TWN Info Service on WTO and Trade Issues (Jul17/20)
28 July 2017
Third World Network

DG pulled up for flouting mandates, WTO and Rules
Published in SUNS #8511 dated 27 July 2017

Geneva, 26 Jul (D. Ravi Kanth) -- The World Trade Organization Director-General, Roberto Azevedo, was taken to task on Tuesday (25 July) by developing countries for flouting the mandates of the Doha Work Program and for adopting questionable procedures and practices, such as Heads of Delegations (HoD) meetings, in his efforts to advance new issues by the backdoor, several trade envoys told SUNS.

There were some particularly hard-hitting remarks by India and Uganda at the informal meeting of the Trade Negotiations Committee (TNC), held after two years, over Azevedo's free-wheeling tactics and his efforts and that of some WTO officials to promote and advance some new issues and agenda of a few developed countries.

Several countries - India, Uganda, and the African Group among others - reminded the director general - who is also the chair for the TNC, established under the Doha work program, that he has no mandate to convene HoD meetings for negotiating issues.

Azevedo's convening of an informal Trade Negotiations Committee meeting followed by an informal heads of delegations meeting on Tuesday was apparently to facilitate the United States to make a statement at the HoD meeting but not at the informal TNC meeting, to which it remains opposed, according to a trade envoy who asked not to be quoted.

The developing countries emphasized the centrality of the Doha Development Agenda negotiations, and suggested that the DG or his secretariat are violating the agreed ministerial mandates by canvassing for new issues such as electronic commerce, disciplines for micro, small and medium enterprises.

They cautioned the Director General that failure to adopt and follow credible and well-established practices as per the ministerial mandates is leading to erosion of credibility of the trade body.

On the issue of informal HoD meeting, India's new trade envoy, Ambassador J S Deepak said "our understanding is that a forum for negotiations can only be created by the decision of the Ministerial Council," according to people present at the meeting.

Further, the mandate of the TNC, he said, "flows from the decision of the Ministers in Doha in November, 2001."

"The TNC was set up to supervise the overall conduct of the negotiations under the guidance of the General Council," India pointed out.

"The TNC, therefore, together with its (negotiating) bodies remains the only negotiating forum at the WTO and no other parallel negotiating forum can be created," India argued.

The DG in his capacity as Chair of the TNC is free to report to the GC on his travels and meetings under the framework of the TNC, the Indian ambassador continued.

India sought to know from the DG "the need for having an informal HoDs to be chaired by him."

In a hard-hitting critique of the questionable practices adopted by the DG, Uganda said, somewhat mockingly, that the DG must be congratulated "for having reconvened the TNC after such a long time."

Uganda reminded members that the last meeting of the informal TNC was held in January 2015. "In this time, two formal meetings of the TNC were also convened, the last one being in July 2015, which is two years today," Uganda said.

"Since then, no formal or informal meetings of the TNC had been convened," Uganda pointed out.

Uganda raised three points on process issues. They include "Role of Chair of the TNC"; "Mandate of TNC"; and "the authority to create negotiating fora."

Reminding the director general that "the TNC was created by the Fourth Session of the Ministerial Conference of the WTO under Para 46 of the Doha Ministerial Declaration," Uganda said there was no immediate decision then on who would Chair the TNC.

Members "were torn between those who wanted the Director General, and those who wanted the leadership to be from among representatives of WTO Members," it pointed out.

"It was therefore agreed that the DG, as an exceptional arrangement, be appointed in an ex officio capacity to chair the TNC, it being understood that it does not create a PRECEDENT for the future," Uganda maintained.

Uganda pointed to the mandate of the TNC by citing the first TNC meeting in document TN/C/M/1. The chair of the GC, Ambassador Sergio Marchi of Canada, had then clarified that "... The mandate for the TNC, as for the negotiations as a whole, is that agreed by Ministers at Doha in November 2001, and set out in their Ministerial Declaration paragraphs 45 to 52 of that Declaration in particular, relate to the TNC, which Ministers have established under the authority of the General Council to supervise the overall conduct of the negotiations... that is the mandate".

Uganda told the DG "that any moves to create a structure, or forum, parallel to, and in competition with the TNC, as far as negotiations are concerned, is inconsistent with the mandate of the TNC and the social contract for which the holder of the Office of Director General is bound by the membership to execute as Chair of the TNC."

It stressed that "the only contract that the Director General has in as far as matters of Negotiations are concerned is, limited to the TNC."

The director general, said Uganda, has no legal basis to expand or limit his role. It pointedly asked Azevedo: "where does the DG derive the authority to create this parallel structure, which is competing against the TNC? Has the TNC outlived its usefulness? Have the negotiations which were mandated been concluded. Have we agreed to wind up the TNC?"

Uganda further explained that in its view "the right to create fora for negotiations has been clearly spelt out in Article III. 2 of the Marrakesh Agreement."

The Marrakesh Agreement, according to Uganda, says "the WTO may also provide a forum for further negotiations among its Members concerning their MULTILATERAL TRADE RELATIONS... as may be DECIDED by the MINISTERIAL CONFERENCE."

"As we understand, there has been no such Ministerial Decision to create a structure counter to the TNC," Uganda maintained.

It quoted "para 34 of the Nairobi Ministerial Declaration" that says "while we concur that officials should prioritize work where results have not yet been achieved, SOME wish to identify and discuss other issues for negotiation; others DO NOT. Any decision to launch negotiations multilaterally on such issues would need to be agreed by all Members".

Uganda told the DG that "unilaterally setting up this parallel structure is an attempt at institutionalizing the disagreement in Para 34 of the Nairobi Ministerial Declaration without authority of Article III (2)."

Further, paragraph 34 "has no reporting requirement for the DG on new issues," Uganda said.

More important, the paragraph 34 "does not mandate the creation and or establishment of any new forum for negotiations," Uganda argued.

"In fact, to do so would be an attempt at exceeding the authority of the DG as laid down in Article 6 of the Marrakesh Agreement and defeating the instruction, object and purpose for which Ministers created the TNC in the first place," it maintained.

Further, what the director general is doing is "in contravention of Article 6(4) of the Marrakesh Agreement" which requires that the "The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character... They shall refrain from any action, which might adversely reflect on their position as international officials".

While acknowledging there were instances where the DG undertook to convene Heads of Delegations meeting before the Doha Round, Uganda said "such meetings were convened (at that time) with the express agreement of the members."

Uganda argued that "a Director General in his capacity as chair of the TNC is free to report on the various travels and meetings under the framework of the TNC."

"There is no need for creating another forum without following due process," it maintained.

"Further, every member has a right to speak on any issue of national interest to them within the TNC [and] it is the duty of the other members to debate and either agree or not with any suggestions," Uganda argued.

"This is why this is called a member driven Organization and all of this is a function of negotiations," Uganda said.

In conclusion, Uganda said "we are at a critical juncture within this Organization where it will matter in the history of the future, on why a rules-based organization elected to proceed by setting aside a critical part of its mode of operation that has defined its negotiating history."

"As the weakest and most vulnerable members of this Organisation, the only protection we have in this Organisation is the protection afforded by rules, which have variously been etched in our fabric as Agreements, Ministerial Decisions, and Declarations and or Mandates," Uganda maintained.

"If we do not defend the strong legal structure of this Organization, as we acknowledged in Nairobi; then slowly by slowly all small, less powerful, and poor delegations will lose the voice and protection of such rules," Uganda said.

The questionable practices adopted without proper TNC meeting have led to a sustained "push" for proposals in complete disregard of established rules and procedures and also without an explicit mandate," Uganda argued.

It pointed to "a renaming of divisions in this Organization, in complete disregard of the object, purpose and spirit of Paragraph 1(g) of the July Framework."

"We have witnessed some members of the Secretariat engage in attempted interpretation of Multilateral Agreements... We have witnessed some members of the Secretariat prepare papers and offer interviews to support one point of view against another as though they were surrogate proponents," Uganda maintained.

Uganda asked why "the Secretariat did not make any presentations in defense of the Structural Transformation and Industrialization of Africa in line with Agenda 2063: The Africa We Want." The Secretariat also never spoke "in defense of Pubic Stock Holding for Food Security Purposes or the SSM."

"It is therefore our noble duty to raise these systemic concerns and request the Secretariat to exercise maximum restraint and show neutrality in line with the WTO's international character," Uganda maintained.

"We therefore do not support any attempts at creating structures and or fora without an explicit mandate and would support further consultations on this issue going forward preferably under the auspices of the General Council," Uganda maintained. +