Implementation issues again off WTO radar screens?
Geneva, Oct (Chakravarthi Raghavan) -- Judging by the many remarks of several protagonists, including at the UNCTAD Trade and Development Board (where senior WTO officials were conspicuous by their absence in the discussions on trade issues), there appears to be a danger that Implementation issues, inscribed on the WTO agenda at the insistence of developing countries, may once again get lost.
The record of the 55-year history of the old GATT, and now the WTO, shows that every time in any multilateral trade negotiations, developing countries raise issues or questions and get them on the agenda, they remain on the agenda, but are not pursued nor responded to by the majors or the secretariat leadership; and, at the end of the talks, as soon as the major developed countries get their way, the negotiations are concluded and the pending issues of developing countries are shoved on to a new work programme.
While there are many reasons for the failure of the Cancun talks, this accumulating feeling among developing countries, more so among the smaller and weaker and vulnerable economies, added up and contributed to their saying NO at Cancun.
The leadership at the WTO, and the majors reluctant to engage in good faith negotiations (realising that they may not be able to get their way easily), and some of USTR Robert Zoellick’s “can do” countries appear to be engaged in burying key developing-country issues once again.
Prominent among these issues, pending at least since the birth of the WTO, are the issues falling under the rubric of ‘implementation issues’ and the issues of ‘special and differential treatment’ (SDT).
Currently, the Chairman of the General Council, Amb. Carlos Perez del Castillo of Uruguay, and the WTO head, Dr. Supachai Panitchpakdi, are holding consultations (in the same way and processes that are responsible for the problems of the WTO, and the collapse of two ministerials) with a view to resuming the talks that collapsed at Cancun.
The informal ‘proceedings’ of the informal Heads-of-Delegation (HOD) meeting, and the statements made there by Castillo and Supachai are at best approximations to what will be discussed in the informal ‘underground’ discussions and the linkages and ‘prices’ sought to be exacted by the majors for the resumption of talks. All that seems clear is that the consultations will start with agriculture, and then deal with cotton, NAMA and Singapore issues. There are still references to the ‘development’ issues on the agenda, but these are too vague.
Perez del Castillo who is giving press interviews, in particular to the Spanish media (but has not had a general press conference open to all the media, and not merely to those invited by the WTO media office), has indicated that he will hold these ‘consultations’ on agriculture, cotton, industrial tariffs and the Singapore issues.
In the way that these four “items” are being talked about together, including by other trade diplomats, there is an implication of sorts that as a price for restarting the talks, the developing countries have to pay a price, a “blackmail price”, for taking all the four Singapore issues off the table.
Of equal, if not more concern, is that other important developing-country questions, in particular, the Implementation Issue (and in a sense its off-shoot, the SDT questions) don’t seem to figure at all; and it is not clear whether any of the developing-country envoys have asked Perez del Castillo about it.
With the periodic, and sometimes frequent, change of trade envoys and policy-level officials in capitals, there is both a sense of deja vu and misunderstanding on the history of the Implementation questions, as well as the implications of their being relegated again to further or future work programmes or buried among the many items cluttering the agenda of the General Council.
Some new trade envoys, negotiators and officials, for some of the countries of the South, as well as some of the officials at international secretariats, seem to be of the view that the Implementation issue, and one of its outcomes at Doha, the Special and Differential Treatment (SDT) issue, were just tactical issues raised to fend off the North’s demands.
Nothing can be farther from the facts of the past, and these facts will refuse to go away.
It is worthwhile to understand the history of the ‘Implementation’ issue at the WTO - since the signing of the agreement to establish the WTO at Marrakesh in 1994, since 1995 when the WTO came into being, and then the first Ministerial Conference at Singapore in 1996.
The Uruguay Round (UR) negotiations, which resulted in the establishment of the WTO (on 1 January 1995), were admittedly the most complex and far reaching multilateral trade negotiations ever undertaken (and involved not merely traditional issues of trade across the border, but a large number of issues of inter-state relationships in areas that went beyond trade into economic relations, and now reaching into social and cultural relations, where a dominant global view to benefit major corporations is sought to be forced on the rest of the world).
During the entire course of the UR negotiations, very few developing countries (whether governments or their parliaments, leave aside their businesses and the public and other stakeholders), or even many in the developed countries, were aware of the issues being negotiated and the implications of any agreements that may be evolved.
Many developing countries became conscious of the enormity of the obligations undertaken by them soon after the WTO came into effect. Even at Marrakesh they were not fully aware; at that point of time, even some of the tariff negotiations between the majors and several developing countries, including the least developed, had not been held or completed .
During the preparatory process for the first Ministerial Conference (held in Singapore in December 1996) many developing countries highlighted the problems they were facing with regard to the different agreements and in particular argued that in respect of two major sectors of importance to them, namely, Agriculture and Textiles, there was hardly any liberalization.
They were first sought to be swept aside. With Sir Leon Brittan, the EC Trade Commissioner by that time conveying to the Singapore hosts and the WTO leaders, privately, that the price for ensuring the presence of Ministers like him at Singapore was the possibility of discussing and including the new issues (that later became the Singapore issues), and with the US wanting to bring in labour and environment questions, the implementation problems of the developing world might almost have disappeared in the waters around Singapore.
At the Singapore conference, the developing countries and their ministers raised the Implementation issues in their speeches at the Ministerial, often to near empty halls, while the majors first cooked up their Information Technology Agreement, and then got the Singapore Minister and the WTO Director-General to hold a series of ‘green room’ meetings which were never acknowledged, and with many of the ministers present at the WTO for the first time not even being aware of the meetings or where they were taking place. Some of the media and the NGOs at the conference knew more than the generality of delegations. So much so, that several of the developing-country delegations sent their officials to the NGO briefing sessions to learn about what was going on.
When it became clear that the implementation concerns raised by the developing countries could not be swept under the carpet, two different paragraphs were included in the Singapore Ministerial Declaration. However, at least in retrospect, it is clear that while developing countries accepted this in good faith, the majors were guilty of bad faith negotiations, since they had had no intention of abiding by their commitments in adopting the final declaration.
Para 10 - Implementation: “We attach high priority to full and effective implementation of the WTO Agreement in a manner consistent with a goal of trade liberalization. Implementation thus far has been generally satisfactory, although some Members have expressed dissatisfaction with certain aspects. It is clear that further effort in this area is required, as indicated by the relevant WTO bodies in their reports”.
Para 13- Developing Countries: “We acknowledge the fact that the developing country Members have undertaken significant new commitments, both substantive and procedural, and we recognize the range and the complexity of the efforts that they are making to comply with them.”
At media conferences at the end of the Singapore meeting, the majors, the WTO head and the Singapore Chairman, sought to create the impression, both in what they said and did not, that the Ministers had addressed the implementation concerns, and that was that.
However, the issues and concerns did not disappear, and with the gradual implementation of the details of the Marrakesh agreement, the problems, concerns and the disappointments of the developing world became clearer and came to the fore.
During the preparatory process for the second Ministerial Conference (held in Geneva in May 1998), the developing countries repeatedly highlighted their implementation-related concerns. They were asked to clarify what exactly their concerns were. The developing countries pointed out that their concerns relating to “Implementation” fell under three categories - (1) non-realization of anticipated benefits from some of the agreements (eg. Agreement on Agriculture, AoA, and the Agreement on Textiles and Clothing, ATC); (2) obvious imbalances and asymmetries in some of the agreements (eg. Anti-dumping Agreement, Subsidies and Countervailing Duties Agreement and the TRIPS Agreement); (3) non-operational and non-binding nature of the special and differential treatment (S&DT) provisions contained in various agreements.
The Geneva Ministerial Declaration , as a result, provided for evaluation of the implementation of individual agreements. However, at the end of the meeting, and in press conferences, the issue was sought to be belittled and dismissed. The USTR, Mrs Charlene Barshevsky, who took over the chair of the next Ministerial Conference, responded to a question with the casual remark “You implement your obligations and we will implement ours.” But the derisive way this was received by some of the developing-country media, and even some of the ambassadors, who were sitting at the back of the press conference, showed for those who had the ‘eyes’ to see that it would not disappear so easily.
In para 8 of the Geneva Declaration, it is stated: “When we meet at the Third Session we shall further pursue our evaluation of the implementation of individual agreements and the realization of their objectives. Such evaluation would cover, inter alia, the problems encountered in implementation and the consequent impact on the trade and development prospects of Members”.
However, this evaluation was never undertaken.
Para 9 of the Geneva Ministerial Declaration, while establishing a preparatory process for the third Ministerial Conference, lists various elements of the future work programme of the General Council. The first element relates to the “Issues, including those brought forward by Members, relating to implementation of existing agreements and decisions.”
The second element relates to mandated negotiations under the existing agreements and the third element relates to mandated reviews etc. under the existing agreements. The other elements of the work programme relate to other possible future work on the basis of the work programme initiated at Singapore, follow-up to high-level meetings on least developed countries (LDCs) and other matters proposed and agreed to by Members concerning their multilateral trade relations.
The Geneva Ministerial Declaration in fact lists implementation-related issues and concerns as the first item of the work programme.
The preparatory process for the third Ministerial Conference (Seattle, November-December 1999), commenced during September 1998. In the first phase of the preparatory process, developing countries made statements highlighting the implementation-related issues and concerns. The response of the EC was that all these concerns can be looked into in the context of a wider round of negotiations. The US took the stand that addressing implementation- related issues and concerns would result in a change of balance of rights and obligations arrived at during Uruguay Round negotiations. Both delegations implied that for redressal of implementational issues and concerns, developing countries have to “negotiate” and pay a price.
The developing countries pointed out that they are not seeking to rewrite Uruguay Round agreements and that they are only demanding removal of inequities and imbalances inherent in some of the existing agreements and also that in sectors like textiles and agriculture there should be meaningful liberalization by developed countries. They pointed out that for removing imbalances and inequities in the existing agreements and for realizing the benefits promised to them in some other agreements, they cannot be expected to pay an additional price. Their position was that they have already paid an enormous price in the Uruguay Round negotiations without getting commensurate benefits.
However, both the EC and US continued to maintain their rigid stand. In the second phase of the preparatory process, developing countries were asked to give written proposals with regard to the implementation issues and concerns and this was done. In the third phase of the preparatory process developing countries were asked to summarize their proposals in the form of key sentences and this too was done.
There was pressure on the then Chairman of the General Council (Amb. Ali Mchumo of Tanzania) not to include any reference to implementation-related issues and concerns in the draft Ministerial Declaration. In fact there is some evidence to suggest that when Mchumo included some references in the draft he put forward on his own responsibility, these got removed from the text that was issued. It is not very clear how this was done. However, quickly, a Rev.1 of the draft ministerial text was brought out by the Chairman on 20 October, 1999 in which all the implementation-related issues and concerns were given in bullet form with an indication that there was no consensus on these proposals.
During the Seattle Ministerial Conference the developing-country Members sought a meaningful resolution of implementation issues and concerns raised by them. The Seattle Conference broke up in disarray and there was no Ministerial Declaration. It has been sought to be made out that the collapse was due to street protests. This may have contributed to the atmosphere inside, but the failure was due to causes inside, a lesson that was not learnt at Cancun either.
During the Seattle conference, the majors tried to promote their agendas and roll them into a new round of negotiations, and several limited consultations and ‘green rooms’ were held (excluding most of the membership), towards this end. The conference was so conducted that it was difficult to make out when Mrs Charlene Barshevsky was functioning as Chair of the conference and when she was functioning as USTR and leader of the US delegation.
It was in this situation that on the final day, a large number of the smaller countries (excluded from decisions that would create new obligations for them, and not knowing what was being done behind their backs) decided to call a halt. It was this, and the certainty that they would say NO, that resulted in a situation when the final plenary meeting was called, and the meeting ended without even a formal decision to end the conference. The statement of the Chair was not available for days officially from the WTO, with some unbelievable specious explanations - as the US and the WTO head tried to see whether something could be put out as a decision, but thought better of it.
Majors show ‘bad faith’ in negotiations on Implementation issues
After Seattle, and the General Council decisions (May 2000) on ‘Confidence building measures’, which too remains largely unimplemented, the issues came up again during the preparatory process for the fourth Ministerial Conference (Doha, Qatar, November 2001). During the preparatory process, developing countries once again pressed for resolution of implementation-related issues and concerns. The General Council decided on 3rd May 2000 to assess the existing difficulties, identify ways needed to resolve them and take decisions for appropriate action no later than the fourth session of the Ministerial Conference. Notwithstanding this decision, the US and EU were in no mood to find meaningful solutions to implementation-related issues and concerns and therefore the progress was slow and tortuous.
On 24 July 2001, the Chairman of the General Council (Mr. Stuart Harbinson of Hong Kong China) gave a report to the General Council in which he indicated inter alia that progress at that stage in achieving concrete results have not been as rapid as might have been hoped and that the proposal submitted by a group of six countries was likely to energize the process. On 26 September 2001, the Chairman submitted a draft decision on implementation-related issues and concerns for the consideration of the Membership. Both the US and EU refused to agree to this draft.
In September 2001, within a few days of the 11 September terrorist attacks in New York and the Pentagon, the USTR and the EC Trade Commissioner quickly joined hands to exploit the international atmosphere to launch a new round of trade negotiations at Doha.
Early in October 2001 (in the aftermath of 11 September and in the manner in which the USTR and the EC Trade Commissioner joined hands to use the post-11 September atmosphere, and the impending war on the Taliban in Afghanistan, for their own ends) it became clear to the developing countries that in spite of the General Council decision of 3 May 2000, there will be at best a resolution of only some of the implementation issues at the fourth Ministerial Conference. At the same time, it also became clear that negotiations will be launched at Doha on a number of subjects, mandated or otherwise. The developing countries were deeply concerned about the fate of a large number of implementation issues on which there was no progress at all. They were anxious that no implementation issue should go off the table. Therefore, in spite of their earlier stand for about three years that implementation issues should be solved without their having to pay a further price by negotiating these issues, they reluctantly agreed to a formula under which all outstanding implementation issues and concerns will be negotiated as part of the single undertaking.
On 27 October 2001, the Chairman of the General Council brought out a draft decision on Implementation-related issues and concerns and also a compilation of outstanding implementation issues (JOB(01)/152/Rev.1) raised by Members. At about the same time, consensus was reached on the Para relating to Implementation in the draft Doha Ministerial Declaration (this appears as Para 12 in the Doha Ministerial Declaration).
This paragraph reads: “Implementation-related issues and concerns”
“12. We attach the utmost importance to the implementation-related issues and concerns raised by members and are determined to find appropriate solutions to them. In this connection, and having regard to the General Council Decisions of 3 May and 15 December 2000, we further adopt the Decision on Implementation-Related Issues and Concerns in document WT/MIN(01)/17 to address a number of implementation problems faced by members. We agree that NEGOTIATIONS (emphasis added) on outstanding implementation issues shall be an integral part of the Work Programme we are establishing, and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph 47 below. In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this declaration, the relevant implementation issues shall be addressed under that mandate; (b) the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee, established under paragraph 46 below, by the end of 2002 for appropriate action.”
By this paragraph, in the first sentence, the commitment to find solutions to all implementation-related issues is reiterated. The second sentence refers to the adoption of a decision relating to some of the implementation-related issues. (WT/MIN/(01)/17). The rest of the paragraph i.e. the third and the fourth sentences refer to the manner in which the outstanding implementation issues (listed in JOB(01/152/Rev.1 dated 27 October 2001) are to be dealt with. The operative portion here is that NEGOTIATIONS on outstanding implementation issues shall be an integral part of the work programme being established. The word used is “Negotiations”.
And the Vienna Law of Treaties, a codification of customary public law in the international arena, often cited by the WTO Dispute panels and the Appellate Body, requires “good faith” in negotiations. And even the WTO can’t claim it could ignore this.
The second element to be borne in mind is that agreements reached at an early stage shall be dealt with in accordance with para 47 of the declaration. Para 47 provides that except for DSU negotiations, the conduct, conclusion and entry into force of all other negotiations shall be treated as a part of the single undertaking. Para 47 also provides for early harvest wherever it is possible. The fourth sentence of para 12 deals with the forum in which outstanding implementation issues will be addressed. It is provided that where a specific negotiating mandate is provided for in the declaration (example anti-dumping, subsidies, agriculture, etc.), the relevant outstanding implementation issue will be addressed under that mandate.
Other outstanding implementation issues are to be addressed in the relevant WTO bodies and they shall report to the Trade Negotiations Committee. It is absolutely clear from the structure and language of para 12 of the declaration that all outstanding implementation issues will be “negotiated” as a part of the single undertaking. This is further reinforced by the fact that even those outstanding implementation issues which are not covered by a specific negotiating mandate will be finally dealt with by the Trade Negotiations Committee.
According to the former Indian ambassador to the WTO, Mr. S. Narayanan, the then Chairman of the General Council (Stuart Harbinson of Hong Kong China, now chef de cabinet to the WTO head, Dr. Supachai Panitchpakdi) had categorically stated that the draft (which became the final declaration as well) provides for negotiations on outstanding implementation issues, and that the report of the bodies which would be considering those outstanding implementation issues not covered by a specific negotiating mandate will be to the Trade Negotiations Committee. Several other trade envoys consulted by SUNS said that this was also their clear understanding that all outstanding implementation issues will be negotiated as part of the single undertaking.
In fact, the sentence in paragraph 8 of the declaration stating that issues relating to the extension of the protection of geographical indications provided for in Article 23 (of the TRIPS Agreement) to products other than wines and spirits will be addressed in the Council for TRIPS pursuant to paragraph 12 of the declaration was clearly understood and hailed by all the delegations pressing for negotiations on geographical indications for products other than wines and spirits as providing for negotiations that they were demanding and that these negotiations will be part of the single undertaking.
Many developing-country delegations had one concern regarding the language of Para 12. Para 12 referred to the decision on implementation-related issues and concerns being adopted through WT/MIN(01)/W/10 and provided for a mechanism to deal with outstanding implementation issues listed in Job(01)/152/Rev.1 dated 27 October 2001. These delegations had reconciled themselves to “negotiate” outstanding implementation issues as provided in Para 12. However, these delegations were concerned that most of the decisions being adopted in document WT/MIN/(01)/W/10 were not final solutions and in most cases it involved referring the matter to different WTO bodies, eg S&DT Issues to CTD, Article 15 of the Anti-dumping Agreement to the Committee on Anti-dumping practices, etc. The developing-country delegations were wondering as to what would happen if the relevant bodies did not find final solutions to these issues within the time frame provided.
Their anxiety was that since these issues were not formally in the compilation of outstanding implementation issues JOB(01)/152/Rev.1 dated 27 October 2001 (these issues having been optically treated as issues on which decisions have already been taken), they may fall off the table without any final effective solution. Many developing-country delegations raised this concern with the then Council Chairman. Narayanan recollects that the General Council Chairman (Mr. Harbinson) promised to handle this concern in a meaningful way so that issues referred to different WTO bodies also become part of negotiations, in case the bodies concerned fail to find meaningful solutions for these issues within the time frame provided.
During the Doha Ministerial, the Indian delegation repeated this particular concern of developing countries to the Swiss Minister for Trade and Economy, who was given the responsibility to look into implementation issues at Doha. [The Swiss Minister was being assisted by officials of the Swiss delegation at Geneva and they understood the point being made that it would be absurd to let issues in respect of which optically decisions were being taken in the Ministerial Conference (without substantive resolution) to go off the table while other outstanding implementation issues were being made part of the single undertaking negotiations]. In order to meet this concern, and since it was not considered politically wise to change the draft declaration itself, the Chairman of the Ministerial Conference, in the statement made while adopting the draft decision on implementation-related issues and concerns in document WT/MIN(01)/W/10, stated as follows:
“Finally I should like to propose that the Ministerial Conference adopt the draft Decision on Implementation-Related Issues and Concerns in document WT/MIN(01)/W/10.
“With regard to the outstanding implementation issues, I would like to recall the cover letter of 5 November 2001, sent to me by the Chairman of the General Council and the Director-General, which accompanied the draft decision on implementation. It states that the draft decision proposes immediate action on a number of implementation issues, and provides that remaining issues, which include those referred to WTO bodies as well as those listed in their completion (probably a typing mistake for the word compilation) will be addressed in the course of the future work programme in accordance with paragraph 12 of the draft ministerial declaration”.
The Chairman’s statement thus indicates that remaining issues, which include those referred to WTO bodies (in terms of WT/MIN.(01)/W/10) as well as those listed in the compilation (JOB(01)/152/Rev.1) will be addressed in terms of Para 12 of the Ministerial declaration. A number of issues have been referred to subordinate bodies through the decision on implementation-related issues and concerns. Thus it is clear that those issues which are referred to different WTO bodies on the basis of the decision in document WT/MIN(01)/W/10 and which do not get resolved within the time frame provided for have to become part of the negotiating package in terms of Para 12 of the declaration, in addition to the issues listed in the compilation of outstanding implementation issues. (JOB(01)/152/Rev.1).
In view of this, the implication of Para 12 of the Doha Declaration read with the statement of the Chairman at the time of adoption of the draft decision on implementation-related issues and concerns is that the outstanding issues listed in the compilation (JOB(01)/152/Rev.1) as well as issues which do not get finally resolved by the relevant WTO bodies to which they have been referred to on the basis of document WT/MIN.(01)/W/10 have to become part of the negotiating package and part of the single undertaking.
It appears that the efforts of the US and some other Members during the post-Doha process has been to undermine the mandate of Para 12 of the Doha Declaration. Their main concern appears to be to prevent negotiations on geographical indications for products other than wines and spirits. However, their attempt to subvert a Ministerial mandate on an important subject like implementation, which has been hanging fire for more than four years now should not be allowed to go unchallenged. The implication of their stand is that developing countries cannot find solutions to their implementational issues and concerns either as self-standing issues or as negotiating issues. Developing countries were told for more than four years that they have to “negotiate” their implementation issues and concerns and now, two years after developing countries agreed to negotiate these issues, they are told that these issues cannot be negotiated either.
Viewed against this background, the language relating to implementation contained in the first draft of the Cancun Ministerial text put out by the Chairman of the General Council, Amb. Carlos Perez del Castillo of Uruguay, was extremely unfair to developing countries - a sad commentary on the General Council Chair who comes from a developing country, and the WTO head (Dr. Supachai Panitchpakdi) who would not have got this job, but for the fight put up by developing countries in 1999.
The language used in the first draft for Cancun - Job (03)/150 of 18 July 2003 - is a complete negation of the Doha mandate. The second draft - Job (03)/150 Rev. 1 – put out by the Chairman of the General Council is perhaps an improvement. However, the second draft in its present form could be used by some delegations to rewrite the Doha mandate.
The first problem is that the last sentence of the draft provides “The General Council shall review progress and take any appropriate action no later than ..” In the Doha mandate the authority was entirely with the TNC whereas the General Council Chairman’s draft, while reaffirming the Doha mandate, creates confusion by asking the General Council to review the progress. The second problem is that this text by requesting the Director-General (DG) to continue his consultations on the subject of geographical indications for products other than wines and spirits weakens the Doha mandate.
The DG consulting on a subject matter with a view to facilitate consensus has become a routine process in the WTO. If that be so - anyone denying it would invalidate all that has been happening so far - there surely is no need for any reference in a Ministerial Declaration to the DG’s consultation on a particular subject.
The reference to consultation by the DG in this draft should be viewed against the backdrop of the categorical sentence contained in para 18 of the Doha declaration. The obvious implications of the Doha text is that there will be negotiations on geographical indications for products other than wines and spirits as a part of the single undertaking. This commitment is weakened in the draft Cancun text by asking the DG to continue his consultations in the matter.
There is also an optical problem with the draft Cancun text. Implementation was dealt with as the first item under Para 9 relating to future work programme in the Geneva Ministerial Declaration. Again in the Doha Declaration, implementation was the first item to be covered under the work programme. Now in the draft Cancun text, there is a subtle attempt to downgrade the importance attached to “implementation”, by bringing the subject after covering a number of other subjects. This goes against the spirit of decisions adopted by the General Council and also the Doha Declaration giving highest priority to meaningful resolution of implementation-related issues and concerns.
Now that there is no Ministerial Declaration adopted at Cancun, the draft declaration relating to Implementation put out by the Chairman of the General Council (on his own responsibility) is no longer relevant and a piece of paper without any status. In the concluding statement at Cancun in the last paragraph there is a reaffirmation of the Doha declaration and there is a commitment to implement it fully.
It is clear that if developing countries are really serious about the assurances they have been providing to their Parliaments and the public and stake-holders back home on how they were persisting with these issues, they have to ensure NOW, in the post-Cancun period, that there is no attempt to dilute the Doha mandate on implementation. They need to insist that negotiations should commence straight away on all the outstanding implementation issues, (whether pending with subordinate bodies or listed in the compilation of outstanding implementation issues) as part of the single undertaking.
The para on implementation in the draft Cancun text presented by the Chairman of the General Council, ab initio lacked any status (despite some inherent authority that is not based on any rule of the WTO). And, since it had not been authorized by the membership before Cancun, it has even less status NOW.
After Cancun, a number of developing-country delegations in Geneva, at UNCTAD, and their ministers back home have made remarks that the WTO and its talks can no longer ignore civil society.
If developing countries do not take a stand now against attempts to move away from the mandate of Para 12 of the Doha declaration as supplemented by the statement of the Ministerial Conference, they will be exposed by civil society activists in their own countries and elsewhere. They need to take a clear position that if the implementation issues and concerns cannot be resolved either as self-standing issues or as a part of the negotiating package, the only option available to them would be to refuse to undertake any commitments in future on any subject in the WTO since they cannot change them even if their countries face insurmountable difficulties because of those commitments or even if the commitments are extremely inequitable. In any event Parliaments and stake-holders and even activist judiciary in countries will intervene in response to public interest litigations, since the WTO is trying to impinge even on judicial remits in countries.
The net outcome may well be that a rule-less, procedure-less WTO will become part of the dustbin of history - an outcome not to be looked forward to, though it may at some stage be viewed by the public as still better than the iniquitous and unjust system that the WTO now is.
(The above analysis/article - published in two parts in SUNS #5432 AND #5433 - deals with the ‘history’ of Implementation issues and questions in the brief 8-year history of the WTO, and brings out the ‘bad faith’ negotiating tactics of the majors, and the repeated attempts of the WTO leadership and the secretariat to bury these issues and not deal with them. The material is based on contemporaneous reports in past issues of SUNS, and information provided by some of the main participants in the Like-Minded Group of countries who had taken up these issues at the WTO.)