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THE MESSY WTO BECOMES MESSIER

by Chakravarthi Raghavan


Geneva, 17 Dec 99 -- The General Council of the World Trade Organization implicitly agreed Friday that the Seattle Ministerial Conference has ended, when the Council acted on the report of the working party on Jordan and accepted the protocol of accession and the schedule of commitments in goods and services.

Decisions on accession are vested under Art. XII.2 of the WTO agreement in the Ministerial Conference, and the General Council can act on the accession only in terms of its powers under Art. IV.2, enabling it to discharge all the functions of the Ministerial Conference in the intervals between meetings of the Ministerial Conference.

And whether or not any one raised it or challenged it, by acting on Jordan's accession, the General Council has in effect acted on the basis that the Seattle Ministerial has ended and until the next ministerial conference meets, the General Council can discharge all the functions of the Ministerial Conference.

Earlier, the special session adopted a swiss franc 127.7 million budget, and put off till January, any discussion of an agenda item, "Follow-up to the Seattle Ministerial Conference".

Neither the secretariat nor the chairman, Amb. Ali Mchumo of Tanzania, offered any clarification about the status of the Seattle Ministerial Conference, and most members appear to have tacitly agreed to put off the discussion to another meeting, in January or even early February, by when further consultations could help to clarify the situation and actions to be taken.

However, legal experts, including some within the secretariat, agreed privately that by the mere fact of taking up for consideration the report of the working party on the accession of Jordan and acting on it, the General Council has in effect decided the status of the Seattle Ministerial Conference, namely that it has adjourned and not been 'suspended', and that the chair of the Seattle conference has now no locus standi.

It would also mean that a special session of the Ministerial Conference (constituted of representatives of member countries, and need not have any ministers) may be held to complete the business of the 3rd Ministerial, namely, setting the date and venue of the 4th ministerial, and naming the chair and three vice-chairs of that meeting.

At the General Council, after a lengthy discussion, at an informal and formal session, on the situation that would arise as a result of various provisions of the multilateral agreements that may lapse or kick in on 1 January 2000, the chairman made a statement to the effect that these too would form part of the "consultations" on the follow-up to Seattle, and that meanwhile members would show restraint and not take any steps that might prejudice the consultations.

This was seen as a political, rather than a legal commitment, though at the insistence of the US, EC, Norway and Switzerland, wording was included in the Chairman's text to the effect that this was without prejudice to legal rights and obligations.

It was also agreed that the record would show the views of several leading countries that a reference to the legal rights and obligations was out of place in the context of a political commitment.

The text of General Council Chair Ali Mchumo's statement, made available to the media later said:

"As I have proposed, this meeting of the General Council will be adjourned and resumed as early as possible next year to take up item 3 of the Agenda. It is my understanding that the question raised by a number of delegations concerning the provisions which lapse and deadlines which expire on 31 December of this year will be part of the consultations to be continued. The General Council will therefore revert to these matters when it resumes early next year.

"It is understood that all Members will exercise restraint on the matters under consultation so as not to prejudice further fruitful discussion and decisions on these matters or the position of other Members.

"Members have made it clear that informal consultations are necessary on a wide variety of issues, including the issues of deadlines. Many Members urged understanding by all Members in those consultations, and they urged due restraint on the part of Members. This approach would be without prejudice to the position on rights and obligations of Members."

As one leading developing country participant put it, an outcome of the discussions Friday, and the various consultations that have preceded the meeting, was another strong signal to the major industrialized nations that the developing countries can't be pushed around.

And if issues (of transition periods etc) of interest to developing countries were in a state of limbo, so were others of interest to the industrialized world - whether it be the moratorium on tariffs on electronic commerce, or the Singapore study issues and working parties or other such elements of the WTO work programme.

And while any dispute raised on any of the agreements whose provisions (like the TRIPS non-violation issue) end on 31 December 1999, or other agreements whose transition periods end at that time cannot in any event come before the dispute settlement process (given the 60 day period for holding consultations), even moving in that direction would be an act of bad faith.

The entire exercise of the way the Seattle meeting was run and ended, and the way the post-Seattle mess was sought to be handled, clearly shows that as a result of the WTO and its annexed multilateral agreements, the developing countries are being brought under the grip of economic colonialism of the US and Europe, another participant said.

Many WTO officials and some former officials tried to shrug off the questions about the legality of the actions and violations of rules and procedures, with the argument that the issues were not legal, but political.

However, illegal actions of a rules-based organization, on the ground of politics and political expediency inevitably erode further the claims of legitimacy.

As of Friday, the WTO secretariat still seemed unable to provide the minutes of the official meetings, including that of the Committee of the Whole on the night of 3 December, with a new explanation that the tapes of that meeting (including the speech of Mrs. Barshefsky at that meeting) was in a missing baggage that had now been 'traced' to Arizona in the United States.

The formal and informal discussions on the follow-up to the Seattle Ministerial brought up the murky legal situation about the conference and its end and implications, but with most delegations appearing to agree that this required more consultations.

A decision on the accession of Jordan was one of the items for Ministerial action set for Seattle, but which was not acted upon when the chairperson of that Conference, Mrs. Charlene Barshefksy announced the suspension of that conference, without even acting on this issue.

As a result of the General Council decision Friday, Jordan would be able to sign the accession terms, and become a member 30 days after it ratifies the accession protocol and signs the protocol. (SUNS4576)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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