Present alternative views to one-sided draft, demands Nigeria

by Chakravarthi Raghavan

Geneva, 30 Oct - The Chairman of the General Council, Mr. Stuart Harbinson of Hong Kong China, has been formally asked by Nigeria (in a formal letter requesting its circulation to members, and to be placed before the Doha Ministerial meeting) to revise his latest draft of the Ministerial declaration to present also the alternative views, including that of Nigeria.

The Nigerian letter, citing Hong Kong China’s own position in the preparatory process to Seattle, has come, even as the General Council Chair was reported by some as trying to buttress himself, with a legal opinion from the secretariat, of his right to present on his own authority, without any formal decision or authorization from the General Council, of his proposed draft declaration.

During the informal HOD ‘information’ and consultation meetings, when Harbinson had indicated his intention of presenting his own formulations, Nigeria had specifically said that he should clearly indicate, with square brackets, the paragraphs in his text that did not command consensus, and reflect the views of others. Harbinson has ignored this in his revised draft documents.

There were reports circulating among delegations of member countries and observers that the WTO’s legal division was planning to give such an opinion.

However, experts point out that in a ‘rules-based’ organization that the WTO claims itself to be, there must be specific rule, or authorization by the appropriate body for any one, whether the Chairman of a body or by the secretariat, to take a particular course of action. No such authorization or authority so far appears to have been granted.

In a communication to the SUNS, in response to a specific question, Mr.  Bhagirath Lal Das, the former Indian ambassador to GATT and Chairman of the GATT Council at the time of the 1982 Ministerial meeting (and a trade expert and author of books on the GATT and the Uruguay Round agreements), said that the Chairman of the General Council “can act only on the decision of the General Council” in presenting a text to the Ministers on his own authority.

“He (the Council chair) does not have an authority of his own. He has to take the approval of the General Council to present a text on his own authority.”

The draft documents issued on Saturday night by Harbinson has been received with a sense of outrage among many developing countries, in that the document sets out formulations and views there entirely reflecting those of the developed countries and in effect there is an attempt at staging a coup at Doha.

In writing a formal letter to Harbinson (and circulating it to other delegations), and requesting Harbinson to circulate the letter with the attached document (side by side with Harbinson’s own draft declaration) setting out Nigeria’s views and comments on the Harbinson drafts, to all delegations and place it before Ministers, the Nigerian deputy permanent representative to the WTO, Mr. Nwagwu, has said that Nigeria’s objective was “to allow Ministers to see the interests of my Delegation which you could not reflect in your Declaration Job No.(01)/140/Rev.1”

In comments on the Harbinson draft, attached to the letter, ‘Nigeria’s reaction to the revised ministerial text’, has said that “it finds the Chairman’s revised text “unsatisfactory, because it is one-sided”. The text “generally accommodates in total, the interests of developed countries, while disregarding the concerns of the developing and least developed countries.”

“It is empty of contents on the issues of interest to developing countries, including issues of Implementation, Special and Differential Treatment (S&D), LDC issues, Subsidies and Countervailing Measures and TRIPS and Public Health.”

While “not giving much” in Implementation that has been on the table since the conclusion of the Uruguay Round Agreements, the Chairman’s draft “pushed vigorously the New Issues in favour of major delegations,” Nigeria said.

“The Singapore Ministerial Decision is that negotiations on the New Issues will take effect if a consensus is agreed. We have not reached a consensus on them.  The Draft went further to include new views on TRIPS as if it is an agreed text.  In the area of Industrial Tariffs Nigeria had cosponsored a proposal by Kenya and several other countries that a study should be initiated on the implications of previous negotiations in the area of industrial tariffs on the economies of developing countries before engaging in new negotiations in this area. Here again the Draft has failed to reflect the concerns of a large section of the membership.”

“The text,” Nigeria said, “shows not much regard for our countries. We request the Chairman to indicate alternative views from the developing and least developed countries in order to send a balanced document to Ministers.”

“It is rather unfortunate,” Nigeria said, “that the Chairman has decided to adopt this non-inclusive attitude by side-tracking the views of developing and least developed countries. Nigeria considers it a serious omission that the Draft has not projected the crucial differences in our views.

“This portends that there is no level playground in the wTO if one side only is heard in arguments and on issues that affect all our countries,” Nigeria added.

Nigeria recalled that it had requested the Chairman to indicate the different views of delegations in square brackets when producing the second Draft.

“Apparently due to pressure of work tis has not been done (not that the Chairman is insensitive to the request or feelings of the Nigerian delegation),” the communication added - in perhaps indicating a way out for Harbinson.

“The revised text does not clearly identify our interests, it only gave negotiating options, and we reject those options on New Issues, TRIPS, Trade and Environment, S&D Treatment and the establishment of a Trade Negotiations Committee.

“The Chairman is therefore invited to please reflect in his revised text the alternative views so as to give the Ministers the other side of the story to enable them to reach an informed decision.”

The Nigerian delegation to the World Trade Organization, in a letter to the Chairman of the General Council, Mr. Stuart Harbinson, has set out its comments on the Chairman’s proposed draft Ministerial Declaration and asked him to forward and place before the Ministers, along with his own draft, the views of Nigeria so that Ministers could be aware of the interests of the Nigerian delegation which Harbinson has chosen fit not to reflect.

“Our request is that our proposals be reflected in the Draft Declaration alongside other proposals. Our request is consistent and supportive of a similar request made by the Delegation of Hong Kong China before the Seattle Ministerial in 1999. At one of the Preparatory Special General Council meetings held on 23 November 1999 (Doc.No.WT/GC/M/51), the following was recorded at paragraph 11:

“The representative of Hong Kong China said that the positions of delegations which had made proposals before 19 October and which were not reflected in the text circulated on that date should not be prejudiced in any way by the transmission of that text to the Ministerial Conference. Furthermore, his delegation requested that, when circulating texts to the Ministerial Conference, the Secretariat should clearly state the source of the document, whether it concerned one or several delegations and whether it was being issued under the Chair’s authority.”

[Thereafter the revised draft Ministerial declaration presented by the then Chairman of the General Council, Amb.Ali Mchumo of Tanzania, had clearly specified all the proposals of delegations, including that of the developing countries under implementation.]

“Time changes everything and the distance between Seattle and Doha appears long.

But the problems remain the same,” Nigeria commented.

Nigeria added: “Our demands are very modest but we insist on them being reflected in the Ministerial Declaration. These are that:

·        All implementation issues should be addressed and resolved at Doha, in accordance with an earlier decision of the General Council.

·        On the New Issues, the study process should continue pending such a time that there will be consensus on then as mandated by the Singapore Declaration. This will enable delegations to better understand them and ensure that outstanding issues are clarified. Consequently, we reject the opt in/opt out proposal in paragraph 20 and 21 in whatever form it is presented.

·        The members should initiate a study of the implications of previous negotiations in the area of industrial tariff on the economies of developing countries to guide them on how to proceed in the future.

·        In the understanding of the developing countries, nothing in the TRIPS Agreement shall restrict Members from taking necessary action to protect public health in their countries.

·        Environmental issues do not belong in the WTO and the Organization should not be over-burdened with issues that rightly belong to other international Organizations.

·        Special and Differential Treatment for developing and least developed countries should be made mandatory and binding.

·        If a new round of negotiations is agreed in Doha, it should be conducted within the existing negotiating bodies under the direct supervision of the General Council, hence there is no need for the establishment of a Trade Negotiating Committee.” – SUNS4999

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

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