International trade is often a polarising debate. Some insist that absolute free trade will cure world poverty, while others insist it would do the exact opposite and intensify it. The reality is, that international trade does in part, do both those things. In many cases, it has improved people’s lives, for instance, in some South East Asian countries there was a migration from agriculture to manufacturing and a boom in small to medium enterprises which changed the economic landscape in those countries and also provided opportunities to people beyond traditional vocations. But it has also destroyed the livelihoods of other people, in particular, indigenous communities through land and resource exploitation, cultural appropriation, through the refusal to recognise the rights of Indigenous Peoples.
One thing we need to understand about the international trade system is that while it is based on principles of inter alia free trade and non-discrimination, it does have special and differential treatment mechanisms to assist countries whose economies are not ‘developed’ by allowing developed countries (who trade with developing countries) to deviate from the ‘non-discrimination’ obligation and in fact encourages them to do so under certain conditions. Additionally, the preference giving countries are prohibited from coercing or inducing concessions from the developing country because a key feature of special and differential treatment is non-reciprocity.
I don’t intend here to give a full run down of the international trade system or the WTO, but recently I wrote an essay on the Enabling Clause and Indigenous Peoples, and thought I’d provide a brief summary of what I wrote about.
Firstly, the concept of ‘Indigenous’ is still hotly contested – not just among those who decry indigeneity, but by Indigenous Peoples themselves. For the most part of their recent histories (by recent I mean, around 500 years), Indigenous Peoples have had their identities imposed on them. So when international bodies attempt to define for them who they are, it’s no wonder such attempts are met with strong resistance. The first major study done on ‘Indigenous Peoples’ at international law was by Jose Martinez Cobo. The working definition he composed is the most widely accepted today because it acknowledged the multiple layers of identity. Others have suggested and I agree with them, that Indigenous Peoples are distinct from other marginalised or minority groups because each distinct Indigenous group is constituted in much the same way as a ‘nation’, rather than say a ‘feminist group’, or the ‘working class’. Marginalised groups share a concern about the ruling elite but don’t have a system of shared values, connections to specific geographies, or purging of their culture and language through forced integration. This isn’t suggesting that the rights of Indigenous Peoples are superior and that as a result they ought to be accorded ‘more’ special treatment, rather that the outcomes Indigenous Peoples seek are distinct from the outcomes sought by marginalised groups, so the paths to self-determination while they may at times intersect, are not synonymous. I also talked about the potential harm that pro-indigenous but non-indigenous individuals or groups can have on Indigenous Peoples by purporting to speak on their behalf in order to advance their own issues. In my paper, I didn’t attempt to define or describe Indigenous Peoples although I did argue that self-identification must be the starting point (i.e. it’s not sufficient on its own) for invoking international instruments pertaining to Indigenous Peoples.
In the second part, I talked a bit about globalisation and how a new progeny of Indigenous resistance movements has been born in response to the challenges of new globalisation (noting that globalisation is not a new phenomenon). I argued that globalisation was multivariate incorporating markets, States and most importantly people, and that by focusing on only one of these aspects provides a rather thin conception of globalisation. I then proposed that the concept of Indigenous rights is not inherently incompatible with globalisation, provided discussions on globalisation focused on the implications it has for people, which would then raise issues of meaningful consultation and consent (including the right to grant or withdraw consent). After that I discussed the development of WTO law (generally) focusing on the Enabling Clause and talked about the significance of the inclusion of the Treaty of Waitangi exception clause in all (but one) of New Zealand’s international trade agreements currently in force. The Treaty clause is interesting because it indulges the language of the WTO allowing the Crown to provide ‘more favourable treatment’ to Māori with respect to obligations arising under the Treaty, and exempting issues arising under the Treaty from determination by ad hoc international tribunals. I figured, if at the national level, Māori can receive special treatment in terms of economic development issues arising under the Treaty, then why couldn’t this extend to the WTO for all Indigenous Peoples?
My motivation was this: how do we improve the economies of Indigenous Peoples, especially those who are subsumed under their national economies in which they most often participate at the periphery? My proposal was basically, expanding the Enabling Clause to include the phrase ‘developing economies’ and incorporating the finding in the EC –Tariff Preferences case in which the Appellate Body said that discrimination between developing countries was not prohibited under the Enabling Clause, provided the country or countries challenging the discrimination were not ‘similarly situated’ to the country or countries receiving the benefits. The reason I saw this as valuable, was that I thought it acted as a bit of a hand brake on abuse of the Enabling Clause by countries attempting to define their situations as ‘developing economies’ to take advantage of preferential treatment provisions. I thought that using the phrase ‘developing economies’ was flexible enough to be responsive to countries who were developed but who experienced economic collapse placing them at a similar economic disadvantage as Indigenous Peoples groups and other developing countries. I also suggested incorporating the words Indigenous Peoples, my only concern was the issue of definition but I did note that ‘developing economies’ would capture Indigenous Peoples economies. The reason I wanted to at least start the discussion on Indigenous Peoples and participation in the WTO was that I wanted to find a way to forge a path for economic self-determination. In my mind, the idea of a dual economy is not only interesting but also a way to steer Māori toward tino rangatiratanga by having the means to take control of our own trade policy and to manage the distributional effects of that in the interests of our people.