I INTRODUCTIONThis chapter discusse

I INTRODUCTION
This chapter discusses just a few of the most important and controversial aspects of
the Australia–US Free Trade Agreement (AUSFTA ). Former WTO Deputy Director-
General Andrew Stoler has described the AUSFTA as a ‘third wave’ FTA that goes
‘beyond the envelope of the WTO’,1 in the sense that it ventures into areas barely covered
in the WTO agreements like competition and expands on WTO disciplines in other
areas like services and intellectual property . Going beyond the existing WTO rules does
not, of course, necessarily constitute progress or even greater trade liberalization.
Why did the United States pursue an FTA with Australia? Officially, among
other things, the United States was concerned with improving access to the
* PhD (Cambridge), LLM (Harv), Grad Dip (Intl L) (Melb), LLB (Hons) (Melb), BCom (Hons)
(Melb); Senior Lecturer, Faculty of Law, University of Melbourne; Fellow, Tim Fischer Centre
for Global Trade & Finance, Bond University; Barrister and Solicitor, Supreme Court of Victoria
and High Court of Australia. Email . This chapter is based on
a larger work that will appear as Andrew Mitchell and Tania Voon, ‘The Australia–US FTA’,
Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Case
Studies (Cambridge, Cambridge University Press, 2007) (forthcoming).
1. Andrew Stoler, ‘The Australia–United States FTA as a “Third Wave” Trade Agreement: Beyond
the WTO Envelope’ in Andrew D Mitchell (ed.), Challenges and Prospects for the WTO
(Cambridge, Cambridge University Press, 2005), pp. 253, 256.
Ross Buckley, Vai Io Lo and Laurence Boulle, Challenges to Multilateral Trade: The Impact of
Bilateral, Preferential and Regional Agreements, pp. 115–123.
© 2008, Kluwer Law International BV, The Netherlands.
Australian market for its agricultural exports, including by limiting Australia’s
use of sanitary and phytosanitary measures to restrict trade. It also sought to
strengthen the United States–Australia alliance for the purpose of the WTO’s
Doha Round negotiations, especially on agriculture. Like Australia, the United
States also linked the AUSFTA to its national security interests.2 An unofficial suggestion
is that the AUSFTA was ‘payback’ for Australia’s support of the Iraq war.3
This implies that Australia had more to gain from, or was more interested in, the
AUSFTA than the United States.
Why, then, did Australia want the AUSFTA ? Entry into the AUSFTA was consistent
with Australia’s general embrace of FTAs across the world in recent years,
which is based on a perception that Australia relies on bilateral links to protect the
national interest in international trade and investment as well as security.4 Australia’s
Department of Foreign Affairs and Trade (‘DFAT’) maintained that an FTA
with the United States was crucial in protecting national interests given that the
United States ‘is our largest single trade and investment partner and second-largest
export market’.5 The DFAT also expressed the hope that the AUSFTA might prevent
or mitigate harmful United States policies such as ‘Washington’s past decisions
to protect its lamb and steel industries’ and increased subsidies to farmers,6
and it indicated that the AUSFTA was particularly important given difficulties in
the Doha Round of negotiations in the WTO.7 However, according to the Australian
Senate’s Select Committee on the AUSFTA, ‘Australia’s pursuit of a free trade
agreement with America ha[d] as much, if not more, to do with Australia’s broader
foreign policy objectives as it [did] with pure trade and investment goals’.8
The AUSFTA provides an illustration of the outcomes that countries with
relatively little bargaining and economic power can expect from an FTA with the
US. It also serves as a warning of how even an economically successful developed
country may end up sacrificing its welfare, public policies and democratic processes
in a dogged pursuit to cement relations with the United States, in a manner
that would be unlikely in the vigorous negotiating environment of the WTO.
I begin by examining the way in which the AUSFTA was negotiated, before turning
to the substantive outcomes of those negotiations in one key area, namely sugar.
Finally, I consider the impact of the AUSFTA to date and its future implications.
2. Letters from Robert Zoellick, United States Trade Representative, to Senator Robert Byrd and
Dennis Hastert, Speaker, United States House of Representatives (13 November 2002).
3. M. Rafiqul Islam, ‘The Australian Policy and Practice of Preferential Bilateral Trade: A Benign
or Malign Alternative to the WTO Multilateral Free Trading System?’ (2003) 2 Journal of
International Trade Law and Policy, pp. 43, 57.
4. Department of Foreign Affairs and Trade, Advancing the National Interest: Australia’s Foreign
and Trade Policy White Paper (Canberra: Commonwealth of Australia, 2003), pp. 7, 9.
5. Ibid., p. 89.
6. Ibid.
7. See, for example, Parliament of the Commonwealth of Australia, Joint Standing Committee on
Treaties: the Australia–United States Free Trade Agreement Report 61 (Canberra, June 2004)
[2.31] (quoting DFAT).
8. Commonwealth of Australia, Senate Select Committee on the Free Trade Agreement between
Australia and the United States of America: Final Report (Canberra, 2004) [1.24].
116 Andrew D. Mitchell
II THE NEGOTIATING PROCESS
The AUSFTA has been subject to severe criticism, even apart from its substantive
implications, due to the way in which it was concluded. In part, this flowed
from the Australian system of government, under which the executive branch
negotiates and enters international treaties and the legislative branch subsequently
implements those treaties through domestic legislation to the extent necessary.9
Although some parliamentary scrutiny of treaties occurs, this is usually only after
Australia has signed the relevant treaty.10
The conclusion of the AUSFTA provides a typical example of the problems
this approach may cause in practice. The Australian government agreed to the
AUSFTA on 8 February 2004 and signed it on 18 May 2004; Australia’s implementing
legislation was passed in the House of Representatives on 24 June 2004.
Parliamentary scrutiny, through the Joint Standing Committee on Treaties, did
not commence until 2 April 2004, when it received its first official briefing on the
AUSFTA. That Committee concluded public hearings on 14 May 2004 and tabled
its report in Parliament on 23 June 2004.11 The awkward sequence of events is
obvious: ‘Within hours of the introduction of the [report of the Joint Standing
Committee on Treaties] to the parliament, and without any debate or consideration
of the report’s contents, the implementing legislation had been introduced and
passed.’12
Federal Parliament, individuals and community groups were not the only
stakeholders who sought a greater role in the negotiating process. State and territory
governments in Australia also complained that they were excluded from too
much of the negotiation, particularly in its final stages.13
Like several other Australian parliamentary bodies before it,14 the Senate
Select Committee on the AUSFTA called for further consultation and parliamen-
9. Australian Constitution, ss51(xxix), 61; See also, for example, Minister for Foreign Affairs and
Trade v. Magno (1992) 37 FCR 298, 303 (Gummow J); Commonwealth of Australia, Senate
Select Committee on the Free Trade Agreement between Australia and the United States of
America: Final Report, footnote 8 above, [2.12].
10. Commonwealth of Australia, Senate Select Committee on the Free Trade Agreement between
Australia and the United States of America: Final Report, footnote 8 above, [2.17], [2.30].
11. Commonwealth of Australia, footnote 8 above, [2.6]–[2.8].
12. Ibid, [2.9].
13. Parliament of the Commonwealth of Australia, footnote 7 above, [3.53]–[3.61]; see also
Commonwealth of Australia, footnote 8 above, [2.51]–[2.61], [2.68]; Parliament of the
Commonwealth of Australia, Joint Standing Committee on Foreign Affairs, Defence and Trade:
Australia’s free trade agreements with Singapore, Thailand and the United States – Progress
to date and lessons for the future (Canberra, 2005) [2.9], [2.11].
14. Commonwealth of Australia, Senate Foreign Affairs, Defence and Trade References Committee:
Voting on Trade – the General Agreement on Trade in Services and an Australia–US Free Trade
Agreement (Canberra, 2003) [3.91] (Recommendation 2); Parliament of the Commonwealth
of Australia, Joint Standing Committee on Treaties: Who’s Afraid of the WTO? Australia
and the World Trade Organisation (Report 42, Canberra, September 2001) [2.124]–[2.128];
Commonwealth of Australia, Senate Legal and Constitutional Affairs Committee: Trick or
Treaty? Commonwealth Power to Make and Implement Treaties (Canberra, 1995) [17.4].
The Australia–United States Free Trade Agreement 117
tary debate before the executive signs treaties (especially those involving trade) in
future.15 Last year, the Australian government largely dismissed most of the Committee’s
recommendations in this regard, stating:
The Government considers that the objective of ensuring both that the Government
is able to energetically pursue opportunities for trade growth, and
that appropriate consultation on negotiating objectives is undertaken with the
broader community, are best met by current Parliamentary and consultation
processes and practices.16
III SUBSTANTIVE OBLIGATIONS
In relation to substantive obligations imposed by the AUSFTA , I would like to
discuss sugar, an agricultural product of great interest to Australia. The AUSFTA
does not improve Australia’s market access for sugar, for example by increasing
the lower tariff rate quota for Australian sugar exports to the United States or
reducing out of quota tariffs.17 In explaining the exclusion of sugar from the agreement,
DFAT maintains that it was ‘[f]aced with a decision of w

Kết quả (Việt) 1:

I INTRODUCTIONThis chapter discusses just a few of the most important and controversial aspects ofthe Australia–US Free Trade Agreement (AUSFTA ). Former WTO Deputy Director-General Andrew Stoler has described the AUSFTA as a ‘third wave’ FTA that goes‘beyond the envelope of the WTO’,1 in the sense that it ventures into areas barely coveredin the WTO agreements like competition and expands on WTO disciplines in otherareas like services and intellectual property . Going beyond the existing WTO rules doesnot, of course, necessarily constitute progress or even greater trade liberalization.Why did the United States pursue an FTA with Australia? Officially, amongother things, the United States was concerned with improving access to the* PhD (Cambridge), LLM (Harv), Grad Dip (Intl L) (Melb), LLB (Hons) (Melb), BCom (Hons)(Melb); Senior Lecturer, Faculty of Law, University of Melbourne; Fellow, Tim Fischer Centrefor Global Trade & Finance, Bond University; Barrister and Solicitor, Supreme Court of Victoriaand High Court of Australia. Email . This chapter is based ona larger work that will appear as Andrew Mitchell and Tania Voon, ‘The Australia–US FTA’,Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: CaseStudies (Cambridge, Cambridge University Press, 2007) (forthcoming).1. Andrew Stoler, ‘The Australia–United States FTA as a “Third Wave” Trade Agreement: Beyondthe WTO Envelope’ in Andrew D Mitchell (ed.), Challenges and Prospects for the WTO(Cambridge, Cambridge University Press, 2005), pp. 253, 256.Ross Buckley, Vai Io Lo and Laurence Boulle, Challenges to Multilateral Trade: The Impact ofBilateral, Preferential and Regional Agreements, pp. 115–123.© 2008, Kluwer Law International BV, The Netherlands.Australian market for its agricultural exports, including by limiting Australia’suse of sanitary and phytosanitary measures to restrict trade. It also sought tostrengthen the United States–Australia alliance for the purpose of the WTO’sDoha Round negotiations, especially on agriculture. Like Australia, the UnitedStates also linked the AUSFTA to its national security interests.2 An unofficial suggestionis that the AUSFTA was ‘payback’ for Australia’s support of the Iraq war.3This implies that Australia had more to gain from, or was more interested in, theAUSFTA than the United States.Why, then, did Australia want the AUSFTA ? Entry into the AUSFTA was consistentwith Australia’s general embrace of FTAs across the world in recent years,which is based on a perception that Australia relies on bilateral links to protect thenational interest in international trade and investment as well as security.4 Australia’sDepartment of Foreign Affairs and Trade (‘DFAT’) maintained that an FTAwith the United States was crucial in protecting national interests given that theUnited States ‘is our largest single trade and investment partner and second-largestexport market’.5 The DFAT also expressed the hope that the AUSFTA might preventor mitigate harmful United States policies such as ‘Washington’s past decisionsto protect its lamb and steel industries’ and increased subsidies to farmers,6and it indicated that the AUSFTA was particularly important given difficulties inthe Doha Round of negotiations in the WTO.7 However, according to the AustralianSenate’s Select Committee on the AUSFTA, ‘Australia’s pursuit of a free tradeagreement with America ha[d] as much, if not more, to do with Australia’s broaderforeign policy objectives as it [did] with pure trade and investment goals’.8The AUSFTA provides an illustration of the outcomes that countries withrelatively little bargaining and economic power can expect from an FTA with theUS. It also serves as a warning of how even an economically successful developedcountry may end up sacrificing its welfare, public policies and democratic processesin a dogged pursuit to cement relations with the United States, in a mannerthat would be unlikely in the vigorous negotiating environment of the WTO.I begin by examining the way in which the AUSFTA was negotiated, before turningto the substantive outcomes of those negotiations in one key area, namely sugar.Finally, I consider the impact of the AUSFTA to date and its future implications.2. thư từ Robert Zoellick, Hoa Kỳ thương mại đại diện, thượng nghị sĩ Robert Byrd vàDennis Hastert, loa, Vương Kỳ hạ (13 tháng 11 năm 2002).3. M. Rafiqul Hồi giáo, ' Úc chính sách và thực hành của ưu đãi thương mại song phương: một lành tínhhoặc Malign thay thế cho hệ thống đa phương miễn phí giao dịch WTO?' (2003) 2 tạp chíLuật thương mại quốc tế và chính sách, trang 43, 57.4. bộ ngoại giao và thương mại, thúc đẩy lợi ích quốc gia: Úc của nước ngoàivà thương mại chính sách giấy trắng (Canberra: khối thịnh vượng chung của Úc, 2003), pp. 7, 9.5. Ibid., p. 89.6. ibid.7. xem, ví dụ, nghị viện của khối thịnh vượng chung Australia, hợp tác ủy ban thường vụ trênHiệp ước: Úc-Hoa Kỳ thương mại tự do hợp đồng báo cáo 61 (Canberra, tháng 6 năm 2004)[2,31] (trích dẫn DFAT).8. các khối thịnh vượng chung của Úc, Thượng viện chọn Ủy ban về thỏa thuận thương mại tự do giữaÚc và Hoa Kỳ: báo cáo cuối cùng (Canberra, 2004) [1.24].116 Andrew D. MitchellII TRÌNH ĐÀM PHÁNAUSFTA đã tùy thuộc vào những lời chỉ trích nghiêm trọng, thậm chí ngoài substantive của nóý nghĩa, do cách thức mà nó đã được ký kết. Một phần, điều này chảyÚc với hệ thống chính phủ, theo đó nhánh hành phápthỏa thuận và sau đó đi vào Hiệp ước quốc tế và các chi nhánh lập phápthực hiện các điều ước quốc tế thông qua các pháp luật trong nước để mức độ necessary.9Although some parliamentary scrutiny of treaties occurs, this is usually only afterAustralia has signed the relevant treaty.10The conclusion of the AUSFTA provides a typical example of the problemsthis approach may cause in practice. The Australian government agreed to theAUSFTA on 8 February 2004 and signed it on 18 May 2004; Australia’s implementinglegislation was passed in the House of Representatives on 24 June 2004.Parliamentary scrutiny, through the Joint Standing Committee on Treaties, didnot commence until 2 April 2004, when it received its first official briefing on theAUSFTA. That Committee concluded public hearings on 14 May 2004 and tabledits report in Parliament on 23 June 2004.11 The awkward sequence of events isobvious: ‘Within hours of the introduction of the [report of the Joint StandingCommittee on Treaties] to the parliament, and without any debate or considerationof the report’s contents, the implementing legislation had been introduced andpassed.’12Federal Parliament, individuals and community groups were not the onlystakeholders who sought a greater role in the negotiating process. State and territorygovernments in Australia also complained that they were excluded from toomuch of the negotiation, particularly in its final stages.13Like several other Australian parliamentary bodies before it,14 the SenateSelect Committee on the AUSFTA called for further consultation and parliamen-9. hiến pháp Úc, ss51(xxix), 61; Xem thêm, ví dụ, bộ trưởng ngoại giao vàThương mại v. Magno (1992) 37 tốn 298, 303 (Gummow J); Khối thịnh vượng chung của Úc, Thượng việnChọn Ủy ban về các thỏa thuận thương mại tự do giữa Úc và Hoa Kỳ củaMỹ: Báo cáo cuối cùng, chú thích 8 ở trên, [2.12].10. các khối thịnh vượng chung của Úc, Thượng viện chọn Ủy ban về thỏa thuận thương mại tự do giữaÚc và Hoa Kỳ: báo cáo cuối cùng, chú thích ở trên, 8 [2,17], [2,30].11. các khối thịnh vượng chung của Úc, cước chú 8 ở trên, [2.6]-[2,8].12. ibid, [2,9].13. nghị viện của khối thịnh vượng chung Australia, cước chú 7 ở trên, [3,53]-[3.61]; Xem thêmKhối thịnh vượng chung Úc, cước chú 8 ở trên, [2,51]-[2,61], [2,68]; Nghị viện của cácKhối thịnh vượng chung của Australia, khớp thường trực Ủy ban về ngoại giao, quốc phòng và thương mại:Hiệp định thương mại tự do của Úc với Singapore, Thái Lan và Hoa Kỳ-tiến độđến nay và bài học cho tương lai (Canberra, 2005) [2,9], [2,11].14. các khối thịnh vượng chung của Úc, Thượng viện Ngoại giao, quốc phòng và thương mại tài liệu tham khảo Ủy ban:Biểu quyết về thương mại-Hiệp định chung về thương mại Dịch vụ và một thương mại tự do Úc-Hoa KỳThỏa thuận (Canberra, 2003) [3,91] (giới thiệu 2); Nghị viện của khối thịnh vượng chungÚc, phần thường trực Ủy ban về Hiệp ước: sợ của WTO là ai? Úcvà tổ chức thương mại thế giới (báo cáo 42, Canberra, tháng 9 năm 2001) [2.124]-[2.128];Commonwealth of Australia, Senate Legal and Constitutional Affairs Committee: Trick orTreaty? Commonwealth Power to Make and Implement Treaties (Canberra, 1995) [17.4].The Australia–United States Free Trade Agreement 117tary debate before the executive signs treaties (especially those involving trade) infuture.15 Last year, the Australian government largely dismissed most of the Committee’srecommendations in this regard, stating:The Government considers that the objective of ensuring both that the Governmentis able to energetically pursue opportunities for trade growth, andthat appropriate consultation on negotiating objectives is undertaken with thebroader community, are best met by current Parliamentary and consultationprocesses and practices.16III SUBSTANTIVE OBLIGATIONSIn relation to substantive obligations imposed by the AUSFTA , I would like todiscuss sugar, an agricultural product of great interest to Australia. The AUSFTAdoes not improve Australia’s market access for sugar, for example by increasingthe lower tariff rate quota for Australian sugar exports to the United States orreducing out of quota tariffs.17 In explaining the exclusion of sugar from the agreement,DFAT maintains that it was ‘[f]aced with a decision of w