed during the session of
the General Assembly in 1974 at which resolution 3292 (XXIX),
requesting an advisory opinion of the Court, was adopted. It
denotes the cultural, geographical and social entity within
which the Islamic Republic of Mauritania was to be created.
According to Mauritania, that entity, at the relevant period,
was the Bilad Shinguitti or Shinguitti country, a distinct
human unit, characterized by a common language, way of life,
religion and system of laws, featuring two types of political
authority: emirates and tribal groups.
Expressly recognizing that these emirates and tribes did
not constitute a State, Mauritania suggested that the
concepts of ``nation'' and of ``people'' would be the most
appropriate to explain the position of the Shinguitti people
at the time of colonization. At that period, according to
Mauritania, the Mauritanian entity extended from the Senegal
river to the Wad Sakiet El Hamra. The territory at present
under Spanish administration and the present territory of the
Islamic Republic of Mauritania thus together constituted
indissociable parts of a single entity and had legal ties
with one another.
The information before the Court discloses that, while
there existed among them many ties of a racial, linguistic,
religious, cultural and economic nature, the emirates and
many of the tribes in the entity were independent in relation
to one another; they had no common institutions or organs.
The Mauritanian entity therefore did not have the character
of a personality or corporate entity distinct from the
several emirates or tribes which comprised it. The Court
concludes that at the time of colonization by Spain there did
not exist between the territory of Western Sahara and the
Mauritanian entity any tie of sovereignty, or of allegiance
of tribes, or of simple inclusion in the same legal entity.
Nevertheless, the General Assembly does not appear to have so
framed Question II as to confine the question exclusively to
those legal ties which imply territorial sovereignty, which
would be to disregard the possible relevance of other legal
ties to the decolonization process. The Court considers that,
in the relevant period, the nomadic peoples of the Shinguitti
country possessed rights, including some rights relating to
the lands through which they migrated. These rights
constituted legal ties between Western Sahara and the
Mauritanian entity. They were ties which knew no frontier
between the territories and were vital to the very
maintenance of life in the region.
Morocco and Mauritania both laid stress on the overlapping
character of the respective legal ties which they claimed
Western Sahara to have had with them at the time of
colonization (paragraphs 153-160 of the Advisory Opinion).
Although their views appeared to have evolved considerably in
that respect, the two States both stated at the end of the
proceedings that there was a north appertaining to Morocco
and a south appertaining to Mauritania without any
geographical void in between, but with some overlapping as a
result of the intersection of nomadic routes. The Court
confines itself to noting that this geographical overlapping
indicates the difficulty of disentangling the various
relationships existing in the Western Sahara region at the
time of colonization.
For these reasons, the Court (paragraphs 162 and 163 of the
Advisory Opinion) gives the replies indicated on pages 1 and
2 above.
[From Reuters News Service, Jan. 13, 2004]
Sardines and Sovereignty in Western Sahara
(By Eileen Byrne)
Laayoune, Western Sahara.--On trawlers at the quayside near
Laayoune, the main city in Moroccan-controlled Western
Sahara, the crew unload sardines in wicker baskets thrown
from hand to hand.
The traditional baskets are misleading, because the yield
of sardines, octopus and squid from the Western Saharan ports
of Laayoune, Boujdour and Dakhla has come to represent more
than 60 percent of Morocco's total annual fisheries yield of
almost one million tons. With sovereignty over the Western
Sahara still in dispute, this is a politically significant
catch.
The uncertainty about the future of this vast, mainly
desert territory in the northwest corner of Africa puts a
dampener, for now, on investment in tourism for winter sun-
seekers, officials in Laayoune admit.
But against the backdrop of diplomatic stalemate, as the
United Nations strives for a solution to the dispute between
Morocco and the Polisario separatist movement, Morocco is
keen to show that the regional economy is developing apace.
The fishing sector is one area where the authorities can
point to significant growth, always under the firm guiding
hand of the central government.
southern-most subjects
Claiming Western Sahara as its historic ``southern
provinces,'' Morocco controls most of the territory.
The Polisario movement, based across the border in Algeria,
sees the future of the area as an independent state, governed
by its Saharan Arab inhabitants, known as Sahrawis.
Since a 1991 cease-fire, successive U.N. initiatives aimed
at ending a dispute which dates from 1975, and asserting the
Sahrawis' right to ``self-determination,'' have failed.
Advocates of independence for Western Sahara stress the
territory's mineral wealth, with the phosphate mine at Boukra
near Laayoune, and possible offshore oil reserves.
But the Boukra mine is loss-making and subsidized by the
Office Cherifien des Phosphates' more important phosphate
production near Khouribga, according to officials. It is
fishing that generates new jobs and export earnings. Western
Sahara fish products now account for up to seven percent of
Morocco's total export earnings of 85.6 billion dirhams
($9.80 billion).
Morocco declined to renew a fishing accord with the
European Union which until the late 1990s had allowed foreign
boats into Moroccan waters. It has instead spent heavily
since then on port infrastructure in Western Sahara, as
though consolidating its hold on the territory.
Like all other businesses in Western Sahara, the sardine
canning businesses, and plants processing octopus for
Japanese dinner tables, pay no taxes except for payroll
contributions.
They also benefit from the subsidies in the prices of fuel,
power and water with which Morocco woos its southern-most
subjects, who account for less than two percent of the
kingdom's 29.6 million population.
Local investors are often Sahrawi notables who see the
territory's future with Rabat rather than the Polisario and
who play a prominent role in the local economy. A little over
a generation ago, the Sahrawis' lifestyle revolved around
camel and goat rearing. Fish did not figure at all in the
Sahrawi diet and even today few Sahrawis work directly with
fish.
But among new investors, the favorable conditions for
businesses can sometimes encourage over-hasty decisions.
octopus for the japanese
Lining the walls of the conference room in the Laayoune
governor's headquarters, photos showed a visit to Western
Sahara by Morocco's King Mohammed.
Some 40 men, and one woman wrapped in the colored veil worn
in Western Sahara, listened to Morocco's Fisheries Minister
Taieb Rhafes. He had flown down from Rabat to explain why he
was extending a ban on octopus fishing.
With him were representatives of Moroccan banks whose loans
to local investors had encouraged a proliferation of octopus-
freezing plants around Dakhla, from a handful in 1997 to 90
in 2003. The octopuses have been almost wiped out by over-
fishing, the minister explained. It takes only three months
to have an octopus-freezing plant up and running, said an
official.
At Laayoune port, the fishermen are not Sahrawis, but come
from Moroccan ports further north--Agadir, Essaouira and
Safi. A spontaneous movement of sardines southwards, traced
by Morocco's fisheries research institute, the INRH,
coincided with the development of infrastructure in the
Western Sahara. The fishermen followed the fish southwards,
bringing their expertise with them.
Moroccan officials have no separate figures for employment
among Sahrawis and non-Sahrawis. ``There are no two
communities here,'' only Moroccan citizens, Laayoune Governor
Mohamed Rharrabi told Reuters.
With the sea-faring culture far-removed from the
traditional Sahrawi lifestyle, it seems fishing will provide
only some of the jobs needed in the Laayoune region, where
unemployment at the last census was 40 percent among 20 to 24
year-olds.
[[Page H6630]]
Denmark Does Not Recognise Moroccan Sovereignty on Western Sahara
[From Sahara Press Service (SPS), June 22, 2004]
COPENHAGEN--Danish Government, does not ``recognise
Moroccan sovereignty on Western Sahara'', declared Danish
Minister for Foreign Affairs, Mr. Per Stig Mfller, in
response to a question he answered before of his Parliament,
according to close sources to the Saharawi representation to
Denmark.
Answering a question asked by Danish Member of the
Parliamentary group Enhedslisten (Union list, in English),
Mr. Soern Soendergaard, the Minister for Foreign Affairs
asserted that his Government ``does not recognise Moroccan
sovereignty on Western Sahara'', considering Moroccan
presence on the territory as illegal and unacceptable.
Regarding the peace plan, elaborated by UN Secretary
General's former Personal Envoy, James Baker, Mr. Mfller
affirmed that this plan remains applicable, recalling that it
``is accepted by Polisario Front and the neighbouring
countries and is unanimously adopted by Security Council in
its resolution 1495''.
Finally, the Head of Danish diplomacy reiterated ``the
support of Denmark of the efforts paid by UN's Secretary
General and his former Personal Envoy aimed at reaching a
just and lasting solution to the conflict'', in Western
Sahara conforming to international legality and by
implementing UN's resolutions.
[From Sahara Press Service (SPS), June 24, 2004]
German PDC/CSU Calls to Immediate Settlement of Western Sahara Conflict
Berlin.--The parliamentary group of German Christian
Democrat Party (PDC/CSU) in Bundestag (Parliament), called on
Thursday to an immediate settlement of Western Sahara's
conflict, exhorting international community to pay more
efforts in defending Saharawi people's ``right to self-
determination''.
In a communique publicised on Thursday, of which SPS
received a copy, PDC/CSU parliamentary Group's spokesperson,
Dr. Christian Ruck, asserted that ``Western Sahara conflict's
settlement tolerates no more delays'', calling international
community to pay more efforts in defending Saharawi people's
``right to self-determination''.
UN Secretary General's former Personal Envoy, James Baker's
resignation ``may push to failure'' the peace plan for self-
determination of Saharawi people, though this plan
constitutes ``a reasonable compromise to realise peace in
this region'', deplored the spokesperson.
Thus, the international community is called to ``prove to
the people of this region, who is still suffering this old
aging conflict, that its right to self-determination remains
a priority for the international community'', which should
also defend UN's principles and international law, so as to
reach a peaceful settlement to this problem, concluded the
communique.
[From Upstream Online & Hardcopy, July 2, 2004]
Svitzer Feels Heat in Western Sahara
(By Barry Morgan)
Fugro affiliate Svitzer has just completed a marine survey
on Kerr-McGee's Boujdour acreage off the disputed territory
of Western Sahara.
Based in Norfolk in the UK, Svitzer is the latest company
to attract brickbats from activists determined to persuade
industry players not to sign deals with Morocco, which
occupies the territory and claims its resources.
Following a one-year extension, KMG's reconnaissance permit
will expire on 29 October. However, its tenure is contested
by the Sahrawi independence militia, which has long fought
for sovereign control, stirring international controversy
over the licencing regime imposed by Rabat.
Fellow UK consultancy Robertson Research International
(RRI) is also poised to complete survey work in Western
Sahara, despite question marks over the legitimacy of UK
corporate involvement in what the UK government calls a
``non-self governing territory'' where it says sovereignty
remains to be determined under UN auspices. For its part, RRI
said it is not directly contracted to Rabat.
Confirmation of RRI's involvement comes hard on the heels
of a campaign launched by Western Sahara support groups
across Europe against exploration and production companies
doing business at the behest of Rabat.
Kerr-McGee, Total and TGS-Nopec were blasted for jumping
the gun on a fragile peace process in which the UN has sought
diplomatic consensus ahead of a referendum on self-
determination for the Sahrawi people.
Activists' primary target of late has been UK-registered
Wessex Exploration, which was recently invited to Rabat to
finalise a preliminary but open-ended deal to analyse onshore
data ahead of an exploration push outlined by Moroccan state
oil company managing director Amina Benkhadra.
Wessex has been warned that ``its reputation would suffer''
if it did not back off or negotiate with the Sahrawi
authorities.
In the meantime, several UK parliamentarians have moved to
seek clarification of the UK government's position on British
companies doing business in Western Sahara. Concerned MPs led
by the Labour Party's David Drew, want to pin down Whitehall
on its attitude.
Drew will shortly table a parliamentary question seeking
greater clarity. Drew now speaks for the Western Sahara
Support Group and two Conservative MPs are expected to join
existing members before they resurface as a parliamentary
force.
The UK Foreign Office insists sovereignty in Western Sahara
remains undetermined as long as UN calls to resolve the
crisis via the so-called Baker Peace Plan remain unheeded.
``We want to push the UK to promote the Plan so that Morocco
withdraws. It should also tell British companies that they
should not get involved in Western Sahara at this time while
the UN mandate remains unimplemented,'' said Drew.
The Foreign Office currently has no problem with companies
winning reconnaissance or E&P licences from Rabat, so long as
the practical effect complies with constraints laid down by
the UN Legal Office on ``disregarding the rights'' of the
Sahrawi people.
This means Kerr-McGee and Total can use TGS-Nopec and Fugro
to shoot seismic as long as rigs are not deployed to confirm
or produce oil finds.
Meanwhile, the acquisition of strategically important
seismic data for Rabat as the licensor remains legal under
the ``look but don't touch'' interpretation of both UK and US
governments. However, a UK official said that ``we'd have to
revisit this opinion if activity got this far. There is no
official endorsement''.
``Right now, our view is that UK companies going into
Western Sahara are on their own and we cannot link them to
the Department of Trade & Industry or offer the support of
any other government mechanisms,'' the source added.
Two UK-registered companies presently stand on both sides
of the fence. Sterling Resources has inherited an exclusive
offshore PSC from AIM-listed Fusion Oil & Gas following a
recent take-over, while Wessex is under increasing pressure
after retaining its exclusive study licence from Rabat.
After expending $600 million on peace-keeping efforts, the
UN system is tiring of the Western Sahara crisis, with UN
Special Envoy James Baker resigning in frustration last
month.
The UN's new representative, Alvaro de Soto, said this week
that he would pursue the same policy as Baker, suggesting no
new ideas to break the deadlock were on the table.
____
[From afrol News, July 12, 2004]
Norwegian Industry To Exploit Sahrawi Fish Resources
Norwegian officials are in the process of promoting
Norwegian investments in the booming fisheries industry in
Moroccan-occupied Western Sahara, despite protests by Sahrawi
officials. The fisheries industry is the dominant economic
sector in the territory, promoting new Moroccan settlements
here. Norwegian capital and knowledge is to help this
development.
According to information made available to afrol News, the
Norwegian Ambassador in Morocco, Arne Aasheim last week was
on a three-day visit to El Aaiun, the capital of the Western
Sahara territory. Here, he had meetings with the Moroccan
authorities governing the occupied territory and
representatives of the fisheries sector.
Sources wanting to remain anonymous told afrol News that
the primary focus in these meetings was on how Norwegian
companies could strengthen their foothold in the booming
Moroccan fisheries industry, which mainly is based in the
occupied territory. Morocco has been singled out as a golden
opportunity for Norway's many companies operating in the
fisheries sector.
Norway is one of Europe's leading fisheries nations, also
regarding the larger definition of the industry, including
the construction of fisheries vessels, fishing technology and
fish processing and distribution technology.
Morocco, on the other hand, during the last years has
singled out the fisheries industry as one of its most
promising sectors for economic development. After refusing to
renew a fisheries agreement with the European Union in 1999,
Moroccan authorities are now promoting the establishment of a
large national fleet of fishing vessels, fish processing
plants and an export infrastructure. Since 2001,
approximately euro 150 million have been invested into the
sector annually.
The controversial bit of Morocco's booming fisheries
industry is that it is mostly based on the rich fisheries
resources off the cost of occupied Western Sahara. According
to international law, an occupying state is obliged to manage
the renewable resources of the territory it occupies.
However, revenues from these resources are to be channelled
into the development of the people of the territory.
In the case of Western Sahara, the revenues of the
exploitation of the territory's resources however do not go
to the internationally recognised representatives of the
Sahrawis--the exiled Polisario government--but instead to the
strengthening of Morocco's occupation of the territory.
Almost the entire work force of the fisheries sector in
Western Sahara is of Moroccan origin and the sector's growth
is promoting more Moroccan settlements in the occupied
territory.
While the Norwegian government generally has defended the
case of the Sahrawis in their conflict with Morocco, this has
not been the case in the important fisheries sector. Mr
Aasheim's predecessor at Norway's
[[Page H6631]]
Rabat Embassy, Ole Kristian Holthe, since 2000 has been an
active and passionate promoter of Norwegian investments in
Morocco's booming fisheries sector, non-regarding the
location of these investments.
In February 2002, Ambassador Holthe met with the society
for Norwegian Maritime Exporters (NME) in Haugesund,
informing about that access to ``the Moroccan market is
something that is happening now.'' He especially emphasised
on the large number of fishing vessels that Moroccan
authorities were ordering in an international tender.
Explaining that Morocco is ``the most stable Arab country
oriented towards the West,'' Mr Holthe added that the
problems surrounding Western Sahara should not endanger
Norwegian investments. ``Norwegian authorities may consider
that [official] Norwegian trade promotion devices should not
be involved in investments [in Western Sahara], but my
opinion is that, as long as one enters as a partner in the
fisheries industry--and looks at this geographically--then it
should be safe.''
According to research done by the Norway-based
international fisheries media `IntraFish', Norwegian
authorities already in 2002 were financially aiding exporters
to get a foothold in Morocco; including the occupied
territories. This included aid by the Norwegian government's
agency guaranteeing export financing and the Scandinavian
Investment Bank. At least kroner 30 million (euro 4 million)
were available to finance Norwegian exports to Morocco's
fisheries sector.
These government efforts have already produced several
Norwegian investments in Western Sahara. In October 2002, the
Norwegian company Finsam announced it was constructing an ice
producing plant in ``Laayoune, Morocco''--which translates
into El Aaiun in Western Sahara. This ice plant is mainly
producing ice for fish landed in El Aaiun.
Other Norwegian investments in the occupied territory's
fishery sector include the company Selfa Arctic, which is
``constructing modern coastal fisheries in Morocco;'' Simrad,
which delivers marine electronics to Morocco, including to
its ``Moroccan retailer in Laayoune;'' Astia Holdings, which
exports fishing vessels and equipment to Morocco; and Furuno,
which sells electronic navigation equipment in Morocco.
Ambassador Holthe's indiscrete promotion of Norwegian
export opportunities in Western Sahara however became too
much for Norwegian authorities. Already in November 2002,
Foreign Minister Jan Petersen instructed his Rabat Ambassador
to write an official letter to companies investing in Western
Sahara and inform them about the political risk and ethical
problems.
According to information given to afrol News, however,
Ambassador Holthe smoothened the wording in the letter he
sent out to Norwegian companies, saying that the Embassy
could see no limits in international law regarding
investments in Western Sahara. In 2003, Mr Holthe was
replaced and sent to the Norwegian Embassy in Iran for
reasons unknown to afrol News.
Since that, Ambassador Aasheim has inherited the complex
question of Norwegian investments in Western Sahara. As far
as afrol News has been able to establish, the Norwegian
Embassy in Rabat has not lowered its profile regarding this
promotion since Mr Aasheim's appointment. Last week's
official promotion trip by the Ambassador to El Aaiun is
probably the first ever investment promotion trip to the
occupied territories by any Norwegian government official.
It therefore came as a shock to the Polisario exile
government. Mouloud Said, the Polisario Representative in
Washington told afrol News today that his government
considers ``any transaction between the occupying power with
any other entity or government as completely illegal at the
eyes of international law, and we do condemn any attempt to
strengthen the Moroccan occupation.''
We are disappointed because traditionally, the Norwegians
government has been in support of the peoples' right to self-
determination all over Africa and in particular in Western
Sahara, added Mr Said. ``This is uncharacteristic coming from
the representative from a government known for its defence of
human rights and the right of self-determination.''
Mr Said further said that the Polisario considered a UN
legal opinion issued in 2001, regarding oil exploration in
Western Sahara to be of relevance in this case. The legal
opinion concluded that Morocco had no right to act on behalf
of Western Sahara and market its resources, according to Mr
Said.
Unfortunately, afrol News was not able to gather reactions
from Norwegian authorities. The Norwegian Embassy in Rabat
did not answer phone calls from afrol News neither on Friday
nor today, while spokesperson Cathrine Andersen at the
Norwegian Ministry of Foreign Affairs refused to supply afrol
News with a direct phone number to Ambassador Aasheim,
claiming the Ministry had ``no other information'' on how to
get in contact with its Rabat Embassy.
Framework Agreement on the Status of Western Sahara (Baker Plan I)
Annex I of SG Report S/2001/613 of 20 Jun 01
The authority in Western Sahara shall be as follows:
1. The population of Western Sahara, through their
executive, legislative and judicial bodies shall have
exclusive competence over local governmental administration,
territorial budget and taxation, law enforcement, internal
security, social welfare, culture, education, commerce,
transportation, agriculture, mining, fisheries and industry,
environmental policy, housing and urban development, water
and electricity, roads and other basic infrastructure.
2. The Kingdom of Morocco will have exclusive competence
over foreign relations (including international agreements
and conventions) national security and external defence
(including determination of borders, maritime, aerial or
terrestrial and their protection by all appropriate means)
all matters relating to the production, sale, ownership or
use of weapons or explosives and the preservation of the
territorial integrity against secessionist attempts whether
from within or without the territory. In addition, the flag,
currency, customs, postal and telecommunication systems of
the Kingdom shall be the same for Western Sahara. With
respect to all functions described in this paragraph (2) the
Kingdom may appoint representatives to serve it in Western
Sahara.
3. In Western Sahara the executive authority shall be
vested in an Executive, who shall be elected by a vote of
those individuals who have been identified as qualified to
vote by the Identification Commission of the United Nations
Mission for the Referendum in Western Sahara, and whose names
are on the United Nations provisional voter lists (completed
as of 30 December 1999) without giving effect to any appeals
or other objections. To qualify as a candidate for Executive,
one must be an individual who has been identified as
qualified to vote as aforesaid and whose name is on said
provisional voter lists. The Executive shall be elected for a
term of four years. Thereafter, the Executive shall be
elected by majority vote of the Assembly. The Executive shall
appoint administrators in charge of executive departments for
terms of four years. The legislative authority shall be
vested in an Assembly, the members of which shall be directly
elected by voters for terms of four years. The judicial
authority shall be vested in such courts as may be necessary,
the judges of which shall be selected from the National
Institute for Judicial Studies but shall be from Western
Sahara. Such courts shall be the authority on territorial
law. To be qualified to vote for members of the Assembly, a
person must be 18 years or older and either (i) a continuous
resident of the territory since 31 October 1998, or (ii) a
person listed on the repatriation list as of 31 October 2000.
4. All laws passed by the Assembly and all decisions of the
courts referred to in paragraph 3 above must respect and
comply with the constitution of the Kingdom of Morocco,
particularly with respect to the protection of public
liberties. All elections or referenda referred to in this
agreement shall be conducted with all appropriate guarantees
and in keeping with the Code of Conduct agreed to by the
parties in 1997, except where to do so would be inconsistent
with the terms hereof.
5. Neither the Kingdom nor the executive, legislative, or
judicial bodies of the Authority of Western Sahara referred
to above may unilaterally change or abolish the status of
Western Sahara. Any changes or modifications of this
agreement has to be approved by the Executive and the
Assembly of Western Sahara. The status of Western Sahara will
be submitted to a referendum of qualified voters on such date
as the parties hereto shall agree, within the five year
period following the initial actions to implement this
agreement. To be qualified to vote in such a referendum a
voter must have been a full time resident of Western Sahara
for the preceding one year.
6. The Secretary-General of the United Nations will offer
his mediation and good offices to assist the two parties
hereto in the implementation or interpretation of this
agreement.
7. The parties agree to implement this agreement promptly
and request the assistance of the United Nations to this end.
____
[From the Christian Science Monitor, Mar. 26, 2004]
Sahara Refugees Form a Progressive Society
Literacy and democracy are thriving in an unlikely place
(By John Thorne)
Tindouf, Algeria.--A dozen women recline on the steps of
the main girls' school in the Saharawi refugee camps, their
pastel robes like blots of water-color on the whitewashed
cement. When the door opens and the headmistress emerges, the
women suddenly leap up and crowd around her, clamoring. They
are mothers seeking places for their daughters in the
already-crowded school.
The Saharawi women are among the most liberated of the
Muslim world, and their status is characteristic of the well-
organized, egalitarian society that has developed in the
refugee camps over the past three decades. For all their
bleakness, the Saharawi camps boast a representative
government, a 95 percent literacy rate, and a constitution
that enshrines religious tolerance and gender equality.
The Saharawis are the Arab nomads of Western Sahara, bound
together by their Yemeni ancestry and their dialect,
Hassaniya, which remains close to classical Arabic. For
centuries, they roamed the territory with their camels and
goats, sometimes trading with Spanish colonizers, and became
known as ``blue men'' for the indigo robes they wear.
[[Page H6632]]
When Spain abandoned Western Sahara in 1975, Morocco
invaded and drove the Saharawis into neighboring Algeria.
Trading their camels for Land Rovers, they fought a guerrilla
war under the leadership of the Polisario Front, an
independence movement, until the UN brokered a ceasefire in
1991. Since then, the promised vote on independence has been
stalled by disagreement over who should be allowed to
participate.
Equality
Meanwhile the Saharawi refugees, numbering some 160,000,
have clung on in camps amid the flat, stony wastes near the
town of Tindouf, in southwest Algeria. Subsisting on foreign
aid--chiefly rice, bread, and a few root vegetables--most
suffer from chronic malnutrition. Their settlements consist
almost wholly of adobe huts and dusty canvas tents, appearing
from afar as brown smudges on the slightly lighter brown
desert.
``Women built these camps,'' says Menana Mohammed, deputy
secretary-general of the Union of Saharawi Women. When the
Saharawis arrived at Tindouf, most of the men had stayed
behind as soldiers. ``You'll still find women doing all kinds
of work, including leading,'' Ms. Mohammed adds.
While most of the top brass are men, the minister of
culture is a woman. Women hold one fourth of the seats in the
Saharawi parliament, and they make up most of the civil
service, including teachers, nurses, and doctors.
``These days our chief concern is education,'' says
Mohammed. All young Saharawis learn Spanish as well as
Arabic, and some attend universities in Spain, Cuba, and
Algeria through the sponsorship of those countries'
governments.
``In the camps, we had to be both sexes, because the men
were all away fighting,'' says Mohammed. There is an old
Saharawi saying, she says, that rings especially true today:
``A tent is raised on two poles: a man and a woman.'' The
Saharawis' traditionally tough, wandering lifestyle has
always made them regard husband and wife as equal leaders of
the household.
Individualism
It has also begotten an individualistic approach to Islam.
While most Muslims tend to stress the importance of the
Islamic community, ``the Saharawis believe that religion is a
very personal issue,'' says Mouloud Said, the Polisario's
representative in the United States. ``It's a personal
relationship between the human being and his Creator. This is
the mentality of the nomadic society.''
Mosques are conspicuously absent from the camps, in large
part because the Saharawis ``don't believe that to speak to
God, you need a fancy place,'' explains Mr. Said.
Saharawis seldom pray in groups save on important Muslim
holidays, and view even these ceremonies as purely optional.
For some, this is a welcome escape-hatch from the religion's
bloodier rituals.
``Each person has his own Islam,'' says Zorgan Laroussi, a
translator in the camps who chose not to attend the mass
slaughter of camels for the feast of al-Eid al-Fitr, which
marks the end of Ramadan. His brother-in-law Salek did go,
and relishes explaining the ritual's finer points while the
two men and their families share a dish of grilled
hindquarters.
Saharawis are equally welcoming of other religions. ``There
is an almost continuous presence of church groups from all
over the world--in particular the U.S.--in the camps,'' says
Said. ``Every year for the last four years, there has been a
joint prayer at Easter.''
``Tolerance is not something new, but it's something
[Saharawi leaders] encourage,'' he says. ``In a tolerant
society, the center prevails, not the extremes. That means
respect for others, whether for the faith or their ideas.''
This credo finds ample use in the Saharawis' recent
conversion to a united democratic government. Following their
flight from Western Sahara, they quickly saw that overcoming
the desert and the Moroccan Army meant forsaking old tribal
loyalties. ``What's most important is that we Saharawis hang
together, so we highlight stories that promote unity among
us,'' says Minister of Culture Miriam Salek, who works with
the Ministry of Education and the Saharawi Youth Organization
to keep alive Saharawi folklore and history.
Democracy
In 1976, the Polisario proclaimed, and more or less became,
the Saharawi Arab Democratic Republic. Although a government-
in-exile, it is recognized by 75 countries, and the UN
formally considers Western Sahara an occupied territory.
Tier upon tier of elected officials make up the camp
government, from the national parliament down to neighborhood
councils. Saharawis are avid voters, and many participate in
local civil service--even if it's merely taking a twice-
weekly shift on the trash detail, or helping dole out
rations.
This could be the blueprint for an independent Western
Sahara, and there is a general sense of pride and excitement
among the Saharawis for their new society. ``This has worked
so far, what we have here,'' says one young daira (district)
councilman, ``and it should still work in Western Sahara. We
built this on the hope of the people, and I don't think
they'll want to change.''
But as the years drag on, many fear they will never have
the chance to find out. Their smoothly running camps and
refusal to resort to terrorism keep them out of the public
consciousness, relieving pressure on the UN to push for a
quick settlement to the 29-year-old conflict. ``We have been
landless for so long,'' laments Tellib Helli Embarik, an old
tribal leader. ``I don't know if the UN is just waiting for
us to disappear or what!''
____
[From the Hill, July 13, 2004]
Deserting the Baker Plan
(By David Keene)
President Bush likes to talk about nurturing democracy
within the Muslim world, but he's doing little for the pro-
Western Muslims of the Western Sahara whose future rests in
his hands.
If you don't know much about the plight of these people,
you aren't alone. They have been languishing in refugee camps
in western Algeria for nearly 30 years and will remain there
until the United States stops playing chief enabler to
Moroccan government that invaded and seized their country
when it was freed from colonial rule by Spain in the '70s.
I've visited the camps, and to suggest that the people who
inhabit them live under harsh conditions is to speak
euphemistically.
The Western Saharan or Saharawi peoples tried to resist
the Moroccans, but hundreds of thousands of them were forced
to flee to Algeria before a U.S.-equipped Moroccan army
determined to seize their land. Today more than 300,000 of
them survive as best they can, unable to see their relatives
or visit their homeland.
Realizing they didn't have the capability to defeat
Morocco on the battlefield, the Saharawi faced a choice. They
could fall on the asymmetric warfare of the terrorist,
surrender or turn to the international community. They
perhaps rather naively chose the latter course and went to
the United Nations and the World Court seeking justice.
Meanwhile, they've built a functioning democracy that
guarantees equal rights to men and women alike, educated
their children and let it be known that all they want to do
is live in peace with those around them. Their congressional
friends in the United States include people such as Sens. Jim
Inhofe (R-Okla.) and Edward Kennedy (D-Mass.) and Reps Joe
Pitts (R-Pa.), Mark Green (R-Wis.) and Donald Payne (D-N.J.),
but so far few of their colleagues and virtually no one in
the Bush administration or the media seem to share their
concerns.
This is in spite of the fact that virtually everyone
agrees the Saharawi are right. The International Court of
Justice in 1975 ruled Morocco had no right to the land
seized, but the king of Morocco ignored the ruling and the
United Nations sought a referendum in which the people of the
region could vote on whether they wanted to be ruled by their
colonial masters or by leaders of their own choosing.
Meanwhile, the United States stood by silent as our
Moroccan ally consolidated control over the region to become
the last colonial power on the African continent.
Publicly, of course, the Moroccans declared that they too
believed in self-determination, but marched hundreds of
thousands of Moroccans into the region and declared that if
there was to be a vote, these folks should be allowed to vote
too. The Saharawi and the United Nations balked at this
baldfaced attempt to stuff the ballot boxes, but finally
appointed former U.S. Secretary of State James Baker as a
special envoy to work something out. Baker eventually came up
with a ``compromise'' plan that would grant the vote to
enough Moroccans to give them a majority if they stuck
together and suggested a period of autonomy within Morocco
followed by a vote to decide whether the region would go its
own way.
To everyone's surprise, the Sahrawi accepted the ``Baker
Plan.'' They know they can't survive in the camps forever and
suspect that more than a few of the Moroccans who will vote
might welcome the chance to escape the tender mercies of
their king. The Moroccans immediately rejected the plan
announcing that they will never accept any scheme that
includes the possible loss of the territory they have
grabbed.
The United Nations doesn't know what to do, and Baker has
thrown up his arms and resigned. The king's only real ally in
the United Nations is France, but it's our silent acceptance
of whatever he wants do to that has allowed him to thumb his
nose at the world. Everyone knows that as long as King
Mohammed VI can keep the United States in line, he will
remain intransigent.
During the king's visit to Washington last week, President
Bush supposedly brought up the Baker Plan, but one wonders if
he pressed very hard. He has, after all, said nothing about
the Saharawi in public and done everything from declaring
Morocco a ``major non-NATO ally'' to leading the charge for a
U.S.-Moroccan Free Trade Agreement to give the King the
impression that we aren't about to do anything at all about
the way he acts in his own neighborhood.
Meanwhile, the Saharawi hang on, praying for the day when
an American president who talks about democracy and justice
will come to their aid.
____
[From the Washington Times, July 9, 2004]
Beyond Diplomatic Niceties
(By Joseph Pitts and Donald Payne)
This week, His Majesty, King Mohammed of Morocco is in
Washington to tout the newly signed US.-Morocco Free Trade
Agreement and to bask in his nation's newly christened status
as a ``major non-NATO ally''.
While we do not oppose free trade or establishing stronger
allies, we would do well to
[[Page H6633]]
look past the diplomatic niceties that surround such trips.
His Majesty's country illegally occupies a swath of land in
West Africa known as Western Sahara. His government has
promised the people of Western Sahara, the Sahrawi, a vote to
determine their own future. More than a decade later, that
vote has yet to occur.
Powerful friends in Europe and here in Washington have
helped His Majesty's government postpone this vote and
consolidate control over the country The Moroccan government
says its colonial rule over Western Sahara ensures its
``territorial integrity'' and preserves stability in the
region. But this idea is simply divorced from reality on the
ground.
During trips to the country, we have learned the Sahrawis
are peaceful, pro-Western and pro-democracy. In short,
despite living under an illegitimate colonial power, they
have established a deep-rooted culture of democracy, capable
of supporting a viable state. They have their own elected
leaders, many of them women. They have provided education and
equal rights to all their citizens--men and women.
The only stability a sovereign, democratic Western Sahara
disrupts is a status quo defined by tyranny. The King will
deny this. Official Washington will ignore it. But it is the
truth.
From 1884 until 1975, Western Sahara was a Spanish colony.
Upon Spain's withdrawal, Morocco invaded. The Sahrawis have
fought a lonely battle for liberation ever since, many
suffering in the refugee camps that dot Algerian sand dunes.
The U.N. International Court of Justice ruled Morocco's claim
to Western Sahara was illegitimate. Morocco ignored the
ruling.
In 1991, Morocco accepted the U.N.-brokered cease-fire
promising the Sahrawis a referendum for national self-
determination. Moroccan officials moved tens of thousands of
their own citizens to Western Sahara, attempting to stack the
vote in its favor. In 1997, the United Nations asked former
U.S. Secretary of State James Baker to help implement the
referendum. Morocco continued to balk.
The U.N.'s voter identification commission, using agreed-
upon criteria, set out to identify the eligible voters. After
years of interviews with each, the U.N. in January 2000
published the provisional list of voters, rejecting the
majority of Moroccan applicants. Morocco--fearing it would
lose the upper hand--reneged on its commitment to the
referendum.
To break the impasse, Mr. Baker submitted a compromise plan
to the Security Council in July 2003. The plan included a
referendum for the Sahrawis and gave Moroccans who settled in
Western Sahara through 1999 the right to vote, making them
the majority of the electorate. Convinced a peaceful solution
was possible, the leading Sahrawi political group--the
POLISARIO Front--reluctantly accepted the terms of Mr.
Baker's plan. Its gesture was never reciprocated. Morocco,
supported by France, rejected the Baker Plan from the outset.
As this battle rages, Sahrawis suffer. The Moroccan
government continues to imprison Sahrawi activists, exploit
the natural resources of Western Sahara, and prohibit foreign
journalists from transmitting the truth to the outside world,
as evidenced by the recent expulsion of several Danish
reporters.
The U.N. has spent more than $600 million to maintain this
dreadful status quo. Successive U.S. administrations,
Republican and Democrat, have walked a fine line on this
issue. Morocco is a longstanding ally. However, alliance with
powerful nations should not provide the cover to ignore
international commitments and deny the basic human right of
self-determination to a peaceful, democratic people.
When the president meets with King Mohammed this week, he
should not ignore His Majesty's opposition to democracy in
the Western Sahara. The spread of freedom is central to our
mission as a nation. This is ever more important as the
administration works to spread democracy in Islamic nations.
Unlike many others in the Middle East and North Africa, the
Sahrawis have chosen a peaceful path to democracy. We owe the
democratic people of Western Sahara no less than the support
we have given others in their fight for independence--the
right to have a say in their own future.
When Congress considers the US.-Morocco free trade
agreement, it should seriously consider how it will aid His
Majesty's attempt to exploit an area to which he has no
legitimate claim. Ignoring Western Sahara will put a vote for
Sahrawis further out of reach.
The time has come to abandon empty promises and hollow
rhetoric in favor of a free, fair, and transparent referendum
for the Sahrawis. This is the only way to build a peaceful,
democratic future for Western Sahara and the entire region.
Letter dated 29 January 2002 From the Under-Secretary-General for
Legal Affairs, the Legal Counsel, addressed to the President of the
Security Council
1. In a letter addressed to me on 13 November 2001, the
President of the Security Council requested, on behalf of the
members of the Security Council, my opinion on ``the legality
in the context of international law, including relevant
resolutions of the Security Council and the General Assembly
of the United Nations, and agreements concerning Western
Sahara of actions allegedly taken by the Moroccan authorities
consisting in the offering and signing of contracts with
foreign companies for the exploration of mineral resources in
Western Sahara''.
2. At my request, the Government of Morocco provided
information with respect to two contracts, concluded in
October 2001, for oil-reconnaissance and evaluation
activities in areas off-shore Western Sahara, one between the
Moroccan ``Office National de Recherches et d'Exploitations
Petrolieres'' (ONAREP) and the United States oil-company Kerr
Mc-Gee du Maroc Ltd., and the other between ONAREP and the
French oil company TotalFinaElf E&P Maroc. Concluded for an
initial period of 12 months, both contracts contain standard
options for the relinquishment of the rights under the
contract or its continuation, including an option for future
oil contracts in the respective areas or parts thereof.
3. The question of the legality of the contracts concluded
by Morocco off-shore Western Sahara requires an analysis of
the status of the territory of Western Sahara, and the status
of Morocco in relation to the Territory. As will be seen, it
also requires an analysis of the principles of international
law governing mineral resource activities in Non-Self-
Governing Territories.
4. The law applicable to the determination of these
questions is contained in the United Nations Charter, in
General Assembly resolutions, pertaining to decolonization,
in general, and economic activities in Non-Self-Governing
Territories, in particular, and in agreements concerning the
status of Western Sahara. The analysis of the applicable law
must also reflect the changes and developments which have
occurred as international law has been progressively codified
and developed, as well as the jurisprudence of the
International Court of Justice and the practice of States in
matters of natural resource activities in Non-Self-Governing
Territories.
A. The status of Western Sahara under Moroccan administration
5. A Spanish protectorate since 1884, Spanish Sahara was
included in 1963 in the list of NonSelf-Governing Territories
under Chapter XI of the Charter (A/5514, Annex III).
Beginning in 1962, Spain as administering Power transmitted
technical and statistical information on the territory under
Article 73 (e) of the Charter of the United Nations. This
information was examined by the Special Committee with Regard
to the Implementation of the Declaration on the Granting
of Independence to Colonial Countries and Peoples
(``Special Committee''). In a series of General Assembly
resolutions on the Question of Spanish/Western Sahara, the
applicability to the territory of the Declaration on the
Granting of Independence to Colonial Countries and Peoples
(General Assembly resolution 1514 (XV), was reaffirmed.
6. On 14 November 1975, a Declaration of Principles on
Western Sahara was concluded in Madrid between Spain, Morocco
and Mauritania (the Madrid Agreement), whereby the powers and
responsibilities of Spain, as the administering Power of the
territory, were transferred to a temporary tripartite
administration. The Madrid Agreement did not transfer
sovereignty over the territory, nor did it confer upon any of
the signatories the status of an administering Power--a
status which Spain alone could not have unilaterally
transferred. The transfer of administrative authority over
the territory to Morocco and Mauritania in 1975, did not
affect the international status of Western Sahara as Non-
Self-Governing Territory.
7. On 26 February 1976, Spain informed the Secretary-
General that as of that it had terminated its presence in
Western Sahara and relinquished its responsibilities over the
Territory, thus leaving it in fact under the administration
of both Morocco and Mauritania in their respective controlled
areas. following the withdrawal of Mauritania from the
Territory in 1979, upon the conclusion of the Mauritano-
Sahraoui agreement of 19 August 1979 (S/13504, Annex I),
Morocco has administrated the territory of Western Sahara
alone. Morocco however, is not listed as the administering
Power of the territory in the United Nations list of Non-
Self-Governing Territories, and has, therefore, not
transmitted information on the territory in accordance with
Articles 73 (e) of the United Nations Charter.
8. Notwithstanding the foregoing, and given the status of
Western Sahara as a Non-Self-Governing Territory, it would be
appropriate for purposes of the present analysis to have
regard to the principles applicable to the powers and
responsibilities of an administering Power in matters of
mineral resource activities in such a Territory.
B. The law applicable to mineral resource activities in Non-Self-
Governing Territories
9. Article 73 of the United Nations Charter lays down the
fundamental principles applicable to Non-Self-Governing
Territories. Members of the United Nations who assumed
responsibilities for the administration of these territories
have whereby recognized the principle that the interest of
the inhabitants of these territories are paramount, and have
accepted as a sacred trust the obligation to promote to the
utmost the well-being of the inhabitants of these
territories. Under Article 73 (e) of the Charter, they are
required to transmit regularly to the Secretary-General for
information purposes statistical and other information of a
technical nature relating to economic, social, and
educational conditions in the territories under their
administration.
10. The legal regime applicable to Non-Self-Governing
Territories was further developed in the practice of the
United Nations
[[Page H6634]]
and, more specifically, in the Special Committee and the
General Assembly. Resolutions of the General Assembly adopted
under the agenda item ``implementation of the Declaration on
the Granting of Independence to Colonial Countries and
Peoples'', called upon the administering Powers to ensure
that all economic activities in the Non-Self-Governing
Territories under their administration do not adversely
affect the interests of the peoples of such territories, but
are instead directed to assist them in the exercise of their
right to self-determination. The Assembly also consistently
urged the administering Powers to safeguard and guarantee the
inalienable rights of the peoples of these territories to
their natural resources, and to establish and maintain
control over the future development of those resources (GA
res 35/118 of 11 December 1980; 52/78 of 10 December 1997;
54/91 of 6 December 1999; 55/147 of 8 December 2000; and
56/74 of 10 December 2001).
11. In the resolutions adopted under the item ``Activities
of foreign economic and other interests which impede the
Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples in territories
under Colonial Domination'', the General Assembly reiterated
that ``the exploitation and plundering of the marine and
other natural resources of colonial and Non-Self-Governing
Territories by foreign economic interests, in violation of
the relevant resolutions of the United Nations, is a threat
to the integrity and prosperity of these Territories'' and
that ``any administering Power that deprives the colonial
people of Non-Self-Governing Territories of the exercise of
their legitimate rights over their natural resources . . .
violates the solemn obligations it has assumed under the
Charter of the United Nations'' (GA res. 48/46 of 10 December
1992 and 49/40 of 9 December 1994).
12. In an important evolution of this doctrine, the General
Assembly in resolution 50/33 of 6 December 1995, drew a
distinction between economic activities that are detrimental
to the peoples of these territories and those directed to
benefit them. In paragraph 2 of that resolution, the General
Assembly affirmed ``the value of foreign economic investment
undertaken in collaboration with the peoples of Non-Self-
Governing Territories and in accordance with their wishes in
order to make a valid contribution to the socio-economic
development of the Territories''. This position has been
affirmed by the General Assembly in later resolutions (GA
res. 52/72 of 10 December 1997; 53/61 of 3 December 1998; 54/
84 of 5 December 1999; 55/38 of 8 December 2000; and 56/66 of
10 December 2001).
13. The question of Western Sahara has been dealt with by
both the General Assembly, as a question of decolonization,
and by the Security Council as a question of peace and
security. The Council was first seized of the matter in 1975,
and in resolutions 377 (1975) of 22 October 1975 and 379
(1975) of 2 November 1975 it requested the Secretary-General
to enter into consultations with the parties. Since 1988, in
particular, when Morocco and the Frente Polisaro agreed, in
principle, to the settlement proposals of the Secretary-
General and the Chairman of the OAU, the political process
aiming at a peaceful settlement of the question of Western
Sahara has been under the purview of the Council. For the
purposes of the present analysis, however, the body of
Security Council resolutions pertaining to the political
process is not relevant to the legal regime applicable to
mineral resource activities in Non-Self-Governing Territories
and for this reason is not dealt with in detail in the
present letter.
14. The principle of ``permanent sovereignty over natural
resources'' as the right of peoples and nations to use and
dispose of the natural resources in their territories in the
interest of their national development and well-being, was
established in General Assembly resolution 1803 (XVII) of 14
December 1962. It has since been reaffirmed in the 1966
International Covenants on Economic, Social and Cultural
Rights and on Civil and Political Rights, as well as in
subsequent General Assembly resolutions, most notably,
resolution 3201 (S-VI) of 1 May 1974, ``Declaration on the
Establishment of a New International Economic Order'', and
Resolution 3281 (XXIX) containing the Charter of Economic
Rights and Duties of States. While the legal nature of the
core principle of ``permanent sovereignty over natural
resources'', as a corollary to the principle of territorial
sovereignty or the right of self-determination, is
indisputably part of customary international law, its exact
legal scope and implications are still debatable. In the
present context, the question is whether the principle of
``permanent sovereignty'' prohibits any activities related to
natural resources undertaken by an administering Power (cf.
para. 8 above) in a Non-Self-Governing Territory, or only
those which are undertaken in disregard of the needs,
interests and benefits of the people of that territory.
c. the case law of the international court of justice
15. The question of natural resource exploitation by
administering Powers in Non-Self-Governing Territories was
brought before the International Court of Justice in the Case
of East Timor (Portugal v. Australia) and the Case Concerning
Certain Phosphate Lands in Nauru (Nauru v. Australia). In
neither case, however, was the question of the legality of
resource exploitation activities in Non-Self-Governing
Territories conclusively determined.
16. In the Case of East Timor, Portugal argued that in
negotiating with Indonesia an agreement on the exploration
and exploitation of the continental shelf area of the Timor
Gap, Australia had failed to respect the right of the people
of East Timor to permanent sovereignty over its natural
wealth and resources, and the powers and rights of Portugal
as administering Power of East Timor. In the absence of
Indonesia's participation in the proceedings, the
International Court of Justice concluded that it lacked
jurisdiction.
17. In the Nauru Phosphate Case, Nauru claimed the
rehabilitation of certain phosphate lands worked out before
independence in the period of the Trusteeship administration
by Australia, New Zealand and the United Kingdom. Nauru
argued that the principle of permanent sovereignty over
natural resources was breached in circumstances in which a
major resource was depleted on grossly inequitable terms and
its extraction involved the physical reduction of the land.
Following the Judgment on the Preliminary Objections, the
parties reached a settlement and a Judgment on the merits was
no longer required.
d. the practice of states
18. In the recent practice of States, cases of resource
exploitation in Non-Self-Governing Territories have, for
obvious reasons, been few and far apart. In 1975, the United
Nations Visiting Mission to Spanish Sahara reported that at
the time of the visit, four companies held prospecting
concessions in off-shore Spanish Sahara. In discussing the
exploitation of phosphate deposits in the region of Bu Craa
with Spanish officials, the Mission was told that the
revenues expected to accrue would be used for the benefit of
the Territory, that Spain recognized the sovereignty of the
Saharan population over the Territory's natural resources and
that, apart from the return of its investment, Spain laid no
claim to benefit from the proceeds (A/10023/Rev.1, p. 52)
19. The exploitation of uranium and other natural resources
in Namibia by South Africa and a number of Western
multinational corporations was considered illegal under
Decree No. 1 for the Protection of the Natural Resources of
Namibia, enacted in 1974 by the United Nations Council for
Namibia, and was condemned by the General Assembly (GA res.
36/51 of 24 November 1981, and 39/42 of 5 December 1984). The
case of Namibia, however, must be seen in the light of
Security Council resolution 276 (1979) of 30 January 1970,
which declared that the continued presence of South Africa in
Namibia was illegal and that consequently all acts taken by
the Government of South Africa were illegal and invalid.
20. The case of East Timor under the United Nations
Transitional Administration in East Timor (UNTAET) is unique
in that, while UNTAET is not an administering Power within
the meaning of Article 73 of the United Nations Charter, East
Timor is still technically listed as a Non-Self-Governing
Territory. By the time UNTAET was established in October
1999, the Timor Gap Treaty was fully operational and
concessions had been granted in the Zone of Cooperation by
Indonesia and Australia, respectively. In order to ensure the
continuity of the practical arrangements under the Timor Gap
Treaty, UNTAET, acting on behalf of East Timor, concluded on
10 February 2000, an Exchange of Letters with Australia
for the continued operation of the terms of the Treaty.
Two years later, in anticipation of independence, UNTAET,
acting on behalf of East Timor, negotiated with Australia
a draft ``Timor Sea Arrangement'' which will replace the
Timor Gap Treaty upon the independence of East Timor. In
concluding the agreement for the exploration and
exploitation of oil and natural gas deposits in the
continental shelf of East Timor, UNTAET, on both
occasions, consulted fully with representatives of the
East Timorese people, who participated actively in the
negotiations.
e. conclusions
21. The question addressed to me by the Security Council
namely, ``the legality . . . of actions allegedly taken by
the Moroccan authorities consisting in the offering and
signing of contracts with foreign companies for the
exploration of mineral resources in Western Sahara,'' has
been analysed by analogy as part of the more general question
of whether mineral resource activities in a Non-Self-
Governing Territory by an administering Power is illegal, as
such, or only if conducted in disregard of the needs and
interests of the people of that territory. An analysis of the
relevant provisions of the United Nations Charter, General
Assembly resolutions, the case law of the International Court
of Justice and the practice of States, supports the latter
conclusion.
22. The principle that the interests of the peoples of Non-
Self-Governing Territories are paramount, and their well-
being and development is the ``sacred trust'' of their
respective administering Powers, was established in the
Charter of the United Nations and further developed in
General Assembly by resolutions on the question of
decolonization and economic activities in Non-Self-Governing
Territories. In recognizing the inalienable rights of the
peoples of Non-Self-Governing Territories to the natural
resources in their territories, the General Assembly has
consistently condemned the exploitation and plundering of
natural resources and any economic activities which are
detrimental to the interests of the peoples of these
territories and deprive them of
[[Page H6635]]
their legitimate rights over their natural resource. It
recognized, however, the value of economic activities which
are undertaken in accordance with the wishes of the peoples
of those territories, and their contribution to the
development of such territories.
23. In the Cases of East Timor and Nauru, the International
Court of Justice did not pronounce itself on the question of
the legality of economic activities in Non-Self-Governing
Territories. It should be noted, however, that in neither
case was it alleged that mineral resource exploitation in
such territories was illegal per se. In the Case of East
Timor, the conclusion of an oil exploitation agreement was
allegedly illegal because it was not concluded with the
administering Power (Portugal); in the Nauru Case, the
illegality allegedly arose because the mineral resource
exploitation depleted unnecessarily or inequitably the
overlaying lands.
24. The recent State practice, though limited, is
illustrative of an opinio juris on the part of both
administering Powers and third States: where resource
exploitation activities are concluded in Non-Self-Governing
Territories for the benefit of the peoples of these
territories, on their behalf, or in consultation with their
representatives, they are considered compatible with the
Charter obligations of the administering Power, and in
conformity with the General Assembly resolutions and the
principle of ``permanent sovereignty over natural resources''
enshrined therein.
25. The foregoing legal principles established in the
practice of States and the United Nations pertain to economic
activities in Non-Self-Governing Territories, in general, and
mineral resource exploitation, in particular. It must be
recognized, however, that in the present case, the contracts
for oil reconnaissance and evaluation do not entail
exploitation or the physical removal of the mineral
resources, and no benefits have as of yet accrued. The
conclusion is, therefore, that, while the specific contracts
which are the subject of the Security Council's request are
not in themselves illegal, if further exploration and
exploitation activities were to proceed in disregard of the
interests and wishes of the people of Western Sahara, they
would be in violation of the international law principles
applicable to mineral resource activities in Non-Self-
Governing Territories.
Hans Corell,
Under-Secretary for legal Affairs,
The Legal Counsel.
____
Kingdom of Morocco,
Ministry of Interior, Secretariate,
Rabat, January 22, 1998.
From: The Minister of State for the Interior.
To: All Walis and Governors of the Kingdom's Prefectures and
Provinces.
Object: Training workshops for applicants for identification
for the referendum to confirm the Moroccanness of the
Sahara.
This circular results from examination of the daily
activity reports on the ethnic workshops, forwarded by
yourselves, and from remarks, suggestions and proposals made
by the Moroccan party's Observers in the light of seven weeks
of identification, some twenty weeks from the end of this
operation.
The results of identification having so far fallen short of
the necessary level, owing in part, certainly, to evidence
from the Chyoukh representing the other party which is often
negative, but also owing to the manifestly insufficient
preparation of our applicants, you are invited to pay the
closest attention to this briefing and supervise personally,
in accordance with my earlier instructions, the strict
application of the following measures:
1. Exhaustive pre-identification of the applicants and
their sub-fractions:
It emerges from the daily activity reports from the ethnic
workshops forwarded by yourself that, unfortunately, only a
small number of Walis and Governors (see list attached to
this circular) have an exact knowledge of the tribes and sub-
fractions relevant to their respective commands, and have
consequently been able to provide the Ministry of the
Interior with statistical data on the applicants that
conforms to the information in the central index.
The others are invited immediately to produce their data on
the tribes and sub-fractions and on the number of applicants
present in their respective commands and held ready to be
summoned at any time to MINURSO's Identification Centres.
It goes without saying that an incomplete knowledge of the
sub-fractions and their numbers in a prefecture or province
results in underestimation of the real population of
applicants, so that an insufficient number of these is being
trained and taken to the Identification Centres, contrary to
the objective of my earlier instructions.
The Walis and Governors concerned will therefore, on
receipt of this circular, require their information
technology units to contact the central information
technology service to arrange immediate presentation of the
province's or prefecture's data on the sub-fractions and
their numbers.
2. Preparation of applicants for identification:
As specified in my previous circulars, the basis for the
summoning and identification of applicants by MINURSO is the
form filled out by them in 1994, on which the computerised
data-banks used by this mission and by the Ministry of the
Interior itself are both based.
Each applicant is registered and can be sought through his
form number. The form contains the applicant's main details
and those of his father and mother, in addition to all the
elements that specify which identification criterion, out of
the five criteria defined by the United Nations Peace Plan,
is likely to be fulfilled by the applicant.
The applicant must also have perfect knowledge at least of
the contents of the said form. However, when this document
does not reflect the applicant's real situation, he should
not be imprisoned by it but should seek to make it easy for
the Identification Commission to recognise key elements, such
as:
the birthplaces of the applicant and his immediate family
(father, mother, children).
the seasonal pasture zones frequented in the Sahara by the
applicant or his family.
landmark dates in relation to the birth of the applicant
and his immediate family (father, mother, children) in the
Sahara.
the lineage of the applicant and his immediate family and
kinship with a known Sahrawi family.
the history of the applicant's tribe and family.
geography of the region in which they lived and travelled.
Lastly, there is a need to inculcate the applicant with a
psychological stance enabling him to:
demystify the identification operation and the MINURSO
commission.
be motivated and aware of the stakes in the referendum.
have confidence in himself and be self-assured.
overcome shyness and diffidence and speak loudly and
clearly.
learn in advance, from applicants already identified as
belonging to the same subfraction, what questions the
Identification Commission is asking.
be able to cite one or more family members already counted
or identified, and give their numbers.
convince the Moroccan Cheikh who will then convince the
Identification Commission.
Full mastery of these elements implies preliminary training
of the applicant in his prefecture or province of origin and
2 or 3 days of fine tuning with the Moroccan Cheikh before
the identification session.
3. Responsibilities of the Cheikh and the Observer:
As specified in the document attached to this circular,
concerning ``verification of eligibility'' of applicants, the
Cheikh's main mission with MINURSO is to testify that the
applicant fulfils one of the five identification criteria
defined by the United Nations Peace Plan.
To this end, it is necessary for the Cheikh to meet at
least once with the Observer and the applicants from each
sub-fraction to become amply acquainted with the latter in
preparation for the identification session. A list, in
Arabic, of the applicants from his sub-fraction should be
supplied to the Cheikh.
To facilitate contact between the applicants and the Cheikh
of their fraction, the Observer teams will be tripled to
enable them to follow the identification operation at the
same time as preparing the applicants.
In the identification session the Cheikh should appear
credible and convincing and should not restrict himself to
recognizing the applicant, but seek to support and defend him
as well. He should listen closely to the applicant's
declaration and give active, reasoned and coherent testimony
in support of the applicant's answers.
He should have perfect knowledge of the applicant, his
lineage and his links with the sub-fraction and region.
He should relate this in a clear and convincing manner to
the Identification Commission to elicit a positive verdict
from it.
4. Role of the Instructors
Close contact between the Instructor, the Cheikh and the
Observer is essential to train the Cheikh, teach him the
identification process and the five eligibility criteria,
raise his awareness, motivate him and remove any complexes he
may have about the MINURSO Commission.
At least one full-day session involving the Observer, the
Instructor, the Cheikh and the applicants from the sub-
fraction is necessary to coordinate, evaluate and plan their
common action.
For each ethnic sub-fraction, it is proposed that a group
of applicants from the Southern Provinces who have already
been identified, along with qualified cadres from these
provinces, should be formed to help with the training
programme of applicants from the Northern Provinces.
These applicants should identify the best-known and most
widely distributed parts of their lineage and make them known
to the Identification Commission.
In the same context, applicants from the Northern Provinces
who are of Sahrawi origin should be integrated with their
respective tribes to familiarize themselves with certain
details that may help facilitate their identification.
Nevertheless, in cases where applicants in this category
are certain of their Sahrawi origin but have acquired the
culture of Northern Morocco, those concerned should defend
their Moroccan personality while providing convincing proofs
of their Sahrawi origin.
Lastly, agents of the authorities, notables, young people
and women should be mobilized in support of this operation.
A special unit is to be established for preparing the
Chyoukh, and a system set up to
[[Page H6636]]
train the Instructors and the Chyoukh in, for example:
the identification process.
the five criteria.
the role of the Chyoukh.
the technical arrangements.
Finally, deserving Chyoukh are to be encouraged and treated
with respect.
In conclusion, the next twenty weeks are of determining
importance for the outcome of the referendum to confirm the
Moroccanness of the Sahara, whose result depends on your
immediate action to apply integrally all the instructions you
have been given on this subject, which I invite you once
again to execute rigorously in liaison with the central
Governors concerned, who are required to keep me regularly
informed.
Driss Basri,
The Minister of State for the Interior.
Mr. LEVIN. Mr. Speaker, I yield 4 minutes to the gentleman from
Washington (Mr. McDermott), a colleague and friend from the Committee
on Ways and Means.
(Mr. McDERMOTT asked and was given permission to revise and extend
his remarks.)
Mr. McDERMOTT. Mr. Speaker, the President and his Trade
Representative say that the U.S.-Morocco free trade agreement is a good
idea because it will strengthen our economic ties with moderate, I
emphasize moderate, Muslim countries.
Well, first of all, two-way trade flow between the United States and
Morocco is around a billion dollars a year. Morocco is a tiny economy
with little economic significance. The U.S. Commerce Department
indicated the trade agreement will have a negligible impact on trade
and negligible impact on our economies.
Furthermore, while I recognize that King Mohammed VI has made great
strides recently, particularly with regard to the rights of women, we
should not forget two very important issues. One, Morocco is a monarchy
and the king is deemed the country's religious leader. This FTA is
really about strengthening ties with moderate monarchies; Jordan,
Bahrain and others have preceded it.
There are dozens of Muslim countries that are vibrant democracies,
Egypt, that we should have chosen to pursue trade agreements before we
chose Morocco.
But, two, the way in which Morocco has handled the Western Sahara is
really a stain on their nation. In 1975, when the Western Sahara went
free from Spain, the Moroccans moved in immediately and said this is
our country. It is a very, very wealthy country in natural resources.
Both oil is being drilled for by Kerr McGee and other American and
British companies, and the fishing industry off the coast is very
proficient.
So before signing an agreement with them, with a nation that has been
occupying a territory to which it has no legal claim for 25 years, a
nation that has erected a 2,000-kilometer wall to keep the inhabitants
of Western Sahara from fleeing, with a country that has no respect for
the right of self-determination, we should have ensured that the area
of Western Sahara was justly and peacefully resolved. It would have
been a lever we could have used to get them to resolve this.
The U.N. has said you should have an election and they just never
quite get around to having it for 25 years.
I am really pleased, however, that the chairman of the House
Committee on Ways and Means and the ranking member, the gentleman from
New York (Mr. Rangel), have worked with me to insert language into the
official committee documents to indicate that in no way does the free
trade agreement cover trade investment in the Western Sahara.
The issue is this: If you drill oil in the Western Sahara and the
Moroccans take it into Morocco, is it then eligible for tariff-free
dealings with the United States? And the answer should be no, and there
should really never have been a trade agreement until that legal claim
was relinquished or we had some sort of agreement on all of this.
What we do have is a letter which the gentleman from Pennsylvania
(Mr. Pitts) inserted in the Record. I suspect I have one very similar
to his but he will insert it also in the Record. I will include a
letter from the Trade Representatives saying that in dealing with
Morocco we are dealing with Morocco as understood by the United Nations
and the United States, and we are not using this as a kind of end-
around to go out and get more oil.
One wonders why did we go to Morocco? What is it about Morocco? It is
a little tiny country, very little trade with us. What is being done
here that really needs to be done?
I think we need to protect the indigenous people of the Sahrawi who
live in Western Sahara. They need to have the protection from this
United States reaching in and taking their resources by the back door.
I thank the chairman for bringing this issue to the floor.
Executive Office of the President, The United States
Trade Representative
Washington, DC, July 20, 2004.
Hon. Jim McDermott,
House of Representatives,
Washington, DC.
Dear Congressman McDermott: Thank you for your letter of
July 19, 2004, concerning our Free Trade Agreement (FTA) with
Morocco and the status of Western Sahara.
The Administration's position on Western Sahara is clear:
sovereignty of Western Sahara is in dispute, and the United
States fully supports the United Nations' efforts to resolve
this issue. The United States and many other countries do not
recognize Moroccan sovereignty over Western Sahara and have
consistently urged the parties to work with the United
Nations to resolve the conflict by peaceful means.
The FTA will cover trade and investment in the territory of
Morocco as recognized internationally, and will not include
Western Sahara. As our Harmonized Tariff Schedule makes
clear, for U.S. Customs purposes, the United States treats
imports from Western Sahara and Morocco differently. Nothing
in the FTA will require us to change this practice. The
Administration will draft the proclamation authorized in the
legislation implementing the FTA (H.R. 4842) to provide
preferential tariff treatment for goods from the territory of
Morocco. Preferential tariff treatment will not be provided
to goods from Western Sahara.
I hope this letter addresses your question regarding the
FTA and the status of Western Sahara. I encourage you to
support the FTA. It will create economic opportunities for
U.S. manufacturing and service firms, workers, and farmers,
and will support economic reforms and foreign investment in
Morocco.
Thank you again for your letter. Please feel free to
contact me should you have further questions.
Sincerely,
Robert B. Zoellick.
Mr. CRANE. Mr. Speaker, I yield 2 minutes to the gentlewoman from
Connecticut (Mrs. Johnson).
Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman for
yielding me time.
One of the earlier speakers called for a moratorium on trade
agreements. There is nothing that we could do that would hurt American
workers more than a moratorium.
Over the last few years Europe has consummated about 36 bilateral
trade agreements in this part of the world, and we have consummated
about three. Now, when they create a trade agreement with a bilateral
agreement with one of these countries, what they are doing is socking
in product standards that advantage their products and disadvantage our
products.
When we write a free trade agreement with one of these countries it
is entirely different. That is why countries like to work with us. It
is comprehensive. It includes all products and it is fair, transparent
and modern, and I commend Morocco for not only its commitment to
develop its economy in a way in which everyone benefits and everyone
prospers, but to have evidenced that commitment by changing their labor
law in preparation for this free trade agreement. I think that is very
commendable.
They changed their labor law to raise the minimum employment age, to
reduce the number of hours in a workweek, to call for periodic review
of the Moroccan minimum wage, to improve health and safety regulations,
and I am skipping over a lot of details, to guarantee the right of
association and collective bargaining. They looked at the world
standards of how you should treat your workforce and they changed their
laws to make those standards their standards.
They are moving. They are developing. Europe is trading with them
twice as many dollars worth of product as we are in America. This free
trade agreement will change that and ensure American jobs, creating new
ones as well.
Mr. BROWN of Ohio. Mr. Speaker, I yield 4 minutes to the gentlewoman
from Ohio (Ms. Kaptur).
Ms. KAPTUR. Mr. Speaker, I rise in opposition to this Moroccan so-
called free trade agreement and ask the question, why has the United
States as a result of these free trade agreements
[[Page H6637]]
over the last 20 years amassed the largest trade deficit in the United
States history? They have told us when NAFTA was passed we would have a
trade balance. We would in fact have hundreds of thousands of new jobs
in this country.
What have we got? We have got the largest trade deficit with Mexico
we have ever had, the largest trade deficit with Canada we have ever
had, and an outwash of jobs from the United States to Mexico, over
900,000 jobs and counting, nearly a million jobs. NAFTA did not work.
Then they said, well, let us sign the China Free Trade Agreement.
Boy, that will really be great. We will bring democracy to China. What
have we got? We have got the largest growing trade deficit in the
history of the United States with China. Every day companies are
closing in this country, moving more production to China where wages
are what? Ten cents an hour, 20 cents an hour.
The gentleman from Vermont (Mr. Sanders) asked the opposition here,
what is the minimum wage in Morocco? Nobody stood up. Do you know what
it is? Eighty cents, 80 cents an hour in Morocco.
What makes you think if we pass another NAFTA-like trade agreement,
this time with Morocco, are we going to make it any better? This is no
different than what we have had. In fact, it is more of the same and
even worse.
Our trade balance with Morocco is going down. Now, I think this
agreement with Morocco has nothing to do with trade. It has everything
to do with the Sahara and with oil relationships along the western
side, and that is a whole other story not for this debate. But why
would we want to sign a free trade agreement with a kingdom? Why would
we want to empower a monarchy which this will do? You cannot have free
trade with a country that is not free. Look at Saudi Arabia, where the
majority of terrorists came from. That is a kingdom. Why would we want
to empower those who hold assets in undemocratic countries? That is
exactly what this agreement will do with Morocco.
This agreement is worse than NAFTA. NAFTA's labor and environmental
provisions are a joke anyway. They are just side agreements with no
teeth. This agreement has nothing, let me repeat, this has nothing to
do with labor or environment. It does not have anything like the
Jordanian trade agreement which made a step toward labor and the
environment. Further, this agreement blocks the reimportation of
prescription drugs as the Australian agreement did.
This agreement provides for the privatization of public services,
more outsourcing of our service jobs in this country. There are no
adjustment provisions in this agreement for workers who lose their
jobs. In fact, in the old NAFTA agreement, they now do not even want to
count how many American workers are losing jobs in this country so we
can provide them with transitional assistance here at home. This
agreement has no adjustment provisions.
One of the interesting provisions in this bill deals with Chapter 11.
It guarantees that if investors get in trouble in Morocco--such as,
what if terrorists do some things over there we do not like--this
agreement protects their private risk through government. Even our own
constitution does not do that on investment. Investors get a good deal
in this agreement, workers do not.
Let me address one of the other unusual aspects of this agreement. It
changes the wording of the provisions that deal with agriculture and
food safety from being ``equal to'' to what is called ``equivalency''.
Who is going to define equivalency on food safety and how it is
different from ``equal to''? Or who is going to define equivalency on
prescription drugs? What it does is it puts us on a downward path
compared to the high standards we have set in this country for our own
food and drug safety.
This is a bad deal. It is a bad deal economically. It is a bad deal
politically. In view of our standing in the Muslim and Arab world, this
is a bad deal. It does not promote democracy.
I encourage my colleagues in this body to vote no on this NAFTA-like
expansion that now aims to include Morocco.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I appreciate the gentlewoman's comments, but we are
discussing the U.S.-Morocco FTA, which passed the Committee on Ways and
Means by a vote of 26 to nothing. In addition, we have a trade surplus
with Morocco. Trade with Morocco creates jobs. The projections are
right now that over the next decade our exports will triple in the
agricultural sector alone, and the Trade Adjustment Assistance Program
already provides benefits to anyone adversely effected by trade, and
there is no need for a new program.
Mr. Speaker, I yield 3 minutes to the gentleman from Arizona (Mr.
Kolbe).
Mr. KOLBE. Mr. Speaker, just to correct the record, and I am sure the
gentlewoman misspoke, the United States does not have a free trade
agreement with China. We have normal trade relations but no free trade
agreement with China.
{time} 1715
Mr. Speaker, I do rise in support of this U.S.-Morocco free trade
agreement and thank the gentleman from Illinois for his leadership on
this.
Today, I am not going to talk about the merits of the agreement. I
think there are plenty of them; but instead, I want to point out what I
think this agreement means in the context of U.S. policy for the
broader Middle East.
This agreement would be the second free trade agreement that we would
have with a country in the Middle East, and it would be another
cornerstone of U.S. free trade efforts in this region. Achieving free
trade and integrating this region into the global economy is of
critical concern to the United States.
Economically, socially, this region faces enormous problems, enormous
dilemmas. Inequality in many Middle Eastern countries has grown. It has
not diminished in recent decades.
Political, economic, and social systems are intertwined and appear
closed to those in the outside world. For those who are not already a
part of the system, improvement in their lives is only a distant dream.
In July 2002, the United Nations Development Program released a
report with some discouraging statistics. Middle Eastern regional
growth over the last 2 decades has been the lowest in the world except
for sub-Saharan Africa. Labor productivity has been on the decline
since 1960. 65 million people are illiterate. One of every two women
can neither read nor write. Ten million children are not in school.
Unemployment has reached 15 percent with many areas experiencing much
higher rates.
The Middle East cannot be healthy socially or politically so long as
its economies are in crisis. The United States has a strong interest in
helping to stimulate the economies and promote stability in the region.
Now, the U.S.-Morocco free trade agreement cannot by itself solve the
deep and widespread economic and social inequalities which permeate
this region, but the U.S.-Morocco free trade agreement is a step in
helping one country in this region deepen its integration into the
world trading system and reach its aspirations for development.
Passing this agreement will help this North African country develop
and practice a system of the rule of law that will have implications
far beyond trade and the commercial sector.
I urge my colleagues to support this agreement. It is more than just
an agreement. It symbolizes our efforts, the efforts of the United
States, to integrate this country and this region in partnership with
shared aspirations and expectations.
I thank the gentleman for yielding me time.
Mr. LEVIN. Mr. Speaker, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Neal), another distinguished member of the Committee
on Ways and Means.
(Mr. NEAL of Massachusetts asked and was given permission to revise
and extend his remarks.)
Mr. NEAL of Massachusetts. Mr. Speaker, I want to commend the
gentleman from Michigan (Mr. Levin). He does a terrific job with the
gentleman from Illinois (Mr. Crane) on a bipartisan basis to ensure
that every opinion is heard on the Subcommittee on Trade over at the
Committee on Ways and Means. I think oftentimes that is
[[Page H6638]]
why we have the final product that we do.
Let me use this opportunity, Mr. Speaker, to explain why I will be
voting in favor of this bilateral free trade agreement between the
United States and Morocco, even though there are several aspects of the
agreement that trouble me.
My chief disappointment with the agreement is that, once again, the
administration refused to specifically require our trading partner to
abide by the five most basic internationally recognized labor
standards.
The International Labor Organization has identified those principles
as the right to associate and bargain collectively, and prohibitions on
forced labor, discrimination and child labor.
Instead of assuring these minimal protections for foreign workers,
our recent trade agreements have imposed a different standard. They
require our partners to enforce whatever labor laws exist in that
particular country, regardless of how lax those laws might be.
While I strongly believe that this is the wrong negotiating tack as a
general matter, in the specific case of Morocco, the country's labor
laws more than surpass international minimum standards; and by all
accounts, it appears that the government is making a genuine and
conscientious effort to work with unions, workers, and employers to
bolster its worker protections even further, including the right to
strike. The labor provisions of this agreement are not perfect, but
they represent a workable starting point.
Although this agreement is not what I would ideally like to see, it
represents an important first step. Fundamentally, I believe that the
U.S. can improve its international standing and its national security
by expanding trade and strengthening its relationships with moderate
Muslim countries. Unfortunately, more and more Muslim voices are
calling for boycotts of the United States and its products. That makes
it all the more critical for us to reach out to those who are eager to
form a partnership with us.
Over the long term, I believe that agreements with nations such as
Morocco are mutually beneficial from an economic standpoint. They also
represent an opportunity to help mend international relations that have
endured a great deal of strain over the last several years.
Mr. Speaker, this agreement could be better. Certainly I would have
negotiated it differently, but it will pave the way for progress in a
region that is critically important to the United States, and so it
does have my support.
Mr. CRANE. Mr. Speaker, can the Chair tell me how much time we have
remaining.
The SPEAKER pro tempore (Mr. Ose). The gentleman from Illinois (Mr.
Crane) has 29 minutes remaining. The gentleman from Michigan (Mr.
Levin) has 16 minutes remaining. The gentleman from Ohio (Mr. Brown)
has 14\1/2\ minutes remaining.
Mr. CRANE. Mr. Speaker, I yield 3 minutes to the distinguished
gentlewoman from Washington (Ms. Dunn), a member of the Committee on
Ways and Means.
Ms. DUNN. Mr. Speaker, I want to thank the gentleman from Illinois
(Chairman Crane) and the gentleman from California (Chairman Thomas)
and our ranking members of the Committee on Ways and Means for moving
this free trade agreement so effectively through the committee process
and onto the floor so that before we break for August recess we can
express our support for this agreement.
I do rise in support of the U.S.-Morocco free trade agreement, Mr.
Speaker. This is our second trade agreement with an Arab country. With
our trade agreement with Morocco, along with those of Israel, Jordan,
and Bahrain, we are working to improve economic opportunities in North
Africa and in the Middle East.
While the Moroccan economy is much smaller than ours, it remains a
key export market for the United States and for my home State. In a
State where approximately one in three jobs is now related to trade, it
is not surprising that Washington State was the top exporter to Morocco
with over $112 million in 2003.
By eliminating 95 percent of the tariffs immediately on United States
manufactured goods, we are improving the competitiveness of our
businesses in Morocco. Of the $465 million total United States exported
from Morocco last year, nearly 29 percent, or $134 million, was due to
aerospace products. It is very important to the Northwest, where so
many jobs are directly or indirectly affected by our aerospace
industry. In fact, Boeing aircraft dominate Royal Air Morac's fleet
with a potential of 17 more planes on order.
This agreement will also strengthen intellectual property rights
standards for patents, for trademarks and for copyrights so that our
high-tech industries are protected in our digital economy. Higher
standards, however, are not enough unless there is a commitment for
better enforcement of these standards.
For this reason, I am very pleased with Morocco's commitment to
better enforcement of intellectual property rights, such as increasing
criminal penalties for piracy and for counterfeiting.
This is a very good agreement for our agricultural community. It
eliminates duties on our products, and it liberalizes quotas on
critical commodities. It also ensures that United States commodities
will have equivalent access to any other trade agreements that Morocco
negotiates with any other country. If Morocco gives another country
better market access on agricultural products, our farmers get the same
benefits.
Mr. Speaker, I ask my colleagues to support this trade agreement so
that we can build an economic bridge with Morocco and the Middle East.
Mr. BROWN of Ohio. Mr. Speaker, I yield myself such time as I may
consume.
I am a little puzzled by this debate. I heard my friend from Texas
talk about all the great promises of free trade and how these trade
agreements are going to mean so much to our farmers and to our workers
and to our businesses. I have heard the gentleman from Illinois (Mr.
Crane) say some of the same kinds of things, but I guess I am puzzled
because I have heard that throughout my entire 12 years in Congress.
I have heard every trade agreement that comes to the floor, so many
speakers say over and over and over again that if we pass these trade
agreements, we are going to have more jobs, we are going to do more
exports, we are going to have our balance in trade; and look what has
happened in the last 12 years.
Our trade deficit when I came to this Congress was about one-fourth
of what it is today. We import $1.5 billion more every day than we
export. George Bush, Senior, said for every $1 billion of trade, either
export or import, it was equivalent to somewhere in the vicinity of 14
or 15 or 16,000 jobs. Well, we have almost a $500 billion trade
deficit. Do the math. That is an awful lot of lost jobs.
When we pass these trade agreements, we continue to hemorrhage jobs.
We continue to have job loss. We continue to lose manufacturing jobs.
One out of six manufacturing jobs in my State has been lost since
George Bush took office. We have lost 165 jobs every day of the Bush
administration.
So the answer to that is let us do more of what we have already been
doing, let us do more tax cuts for the wealthiest people in society,
hoping that maybe some of it will trickle down to more jobs, and let us
do more trade agreements which ship jobs overseas? People in our
communities say these trade agreements are not working.
China, entry of China in WTO; NAFTA; Singapore, Chile, Australia,
Morocco, these trade agreements are not translating into more jobs, and
people at home know that. In spite of what people in this institution
say, in spite of how people in this institution vote, the fact is we
continue to lose manufacturing jobs in this country. We have lost
millions of jobs in this Bush administration, and then we turn around
and do the same thing over and over and over. We make the same promises
over and over and over and the results are the same. When we will ever
learn?
Mr. Speaker, I reserve the balance of my time.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
I think it is important for everyone to understand that we have a
trade surplus at the current time with Morocco. The projections are,
though, that with
[[Page H6639]]
this free trade agreement we will have a very dramatic increase in our
exports, especially our exports in the agricultural community with that
dramatic drop in tariff barriers that have struck our access there, but
we are making progress, dramatic progress.
Mr. Speaker, I yield 5 minutes to the gentleman from Wisconsin (Mr.
Ryan), our distinguished colleague on the committee.
Mr. RYAN of Wisconsin. Mr. Speaker, I thank the gentleman for
yielding me time. I will just briefly pause and say, having a surplus
with Morocco actually helps us with our trade deficit surplus figure
because it adds to the surplus side of it.
Mr. Speaker, I would like to pause for a moment and thank those who
made this possible. I would like to thank those negotiators at the U.S.
Trade Representative who worked long and hard hours with the Moroccans
to make this agreement possible. I would like to thank our committee
chairman, the gentleman from California (Mr. Thomas); our subcommittee
chairman, the gentleman from Illinois (Mr. Crane); and also I would
like to thank the gentlewoman from Washington (Ms. Dunn), who
spearheaded this through committee and here in Congress. This is a
great product. This is a great thing.
Now, specifically, why is this beneficial to our constituents? Why is
this good for America?
Well, number one, manufacturing, a very important sector to our
economy especially in my home State of Wisconsin. This is a great deal
for manufacturing. This gets rid of the tariffs on our manufacturing
goods going to Morocco.
Number two, and even more important, agriculture. For every $1 of
imports we take from Morocco in imports, we export $10. This is a great
agreement for agriculture, especially since the Europeans, who enjoy a
50 percent higher trade flow advantage with Morocco than we have at the
present time, do not have an agreement with Morocco on agriculture. Let
me say it another way. Morocco and Europe trade a lot with each other,
50 percent more than we do with Morocco. That is going to change with
this agreement, thankfully; but the Europeans do not have an
agriculture agreement with Morocco. We will, and that means we will
sell even more agricultural products to Morocco. That is a great thing.
We have a trade surplus with Morocco. They are a great trading
partner. This is good for jobs. It is good for manufacturing. It is
good for agriculture; but Mr. Speaker, there is a broader vision here.
There is a broader purpose for all of this.
This is part of the President's MEFTI plan. This is part of the
Middle Eastern Free Trade Initiative. What is that initiative? That
initiative is to recognize we need to play a constructive role in the
Middle East; that in the war on terror, the most important aspect,
long-term vision of that war on terror is improving our understanding
and our relations with moderate Muslim countries, with the Arab world.
This accomplishes this.
We have 10 TIFAs in place, 10 trade and investment framework
agreements in place, throughout the Gulf, throughout Northern Africa,
to engage in discussion and dialogue with those countries to help bring
them up to the rules of democracy, rules of free enterprise,
enforceable contracts, the rule of law, women's right to vote, open
societies.
{time} 1730
This is what these trade agreements produce. So not only do we
produce trade agreements like this Moroccan agreement, which is good
for jobs in America, we produce political reforms by engaging in a
partnership with those in the Middle East who want democracy and want
openness. Because of these agreements and because of the role we play
in the world, we serve as a catalyst to getting these countries to open
their societies.
Here is one example with the Moroccan agreement. Because of this
trade agreement, Morocco passed a great piece of legislation in their
constitution and their law for labor standards. They have been trying
to do this for 20 years. For 20 years labor groups in Morocco have been
trying to get the right to collectively bargain, a shorter workweek,
better laws to protect against child labor. Those things are the law of
the land in Morocco because of this agreement.
So what we are doing with this broad initiative, through trade
investment framework agreements, which lead to these free trade
agreements like we have with Jordan and Bahrain and now Morocco, what
this accomplishes is bringing these nations into a partnership of
democracy, of freedom, of openness and prosperity. That is how we end
up improving the lives of people in the Middle East, and that at the
end of the day, and I am going to make this connection, is how we make
sure that young men and women who are susceptible to the likes of al-
Qaeda, who grow up in tyrannical countries with lives where they have
no hope and no place to put their creative energies and turn to the
likes of al-Qaeda, now have hope in the countries where they did not
have them before.
Now young people in these countries who are opening up their systems,
bringing democracy, bringing open societies, they have hope. They have
a place to channel their energies. This will be one if we improve our
relationship, our cultural understanding, our dialogue, and, yes, our
trade with these countries.
The Moroccan trade agreement is a perfect example of this vision. I
urge Members to pass this trade agreement. It is good for jobs, it is
good for Americans, it is good for Moroccans, and it is good for our
foreign policy in the Middle East. That is a very, very important goal.
Mr. LEVIN. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Crowley).
Mr. CROWLEY. Mr. Speaker, I thank the gentleman for yielding me this
time.
I rise in support of this free trade agreement between the United
States and Morocco. It has been a pleasure for me to work not only with
the gentleman from Michigan (Mr. Levin), the gentleman from New York
(Mr. Rangel), the gentleman from New York (Mr. Meeks), the gentleman
from Washington (Mr. Smith), the gentleman from California (Mr. Dooley)
and others from our side, but also with Members from the other side of
the aisle, the gentleman from Pennsylvania (Mr. English), the gentleman
from Missouri (Mr. Blunt), the gentleman from Virginia (Mr. Cantor),
and the gentleman from California (Chairman Thomas) in making this bill
a reality today on the floor.
As a Member who supports free trade and fair trade, and as a member
of the Subcommittee on the Middle East and Central Asia on the
Committee on International Relations, I was happy to work with Members
to develop this legislation, which goes beyond being just a trade bill
and morphing into a foreign policy tool.
Morocco has been a strong ally and friend of the United States since
we declared our independence, and this agreement will continue to
strengthen our long-standing relationship. This free trade agreement
with Morocco will immediately eliminate duties on 95 percent of
nontextile industrial imports, which will be the best market access the
U.S. enjoys with a developing nation.
Besides the economic benefits from the implementation of this free
trade agreement, it also has spurred our friends in Morocco to create a
comprehensive new labor law which just went into effect this past June.
The Moroccan new labor law raises the minimum employment age, reduces
the workweek with overtime rates, improves worker health and safety
regulations, addresses gender equity, and promotes employment of the
disabled. This labor law also guarantees rights of association and
collective bargaining. I believe we can credit this movement in terms
of improvement of labor standards in Morocco to hopes by Morocco of
agreement on this trade agreement.
Morocco has been a stabilizing force in the Middle East, and this
agreement will help Morocco to continue on the path of moderation. In
fact, Morocco has been a good friend to one of our strongest allies,
Israel. Morocco has the largest population of Jews outside of Israel in
the Middle East and has played an important role in trying to stabilize
the current situation by continuing to play a role as a critical back
channel for communications among
[[Page H6640]]
Israel, the Arab world, and the United States.
At the core of this trade initiative is the belief that through
economic opportunity and partnership with the United States and Israel
the goal of peace in this region can be furthered. I support this free
trade agreement between the United States and Morocco, and I urge
Members to vote for final passage.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I commend the gentleman from New York (Mr. Crowley) for
his outstanding commitment in this effort to advance our free trade
relations and to advance the civilized values that free trade causes.
He has done outstanding work in that effort, and I commend him. I thank
his colleagues on his side of the aisle for their strong bipartisan
support on this important bill.
Mr. Speaker, the administration strongly supports H.R. 4842, which
will approve and implement the U.S.-Morocco Free Trade Agreement, as
signed by the United States and Morocco on June 15, 2004.
The U.S.-Morocco FTA advances U.S. economic interests and meets the
negotiating principles and objectives set out by the Congress in the
Trade Act of 2002. The FTA will benefit the people of the United States
and Morocco and illustrate to other developing countries the advantages
of more open markets for trade and investment.
The FTA provides for increased access for American farmers, workers
and businesses to Morocco's markets. Pursuant to the agreement, Morocco
will provide strong protection for intellectual property, ensure that
rules on electronic commerce are nondiscriminatory, and provide U.S.
firms access to covered government procurement opportunities on the
same basis that Moroccan firms enjoy.
The U.S.-Morocco FTA provides a significant opportunity to encourage
economic reform and development in a moderate Muslim nation and is an
important step in implementing the President's plan for a broader U.S.-
Middle East Free Trade Area. It also sets a strong example of the
benefits of open trade and democracy. Opening markets is part of the
President's six-point plan for continuing to strengthen America's
economy and to create more opportunities for American farmers, workers
and businesses.
Mr. Speaker, I reserve the balance of my time.
Mr. BROWN of Ohio. Mr. Speaker, I yield 2 minutes to the gentleman
from Ohio (Mr. Ryan).
Mr. RYAN of Ohio. Mr. Speaker, I thank the gentleman for yielding me
this time.
A couple of points I would like to make as we are having this debate.
One, we hear that there currently is a trade surplus with Morocco, but
we have to look back just a few years and remember that we had a trade
surplus with Mexico before we signed NAFTA. I think when we get
ourselves into these trade agreements the argument is we have a trade
surplus but things are going to change, and we need to look at that
here.
What I cannot understand today, not only with this agreement but the
legislation that passed out of this House earlier, is what are the
priorities? We are trying to strip the Supreme Court of their power
that was given to them by the Constitution. We are going off on another
trade agreement here. In Ohio, we just lost 14,000 more jobs just in
the month of June. The unemployment rate in Ohio went from 5.6 percent
to 5.8 percent. What are the priorities of this Congress?
In every single trade agreement that has been passed by this
Congress, there has been a promise that has been made along with it. We
say we are going to open up markets, we are going to export, and we are
going to trade. And as we get rid of those low-paying jobs, we are
going to invest in education, we are going to make sure our country is
competitive, and we are not living up to that part of the bargain.
We have 59,000 engineers which graduated from this country in 2001,
and over 200,000 that graduated from China. If we do not fix the
problem we have with our Pell Grants, our student loans, No Child Left
Behind in the State of Ohio alone is underfunded for $1.5 billion for
one school year, we cannot keep trading and not educating. That is the
problem with these trade agreements. If we are going to compete in a
global economy, we have to invest in our students or we are going to
lose the middle class in the United States of America.
Mr. CRANE. Mr. Speaker, I reserve the balance of my time.
Mr. LEVIN. Mr. Speaker, I yield 3 minutes to the distinguished
gentlewoman from Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the gentleman from
Michigan for yielding me this time.
Mr. Speaker, I listened to the debate and I fully agree with Members
from States like Ohio that have been devastatingly impacted by trade
bills that have not worked.
It is unusual for me to extend myself on trade bills and provide my
support, but as I have looked at this particular trade bill let me
congratulate the negotiators. They have gone more than the extra mile.
I have always said that where we can help developing nations, and
particularly those in Africa that I have worked with over the time of
my years in Congress, this is an important step we are making.
I cite in this trade bill some very interesting factors. First of
all, I am gratified there are no immigration aspects to this bill
because I oppose definitively any immigration issues on this bill
because the immigration system in this Nation is broken and we must fix
it in a way that is fair and balanced to all those who come to this
country to seek opportunity.
This bill, however, speaks to the issue of labor concerns. I am
delighted in 2003 Morocco undertook a major social dialogue involving
the government of Morocco and talked about adopting and did adopt in
fact major labor law reforms in July 2003 which reflected a common
agreement and was endorsed by all groups. Standards of labor treatment
and the elimination of child labor laws has been the result of these
negotiations, as well as the recognition of the right to associate and
participate in labor unions. Morocco made anti-union and other forms of
discrimination illegal, providing strong penalties against such
conduct, creating a legal obligation to engage in collective
bargaining.
And yes, Mr. Speaker, let me also say that this particular treaty
also recognizes in the fight against HIV/AIDS that we have the ability
for the government of Morocco to buy generic drugs. I would hope as we
look at treaties, as we look at labor agreements that deal in trade, as
we look at formulating trade agreements in the future, Morocco as a
developing nation is a very good standard by which to answer the
Members' questions about the sizable loss of manufacturing jobs and
other jobs around America. I too believe that we need job creation, the
creation of manufacturing jobs, and we need to invest in the workforce
of America.
I believe that this strong trade agreement will allow us to show the
people of Morocco how to develop their economic infrastructure, to be
the consumers of our products here in the United States as we improve
our trade to balance with them. We want to decrease the trade imbalance
and increase the amount of exports to Morocco and help it to become an
economic engine that will receive our products from the United States.
When that occurs, I am prepared to support a trade agreement such as
this, and I rise to support the Morocco trade agreement.
Mr. Speaker, I rise today to support H.R. 4842, the ``United States-
Morocco Free Trade Agreement Implementation Act.'' Mr. Speaker, having
traveled to Africa, I have seen the value when U.S. trade markets are
opened to this part of the world. Morocco is an important ally in a
region that needs our support. I support the long-term goal of
increasing free trade with Africa and its surrounding neighbors. This
legislation will build stronger and more effective commercial
relationships in a region of the world where economic hope is
unfortunately non-existent, developing nations like Morocco need our
partnership.
Mr. Speaker, one of my strong issues is the worldwide fight against
the deadly pandemic: the HIV/AIDS virus. In August of 2003, the U.S.
led the work towards a WTO consensus that allows poor countries without
domestic drug production capacity to issue compulsory licenses to
import drugs needed to combat diseases such as HIV/AIDS, malaria,
tuberculosis and other infectious epidemics. The Morocco FTA will not
affect that country's ability to take measures necessary to protect
public health or to use the WTO solution to import
[[Page H6641]]
drugs. This agreement ensures that government marketing-approval
agencies will not grant approval to patent-infringing pharmaceuticals.
As far as the agreement is concerned, Morocco has agreed to
establish tariff-rate quotas for beef that grow over time, providing
significantly increased access to the important market in high-quality
beef. In this respect, the U.S. will have superior access over the
European Union, and virtually every one else, as well. This legislation
levels the playing field between U.S. wheat producers and the EU,
though the transition to parity is longer than I prefer.
We should welcome Morocco into the larger network of U.S. free trade
partners. The Agreement provides benefits for businesses wishing to
supply services cross-border (for instance, by electronic means) as
well as businesses wishing to establish a presence locally in the other
country. Strong and detailed disciplines on regulatory transparency
supplement the Agreement's cross-cutting transparency provisions.
In this agreement, Morocco will allow U.S.-based firms to supply
insurance on a cross-border basis (through electronic means) for key
markets including reinsurance, reinsurance brokerage, and, subject to a
two-year phase-in, marine, aviation and transport (MAT) insurance and
brokerage. Morocco also will allow U.S.-based firms to offer services
cross-border to Moroccans in areas such as financial information and
data processing, and financial advisory services.
Of further benefit to U.S. insurance suppliers, Morocco will phase-
out certain mandatory reinsurance cessions and expedite the
introduction of insurance products. Each government commits that users
of the telecom network will have reasonable and nondiscriminatory
access to the network, thereby preventing local firms from having
preferential or ``first right'' of access to telecom networks.
U.S. phone companies will have the right to interconnect will former
monopoly networks in Morocco at non-discriminatory, cost-based rates.
U.S. firms seeking to build a physical network in Morocco will have
non-discriminatory access to key facilities, such as telephone switches
and submarine cable landing stations.
This agreement is important because Morocco is an emerging market at
the crossroads of Europe, Africa, and the Middle East. It imports $11
billion in products each year. Currently, U.S. products entering
Morocco face an average tariff of more than 20 percent, while Moroccan
products are only subject to an average 4 percent duty in the United
States.
Each government will prohibit bribery, including bribery of foreign
United States officials, and establish appropriate criminal penalties
to punish violators. This Agreement establishes a secure, predictable
legal framework for U.S. investors operating in Morocco.
All forms of investment will be protected under the Agreement, such
as enterprises, debt, concessions, contracts and intellectual property.
U.S. investors will enjoy in almost all circumstances the right to
establish, acquire and operate investments in Morocco on an equal
footing with Moroccan investors, and with investors of other countries.
Pursuant to the Trade Promotion Authority Act of 2002 (TPA), the
Agreement draws from U.S. Legal principles and practices to provide
U.S. investors in Morocco a basic set of substantive protections that
Moroccan investors in the United States currently enjoy under the U.S.
legal system.
This agreement fully meets the labor objectives set out by the
Congress in TPA. Labor obligations are part of the core text of the
Agreement. Each government reaffirms its obligations as members of the
International Labor Organization (ILO), and commits to strive to ensure
that its domestic laws provide for labor standards consistent with
internationally recognized labor principles. The Agreement makes clear
that it is inappropriate to weaken or reduce domestic labor protections
to encourage trade or investment.
Each government will be required to effectively enforce its own
domestic labor laws, and this obligation is enforceable through the
Agreement's dispute settlement procedures.
Procedural guarantees in the Agreement require each government to
provide access for workers and employers to fair, equitable and
transparent labor tribunals or courts.
The Agreement includes a cooperative mechanism to promote respect for
the principles embodied in the ILO Declaration on Fundamental
Principles and Rights at Work, and compliance with ILO Convention 182
on the Worst Forms of Child Labor.
In closing, I support the Moroccan Free Trade Agreement.
{time} 1745
Mr. BROWN of Ohio. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, one of the things I have noticed in these debates on
these trade issues is there is one common thread. There are many, but
there is one really thick common thread that is woven through all these
trade agreements, in not just these trade agreements but that is
perhaps woven through much of what this Congress has done in the last 3
years, during the Bush years, and that is whatever the drug industry
wants, whatever the pharmaceutical companies want.
We know the drug industry is the most profitable industry in America
by a factor of three or four times in profitability over other Fortune
500 industries. We also know the drug industry has 600-plus lobbyists,
more than one per Member. We also know the drug industry has given more
money to President Bush, tens of millions of dollars, and to Republican
leadership than any other industry. And we know they have gotten their
way.
They wrote the Medicare bill, we know that, with the insurance
industry. We know they have begun to try to dry up drug supplies in
Canada, prescription drugs, so that Americans have more difficulty
going to Canada to get drugs. We know that the FDA, once one of the
best agencies in the Federal Government, has been co-opted by the drug
industry so that on issue after issue they take the drug industry's
side rather than the public safety or the consumers' side. And most
importantly, I do not know that Members on the other side of the aisle
are quite aware of this, but certainly the public is aware at how high
drug prices, how much they have skyrocketed in the 3 years since
President Bush has, I was going to say turned a blind eye to drug
industry abuses but really actually fronted for and assisted in drug
industry abuses.
One more example of that is all of these trade agreements, what
happened with the Australia Free Trade Agreement, how it would for all
intents and purposes block reimportation, that is, our ability,
American consumers' ability to buy prescription drugs from another
country, to get drugs at half or a third or a fourth of their price. We
are now seeing the same in the Morocco bill.
But let us kind of scratch the surface a little and what you will
find, Mr. Speaker, is in April, United States Trade Rep, Ambassador
Zoellick, gave Assistant U.S. Trade Representative for Southeast Asian
public affairs, Ralph Ives, additional responsibilities as the
Assistant U.S. Trade Rep for pharmaceutical policy. He was the chief
negotiator in the Australia FTA, which included these provisions we
talked about which, of course, benefit the pharmaceutical industry.
Now, Mr. Speaker, we hear that this same Mr. Ives, who I said was the
chief Australia FTA negotiator on pharmaceutical interests on behalf of
the Bush administration, we find out next month he will leave USTR to
become vice president of AdvaMed, a medical supply company. We have
also learned that Claude Burke, another negotiator for U.S. taxpayers,
paid by our government, a Bush appointee for intellectual property
rights, has already left and now is working for another drug company,
working for Abbott Labs.
So this revolving door of the drug industry where the drug industry
gives money to President Bush, President Bush then helps the drug
industry, then these people who are working for taxpayers negotiate a
good deal for the drug company, then leave and come back and work for
the drug industry. Is there no shame with this crowd, with my
Republican friends who have fronted for this drug industry that is
fleecing the American public and with the administration? That is one
issue.
The other, Mr. Speaker, is why do we pass a trade agreement when we
see the same story repeated over and over and over? We just turn the
calendar back, rewind the clock, and we see it over and over again. We
see speaker after speaker come to this floor and make all kinds of
promises. We have a trade surplus in Morocco, so we ought to pass a
trade agreement. Just like we had a trade surplus with Mexico, we
passed NAFTA; and now we have a $25 billion a year, plus-plus-plus,
trade deficit.
They promise more agricultural exports. They promise more American
jobs. They promise more business for American companies. They promise
more exports of American products. But look what happens. In my State
in the last 3 years, we have lost one out of
[[Page H6642]]
six manufacturing jobs. Does that mean these trade agreements with
Mexico, with WTO in China, with Morocco, with Australia, with Chile,
with Singapore, does that mean these trade agreements are working?
There is no evidence that they are working. We continue to hemorrhage
jobs. We now have a $450 billion trade deficit, $1.5 billion trade
deficit every day. So our answer is, boy, let's do more of the same
because that must be working.
It is clearly not working. We have lost jobs during the Bush
administration, the first President since Herbert Hoover to have a net
loss of jobs. So what are we going to do? We are going to keep pursuing
the same economic policy we have had the last 3 years, more tax cuts
for the most privileged people in society, maybe some of it will
trickle down into economic growth. Clearly that has not worked. More
trade agreements, like Morocco, like Australia, like NAFTA, like China,
more trade agreements. That has not worked because we continue to
hemorrhage jobs. We continue to ship jobs overseas.
Maybe, just maybe, Mr. Speaker, since none of that seems to have
worked, maybe we ought to try something different. Maybe we ought to
have a trade agreement that does not sell out to the drug industry.
Maybe we ought to have a trade agreement with enforceable labor and
environmental standards, international labor organization standards.
Maybe we ought to have a trade agreement that puts American workers
first, that puts the environment first, that puts food safety first,
that puts American consumers of prescription drugs first. Maybe, just
maybe, we ought to put a hold on these trade agreements that continue
to ship jobs overseas and, instead, pass something that works for
American consumers, that works for American workers, that works for our
communities, and that works for the United States of America.
Mr. Speaker, I yield back the balance of my time.
Mr. LEVIN. Mr. Speaker, I yield myself the balance of my time.
When we discussed the rule, I went over some of the benefits of this
agreement, those relating to manufacturing goods, and we have been
deeply hurt in the manufacturing area in the United States these last 3
years. This agreement should open up Morocco to more goods made in
America. I referred to the agricultural area. This agreement does open
up the Moroccan market to agricultural goods produced in the United
States of America. It will also liberalize the service areas that are
important for our development. And there is reference to intellectual
property safeguards.
I want to spend a few minutes now talking about the broader
perspective here, the perspective, I think, with which we must look at
trade agreements and expanded trade.
First, there has been some reference here to bipartisanship, and it
is true that this will pass with bipartisan support. Not complete. But
I want it clear that there has been these last 3 years no basic
bipartisan consensus on trade. That has been true of the big issues. We
fought out TPA here, and it passed narrowly. CAFTA was negotiated on a
narrow basis without adequate bipartisan participation. The same has
been true today of the FTAA.
The failure of this administration to build a bipartisan consensus, a
strong bipartisan foundation, to renew that foundation that once
existed here, I think, has handicapped discussions within the WTO. We
cannot make the tough decisions relating to negotiations in the WTO
that affect American workers, businesses, farmers and others except on
the basis of a strong bipartisan foundation. We do not have it.
Secondly, we on the Democratic side together, all of us, reject the
use of one agreement as a model for others. For example, we have
discussed core labor standards. Where labor laws in a country are
essentially adequate, as was true of Jordan, the standard enforce-your-
own-laws, which was the basic standard in Jordan, can work; but it will
not work in cases where laws are very inadequate. So that is why we
Dems essentially in unison reject the CAFTA that was negotiated. We
support a Central American Free Trade Agreement, but one that is
different than was negotiated.
So the basic issue, therefore, is not, as some in the majority have
stated, whether one is for or against free trade, for or against
expanded trade. It is whether the terms of expanded trade will be
shaped to benefit all and not just a few. We do not assume that
expanded trade is automatically positive all around.
That is why when this agreement came up, we raised two issues. One of
them related to core labor standards. There was reform. We wanted to
know the facts about those reforms. We wanted to know the realities
within Morocco. We wanted to know whether it was more or less like
Jordan and not more or less like Central America.
And so we dug into the facts. We made it clear to the Moroccan
government that we cared, and I must say I think it is because
Democrats have been raising these issues perhaps more than any other
factor that the Moroccan government undertook some reforms, and we
received back a communication from the government of Morocco. I submit
for printing in the Record the letter that was sent to us and the three
other letters referred to during the debate on the rule.
The material referred to is as follows:
Embassy of the
Kingdom of Morocco,
Washington, DC, July 19, 2004.
Hon. Sandy Levin,
Rayburn House Office Building,
House of Representatives.
Dear Representative Levin: I deeply appreciate the
opportunity to work with you on the U.S.-Morocco Free Trade
Agreement. In particular, I appreciate the opportunity to
talk to you about the pharmaceutical provisions in the Free
Trade Agreement, and about how the Government of Morocco is
meeting the health needs of its citizens.
The Government of Morocco has a well-developed health
system, including a comprehensive public health program. For
example, free medical care, including medicines, is available
through our hospitals. Morocco's health care policy includes
a strong emphasis on generic drugs.
Morocco has not needed to engage in emergency measures such
as compulsory licensing or parallel imports. In fact, there
is a well-developed domestic pharmaceutical industry in
Morocco, producing also generics, and in 2000, well in
advance of the Free Trade Agreement and completely
independent of it, Morocco decided to bar parallel imports.
In addition, as a separate, but quite important matter, the
Government of Morocco is strongly committed to and has agreed
to the highest-standard intellectual property rights
provisions in the Free Trade Agreement. The Government of
Morocco believes that effective intellectual property right
protection will play a vital role in the continued economic
development of our country.
The pharmaceutical provisions in the Free Trade Agreement
were carefully considered in Morocco. They were discussed in
detail with all parties. All sectors of our health system
were involved, including the pharmaceutical industry. The
discussions also included the members of the civil society in
Morocco.
The Government of Morocco achieved in this agreement full
flexibility to meet our nation's health concerns. In
particular, the Government of Morocco believes the agreement
fully preserves its right to issue a compulsory license in
the event that this should prove necessary.
The Agreement does bar ``parallel imports'' in 1.5.9.4.
However, as described above, the Government of Morocco
already bans ``parallel imports.'' In addition, the
Government of Morocco believes that in the event that it
faced a situation where extraordinary action was required, it
could meet the needs of its people through a compulsory
license.
The Government of Morocco considered carefully the data
exclusivity provisions in the agreement. We do not believe
that they present any risk to our ability to meet the health
needs of our citizens.
Under the Agreement, a compulsory license does not override
obligations to provide data exclusivity under 15.10.1 and 2.
The Government of Morocco believes it is unlikely that a
situation would ever arise where data exclusivity would be a
barrier to the issuance of a compulsory license. If such an
event did occur, the Government of Morocco believes that an
accommodation could be reached with the owner of the data.
The Government of Morocco supports the Paragraph 6 solution
of the Doha Declaration. The Free Trade Agreement does not
restrict our ability to export under the Paragraph 6 solution
of the Doha Declaration. To the specific, 15.9.6 does not
create a barrier to exports under the Paragraph 6 solution of
the Doha Declaration.
The June 15, 2004 side letter between our two countries
addresses the ability to amend the Free Trade Agreement,
responsive to amendments to the WTO Agreement on Trade-
Related Aspects of Intellectual Property Rights. Under the
Agreement, the Government of Morocco believes it can consult
immediately to amend the Agreement responsive to any WTO
amendments. Under the Agreement, it is not required to wait
for there to be an application in dispute of the Agreement.
[[Page H6643]]
I look forward to keep working with you.
Sincerely,
Aziz Mekouar,
Ambassador.
____
Embassy of the
Kingdom of Morocco,
Washington, DC, July 14, 2004.
Hon. Sandy Levin,
Rayburn House Office Building,
Washington, DC.
Dear Congressman Levin: I have deeply appreciated the
continuing opportunity to work with you on the U.S. Morocco
Free Trade Agreement. In particular, I welcome your interest
in our nation's labor law, specifically the comprehensive
reforms, passed last year.
I want to address through this letter some of the issues
that have been highlighted in conversations with you and your
staff. Under Moroccan law, it is illegal to fire an
individual because they are a member of a labor organization
or have engaged in labor organizing. To fire someone on these
grounds would be arbitrary under the 2003 law and would make
available the full remedies provided under that law.
Under Moroccan law, it is illegal to refuse to hire an
individual because they are a member of a labor organization
or have engaged in labor organizing. It is also illegal to
refuse to rehire or extend the contract of an individual for
these reasons.
Section 473 is a provision in the 2003 Labor Law and the
provision's intent is to ensure that labor representatives do
not undermine the traditional labor organizations. The
government intends to implement this provision to achieve
that goal, consistent with the core provisions of the ILO.
The right to strike is protected in the Moroccan
constitution. Further clarification of these rights is
underway. The government of Morocco is committed to
protecting the right to strike in conformance with the
International Labor Organization's core principles. In
particular, the government of Morocco will not use Article
288 of our penal code against lawful strikers.
Concerning the questions regarding Labor Representatives,
employers have the obligation to organize the elections for
the labor representatives. Employers cannot vote in these
elections and are not able to choose labor representatives.
Only employees can vote and elect freely the labor
representatives.
Employees can join freely the Union of their own choice.
Unions designate their representatives within the companies.
On the ILO involvement, Morocco has always worked with ILO.
For instance, ILO assisted Morocco to write the Labor Code of
2003 and the new law on child labor. Morocco, as in the past,
will continue to ask the support of ILO and work with this
organization in all labor issues such as new laws and will
ask its help in providing assistance for the implementation
of the current rules.
I look forward to continuing to work with you on these
issues and any others of potential concern. Nevertheless, I
wanted to get back to you in a timely manner on the key
issues addressed in this letter.
Sincerely,
Aziz Mekouar,
Ambassador.
____
Congress of the United States,
House of Representatives,
Washington, DC, July 15, 2004.
Hon. Robert B. Zoellick,
U.S. Trade Representative,
Washington, DC.
Dear Ambassador Zoellick: We are writing to express our
ongoing concern about sections of recently negotiated U.S.
free trade agreements (FTAs) that could affect the
availability of affordable drugs in developing countries. In
particular, we are concerned about the impact of restrictions
on parallel imports and about marketing exclusivity
requirements for pharmaceuticals included in the Morocco FTA.
Our concern relates to two points.
First, it appears that some of the provisions contradict,
both explicitly and in spirit, commitments made by the United
States in the World Trade Organization in both the November
2001 Declaration on the TRIPS Agreement and Public Health
(the Doha Declaration) and the September 2003 Implementation
of Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public Health (the Paragraph 6 Decision). Section
2101(b)(4)(C) of the Trade Act of 2002 (Trade Promotion
Authority or TPA) directs the Administration to respect the
Doha Declaration, necessarily including subsequent agreements
related to that Declaration.
Second, we are concerned that the FTA's restrictions on
obtaining regulatory approval for drugs, including drugs that
are already off-patent, are likely to increase prices in the
Moroccan market. These restrictions, described below, could
undermine the availability of generic versions of drugs to
treat serious health problems, including HIV/ADS, that are
widespread in many, if not most, developing countries.
Moreover, any increase in the price of drugs in a developing
country like Morocco will be borne by consumers because most
developing countries have large rural, uninsured, and poor
populations who pay out-of-pocket for drugs.
In discussions with your staff and in recent testimony
before the Committee on Ways and Means, we understand that
your office is of the view that the FTA does not interfere
with a country's efforts to ensure broader access to
medicines. We request that you explain that view to us in
writing, and in particular, by responding to the questions
outlined below. We have focused on Chapter 15 of the U.S.-
Morocco FTA, because it may be considered by Congress in the
coming weeks.
restrictions on parallel importation
Article 15.9.4 of the U.S.-Morocco FTA requires both
countries to recognize the exclusive right of a patent holder
to import a patented product, at least where the patent
holder has restricted the right to import by contractual
means. In practical terms, this provision means that neither
Morocco, nor for that matter, the United States, may allow
parallel imports of patented pharmaceutical products from the
other country, or where a national of the other country owns
the patent.
With respect to Morocco, which is a developing country,
this provision appears to limit one of the flexibilities
identified in the Doha Declaration for increasing access to
medicines, and accordingly, it appears to contradict the
direction in section 2102(b)(4)(c) of TPA. Specifically, the
Doha Declaration reaffirmed that the TRIPS Agreement provides
flexibility for WTO Members to take measures to protect
public health, including ``promot[ing] access to medicines
for all.'' One of the key flexibilities identified in the
Doha Declaration is the right of each country to determine
for itself whether to allow parallel imports.
Does Article 15.9.4 of the Morocco FTA prevent Morocco from
allowing parallel imports of a patented pharmaceutical
product?
Given that the Doha Declaration explicitly confirms the
right of each country to retain flexibility in allowing
parallel imports of drugs as one way of meeting the public
health needs of its citizens, please explain why the
provision was included given that TPA directs the
Administration to respect the Doha Declaration?
Which country sought inclusion of this provision?
If Morocco or the United States eliminated the exclusive
right of a patent holder to import a patented product, would
either be in violation of Article 15.9.4?
market exclusivity and related provisions
Article 15.10.1 of the U.S.-Morocco FTA requires that both
countries prevent the use of data submitted to support an
application for marketing approval (e.g., approval from the
Food and Drug Administration (FDA)) for a new pharmaceutical
chemical product without the consent of the person submitting
such data, for a period of five years from the date of
approval. In layman's terms, this means that if a company
submits data to meet FDA-type safety and efficacy standards,
and obtains marketing approval based on that data, other
companies cannot obtain regulatory approval based on those
data for five years. Given the cost of generating such data,
this provision operates effectively as a grant of market
exclusivity in virtually all cases, including in cases where
the drug is off patent. Article 15.10.2 appears to allow an
additional three years of marketing exclusivity for new uses
of an already-approved pharmaceutical product. Article
15.10.3 requires both countries to extend patents where there
is a delay in the marketing approval process.
The provisions described above appear to be based on 1984
amendments to U.S. law known as the Hatch-Waxman Act. The
objectives of the Hatch-Waxman Act were to accelerate and
increase the availability of generic drugs in the United
States while balancing the need for continued investment in
new drugs. As you are aware, the Hatch-Waxman Act was
necessary because prior to 1984, U.S. law made it extremely
difficult and expensive to bring a generic version of a
pharmaceutical product to market, even after a patent
expired. This was because prior to the 1984 changes, a
company seeking marketing approval for a copy of an already-
approved drug had to generate its own data to support its FDA
application. The cost of generating those data effectively
precluded second entrants from entering the market. (First
entrants were able to offset the cost for generation of the
data because they enjoyed patent protection.) The Hatch-
Waxman Act allowed second entrants to rely on data submitted
by first entrants, thereby reducing costs and speeding
introduction of generic versions of drugs to the U.S. market.
In exchange for allowing second entrants to ``piggy-back''
off first entrants, first entrants were given a period of
market exclusivity, even for drugs that are off-patent.
The Hatch-Waxman Act's provisions on market exclusivity
were part of a compromise necessary to ensure that the U.S.
regulatory structure was updated to facilitate the entry of
generic drugs into the U.S. market. Most developing countries
already have robust generic markets, in large part because
they already allow producers of generic versions of drugs to
obtain regulatory approval based on data submitted by first
applicants or based on prior approval. In light of that fact,
and given that innovative drug companies largely develop
drugs for developed country markets and conduct the necessary
tests to get marketing approval in those markets regardless
of whether they are given market exclusivity in low-income
developing countries, what is the rationale for including
these provisions?
Please describe the circumstances under which the three
additional years of marketing exclusivity described in
Article 15.10.2 would apply.
Neither Article 15.10.1 or 15.10.2 on marketing exclusivity
appear to allow for reliance on previously submitted data or
prior
[[Page H6644]]
approval during the period of market exclusivity absent
consent of the first applicant. The Doha Declaration
reaffirmed the right of countries to use flexibilities under
the TRIPS Agreement, such as compulsory licenses. A
compulsory license allows someone other than the patent
holder to produce and sell a drug under patent. It is not
clear to us why the grant of a compulsory license would
override a grant of market exclusivity, as provided in
Articles 15.10.1 and 15.10.02. (We note that there is no
exception to protect the public.) Please describe how the
market exclusivity provisions in Article 15.10.1 and Article
15.10.2 relate to Morocco's ability to issue a compulsory
license.
Where a compulsory license has been issued, may a Party
automatically deem that the first applicant has consented to
reliance on the data or prior approval for the drug produced
under the compulsory license?
If the patent and test-data were owned by different
entities, does a compulsory license result in legal
``consent'' by both the patent holder and the data owner for
use of the patented material and the test data?
When the drug is off patent, and a Party wishes to permit
marketing for a second entrant, what mechanism exists in the
FTA to allow for an exception to the provisions on market
exclusivity?
Is a grant of market exclusivity pursuant to Articles
15.10.1 and 15.10.2 considered an ``investment'' with respect
to Chapter 10 of the agreement? If so, would an abridgement
of the period of market exclusivity constitute a compensable
expropriation under Chapter 10?
Article 10.6.5 of the FTA appears to clarify that any act
of patent infringement carried out by a Party in the issuance
of a compulsory license in accordance with the TRIPS does not
constitute a compensable expropriation. Issuance of a
compulsory license, however, is only one aspect of the
process of getting a drug to market. Does the clarification
in Article 10.6.5 also ensure that other measures taken by a
government to ensure that a drug on which a compulsory
license has been issued can be lawfully marketed (e.g., a
grant of marketing approval to a generic or second producer
before the period of marketing exclusivity has expired) will
not constitute compensable expropriations? If not, is there
another provision in the agreement that would ensure that
such measures do not constitute expropriations?
Article 15.10.3 requires that a patent term be extended
where there is a delay in the regulatory approval process.
The provision does not state whether delays attributable to
the applicant (e.g., failure to provide adequate data)
mitigate against extension. Article 15.9.8, the comparable
provision for extension of a patent term because of a delay
in the patent approval process, makes clear that delays
attributable to the patent applicant should not be considered
in determining whether there is a delay that gives rise to
the need for an extension. Why was similar language not
included in Article 15.10.3?
Is Morocco, or for that matter the United States, required
by the FTA to extend a patent term where there is a delay in
the regulatory approval that is attributable to the
applicant?
Bolar-Type Provisions That Limit Export
Article 15.9.6 of the U.S.-Morocco FTA appears to allow a
person other than a patent holder to make use of a patent in
order to generate data in support of an application for
marketing approval of a pharmaceutical product (e.g.,
approval from the FDA). However, Article 15.9.6 also states
that if exportation of the product using the patent is
allowed, exportation must be limited to ``purposes of meeting
marketing approval requirements.'' This provision appears to
preclude Morocco from exporting generic versions of patented
pharmaceutical products for any reason other than use in
obtaining marketing approval because that is the only
exception noted.
If that is the case, the provision would seem to curtail
Morocco's ability to act as an exporter of pharmaceutical
products to least-developed and other countries under the
Paragraph 6 Decision. Specifically, the Paragraph 6 Decision
allows countries to export drugs produced under a compulsory
license to least-developed countries or to countries that
lack pharmaceutical manufacturing capabilities. Were the
provisions to constrain Morocco's ability to export under the
Paragraph 6 Decision, the United States could be accused of
backtracking on commitments that have been made.
Please explain whether this Article prohibits Morocco from
allowing the export of generic versions of patented
pharmaceutical products for purposes other than ``meeting
market approval requirements.'' If it does not, please
explain in detail how you came to that conclusion.
If this provision does in fact limit Morocco's ability to
allow the export of generic versions of patented
pharmaceutical products, please explain how Morocco could
serve as an exporting country to help least-developed and
other countries address public health needs under the
Paragraph 6 Decision. (Exporters under the Paragraph 6
Decision are exporting to meet the health needs of an
importing country, not merely to obtain marketing approval.)
Does Article 15.9.6 allow export of a generic version of a
patented drug to get marketing approval in a third country
(i.e., other than the United States or Morocco)? (Article
15.9.6 states that ``the Party shall provide that the product
shall only be exported outside its territory for purposes of
meeting marketing approval requirements of that Party.'')
Side Letter to the Agreement
The Morocco FTA includes an exchange of letters dated June
15, 2004, between the Governments of Morocco and the United
States. The letters appear intended to clarify the
relationship between the intellectual property provisions of
the FTA and the ability of Morocco and the United States to
take measures to protect the public health.
The letters address two issues. First, the letters state
that the intellectual property provisions in the FTA ``do not
prevent the effective utilization'' of the Paragraph 6
Decision. Second, the letters state that if the TRIPS
Agreement is amended on issues related to promotion of access
to medicines, and that either the United States or Morocco
takes action in conformity with such amendments, both
countries will ``immediately consult in order to adapt [the
intellectual property provisions of the FTA] as appropriate
in light of the amendment.''
On the Paragraph 6 Decision, please explain how the
statement that the FTA does not ``prevent the effective
utilization'' is not merely rhetorical. Please be specific as
to why you believe the provisions in the FTA do not preclude
Morocco from acting as an importer or exporter of drugs under
the Paragraph 6 Decision, including how the FTA's provisions
related to market exclusivity can be waived if Morocco acts
in either capacity.
On the issue of consultation, do the letters mean that both
Parties agree to amend the FTA as soon as possible to reflect
access to medicines amendments to the TRIPS Agreement? Will
the United States refrain from enforcing provisions of the
FTA that contravene the TRIPS Agreement amendments while the
FTA is being amended? Is USTR willing to engage in an
exchange of letters with the Government of Morocco
memorializing such an understanding?
We appreciate your prompt response to these questions.
Sincerely,
Charles B. Rangel,
Ranking Democrat, Committee on Ways and Means.
Jim McDermott,
Member, Committee on Ways and Means.
Sander Levin
Ranking Democrat, Subcommittee on Trade, Committee on Ways
and Means.
Henry A. Waxman,
Ranking Democrat, Committee on Government Reform.
____
Executive Office of the President, Office of the United
States Trade Representative,
Washington, DC, July 19, 2004.
Hon. Sander M. Levin,
House of Representatives,
Washington, DC.
Dear Congressman Levin: Thank you for your letter of July
15, 2004, regarding certain provisions of the intellectual
property chapter of the U.S.-Morocco Free Trade Agreement
(FTA).
I have addressed each of your specific questions below. As
a general matter, for the reasons also set forth below, the
FTA does not conflict with the Doha Declaration on the TRIPS
Agreement and Public Health or otherwise adversely, affect
access to medicines in Morocco. The FTA does not require
Morocco to change its policies with respect to any of the
flexibilities noted in the Doha Declaration. Furthermore, we
believe that this FTA can advance Morocco's ability to
address public health problems, both by putting in place
incentives to develop and bring new medicines to market
quickly and by raising standards of living more broadly.
The experience of Jordan under the U.S.-Jordan FTA is
illuminating. The United States and Jordan signed the FTA in
2000, during the prior Administration, and we worked with
Congress to enact that agreement in 2001. The U.S.-Jordan FTA
contains a strong intellectual property chapter that covers,
for example, data protection, one of the issues highlighted
in your letter. Jordan has witnessed a substantial increase
in pharmaceutical investment, creating new jobs and
opportunities. In addition, Jordan has approved 32 new
innovative medicines since 2000--a substantial increase in
the rate of approval of innovative drugs, helping facilitate
Jordanian consumers' access to medicines. The Jordanian drug
industry has even begun to develop its own innovative
medicines. This is an example of how strong intellectual
property protection can bring substantial benefits to
developing and developed countries together.
Your specific questions with respect to the U.S.-Morocco
FTA are addressed below.
Parallel Importation
1. Does Article 15.9.4 of the Morocco FTA prevent Morocco
from allowing parallel imports of a patented pharmaceutical
product?
Article 15.9.4 of the FTA reflects current Moroccan law and
therefore does not require Morocco to do anything it does not
already do. The FTA also reflects existing U.S. law. Both
Morocco and the United States already provide patent owners
with an exclusive right to import patented products,
including pharmaceuticals but also all other types of
patented products. Many innovative industries and their
employees in the United
[[Page H6645]]
States--from the high tech and pharmaceuticals sectors to
sectors covering chemicals and agricultural inputs, and on to
engineering and manufacturing--benefit from this long-
standing protection in U.S. patent law.
2. Given that the Doha Declaration explicitly confirms the
right of each country to retain flexibility in allowing
parallel imports of drugs as one way of meeting the public
health needs of its citizens, please explain why the
provision was included given that TPA directs the
Administration to respect the Doha Declaration?
Providing patent owners with an exclusive import right is
consistent with Article 28.1 of the TRIPS Agreement, which
states that patent owners have the exclusive right to make,
use, sell, offer for sale, and import products covered by
their patents. U.S. law, developed through a long line of
Supreme Court and lower court cases, has recognized this
right for over a hundred years. The TRIPS Agreement more
precisely articulated the exclusive import right, and, when
implementing TRIPS in the Uruguay Round Agreements Act,
Congress amended the patent law by providing for such a right
expressly in the statute.
At the same time, however, the TRIPS Agreement also allows
countries to choose to permit ``international exhaustion''
without challenge under WTO dispute settlement. International
exhaustion would allow parallel imports. The Doha Declaration
affirms this approach, and states that ``[t]he effect of the
provisions in the TRIPS Agreement that are relevant to the
exhaustion of intellectual property rights is to leave each
member free to establish its own regime for such exhaustion
without challenge, subject to the MFN and national treatment
provisions of Articles 3 and 4.''
Importantly, neither the TRIPS Agreement nor the Doha
Declaration require WTO members to adopt an international
exhaustion rule; they merely recognize that countries may do
so without challenge. WTO members are free to exercise their
sovereign right to choose an alternative policy. As noted,
the United States does not permit parallel imports. Morocco
also decided in 2000, well before the FTA negotiations, not
to permit parallel imports. The fact that the FTA reflects
principles already present in both Parties' laws does not in
any way lessen our commitment to the Doha Declaration. In
fact, in previous FTA negotiations with developing countries
that do not have parallel import restrictions in their
domestic law (e.g., Central America, Chile, and Bahrain), the
final negotiated texts do not contain provisions on parallel
importation.
3. Which country sought inclusion of this provision?
This provision is a standard component of the U.S. draft
text, which USTR staff has presented to Congress for review
and comment on numerous occasions. Morocco readily accepted
the proposal, without objection, and noted during the
negotiations that Moroccan patent law, like U.S. law, already
provided patentees with an exclusive importation right.
4. If Morocco or the United States eliminated the exclusive
right of a patent holder to import a patented product, would
either be in violation of Article 15.9.4?
It would depend on the details of the particular
legislation. A change in U.S. law would, however, affect many
other innovative sectors that rely on patents besides the
pharmaceutical sector. Many U.S. technology, manufacturing,
and other innovative businesses--as well as Members of
Congress--urge us regularly to vigorously safeguard U.S.
patents and the jobs they help create.
market exclusivity
5. The Hatch-Waxman Act's provisions on market exclusivity
were part of a compromise necessary to ensure that the U.S.
regulatory structure was updated to facilitate the entry of
generic drugs into the U.S. market. Most developing countries
already have robust generic markets, in large part because
they already allow producers of generic versions of drugs to
obtain regulatory approval based on data submitted by first
applicants or based on prior approval. In light of that fact,
and given that innovative drug companies largely develop
drugs for developed country markets and conduct the necessary
tests to get marketing approval in those markets regardless
of whether they are given market exclusivity in low-income
developing countries, what is the rationale for including
these provisions?
In negotiating the U.S.-Morocco FTA and other recent FTAs,
USTR has been mindful of the guidance provided in the Trade
Act of 2002, which directs USTR to seek to ``ensur[e] that
the provisions of any multilateral or bilateral trade
agreement governing intellectual property rights that is
entered into by the United States reflect[s] a standard of
protection similar to that found in United States law.'' We
understand the rationale of this guidance is to help protect
and create high-paying jobs in leading American businesses.
As a developed economy, it is understandable that U.S.
workers will be increasingly employed in higher value (and
better paid) innovative and productive jobs. On the basis of
Congress' direction, the United States sought to include
provisions that reflect U.S. law, including with respect to
the protection of data.
The protection of clinical test data has long been a
component of trade agreements negotiated by U.S.
Administrations with both developed and developing countries.
Data protection provisions were included, for example, in
many past trade agreements, including the U.S.-Jordan FTA and
the U.S.-Vietnam Bilateral Trade Agreement--both negotiated
by the prior Administration after the passage of the law to
which you refer. Such provisions were included in NAFTA, too.
They are in all recent FTAs, including the U.S.-Singapore FTA
and the U.S.-Chile FTA. Data protection provisions have also
been included in many bilateral intellectual property
agreements.
The TRIPS Agreement itself requires protection of clinical
test data against unfair commercial use. While the United
States protects data to obtain approval for new chemical
entities for five years, other countries provide different
terms. The EU, for example, protects such data for 6-10
years.
Implicit in the question, however, appears to be an
assumption that data protection is disadvantageous for
developing countries like Morocco. Yet, protection of data
actually has the potential of facilitating and accelerating
access to medicines. As recognized in Chapter 15 of the FTA
(footnotes 12 and 13), Morocco does not currently approve
generic versions of medicines based on approvals granted in
other countries. As a result, today a generic producer
wishing to sell pharmaceuticals in Morocco may obtain
approval only if an innovative producer first obtains
approval in Morocco or if the generic producer invests the
significant money and time necessary to recreate the data
itself. After an innovative producer obtains approval in
Morocco, a generic producer may rely on such data to obtain
approval for its generic product.
Therefore, under existing Moroccan law, generic
manufacturers in Morocco cannot obtain marketing approval for
a generic drug until an innovator has first obtained approval
for the drug in Morocco. Without data protection, innovative
producers will be less likely to enter the Moroccan market in
the first place because, once they obtain approval, generic
producers may capture most of the market. The data
exclusivity provisions of the FTA can thus provide an
important incentive for innovators to enter the market, which
may in turn expand the potential universe of generic drugs in
Morocco. As noted above, this is the development we are
seeing in Jordan, to the benefit of Jordan consumers.
6. Please describe the circumstances under which the three
additional years of marketing exclusivity described in
Article 15.10.2 would apply.
The question seems to imply that the basic five year term
of protection for data submitted to obtain approval of new
chemical entities may be extended to eight years. This is not
correct. There is no circumstance in which the FTA requires
that an innovator receive a data protection period longer
than five years for new chemical entities.
The three year period of protection reflects a provision in
U.S. law, which relates to new information that is submitted
after a product is already on the market (for example,
because the innovator is seeking approval for a new use of an
existing product). In that situation, at least in cases where
the origination of this new data involves considerable
effort, the FTA requires that the person providing the new
data gets three years of protection for that new data
relating to that new use. This three year period only applies
to the new data for the new use; it is not added to the
exclusivity period for any data previously submitted.
For example, if a new chemical entity is given marketing
approval, the data supporting that approval is protected for
five years. After that time, generic producers may rely on
the data to obtain approval for a generic version of the drug
for the use supported by the original data. If a new use is
subsequently discovered for the chemical entity, and the
health authority approves the new use based on new data, then
the originator of the new data is entitled to three years of
protection for that data. During that time, however, generics
can continue to produce and market the drug for the original
use.
7. Neither Article 15.10.1 or 15.10.2 on marketing
exclusivity appear to allow for reliance on previously
submitted data or prior approval during the period of market
exclusivity absent consent of the first applicant. The Doha
Declaration reaffirmed the right of countries to use
flexibilities under the TRIPS agreement, such as compulsory
licenses. A compulsory license allows someone other than the
patent holder to produce and sell a drug under patent. It is
not clear to us why the grant of a compulsory license would
override a grant of market exclusivity, as provided in
Articles 15.10.1 and 15.10.2. (We note that there is no
exception to protect the public.) Please describe how the
market exclusivity provisions in Article 15.10.1 and Article
15.10.2 relate to Morocco's ability to issue a compulsory
license.
The Doha Declaration recognizes that the TRIPS Agreement
allows countries to issue compulsory licenses to address
public health problems. The U.S.-Morocco FTA is fully
consistent with this principle. It contains no provisions
with respect to compulsory licensing, leaving the
flexibilities available under WTO rules unchanged.
In the negotiation of the U.S.-Morocco FTA, both parties
recognized the importance of protecting public health. Your
questions pertain to whether provisions of Chapter 15 (which
is the Intellectual Property Rights chapter) might affect
this common interest.
[[Page H6646]]
To address this type of concern, the United States and
Morocco agreed to a side letter on public health in which
both Parties stated their understanding that ``[t]he
obligations of Chapter Fifteen of the Agreement do not affect
the ability of either Party to take necessary measures to
protect public health by promoting access to medicines for
all, in particular concerning cases such as HIV/AIDS,
tuberculosis, malaria, and other epidemics as well as
circumstances of extreme urgency or national emergency.'' The
Parties also stated that ``Chapter Fifteen does not prevent
the effective utilization of the TRIPS/health solution''
reached in the WTO last year to ensure that developing
countries that lack pharmaceutical manufacturing capacity may
import drugs. Therefore, if circumstances ever arise in which
a drug is produced under a compulsory license, and it is
necessary to approve that drug to protect public health or
effectively utilize the TRIPS/health solution, the data
protection provisions in the FTA would not stand in the way.
8. Where a compulsory license has been issued, may a Party
automatically deem that the first applicant has consented to
reliance on the data or prior approval for the drug produced
under the compulsory license?
As explained above, if the measure described in the
question is necessary to protect public health, then, as
explained in the side letter, the FTA would not stand in the
way.
9. If the patent and test-data were owned by different
entities, does a compulsory license result in legal
``consent'' by both the patent holder and the data owner for
use of the patented material and the test data?
See previous response.
10. When the drug is off patent, and a Party wishes to
permit marketing for a second entrant, what mechanism exists
in the FTA to allow for an exception to the provisions on
market exclusivity?
A patent is designed to protect one type of intellectual
property work, i.e., an invention. Protection of data is
intended to protect a different type of work, i.e.,
undisclosed test data that required significant time and
effort to compile. The fact that one type of intellectual
property protection for a product has expired, should not
lead as a matter of course to the conclusion that all other
intellectual property rights attached to the same product
should also expire. The same is true in other areas of
intellectual property. For example, a single CD may encompass
several intellectual property rights related to the music,
the performer and the record company. These rights may expire
at different times. The fact that the copyright attached to
the sound recording has expired, should not mean that the
composer or performer loses the copyright it has. As you
know, this principle is important to a broad range of U.S.
creative and innovative industries, including the
entertainment sector, America's second largest export
business.
However, as indicated in the side letter, if a circumstance
arose, such as an epidemic or national emergency, that could
only be addressed by granting a second entrant marketing
approval notwithstanding the data protection rights of the
originator of the data, the FTA would not stand in the way.
11. Is a grant of market exclusivity pursuant to Articles
15.10.1 and 15.10.2 considered an ``investment'' with respect
to Chapter 10 of the Agreement? If so, would an abridgement
of the period of market exclusivity constitute a compensable
expropriation under Chapter 10?
The definition of an ``investment'' in the FTA includes,
inter alia, ``intellectual property rights.'' Whether an
abridgement of the data protection obligation gives rise to a
compensable expropriation of an ``investment'' under Chapter
Ten is a fact-specific issue that would have to be resolved
on the merits of a particular case. It is worth noting,
however, that Article 10.6.5 provides that the expropriation
provision of Chapter Ten does not apply to the issuance of
compulsory licenses or to the limitation of intellectual
property rights to the extent that such action is consistent
with the intellectual property chapter (Chapter Fifteen). A
determination concerning the consistency of an action with
Chapter Fifteen would be informed by the side letter.
12. Article 10.6.5 of the FTA appears to clarify that any
act of patent infringement carried out by a Party in the
issuance of a compulsory license in accordance with the TRIPS
does not constitute a compensable expropriation. Issuance of
a compulsory license, however, is only one aspect of the
process of getting a drug to market. Does the clarification
in Article 10.6.5 also ensure that other measures taken by a
government to ensure that a drug on which a compulsory
license has been issued can be lawfully marketed (e.g., a
grant of marketing approval to a generic or second producer
before the period of marketing exclusivity has expired) will
not constitute compensable expropriations? If not, is there
another provision in the agreement that would ensure that
such measures do not constitute expropriations?
See response to Question 11.
13. Article 15.10.3 requires that a patent term be extended
where there is a delay in the regulatory approval process.
The provision does not state whether delays attributable to
the applicant (e.g., failure to provide adequate data)
mitigate against extension. Article 15.9., the comparable
provision for extension of a patent term because of a delay
in the patent approval process, makes clear that delays
attributable to the patent applicant should not be considered
in determining whether there is a delay that gives rise to
the need for an extension. Why was similar language not
included in Article 15.10.3?
The Parties did not find it necessary to specifically
address the issue of how to handle delays attributable to an
applicant for marketing approval in the context of data
protection. As with numerous other provisions, the Parties
retain the flexibility to address such details in their
implementation of the FTA, provided that they comply with the
basic obligation.
14. Is Morocco, or for that matter the United States,
required by the FTA to extend a patent term where there is a
delay in the regulatory approval that is attributable to the
applicant?
The FTA preserves flexibility for the Parties to address
the issue of delays attributable to an applicant for
marketing approval through their domestic laws and
regulations.
bolar provisions
15. Please explain whether this Article prohibits Morocco
from allowing the export of generic versions of patented
pharmaceutical products for purposes other than ``meeting
marketing approval requirements.'' If it does not, please
explain in detail how you came to that conclusion.
No, it does not. The Article dealing with the ``Bolar''
exception to patent rights only deals with one specific
exception. It does not occupy the field of possible
exceptions, and thus does not prevent Morocco from allowing
the export of generic versions of patented pharmaceutical
products for purposes other than ``meeting marketing approval
requirements'' when permitted by other exceptions. For
example, Morocco has the right to allow exports where
consistent with TRIPS Article 30 and WTO rules on compulsory
licensing. Morocco may, for example, allow export of generic
versions of patented drugs by issuing a compulsory license in
accordance with the TRIPS/health solution agreed last August
in the WTO.
16. If this provision does in fact limit Morocco's ability
to allow the export of generic versions of patented
pharmaceutical products, please explain how Morocco could
serve as an exporting country to help least-developed and
other countries address public health needs under the
Paragraph 6 Decision. (Exporters under the Paragraph 6
Decision are exporting to meet the health needs of an
importing country, not merely to obtain marketing approval).
As noted in the response to Question 15, the FTA does not
limit Morocco's ability to make use of the TRIPS/health
solution agreed last August to export drugs under a
compulsory license to developing countries that cannot
produce drugs for themselves.
17. Does Article 15.9.6 allow export of a generic version
of a patented drug to get marketing approval in a third
country (i.e., other than the United States or Morocco)?
(Article 15.9.6 states that ``the Party shall provide that
the product shall only be exported outside its territory for
purposes of meeting marketing approval requirements of that
Party.'')
Morocco can get marketing approval in a third country to
allow export of a generic version through the issuance of a
compulsory license for export, consistent with WTO rules.
Article 15.9.6 does not interfere with that result.
side letter
18. On the Paragraph 6 Decision, please explain how the
statement that the FTA does not ``prevent the effective
utilization'' is not merely rhetorical. Please be specific as
to why you believe the provisions in the FTA do not preclude
Morocco from acting as an importer or exporter of drugs under
the Paragraph 6 Decision, including how the FTA's provisions
related to market exclusivity can be waived if Morocco acts
in either capacity.
There are no provisions in the FTA related to compulsory
licensing, which means that it does not limit in any way
Morocco's ability to issue compulsory licenses in accordance
with WTO rules, including TRIPS Article 31 and the TRIPS/
health solution. With respect to other rules included in
Chapter 15, including data protection, the side letter states
that the FTA does not ``prevent the effective utilization of
the TRIPS/health solution.'' As stated in the side letter,
the letter constitutes a formal agreement between the
Parties. It is, thus, a significant part of the interpretive
context for this agreement and not merely rhetorical.
According to Article 31 of the Vienna Convention on the Law
of Treaties, which reflects customary rules of treaty
interpretation in international law, the terms of a treaty
must be interpreted ``in their context,'' and that
``context'' includes ``any agreement relating to the treaty
which was made between all the parties in connection with the
conclusion of the treaty.''
19. On the issue of consultation, do the letters mean that
both Parties agree to amend the FTA as soon as possible to
reflect access to medicines amendments to the TRIPS
Agreement? Will the United States refrain from enforcing
provisions of the FTA that contravene the TRIPS Agreement
amendments while the FTA is being amended? Is USTR willing to
engage in an exchange of letter with the Government of
Morocco memorializing such an understanding?
The United States would, of course, work with Morocco to
ensure that the FTA is adapted as appropriate if an amendment
to
[[Page H6647]]
the TRIPS Agreement were adopted to ensure access to
medicines. The only amendment currently being contemplated
with respect to TRIPS involves translating the TRIPS/health
solution from last August into a formal amendment. The United
States has no intention of using dispute settlement to
challenge any country's actions that are in accordance with
that solution. In fact, Canada passed legislation recently
that would allow it to export drugs in accordance with the
TRIPS/health solution. The United States reached an agreement
with Canada just last Friday, July 16, to suspend parts of
NAFTA to ensure that Canada could implement the solution
without running afoul of NAFTA rules.
In closing, let me emphasize that we appreciate the
importance of the U.S. commitment to the Doha Declaration on
the TRIPS Agreement and Public Health and the global effort
to ensure access to medicines in developing countries to
address acute public health problems, such as AIDS, malaria
and tuberculosis. The United States played a leading role in
developing these provisions, including enabling poor
countries without domestic production capacity to import
drugs under compulsory licenses. We also successfully called
for giving Least Developed Countries an additional ten years,
from 2006 until 2016, to implement TRIPS rules related to
pharmaceuticals. These accomplishments offer a significant
solution to the conflicts we encountered on taking office in
2001.
At the same time, as Congress has directed us, the
Administration has worked on multiple fronts to strengthen
the value internationally of America's innovation economy.
These efforts have included stronger intellectual property
protection rules and enforcement so as to assist U.S.
businesses and workers, and encourage ongoing innovation that
benefits U.S. consumers.
Our FTAs are but one component of the Administration's
broader efforts to achieve these objectives, and complement
efforts undertaken in other fora. Our FTAs not only do not
conflict with the objectives expressed in the Doha
Declaration but reinforce those objectives and facilitate
efforts to address public health problems.
Sincerely,
John K. Veroneau,
General Counsel.
This is what was said in this letter: ``The government of Morocco is
committed to protecting the right to strike in conformance with the
International Labor Organization's core principles. In particular, the
government will not use 288 of our penal code against lawful
strikers.''
I do think that our inquiry, I do think the responsible discussions
that were held with the Moroccan government and their officials
indicated that, in practice, the labor standards within Morocco
essentially meet the ILO standards.
We next raised the issue of prescription medicines. We did not assume
more trade would automatically benefit everybody, including our
citizens and also the citizens of Morocco. On reimportation, we do not
like the language the way it was inserted there, the general language
on patent protection. However, reimportation from Morocco has never
been suggested in any of the legislation introduced; and so I think for
this purpose, for this bill, it is not an issue.
But there were two provisions that could restrict the access of
citizens of Morocco to prescription medicines. We are talking about
people whose health is at stake. We are talking about the spread of
AIDS. We are talking about the spread of other ailments and other
diseases. And the question became whether anything in this FTA would
restrict the government of Morocco from having access for their
citizens to these prescription medicines. That access was assured in
the Doha Declaration. And so there followed a letter from us on the
Democratic side to USTR; and here is what was said, their understanding
of the provisions including the side letters:
``If circumstances ever arise in which a drug is produced under a
compulsory license and it is necessary to approve the drug to protect
public health or effectively utilize the TRIPS/health solution, the
date of protection provisions in the FTA would not stand in the way.''
They also said, USTR, in interpreting what was in this FTA: ``If the
measure described in the question is necessary to protect public
health, then, as explained in the side letter, the FTA would not stand
in the way.''
They also said: ``This side letter constitutes a formal agreement
between the parties. It is thus a significant part of the interpretive
context for this agreement and not merely rhetorical.''
In a word, the government of Morocco has the flexibility to assure
the health of its citizens under the Doha Declaration.
{time} 1800
Because of our efforts to clarify what was going on in terms of core
labor standards and conditions in Morocco and because of our efforts in
the response of USTR on prescription medicines, we feel that this
agreement should be approved.
However, our questions serve notice that we should be very sensitive
in the future in how we shape trade agreements. We should not assume
there is no need to shape expanded trade. We have made it clear it is
essential that we do so, and it is under that kind of structure, it is
within that perspective, that I suggest that we approve this agreement
between our two nations, with whom there are very significant
relationships.
Mr. Speaker, I yield back the balance of my time.
Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
I want to first commend our colleagues on the other side of the aisle
on the Committee on Ways and Means for guaranteeing unanimous
commitment to passage of our Free Trade Agreement with Morocco and look
forward to working with them in the future.
Mr. Speaker, I yield the balance of my time to the distinguished
gentleman from California (Chairman Thomas).
(Mr. THOMAS asked and was given permission to revise and extend his
remarks.)
Mr. THOMAS. Mr. Speaker, my assumption is that the closing remarks on
the part of the ranking member of the Trade Subcommittee was an
endorsement. It sounded as though we began with an extremely flawed
product and, through their efforts, they were successful in righting
the ship so that we could actually have a minimally decent document. I
wonder where they were when President Clinton wanted fast track, their
President, and three quarters of them voted against providing the
President.
So when we listen to the remarks, we really have to put it, one, in
context and then appreciate that intensity or outlandishness does not
equal votes. And when I close shortly, take a look at the votes in
terms of who is for and who is against.
But I do want to spend just 1 minute analyzing the level of the
content and the direction of the debate. The ranking member from New
York began this discussion by indicating that I stole the election in
Florida. That certainly was an appropriate beginning on a debate on a
Free Trade Agreement with Morocco. I would probably classify it as
silly, but that is the level of debate that we often engage in. And it
is just a pleasure to allow the rest of the country to understand the
level at which exchanges are made not only in committee but on the
floor when we try to engage in a serious discussion.
I heard an indication that people were interested in jobs, and, of
course, I will talk about the gentleman from Ohio and his diatribe in a
minute.
You missed the boat on the jobs issue. That was the jobs growth tax
bill. It has had a major positive effect on jobs. You were ``no'' on
that one as well. We have got 46 of the 50 States expanding.
Unemployment is down in all regions of the country. This is the fastest
growth in the last 20 years. And based upon your debating style, at
that point I would pause and parenthetically say even including the
Clinton years so that we can understand that the mention of Bush in
every other sentence and in a negative way was clearly focused on the
Free Trade Agreement and had nothing to do with attempting to influence
an election. We have got 1.5 million jobs, continuing to grow, and they
will continue to grow right through the election.
But I want to especially focus on the other gentleman from Ohio (Mr.
Ryan) because at some point we cannot allow statements made on the
floor of the House to stand when they are so outrageously false. The
statement referred to legislation that we were considering earlier, and
the statement was that what we did denied what the Constitution
provides. I would urge everyone at some time, and especially certain
Members, to look at the Constitution and turn to Article III, the
judicial article, and look at Section 2. And I will just read it
briefly, referring to the judicial branch: ``In all cases affecting
Ambassadors, other public ministers
[[Page H6648]]
and consuls, and those in which a State shall be party, the Supreme
Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such regulations as
the Congress shall make.''
The Congress was exercising its constitutional function in indicating
that areas of appellate jurisdiction were not to be examined by the
court, and it absolutely floors me, well, I guess it does not based
upon the other statements made by those on the other side of the aisle,
that not only apparently they do not know the Constitution, but they
actually invoke it in a totally false way on the floor of the House of
Representatives.
So what I would really urge Members to do is not pay any attention to
what was said necessarily on the other side of the aisle but take a
look at the vote for this particular measure. H.R. 4842 certainly
deserves the overwhelming majority support of this House. I believe it
will be bipartisan. And, please, we will take away from this particular
bill on the floor the fact that the vote was bipartisan even if the
rhetoric is not and at times not just silly but downright, flat-out
wrong.
Mr. KUCINICH. Mr. Speaker, the U.S.-Morocco free trade agreement is
bad for America.
The agreement prohibits the importation of lower cost
pharmaceuticals, and delays the availability of lower cost generic
drugs by creating new patent-like protections for drug regulatory data.
Together, these measures will maintain high prescription drug prices in
the U.S.
The agreement contains a side letter permitting Morocco to ignore
enforcement of its labor laws with no penalty whatsoever. Under this
loophole, American employers and workers under U.S. labor law could be
at a disadvantage if actual conditions in Morocco are so lax as to
create a much cheaper business environment.
The agreement prohibits the preferences for government contracts to
be given for: employing U.S. workers, using recycled materials, paying
prevailing or living wages. Furthermore, no criminal record of tax
evasion, endangering the lives of workers, or pollution can disqualify
a company for a government contract.
These flaws are not necessary for trade between nations. They are,
however, elements in an anti-consumer, anti-worker, anti-environment
and anti-democratic agenda. For these reasons, I oppose the U.S.-
Morocco free trade agreement.
Mr. TOWNS. Mr. Speaker, while I intend to vote for the Morocco Free
Trade Agreement, I want to stress to the administration how important
it is to respect the report language on ``Western Sahara'' which was
included in this bill by my colleague, the gentleman from Washington,
Mr. McDermott. This language reflects the sentiment voiced in a recent
bipartisan letter to the U.S. Trade Representative, Robert Zoellick.
Under no circumstances should the U.S. proceed with the
implementation of a free trade agreement that does not categorically
exclude the terrority known as the Western Sahara. The U.S., as well as
the international community, does not recognize Morocco's sovereignty
over Spain's former colony. Morocco has steadfastly refused any efforts
by the United Nations to permit a free and fair referendum on self-
determination for the Sahrawi people of Western Sahara. We should not
permit Morocco to use the agreement to further its illegal occupation
of Western Sahara.
I urge the administration to take these concerns seriously and to
implement a free trade agreement that does not violate the sovereignty
and rights of the people of Western Sahara.
Mr. CARDIN. Mr. Speaker, I rise today to voice a significant concern
with regard to the proposed Free Trade Agreement between the United
States and Morocco. While this is a concern specific to Morocco, it
highlights a broader issue that I and many of my colleagues share in
regard to the pace and ``individuality'' of the many bilateral FTAs
being negotiated by the USTR.
Reviewing the February 25, 2004 State Department Country Report on
Human Rights for Morocco, I came across several issues. The report
highlights a series of human rights abuses in Morocco and I believe
these unacceptable practices need to be a priority of the United States
as it builds and strengthens its long-standing ties with Morocco.
I was greatly concerned with an issue that comes up several times in
the report. To quote one sentence: ``The judiciary lacked independence
and was subject to government influence and corruption.'' As I assume
we can all agree, the lack of an independent judiciary and corruption
are significant, fundamental barriers to the development of a sound,
growing trade relationship.
As the Ways and Means Committee considered this agreement I asked
representatives of the USTR about this fundamental issue. They had no
comment and promised to follow-up with me. I want to thank Chairman
Thomas for for seconding my concerns at the markup and also seeking a
response. The USTR has made available to me the American Bar
Association report on the state of Morocco's judicial system, citing
some hope for reform.
My impression is that the state of the judiciary in the Kingdom of
Morocco and corruption in commerce are issues that received little
attention as the USTR negotiated this agreement. That should not be the
case. Bilateral FTAs are a means to address issues such as these with
key trade partners and strengthen the basis for trade relations. An
independent judiciary is essential to sound, long-term trade relations.
As well, corruption in many foreign nations has long been a concern of
the United States; one where we have long set a high standard and
required our businesspeople to operate on an ethical basis.
I understand the USTR's current interest in pursuing a large number
of bilateral agreements to advance trade around the world--particularly
as our more broad based talks and negotiations on global agreements
have stalled. That being said, quantity should not supplant quality in
agreements. Our goals in each of our trade agreements should remain
high and be targeted to the situation in each nation. I am concerned in
this agreement we have not met our highest goals and lost an
opportunity.
Reluctantly, I intend to support this FTA because I believe the
government of Morocco has demonstrated its commitment to working with
us and raising its own standards; the new labor rights laws enacted
last year are a good example. But I want to strongly urge the USTR to
show more care and attention to the individuality of nations as we move
forward, particularly as it relates to institutional reforms and the
protection of human rights.
Mr. STARK. Mr. Speaker, time sure flies when you're having fun. Just
last week I expressed serious misgivings about the U.S.-Australian Free
Trade Agreement (FTA), noting, among other problems, that it set a bad
precedent for future trade bills. Those concerns are confirmed today by
this bill. The U.S.-Morocco FTA is a bad agreement that protects U.S.
pharmaceutical manufacturers while ignoring labor standards and the
healthcare needs of Moroccan citizens.
I warned you last week that a vote for the Australian FTA was a vote
against prescription drug reimportation, and it's true again today. We
cannot continue to allow USTR to include intellectual property
provisions in FTAs that undermine Congress's ability to provide
affordable prescription drugs through reimportation. True, we aren't
going to be importing drugs from Morocco any time soon, but what
happens in the next FTA, and the one after that? It should be clear by
now that the USTR is merely a shill for the pharmaceutical industry,
engaged in nothing more than closing the door to drug reimportation at
the request of the Administration.
Unfortunately, the Morocco agreement doesn't stop at undermining the
debate over reimportation. In fact, it goes much further by limiting
access to potentially life saving drugs in Morocco. Because the
agreement limits parallel importation, if a pubic health emergency
breaks out, Morocco cannot import affordable drugs from neighboring
countries if a U.S. country manufacturers the drug.
Once again, the pharmaceutical industry has used the administration
and a free trade agreement to protect its profits, without any concern
for global health. If Morocco has a public health crisis, it would be
forced to purchase drugs from U.S. manufacturers instead of getting
immediate access to the same drugs from nearby countries. The U.S.
pharmaceutical industry has been gouging prices here in America for
years; just think what they can do to prices when a developing country
is in crisis.
You would think one provision limiting access to drugs in Morocco
would be victory enough for the pharmaceutical manufacturers, but this
industry just does not stop. Also included in the FTA are limits on the
use of test data and market exclusivity provisions that could raise the
price of drugs in Morocco and further limit access.
Because the FTA limits test data usage and creates 5 years of market
exclusivity, the introduction of generic drugs in the Moroccan market
will be substantially delayed. When generics are not available, prices
increase--along with manufacturers' profits--and poorer citizens have
less purchasing power to obtain life saving drugs.
There is also the strong possibility that these data and exclusivity
provisions will further tie the hands of the Moroccan government during
a public health emergency. The FTA and side letter are amazingly vague
on whether Morocco can engage in compulsory licensing of otherwise
patented drugs during a
[[Page H6649]]
health crisis. Here again, the pharmaceutical manufacturers will do
anything to make sure they are the monopoly power, even when lives are
at stake.
Today we vote on nothing less than the future course of domestic and
international pharmaceutical policies. USTR will continue to use trade
agreements to limit our ability to import affordable pharmaceuticals
from other countries. It is also clear that future negotiations are
going to limit drug access in other countries so that U.S.
pharmaceutical manufacturers can make even more money abroad. These are
bad policies, and we should not let the Administration continue to
implement them by slipping them into free trade agreements.
I am also concerned that USTR has once again failed to include core
labor standard requirements in a free trade agreement. USTR should not
continue to use the ``enforce your own laws'' standard in FTAs without
developing countries. I understand Morocco is moving in the right
direction in terms of labor rights, but there is no reason this FTA
should not have held them to the core labor standards developed by the
International Labour Organization (ILO). The ILO standards ensure
workers' human rights and their right to organize and strike. We cannot
have acceptable free trade without a level playing field, and these
standards are the key to ensuring trade between the U.S. and other
countries is both free and fair.
This is a bad free trade agreement that sets a bad precedent for all
future trade negotiations. We cannot continue to let the administration
make health policy without Congressional input, and we surely would not
let the pharmaceutical industry have their way just because of their
large campaign donor status. We also cannot ignore workers' rights by
allowing trade partners to enforce their own laws when those laws do
not meet international labor standards.
I urge my colleagues to vote against the U.S.-Morocco Free Trade
Agreement.
Mr. JEFFERSON. Mr. Speaker, I strongly support the Morocco Free
Trade Agreement and believe it will promote domestic growth in
manufacturing and exports. I look forward to seeing this agreement
enacted into law. I also support, thank and congratulate the United
States Trade Representative and staff in negotiating the inclusion of
full duty drawback and duty deferral rights for U.S. manufacturers,
exporters and workers in this FTA. Free trade agreements should include
no language that eliminates or otherwise restricts the application of
duty drawback and duty deferral programs to U.S. manufacturers and
exporters. The language in the Singapore, Australia, Israel and Jordan
FTAs and in the CAFTA, for example, have no such restrictive language
and we should continue to model future agreements after these FTAs.
This issue is of significant importance to many U.S. manufacturers and
exporters, including those in my home State of Louisiana.
Duty drawback and duty deferral programs reduce production and
operating costs by allowing our manufacturers and exporters to recover
duties that were paid on imported materials when the same or similar
materials are exported either whole or as a component part of a
finished product. Duty drawback positively affects nearly $16 billion
of U.S. exports each year. Additionally, nearly 300,000 U.S. jobs are
directly related to exported goods that benefit from drawback, and
these high quality jobs could be adversely affected by eliminating or
restricting drawback. In my own home State of Louisiana, drawback and
duty deferral programs provide substantial benefits to local
industries, allowing them to compete on a level playing field in the
global market. Drawback and deferral prevents outsourcing and saves
U.S. manufacturing and jobs. As long as the programs provide a
competitive advantage in production and sales for U.S. manufacturers
and exporters, they will assist in preventing U.S. jobs from moving
offshore.
Drawback makes a significant difference to U.S. companies at the
margin when exporting to our FTA partners where they compete against
foreign producers that either have substantially lower costs of
production or enjoy low or zero import duty rates. This export
promotion program is one of the last WTO-sanctioned programs that
provide a substantial advantage to U.S. companies participating in the
export market. The application of these programs to U.S. manufacturers
and exporters should not be restricted in future free trade agreements
that we negotiate with our trading partners.
We need to work hard to complete free trade agreements that provide
as many competitive advantages as we can to U.S. manufacturers
competing in the global market, encourage growth in U.S. exports, and
create U.S. jobs.
Mr. ETHERIDGE. Mr. Speaker, I rise today to announce my support for
H.R. 4842, legislation implementing a free trade agreement with the
nation of Morocco.
For more than two centuries, Morocco has been a steadfast friend to
the United States. Few Americans would guess that Morocco was the first
nation to extend recognition to the new American nation on December 20,
1777. Morocco is also one of only six Muslim nations to be designated
as a ``major non-NATO ally.'' So it is only fitting that we establish a
free trade agreement with such a long-time friend and supporter.
Under this FTA, more than 95 percent of bilateral trade between our
countries will be duty-free from the first day of implementation. North
Carolina exports to Morocco are generally small, valued at just more
than 8 million dollars. Morocco is my state's 80th biggest export
market with tobacco products, chemical manufacturing, and
transportation equipment being our top three exports.
However, North Carolina stands to gain much from increased access to
this new market, especially in the field of agriculture. Tariffs on key
North Carolina products like soybeans and processed poultry products
will be cut significantly. One significant provision in this agreement
is that Morocco has agreed to accept U.S. inspection standards for
poultry. Phony sanitary and phytosanitary restrictions on U.S. exports
have long been a hallmark of international trade. Having Morocco accept
our inspection regime will go along way to improving access to that
market.
According to an analysis by the American Farm Bureau Federation, this
agreement is expected to result in a 10 to 1 gain for the U.S.
agricultural sector. Within the next 10-11 years, the U.S. should
expect to increase agricultural exports to Morocco by $225 million.
What's more, the FTA includes a provision giving U.S. agriculture an
``automatic upgrade.'' Should Morocco negotiate another trade agreement
providing another nation with more favorable market access for
agriculture, our FTA automatically obtains the same level of access as
the other nation. This will ensure America's competitiveness against
other nations seeking to enter the Moroccan market.
I believe the geopolitical reasons for establishing this free trade
agreement with another Muslim nation in a volatile region overcomes the
few deficiencies inherent in the agreement, particularly with regard to
textiles. Because of the small amount of trade between our two
countries, any potential adverse impact should be minimized. However,
this administration cannot continue to count on this Member's support
for other trade agreements if it is not willing to stand up for even
stronger labor and environmental standards and better protections for
America's fragile textile industry.
I ask my colleagues to support this agreement.
The SPEAKER pro tempore (Mr. Ose). All time for debate has expired.
Pursuant to House Resolution 738, the bill is considered read for
amendment, and the previous question is ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. CRANE. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
Pursuant to clauses 8 and 9 of rule XX, this 15-minute vote on the
passage of H.R. 4842 will be followed by 5-minute votes, as ordered, on
suspending the rules and adopting House Concurrent Resolution 436; and
House Concurrent Resolution 418.
The vote was taken by electronic device, and there were--yeas 323,
nays 99, not voting 12, as follows:
[Roll No. 413]
YEAS--323
Abercrombie
Ackerman
Akin
Allen
Bachus
Baird
Baker
Ballenger
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Becerra
Bell
Bereuter
Berkley
Berman
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Buyer
Calvert
Camp
Cantor
Capito
Capps
Cardin
Carson (OK)
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Clyburn
Cole
Cooper
Cox
Cramer
Crane
Crenshaw
Crowley
Cubin
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeGette
DeLay
[[Page H6650]]
DeMint
Deutsch
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emanuel
Engel
English
Eshoo
Etheridge
Everett
Fattah
Feeney
Ferguson
Flake
Foley
Forbes
Ford
Fossella
Franks (AZ)
Frelinghuysen
Frost
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goodlatte
Gordon
Goss
Granger
Graves
Green (WI)
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayworth
Hefley
Hensarling
Herger
Herseth
Hill
Hinojosa
Hobson
Hoeffel
Hoekstra
Honda
Hooley (OR)
Houghton
Hoyer
Hulshof
Hyde
Inslee
Isakson
Israel
Issa
Istook
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (OH)
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kilpatrick
Kind
King (IA)
King (NY)
Kingston
Kline
Knollenberg
Kolbe
LaHood
Lampson
Langevin
Larsen (WA)
Latham
LaTourette
Leach
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
LoBiondo
Lofgren
Lucas (KY)
Lucas (OK)
Lynch
Majette
Maloney
Manzullo
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCotter
McCrery
McDermott
McHugh
McInnis
McKeon
Meek (FL)
Meeks (NY)
Menendez
Mica
Millender-McDonald
Miller (FL)
Miller (MI)
Miller, Gary
Moore
Moran (KS)
Moran (VA)
Murphy
Musgrave
Neal (MA)
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Obey
Ortiz
Osborne
Ose
Otter
Oxley
Pearce
Pelosi
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Renzi
Reyes
Reynolds
Rodriguez
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Sanchez, Loretta
Sandlin
Saxton
Schiff
Schrock
Scott (GA)
Scott (VA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Stearns
Stenholm
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Tauzin
Terry
Thomas
Thompson (CA)
Thornberry
Tiahrt
Tiberi
Toomey
Towns
Turner (OH)
Turner (TX)
Udall (CO)
Udall (NM)
Upton
Van Hollen
Vitter
Walden (OR)
Walsh
Watson
Watt
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wolf
Wynn
Young (AK)
Young (FL)
NAYS--99
Aderholt
Alexander
Andrews
Baca
Baldwin
Barrett (SC)
Berry
Boucher
Brady (PA)
Brown (OH)
Brown, Corrine
Burns
Burr
Burton (IN)
Butterfield
Capuano
Cardoza
Coble
Conyers
Costello
Davis (IL)
DeFazio
Delahunt
DeLauro
Doggett
Doyle
Emerson
Evans
Farr
Filner
Frank (MA)
Goode
Green (TX)
Grijalva
Gutierrez
Hastings (FL)
Hayes
Hinchey
Holden
Holt
Hostettler
Hunter
Jackson (IL)
Jones (NC)
Kanjorski
Kaptur
Kildee
Lantos
Larson (CT)
Lee
Lipinski
Markey
Marshall
McGovern
McIntyre
McNulty
Michaud
Miller (NC)
Miller, George
Mollohan
Murtha
Myrick
Nadler
Napolitano
Oberstar
Olver
Owens
Pallone
Pascrell
Pastor
Payne
Peterson (MN)
Pombo
Rogers (AL)
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanders
Schakowsky
Serrano
Sherman
Slaughter
Solis
Spratt
Stark
Strickland
Taylor (MS)
Taylor (NC)
Thompson (MS)
Tierney
Velazquez
Visclosky
Wamp
Waters
Waxman
Wilson (SC)
Woolsey
Wu
NOT VOTING--12
Cannon
Carson (IN)
Collins
Gephardt
Greenwood
Kirk
Kleczka
Kucinich
Lowey
Meehan
Paul
Quinn
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Bass) (during the vote). Members are
advised 2 minutes remain in this vote.
{time} 1832
Ms. CORRINE BROWN of Florida, and Messrs. BARRETT of South Carolina,
RUSH, BURTON of Indiana and BUTTERFIELD changed their vote from ``yea''
to ``nay.''
So the bill was passed.
The result of the vote was announced as above recorded.
____________________