Geneva process being further illegitimized

by Chakravarthi Raghavan

Geneva, 7 Nov 2001 - The Harbinson-Moore covering letters to the Chairman of the 4th Ministerial Conference, forwarding to him on their own ‘authority’ the draft documents (two draft declarations and a draft decision on implementation), have ignored the opposing views on the contents, beyond stating that they are not consensus documents.

The letters addressed to Mr. Yousef Hussain Kamal, the Minister of Finance, Economy and Commerce of Qatar, the designated Chairman of the Ministerial Conference, and dated 5 November, were issued to the members Monday evening, and merely outline the process adopted - and that too, full of suppressio veris and suggestio falsis.

There is no indication in the letters as to whether, how and when, the views of a sizeable section of the membership opposing one or the other, if not most of, the contents will be officially brought up before the ministers.

The ministers meeting at Doha are being ‘set up’, and it is difficult to say how they will react.

The issuance of the letters came amidst reports in western capitals that the US and European ministers going to Doha will probably spend no more than a day or two, and that there is no serious intention of achieving anything.

If the reports of what WTO Director-General Mike Moore is planning (under advice of his officials) come about, he will try to get a general authorization for continuing the process towards consensus on the basis of their documents, which failed to get the nod from the General Council to be forwarded as a basis for further negotiations.

Whether some of them want to launch new negotiations and with new subjects or are opposed to it, or any other course, the Ministerial Conference finds itself in a situation where even the very fundamental concept of ministers meeting every two years to engage in such negotiations, has to be challenged and questioned.

Certainly, whatever the corporate financial media may say, the WTO has been brought into further ridicule in one sense, and has been made the focus of upheaval among the public.

At an UNCTAD consultative meeting on problems of countries seeking accession, the Jordanian Trade Minister is reported to have said that the WTO should be renamed the “World Torture Organization”, for the acceding parties are put through a tortuous process for accession.

Now, the WTO is well set to earn the title the “World Terror Organization”.

Before further damage can be inflicted, perhaps, it is time for the Ministers at the Conference to wipe the slate clean and start on a new process, and relieve the director-general of any further responsibility for the tasks ahead.

And whatever else they do, the Ministers should at least spare themselves and the rest of the world, the task of thanking Mr. Mike Moore and Mr. Stuart Harbinson for their efforts in the preparatory process, for the process and procedures they persisted in despite repeated advices to the contrary has ill-served the Ministers and the hosts.

The following are the texts of the covering notes for the two ‘draft declarations’ (one for a work programme and new negotiations, the other on TRIPS and Public Health), and a ‘draft decision on implementation’ and a secretariat document of the outstanding issues.

The cover note on the two ‘draft declarations’ says:

“As you know, on 8 February 2001, the WTO’s General Council accepted the generous offer by Qatar to host the Fourth Session of the Ministerial Conference and, at the same time, authorized the Chairman of the General Council, in cooperation with the Director-General, to start consultations on both organizational and substantive matters related to preparations for that meeting.  The substantive preparatory process under this mandate was conducted in informal meetings in which we made transparency and inclusiveness a top priority.

On the basis of the consultations held from the beginning of the process, it was clear that the overwhelming majority of Members did not wish to repeat the method of preparation followed prior to the Seattle Ministerial Conference. The latter was a process driven by formal proposals which resulted in an unwieldy compendium which could not be refined. Instead, Members clearly preferred a method whereby the Chairman and the Director-General would produce, on the basis of consultations, their best approximation of a compromise solution among the differing positions of the membership.

Following our early consultations in this process, we circulated on 20 April a checklist of possible issues to be included on the agenda of the Conference, which formed the basis for the intensive discussions in the subsequent months.  At the end of June, an informal meeting of the General Council at the level of Senior Officials was convened . A further informal meeting at the end of July provided an opportunity for a collective stocktaking or “reality check”, and prior to that meeting we circulated a report which provided a sobering assessment of the results of the work until then.

On the basis of a further series of intensive consultations held during the month of September we circulated a first draft text of a Ministerial Declaration on 26 September. As you know, certain areas of that text were more fleshed out than others, which reflected the level of development of our work in each area at that time. In some areas, such as agriculture and intellectual property and access to medicines/public health, fuller texts remained to be developed, and we indicated that this needed to be undertaken with a sense of urgency. In others specifically, the extension of protection of geographical indications to other product areas, the relationship between trade and investment, and the interaction between trade and competition policy we included options for further consideration.

We indicated that the draft text of 26 September was a starting-point, a basis on which we would work with delegations to produce a revised version for submission to Ministers. In the weeks since then, we consulted intensively with delegations in various formats, including very frequent open-ended informal meetings at the Heads-of-Delegation level.

Although delegations showed a willingness to engage constructively and made considerable efforts to bridge gaps and increase comfort levels on key issues, the distance between positions in some critical areas remained significant.  Therefore, in line with the approach adopted from the beginning, on 27 October we put forward, on our own responsibility, a draft text of a Ministerial Declaration and a Declaration on Intellectual Property and Access to Medicines/Public Health, in an effort to provide a basis for eventual consensus.  It was made clear that neither the 26 September nor the 27 October texts claimed to be agreed in whole or in part.

The preparatory process in Geneva effectively concluded with a formal meeting of the General Council held on 31 October-1 November. At that meeting, while few Members expressed full satisfaction with the draft text of the Ministerial Declaration, many felt that it represented a sound basis for decision by Ministers at Doha. Others held the view, however, that the options in the text of 26 September should have been retained. Yet others expressed a preference for a text which would have reflected more fully the diversity of views on the various elements.

However, in view of the operating method we have followed consistently, we are satisfied that the draft Ministerial Declaration dated 27 October which we are transmitting to you under cover of this letter, and under our own responsibility, represents the best possible basis for Ministers to build on at Doha. The separate text on Intellectual Property and Access to Medicines/Public Health is in a different state of evolution. While many Members appear to see this also as a sound basis for further consideration by Ministers, there are still very clear differences of view as represented by the two options for paragraph 4 of that text. We did not feel able in this instance, and at this stage, to propose a compromise solution.

As we have said before, these texts clearly do not purport to represent agreed elements in any way at this stage, although we may be much closer to agreement in some areas than in others. In transmitting these texts to Ministers on our own responsibility, it is our hope and expectation that Ministers will be able to build on the good work that has been done in Geneva, and reach agreement at Doha. We are also circulating this letter to all Members for information.”

The cover note for the ‘draft decision’ on implementation says:

“As you know, following an initiative by many developing countries, the WTO’s General Council decided on 3 May 2000 to meet in Special Sessions to address outstanding issues and concerns raised by Members regarding the implementation of WTO agreements and decisions, and to complete this process not later than the Fourth Session of the Ministerial Conference.

Since then, Members have worked together in six Special Sessions and in innumerable informal consultations in various formats, in a concerted effort to complete the process in accordance with the terms of the Decision of May 2000.  In this work, they have also drawn upon the important and valuable technical expertise available in other WTO councils and committees.

At the Special Session on 3 October and subsequently on 1 November 2001, we submitted for the consideration of Members a draft Decision to address all outstanding implementation-related issues and concerns. This text, which should be read in conjunction with the related compilation of outstanding issues as well as paragraph 12 of the draft Ministerial Declaration, resulted from a

re-examination of earlier proposals in an intensive consultative process, and took into consideration suggestions by interested delegations, as well as elements from the reports of the subsidiary bodies on issues referred to them.  The draft Decision proposes immediate action on a number of implementation issues, and provides that remaining issues—which include those referred to other WTO bodies as well as those listed in the compilation—will be addressed in the course of the future work programme in accordance with paragraph 12 of the draft Ministerial Declaration. Finally, the draft Decision also recommends related action to ensure that WTO technical assistance focuses as a priority on assisting developing countries in this area of the WTO’s work.

It is our assessment, on the basis of the discussion at the Special Session on 1 November, that most of the elements contained in the draft Decision are acceptable to all Members. However, despite our best efforts to put forward compromise solutions in all areas, some concerns remain with regard to some proposals. In particular, Members have expressed serious concern with the proposals on the Agreements on Textiles and Clothing and Subsidies and Countervailing Measures, especially as regards Article 27.4 of the latter Agreement.

Accordingly, in transmitting this draft to Ministers for decision on our own responsibility, we recommend that in the organization of further work on this subject Ministers seek to focus on the limited number of outstanding issues and not reopen the text in other areas. We are also circulating this letter to all Members for information.” – SUNS5004

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

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