Doha deadlines on developing-country issues will be missed
It was a case of “confusion worse confounded” with regard to developing-country issues when WTO members met recently to evaluate the state of play of ongoing trade talks. While the meeting registered no progress in meeting a yearend deadline to resolve the implementation issues, there have also arisen suggestions that these longstanding grievances of Third World members on inequities in executing WTO rules are now a source of apparent “confusion”!
by Chakravarthi Raghavan
GENEVA: A three-day meeting of the WTO’s Trade Negotiations Committee (TNC) ended on 6 December evening after hearing reports of very uneven progress on various parts of the negotiating mandates of the “Doha Development Agenda” (DDA), and more so on the issues of priority for developing countries including the implementation issues and the special-and-differential-treatment (SDT) questions, where deadlines are again going to be missed.
In a parallel track, but not part of the Doha agenda, the Mexican Chairman of the WTO’s TRIPS Council, Amb. Eduardo Perez Motta, has been holding consultations on implementing a specific mandate (paragraph 6) of the Doha Ministerial Declaration on the TRIPS Agreement and Public Health. He is attempting a new ukase and taking a negative-consensus approach, arguing that anyone wanting changes in his 24 November draft (which had been rejected in his earlier consultations) would need to find a consensus for the changes. Following his consultations, he was due to report to the General Council in the week of 9 December. (See TWE #294 and #295 for the background to and earlier developments on this issue.)
Meanwhile, the US Trade Representative’s office has been trying to bring pressure to bear on African capitals to yield to the US position on paragraph 6.
These tactics, as well as those of the EC and Japan, have only helped to make more developing countries come out against the Chairman’s text, and have outraged civil society health campaigners and non-trade parts of various governments.
At the end of the TNC meeting on 6 December, in his summing-up on the implementation issues, the WTO Director-General Dr. Supachai Panitchpakdi, who chairs the TNC in his personal capacity, asked members to reflect over the yearend break, and said that he himself would hold consultations in the New Year to seek solutions.
Responding to a question from Brazil, Supachai agreed that all the implementation proposals remained on the table. The question was perhaps prompted by the view of Canada at one stage that those implementation and other such issues not having a consensus should fall off the table.
Supachai’s response that the proposals have not disappeared perhaps may be reassuring. However, very disquieting for the developing-country members were remarks of members of the Quad (which comprises the US, the EC, Japan and Canada), and even more so of Supachai himself, which left the impression that the compromises struck at Doha on developing-country issues that have been on the WTO agenda since 1998, if not 1996, are being repudiated or swept under the carpet by the major industrial countries and the WTO - even though the language of the Doha declarations on these issues is clear enough.
At a press conference on 6 December afternoon by Supachai, the media office distributed a copy of his concluding remarks on agenda item 1 of the TNC meeting (reports from chairpersons of the various negotiating bodies) but not on the implementation issues (agenda item 2).
According to trade diplomats at the TNC, in winding up the heated discussions on the implementation issues, Supachai appears to have said that he had thought that he was confused by the implementation issues. However, after hearing the views and the discussions, he realized that he was not alone in the hall.
If intended as a light-hearted remark or as an attempt at humour to break the tensions, it appears to have failed; not only many developing countries, but others who had been personally involved in the very intricate negotiations on these issues over the last 3-4 years, were surprised and upset.
However, more disquieting were the views about the “confusion” on implementation issues that had been voiced in a similar vein on 6 December (when the TNC began). The WTO’s spokesman briefed the media on record and said that though the TNC was on item one of the agenda, a number of delegations had raised their concerns over the implementation questions, which he pointed out had been on the WTO agenda since the Geneva Ministerial Conference in 1998 and had figured in the run-up to the 1999 Seattle Ministerial and then to Doha. And if journalists were confused, so were the members, he said.
The implementation issues first came up at the Singapore Ministerial in 1996 - in the form of developing-country complaints about bad-faith implementation by the major industrial countries of the WTO agreements (such as the phased and progressive manner in which the textiles and clothing sector was being liberalized), the non-realization of expectations and promises held out in the Uruguay Round negotiations (including on the SDT provisions of the WTO agreements), and the essential asymmetries of the Uruguay Round.
These issues were sought to be disposed of as having been dealt with in speeches at the plenary, and the US stand (voiced by then US Trade Representative Charlene Barshefsky) at the Geneva (1998) meeting was “’we implement our commitments, you implement yours [mostly obligations].” This did not wash either, and resulted in the Ministerial declaration that these will be considered and discussed and resolved.
The developing countries then formulated their detailed proposals on implementation under various heads. They were sought to be brushed aside, but ultimately found their way into the Seattle agenda as part of the draft Ministerial Declaration - where again the majors were in ‘denial mode’ and did not want to address them, thereby contributing to the Seattle debacle which yielded no final Ministerial Declaration.
After Seattle, it was decided to address the implementation issues as part of a “confidence-building exercise”, and the then chair of the WTO General Council, Amb. Kare Bryn of Norway, made a serious good-faith attempt and tried to persuade the industrialized world to deal with them.
Nothing happened, however; the proposals then became part of the preparatory processes leading to Doha. The EC was willing to put everything on the agenda as part of a comprehensive negotiating round in order to include the new “Singapore issues” (investment, competition, government procurement and trade facilitation), while the US, Japan and a few others were arguing that the implementation proposals would involve changes in the WTO rules and would need to be negotiated. However, some of them did not want to open up the WTO agreements for renegotiation. But when their own demands involved changes to the existing rules, it was difficult to refuse calls for talks on other changes.
Very reluctantly, the developing countries split some of their demands under implementation decisions requiring no more than implementing in good faith clear commitments already undertaken, and others where their expectations had not been met and there was a need to correct imbalances and asymmetries. The latter were formulated as specific proposals as part of new negotiations.
There was an attempt to refuse to allow them on the agenda during the “not-green-room” pre-Doha negotiations, which were in fact held at the WTO building. And at one stage the Brazilian envoy, Amb. Celso Amorim, got so exasperated at the stands of the US, Canada etc, and in effect told them that their stand would suggest bad faith and attempts to cheat, in first asking developing countries to formulate proposals for negotiations and then refusing to take them on board.
Ultimately, the issues were made part of the Doha work programme of negotiations. In paragraph 12 of the Doha Ministerial Declaration, the Ministers said: “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 questions faced by Members. We agree that negotiations 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. [Under paragraph 47, the outcome of the negotiations in the Doha work programme shall be treated as a “single undertaking. However, agreements reached at an early stage may be implemented on a provisional or a definitive basis.”] In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issue 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.” (“Doha Declarations” (2002), WTO, pp. 5-6)
Nothing, even in an English language noted for its ambiguities, can be clearer or plainer than this. The implementation issues and the SDT issues (of the past) have been put on a fast track to be completed by end 2002 and implemented as part of a single undertaking but as agreements reached at an early stage.
The specific issues proposing changes in rules etc on which there is a specific mandate (e.g., agriculture, services, TRIPS, etc) are to be addressed in the specific negotiating groups, and in each of these leading to future agreements SDT has to be factored in as an integral part of the negotiations and agreements to be reached.
Considering that the implementation proposals have been on the table since 1996 and 1998, and at every stage have been sought to be sidetracked by the majors, to now suggest that the issue is confused may have only one result: strengthen the hand of those who believe that the WTO and its system are unreformable and incurable.
Those pushing the “confusion” line and providing a misleading ‘history’ of the negotiations so far are not only ill-serving the WTO, the Director-General and the collectivity of the WTO membership, but also undermining the system and making a major contribution to its repudiation. For, without public support to carry out in good faith treaty commitments, no international system can survive.
On agriculture, Supachai at his press conference agreed that “some specificities” were needed from all the parties, more so by the majors, in formulating and agreeing on modalities for the negotiations by March 2003. His chef de cabinet, Stuart Harbinson, as chair of the special negotiating sessions of the Committee on Agriculture, is to formulate a first draft of a modalities paper by 18 December, to be considered from January and finalized w by end March.
The EC, and for that matter Japan etc, have not put forward any specific proposals for the modalities paper. The EC has promised a paper of its own before the end of December.
Supachai at his press conference spoke of the need for specificities from members for the modalities paper, and said he was pressing the EC to do so. The European Commission was working on its proposal and trying to be as specific as possible, he added. However, some of Supachai’s remarks, in effect relaying the views of the EC and some EU members, were very disquieting.
On the EC and its attempts to formulate proposals with some specificity, Supachai said: “One thing we have heard from our colleagues in Paris and elsewhere is that there may be some difficulties in time structures. It does not mean there would be no proposals. We are trying to see how everything could be fixed so that our time-frames will be compatible with theirs.
“The EU people are working in different areas and priorities: enlargement of the EU, the constitutional changes to the EU and the CAP [Common Agricultural Policy] reform. But we are suggesting that the work at the WTO on multilateral negotiations could go on in parallel.”
Asked whether the text to be put on the table by mid-December by Harbinson will have specificities from the EC, Supachai said that he was requesting a full level of specificity, but beyond that, the level of specificity would depend on the level of ambitions. “I cannot force anyone to do anything. I have tried to argue for a balanced approach ... the EU is fully committed to this agenda, as they were strong promoters of the Doha agenda.... on agriculture, all that I can say is that the EU is working on its proposals and be as specific as possible. But in their case, they have further commitments (CAP reforms, constitutional changes, and the EU expansion).”
Need for balance
At the TNC discussions over the three days, in general comments many members talked about the need for balance in the progress (though the “balance” meant many things to many members), and developing countries focussed on the “development” agenda and the lack of progress in the agriculture negotiations. There were some members who sought to establish a linkage between progress on agriculture, on non-agricultural market access, and on the negotiations on rules. Some developing countries also underscored the need to address non-tariff barriers in terms of market-access talks.
There were also some heated discussions on the question of negotiations over geographical indications (GI) of origin, amid complaints that these talks were being held up by the demandeurs on agriculture. Negotiations are mandated on establishing a multilateral register of GI of origin for wines and spirits, and for extending the higher level of protection for GI for wines and spirits to other products.
On implementing paragraph 6 of the Doha Declaration on TRIPS and Public Health, there was a fair amount of support for using the 10 November text of Amb. Motta (but very little for his 24 November draft, which had been rejected by a large number of developing countries already). Japan however said that implementing Doha should not involve any changes to the TRIPS Agreement.
Norway and Malaysia however complained that in the discussions in this area they were moving backwards from the 10 November text, while Korea said there should be no effort to go beyond what could not be agreed at Doha. The US called for “realistic” solutions based on practical needs.
A number of countries, including China, the Philippines and Thailand, underscored the need for flexible and quick solutions and saw authoritative interpretation as their preference for implementing paragraph 6.
On the SDT issues, the frustrations of developing countries came out loud and clear, with a near-universal complaint that not one of their specific proposals had advanced towards decisions. A number of them also spoke up rejecting the call for “differentiation” among developing countries. The EC began speaking of splitting the proposals into “doables” and others that have to be addressed at next September’s Ministerial Conference in Cancun.
All the industrialized countries sought to push the idea of a “monitoring mechanism” to be the solution to be accepted now on the SDT issue, though it has not been clear how any mechanism could “monitor” something on which there is no agreement or decision.
On the implementation issues again, there were proposals for dedicated sessions of the TNC to tackle and resolve them. However, the major industrialized nations argued that the TNC was not a negotiating body and all the issues should be sent to the relevant WTO bodies, with the TNC performing only a supervisory role - in effect more of the same as over the last year.
The EC, Japan and supporters sought to push the Singapore issues, arguing that without them there would be no “comprehensive” agenda. The US said that any investment rules must cover portfolio investments also. A number of others, with Malaysia in the lead, said that such attempts to push the Singapore issues would not be helpful.
A number of developing countries complained about the schedule of meetings, with many more informal ones, preventing the developing countries from participating.
On the implementation questions, a number of them said that there was a clear unwillingness on the part of the industrialized countries to engage in negotiations, with a number of them coming out in favour of dedicated sessions of the TNC to resolve them.
They were responding to Supachai who had earlier posed five courses of action: decide that no further action was needed, refer issues to negotiating bodies, continue work in regular WTO bodies, enhance the supervisory role of the TNC, and undertake further work at the level of the TNC itself.
Egypt, India, Cuba, Brazil, Romania, China, Jamaica, Norway, Switzerland and Malaysia favoured the last course, while the EC sought to split the issues into doables and others.
There were particularly heated discussions over the GI issue and extending the protection for wines and spirits to other products, with Argentina speaking of the negotiations “not being contaminated” by such issues and that this issue was not in the interests of developing countries. Australia, Chile and Korea suggested that the TNC should not discuss the issue before the TRIPS Council issues a report.
This, and the view of Canada and others that this was a last-minute inclusion into the Doha agenda, and that it was not a negotiating issue at all, brought out some strong reactions, with Norway reading out the entire paragraph 12 of the Doha Ministerial Declaration to underscore that all implementation issues were part of the negotiating agenda and part of the single undertaking.
It was also pointed out that though there was no report of the TRIPS Council, the oral report of the chair made clear that there was no progress and the TNC must now provide directions.
Norway also said that the efforts to push some issues off the agenda undermined the integrity of the Doha mandates. The implementation i ssues, Norway said, had been there for a number of years, and had been part of the draft Ministerial Declaration (paragraph 21) sent to the Seattle meeting. (SUNS5251)
From Third World Economics No. 296 (1-15 January 2002)