TF legal texts adopted, but still no consensus on protocol

WTO member states have approved the text of the Trade Facilitation Agreement but remain at odds over the provisions of the legal instrument that would give effect to the treaty.

by Kanaga Raja

GENEVA: The WTO Preparatory Committee on Trade Facilitation on 10 July formally adopted the legal texts of the Trade Facilitation Agreement (TFA), but consensus still eluded members on the Protocol of Amendment, which would bring to legal effect the TFA by inserting it into Annex 1A of the WTO Agreement.

According to trade officials, at a brief meeting, the Preparatory Committee firstly formally adopted the legal texts of the TFA in all three of the WTO’s official languages – English, French and Spanish.

The WTO’s ninth Ministerial Conference, which was held in Bali in December, had concluded the negotiation of the TFA “subject to legal review for rectifications of a purely formal character that do not affect the substance of the Agreement”.

Subsequently, in May, the Preparatory Committee completed the legal review of the English text of the TFA. Following the completion of the translations, these were sent to the capitals of Spanish- and French-speaking countries.

At the 10 July meeting, the Chair of the Preparatory Committee, Ambassador Esteban B. Conejos Jr of the Philippines, said that he was heartened to see that the legal “scrubbing” of the TFA had proceeded so smoothly.

According to trade officials, El Salvador thanked Ambassador Alfredo Suescum of Panama for facilitating the work on the Spanish text.

On the Protocol of Amendment, the Chair reported that members were not yet in a position to adopt it.

The Preparatory Committee was tasked, among others, with drawing up the Protocol of Amendment for the TFA to be inserted into Annex 1A of the WTO Agreement.

According to the Bali Ministerial Decision, the WTO General Council is to meet no later than 31 July 2014 to annex to the TFA notifications of Category A commitments (to be implemented when the agreement comes into force), to adopt the Protocol drawn up by the Preparatory Committee, and to open the Protocol for acceptance until 31 July 2015.

The Protocol is to come into force upon acceptance by two-thirds of the members (in accordance with Article X:3 of the WTO Agreement).

Persistent divide

The Preparatory Committee had held a two-day session on 2-3 July that saw continued differences among members over the possible language for the Protocol that would reference paragraph 47 of the 2001 Doha Ministerial Declaration, which outlines the principle of the single undertaking in the Doha Round trade talks.

(Paragraph 47 states: “With the exception of the improvements and clarifications of the Dispute Settlement Understanding, the conduct, conclusion and entry into force of the outcome of the [Doha Round] negotiations shall be treated as parts of a single undertaking. However, agreements reached at an early stage may be implemented on a provisional or definitive basis. Early agreements shall be taken into account in assessing the overall balance of the negotiations.”)

In their interventions at that meeting, a number of developing countries reiterated the need for the language in paragraph 47 to be in both the draft Protocol of Amendment and the draft General Council decision that will adopt the Protocol. These countries included India, South Africa, Lesotho, Uganda, Tanzania, Zimbabwe, Bolivia and Cuba.

India told that meeting that until it had an assurance and visible outcomes that convince developing countries that members will engage in negotiations with a commitment to finding a permanent solution on public food stockholding and other Bali deliverables, especially those for the least developed countries, it would find it difficult to join the consensus on the Protocol of Amendment.

[According to a report in the Washington Trade Daily, ahead of the Preparatory Committee meeting on 10 July, the Chair of the General Council, Ambassador Jonathan Fried of Canada, held consultations with the ambassadors of some of the seven countries (India, South Africa, Tanzania, Uganda, Zimbabwe, Bolivia and Cuba) that had refused to join the consensus on the Protocol.

[The WTD also reported that WTO Director-General Roberto Azevedo held “confessionals” with Uganda, Tanzania, Zimbabwe, India, Cuba and Bolivia to discuss their concerns, and had conveyed his worries over the work on trade facilitation not being completed by the end of the month. The seven countries, however, are reported to have reiterated their concerns that their core issues on development have yet to be addressed.]

At the Preparatory Committee meeting on 10 July, the Chair reported that consensus (on the Protocol) “still appears elusive as of today” and that he saw no point in engaging in another round of repetitive discussions on outstanding issues unless delegations had positive developments to report.

According to Ambassador Conejos Jr, this conversation “will need to take place at another time, and possibly at another level”.

According to trade officials, the Chair said that his door remained open to anyone wishing to see him. He also urged delegations to reach out and talk with each other.

According to trade officials, no delegation took the floor.

Given that the agenda for the General Council meeting of 24-25 July would need to go out to members shortly, the Chair said that, in the absence of an approved Protocol from the Preparatory Committee, the item inscribed on the General Council agenda on this issue would be a report from the Preparatory Committee Chair.

Ambassador Conejos Jr said that the possibility of an agreement remained on the table. He urged members to do their best and get an agreement before 24 July. The Chair told members that there were no additional meetings of the Preparatory Committee scheduled, but that he would inform members promptly if that situation were to change.

Some trade diplomats suggested that Azevedo, as well as the US and the EU, were likely to try to bring this matter up before the scheduled meeting of senior officials and trade ministers of the G20, which was being held in Sydney. Australia is hosting this year’s G20 summit. (SUNS7843)

Third World Economics, Issue No. 572/573, 1-31 Jul 2014, pp25-26