The US-Oman Free
Disastrous for Wildlife
The US-Oman Free Trade
Agreement (OFTA) is a binding trade pact between the United
States and Oman,
a Middle Eastern nation bordering Yemen
and the United Arab Emirates. The agreement will build on FTAs already in
effect with Israel, Jordan, Morocco
paving the way for a Middle East Free Trade Area (MEFTA).
This report focuses on the destructive implications of the agreement for
animals, arguing that loopholes in the environmental section will lead to
habitat destruction; that OFTA’s lack of minimum standards for wildlife
protection leaves species exploitation within the law; that the agreement
provides an opportunity for the weakening of animal protection laws; that
virtually unlimited foreign investor protections in the agreement are a further
threat to wild animals.
Gaping Loopholes in OFTA’s Environmental Chapter
Could Destroy Habitats
The central idea of
OFTA’s environmental chapter, like that of the Dominican Republic-Central
America Free Trade Agreement (DR-CAFTA), which passed last July when approved
by a one-vote margin in the House, is that both countries must enforce their
respective environmental laws. However, there are two gaping loopholes in the
text of the agreement. Firstly, failure to enforce one’s own laws only “through
a sustained or recurring course of action or inaction” technically breaches the
agreement, meaning that tribunals of unelected “judges” unaccountable to
citizens in either the United States
could dismiss important environmental cases with the claim that the violations
in question were not sufficiently prolonged or “recurring.”
Secondly, the text grants
both countries broad discretion over the implementation of environmental laws
and the allocation of resources, stating that any course of action reflecting
“reasonable” exercise of such discretion or “resulting from a bona fide decision regarding the
allocation of resources” can be said to be in compliance with the trade
agreement. In other words, either government could simply argue that it lacked
sufficient funds to comply with its own environmental laws without technically
violating the agreement.
Since the international tribunals operate outside the domestic judicial system,
these provisions would lead to increased challenges to local Omani
environmental and laws, threatening community health-based and environmental
as well as the habitats and lives of wild animals.
The chapter is littered
with similarly weak language that leaves existing environmental laws open to
OFTA challenge. It states merely that “it is inappropriate . . . to encourage
trade or investment by weakening” domestic environmental laws. It requires the
provision of “remedies or sanctions”
for violations, meaning that violators may commit environmental crimes with
impunity, while the state merely provides “remedies” for the situation with
taxpayers’ money. Further, authorities must “consider,” but not necessarily
grant, requests for investigations of potential violations, and that those
affected by them “may,” but not must, be granted the right to sue and to seek
sanctions or remedies. Even the promise of these vague “remedies,” then, is
uncertain. This noncommittal language indicates that the agreement does not
safeguard important domestic environmental laws. It also suggests that
investors that pollute and destroy vital habitats will not be held accountable
for their actions.
Other problems with the
environmental chapter include the cap for fines at $15 million per year that a
country pays back to itself – no matter the breadth and severity of the
environmental damage and costs of cleanup.
On the other hand, there is no maximum fine for violations of OFTA’s commercial
Lack of Commitment to International Agreements
Threatens Wild Animals
Even beyond the
loopholes, the “effective enforcement” provision is highly problematic in
itself, because it does not require either country to abide by any set of
minimum environmental standards, nor does it mandate any form of sanctions for
breaching key environmental treaties on biodiversity and species protection.
On the other hand, both countries are required to ratify eight separate
international agreements on intellectual property rights.
Specifically, while Oman
requires documentation of trade in wild animals similar to that required under
the Convention on International Trade in Endangered Species (CITES), which
regulates international trade in wildlife, it has not signed on to that
However, according to CITES reports, Oman is home to 24 species of
animals that are threatened with extinction and 189 additional species whose
trade must be closely controlled for their survival. The animals threatened
with extinction include the desert lynx, the Arabian oryx and the Indo-Pacific
Humpbacked dolphin, as well as leopards, grey wolves, urials, ostriches,
monitor lizards, manatees, four species of whales, five species of birds, and
five species of sea turtles. These include the green turtle, the hawksbill
turtle, which is also listed on the World Conservation Union’s Red List of
critically endangered species, the loggerhead turtle, the olive ridley turtle,
and the leatherback turtle. CITES is one of the most important international
treaties for the conservation of sea turtles, which have been hunted by humans
for over 7000 years in Oman.
While Oman’s policies regarding trade in sea turtle products (meat,
tortoiseshell and eggs) have been “responsible” thus far, according to a study
by major environmental groups,
and the nation is a party to the Memorandum of Understanding on the
Conservation and Management of Marine Turtles and Their Habitats of the Indian
Ocean and South-east,
there is no provision of OFTA that mandates the animals’ protection in the
provides critical habitat to only two of the five species of sea turtles that
live on its shores.
The same is true for
other endangered wild animals. According to the World Conservation Union, in
addition to those listed as threatened with extinction in CITES reports, there
are 3 endangered species living in Oman, two of which – the knifetooth and narrowsnout sawfish – appear on the IUCN Red
List of critically endangered species.
At high risk for extinction in the wild, according to Birdlife International,
are another 5 species of birds.
One animal appearing on
the IUCN Red List is the slender-billed curlew, which has been severely
threatened due to hunting. One endangered animal mentioned above, the Arabian
oryx, is also threatened from sport hunting; in Oman, illegal live capture for sale
to private collections have devastated the population.
also imports $749 million worth of food and live animals per year.
Without the ratification of CITES and other important international agreements,
the exploitation of species such as these by US investors in Oman remains
completely within the law. There is no provision of OFTA requiring that Oman
implement such agreements.
OFTA Tribunals Could Weaken Animal Protection Laws
Finally, one country’s
alleged right to enforce the environmental laws it does have is completely
undermined by the fact that the implementation of them can violate commercial
obligations under OFTA, resulting in a challenge in binding, secret tribunals
set up by the pact’s terms. The tribunals can demand payment from governments
for upholding their own laws and expose the country to trade sanctions until
the laws are changed to comply with the tribunal’s ruling.
Similar provisions in previous trade agreements have been used to attack and
successfully weaken animal protection laws. For example, under the GATT (the
WTO’s predecessor), Mexico
and other countries successfully challenged the U.S. Marine Mammal Protection
Act, which was used to prohibit the importation of fish products from a country
that cannot prove its “harvest” of tuna, or that of the countries of its origin,
adheres to US dolphin protection regulations. A 1991 GATT panel ruled that the United States
could not ban such imports based on its own environmental laws. This precedent
– with scores of others – begs the question of whether, under OFTA, Oman could drag the United
States to tribunal and demand payments for the U.S.’s refusal to import products illegal in the
under its own environmental laws. Oman
trades in rhinoceros horns,
for example, which is illegal under CITES and thus under US law. All
commercial trade of rhinoceros, which is threatened with extinction, is banned
under CITES; the Office of the US Trade Representative (USTR) has deemed Oman’s trade in rhinoceros horns “a concern to
the United States.”
Foreign Investment and Reckless Development:
Further Threats to Wildlife
OFTA’s investment chapter
states that no part of the text “shall be construed to prevent” either country
from “adopting, maintaining, or enforcing” environmental measures “otherwise
consistent with this Chapter.” However, OFTA provides greater rights to foreign
investors – which would include subsidiaries of US corporations – greater
rights in Oman
than they are granted according to US law.
The agreement allows multinational corporations to challenge any US government
decisions about any federal contracts with the company, including natural
resource contracts, service contracts, and infrastructure projects.
These provisions will likely lead to increase challenges of local environmental
laws in both the United States
threatening community health and environmental efforts.
With OFTA, then, oil
extraction in ecologically sensitive areas may only be expected to increase. Oman
consistently produces about 900,000 barrels of oil a day, and the energy sector
accounts for about 40 percent of the country’s GDP, 65 percent of its exports,
and 70 percent of its income.
Crude petroleum, as well as textiles and apparel, remain the United States’ largest imports from Oman,
and the spiraling out of control of international oil prices, along with the
broad protections provided to US investors under OFTA, are likely to lead to
increased extraction. Oil spills and discharges from refinement and
distribution are already a principal environmental threat to Oman;
in particular, because the country borders the Strait of Hormuz, through which
the vast majority of Persian Gulf oil is transported for export, spills
damaging marine and coastal areas have been and continue to be a grave
environmental concern that has serious implications for animals and their
petroleum reserves are expected to be depleted within 20 years,
however, economic officials hope to diversify the economy. The recent discovery
of natural gas reserves, processed in liquid form for export, has led to the
rise of gas-based industrial production of substances such as aluminum,
polypropylene, fertilizer and methanol.
Industrial pollution from these and future similar developments encouraged by
OFTA are a serious concern for wildlife. For example, chemical pollution is
thought to be linked to potentially fatal tumors in green sea turtles, found in
Pollution is also a serious threat to the narrowsnout sawfish, a critically
endangered fish found in Oman’s
Economic officials there
also hope to expand the manufacturing and information technology sectors, as
well as tourism and fisheries. Uncontrolled development has led to the
disturbance and destruction of beaches that serve as vital nesting, foraging
and feeding locations for a variety of species of sea turtles. Artificial
lighting on the beaches may disorient hatchlings, drawing them away from the
ocean, and vehicle traffic on beaches compresses the sand, making nest building
difficult or impossible.
An estimated 30,000 loggerhead sea turtles nest on Masirah Island, Oman.
One solution to this problem is placing limits on the number of businesses to
curb the negative impact of development projects such as oil drilling, hotels,
resorts and waste incinerators.
Yet such limits are specifically prohibited under OFTA.
Destructive fishing is
also a serious concern, as a source of habitat destruction for sea turtles and
other marine animals. Oman’s
fish and shellfish exports reached $34 million in 2000, and the ban on limiting
businesses ensures that they will multiply under OFTA. Humpback whales, sea
turtles, and the critically endangered sawfish and shark species mentioned
above are all seriously threatened by entanglement in fishing nets and
accidental hooking. As larger enterprises sweep through the seas with their
larger nets, sea turtles become entangled in them and drown when they cannot
reach the surface; loggerhead turtles are highly migratory, and leatherbacks,
of which just 2,300 adults are thought to remain, do not dive very deep,
leaving them especially vulnerable to fishers.
The Oman Free Trade
Agreement, has been rightly compared to DR-CAFTA, “except where it’s worse.” OFTA, like DR-CAFTA, threatens wildlife and wildlife
habitat and compromises the welfare of farmed animals. Animal advocacy groups and members of
Congress should oppose this agreement.