Allocating Legislative Competence in the Americas: The Early Experience under NAFTA and the Challenge of Hemispheric Integration

Article excerpt

I. Introduction

In June 1995, the late Ron Brown, Secretary of Commerce, and Mickey Kantor, U.S. Trade Representative, hosted the historic Hemispheric Trade Summit in Denver, Colorado.(1) This meeting brought together the trade ministers of every country in the hemisphere except Cuba.(2) The meeting was historic because of the agenda: the trade ministers and their delegations were assembled to promote an ambitious goal that would have been unthinkable a decade ago -- the creation of a Free Trade Agreement for the Americas (FTAA) by the year 2005.(3) Cognizant of the need to enlist broad support for this agenda, the trade leaders invited representatives from business, academia, and other fields to engage in discussions of the institutional and other mechanisms that would be needed to make economic integration a reality.

In Denver, the enthusiasm for increased economic integration -- indeed, for the eventual creation of a hemispheric free trade zone -- was truly remarkable. As one who has specialized in U.S.-Latin American relations, I have grown accustomed over the past twenty-five years to the United States' relative lack of interest in the region. Latin American governments, traditionally, have followed policies intended to insulate themselves from the overwhelming economic, political, and military might of the United States.(4) It was unique in my experience to attend a meeting of high-level trade officials and business leaders in which these attitudes were laid aside in a relative state of optimism for the benefits of free trade and economic integration.

The optimism generated by the Denver Trade Summit was tempered by a healthy respect for the complexity of this ambitious project. We have seen how complicated the negotiation, entry into force, and implementation of the North American Free Trade Agreement (NAFTA)(5) has been -- even though only three countries are involved, and the United States-Canada Free Trade Agreement(6) served as a partial template. Riddled with reservations and annexes, the NAFTA looks like it was designed in the Rube Goldberg school of legislative drafting. Imagine the number of special rules and arrangements that might have to be concluded to make a comprehensive hemispheric agreement a reality.

The Denver Trade Summit established seven working groups to carry out the task of devising a model for establishing a free trade agreement.(7) A second meeting took place in Cartagena, Colombia, in March 1996, and a third meeting will be held in Brazil in 1997.(8) The early results of these meetings show that there are many obstacles to hemispheric free trade. Perhaps the predominant obstacle is resistance by governments in the region to the use of a single legal paradigm for organizing regional free trade. At the base of this resistance is the unwillingness of national governments to cede authority -- to relinquish a portion of their sovereignty -- over subjects that were once thought to be regulated only at the national level. The purpose of this article is to show that increased economic integration will distribute legislative competence more broadly, dispersing authority once monopolized at the national level both above, to supranational agencies, and below, to state, provincial, and local actors. My interest is less in regional free trade per se, and more in the implications that a regional trade agreement -- especially an agreement as comprehensive as the NAFTA -- will have on the allocation of legislative competence and regulatory power throughout the hemisphere.

Should a FTAA be established, it will have repercussions beyond the sphere of imports and exports. In the late twentieth century, the term "trade law" is another name for general rule-making. As more and more subjects are brought into the sphere of international trade negotiation, the adoption of rules that affect trade in goods and services influences our societies on multiple levels: public and private, national and international, centralized and local. …

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