KAMALIKA PIERIS
The Yahapalana government was proud of the fact that it had managed in May 2017 to regain GSP Plus concessions offered by the European Union (EU). These had been held back during the Rajapaksa administration. Regaining GSP Plus is a great victory for Sri Lanka, yapped Yahapalana. The country receives 500 million US dollars in foreign exports by regaining GSP. It was lost because of the short-sighted policies of the Rajapaksa regime. The country will receive a new lease of life through this victory. GSP facility is awarded to countries where democracy reigns and where democratic rights, law and order is maintained, crowed Yahapalana.
GSP is the Generalised Scheme of Preferences (GSP) of the European Union (EU). It is a trade arrangement that allows developing countries to pay less or no duties on their exports to the EU. GSP+ is a special component of the GSP scheme that provides additional trade incentives to developing countries already benefitting from GSP.
GSP programme started in 2005 with 16 countries. Of these countries, only 4 were genuine applicants, Armenia, Azerbaijan, Georgia and Sri Lanka. The other 12, Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Peru, and Venezuela were nations that were put into the GSP+ programme by the EU in order to help those countries to move away from narcotics production into conventional economic activities,.
The narcotics producing countries have much less trouble with GSP+ than the others because of the ‘drugs programme’ in which these countries were before. For them GSP+ was given without any conditions. However, of the 12 narcotics producing countries in the programme, ten have dropped out and only Bolivia and Paraguay remain.
In 2010, there were 15 beneficiaries in this programme. Armenia, Azerbaijan, Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Georgia, Guatemala, Honduras, Mongolia, Nicaragua, Peru, Paraguay and Sri Lanka. Nine nations have dropped out thereafter. They are Colombia, Costa Rica, Ecuador, El Salvador, Georgia, Guatemala, Honduras, Nicaragua, and Peru. Four new nations have joined since 2010, Kyrgystan, Cape Verde, Pakistan and the Philippines.
In 2017 there were nine recipients of GSP+, Armenia, Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Paraguay, Philippines and Sri Lanka. The only proper GSP+ beneficiary in the programme from inception to date is Armenia – a tiny country much less than half of Sri Lanka in size with a population much smaller than that of the Western Province with exports of just 1.6 billion USD per year.
The only significant Asian countries on the GSP+ programme are Pakistan and the Philippines. Pakistan was one of the original beneficiaries under the ‘narcotics programme’ of the EU and it was due to the inclusion of Pakistan that India went to the WTO and got the entire EU ‘drugs programme’ shot down.
The Philippines has joined the programme obviously due to the link between the EU and Philippines during the presidency of Benigno Aquino III. But, if the EU tries to exert pressure on President Duterte, it is only a matter of time before Duterte tells the EU where to get off, said Chandraprema.
The question that all Lankans should be asking themselves is, if this is such a desirable trade concession, how is it that there is such a large turnover in the list of beneficiaries? If this is a trade concession that can alter the destiny of a nation for the better, why would any country drop out of it? The truth of the matter is that GSP+ is the most unsuccessful trade preference programme ever launched by the EU, said Chandraprema.
GSP programme was started in 2005 to promote good governance in middle income countries by making them sign and adhere to 27 international conventions in exchange for getting zero duty access to the EU. The beneficiary countries would be monitored by the EU for compliance. This scheme was a flop from the beginning because very few countries want to lose their sovereignty in exchange for a trade concession. The Rajapaksa government too did not give in to the EU.
‘Nobody should be under any illusions that Yahapalana got GSP+ without any conditions attached’ said Chandraprema. There are conditions attached to GSP+ for Sri Lanka. To participate in GSP+ there are two conditions that Yahapalana government must satisfy. Firstly, Yahapalana must ratify and effectively implement 27 international conventions on human and labor rights, environmental protection, and good governance without any reservations. Secondly, Yahapalana must comply with the monitoring procedures and requirements imposed by those conventions, as well as with the EU’s monitoring procedure on GSP+ led by the European Commissions.
This means that in order to qualify for GSP+, the applicant country has to forego one of the most sacred and fundamental international rights accorded to sovereign states by Articles 19 to 23 of the Vienna Convention on the Law of Treaties, the right to file reservations. When signing multilateral treaties, sovereign nations have the right to file reservations about provisions in those treaties. With our inclusion in the GSP+ programme, Sri Lanka has no right to file reservations that are not to the liking of the European Commission in relation to any of these conventions. That is a blow to the very notion of sovereignty.
There are two documents relating to the re-grant of GSP+ to Sri Lanka, which call for our attention. The first of these is the ‘Report on assessment of the application for GSP+ by Sri Lanka’ by the European Commission dated 11 January 2016 (Staff Working Document 474) which is available in the public domain. The second document is part of the application made by Sri Lanka to the European Commission to obtain GSP+. It is not available in the public domain. The two documents complement and authenticate one another. These clearly indicate the conditionality of GSP+, said Sunday Times.
Island obtained a copy of the second document and published its contents. According to the confidential document mentioned above, the 58 preconditions are as follows said Island :
1.Review or repeal of the Prevention of Terrorism Act (PTA).
2. Expeditious conclusion of cases of the remaining (LTTE) detainees.
3. Completion of rehabilitation of all ex-combatants.
4. Amendment to the Code of Criminal Procedure Act to include rights of detainees.
5. Adoption of new regulations for public disorder management by the police.
6. Review of the Public Security Ordinance (PSO).
7. Expeditious processing of the remaining cases referred to by the UN Working Group on Enforced or Involuntary Disappearances.
8. Establishment of an Office on Missing Persons.
9. Operationalisation of all provisions of the Protection of Victims of Crime and Witness Act, review of the Act and setting up of an independent witness protection authority.
10. Introduction of a new Human Rights Action Plan (2017-2021).
11.Ratification of the Convention on Disabilities and send to parliament the draft Disability Rights Bill.
12. Adoption of the new Prisons Administration Act and adopt strategy against prison overcrowding.
13. Expeditious conclusion of emblematic cases identified in the OISL/High Commissioner’s report. (This refers to the Ekneligoda and Lasantha Wickrematunga cases etc.)
14. Reforms to address delays in the administration of justice.
15. Reviewing of the status of the Tamil Diaspora organizations and individuals in the terrorist list.
16. Expeditious conclusion of pending cases of corruption before the FCID, AG’s Department and CIABOC.
17. Effective implementation of the CIABOC Action Plan against corruption.
18. Adoption of the National Action Plan for strengthening the Bribery and Corruption Commission.
19. Restructuring and enhancement of capacity of the anti-corruption bodies.
20. Devolution of power to the provinces to be addressed under the new Constitution.
21. Release all remaining lands to the rightful civilian owners.
22. Adoption of the National Policy on Reconciliation.
23. Adoption of the National Resettlement Policy.
24. Finalization of the resettlement of all internally displaced persons.
25. Ratification of the Convention on Enforced Disappearances with accompanying legislation. Issuance of certificates of absence.
26. Security Sector Reform/Peacekeeping operations.
27. Introduction of Electoral reforms under the new Constitution and consideration of the relevant EU EOM recommendations.
28. Submission of the Right to Information Bill to Parliament.
29. End all surveillance, harassment and reprisals against civil society, human rights defenders and journalists.
30. Propose to Parliament legislation allowing individuals to submit complaints to the UN Human Rights Committee under the First Optional Protocol to the ICCPR and to the UN Committee against Torture.
31. Reconsideration of the decision to establish the Press Council.
32. Legislative changes to ensure non-discrimination on the basis of sexual orientation.
33. Amendment to the Land Development Ordinance to provide equal land succession rights to men and women.
34. Issuance of clear, public and unequivocal instructions to all branches of the security forces that torture, rape and other human rights violations are prohibited and those responsible will be investigated and punished.
35. Adoption of the National Action Plan on Gender Based Violence.
36. Increase of Tamil speaking, especially female, police officers.
37. Reserve a minimum of 25% of representation in parliament for women.
38. Adoption of the National Action Plan on Female-Headed Households.
39. Address sexual harassment at the workplace including establishing and re-activating sexual harassment committees.
40. Strengthening of the Domestic Violence Act.
41. Amendment to the law to introduce a minimum age of marriage under Muslim law.
42. Amendment to the law to address marital rape and abortion.
43. Amendment to the law to raise the minimum age of criminal responsibility.
44. Enactment of the Children (Judicial Protection) Act.
45. Strengthening of child protection through multiplying Child Protection Committees.
46. Re-issue circular to schools against use of corporal punishment.
47. Ratify the Optional Protocol to CAT.
48. Adopt Strategic Plan on Trafficking of Persons.
49. Expedite prosecution of reported cases of torture.
.50. Continue supporting moratorium on death penalty.
51. Take effective measures on the worst forms of child labour (mainly hazardous work in manufacturing industries, services and agriculture) and child-sex tourism.
52. Protection of workers, freedom of association & collective bargaining in the Export Processing Zones (EPZ).
53. Fully operationalise the Readmission Case Management System.
54. Review position with regard to recommendations received during the 2nd cycle of the Universal Periodic Review.
55. Submit addendum to the 5th periodic report to the UN Human Rights Committee.
56. Submit addendum to the 5th and 6th periodic report under the Convention on the Rights of the Child.
57. Launch wide public consultation and disseminate information during the various stages of setting up the transitional justice mechanisms.
58. Design transitional justice architecture consistent with the HRC resolution and the results of the public consultation. ( see http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=158914)
Chandraprema discusses this list. According to the European Commission’s conditions above, everything ranging from ‘public disorder management’ by the police in Sri Lanka, and cases pending before the FCID and Bribery Commission, the devolution of power to the provinces, electoral reform, the law of succession, the prevention of domestic violence, the minimum age of marriage for Muslim girls, will be under direct supervision from Brussels.
Item 30 on the above list, is to bring in legislation allowing individuals to submit complaints to the UN Human Rights Committee under the First Optional Protocol to the ICCPR. This is a case of effectively subordinating Sri Lanka’s Supreme Court to the Human Rights Committee in Geneva and ending the supremacy of the Supreme Court. One of the main reasons why Britain wanted to leave the EU was to stop being dictated to by the European Court of Human Rights.
According to the above mentioned list of conditions, even the repeal or amendment of the Prevention of Terrorism Act, the review of the Public Security Ordinance has been made mandatory if we are to obtain and retain GSP+. The Tamil Diaspora organisations in the terrorist list will have to be delisted to the satisfaction of Brussels, continued Chandraprema.
The last condition on the list is that Sri Lanka should set up a transitional justice mechanism in accordance with the Human Rights Council resolution. This means the setting of a war crimes tribunal with foreign judges, prosecutors and investigators, removing through administrative action the members of the armed forces suspected of having committed war crimes but against whom there is no evidence; and everything else the Sirisena-Wickremesinghe government agreed to in Geneva resolution against Sri Lanka in September 2015, said Chandraprema.
The European Commission’s supervision is so intrusive that it eliminates the need for an elected government in Sri Lanka. Indeed, the European Commission has been set up in such a way that it can supervise the governments of the whole world if necessary. According to the British press, there are more than 10,000 European Commission officers getting a bigger salary than the British Prime Minister. Sri Lanka can be run as a colony once again with the EU Ambassador in Colombo functioning as the Governor. By getting GSP+ back the actual economic benefit to the country may not be proportionate to the political cost . There is certainly going to be major political fallout if some of the 58 preconditions set out by the European Commission are actually implemented, concluded Chandraprema.
The European Commission gets its power to supervise the implementation of the 27 conventions in the beneficiary nations from ‘Article 13’ of the EU Regulation No 978/2012. The final decision lies with the European Parliament and the Council of Ministers of the EU member states. However, EU has discretion in deciding whether they would pursue the implementation of the 27 international conventions or not.
In Sri Lanka the EU has stated that it will definitely pursue the implementation of the 27 international conventions. EU will focus on Sri Lanka’s progress on the ratification and implementation of 27 international conventions in the fields of human rights, environmental protections, and labor standards, said EU.
In contrast to other countries benefiting from GSP+, monitoring of Colombo’s implementation will be three-track, a representative for the EU said, during the exchange of views on Sri Lanka’s application. Unlike previous versions of the GSP+ regulation, the monitoring framework forms a vital part of the new scheme, continued EU representative.
I want to underline one element which is slightly different in Sri Lanka’s case, than in other beneficiaries,” the EU representative said. This is that, the GSP+ monitoring will be reinforced by two other tracks running parallel to the EU’s monitoring. Track one is the bilateral Human Rights dialogue with Sri Lanka. Track two is the UN track,” he said, referring particularly to discussions at the UN HR Council. The EC has used the reports of the UN High Commissioner for HR, Zeid bin Ra’ad Zeid al-Hussein, as reference, when evaluating Sri Lanka’s eligibility for the GSP+.
EU has said it would encourage Sri Lanka down the path of reform, but at the same time it would watch closely developments and expect Sri Lanka to deliver on these assurances. Therefore with the granting of GSP+ trade concession, Sri Lanka will be subject to more European Union (EU) monitoring than ever before, said Sunday Times. There is however the chance that since this government is a fellow traveler of the liberal establishment which still controls most of Europe, they will soft pedal the conditions imposed and only make noises without taking any action in order to help Yahapalana, said Chandraprema.
The European Commission’s formal report of 11 January 2017 indicates that they will be keeping tabs on issues such the Sri Lankan Supreme Court’s attitude towards certain international human rights treaties, the Muslim personal law, trade union freedoms, laws relating to children, conditions in prisons and places of detention, land legislation, the law of succession, the implementation of UN Human Rights Council resolution 30/1 of October 2015, prompt repeal of the PTA observed Sunday Times. All these areas of interest dovetail perfectly with the 58 conditions set by the European Commission.
The main beneficiary of the restored GSP+ will be the garments industry. However, GSP+ is not an incentive given to the garment producers at the Sri Lankan end. It is a concession given to the importer at the European end so that the importer will not have to pay duty when importing garments from Sri Lanka. Sri Lankan garment factories may not get anything more than they are now getting per piece of clothing after GSP+ is restored. Further, Sri Lanka will graduate out of the program when it reaches the status of an upper-middle income country.
The Sri Lankan garment industry did not fall when the GSP+ concession was removed, observed Chandraprema. The Sri Lankan apparel industry was doing quite well before the country received GSP+ in 2005 and even after GSP+ was withdrawn in 2010, apparel exports to the EU continued to grow at the rate of six to seven percent a year. So the question is why do we need this concession?
GSP+ may increase the orders that our garment factories get, but at what cost? Even at present, the biggest problem facing our garment factories is labor. The FTZ trade unions estimated the labor shortage to be more than 30,000 in the apparel sector alone. If there is increased demand from Europe following the reintroduction of GSP+, how the increased demand is going to be met without more labor, asked Chandraprema. The question that looms large in the minds of the apparel exporter is whether he will be able to adjust himself to cater to such an increased demand.
Other items like fish, cut flowers, vegetables, fruits and ceramics can be exported duty free to the EU if GSP+ is restored. So the logical outcome of getting back the GSP+ will be an increased demand for Sri Lankan products.. But how much can Sri Lanka export of these items?
It has been sunnily said that GSP+ will help the factory workers. Workman’s compensation will be increased from the present Rs. 500,000 to one million rupees in the event of disability caused during work,. New laws will be introduced for this purpose,” other benefits to the work force would include increased salary in selected sectors, reasonable market prices for products and stable trade capacity. Sixty four amendments have been made to existing labor laws to make sure that the labor force is provided with financial and legal security, said the Ministry of Labor.
Although state employees enjoyed the freedom to engage in trade union activity the majority of the employees in the private sector do not have any trade unions at their work places. Owners often disrupt the formation of trade unions by resorting to arm twisting methods to discourage workers from engaging in trade union activity. We have submitted to the European Union the names of eight garment factories in Sri Lanka that suppressed and infringed the rights of its employees with regard to trade union action.” The EU delegation that visited in April 2017 was satisfied with the initiatives we have taken and the progress so far,” said the Ministry of Labor.
