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Gays and adoption of children should this be allowed
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Gays and adoption of children: should this be allowed?
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Introduction
Counterargument
Claim
Counterargument
Claim
Counterargument
Works Cited
Gays and adoption of children: should this be allowed?
Introduction
Homosexuality has been a relatively hot issue since time immemorial. In most cases, issues pertaining to the rights of gay people and what they should be allowed to do have always arisen. This is especially because people cannot seem to clear out the line between permissiveness and infringing on individuals’ rights. Right from the legalization to their rights, to adopt children or even join some professions, debate has been rife. This paper aims at examining the various arguments and counterarguments pertaining to the adoption rights of gay people. The position of the author is that gay people should be allowed to adopt children once the authorities are satisfied that they are fit. Adoption criteria should not be based on an individual’s sexual orientation thus gay couples should be allowed to adopt child children.
The issue of homosexuality has been controversial since time immemorial. This is because of the fact that, an individual’s sexual orientation has a bearing on the rights and privileges that he or she is entitled to in many parts of the world. It is noteworthy that while some people agree that gay people should be enjoying the same rights as straight people, equally many people suggest that such an act would be tantamount to rewarding or encouraging the “uncouth” behavior. In this case, the opponents opine that there should be no incentive for such behavior. This stand is mainly taken by the conventionalists or traditionalists, especially in the churches. One of the most controversial issues pertaining to homosexuality is adoption of children. It is noteworthy that the main aim of allowing adoption of children is to safeguard the adopted child’s rights (Ali 13). In essence, the question arises on whether the adoption of a child by an “abnormal” or gay couple would be tantamount to an infringement of his basic rights. Obviously, varied people have varied opinions about the issue with some seeing nothing wrong about it, whereas others see nothing right in the adoption. This paper aims at looking at claims for and against allowing gay couples or homosexuals to adopt children. Three claims and counterclaims have been examined on the issue.
Claim
An individual’s capacity to raise a child is not determined by his sexual orientation. Homosexuals have as much capacity to bring up children as any other adults or parents. It is imperative that individuals understand that being a homosexual does not imply that one is a depraved individual. Homosexuality is not a mental disorder. In this case, homosexuals are considered as members of the society who are functioning fully in all aspects (Glazer and Drescher 187). They attend schools, work and pay taxes just like all other individuals. While there are no unique qualifications for being a parent, many individuals would say that a parent should be capable, loving, responsible and trustworthy among other qualities. It is noteworthy that these qualities are not exclusive to individuals due to their sexual orientation (Bozett and Sussman 233).
The only fundamental difference between homosexuals and heterosexuals is their sexual orientation, which does not affect their capacity to raise kids. It is imperative that all individuals accept that regardless of their sexual orientation, homosexuals are equal to other straight people as far as their behavior and personalities is concerned. The only issue that separates them is their sexual orientation. In essence, there is manifestly no ground for denying homosexuals or any other individuals their rights to adopt or have children. In addition, whosoever an individual decides to go to bed with is essentially a personal choice that does not determine his or her capacity or ability to bring up a child properly (Fields 68). It would, therefore, be wrong for gay couples to be denied the same rights of parenting as other members of the society. Such actions would amount to exhibition of blatant homophobia or an idea that individuals would somehow be inferior parents simply because of their sexual orientation (Ali 34). This absurd ideal can only be eradicated through exposure. It is imperative that people view gay couples as just as competent in making satisfactory parents as straight people if not better placed than them.
Parenting is not limited to having a biological father and mother.
In addition, if individuals are exposed to a homosexual lifestyle, there would be a decrease in varied forms of bigotry such as homophobia. Individuals who oppose such arrangements are oblivious of the fact that parenting is not in any way limited to having a biological father and mother. It is noteworthy that a third of children in the United States have been brought up in one-parent rather than two-parent households (Mallon 45). In addition, the 2000 Census carried out in the United States showed that 22 percent of gay male couples and 33 percent of lesbian couples had at least a child below 18 years of age living in their homes (Brodzinsky and Pertman 234). The statistics are an indication of changing times and societies where quite a large number of kids grow up under non-biological parents (such as gay couples), as well as single parents. There has been no indication that they are lousy parents and, in which case there are no grounds for denying them the rights to adopt or have children.
Counterargument
A child with homosexual parents is deprived of the love of one parent, thereby affecting his overall development. However, opponents of the idea of gay couples adopting children opine that such an arrangement would affect the overall development of the child. The ideal family environment is one where the child can feel the affection and love of the mother and father. It is imperative that a child is brought up in a real family set-up, where both the mother and the father complement the various essential factors and aspects (Ali 65). These aspects and factors aid in the development of the child into an asset in the society. In a family set-up that is composed of homosexual individuals, there is a high likelihood that the adopted child will be misguided especially in the early stages of development. This is especially having in mind that such a marriage goes against all the fundamental laws of nature pertaining to procreation (Abigail 197). It is decidedly okay for an individual to lead his or her life according to his personal choice. However, this right should not extend to spoiling the adopted kid’s future so as to satisfy one’s fantasies and whims. It is imperative that the laws of adoption be made stringent so as to control such weird possibilities. In essence, adoption of any child should only be allowed when the concerned authorities are wholly certain that the adopted child’s best interests have been safeguarded, as well as those of the society as a whole (Ghazala 117).
Claim
A parent’s sexual orientation has little or no bearing on the child’s sexual orientation. It is absurd to insinuate that gay parents are likely to socialize their adopted children to take up the social orientation. This is especially having in mind that, research has shown that an individual’s sexual orientation is pegged more on their genetic make-up rather than their socialization. In essence, an individual’s sexual orientation is not a matter of personal choice but rather genetically determined. This, therefore, means that the child would not in any way be influenced to become homosexual or take up homosexual behaviors simply because they have gay parents. It would only be possible for such a thing to occur if their genetic make-up orients them to homosexuality (Abigail 67). In addition, studies have shown that as much as there is some socialization that takes place at home, most of the socialization takes place outside the home in areas such as schools, churches and others. In this case, the child stands higher chances of being socialized into homosexuality (if such a thing was possible) outside the home than inside. In essence, denying gay couples the right to adopt children is merely a smokescreen for other forms of discrimination, rather than based on any fundamental arguments.
Sufficient measures are put in place to weed out individuals who are unfit to adopt a child, who do not necessarily include homosexuals.
Additionally, adoption is a lengthy and expensive process that aims at establishing whether an individual, family or couple is capable of bringing up the child in question without infringing on his rights. The process weeds out individuals who are legally or even emotionally unfit to adopt. In essence, denying gay people the right to adopt children is tantamount to assuming that they are criminals or mentally unfit, which does not have to be the case at all (Mallon 167). There has not been any proof as to any link between an individual’s sexual orientation and criminal background or sanity and mental aptitude. In addition, there does not exist any proof that children, whether biological or otherwise of homosexuals would be harmed or injured by the parents’ the sexual orientation.
Children with homosexual parents have as much self esteem as their counterparts with heterosexual parents, and are less prone to stereotypes. As pertaining self-esteem and other forms of development, numerous studies have consensus on the fact that children growing up in same-sex families do as well as their counterparts in heterosexual marriages (Brodzinsky and Pertman 113). In fact, the studies showed that the children did better in self-esteem and discipline, and had few psychological difficulties at school or home. Same-sex parents have contact with social support and their extended families. They also have more equitable labor distribution than their heterosexual counterparts, which enhances the upbringing of the child. In addition, studies show that children brought up by gay couples show more empathy towards social diversity. They are also less restricted by gender stereotypes than children in with heterosexual parents. These studies also indicate that a parent’s sexual orientation has no quantifiable effect on the parent-child relationship or even the children’s mental health (Jay and Young 97). In fact, all-female parental teams are said to be more involved in their children’s lives and have more harmony in their parenting approaches than the heterosexual parenting. This shows that denying gays the right to adopt children has no fundamental backing.
Counterargument
Children adopted by gay parents are likely to become gays themselves since homes are the primary socialization environments. While the socialization of children is bound to take place in other areas, it is imperative that people acknowledge that the home environment is of utmost importance in shaping their behavior as adults including their sexual orientation. In addition, while there may be a connection between an individual’s sexual orientation and his genes, there is an equal chance that the children will try to imitate their parents’ sexual tendencies. In any case, even the Holy Bible tells individuals to train a child on the way that he should follow, and he will never depart from it when he is old. In essence, homosexuals would train their adopted child to take up their ways and be just like them. In any case, the adopted child would not have or experience a proper parental of one of the parents (Cameron 233). Children are always quick to learn from the actions of their parents and; therefore, they would have no alternative but to follow their parents’ example. In addition, studies have shown that there is a colossal difference between heterosexual and non-heterosexual parenting. It is noteworthy that children who are brought up by gay people stand a high chance of becoming promiscuous, sexual and gender confusion, as well as suffering emotional and depression difficulties.
The stability of homosexual relationships is questionable increasing the trauma that the adopted children go through and affecting them psychologically. Homosexual relationships are also considerably more short-lived and less stable than heterosexual relationships. Research conducted on population registers in Sweden and Norway, which incorporated same-sex partnerships that are legally registered, showed that gay male couples are 1.5 times more likely to divorce than heterosexual couples (Cameron 226). Homosexual female couples are 2.67 times more likely to break up as their heterosexual married counterparts. For the adopted children, such instability and short-lived nature leads to a high household transition rate in homes with homosexual parents. It is noteworthy that adopted children have already undergone a number of traumatic transitions, in which case frequent transitions would lead to high psychosocial maladjustment and psychological harm.
Claim
By denying gay people the right to adopt children, one would be discriminating against them, as well as depriving orphaned children the warmth of a home. In the society that we live in today, discrimination on any basis has a negative connotation. The American declaration of independence and human rights has insinuated that never again should an individual be discriminated against due to his color, creed, gender, race, religion and other basis. In essence, denying the gay people the right to adopt children is an infringement of their rights. In addition, it is noteworthy that the world has more than 16.2 million double-orphans who do not have either parent (Brodzinsky and Pertman 114). It is fundamentally inhuman to allow these children to remain homeless or without families while it would be possible for them to grow up in presumably stable, loving homes. In addition, on a Cost-Benefit Analysis, these orphans cost the state much more than they would do in case they were brought up in homes, whether by heterosexual or homosexual parents (Burns 245).
Counterargument
In adoption, safeguarding the safety of the child is paramount and comes before the monetary value. While it is understandable for gay people to tag on their rights in the debate pertaining to their adoption rights, it is noteworthy that the adopted child’s safety child overrides the adopting parent’s rights (Fields 117). In essence, the issue should not be about whether their rights to adopt children are being infringed on, but rather, how safe are adopted children in such homes. Research shows that more children are abused and molested in gay families than in heterosexual families. In addition, tagging on the economic basis of the adoption borders on the absurd. It is noteworthy that while it may be relatively cheaper to have the child brought up by a gay parent than being supported by the state, the negative effects on the lives of such children are immeasurable. This is especially in case the child was to be sexually molested by the gay parent. It is imperative that people acknowledge that love and affection from any parent is not quantifiable and, therefore, cannot be replaced by any amount of money.
In conclusion, the homosexuality debate has been and promises to be controversial in the foreseeable future. This is especially on the debate as to whether gays or homosexuals should be allowed to adopt children. On the one hand, proponents of the adoption opine that the gays have as much capacity to bring up children as any other parent or adult since one’s sexual orientation is not a determinant of his or her parenting abilities. In addition, they opine that the parents’ sexual orientation would not have a bearing on the child’s sexual orientation since such tendencies are linked to one’s genetic composition.
Moreover, denying them the right to adopt children is tantamount to an infringement of their rights and denies the children an opportunity to have a proper home. This is especially having in mind that, children in adoption agencies would not care whether they are brought up by homosexual or heterosexual parents as long as they have a proper home. However, opponents opine that the adopted child’s overall development would be severely affected. In addition, children take up the example of their parents and imitate their ways, in which case they would be likely to take up homosexual tendencies due to sexual confusion. In addition, the safety of the child to be adopted is of greater importance than the rights of the gay couple in which case the question of rights infringement should not be arising. In any case, more children with gay parents have been sexually molested than in straight families. In addition, a parent’s love cannot be quantified and, therefore, the adoption should not be pegged on the financial aspect.
Works Cited
Cameron, Peter. Gay Fathers’ Effects On Children: A Review. Psychological Reports, 2009. Print.
Burns, Kate. Gay and lesbian families. New York: Greenhaven Press, 2005. Print.
Mallon, Gerald. Lesbian and gay foster and adoptive parents: recruiting, assessing, and supporting an untapped resource for children and youth. New York: Child Welfare League of America, 2006. Print.
Fields, Julianna. Gay and Lesbian Parents. New York: Mason Crest Publishers, 2009. Print
Jay K & Young A. The Gay report. NY: Summit, 1979. Print.
Brodzinsky, David and Pertman, Adam. Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity. London: Oxford Univ Press. 2011. Print.
Ali, Turan. We are family: testimonies of lesbian and gay parents. New York: Cassell, 1996. Print.
Ghazala, Javaid. The children of homosexual and heterosexual single mothers. Child
Psychiatry and Human Development 1993. Print.
Bozett, Frederick and Sussman, Marvin. Homosexuality and family relations. London. Routledge, 1990. Print.
Abigail, Garner. Families like mine: children of gay parents tell it like it is. New York: HarperCollins 2004. Print.
Glazer, Deborah and Drescher, Jack. Gay and lesbian parenting. New York: Routledge, 2001. Print.
Gay Marriage Should Be Legalized
Gay Marriage Should Be Legalized
Gay is a term that has through the years gained new meanings and lately is in use interchangeably with homosexual with reference to sexual orientation. Sexual orientation here refers to a consistent sexual, romantic, and emotional attraction of a person to other people. These others may be of the same or opposite sex as them. The sexual orientation of a person could be heterosexual, homosexual, or bisexual. Speakers mostly use the term gay when referring to men of that nature. The use of homosexual herein includes both gay and lesbians. Lesbians are females with sexually or romantically preference for fellow females. In (American Psychological Association, par. 5.), according to professional interpretations and researches with scientific basis, the gay or lesbian nature in a person may develop even before having any sexual relationships. At the end pint, many societies treat homosexuals with some unnecessary hostility if not victimization.
Homosexuality defines a person who prefers sexual association with people of his or her own sex (Milton, 28). The need for definite facts about homosexuality has brought together a generation of scholars to establish such studies. From professionals to human activists, people have come together to put up researched truth and to present their views on the implications engulfing this issue. The general point is that homosexuals are humans as well. Their societal positions, constitutional and human rights and privileges deserve protection too. By extension, advocates push for the acceptance of and support for gay marriages. Such institutions have the responsibility of positively influencing the society. Currently, some of the western countries have endorsed and shown support for same-sex marriages. The successes of studies on homosexuality depend on the possibility and ease of studying people.
Considering most of the arguments that are put forward in the opposition of gay marriages, some have proven unrealistic and based on nothing else but prejudice, mere hostility, and discrimination. Looking at the church’s take on this, it absolutely opposes any forms of same-sex union either in church or even in the social setup. The clergy bases this argument on the apparent cultural purpose of marriage. Religiously marriage is to institutionalize a procreative relationship between the partners (Somerville, 9). On another hand, the development of one’s sexual orientation is not of any specific time. The change could happen after they have had sexual relationships earlier. `If in these relationships they bore children, then the persons who became gay afterwards, bring their children into their gay marriages. The adoption of children, which the church endorses, is equally possible in gay marriages just as is for the heterosexual unions that unfortunately cannot bear children biologically.
Most of the discriminatory positions that gay persons are subjects of are probably based on individual or personal opinions or institutional policies that are purposefully designed to inhibit homosexuality. Much of surveys carried out nationally indicated unimaginable facts like; gay civilians do not get government protection clearances. They suffer subjection to much more intense search and investigation, as compared to their heterosexual counterparts (Herek, 60). At the personal level, this group suffers rejection by the heterosexuals in countries like America. This rejection is exhibited by the negative attitude developed against them and is expressed behaviorally. Statements made against gay marriages cling on different proposed principles but all point to the fact that this group is considerably a minority group. This minority factor is because they constitute an inferior segment of a larger society. They also posses personalities not morally acceptable to the dominant society segment and by virtue of these traits, they are bound together (Newton, 84).
The factors that build up and support healthy opposite-sex relationships and marriages are love, appreciated companionship, and commitment shared between the partners. Gay unions are not different in any way; they share the marriage constituting factors too. Supporting this is the institutionalization of relationships by organizing weddings. As a proof that gay marriages have basis on love and commitment too, the engaged partners organize public weddings, which is the ultimate expression of commitment and love for one’s partner (Colin, 721). Though religious, marriage is also a social institution by some aspect. The society unfairly attributes marriage to opposite-sex unions only. Concerning this and social responsibilities, gay couples exercise their privileges by instituting marriages. Gay relationships have the same defining aspects as heterosexual unions and therefore need the same accordance of respect. Marriage provides security to families and gays need this as well.
The gay group is a stigmatized minority group experiencing differential treatment composing rejection, discrimination, victimization, and even assault. All of these result from the characteristics connected to this group by the society. The oppositions against gay or lesbian marriages result from persistent stereotyping of this group. These stereotypes author misconceptions among the public and so render the gay an unwelcomed group. In spite of all these opposition, research shows that same-sex unions are durable and end up in happy marriages. For that reason, advocacy for legalization of gay marriages must go on.
Work cited
Milton, Henry. Gay and Lesbian Studies. New York. Routledge, 2000. Print.
Newton, David. Same-Sex Marriage. New York. ABC-CLIO, 2010. Print.
American Psychological Association. For a Better Understanding of Sexual
Orientation & Homosexuality. Retrieved 20 March 2012 from
HYPERLINK “http://www.apa.org/topics/sexuality/sorientation” http://www.apa.org/topics/sexuality/sorientation.
Somerville, Margaret. The Case against “Same-Sex Marriage”. (2003). Print.
Colin, Thomas. Gay Marriage. The CQ Researcher. 30 (2003), 13. Print.
Herek, Gregory. Prejudice and Violence against Lesbians and Gay Men. (2001). Print.
GATT anti-dumping provisions and protectionism
GATT anti-dumping provisions and protectionism
Introduction
Dumping refers to a situation of international price discrimination whereby a company exports a product at a lower price than it normally charges in the domestic industry. There may exist differences in opinions on whether an act constitutes dumping or not, (Hindley 1994, p.1). On the other hand, Anti-dumping refers to a measure aimed at rectifying the situation arising out of the dumping of goods and its trade distortive effect. As World Trade Organization Anti Dumping Agreement, (2011), explains, article 6 of the General Agreement for Tariffs and Trade (GATT), 1994 allows party states to take action against dumping. Similarly, the WTO agreement allows governments of signatory states to act against dumping where “there is material injury to the domestic industry of the target country” or it is threatening to do so, (World Trade Organization Anti Dumping Agreement, 2011. Precisely, the focus of the WTO agreement is on how a government can or cannot react to dumping.
Notably, the provisions of WTO agreement on dumping expand the GATT, 1994 anti-dumping provisions and the two operate together. Generally, they allow countries to act in a way that would break the GATT 1994 principles of binding a tariff but without discriminating between trading partners. In essence, they stipulate actions that lead to charging of extra import duty on the particular product found to be dumped from a particular exporting country. This is aimed at bringing the price of that product closer to the normal value or to alleviate injury to the domestic market of the importing country, (World Trade Organization Anti Dumping Agreement, 2011). At the same time, these rules require importing countries not to accord treatment on the imported products that is less than that accorded to domestic products under the domestic laws and regulations. But as Daniel Ikenson, (2010, p1) explains, there is a risk that the GATT anti-dumping provisions will lead to greater use of anti-dumping measures as a form of protection to the domestic industries of the party states. The primary purpose of this paper is to explain how this has come about.
Regal issue
In this discussion, a regal issue arises on whether there is a risk that the GATT anti-dumping provisions will lead to greater use of anti-dumping measures as a form of protectionism. As described by Prusa (2005, p. 9), the anti-dumping policy was established with a prime objective of correcting dumping problem. But according to Bolton (2010, p. 15), the use of antidumping policies may end up to cause more injury in the recent world than any one could have imagined there before. To borrow an analogy, it can be argued that the medication (anti-dumping) is proving to be more harmful than the disease it was intended to treat (economically harmful dumping). In addition, the amount medication being administered goes beyond what any reasonable doctor would prescribe to treat the disease. Further, not only is too much medication being administered but it has less to do with the disease it is intended to treat. To be precise, the modern anti-dumping law has less to do with economically harmful practices. Instead, it is a clever designed form of protection for domestic industries of the member states. Notably, anti-dumping rules have emerged as the leading obstacles to free and fare trading system established under GATT/WTO. This begs the question; is there a risk that the GATT anti-dumping provisions will lead to greater use of anti-dumping measures as a form of protectionism?
As established by Prusa (2005, p. 10), many industrialized countries with protectionist interests stretch the definition of dumping with an aim of sheltering actions against importers under the anti-dumping umbrella. This can well be illustrated by recent actions involving USA and European Union. This has been well captured in data collected from World Bank by Prusa (2005, p. 10). The data depicts not only a new but also a troubling reality for those two strongest supporters of anti-dumping law. From the analysis of the data, Prusa (2005, p. 10) establishes that both USA and European Union would like to retain Anti-dumping rules and have often applied them to protect their politically important industries from the impact of importers. Preserving this option also means that many politically important export oriented industries from those regions face protection from antidumping rules in many important export markets.
A better example is the action taken by the United States steel industry in 1998. By then, steel demand in US was robust and its industry was unable to feed the high demand, (Chapter 5 Anti-Dumping Measures not dated). As a result importation of steel from Japan and other countries sharply increased. The US steel industry responded by filing four anti-dumping and anti-circumvention suits against the importation of Japanese steel products (hot-rolled steel, stainless sheet strip in coils, corrosion-resistant steel, stainless steel round wires) in 1998 alone. In addition, the industry did put pressure on the US administration and Congress which resulted in changing of the anti-dumping investigation team for hot-rolled sheet steel. The US administration and Congress explained that the action was aimed at shortening the investigation period by alleviating and accelerating the determination of “critical circumstances”, (Chapter 5 Anti-Dumping Measures not dated). Notably, the US anti-dumping authorities used provisions as a shield to their domestic steel industries. A critical evaluation of these actions will conclude that this action constituted a violation of GATT anti-dumping law.
Elements Required in Antidumping Claims
Theoretically, there are several elements required in anti-dumping claims but also which are used improperly by some party states to protect their local industries. As noted earlier, article 6 of the GATT law defines dumping as a situation in which “products of one country are introduced into the market of another country at less than the normal value of the products”, (World Trade Organization Anti Dumping Agreement, 2011). However, it is not easy in many cases to determine what a “normal price” is for the purpose of antidumping investigations. For example, in the US, the commerce department first looks at the price charged for the product in the exporter’s domestic market, (Daniel Ikenson, 2010, p2). If the sales of the product in the domestic market of the exporter are less than 5% of the volume sold in the US or the product is not sold in the domestic country, the commerce department looks at other third party markets. If there are no comparable markets, this department constructs its own estimate of what the price of the product should be. To arrive at this, they make assumptions on what the cost would be to sell the product in the domestic market of the exporter, (Daniel Ikenson, 2010, p6). This explains that there are no standards of judgment to deal with such a situation. Consequently, this leaves a large amount of discretion to the anti-dumping investigating authorities. Clearly, the above sequence of events raises question about the validity of assessments based on the assumptions. Under the EU practice, it applies asymmetrical rules in order to adjust the prices of products alleged to be dumped. For domestic prices of the importer, the EU deducts only selling expenses, (Chapter 5 Anti-Dumping Measures, not dated). On the other hand, it deducts direct and indirect expenses as well are the profits realized from the same goods for export prices. This leads to an overstatement of the domestic prices in the exporter’s country which eventually makes it easy to artificially create and expand dumping margins. In short, the GATT/WTO anti-dumping rules do not provide standards for determination of “normal value”. It is thus easy for party states to use the loophole as a way of protection to their domestic industries.
Further, article 6 of the GATT anti-dumping rules provide for condemnation of an act described in that law if it “causes or threatens to cause injury to the domestic market of a contracting party or materially retard the establishment of a domestic injury”, (World Trade Organization Anti Dumping Agreement, 2011). Remarkably, this law does not provide a definition of what constitutes “material injury”. The appellate body holds that injury determinations can only be based on “positive evidence”, “objective determination” and “verifiable evidence”, (Chapter 5 Anti-Dumping Measures, not dated). These terms give much leeway to the investigating authorities for determining how to interpret evidence. Remarkably, this provision does not give direction to the importing country on how to disclose all the factors it has considered before reaching a conclusion regarding existence of “material injury”. Consequently, this provision has constantly been manipulated and used as a shield for domestic industries of the party states.
One example comes from an investigation conducted by EU commission in September 1992 on Japanese ball bearings. The investigating authority found dumping but this was later overturned by an appeal to the court of the first instance in May 1995. The reason for rejection of the case was due to problems with the evidence used to find injury. The EU commission maintained that dumped imports had increased by 2.7 percent in terms of volume. But the total sales of in the common market by common market producers had increased by 14.8 percent by volume and total volume of sales in the common market, including imports had increased by 9.5 percent. Therefore, the court of appeal concluded that there was no material injury on the domestic markets of the EU countries that could be associated with the Japanese imports. The EU commission was dissatisfied with the ruling and later appealed to the European Court of Justice in 1998. The appeal was also rejected by the court under similar basis. As Chapter 5 Anti-Dumping Measures (not dated) explains, there have been many more cases involving EU and Japanese exporters that have been disputed in a panel under similar circumstances. In spite of this, the EU commission has always held that their procedure for investigations have not been in violation of the GAAT/WTO rules against dumping. Also, Chapter 5 Anti-Dumping Measures (not dated) notes that the EU anti-dumping rules allow the impact of past dumping to be considered in injury findings. Thus the lack of clear definition of what constitutes material injury under the GATT/WTO anti-dumping rules may be used as a loophole to enhance protection of domestic industries of the member states. Therefore, this is one of the biggest areas that need reform.
Article 6 of the GATT also stipulates that anti-dumping duties shall be imposed upon parties if “the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like products when destined for consumption in the exporting country” , (World Trade Organization Anti Dumping Agreement, 2011). But as noted earlier, there is so much that is up to the discretion of investigating authorizes. This brings problems in determination of “like products”. This can be well illustrated by a case in which Japan was exporting large Color Picture Tubes (CPTs) in the US. According to Chapter 5 Anti-Dumping Measures (not dated), the technology required to make large CPTs is different from the one required to make small CPTs. During the time of petition, there were no large CPTs being produced in the US. Therefore, there was no US local industry to be damaged. In spite of this, investigators found “like products” though the small CPTs require much less advanced technology as compared to CPTs, (Chapter 5 Anti-Dumping Measures, not dated). It was explained that there is similarity between the large and small screen sets that is above and beyond any technical difference. Another example is the investigation by EU into the Laser Optical Reading System that was initiated in October 1997. The Laser Optical Reading System was primarily presumed to consist of car CD decks but the investigating authorities used extremely broad definition of “like products” that tried to encompass products that the parties filing the complaint were not even producing, (Chapter 5 Anti-Dumping Measures, not dated). In particular, the complaints included products that were clearly not “like products” and components that were not subject of the complaint. Remarkably, these two cases show how lack of clear meaning of “like products” can be used as a way to enhance protection to the domestic industries of the member states to the GATT/WTO anti-dumping rules. Therefore, it is vital that the scope of what constitutes “like products” be set or restrained to prevent improper expansion of the meaning.
Proposals for Reforms
To prevent further use of anti-dumping policies as a form of protectionism for local industries by the member states, it will be wise to implement several reforms that would remove vagueness or ambiguity in the provisions of the current anti-dumping law. To start with, several reforms are needed to remove discretion from domestic anti-dumping agencies when calculating the dumping margin. One of them is the elimination of the practice of ignoring the sales above the average price when calculating the dumping margin. Also, the reforms will involve ending the use of third country benchmarks to calculate the normal value and restrict the opportunities for creating “constructed values” that have no benchmark in reality, (UNCTD, p. 23). Another reform proposal is to increase the burden of proof that the domestic firms must present to the investigating agency so as to open an investigation. These reforms would help to reduce the number of anti-dumping investigations conducted and eventually the amount of protectionist tariffs. As Messerlin, (1998, p. 236) explains, failure to remove discretion from domestic anti-dumping agencies will result into increased use of the anti-dumping provisions as a shield for local industries by members states. Many more countries are likely to use the existing leeway to artificially create and expand dumping margins as well as to expand the meaning of “like products” at the expense of the GATT/WTO anti-dumping provisions.
According to Bolton (2010, p. 23), a “lesser duty” rule would play a great role in restricting domestic agencies and improving article 6 of the GATT rules. Such a rule would require the domestic agencies to asses the lowest anti-dumping duty which will be adequate to remove injury to the domestic industry. In such as case, the parties to the GATT would have the option of assessing a duty equal to the dumping margin or assessing a lesser duty. This reform would help to remove the discretion and though it would not bring limitations to the application of duties, it would help to decrease the protection that is possible under the current anti-dumping framework. Also, Bolton (2010, p. 22), proposes mandatory “sunset provisions” on the existing antidumping duties as well as restrictions on back-to-back investigations. This would help to limit the amount of time that duties can be in place and also prevent revolving duties against the same products. According to Waincymer (2001, p. 9), failure to implement these reforms would result into more abuse of the anti-dumping provisions to restrain importers and to protect local industries from competition derived from imports. Consequently, the domestic prices of products in those countries will remain high and the looser will be the consumer, Waincymer (2001, p. 9).
Finally, I would also propose reforms advocated by Bolton (2010, p. 25). Though this seems to be at the extreme end, the author suggested wholesome elimination of the antidumping duties stipulated by the GATT/WTO antidumping rules. In its place, Bolton (2010, p. 25) suggested implementation of a modified version of anti-trust law that more accurately prohibits those behaviors shown in theory to be welfare destroying such as strategic dumping and predatory behavior. This can be enhanced through a multilateral agreement between the largest trading partners though with support from a new support cord within the GATT/WTO antidumping law. As described by Waincymer (2001, p. 9), another alternative would be to enhance expansion of the safeguard provision under article 17 of the GATT law. This would allow protection for domestic industries of the member states but under a more intellectually honest framework that would prevent improper use of anti-dumping provisions as a shield for domestic industries. Again, lack of implementation of the proposed reforms will definitely lead to extension of abuse to the current anti-dumping law. For example, more countries are likely to take advantage of the existence of a loophole in the determination of “material injury” as one way of protecting domestic industries from completion brought about by imported products. If no changes are done, it is likely that more countries will sign into the GATT/WTO with the aim of protecting their domestic industries from the impact of imported products, (WTO, 1998 p.27).
Conclusion
In conclusion, the GATT/WTO antidumping rules are essential to protect domestic markets of party states from the harmful economic impact of dumping. However, as described in this discussion, there is a risk that some provisions of those anti-dumping rules will result into greater use of anti-dumping measures as a form of protectionism. As it has been demonstrated, the overall effects of abusive anti-dumping measures can be substantial in terms of trade volume and critical to a wide range of business activities. Unfortunately, importing countries can easily resort to such practices as it has been illustrated by USA and EU. They can accomplish this under the guise of measures sanctioned by GATT/WTO anti-dumping rules. Remarkably, many countries are easily succeeding in such actions by taking advantage of loopholes existing in the provisions of the anti-dumping rules. As noted, these acts are more rampant in the industrialized countries. But the recent trends indicate that low developed countries are increasingly using the GATT/WTO antidumping rules. Basically, the reason for this is to protect their domestic and politically important industries from competition derived from imports. To combat the emerging trend, it will be vital to enhance the necessary legal reforms to the current GATT/WTO antidumping provisions in order to seal the existing loopholes. Failure to enhance reforms will definitely lead to increased abuse of the anti-dumping rules as well as increased acts of protectionism.
References
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