Working papers show up continued yawning gaps

by Chakravarthi Raghavan

Geneva, 18 Nov 99 -- Trade Ministers of developing countries going to Seattle may be well advised to announce on arrival that they are not there to negotiate all these details, and the 3rd Ministerial should meet and adjourn with a mere procedural resolution to send the texts back to Geneva without any further commitment.

The new text, on everything except 'implementation' and 'agriculture' issued as working papers by the Chairman of the General Council where there are no texts, shows that no negotiators, in a ministerial 'green room' (co-chaired by Mike Moore and USTR Ms Barshevsky, or even one chaired by President Clinton) can even understand the details, and if they agree to anything their countries will be in trouble.

The working papers begins with para 25 (corresponding to the 19 Oct revised text), under the title "New Negotiating [Round]".

This perhaps sums up the nature of the entire text and its square brackets, meaning disagreement, and square-brackets within square-brackets.

Every WTO member talks of the 'mandated negotiations' under the Marrakech agreement -- but neither the implementation or agriculture issues where there are such fundamental divergences figure or are mentioned (excepting in the Chairman's covering letter).

And even those issues that do figure, have not in fact produced any convergence among the participants in the 'green room'.

One trade diplomat who has been following the 'green room' process said that in some areas, some square brackets have been removed and some of the earlier texts where alternatives and formulations had been dispersed all over the pages (of the previous version) have now been presented in one place with the old para numbers, and this facilitates understanding of the alternatives.

But nothing of real substance has been resolved, he said.

And in at least one area, on the face of it, some of the criticisms and formulations that apparently figured in the consultations, such as in 'market access for non-agricultural goods' where the issue of the very regressive 'specific duties' and their conversion into 'ad valorem' duties had been raised do not figure excepting as a square bracket text and part of an issue to increase transparency.

The heavily-square bracketed text shows there is still the effort to launch a new round as a "single undertaking" -- to launch, conduct and conclude the negotiations, and to be "adopted as a package and apply to all WTO Members".

Perhaps, some incompatibility with the Vienna Law of Treaties, or the WTO Agreement? Perhaps, it is covered by the dictum of the old GATT (proclaimed by the EC in the course of the Uruguay Round Negotiations on TRIPS) that "everything is possible among consenting adults in the GATT."

And the 'development round' has now some development objectives of pursuing trade liberalisation and rule-making in line with "promoting development and eradication of poverty" and enabling developing countries "to reap the full benefits of the multilateral trading system."

But these development objectives, are sought to be qualified, by a square-bracketed text for promoting 'sustainable development', which as interpreted by the industrial world, and some of their international NGOs, is a case of the adjective ruining the noun.

Nor have the portions relating to the structure, organization and participation resolved anything. Only a formulation that the overall supervisory body would be a "Trade Negotiations Committee" established by the Seattle meeting to conduct negotiations "under the authority of the General Council" - a deference in form, but not in substance, to the WTO rule that when the Ministerial Conference is not in session, the General Council has all its powers.

In terms of the built-in agenda, there is a text on Services, with some of the same differences in the old texts remain, for example, about due respect for national policy objectives and levels of development of individual countries are still in square brackets.

And instead of the US proposal for a review of the existing GATS provisions and for changes, it now is to encompass "technical review" -- but since neither the GATS (nor the WTO) define 'technical' any thing can then be brought up including whether there should be a positive list or a negative list approach!

And the 'multi-functionality' of the services negotiations remains.

Another 'mandated negotiations' is under TRIPS - and the several proposals are still there in square brackets:

* for negotiations for multilateral system of notifications on geographical indications of origin under Art 23.4 (now covering only wines, and sought to be extended to spirits);

* another formulation for these and extending it to additional product areas, for protection of folklore IPRs, unification of patent procedures (first to file system and early publication of applications system, where the US practices differ from rest of the world) and, of course, 'multifunctional character of intellectual property'.

* a third for geographical indications, review of Art 27.3 (b) including reconciliation of TRIPS and CBD (opposed by the US and EC, and on which a large number of US and environment and development groups from around the world have sent a letter of protest to President Clinton); and

* a fourth for bottling up all these issues in the TRIPS Council for another 5-10 years at least -- a formulation for the TRIPS council to complete existing mandated reviews and negotiations and in due course to consider whether modifications of TRIPS are needed.

Under WTO rules to be the subject of negotiations, there are sub-paras or "bullets" covering anti-dumping, subsidies, technical barriers to trade, state trading, regional trade agreements, TRIMs, and "any other WTO rules which members agree to include." The formulations in some areas bring in one place the alternatives that others have suggested.

The proposals for review or agreed interpretation of Art.XVIII:B (BOP provisions) or Art XVIII, and particularly C, to enable developing countries to raise tariffs or set quotas to protect new industries or upgrading existing ones, do not figure -- presumably since they were raised under "implementation".

In respect of the Singapore issues, investment and competition still figure as issues for negotiations, including that of continuing the intensive educative and analytical process for upto two years prior to the substantive negotiating phase.

But in the same place, there is the separate formulation of paragraphs about continuing the study process, including some (opposed by the exporters of capital) for studying obligations of foreign investors to host countries, and those of home countries.

In the 'green room' the US and EC have opposed these.

But only neo-liberal economics can justify the protection of rights of investors by host countries and the right of home countries to take up the rights of these investors through the dispute settlement process of the WTO, but the home country has no obligation whatsoever -- say in a case like that of Union Carbide whose activities at Bhopal in India killed a known 10,000 in and around the factory, and made nearly a million or more sick with serious ailments - with neither Union Carbide in the US nor the US government accountable in any way.

There are similar alternative formulations -- for negotiations (but not involving anti-dumping and other state anti-competive practices) -- and for pursuing the study processes too, including a review of the WTO rules from a competition policy perspective (which may or may not include the anti-dumping issues).

On transparency in government procurement, there are formulations for negotiations to conclude an agreement -by 31 July 2000, 31 Dec 2000, or by the fourth Ministerial Conference - and specifying some of the elements to be included.

Even the list of elements shows that they are aimed at developing countries and their trillion dollar markets and foreclosing their own options. The elements include definition and scope of government procurement, procurement methods, publication of information on national guidelines and procedures, information on procurement opportunities, time periods, transparency of decisions on qualifications and on contract awards, domestic review procedures, "other matters" related to transparency, and bringing them under WTO dispute settlement procedures.

There are the alternative developing country formulations for merely continuing the work of the working group, with one alternative calling for a report to the 4th Ministerial Conference.

There are also formulations on trade facilitation (which in fact amount to bringing up under this heading some of the proposals and demands of the US and EC under customs valuation code of the Tokyo Round and the customs valuation agreement of the Uruguay Round).

The Coherence issue also figures, with formulations seeking to expand and extend the decision at Marrakech.

Also, figuring are formulations on proposals from the developing world on trade and finance and trade and debt, and for a working group on globalization and promoting greater coherence in economic and related policies.

Other texts with disagreements for part or whole include those on electronic commerce, measures in favour of LDCs, and technical cooperation. (SUNS4555)

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

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