Proposed U.S.-Oman Free Trade Agreement
CRS Report for Congress
U.S.-Oman Free Trade Agreement
Updated October 10, 2006
Mary Jane Bolle
Specialist in International Trade
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
U.S.-Oman Free Trade Agreement
In aiming to fight terrorism with trade, the United States negotiated and the
President signed on January 19, 2006, the U.S.’s fifth bilateral free trade agreement
(FTA) in the proposed 20-entity Middle-East-Free Trade Area (MEFTA). This FTA
is with Oman. Other U.S.-FTAs are with Israel, Jordan, Morocco, and Bahrain. A
sixth is being negotiated with the United Arab Emirates. Oman is a small oil-
exporting U.S. trade partner that has been supportive of U.S. policies in the Middle
East and is strategically located at the mouth of the Persian Gulf. Because its oil
reserves could be exhausted within 15-20 years, Oman is trying to liberalize and
diversify its trade regime beyond oil and gas to provide economic opportunities for
its fast growing workforce. Supporters of the agreement typically cite political and
economic reasons. Opponents typically point to labor and human rights issues.
The FTA with Oman is similar to other MEFTA FTAs and has three basic parts:
new tariff schedules, broad commitments to open markets and provisions to support
those commitments, and protections for labor and the environment. It provides
immediate duty-free access for almost all consumer and industrial goods, with special
provisions for agriculture and textiles and apparel.
Among all U.S. trade partners, Oman ranks 88th for the United States, while the
United States ranks third for Oman (after the United Arab Emirates and Japan).
U.S.-Oman trade at about $1 billion for 2005 represents 0.04% (four-one hundredths
of one percent) of total U.S. trade. In 2005, the most important U.S. imports from
Oman were oil and natural gas (75%), and apparel (10%). The most important U.S.
exports to Oman were transport equipment (56%), and machinery (24%). The U.S.
International Trade Commission (USITC) predicts that the economic effect of the
U.S.-Oman FTA is likely to be minimal since trade levels are low; and any increase
in U.S. imports of apparel would come at the expense of workers elsewhere in the
world, not in the United States. Total U.S. foreign direct investment in Oman was
$358 million in 2003, up from $193 million in 2002.
Supporters argue that the U.S.-Oman FTA will contribute to bilateral economic
growth and trade, generate export opportunities for U.S. companies, farmers, and
ranchers, and help create jobs in both countries. Critics argue that labor protections
are inadequate for Omani workers, and that the FTA will not help level the playing
field for Omani and U.S. workers. Critics also argue that a provision in Annex II of
the FTA could obligate the United States to open up landside aspects of its port
activities to operation by companies doing business in Oman — activities about
which Congress expressed national security concerns during the Dubai Ports World
debate. After the President submitted the agreement and the implementing legislation
to Congress, relevant committees had 45 days to consider (or not consider) it, and
either chamber had 15 more days to vote the legislation up or down without
amendment to the agreement itself or the legislation. The Senate passed
implementing legislation on June 29, 2006 (S. 3569); the House passed it (H.R.
and it became P.L. 109-283 on September 26, 2006. This report will be updated as
Why Oman? Why Now?............................................2
U.S.-Oman Bilateral Trade and Investment..............................3
Foreign Direct Investment in Oman................................3
The U.S.-Oman FTA...............................................4
Market Access and Related Provisions.............................6
Protections for Labor and the Environment..........................8
The General Debate Over the Agreement ...............................9
Arguments in Favor of the Agreement..............................9
Arguments Against the Agreement ..............................11
Other Labor Issues................................................14
Issues on Port Security.............................................17
The Oman FTA Provision......................................17
Arguments in Favor of the Provision..............................18
Arguments Against the Provision................................20
Outcome of a Congressional Vote on the FTA and Potential Consequences
If It Had Failed to Pass.........................................22
List of Figures
Figure 1. Oman’s Geographic Location in the Proposed MEFTA............2
List of Tables
Table 1. U.S. Imports from and Exports to Oman, 2005...................4
U.S.-Oman Free Trade Agreement
A U.S. free trade agreement (FTA) with Oman was concluded on October 13,
2005, after seven months of negotiation, and was signed by U.S. Trade
Representative (USTR) Bob Portman and Omani Minister of Commerce and Industry
Maqbool bin Ali Sultan on January 19, 2006. The U.S.-Oman (FTA) is the fifth U.S.
bilateral free trade agreement with a country in the proposed Middle East Free Trade
Area (MEFTA). MEFTA would consist of 16 entities in the Middle East and four
in North Africa. The entire proposed MEFTA is included in the map in Figure 1,
with Oman, heavily shaded, in the lower right hand corner.
Completion of a MEFTA by 2013 was
proposed by President George W. Bush in
supporting Middle East economic growth
and democracy through trade.1 To date,Location: mouth of the Persian Gulf
besides Oman, the Administration has(see map)
negotiated and Congress has implementedSize: slightly smaller than Kansas
free trade agreements with four otherReligion: Ibadhi Muslim 75%, Sunni
MEFTA political entities: Israel and JordanMuslim, Shi’a Muslim HinduGovernment: monarchy
(before MEFTA was announced), Morocco,GDP: $40 billion (similar to that of
and Bahrain. A sixth FTA is being negotiated2Idaho)
with the United Arab Emirates (UAE).Labor force: about 1 million (2002)
Unemployment rate: 15% (2004)
Congressional consideration of the U.S.-Population: roughly 3 million (43%under age 14) growing at 3.3% per year
Oman FTA is governed by the timeline setPer-capita income: $13,400
forth in the Trade Act of 2002 (P.L. 107-Industries: crude oil production and
President’s trade promotion authority (TPA),production, construction, cement, copper,
the President must give Congress a 90-daysteel, chemicals, optic fiber.
prenotification of his intent to enter into thePrimary source: CIA The World
1 For MEFTA background in this section see CRS Report RL32638, Middle East Free
Trade Area: Progress Report, by Mary Jane Bolle. For background on Oman, see CRS
Report RS21534, Oman: Reform, Security, and U.S. Policy, by Kenneth Katzman; and CRS
Report RL31533, The Persian Gulf States: Issues for U.S. Policy, 2006, by Kenneth
2 The 16 entities in the Middle East (see map p.2) are Bahrain, Cyprus, Egypt, Gaza Strip
and West Bank, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia,
Syria, United Arab Emirates, and Yemen; the four in North Africa are Algeria, Libya,
Morocco, and Tunisia.
trade agreement.3 After that, the President must submit to Congress — under no
particular time constraints, but on a day when both houses of Congress are in session
— both the agreement itself and the implementing legislation. Any House or Senate
committees to which the legislation is referred will have 45 days to report (or not
report) the bill; and each house has 15 days after the bill is reported (or the 45 days
expire) to consider the legislation. If the House passes its bill to the Senate, the
Senate has an additional 15 days to consider the legislation. Floor debate in either
house is limited to 20 hours, divided equally between supporters and opponents. For
final passage, both houses must vote the legislation up or down by a simple majority,
and neither the implementing legislation nor the agreement itself may be amended.4
Figure 1. Oman’s Geographic Location in the Proposed MEFTA
l t a r CaspianSea
Strait of GibraIRAQTUNISIAMediterraneanSea
JORDA NALGE RI A
RedU. A. E.SAUDIARABIA
aWESTBANK OM A N
GAZAST RIP YE M EN
Source:Map Resources. Adapted by CRS. (K.Yancey 12/5/05)
Why Oman? Why Now?
U.S. interest in Oman stems from a number of factors. Oman is a small exporter
of oil and natural gas that is strategically located at the entrance to the Persian Gulf,
35 miles directly opposite Iran. It is not a member of the Organization of the
Petroleum Exporting Countries (OPEC). Oman is a moderate Islamic country which
has sought to maintain good relations with all Middle East countries. It also has a 170
year history of political and economic cooperation with the United States, and has
supported the U.S. war on terrorism.5 Oman is an important gateway to the Persian
Oman has many reasons for wanting to negotiate an FTA with the United States.
It is a country whose proven oil reserves could be exhausted within 15 or 20 years;
yet, almost 40% of the country’s GDP, two-thirds of its export earnings and three-
3 Prenotification was given on October 17, 2005 — three days after negotiations were
concluded. Subsequently, the agreement was officially “entered into,” or signed, on
January 19, 2006.
4 CRS Report RL32011, Trade Agreements: Procedure for Congressional Approval and
Implementation, by Vladimir N. Pregelj.
5 U.S. Department of State, Bureau of Near Eastern Affairs. Background Note: Oman.
fourth of its government revenues currently come from oil revenues. It is therefore
trying to liberalize and diversify its trade regime as it seeks to broaden economic
opportunities for a fast-growing workforce. As a result, it is looking to expand its
economy beyond oil and gas exports. It sees the United States as an important ally
in the venture to prepare itself for a time when its economic and social challenges
U.S.-Oman Bilateral Trade and Investment
Oman is a small U.S. trade partner, ranking 88th among all U.S. trade partners.
Total U.S.-Oman trade at $1 billion in 2005 ($593 million in U.S. exports and $555
million in U.S. imports) accounts for 0.04% (four one-hundredths of one percent) ofth
all U.S. trade. As a trading partner it is also 11 among the 20 MEFTA entities,
which together represent 4% of U.S. trade for 2005. The United States, on the other
hand, ranks fourth in importance among Oman’s trading partners, behind the United
Arab Emirates (UAE), Japan, and the United Kingdom for 2004 (most recent data).
In 2005, the most important U.S. imports from Oman (see Table 1) were oil and
natural gas (75%, constituting 1% of all U.S. oil and gas imports from MEFTA
countries), and apparel (10%). The most important U.S. exports to Oman were
various types of transport equipment and road vehicles (totaling 56%), and various
types of machinery (24%). Since 2001, U.S. exports to Oman have almost doubled
to $593 million, for various reasons, while U.S. imports from Oman, at $555 million,
have increased by about a third, primarily because of increases in the price of
petroleum imports. As a result, for 2005, the United States had a small trade surplus
Foreign Direct Investment in Oman
Total U.S. foreign direct investment in Oman was $358 million in 2003, nearly
double the $193 million investment in 2002.7 The Bureau of Economic Analysis
does not report on investment by sector for Oman, when investment is highly
concentrated in a small number of investors, and such reporting might reveal the
identity of individual investors. However, most of it is likely invested in oil and gas-
6 Times of Oman - Local News, “Oman, U.S. Sign Free-Trade Pact,” January 20, 2006; and
Gulf Times, “Step Forward in Mideast,” January 30, 2006.
7 Office of the U.S. Trade Representative. 2005 National Trade Estimate Report on Foreign
Trade Barriers, p. 458.
Table 1. U.S. Imports from and Exports to Oman, 2005
U.S. Imports from OmanU.S. Exports to Oman
Import and Export and
(SITC number)$mil% (SITC Number)$mil%
Petroleum (33)400 72%Transport equipment (79)17029%
Apparel (84)5310%Road Vehicles (78)15927%
Natural Gas (43)143%Machinery (72,74,71,77)14524%
Misc. Manufacturing (89)5710%Scientific instruments (87)142%
Iron and Steel (67)102%Food/agricultural (1-11)112%
Other 21 3% Other 94 16%
TOTAL $555 100% TOTAL $593 100%
Source: U.S. International Trade Commission Dataweb; SITC: Standard International Trade Code.
However, the Department of Commerce’s Country Commercial Guide for Oman
reported that the largest investor in Oman is Royal Dutch Shell Oil which holds 34%
of Petroleum Development in Oman, the state oil company, and 30% of Oman Liquid
Natural Gas. In addition, U.S. firms, Gorman Rupp (water pumps) and FMC
(wellhead equipment), have entered into industrial joint ventures with Omani firms,
and Dow Chemical announced a joint venture with Oman Oil Company and the
government of Oman in July 2004 to develop a large petrochemical plant in Sohar.8
The Country Commercial Guide for Oman also reported that total investment
in listed Omani companies with foreign participation was $2.4 billion in September
2004, of which 8.94% ($215 million) was (worldwide) foreign investment. Foreign
capital also constituted 7.5% of all capital invested in finance, 3% of all capital
invested in manufacturing, and 9% of all capital invested in insurances and services.9
The U.S.-Oman FTA
The FTA with Oman is similar to other recent FTAs with MEFTA countries
(Morocco and Bahrain), with slight variations. The U.S.-Oman FTA has three basic
parts: new tariff schedules for each country, broad commitments to open markets and
provisions to support these commitments, and protections for labor and the
The USITC argues that the economic effect of the agreement on the U.S.
economy is expected to be small but positive, and that the impact on U.S. workers
8 U.S. Department of Commerce. Doing Business in Oman: A Country Commercial Guide
for U.S. Companies (no date). Section on foreign direct investment statistics.
is likely to be minimal because trade with Oman is low. U.S. apparel workers are a
group that is potentially adversely affected. Apparel imports from Oman declined
by 57% in 2005 over 2004, because the World Trade Organization (WTO)
Agreement on Clothing and Textiles (ACT) expired in January of 2005, ending the
trade quota system among WTO partner countries. The USITC reports that tariff
reductions and elimination under the U.S.-Oman FTA should restore some of the
competitiveness of Oman’s apparel exports among U.S. purchasers — and estimates
that the resulting increase in imports would come at the expense of workers
elsewhere in the world, not U.S. workers.10
Under the U.S.-Oman FTA, the United States and Oman will provide each other
immediate duty-free access for tariff lines covering almost all consumer and
industrial goods, with special provisions for agriculture and textiles and apparel. For
agricultural products, Oman will provide immediate duty-free access for current U.S.
exports in 87% of agricultural tariff lines; and the United States will provide
immediate duty-free access for 100% of Oman’s current exports of agricultural
products to the United States. Both countries will phase out all tariffs on the
remaining eligible goods within 10 years.11
Textile and apparel products are divided into three categories. Most U.S.
imports from Oman are category A (cotton and manmade fibers) for which duties
will be eliminated immediately so long as the goods meet the FTA rules of origin
requirements. On category B products (home furnishings — mainly bed and kitchen
linens) tariffs will be reduced over five years, and for category C products (wool
goods), tariffs will be reduced over 10 years. Most apparel must be assembled in an
FTA party from inputs (yarn and fabric) made in an FTA party.12
At present, virtually all U.S. textile and apparel imports from Oman are dutiable,
with an average tariff rate of 15.4% in 2005. At the same time, only 11% of U.S.
agricultural imports from Oman are dutiable. These dutiable products carried an
average tariff of 10.4% in 2005.13 Most U.S. exports to Oman incurred the common
external Gulf Communications Council (GCC) tariff of 5% to all non-GCC members.
The GCC includes, besides Oman, Bahrain, Kuwait, Qatar, Saudi Arabia, and the
10 U.S. International Trade Commission (USITC). U.S.-Oman Free Trade Agreement:
Potential Economy-Wide and Selected Sectoral Effects, p. 2-4, 2-5.
11 Office of the USTR, Summary of the U.S.-Oman Free Trade Agreement, Sept. 2005.
12 USITC, op. cit., p. 2-4, 2-5.
13 CRS calculations from USITC Dataweb.
Market Access and Related Provisions14
The U.S.-Oman FTA contains broad commitments to open markets in sectors
such as banking, insurance, securities, and telecommunications. It also includes
protections for U.S. investors, and for holders of copyrights, trademarks, patents, and
trade secrets. It includes enforcement measures for intellectual property rights
infringement. In addition it contains transparent sanitary and phytosanitary measures,
government procurement disciplines, streamlined and transparent customs
procedures, commitments to combat bribery, and tools to enforce the trade
agreement. More specifically:
Commitments to Open Services Markets. Oman provides market access
across its entire services regime, including audiovisual, express delivery,
telecommunications, computer, distribution, and healthcare; and services incidental
to mining, construction, architecture and engineering. The agreement will enhance
Oman’s commitment to the WTO General Agreement on Trade in Services
(GATS).15 Annexes I and II of the agreement indicate the exceptions to the coverage
of the agreement that each country has reserved for itself in the case of services.
Opportunities for Banks, Insurance, Securities, and Related
Services. U.S. financial service suppliers have the right to establish subsidiaries,
branches, and joint ventures in Oman, to expand their operations throughout Oman,
and to offer the full range of financial services. Annex III of the agreement lists the
exceptions to the coverage of the agreement that each county has reserved for itself
in the area of trade in financial services.
New Protections for U.S. Investors. All forms of investment are protected
under the agreement, including enterprises, debt concessions, contracts, and
intellectual property. U.S. investors will have, in most circumstances, the right to
establish, acquire, and operate investments in Oman on an equal footing with Omani
investors and with investors of other countries. Annexes I and II of the agreement
indicate the exceptions to the coverage of the agreement that each country has
reserved for itself in the case of foreign investment.
Open and Competitive Communications Market. U.S. phone
companies will have the right to interconnect with a dominant carrier in Oman at
nondiscriminatory rates. U.S. firms seeking to build a physical network in Oman will
have nondiscriminatory access to key facilities such as telephone switches and
submarine cable landing stations.
E-Commerce. Each government commits to nondiscriminatory treatment of
digital products and agrees not to impose customs duties on digital products
14 This section only, except as otherwise indicated, is from USTR. Summary of the U.S.-
Oman FTA, op. cit.
15 USITC op. cit, p. xii (this sentence).
Copyright Protection in a Digital Economy. Each government commits
to protect copyrighted works, including phonograms, for extended terms consistent
with U.S. standards and international trends.
Patents and Trade Secrets. Grounds for revoking a patent are limited to the
same grounds required to originally refuse a patent, thus protecting against arbitrary
revocation. Patent terms can be adjusted to compensate for unreasonable delays in
granting the original patent, consistent with U.S. practice.
Trademarks. The FTA applies the principle of “first-in-time, first-in-right” to
trademarks and geographical indications, so the first person who acquires a right to
a trademark or geographical indication will be the person who has the right to use it.
Each government will be required to establish transparent procedures for the
registration of trademarks.
Intellectual Property Rights (IPR). The FTA requires each government to
criminalize end-user piracy, providing a strong deterrence against piracy and
counterfeiting. The FTA mandates both statutory and actual damages under Omani
law for IPR violations.
Transparent Sanitary and Phytosanitary Measures and Technical
Barriers to Trade. Oman commits to a science-based regime for sanitary and
phytosanitary measures and to transparent procedures for developing and
implementing technical regulations.
Government Procurement. U.S. suppliers are granted nondiscriminatory
rights to bid on contracts to supply most Omani government entities; and Omani
government purchasers may not discriminate against U.S. firms or in favor of Omani
firms when making government purchases above a threshold monetary level.
Customs Procedures. The FTA requires transparency and efficiency in
customs administration, including publication of laws and regulations on the Internet
and procedural certainty and fairness.
Transparent Rule-Making and Procedural Protections for Traders.
Each government will publish its laws and regulations governing trade, and will
publish proposed measures in advance, and provide an opportunity for public
comment on them. Each government will ensure that a trader from the other country
can obtain prompt and fair review of a final administrative decision affecting its
Commitments to Combat Bribery. Each government is required to prohibit
bribery, including bribery of foreign officials, and to establish appropriate criminal
penalties to punish violators.
Tools to Enforce the Trade Agreement. All core obligations of the FTA,
including enforceable labor and environmental provisions, are subject to the dispute
settlement provisions of the agreement. Dispute panel proceedings are subject to
requirements for openness and transparency.
Protections for Labor and the Environment
Labor Protections. Each government is required to effectively enforce its
own labor laws, as with other FTAs negotiated under the presidential trade
promotional authority or “fast track” authority of the Trade Act of 2002 (P.L. 107-
210). This is the only labor provision enforceable through the agreement’s dispute
resolution process, and the maximum penalty for each violation is limited to $15
million per violation per year. If the Party complained against fails to pay a monetary
assessment, the complaining Party can take other steps to collect the assessment (or
otherwise secure compliance), including by the suspension of tariff benefits under the
However, the labor section of the U.S.-Oman FTA also contains other
provisions, which are subject to consultation rather than actual enforcement: Each
country agrees not to weaken or reduce its labor laws to attract trade and investment.
Each government reaffirms its obligations as a member of the International Labor
Organization (ILO, which requires it to uphold ILO core labor standards) and commit
to “strive to ensure” that its laws provide for labor standards consistent with
internationally recognized labor rights (which are defined in the FTA to reflect U.S.16
trade law, and are slightly different from ILO core labor standards.) Labor
ministries together with other appropriate agencies agree to establish priorities and
develop specific cooperative activities. (See section below on “The Labor Debate”
for a discussion of most recent labor issues.)
Environmental Protections. Each government is required to effectively
enforce its own environmental laws. This is the only environmental provision
enforceable through the agreement’s dispute resolution process, and as with labor
provisions, the maximum fine is limited to $15 million per violation per year.
Each country also agrees not to weaken or reduce its environmental laws to
attract trade and investment. As a complement to the agreement, the governments
sign a Memorandum of Understanding on Environmental Cooperation that
establishes a Joint Forum on Environmental Cooperation, develop a plan of action,
and set priorities for future environment-related projects.
16 While both ILO core labor standards and U.S. internationally recognized worker rights
provisions (defined in the Trade Act of 1972 as amended) refer to similar standards, they
differ in one respect. While both lists include the right to organize and bargain collectively,
a prohibition against forced labor, and protections for child labor, the ILO set includes
additionally protections against employment discrimination; while the U.S. set includes
additionally labor protections relating to minimum wages, maximum hours, and safety and
The General Debate Over the Agreement
Arguments in Favor of the Agreement
Supporters of the Agreement. Support for the agreement is broad in the
business community. Among businesses, support is led by the National Foreign
Trade Council and the Business Council for International Understanding which heads
up the Middle East Free Trade Coalition (MEFTC), an alliance of about 120
companies and associations including the U.S. Chamber of Commerce, and the
National Association of Manufacturers. Support also comes from 24 out of 27 trade
advisory committees representing business labor, environment, state and local
government, agriculture, various industries, and functional areas (e.g., consumer
goods, distribution services, small and minority businesses, customs matters,
intellectual property, and standards and technical trade barriers.)17
Congressional support on the House side was led by the Congressional Middle
East Economic Partnership Caucus (MEEPC), a bipartisan group of lawmakers
which began with 16 members and six co-chairs including Representatives Ben
Chandler, Phil English, Darrell Issa, William Jefferson, Gregory Meeks, and Paul
Congressional support on the Senate side was led by Senator Charles Grassley,
Chairman of the Senate Finance Committee, and by Senator Craig Thomas,
Chairman of the Subcommittee on International Trade, which held hearings on the
U.S.-Oman FTA on March 6, 2006.
Arguments in Favor of the Agreement. USTR Portman asserted that the
U.S.-Oman FTA will contribute to economic growth and trade between both
countries, generate export opportunities for U.S. companies, farmers, and ranchers,
help create jobs in both countries, and help American consumers save money while
offering them greater choices. He pointed out that in addition to eliminating tariffs
on U.S. exports, Oman will provide substantial market access across the entire
services regime, provide a secure, predictable legal framework for U.S. investors
operating in Oman, provide for effective enforcement of labor and environmental
laws, and protect intellectual property. Furthermore, he argues that this agreement
will support and accelerate the market liberalization that Oman started as part of its
accession to the WTO in 2000. Portman contends that joint U.S.-Omani efforts will
advance economic growth and democracy, raise living standards and promote peace
17 Sec. 2104(e) of the Trade Act of 2002 requires that advisory committees provide the
President, the U.S. Trade Representative, and Congress with reports required under Section
135(e)(1) of the Trade Act of 1974, as amended, not later than 30 days after the President
notifies Congress of his intent to enter into an agreement. Under Section 135(e) of the
Trade Act of 1974, as amended, the report must include an advisory opinion as to whether
and to what extent the Agreement promotes the economic interests of the United States and
achieves the applicable overall and principal negotiating objectives set forth in the Trade
Act of 2002.
and economic stability in the Middle East — a region of almost 350 million people
and a $70 billion trading relationship with the United States.18
The overall Advisory Committee for Trade Policy Negotiations (ACTPN) also
notes that the agreement will strengthen the likelihood of additional agreements in
the region and improve and strengthen overall U.S. relations with the countries of the
In addition, those in favor of the agreement assert that Oman is one of the most
“open” countries in the Middle East. Economic Freedom of the World, 2005,
published by Canada’s Fraser Institute, reports (p. 4) that when measures of
economic freedom and democracy are included in a statistical study, economic
freedom is about 50 times more effective than democracy in diminishing violent
conflict. Economic Freedom ranked Oman 17th out of 127 countries in terms of
degree of economic freedom afforded in five basic areas.20 The only MEFTA country
it ranked higher was the UAE, which tied for 9th place (with Australia, Luxemburg,
and Estonia.) Other MEFTA country rankings were Bahrain (24th), Jordan (25th),
Israel ( 50th), and Egypt, (tied for 78th with Iran and Morocco.)21
In 2003, Oman passed a new labor law extending its labor protections for
domestic workers to foreign workers (who predominate in the private sector). In
response to some calls to strengthen the Omani labor law further, Chuck Ditrich,
National Foreign Trade Council vice president, urges patience, acknowledging that
Oman still has some areas that may need further legislation, but argues that Omani
laws must be viewed in the context of a “very traditional society” that is committed
to modernization.22 For example, the government of Oman reportedly recognizes the
need for more explicit provisions for collective bargaining in its laws.23 Moreover,
Oman has reportedly undertaken consultation with the ILO for technical assistance
in complying with ILO core labor standards.24
18 Office of the USTR. United States and Oman Conclude Free Trade Agreement. Oct. 3,
19 Letter from William E. Frenzel, former Member of Congress and Chairman of ACTPN,
November 15, 2005.
20 These are: size of government expenditures and taxes, legal structures and security,
access to sound money, freedom to trade internationally, and regulation of credit, labor, and
21 The Fraser Institute. Economic Freedom of the World, 2005 Annual Report, by James
Gwartney, Florida State University, Robert Lawson, Capital University, with Erik Gartzke,
Columbia University. 188 p. The five areas are: (1) size of government; (2) legal structure
and protection of property rights; (3) access to sound money; (4) international exchange; and
22 Labor Promising Battle Over Bush’s Mideast Trade Agenda. Congress Daily. March 2,
23 Response from the Sultanate of Oman to the House Ways and Means Trade Subcommittee
Minority Staff, January 4, 2006.
24 Letter from Ambassador Hunaina Al-Mughairy, Omani Ambassador to the United States,
Arguments Against the Agreement
Three of the 27 reports by trade advisory committees mandated under the trade
promotion authority language of the Trade Act of 2002 have some criticisms of the
U.S.-Oman FTA: those committees on the environment, intergovernmental affairs,
Environment. Most members of the Trade Policy and Environment
Committee agreed that the environment and public participation provisions were
acceptable; however, they noted that the U.S.-Oman FTA lacks some environmental
provisions which have appeared in other agreements and which would have been
appropriate. Examples of such provisions are the extensive public participation
framework from the Central America Free Trade Agreement (CAFTA) and some
basic environmental provisions which appeared in the FTAs with Chile and
Intergovernmental Affairs. The Intergovernmental Advisory Policy
Committee, in principle, supported the trade liberalization objectives of the
agreement. However, the committee stressed the need for trade agreements to
continue to respect the authority of state and local governments to regulate in areas
under their jurisdiction. They also stressed the need for ongoing consultations with26
Labor. The labor groups are the most vocal critics. They argue that potential
losers from the agreement would be workers in Oman who would miss out on the
opportunity to be more fully protected by labor standards. Other implied losers would
be U.S. workers for whom the agreement does little to “level the playing field.”
Main arguments against the FTA offered by labor interests are concentrated primarily
on two basic issues: weaknesses in the agreement, and weaknesses in Omani laws
and enforcement, for which the agreement does not adequately compensate.
Weaknesses in the Agreement. Labor critics point out that the Trade Act27
of 2002 requires U.S. negotiators to “seek provisions that treat U.S. principal
negotiating objectives equally with respect to both: (1) the ability to resort to dispute
settlement; and (2) the availability of equivalent dispute settlement procedures and
remedies. However, critics argue, the agreement does not do this. Further, they
to the Minority Chief Counsel of the Trade Subcommittee, House Ways and Means
Committee accompanying Response from the Sultanate of Oman to the House Ways and
Means Trade Subcommittee Minority Staff, January 4, 2006.
25 Trade and Environment Policy Advisory Committee. The U.S.-Oman Free Trade
Agreement. November 15, 2005. 30 p.
26 Office of the USTR, Trade Advisory Committees Support U.S.-Oman FTA. Nov. 18, 2005.
See also Intergovernmental Policy Advisory Committee, The U.S.-Oman Free Trade
Agreement (FTA). November 15, 2005.
27 P.L. 107-210, Sec. 2102(b)(12)(G). This law gives the President authority to negotiate
trade agreements that will then be considered by Congress on an expedited basis.
argue, the FTA is a step backward from protections offered Oman under the
Generalized System of Preferences:
Not All Labor Provisions Are Treated Equally. The U.S.-Oman FTA
identifies three basic labor commitments for partner countries: (1) commitments to
comply with ILO standards; (2) commitments to enforce their own labor standards;
(3) and commitments to not derogate from those standards in order to attract trade
and investment. However, critics argue, only the second of these three commitments
is enforceable through the dispute resolution procedures of the U.S.-Oman FTA.
This treatment, they argue, contrasts with provisions of the U.S.-Jordan FTA which
makes all three commitments enforceable through the dispute resolution process.28
Unequal Treatment of Labor Compared to Most Non-Labor Provisions.
Second, there are different dispute resolution procedures for labor and non-labor
(e.g., intellectual property) violations, For labor (and environmental) violations, the
potential penalty for the one labor (and environmental) violation (failure to enforce
one’s own laws) that is open to the dispute resolution procedures is capped at $15
million per violation per year. For non-labor (and non-environmental) violations,
there is no cap on any monetary assessment.
A Step Back from GSP. In addition, the AFL-CIO sees the U.S.-Oman FTA
as being a step back from the Generalized System of Preferences (GSP) program.
Under GSP, trade preferences for developing countries including Oman are
dependent on such countries’ taking steps to afford their workers internationally
recognized worker rights. A challenge to GSP eligibility for any country begins with
a petition to the Office of the USTR documenting that a country is not taking steps
to afford its workers such rights. In June of 2005, the AFL-CIO petitioned the
USTR to remove Oman from GSP status, arguing that it was not affording its
workers internationally recognized worker rights.29 The USTR subsequently rejected
the petition and Oman continues to hold GSP status.
Weaknesses in Omani Law and Enforcement. When there are
weaknesses in the agreement, critics argue, if a country’s basic laws and enforcement
of those laws are strong enough, workers can still be protected. Oman, critics argue,
lacks protections in certain areas.
Omani Gaps in Ratification of ILO Core Labor Standards. First, as of
the date of this report, according to the ILO website, Oman has ratified conventions
relating to only two of the four basic ILO core labor standards (enumerated in a
footnote on p. 7): those protecting against child labor, and those prohibiting forced
28 Even though both parties committed to this enforcement pattern in the U.S.-Jordan FTA,
the countries exchanged letters just before Congress debated the agreement, promising to
“make every effort to resolve [any differences] without recourse to formal dispute settlement
29 Before the United States Trade Representative: Petition to Remove Oman From the List
of Beneficiary Developing Countries Under the Generalized System of Preferences (“GSP”),
June 15, 2005. Source: USTR website at [http://www.USTR.gov].
labor. Oman has not ratified conventions related to the right to organize and bargain
collectively and the elimination of employment discrimination.30
Lack of Other Omani Laws and/or Enforcement. Furthermore, various
sources suggest that Omani labor laws and/or enforcement do not fully cover certain
aspects of the following areas relating to core labor standards/internationally
recognized worker rights:
Right to Organize and Bargain Collectively. The State Department’s
Country Reports on Human Rights Practices, 2004, finds in the area of “right to
organize and bargain collectively,” that Omani law does not provide workers with the
right to form or join “unions” but does permit them to form representation
committees with the goal of taking care of their interests. The LAC reports that where
representation committees exist, however, they are by law, not authorized to discuss31
wages, hours, or conditions of employment. Country Reports for 2005 adds an
unofficial estimate that 25 representation committees, representing 9.1% of
employees in the private sector, have been registered since 2004 and reports that
provisions of the law apply to [Omani] women and foreign workers [as well as32
Right to Strike. Furthermore, according to Country Reports for 2004, the
Omani law does not address strikes or explicitly provide for the right to collective
bargaining. However, it reports that the 2003 Omani labor law removed a 1973
prohibition on strikes and details procedures for dispute resolution. Country Reports
for 2005 also indicates that, while labor unrest was rare, there were four reported
strikes during the year. The most significant one closed the largest seaport for two33
Prohibition of Forced or Compulsory Labor. Country Reports for 2004 also
finds that the Omani law prohibits forced or compulsory labor, including that of
children. Country Reports for 2004 further notes that even though the protections of
the 2003 Omani labor law apply equally to foreign and domestic workers, at times
foreign workers (who account for 80% of private sector workforce and 50% of all
workers in Oman) were placed in situations amounting to forced labor.
Country Reports for 2005 echoes the finding that some situations amounted to
forced labor and adds that employers sometimes withheld documents that would
release workers from employment contracts and allow them to change employers.
30 ILO Database of International Standards.
31 Labor Advisory Committee for Trade Negotiations and Trade Policy (LAC), “The U.S.-
Oman Free Trade Agreement,” November 15, 2005, p. 5. Country Reports for 2005
indicates that the minimum wage is insufficient to provide a decent standard of living for
a worker and family.
32 Country Reports for 2005 was released March 8, 2006.
33 Materials received by CRS on April 4, 2006 from the firm of Baker Donelson Bearman
Caldwell & Berkowitz representing the Omani government also report that there were 33
strikes in 2004 in Oman, representing almost 6,000 workers in 17 industries.
Without such documents, a foreign worker must continue to work for his current
employer or become technically unemployed and consequently a candidate for
deportation. Country Reports for 2005 further reports that many foreign workers
were not aware of their right to take such disputes to the Labor Welfare Board, which
“in most cases” released the worker from the service contract without deportation,
awarded compensation for time worked under compulsion, reimbursed the worker
for back wages, and subjected the guilty employer to fines. However, Country
Reports 2005 states, there were no available statistics on the number of disputes filed
or resolutions by the end of 2005.
Before the U.S.-Oman FTA and implementing legislation were formally
submitted to Congress, both House and Senate committees held preliminary hearings.
The House Ways and Means Committee held full committee hearings on April 5,
2005. The International Trade Subcommittee of the Senate Finance Committee held
hearings on March 6, 2006.
Then, on May 10, the House Ways and Means Committee held “mock” markup
hearings on the Administration’s draft implementing legislation and approved the bill
without amendment on a party-line vote of 23-11. On May 18, 2006, the Senate
Finance Committee held its “mock” markup, adopting an amendment before passing
the bill unanimously. The amendment reflected recent concerns about sweatshop
conditions in Jordan (see section below), and implications for production under the
On June 28, the Senate Finance committee approved the draft implementing
legislation (S. 3569) for the U.S.-Oman FTA by a vote of 10 to 3. On June 29, the
Senate passed the bill by a vote of 60 to 34. On June 29 the House Ways and Means
Committee also approved the draft implementing legislation (H.R. 5684) by a vote
of 23 to 15. On July 20 the House passed the bill by a vote of 221 to 205. On
September 19 the Senate reconsidered the implementing legislation and passed the
House version of the same bill by a vote of 63 to 31. This action was necessary
because the Constitution requires that all revenue-raising legislation, which
encompasses trade bills, since they affect tariffs, originate in the House. The bill was
signed by the President and became P.L. 109-283 on September 26, 2006.
Other Labor Issues
A report of alleged sweatshop conditions in plants in Jordan producing for
export to the United States has been issued by the National Labor Committee (NLC),
a nonprofit organization that promotes worker rights around the world. The 161-page
report has raised concerns within Congress that similar conditions might exist or
occur in other MEFTA countries, including Oman if the U.S.-Oman FTA were to go
The NLC report entitled U.S.-Jordan Free Trade Agreement Descends into
Human Trafficking and Involuntary Servitude, released in May of 2006, documents
conditions in 28 separate factories in Jordan in foreign trade zones, where clothing
is produced by Jordanian and foreign guest workers, mostly for export to the United
States. The report estimates that tens of thousands of foreign guest workers who
entered employment willingly were subsequently stripped of their passports and
trapped in involuntary servitude, sewing clothing in factories for companies including
Wal-Mart, K-Mart, Gloria Vanderbilt, Target, Kohl’s, J.C. Penney, Victoria’s Secret,
and L. L. Bean.34
The Senate Finance Committee responded to the concerns on May 18, 2006, by
unanimously adopting an amendment in its mock markup of the Administration’s
U.S.-Oman FTA draft implementing legislation. The amendment, offered by Senator
Kent Conrad, would prohibit any products made in Oman “with slave labor
(including under sweatshop conditions so egregious as to be tantamount to slave
labor) or with the benefit of human trafficking,” from benefitting from the agreement.
Committee Republicans, including Chairman Chuck Grassley, joined Democrats in
voting for the conceptual amendment. The committee then unanimously approved
the U.S.-Oman draft implementing bill as amended.35
Any amendments passed by a committee during the mock markup process are
advisory in nature, rather than obligatory. The Administration responded that while
they would consider the amendment, they had some concerns. First, they argued, the
amendment might fall outside the scope of the provision in the Trade Act of 2002,
P.L. 107-210, Sec. 2103(b)(3)(ii), requiring that any new statutory language be
“necessary or appropriate” to implement the trade agreement.36
Second, the Administration argued, Sec. 307 of the Tariff Act of 1930 already
prohibits the importation of merchandise produced in whole or in part through prison,
forced, or indentured labor, including by those who voluntarily entered into
employment but were later subject to de facto slave working conditions. In response
to the Administration’s argument, Senator Conrad pointed out that Sec. 307 of the
Tariff Act of 1930 may not be applicable to apparel produced under slave labor
conditions in Oman. This, he argued, is because apparel is no longer made in great
quantities in the United States; and Sec. 307 does not apply to goods produced under
forced or indentured labor if those goods are not domestically produced in quantities
that meet the consumption demands of the United States.37
Third, the Administration argued that the amendment may be unnecessary
because FTA language requiring Oman to enforce its own labor laws, which prohibit
forced labor, is strong enough or enforceable enough to discourage or affect its
practice. In addition, the Administration pointed out, Oman has approved core labor
34 The report is available at [http://www.nclnet.org].
35 Washington Trade Daily, “Finance Approves Oman FTA Bill,” May 19, 2006.
36 World Trade Online, Inside U.S. Trade, “USTR Cool to Finance Labor Amendment To
Oman Draft FTA Bill,” May 19, 2006.
standards prohibiting forced or compulsory labor and has made commitments to
strengthening its labor standards still further. These Omani commitments came from
the Omani Minister of Labor as part of an exchange of letters between House
Democrats, the Omani Minister, and the USTR. The Omani Minister made eight
commitments in March and ten further commitments regarding forced labor and child
labor in May. In those commitments Oman promised to issue Royal Decrees and
Ministerial Decisions to strengthen the country’s labor laws in response to
congressional concerns by no later than October 31, 2006.38
While some Republicans argued that Oman needs time to craft new laws with
technical support from the ILO, some Democrats argued for changes in Omani laws
before the U.S.-Oman FTA implementing legislation is considered by Congress.39
On July 8, 2006, the Sultan of Oman issued a Royal Decree (74/2006) amending
provisions of Omani labor law to provide some labor rights consistent with ILO core
labor standards. As amended by the decree, Omani law would permit the right to
form unions, the right to bargain collectively, and to engage in other union activities.
The law would also prohibit employers and others from imposing any compulsory
or forced labor with specific penalties for noncompliance. Penalties are provided for
those who would interfere with union activity, or decline to provide the necessary
facilitation or information. The Royal Decree delegates promulgation of regulations
to the Ministry of Manpower; therefore, specific details regarding its implementation
and enforcement are yet to be determined.40
Meanwhile, a few days after the Senate Finance Committee markup hearing,
Jordan’s trade minister Sharif Zu’bi indicated that the NLC report had incorrectly
identified three sweatshops that are not even in Jordan, and that three others had been
closed before the report was released in May. In addition, he noted that the Jordanian
government had formed nine inspections teams to investigate the entire garment trade
in the country, and is working with the International Labor Organization, U.S. labor
committees, the USTR, the State Department, and U.S. and Jordanian apparel
companies to address the challenges and improve their monitoring system.
38 Ibid; a letter from Rep. Charles B. Rangel and Benjamin L. Cardin to Her Excellency
Hunaina Sultan Ahmed Al-Mughairy, Ambassador of the Sultanate of Oman on April 6,
2005; and a letter from Maqbool Ali Sultan, Minister of Commerce and Industry of the
Sultanate of Oman to USTR Robert Portman on May 8, 2006.
39 International Trade Daily, “Bilateral Agreements: House Democrats Again Press Oman
on Labor Laws Ahead of Free Trade Vote,” April 12, 2006; Washington Trade Daily,
“Ways and Means Approves Oman FTA,” May 11, 2006; Congress Daily AM, “Dems Urge
Slowdown On Trade Deals to Stress Labor Rights,” June 6, 2006; and news release from
Representative Charles B. Rangel on May 19, 2006.
40 Qaboos bin Sa’id, Sultan of Oman. Royal Decree 74/2006. Amending Some Provisions
of the Labor Law. See also July 12, 2006 Letter of Omani Ambassador Humaina Al-
Mughairy to USTR Susan Schwab summarizing its provisions,
[ h t t p : / / www.nftc.org/default/trade/meft a/ oman/ 071206% 20Oma n% 20l t r % 20t o% 20UST
Issues on Port Security
In the Spring of 2006, the U.S. interagency “Committee on Foreign Investment
in the United States” raised no objections to the acquisition and continued operation
of contracts by the Dubai-owned “Dubai Ports World” company from a British firm
that managed port facilities in several cities including New York, New Jersey,
Baltimore, New Orleans, Miami, and Philadelphia. After several members of
Congress expressed opposition to the $9 billion merger on the grounds that the
company might not be as vigilant on port security as required, the company agreed
to a 45-day review of its operations at those ports. On March 9, the House
Appropriations Committee voted 62-2 on a provision in the FY2006 supplemental
funding bill for Iraq and Afghanistan war operations and other costs that would have
effectively prevented DP World from operating in the United States.41 The following
day DP World officials announced that they would divest the newly-acquired U.S.
port operations to an American owner.42
The Oman FTA Provision
A provision in the Oman FTA became the focus of increased attention. Some
argue that this provision could obligate the United States to open up landside aspects
of its port activities to operation by companies such as DP World. Others argue that
the provision is not new to bilateral trade agreements, and does not change current
The provision, contained in Annex II of the U.S.-Oman FTA, addresses cross-
border services and investment in the area of transportation. More specifically, the
provision sets out two categories of transportation activities: those for which the
United States reserves the right to adopt or maintain any measures, and those
activities for which the United States does not reserve the right to adopt or maintain
any measures — those activities which are exclusions from the above list.
The list for which the United States reserves the right to maintain any measure
includes requirements for investment in, ownership and control of, and operation of
drill rigs, U.S. flagged vessels, fishing vessels; plus requirements related to
documenting a vessel under the U.S. flag, promotional programs, certification
licensing, and citizenship requirements, programs, certification licensing and
citizenship requirements, manning requirements, and all matters under the
jurisdiction of the Federal Maritime Commission.
The excluded list, for which the United States does not reserve the right to adopt
or maintain any measure, includes two categories of activities — one unconditional,
41 CRS Report RS21852, The United Arab Emirates (UAE): Issues for U.S. Policy, by
42 CRS Report RL33388, The Committee on Foreign Investment in the United States
(CFIUS), by James K. Jackson; and Weisman, Jonathan, and Bradley Graham, “Dubai Firm
to Sell U.S. Port Operations,” The Washington Post, March 10, 2006, p. A1.
and one conditional. The first category (a) is vessel construction and repair. On this
category the United States reserves no right to adopt or maintain any measure.
The second category (b), for which the United States waives its right to adopt
or maintain any of the listed measures on the condition that comparable market
access in these sectors is obtained from Oman, includes the following activities:
landside aspects of port activities including operation and maintenance of docks;
loading and unloading vessels directly to or from land; marine cargo handling;
operation and maintenance of piers; ship cleaning; stevedoring; transfer of cargo
between vessels and trucks, trains, pipelines, and wharves; waterfront terminal
operations; boat cleaning; canal operation; dismantling of vessels; operation of
marine railways for drydocking; maritime surveyors, except cargo; marine
wrecking of vessels for scrap; and shift classification societies.
Some in Congress argue that the provision excluding the above activities from
the U.S. government’s “right to adopt or maintain any measure” should be removed
from the agreement because it poses a potential security risk to the United States.
Others are arguing that the provision merely restates what is already the situation in
the United States, and is not a problem. The arguments on both sides follow.
Arguments in Favor of the Provision
Those arguing that the provision excluding certain activities from the U.S. “right
to adopt or maintain any measure” should remain in the agreement argue that:43
It Complies with Most Favored Nation Treatment Obligations. A
basic obligation of free trade agreements such as the U.S.-Oman FTA is the
obligation (subject to specified exceptions) to treat service suppliers and investors of
other parties no less favorably than the United States treats its own service suppliers
and investors. This provision meets those requirements.
Provision Exists in Other FTAs. This provision is already included in other
agreements, including the North American Free Trade Agreement (NAFTA), the
Dominican Republic-Central America Free Trade Agreement, and FTAs with
Australia, Bahrain, Chile, and Morocco.
Omani Companies Already Have this Right. Proponents argued that
Omani companies are presumably already able to acquire contracts for and perform
these services. Currently there are no U.S. laws that prevent either an Omani-owned
company or any other foreign-owned company from contracting with port owners to44
perform “landside aspects of port activities” in the United States.
43 Except as otherwise noted, these arguments are taken from Office of the USTR. Trade
Facts. Free Trade Agreements and the Supply of Services at U.S. Ports, June 2006.
44 CRS general distribution memorandum, Legal Issues Related to the Proposed Oman Free
Trade Agreement and Port Security, by Todd Tatelman, July 18, 2006, p. 2.
Coast Guard Protection Exists. The U.S. Coast Guard and Customs and
Border Protection play an integral role in ensuring security at U.S. ports; and nothing
in the agreement amends or diminishes the authority of these agencies.
No Omani Companies Are Currently Interested in U.S. Port
Operations. While Oman already provides market access to U.S. service suppliers
and investors, the USTR is not aware of any Omani companies that are currently
involved in any U.S. port operations or that might be interested in such operations in
However, If They Were, the “Essential Security” Exception Would
“Fully” Protect the United States. According to proponents, if an Omani
company were to express such interest in the future, the “essential security” (or
“national security”) exception (explained below) could arguably be invoked to
“fully” protect U.S. national security needs.
The United States Could Deny FTA Benefits to Owners of a “Shell”
Operation; to Businesses Whose Owners Were Nationals of Countries
Subject to U.S. Sanctions; or to Any Potential Investment Pursuant to
the “Essential Security Exception” Described Below. If non-Omani
persons set up an enterprise in Oman that was merely a “shell” — i.e., that was
engaged in no substantial business activities in Oman — and that enterprise sought
to make an investment in the United States, the FTA contains specific language that
would arguably permit the United States to deny the FTA’s investment-and services-
related benefits to that enterprise. Moreover, even if the enterprise set up in Oman
had “substantial business activity” in Oman, the United States could deny FTA
benefits to it if its owners were nationals of countries subject to U.S. sanctions.
Finally, the U.S. government retains the authority to block any potential investment
pursuant to the “essential security” exception described below.
The “Essential Security” Exception Offers Protection. Chapter 21 of
the U.S.-Oman FTA contains several exceptions to the agreement. Article 21.2
addresses “essential security” and provides that:
Nothing in the agreement shall be construed: (a) to require a Party to furnish or
allow access to any information ... which it determines to be contrary to its
essential security interests; or (b) to preclude a Party from applying measures it
considers necessary for the fulfillment of its obligations [for] the maintenance or
restoration of international peace or security or the protection of its own essential
An “essential security” exception has been included in all U.S. trade agreements
dating back to the 1947 General Agreement on Tariffs and Trade (GATT). The
United States, among other countries, has consistently interpreted this language
(worded similarly to Article 21 of the U.S.-Oman FTA) to be self-judging, and
therefore that national security matters are not appropriate for adjudication in a third-
party dispute settlement mechanism. In other words, under these provisions it can be
argued that nothing in an agreement can prevent the United States from applying
measures that it considers necessary for the protection of essential security interests.
Moreover, proponents will argue that review of national security claims by
international tribunals are without precedent and are highly unlikely because,
arguably, no tribunal would accept jurisdiction over the question of what constitutes
a country’s “national security.”45
The Exon-Florio Amendment Offers Additional Protection for
“National Security” Issues. In addition, U.S. law — in particular the Exon-46
Florio Amendment to the Defense Production Act of 1950 — authorizes the
President to block proposed foreign investment in the United States that threatens
national security. The President has delegated to the interagency Committee on
Foreign Investment in the United States (CFIUS) the responsibility to continuously
monitor foreign investment in the United States to ensure against threats to national
security; and a CFIUS review could still be performed at the discretion of CFIUS.
While it is theoretically possible for Oman to bring a legal challenge to the actions
of the United States before a third-party tribunal, proponents argued, the United
States would appear to be on solid legal grounds for asserting not only that the panel
does not have the legal authority to determine the validity of such a matter, but also
that the inconsistent measure is permitted and justifiable given the broad “self-
judging” language of the national security exception.47
Arguments Against the Provision
Those arguing that the exception provision of Annex II should not have been
included in the U.S.-Oman FTA argue that such a provision could pose a serious
threat to Congress’ ability to ensure the security of U.S. port infrastructure. Specific
arguments against the provision are as follows:48
The Specific Commitments in Annex II Raise Significant National
Security Concerns, Opponents Argue. This is because language in Annex II
regarding landside port operations introduces new rights of establishment for foreign
companies to own sensitive U.S. infrastructure. These FTA provisions arguably
subject U.S. laws or policies (whether enacted by Congress, the Executive, or the
States) that restrict foreign ownership to a challenge in dispute resolution and/or to
suit under the investor-state enforcement provisions.
The United States Will Be Required to Offer Oman the Right to Bid
to Operate at U.S. Ports — the Very Activities About Which Congress
Expressed National Security Concerns During the Dubai Ports World
Debate. Under the FTA, this right is conditional upon obtaining comparable market
access in this sector from Oman. However, this right covers the very port activities
45 CRS general distribution memorandum, National Security Issues and the Proposed U.S.-
Oman Free Trade Agreement, by Todd B. Tatelman, July 19, 2006.
46 P.L. 100-418, Title V, Subtitle A, Part II (50 USC appl 2170). See CRS Report RL33312,
The Exon-Florio Test for National Security, by James K, Jackson.
47 Tatelman, July 18 and 19, 2006, op. cit, and USTR, Trade Facts, op. cit.
48 Except as otherwise footnoted, these arguments are from Public Citizen, Oman FTA
provisions that grant foreign investors the right to own or operate sensitive infrastructure
within the U.S. Memorandum from Lori Wallach, May 11, 2006.
about which Congress expressed national security concerns during the Dubai Ports
Annex II Language Goes Beyond U.S. Commitments in the WTO.
Generally, the service sectors to which the “right to establish” for foreign companies
applies in these FTAs is the same as the service sectors that the United States agreed
to in the 1994 WTO’s General Agreement on Trade in Services (GATS). However,
opponents argue, the Oman FTA adds to the U.S. commitments by specifically
including (or by not specifically excluding) “landside operations of ports.”
Opponents Also Argue that the WTO Text and Practice Says That
National Security Claims Are Theoretically Reviewable. The reason for
this, they argue, is that neither the GATT agreement nor the FTA expressly exempts
these provisions from review by an international tribunal.49
Under Annex II, the United States May Not Ban Enterprises of a
Party from Owning and Operating Covered Services. Nor can either
country limit the number or size of such services, or require specific forms of
ownership (i.e., require U.S. partners or require that it be a non-profit organization).
If the United States Took Action to Deny a Company its New Right
to Establish, Opponents Argued, It Would Be a Violation of the FTA, and
Subject to Dispute Resolution and Trade Sanctions.50 Under the FTA, such
disputes can be brought in two fora, both of which raise concerns:
In a Government-to-Government Dispute Resolution Fora, Judges
with a Narrow Trade Expertise Would Decide Between U.S. National
Security Needs and Trade Commitments. Government-to-government
dispute resolution cases are not heard in U.S. courts, but in three-person trade
tribunals under procedures agreed to in Article 20 of the FTA. In these cases, each
country in the dispute may select one “judge” from its country and these two
tribunalists would choose a third “judge” — from a list of trade experts provided by
each country. In such a scenario, “judges” with a narrow trade expertise and
perspective including non-U.S. individuals would be empowered to balance
competing U.S. interests — national security needs against U.S. trade commitments
— to decide which comes first.
In the Investor-State Dispute Resolution Fora, U.N. and World Bank
Tribunalists Would Be Empowered to “Second Guess” a U.S. National
Security Claim. Investor-state enforcement is enumerated in Chapter 10 of the
U.S.-Oman FTA. Under these provisions, even if the Omani government were not
49 House Ways and Means Democrats. “New CRS Report Raises New Nat’l Security
Problems ... Potential New Opportunities for Dubai Ports World.”
50 Public Citizen, Oman FTA provisions that grant foreign investors the right to own or
operate sensitive infrastructure within the U.S., by Lori Wallach, May 11, 2006; House
Ways and Means Democrats, “New CRS Report Raises New Nat’l Security Problems...
Potential New Opportunities for Dubai Ports World”; and the Honorable Byron Dorgan,
“Talking Points on Oman Free Trade Agreement.”
to initiate a case, an actual investor/company has the right to privately initiate its own
case against the United States. Such a case, if brought, would seek a judgement
requiring that the United States pay monetary damages equal to part of the expected
future profits it would be denied by an adverse U.S. action. The case would be
adjudicated by United Nations or World Bank tribunalists, who would be empowered
to “second guess” a national security claim, and possibly order the U.S. government
to pay the foreign company for its lost future profits.51
If the U.S. Were to Raise an “Essential Security” Exception After a
CFIUS Review, an FTA Panel Would Likely Deny the Exception. If the
U.S. were to raise the “essential security” exception included in Chapter 21, Article
21.2 as a defense before a trade tribunal and a CFIUS review had been completed
without a finding of a security threat (as in the case of Dubai World Ports), opponents
argue, there is no doubt that an FTA panel would not permit use of the FTA’s
“essential security” exception to excuse consequent government action that interfered
with the FTA investor right to establish port operations.
If a CFIUS Review Predetermined That an Acquisition Were Not in
the National Security Interests of the United States, this Would Not
Terminate an FTA Claim. However, the converse is not necessarily true: If a
CFIUS review did determine that an acquisition were not in the national security
interest of the United States, opponents argued, this would not terminate an FTA
claim. This is because the FTA sets out procedures for responding to validly raised
claims. Thus, even with a CFIUS review, it is argued that the United States would
still be required to respond in a United Nations or World Bank tribunal, essentially
requiring litigation on the “essential security” defense.
Outcome of a Congressional Vote on the FTA and
Potential Consequences If It Had Failed to Pass
Oman joins four other MEFTA countries with FTAs, and the proposed MEFTA
is now one-quarter of the way complete. An agreement with Oman could be a
pathway to create private sector jobs for Oman’s burgeoning population and a
gateway to more openness in the Middle East.
If Congress had not approved the U.S.-Oman FTA, any one of a number of
things could have happened. On one hand, Oman could have just continued trading
with the United States as usual. On the other hand, Oman could have looked
elsewhere to countries such as China, Russia, or India for support in diversifying
beyond the production of oil which could run out in roughly 15-20 years.
In addition, had the U.S.-Oman FTA not been approved, there might have been
broader implications. For example, Oman has been letting the United States use
several military facilities. While many argued that it would have been be in Oman’s
interest to continue to cooperate with the United States military, Oman might have
51 See also, House Ways and Means Democrats, op. cit.
been tempted to put further restrictions on the U.S. use of these facilities. Oman
might also have shrunk back from its cooperation on counterterrorism which is said
to have included sharing/providing tips on intelligence about possible Al Qaeda
suspects operating in the Persian Gulf or Oman itself.